The Issue The issue in this case is whether the Respondent has discriminated against the Petitioner on the basis of the Petitioner's race, in violation of Section 760.10(3), Florida Statutes.
Findings Of Fact Based on the testimony of the witnesses at the hearing, on the exhibit received in evidence, and on the matters officially recognized, I make the following findings of fact. The Petitioner, Dr. James J. Weaver, is a black male. He has never been a member of the Respondent, Leon Classroom Teachers Association. He has never applied to become a member of the Leon Classroom Teachers Association. During April of 1985, the Petitioner was a member of the bargaining unit of instructional employees represented by the Leon Classroom Teachers Association. During August of 1955, the Petitioner was not a member of that bargaining unit. The Respondent, Leon Classroom Teachers Association ("LCTA") is an employee organization. At all times material to this case, the LCTA was the bargaining representative for a unit of instructional employees employed by the Leon County School District. Evans Hughes was, at all times material to this case, an organizer for LCTA whose duties included the handling of employee grievances. Evans Hughes is a white male. Petitioner wrote a letter dated March 8, 1985, to Judy Johnson, who is a staff attorney for the School District. In the letter, the Petitioner complained that he had not received regular pay since January 18. He also complained about his erratic work schedule. Petitioner acknowledged his acceptance of a part-time position in February due to his lack of certification in English and he stated: I am not trying to hold the Leon County School Board to our original agreement extending my employment through March 15, 1985. I am only seeking pay at the 1-0 level for the days in which I did work. However, I would never stand in the way of getting a certified teacher in an area of education endeavor that I lack certification. Therefore, I am requesting that immediate action is taken whereby I am paid for the services that I have performed for Leon County School Board starting January 21, 1985 through February 15, 1985 . On April 15, the Petitioner filed a grievance dated April 13, which stated in relevant part: Statement of Grievance: To Mrs. Jackie Daniels, my complaint is centered around the fact that I was mislead or given a false impression by Dr. Paul Onkle, Director of Employee Relations, regarding regular pay for the period extending from January 21, 1985 through February 6, 1985. He told me on March 26, 1985 that he was going to have payroll cut a check for the days in question and I could come back March 27, 1985 and pick up the check but I haven't gotten paid. Relief Sought: Regular pay at the rate of 12.1720 an hour for the period extending from January 21, 1985 through February 6, 1985 (see attached Position Control Personnel Action Form dated 12-18-85). A written explanation as to why I was asked by you to take off one half of the day January 21, all day January 22, 23, and February 7, 1985. An explanation as to why I was not paid on February 15, 1985 along with the rest of the teachers. In filing the grievance, the Petitioner did not intend to raise the contention that Daniels had verbally extended his contract. Rather, because he needed the money, the Petitioner intended to pursue the contract duration issue separately at a later date. The grievance form reflects on its face that the four copies, white, canary, pink and goldenrod, were to be respectively provided to the Director of Employee Relations, the LCTA, the grievant's immediate supervisor, and the grievant. However, the Petitioner did not retain a copy for himself because he thought that he would receive one after the disposition had been made by his immediate supervisor. Upon the filing of the grievance, Clark, the president of the LCTA, directed Evan Hughes to evaluate the Petitioner's complaints. Shortly before April 22, Hughes called the Petitioner and asked that they meet and that the Petitioner bring all pertinent documents. At a meeting conducted on April 22, the Petitioner presented Hughes with various documents related to his complaints, including February, March, and April correspondence with Daniels, McDonald, Johnson, Giordano, Onkle, Couch and Clark. Prior to the April 22 meeting, LCTA had received a copy of the Petitioner's grievance. While the Petitioner may have intended to complain about the duration issue, he did not raise that issue in his discussions with Hughes and Clark. The Petitioner asked Hughes to process the April grievance and Hughes agreed that the LCTA would represent the Petitioner in the portion of the grievance concerning payment as a regular teacher for time that he had worked. However, Hughes explained that the LCTA would not represent the second and third elements of the grievance because the contract did not provide for the requested relief, i.e., written explanations. Article VI of the collective bargaining agreement between LCTA and the School Board outlines the grievance procedure to be followed when filing a formal teacher's grievance such as the Petitioner's grievance of April 13, 1985. Under Article VI, 6.02, Step II of the grievance procedure, if no disposition has been made within ten "Administrative Working Days" of the filing, the grievance shall be submitted to the second level within ten "Administrative Working Days" to the Superintendent. Thereafter, the contract provides that, within twenty "Administrative Working Days" the Superintendent or designee thereof shall meet with the LCTA to dispose of the grievance in writing. However, if the grievance can be resolved to the grievant's satisfaction, then no level two meetings are necessary. Under the parties' practice, at Step I and II, the LCTA generally does not make written proposals, but rather works informally through verbal negotiations. The grievant generally does not become involved in these initial efforts. In the midst of informal negotiations, it is not unusual for the parties to extend the contractual time limits. Normally, when a grievance is not responded to at Step 1 in a timely fashion, this constitutes an effective denial and the grievance automatically proceeds to the next step. Consistent with this practice, Hughes treated the grievance as if it were at the second step and he entered into discussions with Onkle, a representative of the School Board. Onkle presumed that the grievance was at the second step because this is the usual procedure when the dispute centers around the disagreement between an employee and his or her supervisor. About April 25, the Petitioner talked to Hughes, who told the Petitioner that he could negotiate a settlement for the eleven days worked from January 21 through February 6, which amounted to 77 work hours, but that the Board would not pay for the days the Petitioner was absent on January 22 and 23 and February 7. The Petitioner expressly authorized Hughes to settle the matter on those terms. The Petitioner also agreed that the $161 that he had been paid in January as a substitute would be deducted from the settlement. After the Petitioner's authorization, Hughes called Onkle and asked him to have a special check issued, so that the Petitioner would not have to wait for the money until his next regular paycheck. This was an unusual request. Giordano authorized the payroll department to issue the check for the 77 hours certified by Onkle. On May 5, The Petitioner received a check in the gross amount of $707.33. Because he calculated that he would receive $937.24 minus the $161 he received as payment as a substitute teacher, this check was $68.91 less than the Petitioner had anticipated. The check was prepared by Shirley M. Higgins, the District's Payroll Supervisor. The shortage was a consequence of an overpayment the Petitioner had received in his salaries paid to him up to January 18. Higgins had discovered the overpayment and she made the deduction herself without directions from Onkle or Hughes. It is normal for the payroll department to automatically deduct overpayments from an employee's next check and this deduction would have been made from Petitioner's regular paycheck, had a separate check for the settlement not been issued. The deduction did not relate to the Petitioner's grievance. It had not been previously removed from his pay because the Petitioner had not received a paycheck since the overpayment was discovered. As reflected in his April 15 letter to Onkle, Weaver was aware that he had received $68 overpayment in January. Hughes first found out about the $68 disparity after the Petitioner received the check. In a letter from the Petitioner to Hughes written about May 15, the Petitioner acknowledged his consent to settle "for 77 hours, (eleven days) for a total of $937.24 minus $161 paid to me in January as a substitute teacher." However, the Petitioner contended that this would result in a balance of $776.24, instead of the $707.33 that he received. Consequently, the Petitioner requested the difference of $68.91. Hughes called Onkle, who told Hughes that the $68 was an adjustment for a prior overpayment. Hughes relayed this information to the Petitioner. Because Hughes did not consider the disputed amount to relate to the grievance, he suggested the Petitioner consult with the District about the matter. The Petitioner never asked Hughes or Clark to withdraw from the settlement and proceed to arbitration or to file a new grievance on the $68 disputed amount. Around May 16, the Petitioner received from Giordano a copy of a worksheet setting forth the School Board's reasoning for the $707.33. By letter dated May 17, the Petitioner responded to Giordano that he was still owed $68.91. In reaction to this letter, Giordano met with Higgins and inquired about the disparity. Higgins defended the amount paid and Giordano asked her to present documentation so that he could explain the matter to the Petitioner. By letter dated June 17, Giordano explained to the Petitioner the overpayment through an analysis of Petitioner's pay history from November 2, 1984, to February 6, 1985. Giordano said that, for the periods ending on December 10, 1984, and January 18, 1985, the Petitioner worked a total of 308 hours which was paid at the contractual rate of $12.1720 for a total of $3,748.98. However, checks the Petitioner received totaled $3,817.62, which is an overpayment of $68.64. Giordano specified that this was separate from the time period covered by the grievance between January 21 and February 6. Attached to the letter was a worksheet containing the exact calculations of the Petitioner's work and payment history. Giordano acknowledged that the calculations showed the Petitioner had been underpaid by $0.27 in his May 7 settlement check, so he enclosed $0.30 in the letter. During the Petitioner's discussions with Giordano, the Petitioner did not indicate that he would revoke the settlement or file a new grievance. The Petitioner did not dispute that he had been previously overpaid. His complaints centered around the contention that the Board had not abided by the terms of the settlement. The LCTA and the School Board maintain a practice wherein a grievance settled at the second step is reduced to a written agreement. For practical reasons, the written agreements are generally not executed contemporaneous with the settlement. Rather, due to conflicts in scheduling, written agreements are often executed at a later date. At the conclusion of the settlement of Petitioner's grievance, the School Board and the LCTA followed their usual practice of documenting the disposition of his grievance. The terms of the grievance settlement were set forth in a "Stipulation of Agreement" which was signed by Onkle on May 29 and by Hughes on June 10. This agreement reflected that the Petitioner was paid as a temporary regular teacher for the period from November 2, 1984, through February 6, 1985, but that the Petitioner would not receive payment for the days in which he did not work. The three week delay in Onkle's execution of the agreement was due to his tardiness. Hughes executed the agreement on a separate date because he had been on vacation, and he signed it on the day of his return. Upon signing, Hughes followed his regular practice and gave a copy to his secretary and instructed her to file a copy and to send copies to Onkle, Clark, and the Petitioner. Hughes considered this agreement to be the disposition under the contract. Although there is a space for listing the disposition of a grievance on the grievance form, the parties normally set forth a settlement on a separate page due to insufficient space. Because the Petitioner was unsatisfied with the disposition of his grievance, he contacted Board Chairman Donna Harper, who suggested that he make a presentation to the Board. The Petitioner applied to appear at the School Board's June 20 meeting. In a memo dated June 18, which the Petitioner submitted to the Board at their June 20 meeting, he alleged that he had been discriminated against and he complained that: (1) he had not received payment for services performed from January 21 through February 6, (2) that his contract for full-time employment from February 6 to March 15 had been breached, and (3) that he did not receive payment for days taken off at his supervisor's direction on January 22 and 23, and February 7. He also asked for written responses to a number of questions. The Petitioner had not told Hughes or Clark about his intention to make a presentation to the Board and they heard about it from employees of the District. At the June 20 meeting, the Petitioner asked to make a presentation to the Board about a question of whether he was to be represented by the LCTA. He then made a presentation which initially charged that the LCTA had failed to represent him in his seven year effort to attain a job with the District. The Petitioner's presentation lasted about eight minutes, and approximately 90 percent of it concerned allegations that the Board had discriminated against him by denying him interviews and employment in a full-time position. He also complained about Giordano and Onkle's failure to respond to questions asked by him. During the presentation, the Petitioner did not indicate that he was attempting to appeal his grievance. At the meeting it was decided that the questions posed in the Petitioner's memo would be considered at the Board's meeting on July 9. The Petitioner did not attend the Board's meeting on July 9 due to an illness in his family. However, in anticipation of his attendance, Giordano brought a copy of the "Stipulation of Agreement" disposing of the Petitioner's grievance. By letter dated June 10, the School Board's attorney, C. Graham Carothers, advised the Petitioner that the Board had reconsidered the matters raised in Weaver's June 18 memo. The Board had determined that the Petitioner was a member of the bargaining unit represented by the LCTA and that any grievance that he had must proceed through the contractually based grievance procedure, rather than direct presentation to the Board. On August 19, the Petitioner filed a second grievance. In his August 19 grievance, he sought the following relief: (1) answers to the questions raised in his June 18 memo to the Board and June 25 letter to Carothers, (2) pay for the duration of the alleged oral contract extending his employment to March 15, and (3) an explanation as to why he had been denied employment on a full- time basis. Prior to that time the Petitioner had not requested the LCTA to represent him in his contention that he had been persistently denied employment with the Board. When the grievance was filed, the Petitioner was no longer a District employee. Giordano and Carothers met and agreed that the new grievance was an attempt to expand upon the prior one to include a new issue, i.e., the duration of the contract. Giordano felt that this would contravene the settlement and on September 4 he disposed of the grievance on that basis. The disposition did not address the Petitioner's contention concerning his denial of a position because Giordano considered that this issue had to be raised in the grievance procedure covering classified employees. About September 10, the Petitioner consulted with Clark about the August grievance. At that time the Petitioner told Clark that he had received Giordano's denial and he asked the LCTA to represent him in the matter. Clark told the Petitioner that the LCTA would not represent him because he was not a member of the LCTA or the bargaining unit. The LCTA took no action on the Petitioner's behalf in the second grievance. The Petitioner followed up his verbal request with a written request for LCTA representation dated September The Petitioner stated that the School Board had determined that he was a member of the bargaining unit. Clark did not respond to the request because he felt that his verbal response was sufficient. The Petitioner never asked the LCTA to file a grievance or any other type of action against the School Board on the grounds of racial discrimination in its hiring practices. The LCTA processed the Petitioner's grievance dated April 13, 1985, in the same manner as it processed all grievances, and in processing that grievance it did not deviate from its standard procedures. The LCTA has processed the grievances of white and black members and non-members in the same manner as it processed the Petitioner's grievance dated April 13, 1985. There was no evidence presented at the hearing that the LCTA in any manner protected the School Board in its alleged discrimination against the Petitioner by denying the grievance filed by the Petitioner in August of 1985. There was no evidence presented at the hearing that grievances of similarly situated white members or similarly situated white non-members were processed by the LCTA in any way that differed from the way in which the LCTA processed the Petitioner's grievance. There was no evidence that the LCTA failed to process the Petitioner's grievance in a proper manner because of his race. And there was no evidence of any conduct from which it can be inferred that the actions of the LCTA were based on race. In the final analysis, the Petitioner's own testimony shows that the actual conduct he is complaining about is not the LCTA's discrimination against him, but rather the LCTA's failure to do anything to remedy or prevent alleged racial discrimination by the School District. The LCTA's failure to process the Petitioner's August 19, 1985, grievance was legitimate, non-discriminatory, and authorized by statute. The LCTA acted reasonably and without discriminatory motivation in declining to process the Petitioner's August 19, 1985, grievance.
Recommendation On the basis of all of the foregoing, it is recommended that a Final Order be issued dismissing the Petition For Relief filed by Dr. James J. Weaver. DONE AND ORDERED this 17th day of April, 1987, at Tallahassee, Florida. M. M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of April, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3715 The following are my specific rulings on all of the proposed findings of fact submitted by all of the parties. Findings proposed by Petitioner (The numbers below correspond to the numbers of the paragraphs of the proposed findings of fact submitted by the Petitioner.) Accepted. Rejected as not supported by competent substantial evidence. Accepted. Rejected as constituting legal conclusions or argument rather than findings of fact. Rejected as not supported by competent substantial evidence and as irrelevant to the issues in this case. (There are two paragraphs numbered "5.") Rejected as not supported by competent substantial evidence and as irrelevant to the issues in this case. Rejected as procedural details which do not need to be included in the findings of fact. Rejected as not supported by competent substantial evidence and as irrelevant in any event. Rejected as not supported by competent substantial evidence and as irrelevant in any event. Rejected as not supported by competent substantial evidence and as irrelevant in any event. Rejected as not supported by competent substantial evidence and as irrelevant in any event. Rejected as constituting argument rather than proposed findings. Rejected as constituting argument rather than proposed findings. Accepted. Accepted. Accepted. Accepted in substance. Rejected as not supported by competent substantial evidence. First sentence is accepted. Second sentence is rejected as irrelevant. Accepted in substance. Rejected as not supported by persuasive competent substantial evidence. Also rejected as contrary to facts established in matters officially noticed. Rejected as constituting argument. To the extent this paragraph purports to propose facts, it is also rejected as not supported by persuasive competent substantial evidence and as contrary to facts established in matters officially noticed. Rejected as contrary to the greater weight of the evidence and as contrary to facts established in matters officially noticed. Rejected as constituting argument. To the extent this paragraph purports to propose facts, it is also rejected as not supported by persuasive competent substantial evidence and as contrary to facts established in matters officially noticed. Rejected as contrary to greater weight of the evidence. Rejected as not supported by persuasive competent substantial evidence. Rejected as not supported by persuasive competent substantial evidence and as contrary to facts established in matters officially noticed. Rejected as constituting argument. To the extent this paragraph purports to propose facts, it is also rejected as not supported by persuasive competent substantial evidence and as contrary to facts established in matters officially noticed. Rejected as not supported by persuasive competent substantial evidence. Rejected as contrary to the greater weight of the evidence and as contrary to facts established in matters officially noticed. Rejected as contrary to the greater weight of the evidence and as contrary to facts established in matters officially noticed. First sentence accepted. Second sentence rejected as argument. Second sentence also rejected as not supported by persuasive competent substantial evidence. Rejected as argument. Also rejected because the argument is not warranted by the evidence and, in any event, concerns a triviality. First sentence is rejected as argument. Second sentence is rejected as contrary to the greater weight of the evidence and as contrary to facts established in matters officially noticed. First sentence is rejected as contrary to the greater weight of the evidence and as contrary to facts established in matters officially noticed. Second sentence is rejected as subordinate and unnecessary. Last sentence is accepted. Rejected as contrary to the greater weight of the evidence and as contrary to facts established in matters officially noticed. Rejected as contrary to the greater weight of the evidence and as contrary to facts established in matters officially noticed. Rejected as not supported by persuasive competent substantial evidence. There is no paragraph 33.) Accepted. Accepted in substance. Accepted in substance. Accepted in substance. Rejected as not supported by persuasive competent substantial evidence. Rejected as not supported by persuasive competent substantial evidence. Also rejected as irrelevant. Rejected as not supported by persuasive competent substantial evidence. Rejected as constituting conclusions of law rather than findings of fact. Rejected as constituting conclusions of law rather than findings of fact. Rejected as constituting conclusions of law rather than findings of fact. Rejected as constituting conclusions of law rather than findings of fact. Unnumbered paragraph at bottom of page 21 and all of page 22: Rejected as constituting argument or conclusions of law rather than findings of fact. Findings proposed by Respondent (The numbers below correspond to the numbers of the paragraphs of the proposed findings of fact submitted by the Respondent. Accepted in substance. Accepted in substance. Rejected as not supported by competent substantial evidence. Rejected as not supported by competent substantial evidence. First two sentences accepted. Last two sentences rejected as not supported by competent substantial evidence. Accepted in substance. Rejected as not supported by competent substantial evidence. Also rejected as subordinate and unnecessary. Rejected as not supported by competent substantial evidence. Also rejected as subordinate and unnecessary. Accepted in substance. Accepted in substance. Accepted in substance. Accepted in substance. Accepted in substance. Accepted in substance. Rejected as irrelevant or subordinate and unnecessary. Accepted in substance. Accepted in substance. Accepted in substance. Accepted in substance. Accepted in substance. Accepted in substance. Accepted in substance. Accepted in substance. Rejected as not supported by competent substantial evidence. First sentence accepted. Second sentence rejected as constituting subordinate and unnecessary details. Accepted in substance. Accepted in substance. Accepted in substance. Accepted in substance. Accepted. Accepted. Accepted. Accepted in substance. Accepted in substance. COPIES FURNISHED: Dr. James J. Weaver 3535 Roberts Avenue, Box 290 Tallahassee, Florida 32304 Pamela L. Cooper, Esquire 911 East Park Avenue Tallahassee, Florida 32301 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue Whether Respondent violated chapter 440, Florida Statutes (2017), by failing to secure payment of workers’ compensation coverage, as alleged in the Stop-Work Order (“SWO”) and Amended Order of Penalty Assessment (“Amended Penalty Assessment”); and, if so, whether Petitioner correctly calculated the proposed penalty assessment against Respondent.
Findings Of Fact Based on the oral and documentary evidence admitted at the final hearing, and the entire record in this proceeding, the following Findings of Fact are made: Background The Department is the state agency responsible for enforcing the requirement of the Workers' Compensation Law that requires employers to secure the payment of workers' compensation coverage for their employees and corporate officers. § 440.107, Fla. Stat. The Department is also responsible for conducting random inspections of jobsites and investigating complaints concerning potential violations of workers’ compensation rules. At all times material to this matter, Native Cuts was a for-profit limited liability company engaged in business in the State of Florida. Native Cuts was organized as a business on January 19, 2010, and engaged in the business of construction and landscaping. Earl Lee, Jr. and Virginia Brown are Respondent’s managers. Earl Lee, Jr. is Respondent’s registered agent, with a mailing address of 316 North Lake Avenue, Leesburg, Florida 34748. Investigation On July 27, 2017, the Department’s investigator, Chuck Mays, conducted a random workers’ compensation compliance inspection at 27746 Cypress Glen Court, Yalaha, Florida 34797. At that time, Mr. Mays observed three men performing work. Mr. Mays testified that one man was observed operating a Bobcat utility vehicle (small tractor) to transport dirt from the front to the back of the structure, which was under construction. The two other men were removing debris, e.g., cut tree limbs, from the jobsite. Mr. Mays approached the man on the Bobcat and identified himself as an investigator. Mr. Mays began interviewing the Bobcat driver who reported that he and the other two workers at the jobsite were employees of Native Cuts, which the two men confirmed. Mr. Mays ultimately identified the three men at the jobsite as Rodolfo Ramirez, Mitchel Pike, and Dave Herrington. Based on his observations, Mr. Mays determined that the three men were performing construction-related work. Mr. Mays called Respondent’s manager, Mr. Lee, who identified the three men working at the jobsite as his employees. Mr. Mays asked Mr. Lee about the rate of pay and the length of employment for the employees and Mr. Lee referred Mr. Mays to Virginia Brown to obtain the information. Ms. Brown confirmed the three employees, and a fourth employee who was not present at the jobsite. Following the interviews on July 27, 2017, Mr. Mays researched the Division of Corporations system and established that Native Cuts was an active business. He then conducted a search of the Department’s Coverage Compliance Automated System (“CCAS”) and found Respondent did not have workers’ compensation coverage for its employees. Mr. Mays also conducted a further search of CCAS and discovered that Mr. Lee previously had an exemption, which expired on October 30, 2016. Based on his investigation and after consultation with his supervisor, Mr. Mays issued SWO No. 17-246-D4, and posted it at the jobsite. On July 28, 2017, Mr. Mays met with Ms. Brown at her home and personally served the SWO and Request for Production of Business Records for Penalty Assessment Calculation (“Business Records Request”). The Business Records Request directed Respondent to produce business records for the time period of July 28, 2015, through July 27, 2017 (“Audit Period”), within 10 business days from the receipt of the Business Records Request. On August 11, 2017, Respondent provided business records, including bank statements, checks, and receipts. The records were deemed sufficient to apply a 25-percent discount to Respondent for timely production of records. Penalty Calculation Generally, the Department uses business records to calculate the penalty assessment. Lynne Murcia, a Department penalty auditor, was assigned to review the calculation of the penalty assessment for Respondent. To calculate the penalty assessment, the Department uses a two-year auditing period looking back from the date of the SWO, July 27, 2017, also known as the look-back period. Penalties for workers' compensation insurance violations are based on doubling the amount of insurance premiums that would have been paid during the look-back period. § 440.107(7)(d), Fla. Stat. Ms. Murcia testified as to the process of penalty calculation. Ms. Murcia reviewed the business records submitted by Respondent, as well as notes, worksheets, and summaries from the original auditor.1/ Based on her review of the records, Ms. Murcia identified the individuals who received payments from Respondent as employees during the Audit Period. Ms. Murcia deemed payments to each of the individuals as gross payroll for purposes of calculating the penalty. In the penalty assessment calculation, the Department consulted the classification codes and definitions set forth in the SCOPES of Basic Manual Classifications (“Scopes Manual”) published by the National Council on Compensation Insurance (“NCCI”). The Scopes Manual has been adopted by reference in Florida Administrative Code Rule 69L-6.021. Classification codes are assigned to occupations by the NCCI to assist in the calculation of workers' compensation insurance premiums. Rule 69L-6.028(3)(d) provides that "[t]he imputed weekly payroll for each employee . . . shall be assigned to the highest rated workers' compensation classification code for an employee based upon records or the investigator's physical observation of that employee's activities." Based on Mr. Mays’ observations at the jobsite, the Department assigned either NCCI classification (“class”) code 0042, entitled “Landscaping, Gardening, & Drivers” or class code 9102, entitled “Lawn Maintenance-Commercial or Domestic & Drivers.” The class code 0042 “applies to work involving new landscaping installations whereas class code 9102 applies to work involving maintenance of existing landscaping and/or lawn maintenance.” Mr. Mays testified that class code 0042 is considered construction work, whereas class code 9102 is considered nonconstruction work for workers’ compensation purposes. Generally, if a business provides proper payroll records to support a division, the appropriate code and correlating rate would apply based on the work performed. If the payroll records are not maintained to support the division of the work performed between class code 0042 and class code 9102, the highest rate of the two classifications is applied to the employee. Ms. Murcia testified that class code 0042 and class code 9102 were applied to Native Cuts employees due to the mixed work performed (Landscaping and Lawn Maintenance) by Respondent. However, class code 9102 was applied to most of the employees. Utilizing the statutory formula for penalty calculation specified in section 440.107(7)(d)1. and rule 69L- 6.027, the total penalty was calculated based on periods of non- compliance for employees based on the dates they received payments from Respondent and were not covered for workers’ compensation. Since Mr. Lee’s exemption expired on October 30, 2016, the calculation for his work performed was limited to the period after the expiration of his exemption, November 1, 2016, through July 27, 2017. Regarding records designated as cash payments, the Department determined that the Native Cuts’ records and receipts did not validate the payroll and expenses that corresponded with the company’s cash withdrawals. Pursuant to rule 69L- 6.035(1)(k), the Department included 80 percent of cash withdrawals as wages or salaries to employees. Penalty Calculation for Imputed Payroll The Department determined the calculated penalty for Rudolfo Ramirez, David Harrington, and Mitchel Pike, the workers who were identified at the jobsite as employees on July 27, 2017. Mr. Lee was also included in the calculation of penalty for the imputed payroll. The Department maintains that the business records submitted by Respondent were insufficient to determine Respondent’s payroll for these employees during the investigation period, thus, the Department used the statutory formula to impute payroll to these employees. The Department correctly assigned a class code of 0042 and calculated a penalty of $149.20 against Respondent for failure to secure payment of workers’ compensation insurance for each of these employees. The Department also calculated the penalty for Ms. Brown, who was not at the jobsite but participated in the investigation on July 27, 2017. The Department applied a classification code 9102 to Ms. Brown. However, the evidence presented at hearing demonstrated Ms. Brown maintained records for the business and was the person identified as maintaining the wage rate information for employees. The evidence of record does not support a finding that Ms. Brown provided any landscaping or construction services to Respondent. Ms. Brown’s work, at best, could be described as clerical work. The Department introduced no evidence of an appropriate NCCI class code for Ms. Brown. Thus, the Department did not prove by clear and convincing evidence that the imputed payroll related to Ms. Brown should be included for purposes of calculating the penalty. The Department did not prove by clear and convincing evidence that the penalty in the amount of $19.60 attributed to Ms. Brown should be included in the penalty assessment. Penalty Calculation for Uninsured Labor Ms. Murcia testified that the class code 0042 was applied to the general category of uninsured labor, as the work performed could not be determined from the payroll records. Thus, the highest rate, class code 0042, of the two classifications for work performed by Native Cuts, is applied to these individuals. The Department correctly calculated a penalty of $17,015.10 for these employees. Penalty Calculation for Remaining Employees In addition to the penalty calculated for the imputed payroll (excluding Ms. Brown) and uninsured labor, the Department applied the appropriate class code for the work performed and correctly calculated the penalty for Native Cut employees2/ in the amount of $52,350.10. Total Penalty Calculation Ms. Murcia calculated a total penalty of $69,534.34 against Respondent for failure to secure payment of workers’ compensation insurance for each of its employees during the audit period. The amount of the penalty should be reduced by the amount attributed to Ms. Brown in the amount of $19.60. Thus, the total penalty amount that should be assessed against Native Cuts is $69,514.40. Mr. Lee paid a $1,000.00 down payment for the penalty assessed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Financial Services, Division of Workers' Compensation, assessing a penalty of $68,514.74 against Native Cuts Property Management, LLC. DONE AND ENTERED this 31st day of May, 2019, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 2019.
The Issue Whether the Department of Insurance (DOI), now Department of Financial Services, discriminated against the Petitioner on the basis of national origin or age contrary to Chapter 760, Florida Statutes.
Findings Of Fact The Petitioner is Elamir G. Ghattas, a naturalized American of Egyptian birth, who is 71 years of age. The Petitioner was employed by the DOI for 18 years. He was assigned to maintain the law library at the DOI in 1985, and performed those duties until 2002. His job title at that time was "Records Specialist," and his supervisor was Beverley DiGirolamo, who was the office manager of the Legal Division. In 2002, he was transferred from his duties in the law library to duties in the Service of Process Division (SPD) of DOI. His new supervisor was initially Carolyn Ash, who was asked to sign Petitioner's timesheet, and who was at a lower pay grade (13) than the Petitioner's pay grade (16). After he brought this to management's attention, Pam Edenfield was assigned to sign his timesheet. His duties involved maintaining and filing documents received by the DOI relating to the service of process in the legal cases filed throughout the state. The work of the division has increased greatly due to a change in the statutes, and the SPD could not process the increased workload with its existing employees. To resolve the workload issues, personnel from other portions of the legal department were transferred to the SPD. The Petitioner was one of approximately four individuals who were transferred from Legal Services Division to SPD. The decision to move the Petitioner was made by Ms. DiGirolamo and Ms. Edenfield based upon his low workload in the library and the high workload in SPD. After the Petitioner was moved, his duties were assumed as an additional duty by one of the legal secretaries who spends between four and eight hours on the activity per month. The basis for his move was explained to Petitioner by Ms. DiGirolamo and Ms. Edenfield, and by Mr. DowDell, who was their supervisor. Following his transfer, the Petitioner's performance suffered, and when he was formally counseled about it, he ultimately resigned and retired.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Florida Commission on Human Relations enter its final order dismissing the Petition for Relief filed by the Petitioner. DONE AND ENTERED this 26th day of August, 2004, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 August, 2004. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Elamir Ghattas 811 Chestwood Avenue Tallahassee, Florida 32303 Dennis Silverman, Esquire Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0333
The Issue Whether David Cooper’s Construction, Inc. (“Respondent”), failed to secure the payment of workers’ compensation insurance coverage for its employees; and, if so, whether the Department of Financial Services, Division of Workers’ Compensation (“Petitioner” or “Department”), correctly calculated the penalty to be assessed against Respondent.
Findings Of Fact The Department is the state agency charged with enforcing the statutory requirement that employers in Florida secure workers’ compensation coverage for their employees. See § 440.107(3), Fla. Stat. Respondent is a Florida corporation engaged in the business of residential construction in Port St. Joe, Florida. At all times relevant hereto, Carl Woodall was a workers’ compensation compliance investigator employed by the Department. Employers may comply with the workers’ compensation coverage requirement by obtaining a workers’ compensation insurance policy or an employee leasing agreement. Corporate officers and members of limited liability companies can elect an exemption from workers’ compensation coverage. See § 440.05, Fla. Stat. On August 12, 2016, Mr. Woodall made an unannounced, random inspection of a worksite at 2912 Garrison Avenue in Port St. Joe, Florida. Mr. Woodall observed two men on the roof of an existing structure at that address who appeared to be framing an addition to the structure. At Mr. Woodall’s request, the two men identified themselves as David Cooper and Macon Stewart. Mr. Cooper identified himself as Respondent’s owner and stated that Mr. Stewart was working for him. Mr. Cooper informed Mr. Woodall that he paid Mr. Stewart by check at the rate of $10 per hour. While at the worksite, Mr. Woodall checked the Coverage and Compliance Automated System (“CCAS”) database, which tracks workers’ compensation insurance coverage and exemption data for employers in Florida. Mr. Woodall’s search of CCAS revealed that Respondent did not have a workers’ compensation insurance policy to cover its employees nor an employee leasing agreement. The search also revealed that Mr. Stewart did not have an active workers’ compensation exemption. Mr. Woodall personally served Mr. Cooper with a Stop-Work Order (“SWO”) and Order of Penalty Assessment on August 12, 2016. Respondent complied with the SWO by making a $1,000 down payment toward the penalty assessment (which had yet to be calculated) and agreeing not to allow Mr. Stewart to work for Respondent until such time as Mr. Stewart obtained an exemption. The Order of Penalty Assessment includes a Request for Production of Business Records (“Request”) which could be used to calculate the amount of the penalty. In response to the Request, Mr. Cooper provided the Department with billing statements, handwritten time sheets, and certificates of exemption for certain employees. Lynne Murcia is a Department penalty auditor. She is tasked with reviewing business records provided by employers and calculating penalties for employers who have been notified they are in violation of workers’ compensation coverage requirements. Ms. Murcia was assigned to calculate the penalty to be assessed against Respondent. Ms. Murcia began by reviewing Respondent’s business records for the audit period, which is the two-year period immediately preceding the date of the SWO. See § 440.107(7)(d), Fla. Stat. The audit period in this case is from February 1, 2015, through January 31, 2017. The Department’s penalty is based on the employer’s payroll to employees during any periods during the audit period in which the employer did not provide workers’ compensation insurance coverage for its employees (“the period of non-compliance”). In this case, the period of non-compliance is the same as the audit period. An employer’s payroll is the amount of wages or other compensation made to employees during the period of non-compliance. See Fla. Admin. Code R. 69L-6.035. Transactions that are considered payroll include direct payment for services rendered, as well as outstanding loans, reimbursements, bonuses, and profit-sharing. Id. Based upon the records received from Respondent, Ms. Murcia identified Respondent’s employees during the period of non-compliance as Joseph Turner, Linda Cooper, and Macon Stewart.2 Compensation paid to those employees during the period of non- compliance was as follows: Joseph Turner, $11,740; Linda Cooper, $2,178; and Macon Stewart, $60. Thus, Respondent’s gross payroll for the period of non-compliance was $13,978. Next, Ms. Murcia consulted the Scopes Manual published by the National Council on Compensation Insurance (“NCCI”) to assign a class code to each employee. The class codes correspond with the type of work performed by an employee and establish the manual rate for workers’ compensation insurance for that type of work. Based upon Mr. Woodall’s observations of the work being performed at the worksite, Ms. Murcia assigned NCCI class code 5645, Carpentry, to Mr. Stewart. 2 Ms. Murcia initially identified additional employees whose wages were included in the Second and Third Amended Orders of Penalty Assessment. For purposes of this Recommended Order, the relevant payroll is that identified in the Fourth Amended Order of Penalty Assessment. Based on Ms. Cooper’s description of her job duties, Ms. Murcia assigned NCCI class code 8810, Clerical, to Ms. Cooper. Respondent’s records did not identify the type of work performed by Mr. Turner. When the business records do not identify the type of work performed by an employee, the Department must apply to the employee the highest manual rate associated with any employee’s activities based on the investigator’s personal observation of work activities. See Fla. Admin. Code R. 69L-6.035(4). Ms. Murcia assigned class code 5645, Carpentry, to Mr. Turner because that class code corresponds with a higher manual rate than 8810, Clerical. Using the gross payroll to each employee, multiplied by the applicable manual rate, Respondent would have paid $1,897.51 in workers’ compensation insurance premiums to cover its employees during the period of non-compliance (“the avoided premium”). The statutory penalty to be assessed is twice the avoided premium. See § 440.107(7)(d)1., Fla. Stat. Ms. Murcia calculated the penalty to be assessed as $3,795. Ms. Murcia applied the correct approved manual rates and correctly utilized the methodology specified in section 440.107(7) and Florida Administrative Code Rules 69L-6.027 and 69L-6.035 to determine the penalty to be imposed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Financial Services, Division of Workers’ Compensation, finding that David Cooper’s Construction, Inc., violated the workers’ compensation insurance statute and assessing a penalty of $3,795. DONE AND ENTERED this 26th day of January, 2021, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of January, 2021. COPIES FURNISHED: David Cooper David Cooper’s Construction, Inc. 2449 Hayes Avenue Port St. Joe, Florida 32456 Diane Wint, Agency Clerk Division of Legal Services Department of Financial Service Room 612.14, Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0390 Rean Knopke, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399
The Issue The issue in this case is whether Respondent, Phillip J. Aleong, D.V.M., violated Section 474.214(1)(f), Florida Statutes (2005), by failing to pay an administrative fine and investigative costs within 30 days from the date of the filing of Final Order BPR-2005-04911 with Petitioner's Clerk as alleged in an Administrative Complaint filed by Petitioner, the Department of Business and Professional Regulation, on June 26, 2006, in BPR Case Number 2005-066424; and, if so, what disciplinary action should be taken against his license to practice veterinary medicine in the State of Florida.
Findings Of Fact The following facts were stipulated to by the parties: Respondent is licensed in the State of Florida as a veterinarian, having been issued license number VM-6466. On September 1, 2005, Respondent appeared before the Florida Board of Veterinary Medicine to approve a Settlement Stipulation as to DOAH Case No. 05-1971PL. At the hearing, the terms of the Settlement Stipulation (herein after the "Stipulation") were placed on the record and the members of the Board voted to approve the settlement. On September 9, 2005, the Florida Board of Veterinary Medicine rendered the Final order Approving Settlement Stipulation Number BPR-2005-04911 (herein after the "Final Order") against Respondent's veterinary license, by filing the original Final Order with the Department's Agency Clerk. A copy of the Final Order was mailed to Respondent's Counsel. However, a copy was not sent or mailed directly to the Respondent. The Settlement Stipulation, as adopted by the Final Order, amongst other terms, required Respondent to pay an administrative fine in the amount of $5000.00 and investigative costs in the amount of $479.76 within thirty (30) days from the date of filing the Final Order with the Department's Agency Clerk. As the Final Order was filed with the Agency Clerk on Setpember [sic] 9, 2005, Respondent's compliance with the payment terms of the Final Order was required on or before October 9, 2005. Pursuant to the Final Order and the Stipulation Agreement incorporated therein by reference, Petitioner and Respondent agreed that Respondent's veterinarian license would be suspended for 90 days in the event that Respondent failed to comply with the terms of the Settlement Stipulation or the Final Order. Respondent was aware of this penalty provision at the time of signing the agreement, was present as the time of its adoption by the Florida Board of Veterinary Medicine, and was aware that the sums would be due 30 days after the Board signed the Final Order itself which was to occur sometime after the September 1, 2005 meeting. Respondent failed to remit payment of the administrative fine and cost required under the Final Order by October 9, 2005. On December 27, 2005, the DBPR mailed Respondent an investigatory complaint placing Respondent on notice that the fine had not been paid. The computer printout attached to the investigatory complaint, as well as the handwritten complaint generated by the Petitioner, both of which were included therein allege that Respondent had not paid the fine. Neither document asserts that the Respondent failed to remit the costs, however, a copy of the Stipulation and Order were included with the investigatory complaint. On January 12, 2006, after receipt of the investigatory [sic] complaint, Respondent paid the fine. Respondent paid the costs on May 8, 2006. On June 26 2006, after both the fine and costs were paid in full, Petitioner filed this proceeding alleging that the fine and costs had not been paid. Petitioner has stated that it has not located any cases in its records where a fine was imposed, then paid late, in which an administrative complaint was not filed. However, Petitioner is unable to offer testimony, with absolute certainty, that prior to the administrative complaint filed in this matter, that all other veterinarians have paid fines assessed in a final order by their due date. Petitioner has not found any evidence indicating that it has ever filed an administrative complaint against a party for failure to timely pay an imposed fine, after said fine was paid by the party. Petitioner has found no evidence contrary to or may otherwise reasonably dispute that the administrative complaint against a party for failure to timely pay an imposed fine, after said fine was paid by the party. The facts in Final Order BPR-95-05774 (Exhibit "B") and Final Order BPR-2003-02869 (Exhibit "C") are distinguishable from the facts of this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Board of Veterinary Medicine finding that Phillip J. Aleong, D.V.M., has violated Section 474.214(1)(f), Florida Statutes, as described in this Recommended Order, and requiring that he pay an administrative fine of $2,000.00. DONE AND ENTERED this 5th day of January, 2007, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 5th day of January, 2007. COPIES FURNISHED: Drew Winters, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Bradford J. Beilly, Esquire Law Offices of Bradford J. Beilly, P.A. 1144 Southeast Third Avenue Fort Lauderdale, Florida 33316 Juanita Chastain, Executive Director Board of Veterinary Medicine Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Respondent, Invarrary Retirement Center, Inc. (IRC), is licensed by petitioner, Department of Health and Rehabilitative Services (HRS), to operate an adult congregate living facility (ACLF). The facility operates under the name of Inverrary Retirement Center at 5811 Northwest 28th Street, Lauderhill, Florida. On or about April 4, 1984, two HRS inspectors performed a routine relicensure survey of IRC. The purpose of the survey was to determine whether IRC was complying with all HRS requirements relating to record keeping, sanitation, fire and safety. During the course of the survey, the inspectors noted the following violations of HRS rules: There was no staff member within the facility at all times who was certified in an approved first aid course (Rule 10A- 5.19(5)(f), F.A.C.); The facility failed to keep "current" records of self administered medication (Rule 10A-5.18(6)(f), F.A.C.); Menus were not planned and posted where they could be easily viewed by the residents (Rule 10A-5.20(1)(j), F.A.C.); The kitchen was not equipped with an approved exhaust hood over the stove (Rule 10A-5.23(15)(a), F.A.C.); An electrical extension cord was used to service the coffee maker (Rule 10A- 5.23(15)(a), F.A.C.); One of the buildings had an insufficient means of egress for the residents (Rule 10A- 5.23(15)(a), F.A.C.); There were no manually operated fire alarms capable of being heard throughout the facility (Rule 10A-5.23(15)(a), F.A.C.); Respondent failed to provide documenta- tion reflecting the smoke detectors were tested on a weekly basis (Rule 10A- 5.23(15)(a), F.A.C.); and (j) There was a sliding bolt on an exit door on one of the buildings (Rule 10A- 5.23(15)(a), F.A.C.). All of the foregoing constituted a separated violation of HRS rules. 1/ When the survey was completed, the inspectors reviewed all violations with IRC's manager and advised her that a resurvey would be taken in about thirty days, and that all violations must either be corrected by that time, or some action instituted which reflected an intent on the part of the facility to correct the same. This was in accordance with HRS policy governing ACLFs, and approximated the time given other facilities to make similar corrections. On April 10, 1984, a Corrective Action Plan was issued by HRS and sent to IRC. This document set out in detail the various violations found in the April 4 inspection and set a compliance date of May 4, 1984 for all corrections to be made. A resurvey of IRC's facility was made by the same two HRS inspectors on May 18, 1984. With the exception of item (3)(h), which required documentation verifying that smoke detectors be tested weekly, the inspectors noted that no corrections had been made. However, respondent presented evidence that items (3)(b) and (3)(c) had indeed been corrected by that date and such evidence is deemed to be more persuasive than contrary evidence offered by HRS representatives. Further, the violation in item (3)(f), and turns on whether an HRS publication or the City of Lauderdale fire code was controlling when the inspection was made. Because no evidence was presented to establish which standard was in effect, the allegation that an HRS publication was violated must fail. Accordingly, it is found that IRC failed to timely correct items (3)(a), (3)(d), (3)(e), (3)(h), (3)(i), and (3)(j) as required by the Corrective Action Plan. Respondent eventually made all corrections, although not within the HRS imposed deadline. One of the deficiencies [item (3)(d) required extensive renovations, including bids and a city permit, which took considerable time to accomplish. However, IRC's manager neglected to provide HRS inspectors with any evidence on the May 18 visit showing that bids were being solicited, or that there was any "movement" on the project. The same is true for item (3)(g) which required competitive bids from suppliers. IRC also failed to advise HRS that it could not immediately enroll an employee in the Broward County First Aid Course [item (3)(a)] because of the large number of participants in the class. IRC failed to do so even though its manager had been told that an extension on the May 4 deadline could be obtained where IRC gave some evidence to the inspectors that action was being instituted to correct the deficiency.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating agency rules as set forth in items (3)(a), (3)(d), (3)(e), (3)(h), (3)(i) and (3)(j) of the administrative complaint, and that a $900 administrative fine be imposed, to be paid within thirty days after the data of the final order rendered in this proceeding. All other charges should be DISMISSED. DONE and ORDERED this 11th day of March, 1985, 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 11th day of March, 1985.
The Issue Whether grievance procedures set forth in the provisions challenged are arbitrary and capricious and an abuse of respondent's discretion? Whether the policy and procedure directive and policy memorandum should be declared invalid as rules?
Findings Of Fact At the various institutions in which respondent houses some 29,000 prisoners, about 8,000 grievances are acted on annually. In addition, departmental personnel in Tallahassee decide 2,000 grievances annually, of which all but two or three hundred are appeals. Nineteen percent of departmental decisions on the merits of grievances are in favor of the inmate. Not every grievance has been handled in strict adherence to every particular of rule, policy directive and policy memorandum, nor are the requirements these documents lay down always identical. The hearing officer ruled that the merits of any specific grievance proceeding were not relevant. On one occasion, the correctional officer complained of in a grievance was the officer to whom investigation of the grievance was assigned. At Union Correctional Institution, Dan Williams deals with 200 to 250 grievances monthly, turning back grievances that are not signed, dated or concise, or which do not reflect resort to informal measures. Occasionally, Mr. Williams drafts a preliminary response on the merits or "combine[s] . . . [an investigative] report . . . with the directives and the institutional operating procedures and, based on a collection of those two, . . . draft[s] a preliminary response." (T. 189.) Ordinarily, a superior signs the responses Mr. Williams drafts. Petitioners are inmates at Union Correctional Institution. Joe Lewis Holland and Douglas L. Adams had grievances pending at the time of the hearing. Carl Cribbs and John Russell have filed grievances in the past, but the evidence did not show them to have filed any grievance not already disposed of. Petitioner Rufu did not testify at hearing. Petitioners do not complain of the procedures attending promulgation of Rule 33-3.07, Florida Administrative Code, which provides: Inmate Grievance Procedure. The purpose of this procedure is to provide an inmate with a channel for the administrative settlement of the legitimate grievance. A grievance is a formal complaint concerning an incident, policy, or condition with the institution or the Department of Corrections. Most valid grievances can be resolved quickly through direct contact with the staff of the institution who are responsible for the particular area of the problem. Inmates should he encouraged to use routine informal remedies prior to initiating a formal grievance. However, when an inmate feels he has sufficient reason to submit an official formal grievance, he should obtain a copy of the request form for administrative remedy or appeal; all facts should be listed accordingly. Only one grievance per form can be initiated. The grievance complaint must be filed no later than 30 calendar days from the date on which the basis of the complaint occurred, unless it is clearly demonstrated by the inmate that it was not feasible to file within such a period. The Assistant Superintendent of the institution will have the grievance complaint logged and will have a receipt sent to the inmate. He may handle the grievance personally or he may designate appropriate staff members to investigate and/or respond. If a staff member investigates and responds, he too will sign the form along with the Assistant Superintendent. The response should state clearly why the grievance is approved or disapproved. If approved, it should state what action will be taken to correct the problem. One copy will be placed in the inmate file and two copies will be returned to the inmate advising of action taken. When an inmate feels that he may be adversely affected by submission of his grievance at the institutional leval because of its sensitive nature he may mail his grievance directly to the Secretary. He must clearly indicate a valid reason for not initially bringing his complaint to the attention of the institutional staff. Grievances of this type may be sealed in an envelope by the inmate and processed through routine institutional mail channels. Institutional officials will have up to 30 days, including holidays and weekends from the receipt of the grievance to take action and respond to the inmate. When the grievance is, in the opinion of the Assistant Superintendent, of an emergency nature, a reply should be made as soon as possible. If the inmate feels his or her grievance has not been satisfactorily resolved at the institutional level, he or she may appeal to the Secretary. If the inmate files a formal grievance form to the Secretary the factual basis for appeal must be clearly stated in Part A and a copy of the original grievance and response at the institutional level attached. If the inmate fails to provide a reason for appeal or attach a copy of his institutional grievance and response or the Secretary feels that the reason supplied is not adequate, the appeal must be returned to the inmate and reasons for return will be specified in Part B. The Secretary or his designated representative will have a receipt sent to the inmate. He will cause the appeal to be investigated and will have up to 30 days, including weekends and holidays from receipt of the appeal form to make a response. A copy of the response to the inmate will be sent to the superintendent and a copy filed in the Central Office. The Superintendent's copy will be reviewed and filed in the Institution. The time limit cannot be met either at the institutional or departmental level, the time limit may be extended for a reasonable period not to exceed thirty (30) days. If this action is taken the complainant will be notified in writing with the time of extension noted. A record must be made of each grievance or appeal and should contain at least the following information: Inmate name, prison number, date of receipt, subject of grievance or appeal, disposition of the grievance or appeal, and date of disposition. A copy of this record should be filed monthly in the Superintendent's or the Secretary's office. Inmates can be assured that no action will be taken against them resulting from submitting a grievance unless they knowingly and intentionally make a statement which is proved false pursuant to a disciplinary proceeding. They contend that the rule does not afford a neutral, detached factfinder, and is arbitrary and capricious for that and other reasons. On the same substantive grounds, and on the additional ground that neither was promulgated as a rule, petitioners challenge Policy and Procedure Directive 4.07.02 (PPD 4.07.02) and Union Correctional Institution Policy Memorandum 82-14 (UCI Memo 82-14) which provide: Inmate Grievance Procedure Authority: The provisions of this directive are authorized by: Florida Statutes, Chapters 944.09(2) and 945.21. Rules and Regulations of the Department of Offender Rehabilitation, Chapter 33-3.07. General Policy Statement: The purpose of this procedure is to provide an inmate with a channel for the administrative settlement of a legitimate grievance. A grievance is a formal complaint concerning an incident, policy or condition within an institution or the Department. Most valid grievances can be resolved quickly through direct contact with staff who are responsible in the particular area of the problem. This is the preferred course of action. Staff awareness of the importance of prompt attention and reply to these routine requests will minimize the use of formal grievance procedures. In addition to providing the inmate an opportunity of having a grievance heard, such procedure will assist the Department by providing additional means for internal solution of problems and improve lines of communication. This procedure will also provide a written record in the event of subsequent judicial or administrative review. Informal Remedy: In most cases an inmate may resolve the problem by discussing it with: The staff member responsible in the particular area of the problem. The Classification Team. The appropriate section head. Other institutional staff. This method should provide an immediate solution to the problem and can be handled by personal contact, letter or request for interview. An inmate should be encouraged to use routine informal remedy procedures prior to initiating a formal grievance. Formal Institutional Remedy: The Superintendent may designate the Assistant Superintendent as representative, delegating the authority to receive, review and investigate any grievance of an institutional nature, and to grant and implement relief as approved by the Superintendent. When an inmate has reason to submit an official grievance, a copy of the Request for Administrative Remedy, Form DC-77 (See Sample No. 1) may be obtained from the staff member designated by the Superintendent. The inmate should fill out the identifying data at the top and Part A of the request so that it is legible. All facts should be listed accurately and the aggrieved inmate is requested to substantiate that the informal remedy procedures have been exhausted as stated in the Section above on Informal Remedy. Inmates who cannot read or write or who cannot write legibly are authorized to obtain assistance from other inmates, so long as the assistance requested does not interfere with the security and good order of the institution. In cases where inmate assistance is either not available or cannot be made available, staff members will assist the inmate. Only one issue/question should be listed on each form. The form should then be forwarded to the Superintendent or Assistant Superintendent. Time Limit On Filing A Grievance: The grievance must be filed no later than 30 calendar days from the date on which the grievous complaint occurred or within 30 calendar days after final action was decided which would result in a grievance complaint being initiated. An extension of the 30-day period may be granted when it is clearly demonstrated by the inmate to the satisfaction of the Superintendent or Assistant Superintendent that it was not feasible to file within the initial period. Appeals must be filed within 30 calendar days following the date of disposition of the original institutional grievance. Procedures For Processing Grievance: The Superintendent or Assistant Superintendent will have the grievance logged and will have a receipt sent to the inmate. The Superintendent or Assistant Superintendent may investigate the grievance personally or may designate an appropriate staff member to investigate and prepare a report. The Superintendent or Assistant Superintendent will evaluate the investigative report for use in formal consideration of the grievance. The Superintendent or Assistant Superintendent will respond to the grievance by completing Part B of Form DC-77. If approved, the response should state what action will be taken to correct the problem. If denied, the response must state the reasons for denial and the information to justify the denial. Distribution will be as follows: The original and second copy will be returned to the inmate. The first copy will be placed in the inmate record. All grievances, except those filed directly with the Regional Director or Secretary, must be filed at the institution in which the inmate is presently assigned. When the complaint deals with a grievance that has occurred at another location, it will remain the responsibility of the staff at the inmate's present location to handle the grievance. Direct contact with staff at the inmate's prior location may he necessary in resolving the grievance. Direct Grievance Request: When an inmate feels that because of the sensitive nature or possible adversity by submission of the grievance at the institution, direct submission to the Regional Director or Secretary may be accomplished by use of Form DC-77-A (See Sample No. 2). The inmate may mail in sealed envelope the direct grievance request. The inmate must clearly indicate the reason for not initially bringing the complaint to the attention of the institution staff. Upon receipt of the direct grievance report, the Regional Director, Secretary or designee will have the grievance logged and a receipt sent to the inmate. If the Regional Director, Secretary or designee feels that the inmate's reason for not processing the complaint through institutional channels is invalid, Form DC-77-A will be returned to the inmate, with the reasons for return specified in Part B. Should it be determined that the grievance was properly channeled to the Regional Director or Secretary, the complaint will then be investigated and Part B of Form DC-77-A will be completed. If approved, the response should state what action will be taken to correct the problem. If denied, the response must state the reasons for denial and the information to justify the denial. Distribution will be as follows: Original to inmate. First copy of the response will be filed in the Office of Use Regional Director or the Office of the Secretary. Second copy will be forwarded to the Superintendent for review and subsequent filing in the institutional inmate record. Time Limit For Response: Response to grievance will be made within 30 calendar days from date of receipt. When, in the opinion of the Superintendent or Assistant Superintendent, Regional Director or Secretary the grievance is of an emergency nature, a reply should be made as soon as possible. Formal Department Level Appeal: If the inmate feels the grievance has not been satisfactorily resolved at the institution level, an appeal, Form DC-77-A, may be submitted to the Regional Director or Secretary. In such cases, the factual basis for the appeal must be clearly stated in Part A and a copy of Form DC-77 (the original grievance and response at the institutional level) must be attached. Appeals should be forwarded to the Regional Director or Secretary through routine institutional mail channels. If the inmate does not provide substantial reason for appeal or attach a copy of the original grievance and response (Form DC-77) and the Regional Director or Secretary determines that the reason lacks support, the appeal request will be returned to the inmate and findings for return will be specified in Part B. Action By The Regional Director Or Secretary: The Regional Director, Secretary or designee will have a record made of all Form DC-77-A (grievance appeals) received and will have a receipt sent to the inmate. The appeal will be investigated within 30 calendar days from receipt of the appeal. Distribution will be as follows: The original will be returned to the inmate. The first copy will be placed in the inmate record in the Bureau of Offender Records with a copy of Form DC-77 attached. The second copy will be sent to the Superintendent for review and subsequent filing in the institutional inmate record. When Time Limit Cannot Be Met: The period of time referred to for action at the institution, Region or Central Office level may be extended for a reasonable period not to exceed 30 days, upon finding that the circumstances are such that the initial period is insufficient to make an appropriate decision. This action must be communicated in writing to the inmate with the time of the extension noted. Record Keeping As previously stated, a record should be made of each grievance or appeal and should contain at least the following information: Inmate name Prison number Date the grievance was filed Date received Nature of grievance or appeal and issue/question to be resolved Disposition of grievance or appeal Date of disposition A copy of this record, Form DC-78 (See Sample No. 3), should be filed monthly in the Superintendent's, Regional Director's or Secretary's office. Freedom To Use Grievance Procedure: Inmates can be assured that no action will be taken against them resulting from submission of a grievance, unless, facts show acts designed to render false or misleading statements. Policy and Procedure Directive 4.07.02. 82-14.1 Authority Florida Statutes, Chapter 944.09, 945.21 Department of Corrections Policy & Procedure Directive 4.07.02. 82-14.2 Purpose The purpose of this procedure is to provide an inmate with a channel for the administrative settlement of a legitimate grievance. A grievance is a formal complaint concerning an incident, policy or condition within an institution or the Department of Corrections. Most valid grievances can be resolved quickly through direct contact with staff who are responsible in the particular area of the problem. This is the preferred course of action. Staff awareness of the importance of prompt attention and reply to these routine requests will minimize the use of formal grievance procedures. In addition to providing the inmate an opportunity of having this grievance heard, such a procedure assists the Administration by providing an additional vehicle for internal solution of problems and improves lines of communication. Further, it provides a written record in the event of subsequent judicial or administrative review. 82-14.3 Informal Remedy In most cases, an inmate may resolve his problem by discussing it with (1) the staff member responsible in the particular area of the problem; (2) his Treatment Team; (3) the appropriate Department Head; or (4) other institutional staff. This method should provide an immediate resolution to the problem and can be handled by personal contact, letter, request for interview form, et cetera. An inmate should be encouraged to use the informal remedy procedures prior to initiating a formal grievance. 82-14.4 Formal Institutional Remedy The Assistant Superintendents shall have the authority to receive, review, and investigate any grievance of an institutional nature and to grant and implement relief as approved by the Superintendent. When an inmate feels he has reason to submit an official grievance, he should obtain a copy of the Request for Administrative Remedy Form (DC 1-303) from the appropriate Classification Team Specialist or the Law Librarian. He should check the box marked "Assistant Superintendent" and fill out the identifying data at the top of the form and Part A of the request (DC 1-303) so that it is readable. All facts should be listed accurately, and the aggrieved inmate is directed to substantiate that the informal remedy procedures have been exhausted as stated in Section 82-14.3 above. Only one grievance per form can be initiated. The grievance is to be filed by one individual inmate with his signature only appearing on the grievance. The DC 1-303 then should be forwarded to the Assistant Superintendents' Office. Grievances submitted or signed by more than one inmate will be returned unanswered to the senders as being improperly filled out. Inmates who cannot read or write, or who cannot write legible, are authorized to obtain assistance from other inmates, so long as the assistance requested does not interfere with the security and good order of the institution. In cases where inmate assistance is either not available or cannot be made available, staff members will assist the inmate. 82-14.5 Time Limit on Filing Complaint The grievance must be filed no later than 30 calendar days from the date on which the grievous complaint occurred or within 30 calendar days after final action was decided which would result in a grievance complaint being initiated. An extension of the 30-day period may be granted when it is clearly demonstrated by the inmate to the satisfaction of the Assistant Superintendents that it was not feasible to file within the initial period. Appeals must be filed within 30 calendar days following the date of disposition of the original institutional grievance. 82-14.6 Procedures for Processing Grievance The Assistant Superintendents will have the grievance logged and will have a receipt sent to the inmate. They may investigate the grievance personally, or may designate an appropriate staff member to investigate and prepare a report for use in formal consideration of the grievance. The Assistant Superintendents will respond to the grievance (Part B), clearly stating why the grievance is approved or denied. If approved, the response should state what action will be taken to correct the problem. If denied, the response must state the reasons for denial and the information to justify denial. The first copy will he place in the inmate file, and the original and second copy will be returned to the inmate. All grievances, except those filed directly with the Regional Director or Secretary, must be filed with staff at the institution to which the inmate is presently assigned. When the complaint deals with a grievance that has occurred at another location, it will remain the responsibility of the staff at the inmate's present location to handle the grievance. Direct contact with staff at the inmate's prior location may be necessary to resolve grievances which occur under this provision. When an inmate feels that because of its sensitive nature he may be adversely affected by submission of his grievance at the institution level, he may, by checking the box marked "Secretary, Florida Department of Corrections" on Form DC 1-303, submit his grievance directly to the Regional Director or Secretary in a sealed envelope processed through routine institutional mail channels. He must clearly indicate a valid reason for not initially bringing his complaint to the attention of the institution staff. Upon receipt of Form DC 1-303 the Regional Director, Secretary, or his designee will have the grievance logged in and a receipt sent to the inmate. If the Regional Director, Secretary, or his designee feels that the inmate's reason for not processing his complaint through institutional channels is invalid, Form DC 1-303 will be returned to the inmate, with the reasons for return specified in Part B. Should it be determined that the grievance was properly channeled to the Regional Director or Secretary, the complaint will then be investigated and the original of Form DC 1-303, with appropriate response (Part B), will be forwarded to the inmate. The first copy of the response will be filed in the office of the Regional Director or the office of the Secretary; the second copy forwarded to the Superintendent for his review and subsequent filing in the institutional inmate file. 82-14.7 Time Limit for Response Responses to grievances will be made within 30 calendar days from date of receipt. When in the opinion of the Assistant Superintendents, Regional Director, or Secretary, the grievance is of an emergency nature, a reply should be made as soon as possible. 82-14.8 Formal Department Level Appeal If the inmate feels his grievance has not been satisfactorily resolved at the institutional level, he may appeal, using Form DC 1-303, checking the appropriate box and submitting his appeal to the Regional Director, Secretary or designee. In such cases, the factual basis for appeal must be clearly stated in Part A and a copy of Form DC 1-303, the original grievance and response at the institutional level, must be attached. Appeals should be forwarded to the Regional Director or Secretary through routine institutional mail channels. If the inmate does not provide a reason for appeal, or attach a copy of his original grievance and response, or the Regional Director or Secretary feels that the reason supplied is not adequate, the appeal request will be returned to the inmate and reasons for return will be specified in Part B. 82-14.9 Action by the Director The Regional Director, Secretary or designee will have a record made of appeals received and will have a receipt sent to the inmate. He will cause the appeal to be investigated and will have up to 30 calendar days from receipt of the appeal form to make a response. The original Direct Appeal Form will be returned to the inmate. The first copy (with copy of the Institutional Appeal attached) will be placed in the inmate record in the Bureau of Offender Records. The second copy will be sent to the Superintendent for his review and subsequent filing in the institutional inmate file. 82-14.10 When Time Limit Cannot Be Met The period of time referred to for action at the institution, Region, or Department level may be extended for a reasonable period not to exceed 30 days, upon finding that the circumstances are such that the initial period is insufficient to make an appropriate decision. This action must be communicated in writing to the complainant with the time of the extension noted. 82-14.11 Record Keeping As previously stated, a record should be made of each grievance or appeal and should contain at least the following information: Inmate Name, Prison Number, Date Grievance was filed, Date of Receipt, Nature of Grievance or Appeal, and Issued Question to be resolved, Disposition of Grievance or Appeal, and Date of Disposition. A copy of this record should be filed monthly in the Assistant Superintendents', Regional Director's or Secretary's Office. 82-14.12 Freedom no Use Grievance Procedure Inmates can be assured that no action will be taken against them requiring from submission of an grievance unless they knowingly and intentionally make a statement which is proven false beyond a reasonable doubt pursuant to disciplinary procedures. An inmate should report to Administrative Staff any threats or other punitive type actions taken by staff personnel. 82-14.13 Fact Finder This facility has been selected to initiate a pilot program utilizing volunteer attorneys to hear inmate grievances. These scheduled visits will be coordinated by the Assistant Superintendent for Programs, who has been designated as institutional coordinator. Hearings will he administrative in nature and the attorneys nay utilize tape recorders if desired. Fact Finders will forward their written reports to D. H. Brierton, Project Coordinator. The Fact Finder report is advisory and will be considered by the Secretary in making his final decision on the grievance. Union Correctional Institution Policy Memorandum 82-14. George W. Bedingfield, respondent's inmate grievance administrator, conceded that UCI Memo 82-14.13 states matters not covered by Rule 33-3.07, Florida Administrative Code. As a practical matter, however, funds for the experimental project contemplated by UCI Memo 82-14.13 are now depleted. Respondent conceded at hearing that so much of PPD 4.07.02 as provides, "The aggrieved inmate is requested to substantiate that the informal remedy procedures have been exhausted and like language in UCI Memo 82-14.4, depart from Rule 33-3.07, Florida Administrative Code. Respondent's proposed order includes proposed findings of fact which have been adopted, in substance, in large part. Proposed findings have been rejected where unsupported by the weight of the evidence, immaterial, cumulative or subordinate.
Findings Of Fact Based upon all of the evidence, including the pleadings and supporting documents, the following findings of fact are determined: Petitioner, Dr. Frank A. Brown, is a licensed psychologist having been issued license number PY-0002079. Respondent, Board of Psychological Examiners (Board), is the state agency charged with regulating the practice of psychology pursuant to Chapter 490, Florida Statutes. The parties agree that Dr. Brown is a small business party as defined in Subsection 57.111(3)(d)1.a., Florida Statutes. On August 24, 1989, the Board issued an amended administrative complaint against Dr. Brown alleging that he had violated chapter 490 in three respects while treating patient R. B. during the period from 1978 until 1987. In general terms, the complaint alleged that: Petitioner had violated sections 490.0111 and 490.009(2)(k) by committing any act upon a patient or client, other than the spouse of the doctor, which would constitute sexual misconduct. (Count I) Petitioner had violated section 490.009(2) (s) by failing to meet the minimum standards of performance in professional activities when measured against generally prevailing peer performance. (Count II) Petitioner had violated section 490.009(2)(p) by being unable to practice the profession for which he is licensed under chapter 490 with reasonable skill or competence as a result of a mental or physical condition or by reason of illness, drunkeness, chemicals or any other substance. (Count III) The complaint was later referred to the Division of Administrative Hearings and was assigned Case No. 89-0599. An evidentiary hearing on the complaint was held on September 12 and 13, 1989. At the formal hearing the agency prosecutor voluntarily dismissed Count I, and the case was tried on the remaining two counts. On May 14, 1990, a Recommended Order was issued by Hearing Officer Diane Cleavinger recommending that all remaining charges be dismissed. Of significance to this proceeding is the allegation in Count II which charged Dr. Brown with failing to meet the minimum standards of performance in professional activities when measured against generally prevailing peer performance. Bearing on Hearing Officer Cleavinger's decision to dismiss that count was her determination that the psychologist-patient relationship ended prior to the beginning of any love affair between Dr. Brown and his former patient. Among others, the hearing officer made the following findings: 5. Respondent's psychologist/client relationship was with R. B. and did not include her husband. The interest demonstrated by R. B.'s husband in her therapy was that of a concerned husband. Dr. Brown saw him collateral to the therapy he was conducting with R. B. He met with R. B.'s husband in order to make R. B.'s termination of therapy more successful. The evidence did not show that Respondent had ever agreed to formulate a psychologist/ client relationship with R. B.'s husband and, although the husband paid R. B.'s therapy bills, he was never charged separately for the discussions he had with Respondent during R. B.'s therapy. The other contacts, referenced by R. B.'s husband's testimony as supporting a professional relationship between him and Respondent, occurred well after R. B.'s therapy had terminated. The contacts variously involved obtaining advice from Dr. Brown on the impending death of a relative during an otherwise social gathering at the B.'s home, asking Dr. Brown, during a lunch meeting, for help with sexual problems for which Dr. Brown referred him to another psychologist, and testing of the B's children for scholastic purposes. All such contacts appear to have been given in friendship and not in a professional capacity. (Emphasis added) The underscored portion of the findings was intended to make a determination that any contact between Dr. Brown and R. B.'s children was not made in a professional capacity and as to those contacts the psychological/client relationship did not exist. The recommended order was considered by the Board at a meeting held on June 7, 1990, and was adopted in toto without change. A final order was issued on July 2, 1990, dismissing all charges against Dr. Brown. During the meeting held on June 7, 1990, and while discussing an exception to the recommended order raised by the agency prosecutor, the following statement was made by Board counsel: I will express now what other concern I've had with reading this case. It does seem clear that a dual relationship was formed during that period of time when there was regulation, in that Dr. Brown gave psychological services to the children of his lover, and of her unsuspecting husband. I have - you know, I'm just going to be very honest with you. When I was reading through the transcripts, some of the thoughts that occurred to me were out of his own mouth. . . (emphasis added) This statement was made in the belief, albeit incorrect, that Hearing Officer Cleavinger's findings in paragraph 5 of her recommended order regarding a dual relationship pertained only to the husband and not to the children. Counsel's statement suggested that Dr. Brown's relationship with the children was done in a professional capacity and thus was unethical, given his romantic relationship with R. B. Accordingly, prior to the issuance of a final order in Case No. 89- 0599, on June 11, 1990, the Board's counsel authored the following memorandum to counsel for the Department of Professional Regulation (DPR): By Dr. Brown's own admission, he performed psychological services for the children of R. B. The facts surrounding the dual relationship were not included in the administrative complaint filed in Case No. 89-0599. They do, however, constitute a separate cause of action and should be brought to the attention of the probable cause panel. Responding to this memorandum, DPR counsel recommended on June 18, 1990, that DPR open a new investigation against Dr. Brown concerning the issue of a possible dual relationship, that is, the testing of R. B.'s children while Dr. Brown was engaged in a love affair with R. B. The DPR uniform complaint form described the alleged misconduct in the following manner: Subject stated during testimony in previous DPR case (89-0599 DOAH) that he had engaged in a love affair with a client whose children he was counseling. Possible violation of Section 490.009(2)(s), F. S. The matter was assigned DPR Case No. 9007566. By letter dated August 11, 1990, petitioner's counsel was advised that a complaint had been filed against his client. The letter gave the following pertinent reasons for initiating the matter: This complaint is based upon information obtained in formal proceedings in Department of Professional Regulation case number 0081809. It is alleged by the Department that during the time Dr. Brown was providing psychological services to the children of R. B., he was concurrently engaged in a love affair with her. This dual relationship is a possible violation of Section 490.009(2) (s), Florida Statutes, which prohibits a licensee from failing to meet the minimum standards of performance in professional activities when measured against generally prevailing peer performance. Dr. Brown, through counsel, put DPR on notice by letter dated September 5, 1990, that: It would be a violation of due process of law to charge Dr. Brown with a violation based upon the same set of facts previously adjudicated. The doctrines of res judicata, collateral estoppel and bar and merger are applicable. By a second letter dated September 25, 1990, petitioner's counsel again advised DPR "that the Department does not have a basis in law or fact for any allegations." On October 18, 1990, petitioner's counsel authored another letter to DPR stating in part as follows: I reiterate that it would be a violation of due process of law to charge Dr. Brown with a violation based upon the same set of facts previously adjudicated. The doctrines of res judicata, collateral estoppel and bar and merger are applicable. I respectfully request that this letter be made a part of the investigative file to be considered by the Probable Cause Panel. DPR counsel advised petitioner's counsel on September 28, 1990, that all factual and legal matters, including the objections raised in his letter, would be presented to the probable cause panel. Thereafter, DPR counsel submitted a suggested closing order to the panel proposing that a letter of guidance be issued based upon a belief of a violation of Chapter 490, Florida Statutes, as outlined in the August 17, 1990 letter sent to petitioner's counsel. By letter dated January 11, 1991, petitioner's counsel again placed the Board on notice that the subject matter of the new investigation was barred by the doctrine of collateral estoppel. The letter stated as follows: Dr. Brown was served with the notice of investigation in August, 1990. I have advised the department of Dr. Brown's position by letters dated August 13, August 20, September 5, September 25, October 1 and October 18, 1990. This investigation stems from matters resolved in favor of Dr. Brown in DPR Case number 0081809, DOAH Case Number 89-0599 in which Dr. Brown was charged with failure to meet the minimum standards of performance in professional activities when measured against generally prevailing peer performance in violation of Section 490.009 (2)(s), Florida Statutes (1981-86). Included in consideration of that charge was the scholastic testing of the children of (D. and R. B.) which is the subject of this pending investigation. The adopted finding of fact number 5 in the above case refers to the collateral relationships between Dr. Brown and (D. B.) and the children including "testing of the B's children for scholastic purposes." Finding of fact number 5 finds that: ALL SUCH CONTACTS APPEAR TO HAVE BEEN GIVEN IN FRIENDSHIP AND NOT IN A PROFESSIONAL CAPACITY. I reiterate that it would be a violation of due process of law to charge Dr. Brown with a violation based upon the same set of facts previously adjudicated. The doctrines of res judicata, collateral estoppel and bar and merger are applicable. The panel met on February 14, 1991, and considered DPR's recommendation to prosecute, the investigative report and all supplemental materials including a report from its expert consultant. The panel was also given a copy of the letter sent by Dr. Brown's counsel on January 11, 1991, which raised the collateral estoppel issue. After considering all of these materials, including the estoppel matter, the panel made a determination that respondent violated chapter 490 by providing therapy to the children while romantically involved with their mother and failing to disclose this relationship to the children's school and father. While the panel found probable cause to exist, it was advised by its counsel that the case was "weak," the chances of a successful prosecution were "minimal," and the best it could hope for was a reprimand. Accordingly, it followed the suggestion of counsel and recommended to DPR that the case be closed with a letter of guidance to the subject, which was then the most lenient form of discipline for a licensee. By the admission of counsel and panel members at that meeting, however, it was clear they knew the letter would become a part of Dr. Brown's disciplinary file, it was accessible by any member of the public examining his file, and the Board could use the letter against Dr. Brown in the event of future proceedings. In disposing of the contention by Dr. Brown that the doctrine of collateral estoppel applied, DPR and Board counsel gave the following advice: Ms. Gaffney: There's a great big legal issue in this case. That is whether or not this has been litigated. If we pursue an administrative complaint, we're going to be considering whether or not he treated the children and whether or not that's below the standards. That's easily proved testimony. But we have a pending litigation for attorney's fees on that prior case and this one is a case in which Mr. Lambert, in the materials there, there's correspondence indicating respondent's attorney, Mr. Lambert, will make legal attempts to squash the case by argument and motions to dismiss, such as this has already been litigated and so forth. Possibly double jeopardy, all that. Res judicata and double jeopardy, I think, are the two issues he's raised. I don't know whether he would prevail on that or not. I have a point of view, which is that the actual issue here was not charged in the administrative complaint when it was at the final hearing before the Board. The Board took notice of and supplements, and he said well, that's not charged. You can't do anything about that. So I don't know but that would be already double jeopardy or res judicata. Ms. Daire: I would agree with you on that, that it was not charged in the initial administrative complaint. It only came out in the testimony of Dr. Brown, when he talked about having treated the children, as well, and we could not do anything about that issue that was raised during the proceedings except to issue a new administrative complaint on his own admission. Although the panel members themselves did not discuss the issue, by finding probable cause, they implicitly accepted their counsel's advice and rejected the contention that they were precluded by the doctrine of collateral estoppel from issuing a second complaint on the stated ground. On March 27, 1991, DPR counsel, acting on behalf of the Board and in response to the panel's decision, sent a letter of guidance to respondent which read as follows: This letter is sent to inform you of the action taken in regard to the above-referenced complaint. This complaint concerned allegations that you failed to meet minimum standards of performance in professional activities in violation of Section 490.009 (2)(s), Florida Statutes. It has been determined that probable cause exists to believe that you have violated the provisions governing the practice of psychology. In light of the circumstances presented, however, this case is closed with issuance of this Letter of Guidance in lieu of further administrative action. It has been noted that your professional care for the patient's children while involved with the patient on a personal basis, without disclosure to the father and school falls below minimum standards. The Panel recommends that you review current literature regarding dual relationship issues. I would encourage you to familiarize yourself with the statutes and rules governing the practice of psychology and to abide by these provisions in the future. If you have any questions or comments regarding this matter, please feel free to contact me. On March 19, 1991, or before the letter was issued, petitioner filed a motion to set aside the probable cause determination as improvidently found. After the letter was issued, he requested a formal hearing on four separate occasions. All requests were denied and a final order was issued by DPR on April 24, 1991, denying the petition in all respects. Thereafter, petitioner appealed the letter of guidance to the First District Court of Appeal. The court reversed the Board's action and remanded the matter with instructions to dismiss the complaint. Brown v. Department of Professional Regulation, Board of Psychological Examiners, 602 So.2d 1337 (Fla. 1st DCA 1992). In dealing with the estoppel issue raised by Dr. Brown, the court noted that Hearing Officer Cleavinger had made the following findings in her recommended order: . . . and testing of the B's children for scholastic purposes. All such contacts appear to have been given in friendship and not in a professional capacity. The court went on to say The above-quoted findings of fact establishes that the sole allegation of misconduct in the 1990 complaint was actually litigated in the 1989 case. The record in that case contains evidence that the results of testing the children were submitted to the school. The Department, the Board, and the Probable Cause Panel became bound by the determination of fact that Dr. Brown did not violate section 490.009(2)(s) because a nexus between Dr. Brown's conduct and his practice of psychology did not exist. The Department, Board, and Panel are thus collaterally estopped from reasserting any charge of professional misconduct predicated on these acts. Id. at 1341. The court also noted that a letter of guidance affected Dr. Brown's substantial interests within the meaning of section 120.57, and that Dr. Brown was thus entitled to a section 120.57 hearing as requested. The court added, however, that because the agency was collaterally estopped from relitigating the issues raised in the second complaint, it was remanding the case with directions to dismiss the complaint. The parties are in agreement that the amount of attorney's fees and costs requested by petitioner is reasonable. Such fees and costs total $12,537.00.
