The Issue The issue is whether Respondent committed an unlawful employment practice against Petitioner.
Findings Of Fact On May 23, 2005, Petitioner was hired by Respondent as a ready-mix concrete truck driver at Respondent’s Gainesville plant. Petitioner was a good employee. He had a clean driving record, and he did not have any disciplinary problems while working for Respondent. On or about July 27, 2007, Petitioner had a “mild” heart attack and was placed on medical leave by Respondent. In September 2007, Petitioner was released by his personal physician to return to work. Thereafter, Petitioner returned to work for a couple of days and began the process of being recertified for his driving duties. He reviewed safety materials and videos and did “ride- alongs” with other drivers. Before Petitioner could return to his driving duties, he was required by federal Department of Transportation (DOT) regulations to pass a physical and be certified as “physically qualified.” Recertification is required every 24 months and after an injury that impairs the driver’s ability to perform his/her normal duties, such as the heart attack suffered by Petitioner. Petitioner understood that he could not return to his job as a ready-mix concrete truck driver until he passed a physical and received his DOT certification. On September 12, 2007, Respondent sent Petitioner to a DOT-approved physician in Ocala for his physical. Petitioner did not pass the physical. The DOT-approved physician expressed concerns about Petitioner’s cardiac surgery, possible sleep apnea (based upon a questionnaire filled out by Petitioner), and blood pressure issues. There is no credible evidence that Respondent influenced the DOT-approved physician’s decision in any way. Petitioner’s suspicion that Respondent had something to do with the decision is unfounded. Petitioner’s personal physician disagreed with the concerns expressed by the DOT-approved physician, and after Petitioner underwent a series of tests, it was determined that he did not have sleep apnea. On November 9, 2007, Respondent laid Petitioner off based upon his “failure to meet job qualifications.” Petitioner was 48 years old at the time of the lay- off. There is no credible evidence that Petitioner’s age or medical condition played any role in Respondent’s decision to lay Petitioner off. Rather, the decision was based solely upon Petitioner’s failure to have the DOT certification that was required for him to drive a ready-mix concrete truck. Respondent gave Petitioner ample time to obtain his DOT certification before it laid him off. Approximately two months passed between the time that Petitioner was cleared to return to work by his personal physician and the time that he was laid off for not having his DOT certification. Petitioner did not obtain his DOT certification until some point in January 2008. Petitioner was treated no differently by Respondent than other drivers -- both older and younger than Petitioner -- who lost their DOT certification. Like Petitioner, those drivers were fired because they did not meet the applicable job qualifications. Petitioner testified that he was told that he would be rehired when he got his DOT certification. This testimony is corroborated by the comment on the Employee Separation Notice for Petitioner, which stated “Jesse has been unable to get his DOT card/when he does he will be rehired.” By the time Petitioner obtained his DOT certification in January 2008, Respondent’s business had declined due to the slow-down in the economy and the building industry, and it did not have any work for Petitioner. Respondent laid off three drivers at its Gainesville plant in December 2007, and it laid off an additional five drivers at the plant in February 2008 because of the decline in its business. Six of the eight drivers who were laid-off were younger than Petitioner. After these lay-offs, there were still three drivers employed at Respondent’s Gainesville plant who had less seniority than Petitioner, but in order to rehire Petitioner, Respondent would have had to fire one of those drivers. There were also a number of drivers still employed at Respondent’s Gainesville plant who were older and had more seniority than Petitioner. Respondent’s decision not to fire one of the other drivers in order to re-hire Petitioner was reasonable under the circumstances. And, more importantly, there is no credible evidence that this decision was motivated in any way by Petitioner’s age or a perceived disability based upon his heart attack. Respondent has not hired any drivers at its Gainesville plant since the lay-offs described above. Petitioner has not worked since he was laid off by Respondent. He testified that he has tried to find another truck-driving job, but that like Respondent, most companies are not hiring drivers because of the slow-down in the economy and the building industry. Petitioner would likely still be employed by Respondent if he had obtained his DOT certification before Respondent started laying off drivers because Petitioner was a good employee with more seniority than all but one of the drivers who were laid off in December 2007 and February 2008. Petitioner believes that Respondent could have put him to work in the warehouse or on the yard until he obtained his DOT certification and could return to driving duties. However, the record does not reflect whether any positions were available in the warehouse or on the yard or whether Petitioner was qualified for those positions. Petitioner testified that he was told by other employees that they overheard Respondent’s managers stating that they did not intend to return Petitioner to his driving duties because his heart attack made him a “high risk driver.” No evidence was presented to corroborate this hearsay-based testimony. Petitioner also testified that a supervisor made a critical comment to him regarding his use of a cane immediately after he returned to work. The supervisor denied making the comment, and even if the comment was made, there is no credible evidence that it was anything more than an isolated comment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission issue a final order dismissing the Petition for Relief with prejudice. DONE AND ENTERED this 28th day of May, 2009, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 28th day of May, 2009.
The Issue Whether Respondent's renewal application for registration as an intrastate mover should be denied for the reasons set forth in the September 23, 2019, Denial of Application Letter.
Findings Of Fact The Department is the state agency responsible for permitting and regulating household moving services in the State of Florida. Respondent is a Florida corporation and conducts household moving services to the general public. Harwood Case Respondent is a named Defendant in the case of Susan Harwood v Licensed Interstate Transport Corporation and Florida Licensed Moving Corporation, filed in Seminole County Circuit Court, under Case No. 2019- CA-000309-16-G (“Harwood Case”). The case alleged a breach of contract action for damages and violations of chapter 507. On June 20, 2019, a default judgment was entered against Respondent in the Harwood Case in the amount of $30,000.00, representing a $5,000.00 civil penalty for each of the six separate violations of chapter 507, which also constitute deceptive and unfair trade practices under sections 501.201- 501.213, Florida Statutes, the "Florida Deceptive and Unfair Trade Practices Act," $800.00 in actual damages for breach of contract, plus an award of costs, and interest. Respondent asserts it was not properly served in the Harwood Case and was not aware of the judgment until notified by the Denial Letter issued in this case on September 23, 2019. After receipt of the Denial Letter, Respondent immediately filed a Motion to Set Aside Default Judgment in the Harwood Case, which as of the date of the final hearing, had not been set for hearing. The judgment remains unpaid by Respondent. Enforcement Action On September 14, 2018, the Department filed an enforcement action against Respondent in Seminole County Case No. 2018-CA-002516. The allegations contained in the pleading allege multiple violations of chapter 507, including allegations that Respondent engaged in fraudulent and dishonest acts while operating as a mover. This case is currently pending. More specifically, this action alleges multiple acts of fraud, misrepresentation, or failure to disclose material facts to customers in violation of chapter 507. Respondent allegedly engaged in “hostage moves” – the practice of providing a low-ball cost estimates for moving and storage, then refusing to relinquish the goods without requiring greater amounts. Respondent also allegedly resorted to threats for excessive payments, failed to provide estimates or contracts prior to moves, refused to accept credit card payments, and failed to maintain insurance coverage. Alleged False Statements in Application As part of its basis to deny Respondent’s application, the Department asserts that Respondent was dishonest in the renewal application to be a registered mover. It is a violation of section 507.02 to knowingly make a false statement, representation, or certification in any application required to be submitted under chapter 507. The application contained two questions upon which the Department based its denial, which read as follows: Has this person not satisfied a civil fine or penalty arising out of any administrative or enforcement action brought by any government agency or private person based upon conduct involving fraud, dishonest dealing or any act of moral turpitude? Does this person have a pending criminal, administrative, or enforcement proceeding in any jurisdiction, based upon conduct involving fraud, dishonest dealing, or any act of moral turpitude? (emphasis added). Respondent’s President, James Fischer, answered “no” to these questions, which were truthful and accurate. He understood the questions to be specifically asked to the individual submitting the application on behalf of the entity applying. In fact, these questions appear on the application under the heading, “Owner/Management Information.” Mr. Fischer did not knowingly make any false statements. There was no unsatisfied judgment against Mr. Fischer, nor was there a pending case against him when the application was made. As to question (a) above, Mr. Fischer had no knowledge that there was a judgment from the Harwood Case when he answered the question truthfully. The questions were poorly worded and used the word “person” instead of using the word “applicant.” The failure of the wording should not be construed against Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order denying Respondent’s renewal application to provide household moving services. DONE AND ENTERED this 5th day of May, 2020, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 5th day of May, 2020. COPIES FURNISHED: Genevieve Hall, Esquire Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-6587 (eServed) Donald Goldrich, Esquire Donald S. Goldrich, P.A. 5177 Northwest 74th Manor Coconut Creek, Florida 33073-2734 (eServed) Amanda B. McKibben, Esquire Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-6587 (eServed) Steven Hall, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 (eServed) Honorable Nicole “Nikki” Fried Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 (eServed)
The Issue The issue is whether Respondent failed to maintain good moral character as a law enforcement officer and violated provisions of Sections 943.1395(6), 943.1395(7), and 943.13(7), Florida Statutes (2003), and if so, what penalty should be imposed.
Findings Of Fact By stipulation of the parties, Respondent was, at all times material to this proceeding, a certified law enforcement officer in the State of Florida, holding certificate number 194615. On May 27, 2003, Dorothy Shelton was a dispatch duty officer at the Havana Police Department in Havana, Florida. The police chief asked Shelton to sit near Respondent in a small room at the police station when he came in to peruse the contents of his personnel file. Respondent arrived, took the folder and sat down near Shelton. When Respondent asked if he could remove papers from the folder, Shelton told him that it was not permitted. Some of the papers in the folder were loose and Respondent asked if he could have copies made of some of the documents. Shelton told him that copies could be made upon Respondent's going nearby to the Havana City Hall, paying the requisite copying fees, obtaining a receipt for same, and returning to the police station. Eventually, Respondent, after more paper shuffling, returned the folder to Shelton and left the police station. As he went out the door, Shelton observed a piece of paper in Respondent’s pocket. Shelton made the deduction that the paper came from the personnel folder and quickly told the duty sergeant that Respondent had removed a piece of paper from the folder. The sergeant immediately looked in the folder, noticed that a returned personal reference questionnaire sent out by the department in the folder was missing. The sergeant immediately proceeded to follow Respondent with the intent of stopping him outside, but discovered that Respondent had left the area. The sergeant then telephoned Respondent’s residence and left a telephonic message for Respondent to return the call. At about 5:00 p.m., that same day, Respondent returned the call. When questioned by the sergeant, Respondent admitted taking the document and later destroying it. At the hearing, Respondent testified that he was motivated to remove the document from the folder because he had a pending job application with the Florida Highway Patrol and the document inappropriately stated he had been “Baker-Acted.” In the course of his testimony, Respondent exhibited remorse and confirmed again a written apology he had written to the Havana police chief. At the hearing, Respondent also defended his actions by relating that he had discussed the matter with the Havana city manager who allegedly told him to go remove the document from the folder. In the absence of testimony by the city manager, Respondent’s testimony in this regard is not credited. The record does not reveal how long Respondent has been a certified law enforcement officer. There is no evidence that Respondent has a prior disciplinary history.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order placing Respondent's certification as a law enforcement officer on probation for a period of two years upon such reasonable terms and conditions as may be determined by the Criminal Justice Standards and Training Commission. DONE AND ENTERED this 13th day of May, 2004, in Tallahassee, Leon County, Florida. S DON W. DAVIS 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 13th day of May, 2004. COPIES FURNISHED: Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Thompkins W. White, Esquire Igler & Dougherty, P.A. 1501 East Park Avenue Tallahassee, Florida 32301 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Beginning on July 9, 1973, up to and including the date of the hearing, the Respondent, Hal K. Johnson, was a registered real estate salesman under certificate no. 54569, held with the Florida Real Estate Commission. In the January 22, 1973 application which the Respondent, Hal K. Johnson, filed for registration as a real estate salesman, he answered the question no. 9 found therein. Question no. 9 says: "Have you ever been arrested for or charged with, the commission of an offense against the laws of any municipality, state or nation including traffic offenses, without regard to whether sentence has been passed or served, or whether the verdict or judgement has been reversed or set aside or not, or pardon or parole granted. if yes, state details in full. The answer which was given by Hal K. Johnson was, "DWI, December, 1972 & June, 1976, Failure to yield, Dec. 1972". In addition to the offenses indicated in his answer to question no. 9, the Respondent, Hal K. Johnson, had been arrested for a number of other offenses. On September 20, 1955, the Respondent had been arrested for disorderly conduct/drunk. On August 20, 1957, the Respondent had been arrested for driving while intoxicated. On January 28, 1959, the Respondent had been arrested for driving while intoxicated. On February 27, 1959, the Respondent had been arrested for disorderly conduct/drunk. On March 6, 1959, the Respondent had been arrested for disorderly conduct/drunk. On July 1, 1959, the Respondent had been arrested for disorderly conduct/drunk. On August 12, 1961, the Respondent was arrested for disorderly conduct/drunk. On January 17, 1962, the Respondent was arrested for disorderly conduct/drunk. On November 10, 1962, the Respondent was arrested for disorderly conduct/drunk. On September 18, 1963, the Respondent was arrested for having no drivers license. On December 13, 1963, the Respondent was arrested for disorderly conduct/drunk. On March 23, 1967, the Respondent was charged with disorderly conduct/drunk and profane language. On July 30, 1967, the Respondent was charged with disorderly conduct/drunk. On September 4, 1967, the Respondent was charged with reckless operation of motor vehicle, driving while under the influence of intoxicating beverages. On June 5, 1968, the Respondent was charged with disorderly conduct/drunk. On July 19, 1968, the Respondent was charged with disorderly conduct/drunk. On April 18, 1972, the Respondent was charged with disorderly conduct/drunk.
Recommendation At the hearing, the Respondent, Hal K. Johnson, did not challenge the facts as presented in the administrative complaint. His intention in appearing at the hearing was to offer mitigation. In the way of mitigation, Mr. Johnson said that he was only given one line to answer the question no. 9, which did not provide him enough room, notwithstanding the fact that he had read the instructions which said that additional information should be provided on a separate sheet. Moreover, Mr. Johnson said that the language of question no. 9, which says "commission of an offense . . .", only calls for just one offense to be listed and he in fact listed three. He also said that he did not put some of the drunk arrests down because now they don't even require you to be arrested, they just take you someplace." In addition, he indicated that he did not know where to get the records of these arrests that had been placed against him. He said he thought that the records of these matters were found in Tallahassee, Florida. The three indications of arrests were also felt, in the mind of the Respondent, to be a sufficient indication of the 20 arrests that had been made. Finally, the Respondent said that he wants to make it clear that he didn't intend to try to make misstatements, although he agrees that he failed to elaborate, which to him was an error of omission not intent. Having considered the explanation offered by Mr. Hal K. Johnson, the Respondent, in view of the facts, it is recommended that his certificate no. 54569, as a registered real estate salesman be revoked. DONE and ENTERED this 14th day of February, 1977, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Bruce Kamelhair, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Mr. Hal K. Johnson c/o Fowler Realty 8917 Atlantic Boulevard Jacksonville, Florida 32211
Findings Of Fact Respondent was certified as a correctional officer by the Criminal Justice standards and Training Commission on February 17, 1988, and was issued certificate No. 03-87-502-08. On October 3, 1988, Metro-Dade Police Officer Jay Rogers was on duty and was dispatched to the Kendall Town and Country Mall to assist the Mall's security officers in clearing the parking lot after a night club closed. Officer Rogers walked up to a group of people, including the Respondent and asked them to finish saying good-bye and leave the parking lot. Officer Rogers then backed off and gave the remaining people in the lot about ten to fifteen minutes to finish saying good-bye. Officer Rogers again approached the group which included the Respondent, and asked that they leave. At that point, the Respondent replied to the officer's request with words to the effect of, "You wait, you can't make us leave, I'm looking for my keys." Officer Rogers asked the Respondent to find her keys, do whatever she needed to do, finish saying good-bye, and to please leave. The Respondent replied with words to the effect of, "I'll leave when I'm ready," and, "You're not telling me what to do." At about this point in the communication between Officer Rogers and the Respondent, an unidentified male approached the Respondent and said words to the effect of, "Come on, let's leave, the officer told us to leave, let's get out of here." The Respondent pushed the unidentified male away, and he got into a vehicle and left. Officer Rogers again asked the Respondent to leave. At some point in the interchange the Respondent replied, "What are you going to do, arrest me?" Eventually, Officer Rogers told the Respondent to leave or she would be arrested for trespassing after warning. The Respondent continued to say that she was not leaving. Officer Rogers thereupon advised the Respondent that she was under arrest for trespassing after warning and removed his handcuffs from his belt. At this point the Respondent became belligerent and hostile and told Officer Rogers, "You're not arresting me," and, "You'd better call for a lot of police, I'm not leaving." Officer Rogers requested backup units at this time. At about the same time, a man named Randall Rymes attempted to intervene between Officer Rogers and the Respondent. Officer Rogers told Mr. Rymes to leave and not interfere with the arrest. Mr. Rymes moved away and got into a two-door, black Isuzu automobile. As Officer Rogers attempted to place the handcuffs on the Respondent, she pulled her arm away and twisted her body. Officer Rogers continued with his efforts to arrest the Respondent and grabbed her left arm while asking her not to resist or struggle. The Respondent again pulled her left arm away and then struck Officer Rogers in the neck with her right fist. With Officer Rogers holding onto her arm, the Respondent pulled the officer towards the black Isuzu occupied by Mr. Rymes. Mr. Rymes drove the car beside the Respondent, opened the passenger door, and yelled to Respondent to get into the car. Mr. Rymes also grabbed the Respondent and attempted to help pull her into the car. At that point the Respondent kicked Officer Rogers in the left knee and as Officer Rogers continued to try to put the handcuffs on, the Respondent got partially into the car. Thereupon, Mr. Rymes started driving away with Officer Rogers running beside the automobile still holding onto the Respondent. Officer Rogers finally had to let go to avoid the risk of further injury. The vehicle driven by Mr. Rymes continued for several hundred feet until it was blocked by a vehicle driven by another law enforcement officer. Officer Rogers ran to the automobile driven by Mr. Rymes, removed the Respondent from the car, handcuffed her, and placed her in a police vehicle. Although Respondent had been drinking alcoholic beverages, she was not intoxicated at the time of the events described above. The Respondent has never been arrested or charged with a crime other than in the incident described above. /1
Recommendation Based on the foregoing, it is RECOMMENDED that the Criminal Justice Standards and Training Commission issue a final order in this case concluding that the Respondent is in violation of Section 943.13(7), Florida Statutes, and Rule 11B-27.0011(4), Florida Administrative Code, and imposing a penalty of probationary status for one year conditioned on the Respondent not engaging in any conduct during the probationary period which constitutes failure to maintain good moral character within the meaning of Rule 11B-27.0011(4), Florida Administrative Code. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 1st day of May 1990. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st of day of May 1990.
Findings Of Fact On September 4, 1979, the Department of State levied a $200 civil fine against Weaver and Automobile Recovery by its letter of that date. As of that date, the Petitioner was not licensed by the Department of State under Chapter 493, Florida Statutes. The $200 fine was paid, and a formal hearing was requested.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer would recommend that the fine be set aside and the $200 be repaid to the Petitioners. This recommended in no way constitutes a ruling or finding on the underlying grounds upon which the fine was assessed. DONE AND ENTERED this 13th day of February 1980 in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Mr. John M. Weaver Automobile Recovery Bureau of Florida, Inc. Post Office Box 18452 Tampa, Florida 33679 W. J. Gladwin, Jr., Esquire Assistant General Counsel Department of State The Capitol Tallahassee, Florida 32301
