The Issue Whether the Petitioner is eligible for relocation assistance benefits pursuant to 42 U.S.C. 4601 et seq. (P.L. 91-646) and the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970.
Recommendation Application for relocation assistance benefits by Mrs. Marie Lewis Mims be denied. DONE and ORDERED this 14th day of December, 1976 in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: William Guy Davis, Jr., Esquire 700 Brent Building Post Office Box 12950 Pensacola, Florida 32576 George L. Waas, Esquire Office of Legal Operations Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Joseph A. Alfes Chief of Right-of-Way Department of Transportation Haydon Burns Building Tallahassee, Florida 32304
Findings Of Fact Petitioners are husband and wife. They were required to locate to another home due to the acquisition of right-of-way by Respondent for construction of Interstate Highway 75 in Collier County, Florida. It is undisputed that Petitioners are eligible displacees under the federal government's Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, and are displaced persons entitled to relocation assistance within the definition of 49 Code of Federal Regulations, Subtitle A, Section 25.2(f). Petitioners and their children resided in two of three travel trailers which they owned on a five acre tract of land in a rural, wet area of Collier County, Florida. Both Petitioners were employed. He drove daily approximately 80 miles each way to his job as a taxi cab operator in Fort Lauderdale, Florida. She worked part time as a store clerk in a business near their home. On February 23, 1986, an employee of Respondent completed a household survey questionnaire regarding Petitioners' residence. The purpose of the questionnaire was to decide requirements governing assistance to be provided them in view of their future relocation to other housing as a result of their displacement by the interstate highway construction. The survey establishes that Petitioners owed $2,000 on their property, and that replacement housing was required for the husband, wife and two children of opposite sexes. The husband signed the survey instrument. Petitioners' property had an appraised value of $25,950. Of this amount, $17,550 reflected land value and $8,400 was the value of improvements. Petitioners initially received $25,950 when their property was acquired by Respondent through eminent domain proceedings. In the absence of comparable, utility equipped acreage in Collier County where applicable zoning restrictions would permit the placement of mobile homes, Respondent upgraded the type of replacement housing used to determine the amount of relocation assistance due to Petitioners. The effect of such an upgrade, termed "last resort housing," is to permit a higher limit on the payment to be made by Respondent to Petitioners for replacement housing. In this case, the upgrade consisted of Respondent's use of home sites with permanent houses on them in the calculation of the payment to be made to Petitioners. Respondent used three comparable parcels of property in the Golden Gate subdivision near Naples, Florida. The highest priced property was $53,900. This area is approximately 30 miles West of the site of the land previously occupied by Petitioners. A determination of comparable property is generally limited to a 50 mile radius of the dislocatee's property and, when possible, closer to the job of the primary income producer in the family. In this instance, no properties were available in the 50 mile radius to the East of Petitioners' property in the direction of Fort Lauderdale due to the immediate proximity of the Florida Everglades. On April 21, 1986, the comparable properties were selected, approved and determined by Respondent's staff to comply with the relocation program's requirements that comparable housing parcels used to compute the replacement housing payment meet decent, safe and sanitary living standards. Those standards require that comparable properties provide a minimum living area for the number of affected inhabitants, as well as appropriate utilities. The process of computing a replacement housing payment requires that the property appraisal of the dislocatee's property, including improvements less depreciation, be subtracted from the highest priced comparable to provide the amount due to the displaced property owner. Due to the condition of Petitioners' travel trailers, septic tank and well, those items were depreciated 40 per cent which resulted in a value of $4,279. Respondent rounded this amount off to $4,300. This final amount plus the land value of Petitioners' property of $17,500 came to a total of $21,800 for purpose of determining an amount to be subtracted from the highest priced comparable property value of $53,900. The result of this subtraction, or $32,100, reflected the amount of the replacement housing payment which Respondent determined to be due to Petitioners. The net effect of Respondent's depreciation of Petitioners' property improvements resulted in a reduction of the amount to be subtracted from the highest priced comparable property value which, in turn, increased the amount of the replacement housing payment. Dislocatees may acquire new property wherever they wish without regard to the location of comparable properties used to calculate their relocation assistance payment, although such comparable properties must be available to dislocatees who desire to purchase them. Petitioners contracted with a builder to construct a home in Palm Beach County. After payment by them of $4,000 to this individual, he vanished with their money. Subsequent to the experience with the unreliable West Palm Beach builder, Petitioners indicated to Respondent a desire to have their relocation payment computed again, this time on the basis of replacement housing in Broward County, Florida. Three new comparables were selected by Respondent's staff in that county. As had occurred in Collier County, Respondent's staff encountered difficulty finding comparable acreage property due to the lack of availability of such property which would meet restrictions imposed on such acreage with mobile homes. The result was that Respondent's staff determined no comparable acreage to be available in Broward County, Florida. Palm Beach County, Florida, was also searched by Respondent staff for comparable properties, but this effort was abandoned as a result of Petitioners expressed greater desire to relocate in Broward County. On June 26, 1987, three residences were selected by Respondent from the Pembroke Pines area Broward County to serve as comparables in the computation of the amount of the relocation housing payment. The evidence establishes that these homes were either "double wide" trailers or permanently affixed modular homes. These properties were selected because the comparables used in Collier County were no longer available. These residences were an "up grade" from the small travel trailers inhabited by Petitioners. Since the selling value of the highest priced Broward County comparable was only $49,500, the result, after subtraction of the estimated value of $21,800 for Petitioners' property, was a housing payment of $27,700. Since this payment amount is less than the amount originally computed by Respondent's staff, its use is prohibited by relocation program guidelines. Therefore, the previously computed greater amount of $32,100 for the area near Naples, Florida, became the final replacement housing payment. The evidence establishes that Petitioners filed an application and claim for replacement housing payment on March 23, 1987, and were paid $32,100 by state warrant dated April 28, 1987. Advanced moving expenses of $400 were paid to them by state warrant dated September 9, 1987. A state warrant for $1,497.26 to reimburse incidental expenses was issued to Petitioners on December 1, 1987. In total, it is found that Petitioners received $59,947.26 when the complete amount of relocation expense payments is added to the $25,950 amount also paid to them by the State of Florida in initially acquiring their property. Petitioners moved from their property in Collier County during July or August 1987. Petitioners located a house in West Palm Beach, Florida, but were unable to meet mortgage qualifications. However, after a high down payment with approximately half of the funds received from Respondent, they purchased the home. The amount of indebtedness remaining on the home is slightly less than $60,000 and has created a financial problem for Petitioners. Their desire is for Respondent to pay off the remaining mortgage amount or provide an acre of land with trailers in which to live. Respondent is authorized to administer the federal government's Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970. Respondent also administers a corresponding relocation aid program established by state law. Rules governing the state program are almost a verbatim duplicate of the federal program. Respondent's right-of-way procedures manual, comprised of state rules governing nonfederal relocation assistance, and federal regulations are used in administration of federal relocation aid projects.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying Petitioners' claim for further payment. DONE AND ENTERED this 18th day of January, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 18th day of January, 1989. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings 1. 2. Unnecessary to result reached. Addressed. Unnecessary to result reached. Not supported by weight of the evidence. 5-6. Unnecessary to result reached. Self-serving assertion; not supported by the weight of the evidence. Addressed. Unnecessary to result reached. 10-14. Addressed. Adopted by reference. Addressed. Unnecessary to result reached. Addressed. Rejected, not supported by weight of the evidence. Rejected as a conclusion or recommendation, not a factual finding. Respondent's Proposed Findings 1-5. Addressed in part; remainder unnecessary to result. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Haydon Burns Building 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Ann Porath, Esquire 12773 West Forest Hill Boulevard Suite 209 West Palm Beach, Florida 33414 Thomas H. Bateman, 111, Esquire General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0450 Honorable Kaye N. Henderson Secretary Haydon Burns Building Attn: Eleanor F. Turner, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue Whether the Respondent discriminated against the Petitioner contrary to statute on the basis of Petitioner's disability.
Findings Of Fact Petitioner was diagnosed with cancer in December of 2002, and was on sick leave off and on from the time of her diagnosis until the first part of 2004. Later, after surgery, the Petitioner was on extended leave while she recovered from surgery and later from chemotherapy. In June of 2003, Petitioner was rapidly approaching the end of her available leave, but, more significantly, the end of the leave required to be granted under the Family Medical Leave Act (FMLA). This situation resulted in correspondence between Petitioner and the Department about extension of her leave and her return to work. On June 17, 2003, Jeff Carr, Human Resources Manager for the Department, sent a letter to Petitioner in connection with her medical leave status. This letter advised Petitioner that an agreed-upon extension of leave would cover Petitioner until July 4, 2003. As the latest physician's statement submitted by Petitioner indicated that Petitioner was unable to perform the essential functions of her job, the letter from Mr. Carr advised Petitioner of options available to her: 1) a return to work on July 5, 2003, if she was released by her physician as able to perform the essential functions of her job; 2) resignation if she was unable to perform the essential functions of her job; 3) regular or disability retirement. If Petitioner did not choose one of the three options, she was advised she would be terminated. On June 23, 2003, Petitioner wrote to Beth Englander, District Administrator, requesting additional leave in accordance with her doctor's latest evaluation. A copy of a note from Petitioner's oncologist was attached which stated that Petitioner would need to be off at least six to eight weeks. In addition, Petitioner noted that following completion of chemotherapy she would need additional surgery and would need to make additional requests for leave. Petitioner e-mailed Ms. Englander on June 24, 2003, and Ms. Englander replied that same day. The reply again advised Petitioner of her three options to avoid termination for inability to perform her job. After having been twice advised of her options, Petitioner wrote Mr. Carr on June 27, 2003, advising that she would not finish her chemotherapy treatment until approximately September 1, 2003. However, no estimate was given for Petitioner's medical release to return to work following the additional surgery Petitioner said she would need in her letter to Ms. Englander of June 23, 2003. In her letter of June 27, 2003, Petitioner requested additional leave as what she claimed to be a reasonable accommodation under the Americans With Disabilities Act (ADA). Petitioner also said she wanted to work at home in lieu of leave. However, Petitioner provided no doctor's statement to contradict the one she submitted saying that she would be unable to work for six to eight weeks. On July 6, 203, Petitioner wrote Mr. Carr that she was accepting the alternative of retirement. In this letter, Petitioner again stated that she was not finished with treatment and would need additional time to complete the treatment. At the hearing, Petitioner admitted that she was unable to inspect daycare facilities to conduct the inspections required as an essential function of her position. In addition to the regular inspections, initial licensing and relicensing inspections, day care licensing counselors also have to make inspection in response to complaints received by the Department. Petitioner said that, as an accommodation, she wanted to be relieved from conducting inspections and be permitted to process the inspection reports prepared by other counselors and other paperwork. Although Petitioner contended at the hearing that she might have been able to work part-time, she admitted that after submitting the statement that she could not return to work for at least six to eight more weeks she had not gone back to her doctor to ask him to clear her for part-time work. Petitioner also speculated that she could have performed inspections on a part-time basis if she was provided with appropriate protective equipment and a mask. Petitioner stated her desire and request for more time off was because of fatigue. She did not request to work part-time, or protective devices as an accommodation at any time before she chose the option of retirement. Petitioner instituted an action before PERC contending that she was forced to either resign or retire in retaliation for her making of a complaint to Department's inspector general. That action resulted in a recommended order by the PERC hearing officer on April 21, 2004, that recommended that PERC dismiss Petitioner's claim. In that recommended order the hearing officer found as fact that: On June 23, 2003, Welch (Petitioner) sent a letter to District 13 Administrator Beth Englander, which included a doctor's note indicating she needed six to eight more weeks of leave. Englander responded to Welch and told her that, because her leave was exhausted and because of the operational needs of her unit, the Agency would not extend the leave. On June 27, Welch replied to Carr's June 17 letter and asked for accommodation under the Americans With Disabilities Act (ADA). The Agency did not specifically respond to this request. However, Welch was not entitled to ADA leave because she could not perform the essential functions of her job in June when she made her request. The full PERC in a final order of May 11, 2004, adopted the recommended order of the hearing officer, including this finding of fact. Petitioner had not been released by her doctor to return to work and perform her duties at the time she chose retirement in July 2003, and admitted that she was not able to come to work at that time.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Florida Commission on Human Relations enter its final order dismissing Petitioner's charge of discrimination. DONE AND ENTERED this 25th day of May, 2005, in Tallahassee, Leon County, Florida. S 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 25th day of May, 2005. COPIES FURNISHED: Melody Welch 34548 Oak Avenue Leesburg, Florida 34788 Carolyn Dudley, Esquire Department of Children and Family Services Building 6, Room 123 1317 Winewood Boulevard Tallahassee, Florida 32399-9070 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether or not Petitioner, pursuant to Rule 6C-770 F.A.C., abandoned her position as a Secretary Specialist, thereby resigning from Florida State University by being absent without leave for three consecutive days.
Findings Of Fact At all times material, Petitioner, Teresa Loewy, was employed as a Secretary Specialist in the Department of Educational Leadership at Florida State University (FSU). On October 22, 1989, Petitioner Loewy reported that she had suffered a head injury as a result of an on-the-job accident. That same day, she was seen at Tallahassee Memorial Regional Medical Center and released. On October 23, 1987, FSU placed Petitioner on administrative leave for 40 hours. Contact was made by Petitioner and her husband, Mr. Samuel Loewy, with Dr. David Leslie, Department Chairman, with Nina Mingledorff, Department Staff Assistant and Petitioner's immediate supervisor, and with Motney Gray, FSU Workers' Compensation Supervisor. The Loewys were informed that a worker's compensation report had been completed and forwarded by the Department to Ms. Gray. This is the first formal step in an employer acknowledging that workers' compensation or medical benefits may be due a worker pursuant to Chapter 440, F.S., "The Florida Workers' Compensation Law." By letter dated November 3, mailed November 5, and received by Petitioner on November 10, 1987, Chairman Leslie informed Petitioner in pertinent part as follows: As you may be aware, you have been on disability leave for a 40 hour work period. Beyond that limit, this office will not certify any additional leave for you unless we receive medical proof that you are unable to return to work. Although you may apply for workers' compensation, I believe that similar proof will be required by that office. Absent any further communication from you and absent proof to the contrary, we assume that you are capable of returning to work and have elected not to do so (R-3). By letter of November 5, 1987, (R-9) Motney Gray notified Petitioner that Ms. Gray's communications with Joe D. Rawlings, M.D. had convinced Ms. Gray that Petitioner was not still impaired and was able to work and that Ms. Gray was terminating workers' compensation medical benefits and Petitioner's disability leave as of that date. By letter dated November 12 and received November 13, 1987, Robert L. Lathrop, Dean of the College, informed Petitioner as follows: Based on Motney Gray's letter of November 5, to you, we are hereby notifying you as of 8:00 a.m. November 6, you have been on unauthorized leave. Because of your unauthorized leave of absence, I am writing this letter to determine your intentions concerning continued employment at Florida State University. You must report for work immediately, or provide your supervisor, Mrs. Nina Mingledorff, with appropriate medical certification by 4:30 p.m., Monday, November 16, or it will be assumed you have voluntarily resigned due to abandonment of your position. (R-1) In response, on November 16, 1987, Mr. Loewy, on behalf of his wife, delivered to the Department a handwritten note from Dr. Rawlings, (R-2) which read: To whom it may concern: Mrs. Teresa Loewy is still under my care for headaches dating back to her injury on 10-22-87. At that point in time, Dr. Rawlings could be accurately characterized as Petitioner's primary treating physician pursuant to Chapter 440, F.S., "The Florida Workers' Compensation Law". Copies of this letter were seen by Nina Mingledorff and by Annette Roberts, FSU Employee Labor Relations Coordinator. On November 17, 1987, Petitioner and Mr. Loewy, together with another couple, visited Petitioner's workplace. Their purpose was to have Petitioner physically on the employment premises to demonstrate that Petitioner was unable to work due to her injury. At that time, the Loewy faction spoke with Annette Roberts, with John Goldinger, Assistant Personnel Director, and with Dean Lathrop. Initially, Petitioner was given a termination letter prepared for the Dean's signature, based upon Petitioner's three consecutive days' absence without prior authorization, which letter was as yet unsigned. However, as a result of the Loewy faction's face-to-face interview with Dean Lathrop, a new memorandum was prepared and actually signed by the Dean. This second communication was addressed to John Goldinger and read as follows: I am hereby authorizing leave of absence for Ms. Teresa A. Loewy beginning November 16, 1987, at 3:00 p.m. and ending no later than 10:00 a.m. on November 20, 1987. The purpose of this leave is to provide time for Mrs. Loewy to secure medical certification that she is unable to drive herself to work. (R-4) The effect of this memorandum, signed by Dean Lathrop and handed to Petitioner, was to supersede his other unsigned/unconsummated correspondence attempting to terminate her under the three days' absence rule. On November 20, 1987, Mr. Loewy obtained a two page letter from Dr. Rawlings (R-6) dated the preceding day. That letter, which Mr. Loewy was unable to pick up at Dr. Rawlings' office in Thomasville, Georgia, until shortly after the 10:00 a.m. November 20 deadline established by Dean Lathrop's November 17 signed memorandum, may be summarized as follows: Dr. Florek, a board certified neurologist had diagnosed Petitioner as having post-concussive syndrome on October 29, 1987. Sometime between November 3 and 6, Dr. Bridges, an opthomologist had diagnosed her eye examination as "essentially within normal limits". With the concurrence of FSU's Motney Gray, Petitioner was scheduled for an MMPI (a psychological assessment), the results of which had not yet been received on the date of Dr. Rawlings' letter, November 19, 1987. She was also scheduled for an MRI (magnetic resonance imaging, a type of x-ray particularly helpful in determining head and soft tissue injuries) which was scheduled for November 24, 1987. Dr. Rawlings confirmed that the Petitioner continued to come to him with the subjective complaints of headaches, blurred vision, and diplopia. The overall tone of his letter is that Dr. Rawlings thought Petitioner could work as of November 19, 1987, although he did not specifically say so. His rather vague summation was, "I have relayed to Mrs. Loewy [on] a number of occasions that I feel this problem will be self limited and that all attempts will be made on my part to not give her any type medication which might be habit forming." (R-6) On his wife's behalf, on November 20, 1987, at approximately 11:30 a.m., Mr. Loewy presented Dr. Rawlings' November 19, 1987 letter in a sealed envelope to Evelyn Ashley, Dean Lathrop's Administrative Assistant, and also gave a copy of it to Nina Mingledorff. Dean Lathrop was not in the workplace that day. During the time he was at Petitioner's workplace on November 20, 1987, Mrs. Ashley presented Mr. Loewy with a request form for a leave of absence without pay. She and others emphasized to him that the completed form must specify a date the Petitioner could return to work, a fact clearly in contention at that point. He was requested to have Petitioner complete the form and return it. He was not told how long Mrs. Loewy would have in which to complete and return the form. From this point forward the testimony is in sharp conflict. It is debatable whether Mr. Loewy was concerned about the effect such a "form" request might have upon his wife's job status or her incipient workers' compensation claim, whether he merely felt she was entitled to leave with pay, or whether he was ever told he could sign the form for his wife. It is clear, however, that Mr. Loewy refused to complete the form on Petitioner's behalf and also refused to take it to her unless he could add a notation to the form that her job would not be jeopardized by requesting such voluntary leave. Having assessed the candor and demeanor of the respective witnesses and the internal and external credibility and consistency or lack thereof of their respective versions of the events and conversations of November 20, 1987, it is found that FSU personnel refused to permit any additions or deletions to the form. They also refused to permit Mr. Loewy to submit a separate explanatory note with regard to the Loewys' position on the subject, even though it was John Goldinger's view at the time of formal hearing that it had always been normal FSU procedure to permit attachments and addendums to other requests for leave without pay. The standard forms requesting leave without pay which were presented by FSU employees to Mr. Loewy therefore were never given to Petitioner, completed by her, or submitted by the Petitioner to the University, although Mr. Loewy was repeatedly told that Petitioner's job would not be held for her unless the forms were filled out and submitted. Dr. Rawlings' November 19 letter (R-6) was not transmitted by his subordinates to Dean Lathrop at or near the time Mr. Loewy submitted it to them. Neither did Chairman Leslie contemporaneously see Exhibit R-6. According to Dr. Leslie, no one below his administrative level had the authority to determine the sufficiency of that "excuse" and the appropriate person to have decided that issue would have been Dean Lathrop. Annette Roberts and John Goldinger agreed that leave requests often went through Dean Lathrop. Although the Dean might not vary duly promulgated rules, the evidence as a whole, including Dean Lathrop's prior informal extension of Petitioner's leave, supports Annette Roberts' assertion that Dean Lathrop had the discretion to either effect the abandonment or increase the grace/leave period he had previously granted Petitioner. Thereafter, Petitioner never did return to work. On Wednesday, November 25, 1987, Dean Lathrop, unaware of the contents of the November 19 letter from Dr. Rawlings, and therefore never having decided on its sufficiency or lack thereof, prepared the following termination letter to Petitioner: You have been absent without leave of absence for 3 or more consecutive workdays . . . [Rule 6C-5.770(2)(a) is quoted] . . . Based on the above stated rule, you are deemed to have resigned from your position. . . effective this date, November 25, 1987 at 10:00 a.m. (R-10) Bracketed material and emphasis provided] It is clear from the foregoing, that regardless of Petitioner's not having submitted any leave without pay request forms, and regardless of Petitioner's nebulous status as to leave after her initial 40 hours disability leave (See Findings of Fact 4-9 supra), Dean Lathrop counted toward implementation of the three days' abandonment rule only the three consecutive "working days" (presumably 24 work hours) elapsing after his own ultimatum time and date of 10:00 a.m., November 20. The Dean's reasoning, as explained by him at formal hearing, was that the Petitioner had not requested a leave of absence. Evelyn Ashley stated that she had told Dean Lathrop both that the doctor's letter (R-6) had been submitted and also that the Dean could do nothing about processing leave for Mrs. Loewy because R-6 had to be attached to a "request for leave form" and that "form" had not been submitted by the Petitioner. Dean Lathrop testified that if he had seen R-6 and still had any doubts of its sufficiency, he probably would have approved leave on the same basis as he had on November 17, at least until he had the opportunity to consult medical personnel further. It was never determined by FSU personnel prior to formal hearing whether the December 19 communication from Dr. Rawlings (R-6) was sufficient under the terms of the Dean's November 17 memorandum granting further leave up to 10:00 a.m., November 20, 1987. As of Friday, November 20, 1987, Petitioner had only 1.7 hours annual leave and 3.5 hours sick leave status to draw upon. After her separation date, Petitioner was paid for 1.7 hours of accrued annual leave; she was not paid for any accumulated sick leave. Subsequently, Petitioner and FSU became embroiled in workers' compensation litigation and entered into a "Stipulation and Joint Petition" which was adopted and approved by an Order of the Deputy Commissioner dated August 8, 1988. (P-3) 1/ Admitted facts found therefrom which are relevant, material, and significant to the instant cause and which are not cumulative to any of the facts found supra, are as follows: . . . She [Petitioner] was scheduled for an MMPI which was done on November 20, 1987. An MRI scan of the brain was done November 23, 1987 and was interpreted as normal. . . . Dr. Bridges examined the Employee [Petitioner herein] on 11/3/87 and found irregular visual fields, more constricted in the right eye, but otherwise normal examination. The employee was then seen by Dr. Thomas J. Perkins who diagnosed occipital syndrome on the right side and recommended treatment by Dr. Seay. . . . The employer/carrier and employee/claimant stipulate and agree that the maximum medical improvement date is April 25, 1988, pursuant to the medical report of Dr. James T. Willis. [Bracketted material provided] It is clear on the record that Motney Gray, FSU's Coordinator for Insurance Risk, informed Dr. Rawlings on several occasions that it was "possible" that workers' compensation would pay for another employee to transport Petitioner from her home in Thomasville, Georgia, to work at FSU in Tallahassee, Florida, but it is not clear that this offer was ever made any more concrete than as a "possibility", and the offer apparently was never made directly to the Petitioner by any representative of FSU. It is clear that, at some point, Dr. Rawlings conveyed this offer to the Petitioner, but it is not clear on the record that this information ever reached Petitioner at any time prior to November 25, 1987 and simultaneously with a period she also was not taking a drug prescribed by some physician. Petitioner was treated, not just by Dr. Rawlings, but by Doctors Florek, Bridges, Seay, Willis, Hogan, and Perkins. At some point in time, Dr. Willis, a chiropractic physician, became Petitioner's primary treating physician. Moreover, it is clear that Dean Lathrop, who was Petitioner's only superior with authority to determine the sufficiency of the letter of certification (R-6), was concerned about Petitioner's ability or inability to drive herself, not whether someone else could or would drive her to work. In addition to the oral communications to Mr. Loewy on November 20, FSU had directly advised Petitioner concerning the general nature of its abandonment rule and of FSU's requirements for prior approval of all leave requests, first by circulating standard informational documents to all employees, and secondly, by its various letters to Petitioner which are described supra. The parties stipulated that in the event abandonment was not proven, any back wages awarded to Petitioner should be subject to all appropriate class pay increases, and should be reduced by the workers' compensation and unemployment compensation already paid to Petitioner, and should be further reduced by any income earned by her.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that a Final Order be entered: Finding Petitioner has not abandoned her position. Reinstating Petitioner to her position. Ordering payment of backpay and emoluments from November 25, 1987, less unemployment and workers compensation paid by Respondent and less mitigation earnings of Petitioner, pursuant to the parties' stipulation. Denying any attorney's fees. DONE and ENTERED in Tallahassee, Leon County, Florida, this 5th day of October, 1989. ELLA JANE P. DAVIS 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 5th day of October, 1989.
Findings Of Fact At all times pertinent to the issues herein, Respondent, Lykes Brothers, Inc. operated a meat packing plant in Plant City, Florida. Hennis Washington, III was employed by Respondent at that plant as a utility worker. Petitioner, Hillsborough County, through its Human Resources and Equal Opportunity Department, had the authority to investigate and administratively enforce County Ordinances relative to unlawful discrimination in employment. Respondent is 5'1/2" tall and weighs about 114 pounds, much the same as at the time in issue. He is a power lifter and claims to be able to lift 405 pounds in a dead lift. He was employed at the Respondent's plant from July, 1991 to May, 1993, when he was terminated in the action which is the subject of this hearing. On May 24, 1993, while in the performance of his duties, Mr. Washington was carrying a stack of empty boxes from one place to another through the plant's bacon curing department. The stack of boxes he was carrying extended above his head and as a result he was unable to see in front of him. As he proceeded down the aisle, he ran into some resistance which prevented him from going further. He changed direction to the side where he could see, and which, he believed, was clear, and again ran into resistance which, this time, caused him to drop the boxes. After the boxes fell, and he could see in front of him, he observed Mr. Romero, a sanitation worker, in front of him, smiling. There is some question whether or not Mr. Romero took a step toward Mr. Washington. At hearing, Mr. Washington said he did and that he felt threatened by Mr. Romero's advance, though at his grievance hearing he did not indicate that. In response, howevever, Mr. Washington moved toward Mr. Romero, a man approximately 5'8" tall and weighing approximately 175 pounds, picked him up, and dropped him on the floor. As a result of that, Mr. Romero claimed to have injured his back and reported to the medical office by which he was released from duty for the evening. After this action, Mr. Washington was terminated from employment with the company. He is of the opinion it was because of his race, but admits he was advised by his supervisor, Mr. Freeman, it was because it was felt he had over- reacted to the situation with Mr. Romero. Nonetheless, an employee action request initiated by Mr. Freeman, dated May 24, 1993 reflected that Mr. Washington was administratively terminated. Administrative termination deals with unauthorized absences, according to the company's Employee Handbook. Mr. Freeman, himself African-American, was not present at the time of the incident, but was informed of it shortly thereafter, and called Mr. Washington to his office. Mr. Washington admitting picking up Mr. Romero, whom he did not previously know, and thereafter dropping him to the floor. Mr. Freeman, after finding out what happened, referred the matter to Mr. Harris, the employee relations manager, who is also African-American. Mr. Freeman did not interview Mr. Romero. He prepared the administrative termination notice upon direction of his supervisors. He claims the termination was based on Mr. Washington's fighting and not on the basis of his race. Mr. Harris, over a period of the next several days, conducted his independent investigation into the incident which investigation included speaking with Mr. Washington, Mr. Romero, and several other witnesses. During this period, both Mr. Washington and Mr. Romero were suspended. Mr. Harris' investigation confirmed there had been an incident, but he could find no evidence that Mr. Romero had pushed the boxes Mr. Washington was carrying. It was for that reason that Mr. Romero was not disciplined. The termination of Mr. Washington was predicated upon the fact that he had been engaged in a fight with another employee. The Respondent's personnel rules indicate that fighting, as opposed to mere horseplay, is a Class I infraction, the punishment for which can include dismissal. It includes the throwing of punches, the use of weapons, and the threat of injury. Horseplay, on the other hand, usually amounts to no more than pushing, tugging, and actions which are not likely to result in injury. In the instant case, Mr. Washington's actions constituted a direct battery of Mr. Romero which resulted in injury. It was, therefore, properly considered fighting. Mr. Harris concluded that Mr. Washington had reacted to the situation improperly. If, as he claimed, Mr. Washington felt he was being harrassed by Mr. Romero and Mr. Barbosa, who was with Mr. Romero at the time of the incident, he should have reported the matter to his supervisor rather than taking matters into his own hands. Employees are given an Employee Handbook when they begin employment with the company, and they are taught, in a four hour orientation course given to all employees, to back off from incidents of this nature - not to fight. Because he felt Mr. Washington had overreacted, Mr. Harris recommended termination, even though a check of both employees' personnel records indicated neither had any previous incidents. At the time of the incident, Lykes had approximtely 750 production maintenance employees, (Mr. Washington's category). Of this number, between 30 and 35 percent were African-American, 15 percent were Hispanic, 5 percent were other minorities, and between 45 and 50 percent white. Mr. Hampton, Lykes' Vice-President for Employee Relations, was made aware of the situation involving Mr. Washington by Mr. Harris, who recommended termination. Mr. Hampton agreed with this recommendation because Mr Washington had thrown Mr. Romero down and injured him. The recommendation for termination was not based on race and was consistent with discipline taken in prior incidents. Specifically, Mr. Hampton referred to a situation occuring not long before the instant case in which two white employees were initially terminated for an altercation they had. In that case, the investigation showed the employees had been fighting and both initially were fired. However, the union filed a grievance. A hearing was held and the decision to terminate was upheld. Thereupon, the union indicated its intent to take the matter to arbitration, and as a result of a meeting held on that issue, it was determined that the incident was more horseplay than fighting and there was little likelihood the company could prevail at arbitration. That conclusion was based on the fact there were no blows struck, there was no injury, and the incident stopped immediately upon the arrival of the supervisor. The employees thereafter were disciplined and reinstated. Mr. Washington also filed a grievance regarding his case. A hearing was held persuant to the union contract. Based on the information presented at the hearing, the grievance committee, made up of two African-American employees and one white employee, concluded there was insufficient evidence to take the issue to arbitration. This committee included the same individuals who heard the previously noted grievance, regarding the white employees. Mr. Washington asserts that because he had been assigned to a position previously held by Mr. Romero, who, he claimed, was demoted from utility to sanitation, Mr. Romero was angry with him and was looking for trouble. The evidence of record indicates that in March, 1993, Mr. Romero was transferred to another position on a different shift from that he was then occupying. The evidence also indicates the position to which Mr. Washington was assigned cannot be considered to be Mr. Romero's old position. Utility and sanitation jobs are, purportedly, on a par. Mr. Washington was assigned to a job identical to that which Mr. Romero had vacated, but on a different shift. Mr. Romero would have had no reason to think Mr. Washington took his job any more than any other utility employee. Further, there is no evidence, save the claim by Mr. Washington, that Mr. Romero acted in a threatening manner. Mr. Glisson, a witness to the incident, indicated the two "tangled". but there was no indication of aggressiveness by Mr. Romero. Taken together, while Washington may have believed Mr. Romero was threatening him, there was insufficient provocation for him to react in the way he did. Under the terms of the Employee Handbook, he should have retreated, and his actions constituted fighting which is grounds for discipline. It is impossible to conclude, from the evidence of record, that the termination of Mr. Washington resulted from anything other than a reaction to his demonstrated misconduct. Only one question remains unanswered. On June 1, 1993, an Employee Action Request was prepared, purporting to administratively terminate Mr. Washington because of fighting on the job and threats of violence. Counsel for the County claims this is an alteration of that action form prepared on May 24, 1993. Both exhibits were photo copies and it is impossible to tell, with certainty, that an alteration occurred. However, a close comparison of the copies leads to the conclusion that the latter dated form is, in reality, an alteration of the former with the dates changed, and an addition of fighting and threats with a direction to remove Mr. Washington from the payroll. No evidence was presented regarding a reason for the alteration, and nothing improper can be legitimately inferred therefrom. Counsel representing Mr. Washington makes reference to the opinion of an Appeals Referee of the Florida Department of Labor and Employment Security, dated July 30, 1993, which, in reversing the determination of the claims examiner in Mr. Washington's unemployment compensation claim, determines that he was not the aggressor in the incident that led to his discharge, and that his involvment was merely for self-protection. The Referee also finds that Mr. Washington's actions could not be viewed as misconduct connected with his work, and he is, therefore, not disqualified for unemployment compensation benefits. The Referee concludes, as a matter of law, that inefficiency, unsatisfactory conduct, and/or good faith errors in judgement or discretion are not to be deemed "misconduct" "within the meaning of the statute, (Chapter 443, Florida Statutes). The finding of the Appeals Referee is not binding on the undersigned in this action. Mr. Washington was deemed by his employers to have, by fighting, overreacted in the confrontation with Mr. Romero. Overreaction can be equated with poor judgement which, in an industry as hazardous as is meat packing, may well serve as appropriate grounds for discharge even if not classified as misconduct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Determination of No Cause be entered by the Hillsborough Human Relations Board concerning the termination from employment of Hennis Washington, III by the Respondent, Lykes Brothers, Inc. RECOMMENDED this 31st day of March, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 31st day of March, 1995. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Accepted and incorporated herein. - 5. Accepted and incorporated herein. & 7. Accepted and incorporated herein. Accepted and incorporated herein. First sentence accepted and incorported herein. Second sentence rejected as a being more a Conclusion of Law than a Finding of Fact. - 12. Accepted and incorporated herein. Irrelevant. Accepted. Accepted. - 17. Accepted. 18. Accepted. FOR THE RESPONDENT: 1. 2. & 3. 4. 5. & 6. Accepted Accepted Accepted Accepted and and and and incorporated incorporated incorporated incorporated herein. herein. herein. herein. 7. - 9. Accepted. 10. & 11. Accepted and incorporated herein. 12. Accepted and incorporated herein. 13. & 14. Accepted and incorporated herein. 15. Accepted and incorporated herein. COPIES FURNISHED: Catherine P. Teti, Esquire Office of the County Attorney Hillsborough County P.O. Box 1110 Tampa, Florida 33601 Michael D. Malfitano, Esquire Malfitano & Campbell, P.A. 101 E. Kennedy Boulevard Suite 1080 P.O. Box 1840 Tampa, Florida 33601-1840 Daniel A. Kleman County Administrator Post Office Box 1110 Tampa, Florida 33601
The Issue Whether the Applicant is entitled to compensation in the amount of $2,500, to pay for "fill dirt" which was installed on the Applicant's real estate in relocating his homestead, after his former homestead was bought as right-of-way for Interstate Highway 75. This claim is under the guise of a relocation appeal, in accordance with the Uniform Relocation Assistance And Real Property Acquisition Policies Act of 1970 (42 USC, 4601 - 4655).
Findings Of Fact In November, 1974, the Florida Department of Transportation paid the Applicant $32,500 in a negotiated purchase for the Applicant's property which was located in the line of construction for Interstate Highway 75. This price was for a mobile home 24' wide and 40' long, with appurtenances to the mobile home, to include a screen room, privacy paneling and carport. Prior to the November, 1974 sale of the property to the Department of Transportation, the Applicant had purchased another parcel of land in late 1973 or early 1974. It was on this parcel of land that was purchased at that time, that the Applicant relocated his home. The amount of payment for the new lot was between $2,800 and $2,900. In order to comply with certain standards of the DeSoto County, Florida Health Department, ten inches of "fill dirt" were required to be implaced to have the septic tank meet requirements for a drain field. The cost of the application of the "fill dirt" was $2,500. The expenditure of $2,500 for "fill dirt" is the item of controversy between the Applicant and the Respondent. The Applicant is claiming that the $2,500 should be reimbursed to him as part of a relocation assistance payment. The Respondent denies that the $2,500 is a proper item of compensation under the governing law on relocation assistance payments. The Respondent's denial is based upon the fact that it believes that "fill dirt" is not a compensable item. More specifically, the Respondent regards the selection of this piece of property by the Applicant as being a matter of choice, which did not have to be made. The Respondent is persuaded that other parcels of property were available, which did not require "fill dirt" to be brought in, in order to comply with health requirements and the Applicant failed to purchase such a parcel, therefore, the Applicant must defray the expense of his selection, in terms of the $2,500 which was spent to bring the property up to health standards. The history of the payments that were made by the Respondent can be derived by the application of the formula utilized. The Respondent looked at three comparable pieces of land , one for $32,500, a second for $28,500 and a third for $32,900. The closest comparable to the home that the Applicant sold, was the comparable listed at $32,500. The Respondent compared these comparable figures with the so called, "carve out" figure of a typical mobile home with equipment, on a typical mobile home site, which would have been a price of $25,721. Based upon this figure for a "carve out", and taking the figure for the closest comparable $32,500, the amount of maximum relocation reimbursement would have been $6,779. This figure is arrived at by subtracting the amount of the "carve out" figure from the closest comparable. In fact the Respondent spent $27,372 for the land purchased and other compensable items, thus entitling him to $1,651 in relocation reimbursement, according to the Respondent's calculations. Although, in the course of the hearing the Applicant was questioned about taking $1,651 as settlement. The Applicant said that he was only interested in the $2,500 figure. It should be stated that the $1,651, is an amount which does not contemplate the payment for "fill dirt". It is in fact a figure arrived at for payment of other items considered to be compensable. The question then becomes one of whether or not the Applicant is entitled to a $2500 payment for "fill dirt" which is not associated with the $1,651 which the Respondent claims the Applicant is entitled to. One final factual comment should be made. That comment is that the Respondent's acquisition and relocation assistance officer, David Nicholson, saw the Applicant's new property after the twenty five hundred dollars worth of fill dirt had been installed. At that time, Mr. Nicholson said that the property appeared to meet the criteria for a decent, safe and sanitary dwelling. The witness, Nicholson had not seen the property prior to the installation of the "fill dirt". Consequently, the Respondent can not challenge the statement by the Applicant to the effect that the "fill dirt" was necessary in order to achieve a decent, safe and sanitary dwelling.
Recommendation It is recommended that the Respondent deny the payment of $2,500 to the Applicant for installation of "fill dirt" at the Applicant's present homesite. DONE and ENTERED this 4th day of April, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Herman A. Beyer Post Office Box 382 Punta Gorda, Florida 33950 Philip S. Bennett, Esquire Office of Legal Operations Department of Transportation 605 Suwannee Street Haydon Burns Building Tallahassee, Florida 32304
The Issue The issues are: (1) Whether Petitioner's Amended Charge of Discrimination should be dismissed as time barred; and Whether Petitioner, Susan Indish-Militello (formerly known as Susan Indish and referred to herein as “Petitioner”) was discriminated against in violation of the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record of the proceeding, the following findings of fact are made: Petitioner, Susan Indish-Militello, is a resident of Marion County, Florida. Respondent, Pinellas Suncoast Transit Authority ("PSTA"), is a transit agency located in Pinellas County, Florida and is an employer under the FCRA. Petitioner was employed by Respondent, as a bus operator, beginning in 1989 until September 8, 1994. Petitioner was involved in a work-related bus accident on May 2, 1994, and as a result, she suffered neck and back injuries. Petitioner’s injuries were evaluated by Petitioner’s treating physician Dr. Jeffrey Tedder on May 4, 1994. On May 19, 1994, Dr. Tedder issued a note releasing Petitioner to return to full work duty on May 29, 1994. Petitioner did not to return to work on May 29, 1994, and utilized vacation and sick leave for approximately the next three weeks. During this time, a second medical evaluation was performed by Dr. Joseph Sena. Dr. Sena issued a report on June 9, 1994, stating that he was unable to substantiate any objective findings which would warrant Petitioner being out from work. Respondent informed Petitioner that she had been released to work by both Dr. Tedder and Dr. Sena. Petitioner returned to work in late June 1994 and worked until July 18, 1994. Petitioner exhausted her sick leave on July 19, 1994. When Petitioner then again failed to return to work, on August 12, 1994, Respondent’s General Counsel sent Petitioner a letter by certified mail advising her that all her sick leave had been exhausted and that in accordance with the Family and Medical Leave Act and PSTA’s Labor Agreement with the bus operators’ union, Petitioner was required to provide medical certification establishing a qualifying reason for leave within 15 days. The letter also required Petitioner to provide an expected date of return to work. Finally, the letter stated that failure to provide medical certification would subject Petitioner to discipline up to and including termination. The Labor Agreement between the PSTA and its employees is applicable to Petitioner. Petitioner acknowledged that she received a copy of the Labor Agreement. Article 15 of the Labor Agreement, titled "Leave Without Pay" provides in pertinent part the following: Section 8. Failure to return to work at the expiration of approved leave shall be considered absence without leave and grounds for dismissal. * * * Section 13. Leave of Absence - Illness * * * B. All leaves of absence without pay for illness shall be supported and confirmed by a medical certificate executed by a doctor. Petitioner forwarded to Respondent a note dated August 17, 1994, from Rev. Dona Knight, a minister, which claimed that Petitioner was “in extreme distress with sucidal [sic] tendencies and sevare [sic] depression.” This document, however, did not state an opinion regarding Petitioner’s ability to work nor did it provide an expected date of return. In response to the aforementioned note, Respondent’s benefits specialist informed Petitioner that the document was inadequate and that she was required to provide proper medical certification. Notwithstanding this request, Petitioner failed to provide any medical documentation indicating a qualifying reason for her unexcused absence from work or an expected date of return. As a result of Petitioner's failing to provide the required documentation, Respondent terminated Petitioner's employment on September 8, 1994, in accordance with the Labor Agreement and PSTA attendance policy. After her termination, Petitioner filed a grievance disputing the termination, and a first-step hearing was held before PSTA’s deputy of operations, Ed King. Mr. King denied Petitioner’s grievance and upheld the termination. Thereafter, Petitioner filed a second-step grievance, and a hearing was held before PSTA's executive director, Roger Sweeney, on October 17 and October 31, 1994. At the hearing, Petitioner did not provide any medical documentation or request any reasonable accommodation for any alleged handicap or disability. Therefore, Mr. Sweeny denied the second step grievance, and the termination was again upheld. Following the grievance hearings, Petitioner filed a request for arbitration in accordance with the PSTA's Labor Agreement. An arbitration hearing was held on October 11, 1996, at which Petitioner was represented by counsel. After the hearing, the arbitrator found that Respondent had just cause to terminate Petitioner based on her failure to provide medical documentation for her continued absence from work. After being terminated, Petitioner also filed a claim for unemployment compensation which was denied by a claims examiner on or about October 6, 1994. Petitioner then appealed this decision and a hearing on the appeal was held by an Appeals Referee, where Petitioner was again represented by counsel. Based on the evidence presented at the hearing, the Appeals Referee found that given the length of time Petitioner was absent from work, it was not unreasonable for Respondent to expect her to provide medical certification for her continued absence. The Appeals Referee further found that the statement from Rev. Knight was not a medical document and gave no assessment of Petitioner’s ability to resume her duties as a bus driver. The Appeals Referee concluded that Petitioner’s failure to provide the requested medical documentation was an intentional violation of her duties and obligations to Respondent and amounted to misconduct connected with work and, thus, found that Petitioner was properly disqualified from receipt of unemployment compensation benefits. Petitioner filed a Charge of Discrimination with the Florida Commission on Human Relations on or about July 11, 1995, alleging that Respondent had discriminated against her based on her handicap. The Charge of Discrimination did not give any "particulars" regarding the alleged discrimination, but indicated that the most recent discrimination took place on September 8, 1994. On or about July 20, 1999, Petitioner filed an Amended Charge of Discrimination, again alleging that Respondent had discriminated against her based on her disability. In the Amended Charge, Petitioner alleged that on September 8, 1994, she was terminated as a bus driver. She further noted that the "most recent or continuing discrimination took place" on September 8, 1994. Under the section of the charging document referred to as "Discrimination Statement," Petitioner stated the following: I have been discriminated against because of my handicap. I believe my rights have been violated under the American with Disabilities Act and the Florida Civil Rights Act of 1992 as amended. 1. I was not reasonably accommodated. By August 12, 1994, and prior to her termination, Petitioner had relocated her residence to Marion County, Florida. Petitioner presented no evidence to establish that she suffered from any handicap or disability under the terms of the FCRA, that she required or requested reasonable accommodations to perform her duties, or that her termination by Respondent was based upon or influenced by any alleged disability.
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner's Amended Charge of Discrimination be dismissed with prejudice. DONE AND ENTERED this 25th day of October, 2002, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 25th day of October, 2002. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Susan Indish-Militello 2835 North Seneca Point Crystal River, Florida 34429 Alan S. Zimmet, Esquire Elita D. Cobbs, Esquire Zimmet, Unice, Salzman & Feldman, P.A. Two Prestige Place 2650 McCormick Drive, Suite 100 Clearwater, Florida 33759 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Petitioner rented the residence at 1881 Northwest 27th Avenue, Miami, Florida (displaced residence), where he lived with his wife and four children for four years prior to being displaced by Respondent in 1990. The displaced residence was approximately 1100 square feet of livable space and contained two bedrooms and two baths. Petitioner owned an import business which imported baby strollers from outside the United States for resale in the United States. Petitioner used approximately 150 square feet of space in one of the rooms of the displaced residence to store these baby strollers. William Sawyer was the owner of the displaced residence and the real property on which it was situated. Mr. Sawyer rented the residence to Petitioner and his wife pursuant to a lease dated July 2, 1986. The monthly rental for the residence was $475.00 (which was later verbally increased to $500.00). In addition to the residence, the property on which the displaced residence was located contained approximately 100 feet of frontage on the south side of the Miami River with a dock that was capable of mooring seagoing vessels. The property also contained a small warehouse. Pertinent to this proceeding, the lease contained the following provisions: #10. It is understood by Tenant that Landlord must have access through Drive-Way to Warehouse Building on property and that some of Landlord's equipment may be stored on property. #11. It is further understood and agreed by Tenants that Warehouse Building and all Dock Space area of property is reserved for the exclusive use and purposes of Landlord & free access to same is to be granted by Tenants at all times. Said Warehouse & Dock Space may be rented out by Landlord as he sees fit. Respondent purchased the subject property from Mr. Sawyer1/ in order to widen Northwest 27th Avenue, Miami, Florida, as part of a federally funded project. Petitioner was displaced from his residence and became entitled to relocation benefits provided by the Federal Uniform Relocation Assistance Program, 49 CFR 24. The program, as it pertains to projects within the State of Florida, is administered by Respondent. Under the relocation program, Respondent is required to locate a functionally equivalent replacement dwelling taking into consideration the needs and the life-styles of the persons being displaced. The amount of the relocation benefits is calculated pursuant to a formula by which the difference between the rent and utilities for the original residence and the rent and utilities for the replacement residence is determined and thereafter multiplied by 42. Respondent calculated the benefits to which Petitioner was entitled as being in the amount of $23,821.14. Petitioner accepted that amount under protest and reserved his right to challenge in these proceedings his right to additional benefits, contending that the replacement residence was not functionally equivalent to the Sawyer property for two reasons: First, the replacement residence did not have access to deep water. Second, zoning of the replacement residence did not permit the operation of his import business from his home as did the Sawyer property.2/ Petitioner's testimony that he was initially attracted to the displaced residence because its zoning permitted him to operate his business from his residence and because of the river frontage is found to be credible and is accepted. At all times pertinent to this proceeding, Petitioner owned a steel- hulled sailboat that is 70 feet in length and 20 feet in beam. The river frontage adjacent to the Sawyer property was important to Petitioner because it gave him deep water access and protection during the hurricane season. The river frontage provided security for his boat and allowed him quick and easy access to it. The depth of the river at the Sawyer property was approximately 10 feet and was sufficient depth for Petitioner's boat. Petitioner could have sailed his boat from the Sawyer property into the Atlantic. For one month in either late 1987 or early 1988, Petitioner rented the dock from Mr. Sawyer at the rate of $270.00 per month. Petitioner did not lease the dock from Mr. Sawyer or have the right to moor his sailboat at the dock at any time other than the one-month period in late 1987 or early 1988. At least during part of the time Petitioner resided at the Sawyer property, the sailboat was moored approximately 150 yards from the Sawyer property where it was undergoing a complete overhaul of its masts. The work that was being done on the sailboat could not have been done at the Sawyer property because there was insufficient access for the heavy-duty crane that was required for the work. Although Petitioner testified that he could have rented the dock at any time he wanted at the rate of $270.00 per month, and that he intended to rent the dock from Mr. Sawyer after extensive repairs had been made to his boat, there was no evidence that Petitioner actually used the dock at the times pertinent hereto or that he had the right to use the dock. Petitioner's ownership of the boat was an important part of his and his family's life-style. Petitioner had built the sailboat himself, he had invested considerable sums in the boat, he and his family had traveled extensively on the boat, and he and his family had lived on the boat at one time. When Respondent's displacement specialist first met with Petitioner, Petitioner was informed that the river frontage would be included in calculating the displacement benefits.3/ The river frontage of the displaced residence was considered by Respondent to be water view only since Petitioner had no legal right to use the frontage and because Petitioner was not in fact using the dock. The zoning of the displaced residence permitted Petitioner to operate his import business from the residence. This business consisted of importing items, such as baby strollers, from out of the United States for resale in the United States. Petitioner utilized approximately 150 square feet of the space of the displaced residence to store those items from time to time. Petitioner located a dwelling that Respondent used as the replacement dwelling in calculating the benefits that were paid to Petitioner. Petitioner used the benefits he received from Respondent as a down-payment on his purchase of that dwelling. All comparables considered by Respondent in determining the displacement benefits to which Petitioner was entitled, including the replacement dwelling purchased by Petitioner, had water view. The replacement dwelling purchased by Petitioner has no access to deep water on which he can sail his boat. The zoning of the replacement dwelling purchased by Petitioner does not permit the operation of Petitioner's business from the residence. The replacement dwelling, as compared to the displaced dwelling, is larger (1,400 square feet vs. 1,100 square feet), has more bedrooms (3 vs. 2), and has more total rooms (9 vs. 6). The replacement dwelling also has a garage and a screen porch whereas the displaced residence did not. Respondent established that Petitioner has been properly compensated for the displacement if Petitioner's claims for additional compensation are rejected.4/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which finds that Petitioner was properly compensated under the relocation program and which denies Petitioner's appeal. DONE AND ORDERED this 9th day of July, 1992, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 9th day of July, 1992.
The Issue Does the Division of Administrative Hearings have jurisdiction of this housing discrimination petition?
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition herein. DONE AND ENTERED this 18th day of January, 2005, in Tallahassee, Leon County, Florida. S ELLA JANE P. 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 18th day of January, 2005.
