The Issue The issues in this case are whether Respondent violated sections 497.152(1)(a) and 497.152(4)(h), Florida Statutes (2008 and 2009); section 497.146, Florida Statutes (2009); sections 497.152(5)(b) and 497.152(5)(g), Florida Statutes (2008);2/ and Florida Administrative Code Rule 69K-21.055, and, if so, what discipline should be imposed.
Findings Of Fact Mr. Singleton has been licensed by the Department as a funeral director and embalmer since December 15, 1997. His license number is F043742. On August 26, 2008, the Department entered a Final Order finding Mr. Singleton guilty of the violations alleged in the administrative complaint, In the Matter of: Tebbie Singleton (License Number F043742), Case No. 95046-08-FC. The Department imposed the following penalty: Respondent [Mr. Singleton] shall pay an administrative fine in the amount of $5,000. Said fine shall be paid within ninety (90) days of the date of the filing of this Final Order. The fine shall be paid by cashier's check or money order payable to the Board of Funeral, Cemetery, and Consumer Services and delivered to the Board office at the Department of Financial Services, Board of Funeral, Cemetery and Consumer Services, 200 East Gaines Street, Tallahassee 32399. In addition, Respondent is required to pay interest on the fine due to the Board at a rate of 11% per annum, beginning on the ninety-first (91st) day after the issuance of this Final Oder. Respondent is placed on probation for a period of one year. Respondent must attend an in-person meeting of the Board at the last scheduled meeting prior to the expiration of the one year probation. Respondent must notify the Division Director of his intent to attend no less than one month prior to the meeting. Respondent shall demonstrate compliance with the Order and demonstrate by testimony, presentation of letters, or recommendation from individuals within the industry, or other indicia of rehabilitation, that Respondent is able to resume practicing with reasonable care and safety and is in compliance with the laws of the State of Florida and rules of this Board. Mr. Singleton failed to pay the fine within 90 days of the issuance of the Final Order. On December 22, 2008, the Department entered a Notice of Intent to Enter Emergency Order of Suspension, advising Mr. Singleton that if he did not comply with the Final Order issued on August 26, 2008, that his license would be suspended. Mr. Singleton sent a check in the amount of $6,340.00 and dated January 17, 2011, to the Department. The check was drawn on the account of Betty Miller (Ms. Miller), who was a friend of Mr. Singleton's mother. At the top of the check was handwritten: "Tebbie Singleton, 9506 Fieldview Drive, Thonotosassa, Florida 33592, 850-577-6500." Mr. Singleton claims that neither he nor Ms. Miller wrote the address on the check, which was a starter check. The address that appeared on the check was an address at which Mr. Singleton had previously lived. Mr. Singleton's testimony that neither he nor Ms. Miller wrote the address on the check is not credible. The Department had no record prior to the receipt of the check that Mr. Singleton had ever resided at that address. Ms. Miller's check was returned for insufficient funds. Mr. Singleton explained that Ms. Miller, a 72-year-old woman, had her Social Security check deposited in the account and that the money was used for bills so the account was overdrawn. As of the date of the final hearing, Mr. Singleton had not paid the fine. On January 21, 2009, the Department entered an Emergency Order of Suspension because Mr. Singleton had failed to pay the administrative fine of $5,000.00 as required by the Final Order issued on August 26, 2008. The Emergency Order of Suspension provides: IT IS THERERFORE ORDERED that all licenses, appointments and eligibility for licensure heretofore issued to Licensee, Tebbie Singleton, within the purview of the Department, are hereby SUSPENDED. You, TEBBIE SINGELTON, shall return your license to the Division of Funeral, Cemetery and Consumer Services within ten (10) days of the issuance of the suspension. Your, TEBBIE SINGLETON'S, licenses shall not thereafter be reinstated except upon written request by you. Reinstatement shall be conditioned upon your compliance with all terms of the Final Order, including payment of the administrative fine and upon compliance with the terms of this suspension. This suspension shall terminate upon notice by the Department to the licensee that the Department has received satisfactory evidence that the licensee has come into compliance with the Board's order. The Department shall promptly provide said notice to the licensee upon receipt of such evidence. During the period of suspension, you, TEBBIE SINGLETON, shall not engage in or attempt or profess to engage in any transaction or business for which a license or appointment is required under the Florida Funeral, Cemetery and Consumer Services Act. Mr. Singleton has had odd jobs since the Final Order imposing the fine, but Mr. Singleton has made no effort to make even minimal payments on the fine. Instead, he tries to get friends to help him pay his fine. He intends to get married later on this year and thinks that his fiancée's family will help him pay the fine. As of the date of this Recommended Order, nothing has been submitted by Mr. Singleton that the fine has been paid. He did state in his post-hearing submittal that he had not paid the fine, but that he would be paying the fine within the next few days. Prior to June 7, 2007, Mr. Singleton had provided the Department with the following address for himself: 5607 North Armenia Avenue, Tampa, Florida 33609. He changed his address on June 7, 2007, to 8551 Manassas Road, Tampa, Florida 33635. On or about August 3, 2009, Kurt Schuler, a financial specialist with the Department, sent a letter to Mr. Singleton notifying him of an investigation concerning allegations of his unlicensed practice. The letter was sent to the Manassas Road address, but was returned by the United States Postal Service as "unable to forward." On October 8, 2009, Mr. Singleton filed a license renewal with the Department and changed his preferred mailing address to "5108 Mission Hill Drive, # 332, Tampa, Florida 33617." He had been living at the "5108 Mission Hill Drive" address since sometime in December 2008. No evidence was presented concerning the allegations of practicing with a suspended license as set forth in Count II of the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Mr. Singleton violated sections 497.152(1)(a), 497.152(4)(h), and 497.146 and rule 69K-21.055; finding that Mr. Singleton did not violate sections 497.152(5)(b) and 497.152(5)(g); imposing an administrative fine of $2,500.00; suspending his license until he becomes complaint with the Final Order issued on August 26, 2008, and the payment of the fine imposed in this case; and placing him on probation for two years after his suspension is lifted. DONE AND ENTERED this 19th day of July, 2011, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 19th day of July, 2011.
The Issue The issues are whether Respondent, Avante at Mount Dora, committed an unlawful employment practice under section 760.10, Florida Statutes (2011),1/ by discriminating against Petitioner, Bibi Qualander, on the basis of race, national origin, and/or age, and, if so, what remedy should be ordered.
Findings Of Fact Respondent is a Florida-licensed skilled nursing health care facility located in Mount Dora, Florida, taking care of short-term rehabilitation patients and long-term care residents. Respondent is a 120-bed facility, and it is optimal to have 100 percent occupancy. Respondent, through its various employees, develops positive relationships with doctors and hospitals in the area in an attempt to maintain a high occupancy rate. Respondent employs approximately 125 employees. Between 10 to 20 percent of the employees are between the ages of 61 and 75 years of age, and between 60 to 70 percent are non-white. Ms. Qualander is a 63-year-old female. Ms. Qualander is of East Indian origin, having been born in Guyana, South America.8/ Ms. Qualander's family descendants can be traced back five generations to Guyana. At the time of her termination (September 2011) from Respondent, Ms. Qualander was 62 years old. Ms. Qualander was hired by Respondent as its social services director (director) in July 2011. Prior to serving as Respondent's director, Ms. Qualander worked as the social services assistant (assistant) for approximately 29 months. Ms. Qualander received an employee handbook when she was originally hired as an assistant in February 2009. Although the handbook was updated in 2011, it remains unclear when or if Ms. Qualander received the updated version. However, the policy in the handbook she received was consistent with the updated version in that, should an employee commit a critical offense that could be detrimental to Respondent, termination was an option as discipline. Ms. Qualander was provided a copy of the director's job description. Therein, Respondent listed the education and experience it required for the job as: A Bachelor's Degree in Social Work or in Human Services but not limited to Sociology, Psychology or Rehabilitation Counseling. Minimum of 3 years experience in Long Term Care. At least 1 year supervised Social Work experience in a Health Care setting working directly with individuals. Ms. Qualander did not and does not have a bachelor's degree in any of the listed degrees. Despite Ms. Qualander's insistence that the state regulation for a nursing home with 120 persons or less does not require a bachelor degree, Ms. Qualander conceded that Respondent's job description did require such a degree. On July 12, 2011,9/ the day before Ms. Qualander became Respondent's director, she executed and dated the following statement at the end of the specific job description for the position: I understand the job description and its requirements. I understand that it is not an exclusive list of the job functions and that I am expected to complete all duties as assigned. I understand the job function may be altered by management without notice. I understand that this job description in no way constitutes and [sic] employment agreement and that I am an at will employee. Kay Campbell is the intake nurse for Florida Hospital Waterman (Waterman). It is her responsibility to manage the incoming referrals for Waterman's home health referral agency. Part of her job duties include answering telephone inquiries regarding whether or not Waterman home health services have and/or can provide the necessary home health services for a prospective patient. Cheryl Pait is the internal admission coordinator for Respondent. Ms. Pait has held this position for almost seven years. She prepares a monthly report which documents where Respondent's patients come from and where they go upon discharge. Respondent receives approximately 90 to 95 percent of its referrals from Waterman. Larry Mann is the administrator for Respondent, having been hired in August 2011. He is responsible for Respondent's daily operations and has the ability to hire and fire personnel as needed or required by Respondent's policies and procedures. At some time in mid-September 2011, Ms. Qualander called Ms. Campbell to arrange for continued home health care services for a patient who was being discharged from Respondent. Ms. Qualander was placed on hold for approximately ten minutes. Ms. Campbell credibly testified that, when she answered the telephone, Ms. Qualander, in essence, stated that, if she were placed on hold again, she would call a different agency for home health care services. Ms. Campbell found the call to be one of the rudest exchanges she'd had in nearly 30 years of home health care service. Shortly thereafter, Ms. Campbell relayed this telephone exchange to Ms. Pait, a family member, during a chance meeting at a local grocery store. On September 16, 2011, Ms. Pait memorialized her conversation with Ms. Campbell and submitted it to Mr. Mann. Ms. Pait was not aware of what the consequences would be as a result of her memorializing the Campbell/Qualander telephone conversation. Ms. Pait was more concerned about Respondent's possible loss of Waterman referrals and felt someone should talk to Ms. Qualander. Mr. Mann contacted Ms. Campbell to confirm the events of the Campbell/Qualander telephone conversation as memorialized. Mr. Mann determined Ms. Qualander's actions to be of a critical nature that warranted termination. Prior to taking that action, Mr. Mann reviewed Ms. Qualander's personnel folder for any past issues. In the two performance appraisals, Ms. Qualander was noted to have communication issues that needed improvement. While Ms. Qualander was employed with Respondent, she never complained about any form of discrimination from other employees of Respondent. Ms. Qualander claimed that she was discriminated against because she was replaced by a younger white female, who was the only one considered for the job. There was no evidence presented as to the age of the replacement or the exact time the replacement became Respondent's new director. Mr. Mann interviewed three or four applicants prior to speaking with Ms. Qualander's eventual replacement, Shelly Rogers. Ms. Rogers was hired from a sister facility, Avante at Leesburg, where she was working as its social services director. Further, Ms. Rogers met the job description requirements. There was discussion regarding two other employees: Robert Zipperer and Candy Towers. Mr. Zipperer, a white male, served as Respondent's director prior to Ms. Qualander. Although Ms. Qualander alleged that Mr. Zipperer was accused of assaulting someone on Respondent's grounds, no evidence was provided to substantiate that allegation, and Mr. Zipperer denied it. Ms. Towers was a nursing supervisor who was alleged to have been arrested on Respondent's grounds for some kind of narcotic violation. Again, no evidence was provided to substantiate the allegation. Ms. Qualander believes that she had been discriminated against because of her race, national origin, and/or her age. She believes that she has been discharged because she is non- Caucasian and older than her replacement. There was no credible evidence presented to support the claim that Ms. Qualander's age or national origin had anything to do with her termination. Ms. Qualander was discharged from Respondent based on one critical violation of conduct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations DISMISSING the Petition for Relief filed by Bibi Qualander. DONE AND ENTERED this 17th day of December, 2012, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 17th day of December, 2012.
Findings Of Fact On September 9, 1985, Petitioner, United Health, Inc. (United, Petitioner), requested a formal hearing regarding certain Medicaid audit adjustments. This request for formal hearing was addressed to Roy McCaslin at the Department of Health and Rehabilitative Services and was sent by certified mail on the morning of September 9, 1985. Although the petition for formal hearing was sent by certified mail, no date of delivery to DHRS was entered on the corresponding return receipt, which was returned to the Petitioner. The return receipt was signed by Gay N. Schwall, a secretary employed in the Office of Audit Services of the Department of Health and Rehabilitative Services. Ms. Schwall had no memory of signing the return receipt and no memory of receiving the request for formal administrative hearing. Although Ms. Schwall testified that the mail was "usually" date- stamped on the same date it was received in her office, she had no recollection of date stamping the request for hearing. She was also unable to recall whether she was actually working on that particular day as opposed to being on vacation and represented that she was unable to recall, without looking at her "time sheet", on what day she had taken vacation time. In any event, she was unable to establish that she was working in her office on the day the request was date stamped as being received in her office. Mr. McCaslin, Ms. Schwall's supervisor in the Office of Audit Services, had no memory of when he actually received the hearing request and had no personal knowledge of when the request wads actually received in his office. Mr. McCaslin was on personal leave for the period of time from September 6 through September 18, 1985. He had no knowledge of whether Ms. Schwall was actually in the office on September 11, 1985, the date the Petitioner maintains the petition was received by the Department as opposed to the date stamped on the face of the petition by Department personnel, which is September 12, 1985, and ostensibly the date of receipt by the Office of Audit Services. According to Mr. Joseph Robinson, the DHRS mail room supervisor, all mail addressed to the Department and to its employees comes through a central mail room. It is distributed from there to the addressee office or individual. Although certified mail is delivered regularly at the DHRS post office, the post office sometimes mistakenly sends certified mail through the regular morning non-certified mail delivery to individual offices. The certified mail can thus erroneously go through the regular mail channels for delivery without being processed as certified mail. All certified letters normally coming through the mail room are signed by either Mr. Robinson or other mail room personnel. Ms. Gay Schwall, secretary in the Office of Audit Services, does not typically sign receipts for certified mail. If, however, certified mail is mistakenly put in the regular mail delivery, then it would likely be signed by a person in the ultimate addressee office instead of in the mail room, which would be the normal practice if the certified mail was properly routed. If a piece of certified mail is delivered to the DHRS mail room, the corresponding certified return receipt is usually taken off before the postman leaves. This is because the postman delivers the certified mail and it is much more convenient for him to stand by briefly while mail room personnel execute the return receipt and hand it back to him for the postal records, rather than possibly requiring a postal employee to make an extra trip to the Department's mail room to pick up return receipts if they had to be routed to the individual addressee offices for signature before the receipt could be returned. Thus, since the certified mail receipt for the instant petition was signed in the addressee office by Ms. Schwall instead of by mail room personnel, it is apparent that the certified mail in question, the petition, did not receive the normal rapid handling accorded certified mail but was rather treated as regular mail. Since the signature on the return receipt in question was signed by Ms. Schwall and not by an employee in the mail room, it is quite likely that this petition was indeed not treated as certified mail, which is normally delivered the same day, but as regular mail, which may go to the addressee office on the same day and, equally, likely might not be delivered until the next day. Indeed, if a piece of certified mail comes into the DHRS mail room after 3:30 in the afternoon, even certified mail is typically not received in the addressee office of DHRS until the following day. Concerning the possibility that a piece of certified mail might not be delivered to the addressee on the same day it is received in the mail room, Mr. Robinson testified: Q: Mr. Robinson, are you aware of any instances where a piece of certified mail has been received in the mail room and then not delivered to the subunit or the sub-office of HRS until the following day? A: Yes, I am aware of that. On at least two occasions during late 1985, the Petitioner filed formal request for hearing with DHRS contesting Medicaid audit adjustments. In both of those instances, the date of receipt stamped on the face of the request for hearing is a later date than the date on the return receipt, which latter date indicates the date the letter was actually received in the DHRS mail room at the agency to which it was directed. In one of those instances, the request for hearing was received by Mr. Robinson, in the mail room, on November 4, 1985, and then was date stamped as received in the subunit of DHRS on November 5, 1985. In another case, the request for hearing was received by Mr. Robinson, in the mail room, on October 25, 1985, and then was date stamped in the office of DHRS to which it was directed or addressed, on October 28, 1985. Mr. McCaslin agreed that it is entirely possible that the petition for hearing herein could have been received in his office on September 11, 1985, in which case it would be timely filed. Indeed, as acknowledged by Mr. McCaslin, receipt in the DHRS mail room of a petition for hearing would be equivalent to receipt by the Department pursuant to Rule 10-2.36, Florida Administrative Code, and certainly if the petition was received in the mail room on September 11, 1985, it would be a timely filed petition. The Petitioner offered, and had received, Exhibit 7, which is a copy of the Office of Audit Services file for G & J Investments Corporation. A review of the pleadings and correspondence in that file reveal that in that past instance, receipt of a petition for hearing by the DHRS mail room was treated as the date of receipt of the petition by the Department. In that case, the nursing home provider received the audited cost reports and notification of its right to request a hearing on March 28, 1983. The resulting request for hearing was received in the Office of Audit Services on April 28, 1983. The Department then advised G & J Investments Corporation that its request for hearing was to be dismissed as untimely and an appeal ensued. Subsequent to the filing of the appeal, it was determined that the request for hearing, in that instance, was actually received in the mail room a day earlier than receipt by the Office of Audit Services, thus it was received in the mail room on April 27, 1983. Because of this determination, the request for hearing was forwarded to the Division of Administrative Hearings by DHRS voluntarily. Petitioner's Exhibits 8, 9 and 10 reveal a similar instance involving Diversicare Corporation, Southern Pines Nursing Center. That situation involved an application for a formal administrative hearing by that entity wherein its request for hearing was received in the office of audit services of the Department on December 12, 1985, more than thirty (30) days after notification of the audit adjustment; that is, notice of intended agency action. The request for hearing filed by Southern Pines Nursing Center, over thirty (30) days from the date of notification, was referred to the Division of Administrative Hearings and is currently pending before a Hearing Officer. If the Petitioner's request for hearing in the instant case is denied, it will lose its ability to contest the audit of its nursing homes which will result in a reduction in the reimbursement paid to the Petitioner under its Medicaid provider contract. The resultant reduction- in payment to the Petitioner could be in excess of $200,000.00.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, the Hearing Officer concludes that the Department of Health and Rehabilitative Services has failed to establish a basis for denial of the Petitioner's request for hearing. Accordingly, it is RECOMMENDED: That Petitioner be granted a formal administrative proceeding, pursuant to Section 120.57(1), Florida Statutes, for the purpose of contesting the Medicaid audit adjustments proposed by the Department of Health and Rehabilitative Services. DONE and ORDERED this 17th day of September 1986 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 17th day of September 1986. APPENDIX PETITIONER'S PROPOSED FINDINGS OF FACT Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. RESPONDENT'S PROPOSED FINDINGS OF FACT Accepted, but not dispositive of the ultimate issue presented. Accepted, but not dispositive of the ultimate issue presented. Accepted, but not dispositive of the ultimate issue presented. Accepted as to testimony of normal agency practice, but not as establishing the material fact in issue. Rejected as not in accord with the greater weight of the testimony inevident. Rejected for the above reason; for the further reason, that the considerations expressed in this paragraph are not relevant and for the further reason that they do not constitute proposed findings of fact. Accepted as to the first sentence; the remainder constitutes argument as to the import of evidence. COPIES FURNISHED: W. David Watkins, Esquire and Eleanor A. Joseph, Esquire OERTEL & HOFFMAN, P.A. Post Office Box 6507 Tallahassee, Florida 32314-6507 Stephen J. Stolting, Esquire and Theodore E. Mack, Esquire Department of Health and Rehabilitative Services Building One, Room 407 1323 Winewood Boulevard Tallahassee, Florida 32301 William Page, Jr., Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Steven W. Huss, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue The issues under consideration result from the attempt by Holt Publishing Company (Petitioner) to gain refund of sales tax paid to the State of Florida. That refund is sought from the State of Florida, Office of the Comptroller (Respondent). The theory of the pursuit of the tax claim is set forth in Section 212.08(6), Florida Statutes, in which there is provided an exemption from sales tax associated with the sale of newspapers. In this connection, the question is raised, whether Petitioner is a newspaper within the meaning of Rule 12A-1.08, Florida Administrative Code, in effect at the time that the refund was requested.
Findings Of Fact Petitioner, by this action, seeks a refund from Respondent for the payment of sales tax related to the cost of printing for the publications known as the Jax Air News and Air Winger. As publisher, Petitioner sought the refund in keeping with Section 215.26, Florida Statutes. The request dates from September 25, 1985. This application for refund is premised upon the Petitioner's belief that it is entitled to refund in that the Jax Air News and Air Winger are newspapers within the meaning of Rule 12A-1.08(3), Florida Administrative Code, and as such are exempt from taxation associated with the cost of printing the publications. The statement of law dealing with exemptions from sales tax pertaining to newspapers is set forth in Section 212.08(6), Florida Statutes. Petitioner finds solace in the decision of Campus Communications vs. Dept. of Revenue, 473 So.2d 1290 (Fla. 1985). Petitioner believes the finding in that case in which the Florida Supreme Court upheld the claims of the publication, The Independent Florida Alligator, because it was a a newspaper by definition found in the aforementioned rule and entitled to be exempt from sales tax requirements, applies to Petitioner's circumstance. The amount of refund claimed is $25,675.01. Having considered the request for refund, and being mindful of the case of Campus Communications, supra, Respondent denied the refund request upon the expressed belief that the Jax Air News and Air Winger are not newspapers within the meaning of Rule 12A- 1.08(3), Florida Administrative Code. This statement of denial dates from May 2, 1986. Petitioner made timely application for the tax refund in question and has sought timely review of the Respondent's intent to deny that refund request. The Jax Air News and Air Winger are civilian enterprise newspapers for the special interests of personnel of the United States Naval Air Station and Cecil Field, Jacksonville, Florida. However, they do solicit and contain news items of general interest to the community. The testimony of the witnesses and the documentary evidence, including the issues of Jax Air News and Air Winger which were admitted into evidence, establish that Jax Air News and Air Winger are published under a contract between Petitioner and the United States Navy. The publications are distributed free of charge to naval personnel at the Naval Air Station and Cecil Field, Jacksonville, Florida. In addition to distribution throughout the Naval Air Station and Cecil Field, they are available and are distributed to civilian employees of the United States Navy both on and off the bases, and also to military dependents and visitors both on and off the bases. Jax Air News and Air Winger are also delivered to off-base residences and are available at the offices of Holt Publishing Company where members of the Jacksonville westside community may obtain them. The directly affected communities served by and which constitute the audiences of the Jax Air News and Air Winger are the United States Naval Air Station and Cecil Field, Jacksonville, Florida. The surrounding area geographically known as the westside of Jacksonville, Florida, is also served. The communities served by Jax Air News and Air Winger are composed not only of naval personnel and their dependents and civilian naval employees, but also include persons who have no direct connection to the Navy. These are westside residents who are affected by the naval presence in the westside area and in the Jacksonville metropolitan area as a whole. Mr. Paul Henkemeyer, a civilian employee of the United States Navy who is responsible for maintaining and disseminating information concerning the economic and other impact of the naval installations in the Jacksonville area, testified in the course of the hearing. He pointed out that the Navy has a very substantial economic and social impact upon the residents of metropolitan Jacksonville, Florida. The Navy employs over 37,000 military personnel in the Jacksonville area in addition to over 10,000 civilian employees. Its payroll in the Jacksonville area approaches $1.7 billion. The Navy and its related economic activity account for in excess of 10 per cent of the Jacksonville area economy. The witnesses Mr. Henkemeyer; Mr. Simon A. Smith, Jr., former Chief Executive of the North Florida Council of the Boy Scouts of America; and Ms. Marion Perry, supervisor of services of the United Way, testified that Jax Air News and Air Winger are considered by them to be "newspapers" of general circulation and interest to the public in the Jacksonville westside community. They testified that the publications disseminate information of local events, including the Boy Scouts, United Way, and other charitable interests and religious news. This pertains to news about the Jacksonville westside community and is routinely set forth in the publication. Mr. Smith indicated that he considers Jax Air News and Air Winger to be "newspapers" of general circulation and interest to the Jacksonville westside community because they provide extensive coverage of Boy Scout activities and are viewed by the Boy Scouts of America and other charitable and community institutions as sources of dissemination of news and press releases concerning their present and future activities. Ms. Perry, in her role with the United Way, in which her unit serves several north Florida counties including Duval County, testified that Jax Air News and Air Winger are considered by her and the United Way to be "newspapers" of general circulation and public interest for the Jacksonville and the westside community. She indicated that they are included in the mailing lists for press releases by the Florida Press Association and the United Way. She testified that Jax Air News and Air Winger are listed as "newspapers" in the Media Guide prepared by her. She notes that Jax Air News and Air Winger include features and opinions to the editor pages. She explained that Jax Air News and Air Winger regularly disseminate information about the activities and fund raising efforts of the United Way throughout Jacksonville and the westside community. Generally speaking, Mr. Smith and Ms. Perry testified that Jax Air News and Air Winger are included among the list of newspapers to which information, including press releases is regularly and routinely distributed by the organizations with which they are now or have been affiliated. In summary, those individuals and their community organizations consider Jax Air News and Air Winger to be "newspapers" of general circulation which contain matters of current public interest to the general public, and of current events and news of interest to the general public. The testimony of Mr. Dick Holt, the chief executive officer of Holt Publishing Company, which owns and publishes Jax Air News and Air Winger, provided further insight into the operations and function of Jax Air News and Air Winger. The publications, according to Mr. Holt, collect news items from all sources, in addition to those provided by the United States Navy and the Navy personnel who help edit the newspapers. Other sources including the community at large and the state of Florida are in the form of press releases. Mr. Holt's testimony was that Jax Air News and Air Winger are publications whose purposes and functions are to disseminate the news. His testimony also established that the publications are not "shopper" types of publications, and are not given over principally to advertisements or personal classified advertisements. Jax Air News and Air Winger contain a percentage of advertising which is significantly less than the national average and regularly and continually carry news items of general interest to the public and the Jacksonville westside community in particular. Mr. Holt conceded that the publications are decidedly directed to the special interests of the United States Naval Air Station and Cecil Field, Jacksonville, Florida, but he alluded to the other general news found in the publications. Holt describes the publications as having the mission to inform the troops (Navy personnel) and secondarily to provide information and entertainment to maintain readership. On occasion, Jax Air News carries editorials dealing with national defense. The Air Winger could present those editorials but chooses not to. Theoretically, the publications may offer other editorials. Petitioner uses a civilian Navy employee as its editor for Jax Air News, and a military person acts as editor for the Air Winger. In the final preparation of issues of the publications, the Navy is involved through its Public Affairs Office. The Navy does proofing for typographical errors and displaced graphics. Petitioner has a staff photographer. It has no staff reporter. News editorial material must be channeled through Navy Public Affairs Officers. Petitioner must look first to Public Affairs Officers for its copy, photographs, etc. Priority of placement of those items is a function Of the Navy and must be accommodated as closely as possible. Other things unrelated to the Navy can be placed in the publications if the ratio of news to advertising demanded by the contracts for publication is maintained. The Navy controls the number of pages in the publications. The Navy may ensure that material which it considers to be in bad taste, detrimental to discipline, subversive or in some way contrary to the best interest of the Navy is not included in the publications. The issues of Jax Air News and Air Winger admitted into evidence, Petitioner's Exhibits 1-16 and Respondent's Exhibits 2-6, show that Jax Air News and Air Winger contain news of current interest to the general public, current events and news of the day of interest to the general public in the community geographically defined as the westside of Jacksonville, Florida. A review of the issues of Jax Air News and Air Winger demonstrates that they contain varied articles and features, including features on scouting, fishing, Flag Day, rodeos, cooking, religious activities, recreational activities and the following special features which are matters of general interest to the public: The Air Winger of August 15, 1985, contained several features, including a feature on Children's Dental Health Week together with news of recreational and religious activities and other general news and current events. The Jax Air News of March 27, 1986, contained a feature article on poison prevention together with the other regular features concerning recreational and religious activities about Holy Week and the Passover. The Air Winger of July 24, 1986, contained a special feature on the change of command at Cecil Field, a feature which was also the predominant story that week in the local newspapers in Jacksonville, Florida, The Florida Times Union and Jacksonville Journal. The Jax Air News of May 15, 1986, contained a special feature on the Boy Scouts of America and Scout World and forthcoming scouting activities together with other recreational including live theatre and religious activities and various features and coverage concerning current events. The Air Winger issue of May 8, 1986, featured special coverage of the Boy Scouts of America and a feature concerning Mother's Day together with regular coverage of religious and recreational activities, local fitness run/walk and other current events. The Jax Air News of April 10, 1986, contained news about scouting and scouting events and news of naval operations having national and international focus. The Jax Air News of May 22, 1986, contained community news coverage featuring extensive coverage of Scout World 86 and Scouting, a major event in the Jacksonville, Florida, Community. That coverage paralleled coverage of the same event in The Florida Times Union, the largest newspaper of general circulation in Jacksonville, Florida, in its special edition of May 19, 1986. The Jax Air News of June 12, 1986, contained features on Flag Day and Japanese technology together with coverage of religious and recreational activities and other matters. The Air Winger issue of March 27, 1986, contained information and features concerning VA loan programs and U.S. Savings Bonds together with coverage of religious and recreational activities and current news. The Air Winger issue of April 3, 1986, contained news coverage of the United States Sixth Fleet's activity. The Jax Air News of May 29, 1986, contained features on hurricane safety and retirement planning together with coverage of religious and recreational activities and other news of the day. The Jax Air News of April 24, 1986, contained a feature on Red Cross classes. The Jax Air News of April 17, 1986, contained features concerning Pacific security and local coverage of the mayor of Orange Park, Florida. The Jax Air News of May 1, 1986, contained features concerning fishing. The Air Winger of May 22, 1986, contained information about military pensions and the commemoration of Memorial Day. The issues of Jax Air News and Air Winger regularly contain feature stories concerning the United States Navy and matters related to the Naval Air Station and Cecil Field, Jacksonville, Florida. The testimony of the witnesses makes it evident that naval happenings, especially as they relate to the activities and events at the Naval Air Station and Cecil Field and other naval bases in Jacksonville, are news in metropolitan Jacksonville and in the Jacksonville westside community. Jax Air News and Air Winger won a 1978 Florida Press Association Award for best special edition, small newspapers. Two issues of The Independent Florida Alligator, Petitioner's Joint Exhibits 2 and 3, were admitted. A comparison of Jax Air News and Air Winger and The Independent Florida Alligator shows in what ways they are similar and dissimilar. The three publications are publications of special interest to a particular community--the University of Florida in the case of The Independent Florida Alligator, and the United States Naval Station and Cecil Field in the case of Jax Air News and Air Winger. However, The Independent Florida Alligator has a much broader base in its reporting of news beyond its principal community and offers more extensive editorial comment. In addition, it serves the function of training student journalists in the newspaper business as the court in Campus Communications, supra, referenced in its favorable response to the claim for tax exempt status. No such roles are played by Jax Air News and Air Winger. The Independent Florida Alligator has a format that is more akin to a general circulation newspaper, whereas Jax Air News and Air Winger are in many respects more of a news bulletin. The articles related to the Navy preempt other news information and the reporting of other news events beyond the Navy's activities is secondary. The Navy exerts influence on the basic design and focus of the two publications through the contracts with the publisher. By contrast, the The Independent Florida Alligator has a wide-ranging set of topics in which there does not appear to be any outside entity predetermining space requirements or outside influence by another entity which has a say in what news is pursued by the student newspaper. As described, Jax Air News and Air Winger are printed and distributed at the respective Navy bases pursuant to contracts between the Navy and the publishing company. A copy of the contract between Holt Publishing Company and the two Commanding Officers of the Naval Air Station, Jacksonville, and Naval Air Station, Cecil Field, was introduced as Respondent's Exhibit 1 to the Holt Publishing case. A review of the editions of Jax Air News and Air Winger admitted into evidence showed that neither contained any news stories gathered from either Associated Press (AP) or United Press International (UPI) wire service materials.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Respondent Charley O. Young & Sons Trucking, Inc. (Company) is engaged in the business of hauling United States Mail between various United States Postal Service's post offices in the State of Florida, and is an employer as that term is defined in Section 760.10(7), Florida Statutes. Charley O. Young (Young), president of the Company, has been involved in the business of hauling United States mail for over 35 years. The mail which the Company hauls from post office to post office comes from places throughout the United States and the world. Such mail is considered to be in a continuous flow in interstate commerce from the moment it is mailed until it reaches its ultimate destination. Petitioner Dennis Bonville has been employed by the Company from time to time as an employee and as a subcontractor. Petitioner's last employment with the Company was as an employee driving a truck hauling mail from Tampa, Florida to Ruskin, Florida. The Company hired Petitioner with the full knowledge and understanding that Petitioner had a handicap known as monocular vision (vision capacity in one eye). Notwithstanding his handicap, Petitioner had been granted medical certification and was qualified to operate a commercial motor vehicle in the State of Florida in intrastate commerce in accordance with Section 316.302(2)(j), Florida Statutes. The position held by Petitioner was created as a result of the Company being awarded an emergency mail hauling contract between Tampa, Florida and Ruskin, Florida by the U. S. Postal Service beginning February 10, 1990, for an indefinite period. At the time Petitioner was hired, he understood that his employment with the Company was indefinite since the contract for the Tampa to Ruskin run with the U. S. Postal Service was for an indefinite period. On or about April 27, 1991, the Company was audited by the United States Department of Transportation, Office of Motor Carrier Safety, Florida Division (USDOT). The USDOT agent reviewed, among other things, the personnel and medical files of all the Company's drivers. During the audit, the agent discovered that Petitioner had monocular vision. The contract for the Tampa to Ruskin mail run required the Company to comply with all state and federal regulations, including those promulgated by the USDOT. Under USDOT rules, monocular vision disqualified Petitioner from driving a commercial motor vehicle in interstate commerce. The agent demanded that Young immediately remove Petitioner from the Tampa to Ruskin run since it involved operating a commercial motor vehicle in interstate commerce. However, since Young had no qualified driver to relieve Petitioner, the agent agreed to allow Petitioner to complete the run for the day with the understanding that the Petitioner would be relieved upon his return. The agent then advised Young that he would return the next day to complete the audit, and if the Petitioner had not been relieved, he had the authority to, and would, put a padlock on the door and shut down the Company's business. It was the agent's position that the Company was engaged in interstate commerce due to its hauling mail that was in interstate commerce, notwithstanding that the Company's vehicles never left the State of Florida. Therefore, the Petitioner's monocular vision rendered him unqualified to drive a commercial motor vehicle operating in interstate commerce under the USDOT rules which governed drivers under mail contracts. When the Petitioner returned that night to the Company's office, Young informed the Petitioner that due to the agent's position and his threat to shut down the Company's business if Petitioner continued to make the Tampa to Ruskin run, he had no alternative but to relieve the Petitioner of the Tampa to Ruskin run. When the agent returned to complete the audit the next day, the Petitioner had a heated discussion with the agent concerning the agent's position and its effect on the Petitioner's employment. The agent maintained his position that Petitioner was not qualified to drive the vehicle being used in the Tampa to Ruskin mail run which was considered to be in interstate commerce. At the conclusion of the audit, the Company was issued, among others, citations for violating 49 C.F.R. 391.11(b)(6), using a physically unqualified driver, and was fined $6,000. At this time, the Company had no other positions which it could offer the Petitioner that would accommodate his handicap. Therefore, as a result of the audit and the agent's threat to "shut down the business", the Petitioner was terminated by the Company effective April 27, 1991. At the time Petitioner was terminated he was earning $11.19 per hour and working 40 hours per week. Petitioner's job performance was not an issue in the Petitioner's termination. The Company's bid for the renewal of the Tampa, Florida to Ruskin, Florida contract was unsuccessful, and on April 30, 1991, the Company's contract for the Tampa to Ruskin mail run expired. Petitioner was replaced by a Company employee who was qualified under the USDOT rules to operate the vehicle used on the Tampa to Ruskin run for the three days remaining on the contract. After Petitioner's termination, sometime around October, 1991, the Petitioner was offered employment with the Company driving a van, which Petitioner was qualified to drive, delivering special delivery mail. However, this employment offered less money than Petitioner's previous employment with the Company and was turned down by the Petitioner.
Recommendation Based upon 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 For Relief filed by the Petitioner. RECOMMENDED this day 29th of August, 1994, at Tallahassee, Florida. WILLIAM R. CAVE 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 29th day of August, 1994.
The Issue Whether Respondent, Beatrice Yazbeck, a guidance counselor under contract with Petitioner, Orange County School Board, violated an express work rule of Petitioner's Management Directive A-9; and whether Respondent violated Florida Administrative Code Rule 6B-1.006(5)(d) and (e), by committing misconduct in office; and, if so, whether any such offense provides just cause for discipline up to, and including, dismissal of Respondent pursuant to Subsection 1012.33(1)(a), Florida Statutes (2004).
Findings Of Fact Based on the evidence received at the final hearing, the following Findings of Fact are made: Petitioner is the governing board of the Orange County School District, and Ronald Blocker is the Superintendent of Orange County Public Schools and the executive officer of Petitioner. Respondent is employed by Petitioner as a high school guidance counselor at the campuses of WPHS and the Winter Park Ninth Grade Center (Ninth Grade Center). She has held a Professional Services Contract with Petitioner for several years. Respondent's employment is subject to a Collective Bargaining Agreement referred to as the "Contract Between the School Board of Orange County, Florida, and the Orange County Classroom Teachers' Association, 2004-2005." Article XII of the Collective Bargaining Agreement pertains to employee discipline and provides: An employee may be disciplined only for just cause and discipline shall be imposed only for a violation of an expressed rule, an expressed order, an expressed policy or reasonable expectation of management, which reasonably should have been known to the employee. This shall not be construed as to prohibit the administrator from questioning an employee and/or offering reasonable direction at the time of the occurrence of any incident, the result of which might later be dealt with in a disciplinary manner. Any teacher may be suspended or dismissed at any time during the year, provided that the charges against him/her are based on immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of any crime involving moral turpitude where applicable, and in accordance with Florida Statutes. Respondent, as a member of the instructional staff of Petitioner, is required to abide by the "Code of Ethics of the Education Profession in Florida (Code of Ethics)." Fla. Admin. Code R. 6B-1.006(5). The State Board of Education established "Principles of Professional Conduct for the Education Profession in Florida (Principles of Professional Conduct)" that specifically require that educators: shall not engage in harassment or discriminatory conduct which unreasonably interferes with an individual's performance of professional or work responsibilities or with the orderly processes of education or which creates a hostile, intimidating, abusive, offensive, or oppressive environment; and, further, shall make reasonable effort to assure that each individual is protected form such harassment or discrimination. shall not make malicious or intentionally false statements about a colleague. Fla. Admin. Code R. 6B-1.006(5). At the start of the 2004/2005 school year, Respondent was provided a copy of the WPHS's Faculty Handbook, which contained Petitioner's Management Directive A-9. Management Directive A-9 is a work rule prohibiting employees from misusing school computers and internet access for personal, non-educational activities. Management Directive A-9 provides, in pertinent part: Employee Access to Network e. The District authorizes employees to use District computer technology resources and data bases for assigned responsibilities. These resources shall be used by employees to enhance job productivity as it relates to District business. These resources shall be used for District-related purposes and not for personal use or gain or for the benefit of private, "for profit" or "not for profit" organizations. Network Security and Acceptable Use b. Internet resources and e-mail shall be us ed by employees to enhance job productivity as they relate to District business and shall not be used to send abusive, threatening or harassing messages. Employees shall refrain from communications where the meaning of the message, or its transmission or distribution, would be illegal, unethical or irresponsible . . . . * * * 6. Due Process a. Any employee failing to comply with this Management Directive may be subject to disciplinary action as well as civil liability or criminal charges. At the beginning of the 2003/2004 school year, Respondent was involuntarily transferred from Evans High School (EHS) to WPHS. EHS is also racially diverse, however, both the student and faculty population is predominately African- American. WPHS has a student population of approximately 3,800 students and 308 staff members. The student population at WPHS is racially diverse with between 18 percent and 19 percent of the students being African-American. The faculty at WPHS is equally diverse. Within the past two years, WPHS has had an increase in racial diversity among its students due, in significant part, to the advent of opportunity scholarships which enable students of underperforming schools to transfer to other schools within the District. Mary Brinson is an African-American mathematics teacher at WPHS, who has been employed with Petitioner for 30 years. At all times material, Kimrey Ross-Myers was employed as assistant principal for instruction for WPHS and was the assessing administrator of Respondent. William Gordon was employed as principal at WPHS. Donald Shearer is a senior manager in the Employee Relations Department of Petitioner. On January 7, 2005, Respondent, while on duty in the guidance counselor's office at the Ninth Grade Center, composed a personal e-mail to her brother using the school's computer. Among other things, this e-mail contained the following passage: Finally, this at the end of too many horrible experiences of struggle, stress and strife imposed by inept, incompetent, ignorant persons of color and this dike on our main campus whom I have finally discovered may be the culprit responsible for the problems I've had with this female administrator, Kimrey. Funny, isn't it, after all the shit I've put up with at the hand of black folks, I still can't get myself to use the n word. Wonder why???? I'll try to talk to you soon. On January 7, 2005, Respondent accidentally touched the print button, rather than the send button on her computer, which printed the e-mail at a printer networked to the WPHS campus. Recognizing this error, Respondent departed the Ninth Grade Center and drove to WPHS to retrieve the printed e-mail. Unbeknownst to both Mary Brinson and Respondent, the e-mail printed among Ms. Brinson's school grade reports which Ms. Brinson had collected for processing. While reviewing her student grade reports, Ms. Brinson came upon Respondent's e-mail of January 7, 2005, and was alarmed by its demeaning, discriminatory content. Troubled by the fact that the e-mail was authored by a school guidance counselor with whom she had professional contact, Ms. Brinson took it home, and on Monday, gave the e-mail to Kimrey Ross-Myers for handling within her discretion. Ms. Brinson advised Ms. Ross-Myers of the e-mail because she regarded its content as evidencing discriminatory conduct directed at African-Americans and lesbians. Further, she advised Ms. Ross-Myers of the e-mail because she was required to abide by the Code of Ethics requiring that she protect against harassment and discrimination. Ms. Ross-Myers took it to Principal Gordon, who, in turn, referred the e-mail to Mr. Shearer of Petitioner's Employee Relations Department. Upon learning of the January 7, 2005, e-mail, Mr. Shearer instructed the District staff to review Respondent's computer for other similarly offensive e-mails. Two such e-mails were retrieved: one composed by Respondent on May 25, 2004, at 6:47 p.m., and the other on October 7, 2004, at 9:43 a.m., which was transmitted during school hours. In the e-mail composed by Respondent on May 25, 2004, she criticized Ms. Ross-Myers, writing: My work and my nemesis, this evil administrator from hell didn't want me to stay here, has me running around in circles. Respondent, again, criticized her immediate supervisor, Ms. Ross-Myers, in her e-mail of October 7, 2004, writing: Kimrey is the Assistant Principal who was on my case from day one. I was transferred to this school on short notice (one week before the beginning of school) after a perfect evaluation and realignment to the school that transferred me. Referring to her former principal at EHS, Elaine Scott, Respondent also wrote in her e-mail of October 7, 2004: The principal, an ignorant black female, gave all the Counselors a serious ultimatum about our performance, although all of us had gotten impeccable evaluations. The e-mails of May 25, 2004, and October 7, 2004, were transmitted via Petitioner's internet account to Respondent's brother. Principal Gordon testified that after considering all three e-mails composed by Respondent, he became concerned that Respondent may be prejudiced against African-Americans. The ostensibly discriminatory content of the e-mails, combined with all reasonable inferences that could fairly be drawn from them, caused Principal Gordon to believe that Respondent's effectiveness to serve as a high school guidance counselor had been seriously compromised. Petitioner has adopted a Code of Civility that applies to students and staff alike. During the 2004/2005 school year, the Code of Civility was published within the Student Code of Conduct. The Code of Civility specifically prohibits individuals from ethnic stereotyping and uttering slurs. The Code of Student Conduct also prohibits demeaning, abusive, or obscene content in any communication. The e-mails composed by Respondent on January 7, 2005, and October 7, 2004, violate standards of conduct expressly incorporated into the Code of Civility. Ms. Brinson, Ms. Ross-Myers, Principal Gordon, and Superintendent Blocker testified that these e-mails, individually and collectively, caused them to question whether Respondent would interact with students in a fair and equitable fashion while serving in her role as a high school guidance counselor. These concerns were elevated to the extent that Principal Gordon, Ms. Ross-Myers, and Ms. Brinson testified that they would refrain from referring students to Respondent for counseling on matters of racial or sexual orientation sensitivity. The "black" administrator Respondent referred to in her e-mail of October 7, 2004, as "ignorant" is EHS principal, Elaine Scott. At the final hearing, Respondent admitted she inaccurately characterized Principal Scott as being "ignorant." When criticizing her previous administrators at EHS, Respondent associated their race with her finding that they were ignorant, inept, or incompetent. When offering criticism of Caucasian administrators, namely Ms. Ross-Myers, Respondent omitted any racial reference. Respondent testified with respect to her e-mail of January 7, 2005, that the statements therein were true and that she "had many horrible experiences, struggles, stress and strife imposed by inept, incompetent, ignorant persons of color," while serving as a guidance counselor at EHS. Respondent further testified that she did not intend to stereotype African-Americans in a derogatory manner and that she was referring to four specific African-American administrators with whom she worked: James Lawson, Elaine Scott, Chuck Rivers, and Joe Salsby. Respondent gave credible testimony relating to her referring to the "n" word, but not using it. This explanation is that she considers the use of the "n" word to be racist and a horrible thing to say to a person of color and that is why she could not use it. Both Ms. Ross-Myers and Principal Gordon testified that they have had professional contact with these four administrators and confirmed that they are regarded by their peers as being capable, competent, and professional. However, no additional investigation was conducted. The term "dike [sic]," as used in the context of the e-mail, is a disparaging term for a lesbian. Respondent refused to identify the female staff member who was the target of her slur and testified, "I would never put that label on anyone." Despite this denunciation, Respondent did so use this term to disparage a co-worker and, further, did so without any knowledge of her co-worker's true sexual orientation. Respondent testified that she does not use the term "dyke" in public to put labels on people. The term was suggested to her in a telephone conversation by her homosexual brother after she described the conduct of a specific person toward her. In the e-mail to her brother, Respondent used the word as an identifying term to refer to the person by the appellation which her brother had already used for that person. Respondent is so unfamiliar with the word that she misspelled it as "dike" in her e-mail. Respondent assailed Ms. Brinson's motives in coming forward and reporting her accidental discovery of the January 7, 2004, e-mail. Respondent accused Ms. Brinson of "snooping" and of being an "intermeddler," who purposely schemed to get Respondent "fired." At the final hearing, Respondent further accused Ms. Brinson of having committed professional misconduct in reporting the e-mail to her supervisor. Respondent admitted violating Management Directive A-9 when she used the District's computer and internet account to write and transmit a personal e-mail to her brother. Two of the subject e-mails were composed during school hours. Prior to the filing of administrative charges against Respondent, Petitioner had discharged other employees for violating Management Directive A-9, by misusing the District's computer network to compose and send e-mails for personal gain or for transmitting e-mails with obscene and abusive content. Superintendent Blocker further testified that he believed that Respondent's misconduct violated Petitioner's anti-discrimination policy that requires all OCPS employees to act with impartiality and fairness in dealing with co-workers, students, and the public at large. In Petitioner's Administrative Complaint of March 8, 2005, Petitioner alleges that: 1) Respondent violated Management Directive A-9 in misuse of the District's computer network to compose and transmit e-mail that demeaned African- Americans and which contained a slur against lesbians; 2) Respondent violated Subsection 1012.795(1), Florida Statutes (2004), by committing misconduct in office, which seriously reduced her effectiveness as an employee; 3) Respondent violated the Code of Ethics and the Principles of Professional Conduct, Florida Administrative Code Rule 6B-1.006(5)(d) and (e); and 4) Respondent engaged in misconduct in office, willful neglect of duty, gross insubordination, and conduct unbecoming of an employee in breach of Respondent's employment agreement with Petitioner. There is no evidence that Respondent committed any act of sexual discrimination against any person or group of persons. There is no evidence that Respondent failed to deliver appropriate counseling services to any student or group of students. There is no evidence that Respondent ever failed to deliver appropriate services to any student, allowed harm to any student, or committed harm to any student for any reason, including the racial or sexual orientation diversity of any student. There is no evidence of harm to any student of diversity by Respondent during her entire career in education. There was no investigation as to whether Respondent was, in fact, racially prejudiced or whether she was, in fact, prejudiced against persons of alternative sexual orientation. Rather, Petitioner ascribed racial and sexual prejudice to her based entirely on the content of the thoughts expressed in her e-mail, which was intended to be a private communication and was not intended for exposure by any person who might be offended by it. All of Petitioner's witnesses admitted that their concern about Respondent's effectiveness as a counselor is anticipatory. The preponderance of the evidence proves that Respondent violated Management Directive A-9 by misusing the District's computer network to compose and transmit e-mails that demeaned African-Americans and which contained a slur against lesbians. Respondent violated Subsection 1012.795(1), Florida Statutes (2004), by committing misconduct in office, which seriously reduced her effectiveness as an employee. Respondent violated the Code of Ethics and Principles of Professional Conduct. Fla. Admin. Code R. 6B-1.006(5)(d) and (e) Respondent engaged in conduct unbecoming of an employee in breach of Respondent's employment agreement with Petitioner.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that Petitioner, Orange County School Board, enter a final order as follows: 1) Find Respondent, Beatrice Yazbeck, guilty of violating Management Directive A-9, Florida Administrative Code Rule 6B-1.006(5)(d) and (e); and terminating the Professional Services Contract of Respondent. It is further RECOMMENDED that Respondent be returned to annual contract status and that she be suspended, without pay, for a period of two months. DONE AND ENTERED this 14th day of September, 2005, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 14th day of September, 2005.
The Issue Whether the Respondent discriminated against the Petitioner on the basis of race and age when it terminated his employment.
Recommendation Based on the foregoing, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief of Jerome Williams. DONE AND ENTERED this 29th day of September, 2003, in Tallahassee, Leon County, Florida. S PATRICIA HART MALONO 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 29th day of September, 2003.
The Issue The issues to be determined are whether Respondent violated sections 456.072(1)(w) and (x), Florida Statutes (2008), or 460.413(1)(c), Florida Statutes (2007), as alleged in the Administrative Complaint, and if so, what penalty should be imposed?
Findings Of Fact The Department of Health is the state agency charged with the regulation of the practice of chiropractic medicine pursuant to section 20.43 and chapters 456 and 460, Florida Statutes. At all times material to the allegations in the Administrative Complaint, Respondent, Douglas Dvorak, was licensed as a chiropractic physician in the State of Florida, having been issued license number CH 7335. On September 24, 2008, Respondent was indicted in the United States District Court for the Northern District of Iowa Case No. CR-08-54-1-LRR. The indictment included 22 counts for mail fraud, in violation of 18 U.S.C. § 1341; 11 counts of aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1); and 6 counts of money laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)(i). The charges against Respondent were based upon allegations that Respondent defrauded the Medicaid program in Iowa. According to the indictment, Respondent was a licensed chiropractor who operated his business out of his residence in Cedar Rapids, Iowa. Respondent was an authorized provider of Medicaid services, i.e., health insurance services provided by the United States and administered by each state for low-income parents, children, senior citizens, and persons with disabilities. The indictment described in detail the administration of Iowa's Medicaid program. According to the indictment, the Center for Medicare and Medicaid Services (CMS) is a federal agency responsible for monitoring the state-run programs, and establishes requirements for service delivery, quality control, funding and eligibility standards. The State of Iowa contracted with Iowa Medicaid Enterprise (IME), its fiscal agent, to administer Iowa's Medicaid program. IME enrolls providers, processes claims, and performs quality assurance functions, and an agency of the State of Iowa provides oversight. The indictment further alleged that Medicaid claims for services are submitted to IME for payment on a form that required submission of certain information related to the specific beneficiary or patient, including but not limited to the type of service provided (and identified by procedure code); the date of service; the charge for the service; the patient's diagnosis; the name and/or provider billing for the service; and a certification by the provider as to the medical necessity of the service. With respect to Respondent's actions, the indictment charged in part: THE SCHEME TO DEFRAUD Beginning as early as late 2005, and continuing through in or about early 2007, in Cedar Rapids, Iowa, in the Northern District of Iowa and elsewhere, the defendant DVORAK knowingly and willfully devised, executed, and attempted to execute a scheme to defraud the Medicaid program by means of false and fraudulent pretenses and representations, and, for the purpose of executing, and attempting to execute such scheme, used the United Stated Postal Service mail system to submit fraudulent claims to the Medicaid program, and caused Medicaid payments on these fraudulent claims to be made to him, via the United States Postal Service mail system, in violation of Title 18 United States Code, Section 1341. EXECUTION OF THE SCHEME TO DEFRAUD It was part of defendant DOUGLAS P. DVORAK'S scheme and artifice that: Dvorak would obtain the names and birth dates of adults and minor children in the Cedar Rapids area and fraudulently used this information without their knowledge and consent, or, in the case of minors, without their parents'/guardians' knowledge or consent. Specifically, among other ways, defendant would solicit friends and/or other purported patients who were Medicaid recipients to refer potential new patients to him by providing the names and birth dates of adults and minor children who were covered by Medicaid. Defendant would then contact IME, provide the names and birth dates of the targeted individuals, including minors, and obtain their MINs [Medicaid Identification Number] and their Medicaid eligibility information. Defendant would then use the personal identifiers of these individuals, including their MINs, to create fraudulent Medicaid claims for chiropractic services that were never performed using Form CMS- 1500. Defendant then used the U.S. Postal Service to submit these fraudulent claims to Medicaid for reimbursement. Medicaid issued reimbursement checks to defendant and sent them to him via the United States Mail. Respondent pled not guilty to the charges in the indictment. Respondent was found guilty on counts 1-39 of the indictment, and on October 8, 2009, was sentenced to 85 months of imprisonment, supervised release for a period of three years, a court assessment of $3,900, and restitution of $71,375.82. Although the Judgment and Sentence is signed on October 8, 2009, it does not indicate the date of the trial itself. The crimes for which Respondent was convicted were directly related to the practice or the ability to practice chiropractic medicine. The scheme described in the indictment required that Respondent be a participant in the Medicare/Medicaid program. In order to be a provider, a health care provider must demonstrate licensure in an acceptable health care field, such as medicine or chiropractic medicine. Without a license to practice chiropractic medicine, Respondent would not have been accepted as a provider. Moreover, as a health care provider, Respondent is entrusted with personal identifying information for patients and must be trusted to maintain the confidentiality of that information. Use of personal identifiers to further the scheme as described in the indictment signifies a violation of the trust inherent in the physician-patient relationship. The crimes for which Respondent was convicted are also all felonies. Respondent was required to notify the Board of Chiropractic Medicine (Board) of his conviction no later than 30 days from the date of his conviction. While the date of the conviction itself is unclear from the documents submitted, Respondent was clearly required to provide notice to the Board no later than November 7, 2009. He did not do so. Respondent renewed his chiropractic license on February 26, 2010. He did not, however, provide any notification to the Department at the time of his renewal that he had been convicted of a crime. As a health-care professional, Respondent is also required to update information provided on his Practitioner Profile. At no time relevant to these proceedings did Respondent update his Practitioner's Profile to disclose his conviction. Petitioner admitted at hearing that he failed to notify the Department of his indictment or conviction. The crimes for which Respondent was convicted are the types of crimes required to be reported for renewal and profiling purposes.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Florida Board of Chiropractic Medicine enter a final order finding that Respondent has violated section 460.413(1)(c), Florida Statutes (2007), and section 456.072(1)(w) and (x), Florida Statutes (2008), and revoking his license to practice in the State of Florida. DONE AND ENTERED this 13th day of May, 2011, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 13th day of May, 2011. COPIES FURNISHED: Greg S. Marr, Esquire Department of Health 4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399 Douglas Dvorak, No. 10743029 FCI-Forrest City Low Post Office Box 9000-LOW Forrest City, Arkansas 72336 Bruce Deterding, Executive Director Board of Chiropractic Medicine Department of Health 4052 Bald Cypress Way, Bin C07 Tallahassee, Florida 32399 E. Renee Alsobrook, Acting General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399
The Issue The issues for consideration in this case are whether Respondent’s Class D, Class DI, and Class G licenses, as a security guard, a security guard instructor, and to carry a firearm, respectively, should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, Petitioner, Department of State, Division of Licensing, was the state agency in Florida responsible for the licensing of security guards and guard instructors, and for the issuance of licenses for security guards to carry firearms. The Division is also responsible for the regulation of the non-governmental security profession in this state. Respondent, at the times in issue, held Class "D" Security Officer’s License, D94-08184; Class "DI" Security Officer Instructor License, DI98-00070; and a Class "G" Statewide Firearms License, G95-01354. On or about February 28, 1999, Respondent, working as a security guard for APS, was assigned to guard duty at American Freightways truck terminal in or near Pinellas County. The terminal was not open for business at the time, since it was a weekend, but Richard W. Clark, the company’s operations supervisor, was there to do an equipment inventory. Because this was not during business hours, all the loading dock doors were supposed to be shut and locked to prevent uncontrolled access to the terminal. As he went down one side of the building he discovered that one bay door was open about four- and-a-half feet without any truck in the bay against the dock. He then checked other dock doors to the terminal and found another door, this one located on the other side of the terminal, open by about five-to- six feet up from the floor. This bay had a truck parked in it up against the dock, but there was a space of about one-and-a-half feet on either side of the truck that afforded access to the open bay door. When he discovered the open doors, Mr. Clark went to find the security guard, Respondent, and asked how long he had been on duty. Respondent indicated he had been there for from six-to-eight hours. Clark asked Respondent if, during that time, he had seen any doors open and Respondent said he had not. When Clark asked Respondent if he had toured the building, he indicated he had seen some employees of PDQ truck line in the back, but they were not near the open doors. According to Tara Jean Colon, formerly the personnel manager for APS and Respondent’s indirect supervisor, Respondent, at the times in issue here, was first a roving security officer, and then assigned to the Albertson plant. APS develops "post orders" for each duty post. These orders define the particulars of each position and outline the scope of the duties to be performed. As a roving security officer, Respondent was given a copy of the order for each of the places at which he was assigned, including the American Freightways position. The American Freightways order became effective on November 1, 1996, and was in effect on February 28, 1999. The shift/post duties outlined in the order include the following comment. Officer will ensure any doors designated for security on weekends by American Freightways remain locked. Though this page bears date of December 21, 1999, after the date of the incident, Ms. Colon is certain that the original edition, first promulgated in November 1996, a copy of which had been furnished to Respondent, was identical. Ms. Colon also indicated that an additional copy of the post order for each post was on- site at the post, but Respondent denies having seen one at American Freightways. Respondent contends that on February 28, 1999, he was told at the American Freightways job site by the supervisor for APS to stay at the main gate and let no one except American Freightways or PDQ people come onto the property. He was also told he could use his car to drive around to do the door checks. As to that duty, he claims he was told that only the door to the driver’s lounge was available to him and there were none others that he could get to, so he should not worry about the doors. Respondent’s claim here is without merit. His job was to stay outside and he knew he had to patrol the area because he was advised he could use his automobile to do so. It is obvious that a visual check of the outer bay doors, which could be seen from his car, was a part of his duty. Notwitstanding that Investigator Floyd indicates Respondent admitted to having a weapon in his car the night he drove his post on February 28, 1999, Respondent claimed at hearing that at the American Freightways post that night he did not have a weapon in his car. He was driving his own vehicle, not a company car, and he admits he usually carries a 9mm pistol in the glove box for personal protection. When the weapon is there, the glove box is locked. Because he was driving his wife’s car quite a bit during the period, he claims he took the weapon out of his car and put it into his night stand. A 9mm pistol was found in Respondent’s glove box when Respondent was interviewed by Mr. Floyd on July 7, 1999. At the time, Mr. Floyd had gone to Respondent’s home to interview him about the allegations herein. At that time, Respondent admitted he had a 9mm pistol which he usually kept in the glove box of his car. When Floyd asked to see it, they went outside to the car where Respondent unlocked the car and the glove box and removed the weapon. From the evidence presented at hearing, it is found that Respondent owned a 9mm weapon that he usually kept in the glove box of his car where it was found on July 7, 1999. It is also found, however, that Respondent claims to have removed it from the car before he drove his post on February 28, 1999. There is no evidence at all that Respondent had the weapon in his car on February 28, 1999, at the American Freightways site, and no inference that he did can be drawn from the fact that he owned a weapon. Paul Summerall, a heavy equipment operator and part- time security guard for APS, was assigned to work at Albertson’s Distribution Center on the evening of March 16, 1999. He and Respondent arrived for work at the same time. When the assignments were passed out by the supervisor, Respondent was assigned to work with a female security guard, Stephanie Clopton, with whom he had worked before, and with whom he did not want to work again. He feelings on that point were quite strong. He called Ms. Clopton a bimbo, a whore, and a bitch, and Respondent asserted that if he were around her too much, he would kill her. Mr. Summerall advised Respondent not to talk like that, but Respondent said he didn’t care - they could put him in jail and he knew how to dispose of the body so that nobody would find it. Mr. Summerall believed that Respondent’s threat was serious and he thought Respondent had a gun in his car, though Respondent did not take it out. Because of this, Summerall called the other guard post and reported what Respondent had said. Other people, including a Mr. Bonner, also an employee of APS, were present when Respondent uttered his threat, but not Ms. Clopton. Summerall and Bonner agreed that at the time, Respondent was upset and angry. In fact, after his comments, he slammed the door and turned over a chair. Because of Respondent’s state, Summerall was concerned for Ms. Clopton’s safety and the safety of others. Respondent took no action to carry out his threat, however. In his interview with Mr. Floyd, Respondent admitted to making the threat as alleged in the Administrative Complaint. At hearing, however, he denied threatening to kill Ms. Clopton. He indicated that when he reported to work and found he was to work with her, he called the APS office and indicated he did not want to do so. He admits to saying that if he was forced to work with her he was afraid he’d kill her, but he denies having any intent to hurt her. He claims it was just his frustration coming out in a figure of speech. At the time, he claims, he was under a lot of stress due to the terminal illness of his brother in his care who subsequently died of esophageal cancer on February 16, 1999. Mr. Ray was telephoned at home by Ms. Colon who told him about the threats he had allegedly made. This call, he asserts, came the morning after he had worked all night at the IBM office complex. Ms. Colon told him that he had been removed from roving status, but that he would be allowed to work at the Albertson gate on a six hour shift. This would be a three-hour reduction in work time. Respondent claims he declined the offer and hung up. He also indicates this call was made on March 8, 1999, some eight days prior to the time given in the statements of the witnesses and contained in the Administrative Complaint. Ms. Clopton indicates that she did not telephone Respondent on March 16, 1999, as reflected on the employee action report sent to the Department of State, but on March 17, 1999, the day after the incident regarding the threat. He admitted making the alleged comment out of anger, and she terminated him effective immediately. The evidence is somewhat inconsistent in times and dates, but the central focus of the allegation is not in significant dispute. It does not matter exactly what day the threat was made. The evidence reflects the threat was voiced by Respondent, though it was not made to Ms. Clopton or in her presence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that, the Department of State, Division of Licensing, issue a final order in this case finding Respondent not guilty of misconduct by making a threat to kill or injure another security guard; or by carrying a weapon with him on at a client site which was not designated as an armed post, as alleged in Counts I and III of the Administrative Complaint, respectively; but finding Respondent guilty of negligence and misconduct by failing to perform his assigned duties properly on February 28, 1999, in failing to assure that certain outside doorways at a client site were secure, as alleged in Count II thereof. It is further recommended that Respondent’s Class "D", "G", and "DI" licenses be placed on probation for a period of one year under such terms and conditions as the Division may specify, and that Respondent be administratively fined $1,000.00. DONE AND ENTERED this 21st day of June, 2000, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings This 21st day of June, 2000. COPIES FURNISHED: Steve Bensko, Esquire Department of State The Capitol, Mail Station 4 Tallahassee, Florida 32399-0250 Leonard J. Connors, Esquire 1017 East Reynolds Street Plant City, Florida 33566 Honorable Katherine Harris Secretary of State The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0100 Deborah K. Kearney, General Counsel Department of State The Capitol, Lower Level 10 Tallahassee, Florida 32399-0250
Findings Of Fact Petitioner, Douglas L. Adams, has been an inmate in the DOC system since prior to his arrival at UCI in January, 1984. Before coming to UCI he was confined at Baker Correctional Institution. When he was transferred to UCI he was expecting legal mail from the Florida Attorney General's Office which was to contain certain transcripts relating to a case he had before the courts. The package was received at Baker Corrections Institution after his departure and was forwarded to him at UCI. When it arrived, because it was not first class mail, there was postage due for the forwarding in the amount of $2.85 and the package was held at the Post Office in town for payment. He did not have the money to pay to pick it up at the time or for several weeks and prison scrip was not acceptable. Because he was unable to arrange to pick up the package within a reasonable time, the package was returned to the sender from which it was ultimately again sent with sufficient postage. By the time it got to him, however, the brief for the preparation of which he was going to use the transcript had already been filed. Because of the lack of the transcript, the brief was inadequate, however, and his appeal was unsuccessful. Prior to April 15, 1986, officials of DOC developed a proposed rule to be incorporated in Rule 33-3.005, Florida Administrative Code, dealing with the handling of inmates' legal mail. This rule was proposed because the DOC had received a complaint from a court of this State that some legal mail sent by the court to inmates was not being forwarded to the inmate who had been reassigned and was being sent back) to the court to the detriment of the inmate. This was a situation similar to that described above relating to the Petitioner herein. To correct this situation, this rule was developed calling for the forwarding of all legal mail, whenever received, to the inmate addressee wherever the inmate is located. Now, all legal mail will be forwarded by the receiving institution to the inmate at his new institution. Non legal mail is not. Since legal mail is generally first class mail, which is, under current DOC regulations, not opened before delivery unless contraband is suspected, there is no additional cost for the forwarding of this mail. There are certain cases, however, when the legal mail is in the form of a package containing a transcript or something of a similar nature, which cannot go first class mail, and in that case, additional postage is required. In that case, it has been the policy of the DOC, which is now formalized in the proposed rule, to forward the mail to the new installation through the postal system, with the result that postage due is to be collected from the inmate at the new institution. Even if the legal mail were to be collected, placed in a DOC envelope, and then forwarded to the new institution, it would still have to go through the U.S. mail system since DOC does not operate an internal courier system. This has constituted a problem for some inmates who do not have access to funds with which to pay postage due fees. Mr. Singletary, DOC's Assistant Secretary for Operations, when made aware of this situation at the hearing, committed the Department to amend the proposed rule immediately to provide that if postage becomes due as the result of forwarding legal mail, the DOC will assume the cost of that additional postage. DOC will not assume the cost of postage due if the legal mail is sent originally with insufficient postage, however. As a result of this stipulation, therefore, the policy now to be followed in DOC, which will be formalized immediately in an amendment to the proposed rule, will be that all legal mail addressed to inmates who have been transferred from one institution within the Department to another will be forwarded to the gaining institution without any limitation as to time and any additional postage due on the bona fide legal mail arising solely because of the forwarding will be assumed by DOC and not the inmate to whom the mail was addressed.
