Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the Board of Nursing revoke respondent's license number 83209-2. It is further recommended that upon proof of counseling or other rehabilitative measures taken by respondent, the Board exercise its discretion to relicense respondent with examination after a period of six months has elapsed. Respectfully submitted and entered this 28th day of April, 1977, in Tallahassee Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Geraldine Johnson, R.N. Licensing and Investigative Coordinator Florida State Board of Nursing 6501 Arlington Expressway Bldg. B. Jacksonville, Florida 32211 Julius Finegold, Esquire 1005 Blackstone Building Jacksonville, Florida 32202 Patrick V. Clancy, Esquire 2420 Garfield Street Hollywood, Florida 33020
The Issue The issue for determination in this proceeding is whether Respondent retaliated against Petitioner in violation of the Florida Civil Rights Act of 1992, based upon her complaints about a coworker’s conduct perceived by Petitioner to be sexual harassment.
Findings Of Fact Based on the testimony and documentary evidence presented at hearing, the demeanor and credibility of the witnesses, and on the entire record of this proceeding, the following findings of fact are made: Petitioner, a female, was employed as a server with Respondent from May 6, 2011, through September 29, 2012. Respondent, Stavro's Pizza, Inc., is a restaurant located in New Smyrna Beach, Florida. Respondent employs more than 15 individuals at any given time and therefore is subject to the Florida Civil Rights Act of 1992. §§ 760.01-760.l1, Fla. Stat. Early on the morning of Friday, September 27, 2012, it was reported to Martha Trimble, long-time General Manager of Respondent, that a "weird conversation" took place between Petitioner and another employee, Brian Hayes, the previous evening.2/ During this conversation, Mr. Hayes allegedly told Petitioner that “he knew everything about her, including where she lived, and that her favorite color was blue.” Mr. Hayes also allegedly told Petitioner that he was soon to be the new manager of the restaurant. Ms. Trimble approached Petitioner later that day about the alleged incident with Mr. Hayes, and while Petitioner admitted she had had a strange conversation with Mr. Hayes, she denied that she was upset by it. Nonetheless, Ms. Trimble told Petitioner she would investigate the matter and that she took it seriously. Later that same day Ms. Trimble also questioned Mr. Hayes, who denied making the reported comments. And while Ms. Trimble was aware that Petitioner had voluntarily given Mr. Hayes her address,3/ out of caution, Ms. Trimble placed Mr. Hayes on leave while she continued her investigation. The following day, Saturday, September 28, 2012, there was a mandatory meeting for all employees of Respondent. The meeting was mandatory because Ms. Trimble had been made aware of horseplay among some employees, and was concerned that staff training had been inadequate. Notice of the meeting was conspicuously posted in the restaurant for two weeks prior to the meeting. The notice explained that the meeting was mandatory and that all employees were to attend unless they contacted Ms. Trimble prior to the meeting to be excused. Petitioner did not attend the Saturday meeting and was not excused in advance. Four other employees contacted Ms. Trimble ahead of time and explained that they would be unable to attend due to schedule conflicts. Those employees were excused. When Ms. Trimble contacted Petitioner later in the day, Petitioner told Ms. Trimble that she had been ill, and in bed all day. That evening Ms. Trimble also reviewed the security camera video of the one hour period the previous Thursday during which Petitioner and Mr. Hayes had been alone in the restaurant, and during which the suspect comments had reportedly been made. In reviewing the video, Ms. Trimble specifically watched for physical contact, lingering conversations, and body language. At hearing, Ms. Trimble related her observations from the restaurant video as follows: So I watched the tape. Brian basically stayed back in the kitchen. Uh, we have side work we do. We make garlic bread. We make boxes. We do little oil containers for to-go salads. And Brian was back doing that almost the entire time. Once I saw him go up to the waitress station and get a beverage and bring it back. Amanda basically was at the register. She would come back every once in a while, hang a ticket, kind of stand there and chitchat until, uh – until, uh, a salad was given to her or something like that. So, um, but mainly they were both in their own areas. I did not see anything that indicated that there was anything improper going on. Following her review of the surveillance video Ms. Trimble concluded that there was no basis to believe that Mr. Hayes had engaged in any form of sexual harassment against Petitioner. The following day, Sunday, September 29, 2012, Ms. Trimble met with Petitioner regarding her absence from the mandatory meeting the day before. At this meeting Ms. Trimble informed Petitioner that because she failed to attend the mandatory meeting without being excused, and had failed to even call Ms. Trimble to explain she was ill and would be unable to attend, her employment was terminated. A former employee of Respondent, Lindsey Yauch, testified on behalf of Petitioner. Ms. Yauch testified that she had once missed a mandatory meeting called by Ms. Trimble but had not been fired as a result. However, on cross-examination Ms. Yauch could not remember the purpose, date, or any other details surrounding the meeting. Ms. Trimble’s testimony regarding the meeting that Ms. Yauch missed was more precise. Ms. Trimble recalled that it was a “safe-staff meeting”, which is a food-handler’s course that all employees must take. Because all 27 of Respondent’s employees were required to take the class, it was offered on two separate dates, and employees were permitted to choose which session they would attend. Ms. Yaugh had chosen to attend the first session, but overslept and missed the class as a result. Since a second class offering was still available, Ms. Yaugh was permitted to attend the second session, which she did. There is no credible evidence in this record that Petitioner was treated differently than other similarly situated employees when she was terminated for missing a mandatory meeting. At hearing Ms. Trimble testified that Petitioner's termination had nothing to do with her gender or the alleged comments made by Brian Hayes. Rather, Petitioner’s termination was the result of her missing a mandatory staff meeting without excuse. This testimony is credible. To his credit, in his closing statement counsel for Petitioner candidly acknowledged that, even if true, the comments made by Mr. Hayes would not constitute sexual harassment.
The Issue The issue is whether Petitioner's Charge of Discrimination should be dismissed as untimely pursuant to Section 760.11, Florida Statutes.
Findings Of Fact Petitioner's Charge of Discrimination dated June 2, 1998, alleges that Respondent discriminated against him because of his age and in retaliation for opposing illegal behavior. FCHR received the Charge of Discrimination on June 18, 1998. For purposes of this Recommended Order of Dismissal, it is assumed that the Charge of Discrimination was timely filed with FCHR. As of December 15, 1998, 180 days after Petitioner filed his Charge of Discrimination, FCHR had not assigned an investigator to investigate Petitioner's complaint or taken any other action related to the complaint. As of January 19, 1999, 35 days after December 15, 1998, Petitioner had not requested an administrative hearing. By letter dated June 2, 1999, Petitioner requested FCHR to forward his complaint to the Division of Administrative Hearings. FCHR received the request for an administrative hearing on June 7, 1999. This request was filed 354 days after June 18, 1998, 174 days after December 15, 1998, and 139 days after January 19, 1999. Petitioner does not argue or present any facts to support a finding that the doctrines of equitable tolling or excusable neglect apply in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is
The Issue The issue in this case is whether the Petitioner timely filed a complaint of discrimination in accordance with the provisions of Chapter 760, Florida Statutes (2009).
Findings Of Fact Prior to November 28, 2007, the Petitioner was employed by the Respondent. On November 26, 2008, the Petitioner sent a Technical Assistance Questionnaire (TAQ) to the Florida Commission on Human Relations (FCHR). The TAQ was submitted via facsimile transmission and was not signed. The Petitioner believed she was complying with the directives of the FCHR website and that follow-up assistance (from the FCHR) would not be required. The Petitioner did not understand that a signature was required, notwithstanding the place for same (along with a date) on page 2 of the TAQ. The Petitioner maintains that the FCHR website instructions were unclear and that she erroneously relied on the directions that did not specify she was required to sign the TAQ. The Petitioner filed a signed Charge of Discrimination with the FCHR on January 14, 2009. On February 5, 2009, the Petitioner received a "Notice of Receipt of Complaint" from the FCHR. At the same time, a copy of the complaint was furnished to the Respondent, who was then, presumably, put on notice of the Petitioner's charge. The FCHR did not advise the Petitioner that the TAQ had to be signed. In the course of its review of the instant charge, the FCHR entered a determination of "untimely." Per the FCHR's assessment, the charge of discrimination was filed more than 365 days from the last incident or act of discrimination. Thereafter, the Petitioner elected to file a Petition for Relief to challenge the determination and to seek relief against the Respondent. The Commission then forwarded the matter to the Division of Administrative Hearings for formal proceedings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a Final Order dismissing the Petitioner's claim of discrimination. DONE AND ENTERED this 29th day of September, 2009, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 2009. COPIES FURNISHED: Mark Levitt, Esquire Allen, North & Blue 1477 West Fairbanks Avenue, Suite 100 Winter Park, Florida 32789 Marie C. Perez 517 29th Street West Palm Beach, Florida 33407 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact By Exhibit 4, the Respondent, on April 4, 1972, was found guilty of urging and uttering a check, unlawful possession of a counterfeit operator's license, and grand larceny. Adjudication of guilt was withheld. By Exhibit 3, Respondent on June 27, 1975 was found guilty of conspiracy to commit a felony, to wit: obtain Schedule II controlled substances by fraud and misrepresentation, and forgery.
The Issue Whether the Petitioner's application for licensure as a yacht and ship salesman should be approved or denied.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes, is the state agency responsible for licensing and regulating yacht and ship brokers and salespersons in Florida. Section 326.003, Florida Statutes (1997). On July 28, 1998, the Division received an application for a yacht and ship salesperson's license from Richard Badolato. Question 13 on the application solicits information of the applicant's criminal history as follows: Have you ever been convicted of a crime, either pled or been found guilty, or entered a plea of nolo contendere (no contest), even if adjudication was withheld? NOTE: This question applies to any violation of the laws of any municipality, county, state, or nation, including traffic offenses (but not parking, speeding, inspection or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. Your answer to this question will be checked against local and state records. Failure to answer this question accurately could cause denial of licensure. After Question 15 of the application, the following statement appears in bold type: "If your answer to question 13, 14, or 15 is Yes, attach your complete signed statement of the charges and facts, together with the dates, name and location of the court in which the proceedings were held or are pending." Mr. Badolato answered Question 13 in the affirmative, and he signed the application, thereby certifying that "the foregoing information is true and correct to the best of my knowledge and belief." Mr. Badolato did not provide the statement of particulars which must be submitted by those answering Question 13 in the affirmative. In a letter dated July 28, 1998, the Division notified Mr. Badolato that his application was incomplete and that he should, among other things, provide a complete written explanation of his criminal history. In response to this letter, Mr. Badolato provided a signed statement in which he stated: "I was arrested and charged with possession of marj. in 1981." Mr. Badolato also provided a telephone number on the statement, indicating that he could be contacted at that number if the Division had any questions. Pursuant to the provisions of Section 326.004(15), the Division issued a 90-day temporary license to Mr. Badolato, pending completion of the criminal history analysis that is done on all applicants by the Florida Department of Law Enforcement. The Division subsequently received a report from the Federal Bureau of Investigation which revealed that Mr. Badolato had three drug-related felony convictions, as well as an arrest on June 22, 1977, which resulted in a charge of possession of marijuana with intent to distribute. On August 24, 1981, Mr. Badolato was convicted in federal district court in Brunswick, Georgia, of conspiracy to smuggle marijuana; he was sentenced to ten years in prison and ordered to pay a $30,000 fine. On October 23, 1981, Mr. Badolato was convicted in federal district court in Miami, Florida, of conspiracy to distribute cocaine; he was sentenced to thirty months in prison, to run consecutively with the ten-year sentence in the Georgia case. On January 31, 1989, Mr. Badolato was convicted in federal district court in Maryland of conspiracy to distribute marijuana; he was sentenced to thirty-six months in prison, to run concurrently with any sentence imposed for a violation of parole. Mr. Badolato was released from prison in 1991 and successfully completed parole in December 1996 with respect to the 1989 conviction. In late 1997, Mr. Badolato received a letter advising him that he might be eligible for clemency. An attorney acting on behalf of Mr. Badolato filed an application for clemency with the Florida Parole Commission. Although Mr. Badolato has never seen this application, he assumes that the file developed during review of the application contains complete information regarding his criminal history.2 When the Division received the Federal Bureau of Investigation report, Peter Butler, head of the Division's general enforcement section, contacted Mr. Badolato by telephone, read to him the statement in the application quoted in paragraph 4 above, and asked him if he wanted to amend his application. Because he could not remember the exact dates of his three felony convictions, Mr. Badolato responded by referring Mr. Butler to the Clemency Board if Mr. Butler wanted to obtain further information about Mr. Badolato's criminal history. Mr. Badolato acknowledged in his testimony that he should have been more thorough in completing his application for licensure, that he was lazy and stupid for not being more forthcoming in the application, and that he did not intend to mislead the Division. He believed that, by answering "Yes" to Question 13 and admitting that he was arrested and charged with possession of marijuana in 1981, he had provided enough information to alert the Division that he had a criminal history. He also assumed that it would be very easy for the Division to obtain complete information about his background merely by running a computer check and by reviewing the information in his clemency application file. From 1991, when he was released from prison, until December 1998, Mr. Badolato was involved in the restaurant business in a managerial capacity, and, as part of his duties, he handled large sums of money. No money in his care was ever found missing, and no adverse employment actions were taken against him during this time. In addition, during the time he was on parole, Mr. Badolato periodically submitted to random drug-testing and never failed a test. The evidence presented by Mr. Badolato is not sufficient to establish that he is of good moral character. He admitted in his answer to Question 13 on the application that he had been convicted of a felony, yet he included in the statement which he filed as part of the application a vague, incomplete, misleading, and inaccurate reference to an arrest and charge of possession of marijuana in 1981.3 Furthermore, Mr. Badolato certified by his signature on the application form that the information he provided was "true and correct to the best of [his] knowledge and belief," when he was certainly fully aware that he had three separate felony convictions. Mr. Badolato presented evidence of his good employment history subsequent to his release from prison in 1991, his successful termination of probation, and his faithful payments on the $30,000 fine imposed in 1981, all of which tend to show rehabilitation and good moral character. However, Mr. Badolato's failure to include in his application complete and accurate information regarding his criminal history tends to show lack of rehabilitation and lack of good moral character. On balance, Mr. Badolato's failure to disclose in his application his complete criminal history outweighs the evidence he presented to show rehabilitation and good moral character.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Land Sales, Condominiums, and Mobile Homes, enter a final order denying Richard Badolato's application for licensure as a yacht and ship salesperson. DONE AND ENTERED this 16th day of August, 1999, in Tallahassee, Leon County, Florida. 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 16th day of August, 1999.
The Issue The issues to be determined in this case are whether Respondent should pay the administrative penalty, investigative costs, and attorney's fees, and undertake the corrective actions that are demanded by the Florida Department of Environmental Protection ("Department") in its Notice of Violation, Orders for Corrective Action, and Administrative Penalty Assessment (“NOV”).
Findings Of Fact The Department is the administrative agency of the state of Florida with the power and duty to protect Florida's air and water resources and to administer and enforce the provisions of chapters 376 and 403, Florida Statutes, and the rules promulgated thereunder in Florida Administrative Code Title 62. Joshua Putnam is a natural person who is currently incarcerated in the Columbia County Correctional Institution. Mr. Putnam has been incarcerated since February 16, 2012, for the theft of diesel fuel. On or about January 20, 2012, Mr. Putnam discharged 25 to 50 gallons of diesel fuel onto the ground in the backyard of a residence located at 433 Lena Street, St. Augustine, Florida (“the property”). The discharge resulted in “contamination,” as defined in rule 62-780.200(9). Mr. Putnam has not initiated a site assessment or remediated the contamination. The property is owned by Tammy Putnam. She and the Department entered into a Consent Order. The Consent Order was not filed with DOAH, but it is reasonable to assume that the Consent Order addresses assessment and remediation of the contamination on her property. The Department states that it provided Mr. Putnam an opportunity to demonstrate that he is financially unable to assess and remediate the contamination, but the Department did not receive all the documentation it requested from Mr. Putnam. Mr. Putnam has not been employed for six or seven years and is currently unable to pay to clean up the contamination or to pay the administrative penalties. Mr. Putnam admitted liability and expressed his intent to remedy the situation as soon as he is released from prison. His current release date is May 5, 2015. While investigating this matter, the Department incurred $1,000 in costs.
Findings Of Fact Petitioner is the state licensing and regulatory agency charged with the responsibility and duty to prosecute licensees under Chapters 455 and 475, Florida Statutes. Respondent holds Florida real estate license 0315624. Until May 25, 1993, Respondent was licensed as a salesperson with Richard J. Moncello, Monard Realty and Investments, 4241 John Young Parkway, Orlando, Florida 32804. The fee arrangement between Respondent and Mr. Moncello provided that Respondent received 90 percent of the commission on her transactions and Mr. Moncello received 10 percent. Respondent and Mr. Moncello had been friends since 1982. On April 21, 1993, Respondent negotiated a contract between Mr. and Mr. Jerrod Zlatkiss, sellers, and Ms. Julie B. Maienzi, buyer, for the purchase of real property for $42,000. Mr. Moncello had no knowledge of the transaction. Respondent was in the employ of Mr. Moncello at the time. The transaction closed on April 27, 1993. The total commission due from the sellers was $1,567.57. Of that amount, Mr. Moncello was entitled to $156.75 under the fee arrangement between Respondent and Mr. Moncello. At the closing, the closing agent issued check number 8422 for $567.57 to Respondent in part payment of the commission due from the sellers. The buyer executed a promissory note for $1,000 in favor of Respondent. Respondent delivered the check for $567.57 to Respondent's mother. Respondent's mother deposited the check to her account and subsequently issued a check to Mr. Moncello for $57.00. Respondent did not have a checking account. Her mother took care of Respondent's affairs. Respondent had been injured in an automobile accident and was taking prescription drugs for pain. She was incapable of operating a motor vehicle and had to be driven to and from the closing. Respondent has little or no recollection of the events surrounding the transaction in question, including the day of closing. Mr. Moncello subsequently discovered the transaction and terminated Respondent. The amount due and owing Mr. Moncello is $100. Respondent has caused the buyers to execute a new mortgage note in favor of Monard Investors Services, Inc., in the amount of $1,000.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found not guilty of violating Section 475.25(1)(b), Florida Statutes. It is further recommended that Respondent be found guilty of violating Sections 475.25(1)(a) and 475.42(1)(b), be reprimanded and placed on probation for one year. DONE and ENTERED this 25th day of April, 1994, in Tallahassee, Florida. DANIEL MANRY 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 25th day of April, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 83-6802 Petitioner's Proposed Findings of Fact 1-15 Accepted in substance Respondents' Proposed Findings of Fact Respondent did not submit proposed findings of fact COPIES FURNISHED: Ms. Mary K. Conner, pro se 522 Orange Drive, #16 Altamonte Springs, Florida 32701 James H. Gillis, Esquire Senior Attorney Florid Department of Business and Professional Regulation Division of Real Estate Legal Section-Suite N308 400 W. Robinson Street, North Tower Orlando, Florida 32801-1772 Darlene F. Keller Division Director Division of Real Estate Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Jack McRay, Esquire Acting General Counsel Department of Professional Regulation 1940 N. Monroe Street Tallahassee, Florida 32399-0729
The Issue Whether Respondent, G and F Renovations, Inc. (Respondent), timely challenged Petitioner's proposed agency action; and, if not, whether pursuant to the doctrine of equitable tolling Respondent is entitled to an administrative hearing to challenge the proposed agency action.
Findings Of Fact Petitioner is the state agency charged with the responsibility of enforcing and ensuring employers meet the requirements of chapter 440, Florida Statutes. The law in Florida requires employers to maintain appropriate workers' compensation coverage for their employees. At all times material to this case, Respondent was doing business in Florida and was represented by Pedro Malaret, attorney at law. Prior to May 1, 2014, Michael Robinson, a compliance investigator employed by Petitioner, visited a job site wherein workers were engaged in the business of construction/roofing. Robinson was advised by the workers at the site that they were employed by Respondent. Robinson then investigated the matter to determine whether the persons at the job site were covered by Respondent's workers' compensation insurance. To do so, he spoke to the supervisor at the site and others to whom he was referred. After verifying the persons on the job site were not on the list of Respondent's covered employees, and consulting with his supervisor, Robinson posted a Stop-Work Order at the job site. The Stop-Work Order provided, in pertinent part: You have a right to administrative review of this action by the Department under sections 120.569 and 120.57, Florida Statutes. To obtain review, you must file a written petition requesting review. If you dispute a material fact contained in this action, you are entitled to a hearing under Sections 120.569 and 120.57(1), Florida Statutes, at which you may be represented by counsel, present evidence and argument on the issue(s), examine witnesses, submit a proposed recommended order, and file exceptions to the recommended order of the Administrative Law Judge. If you do not dispute a material fact contained in this action, you are entitled to a hearing under section 120.57(2), Florida Statutes, at which you may be represented by counsel, present documentary evidence, and present a written statement in opposition to this action. * * * You must file the petition for hearing so that it is received by the Department within twenty-one (21) days of your receipt of this agency action. The petition must be filed with Julie Jones, DFS Agency Clerk, Department of Financial Services, 612 Larson Building, 200 East Gaines Street, Tallahassee, Florida 32399-0390. FAILURE TO FILE A PETITION WITH THE TWENTY-ONE(21) DAYS CONSTITUTES A WAIVER OF YOUR RIGHT TO ADMINISTRATIVE REVIEW OF THE AGENCY ACTION. The Stop-Work Order and an Order of Penalty Assessment was served on Respondent's corporate agent, or authorized agent, by a process server. Respondent did not timely file a petition challenging the agency's proposed action. Instead, by email only, Respondent's counsel directed a letter to Robinson that provided: This firm has the pleasure of representing G & F Renovations, Inc. All papers to be served on G & F should be mailed or delivered to this office. My client wishes to resolve all issues relating to the matter amicably and as quickly as possible. As such, please forward a list of all documents needed to my office so that I may get them to you as soon as possible. Should you require any further documentation, please feel free to contact me either at my office or on my cell . . . I look forward to working with your [sic] to resolve this matter. Contrary to the offer to provide documents to Petitioner, Respondent did not provide business records. Eventually, an Amended Order of Penalty Assessment was issued and provided by email to Respondent's counsel at his email address of record. The Amended Order of Penalty Assessment was sent to counsel on or about October 6, 2014. Respondent did not timely file a petition to challenge the proposed agency action. Respondent did not timely challenge the Stop-Work Order and did not timely challenge the Amended Order of Penalty Assessment. Respondent did not provide any assistance to resolve the issues presented by the Stop-Work Order. When Respondent failed to timely respond to the Petitioner's requests for information, refused certified mail addressed to its office or corporate representative, and failed to timely challenge Petitioner's proposed action, a final order was entered on or about July 8, 2015. Thereafter, Respondent filed an appeal claiming Petitioner had not properly served notice of its proposed action. This case was initiated in response to the appeal to address the issue of whether the Petitioner lulled the Respondent into inaction and thereby tolled the time within which to file an administrative challenge to the proposed agency action. At no time did Respondent deny allegations pertinent to the instant case, including whether the workers at the construction job site were employed by Respondent. If the workers at the construction job site were appropriately covered by workers' compensation insurance or were exempt from coverage, Respondent did not assert such defense. In fact, Respondent did not cooperate to provide any information to Petitioner that would "resolve all issues relating to the matter amicably and as quickly as possible." Petitioner provided notice to Respondent of the procedural requirements to challenge the agency action and did not lull Respondent into a false sense of security or inaction. To the contrary, Respondent attempted to circumvent its legal responsibilities by refusing certified mail and failing to provide business records in a timely manner. Respondent seeks to benefit from its inaction. Had Respondent provided documents to support any defense to the Stop-Work Order and initial assessment of administrative fine, the issues could have been resolved. The weight of the credible evidence supports the finding that Respondent did not timely challenge the proposed agency action within the 21 days allowed by law. In short, Respondent ignored the Stop-Work Order and the legal claims it presented.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Financial Services, Division of Workers' Compensation, enter a final order determining that Respondent failed to timely file a petition to challenge the agency's proposed action and its failure to do so was not the result of equitable tolling. DONE AND ENTERED this 6th day of December, 2016, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 6th day of December, 2016. COPIES FURNISHED: Michael Joseph Gordon, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399 (eServed) Kelli B. Hastings, Esquire Law Office of Kelli B. Hastings, PLLC 4005 North Orange Blossom Trail Orlando, Florida 32804 (eServed) Pedro Malaret, Esquire Malaret Law Firm, PLC 732 North Thorton Avenue Orlando, Florida 32803 Julie Jones, CP, FRP, Agency Clerk Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390 (eServed)
The Issue The issue is whether Respondent willfully has failed or refused to file a CE Form 1, Statement of Financial Interests (Form 1), for 2015, in violation of section 112.3145(8)(c), Florida Statutes (2018).
Findings Of Fact Respondent is presently employed by Miami-Dade County as a Purchasing Specialist in the Water and Sewer Department. She has worked for Miami-Dade County continuously since 1997 when she was hired as a clerical worker in the Water and Sewer Department. She assumed procurement duties when she earned a promotion in 2006 to her present position. In 2011, changes in internal operations in the Water and Sewer Department resulted in the assignment to Respondent of spending authority of up to $25,000, and Respondent has filed Forms 1, evidently without litigation, for 2011, 2012, 2013, 2014, and 2016. In her job, Respondent routinely documents whether county vendors have performed their contractual obligations. When a vendor fails to perform, Respondent contacts the vendor in an attempt to secure performance. If the vendor's nonperformance persists, Respondent places the vendor on probation. Prior to her employment with Miami-Dade County, Respondent worked for 17 years as a clerical worker with AT&T. By May 15, 2016, the Commission transmitted to the Miami-Dade County Supervisor of Elections a list of persons, including Respondent, who were required to file a Form 1 for 2015 by the deadline of July 1, 2016. On February 26, March 25, and April 22, 2016, the Supervisor of Elections emailed Respondent reminders to file timely her 2015 Form 1, and Respondent received each of these email reminders. On May 27, 2016, the Supervisor of Elections mailed Respondent a detailed letter reminding her of the obligation to file a Form 1 by July 1, supplying the necessary form, and indicating how to file the completed form. Respondent received this letter. Respondent testified that, in the spring of 2016, she was under considerable stress from a marital separation that had commenced when her husband had moved out of the marital home in February 2015. Undoubtedly, Respondent was distraught over the prospect of the failure of a marriage of 35 years' duration, but she timely filed her 2014 Form 1 shortly after the separation had taken place. Three factors are important for determining whether Respondent's failure to file from July 2, 2016, through August 30, 2017, was willful. First, Respondent's employment history includes many years of clerical work and 12 years of managing contracts for the Water and Sewer Department. Clearly, Respondent understands the importance of paperwork, knows how to complete and file forms, and recognizes that there are consequences for failing to file completed forms timely. Second, Respondent had filed four Forms 1 for the four years preceding 2015, so she was well aware of her annual duty to file this financial disclosure and of the general timeframe for when the form was due. Third, the Commission and Respondent's Supervisor of Elections showered Respondent with notices to file the 2015 Form 1. In addition to the above-noted communications prior to July 1, on July 29, 2016, the Supervisor of Elections mailed Respondent, by certified mail, a detailed letter advising that she was delinquent in filing a Form 1, but could file within a grace period that ended on September 1, 2016. This letter warns that a fine of $25 per day, up to $1500, would begin to accrue if the form is not filed by September 1 and, if Respondent fails to file the form within 60 days after the expiration of the grace period on September 1, "you will also be subject to penalties provided in Florida Statute 112.317." Respondent received this delinquency notice. On August 17, 2016, the Commission issued a courtesy notice, in the form of a bright orange postcard, advising Respondent that the grace period for filing the 2015 Form 1 would expire on September 1, 2016, and warning that she would accrue a fine of $25 per day (Automatic Fine) until she filed the form or accrued a total of $1500 in fines (Maximum Automatic Fine). On September 7, 2016, the Commission sent a courtesy letter advising Respondent that the grace period had expired on September 1, and the Automatic Fine was accruing and would continue to accrue until it reached the Maximum Automatic Fine. Respondent received these courtesy communications. On March 2, 2017, the Commission issued to Respondent a Notice of Assessment of Automatic Fine, which is the Maximum Automatic Fine. The notice advises how to appeal the Maximum Automatic Fine and even identifies acceptable grounds for setting aside the fine. The notice concludes that, if Respondent failed to appeal or pay the Maximum Automatic Fine within 30 days, a default order would be issued that could refer the matter to a collection agency or her employer for withholding a portion of her salary until the fine was paid. The notice also warns that the Commission could impose "[a]n additional civil penalty . . . if . . . a complaint is filed against you pursuant to Section 112.324, Florida Statutes." Respondent received this notice. On May 23, 2017, the Commission issued a Final Notice of Assessment of Automatic Fine for Failure to Timely File Form 1, Statement of Financial Interests. This letter advises that Respondent had waived her right to appeal the Maximum Automatic Fine and restates the rights of the Commission to obtain payment of the fine. Respondent received this notice. On August 2, 2017, the Commission issued a Notification of Issuance of Default Final Order advising Respondent that, if she failed to pay the Maximum Automatic Fine by September 7, 2017, the Commission would refer the matter to a collection agency. This letter warns that a failure to pay or arrange to pay the fine by the deadline would result in a copy of the Default Final Order being sent to Respondent's agency head. Respondent received this notice. On August 31, 2017, Respondent filed her 2015 and 2016 Forms 1. Based on the above-cited facts, Respondent's failure to file the 2015 Form 1 from July 2, 2016, through August 30, 2017, was intentional and, thus, willful. Addressing solely the collection of the Maximum Automatic Fine, on September 7, 2017, the Commission sent Respondent a letter stating that a recent statutory change required the Commission to notify her agency head to implement withholding from her salary. On October 11, 2017, the Commission sent a letter to the Finance Manager of the Miami-Dade County Finance Department. The letter states that, "[t]o timely resolve this matter," which refers to the Maximum Automatic Fine, the Commission requested that the manager withhold a portion of Respondent's salary and remit it to the Commission. The Finance Manager implemented salary withholding, typically $174.11 per month, as of November 6, 2017, and the Commission received the final payment on March 6, 2018, for a total of $1500. None of Respondent's Forms 1 for the years 2011 through 2016 discloses financial interests above the disclosure thresholds. At this point, as she explained tearfully at the hearing, Respondent is merely trying to keep her job so she can work a few more years and retire with a pension on which she can live.
Recommendation It is RECOMMENDED that the Commission enter a final order dismissing the Order Finding Probable Cause and this section 112.3145(8)(c) proceeding. DONE AND ENTERED this 8th day of October, 2018, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 2018.
