The Issue The issues in these cases are whether Respondent violated sections 489.129(1)(i), 489.129(1)(o), and 489.1425, Florida Statutes (2007 & 2009),1/ and, if so, what discipline should be imposed.
Findings Of Fact At all times material to the administrative complaints, Mr. Organo was licensed as a certified general contractor in the State of Florida, having been issued license number CGC 1512005. At all times material to the administrative complaints, Mr. Organo was the primary qualifying agent for Bennett Marine Contracting and Construction, Inc. (Bennett Marine). On or about September 29, 2007, Jean Walker (Ms. Walker) entered into a contract with Bennett Marine to construct a dock and a tiki hut at 12305 Boat Shell Drive. The contract (the Walker contract) provided that the contractor would make application for a permit from Lee County, Florida. Mr. Organo signed the Walker contract for Bennett Marine. It is undisputed that the Walker contract did not include a written statement explaining Ms. Walker's rights under the Florida Homeowners' Construction Recovery Fund. On October 24, 2007, Bennett Marine applied for a permit to construct the dock. The application was denied October 29, 2007, because the site plan contained the tiki hut. When the tiki hut was removed from the application, the dock permit was approved. Ms. Walker paid Bennett Marine draws on the construction project. The payments were given to Mr. Organo. The payments totaled $9,200. By February 2008, a tiki hut had been constructed on Ms. Walker's property without a permit. Because the tiki hut was built without a permit, and it was in an illegal location, Lee County required that the tiki hut be removed. By April 2008, the tiki hut had been removed, and another tiki hut had been built in its place. Again, no permit was pulled for the tiki hut, and it was placed in an illegal location. Again, Lee County required that the tiki hut be removed. Mr. Organo subcontracted the construction of the tiki hut to Rick Fewell Chickees. Mr. Fewell of Rick Fewell Chickees, a Seminole Indian,2/ applied for a permit to build a tiki hut, but the application was rejected because the plot plan was not to scale, and the tiki hut did not meet the setback requirements from the water. Another tiki hut was built, and, in March 2009, Lee County again cited Ms. Walker for not having a permit for the tiki hut and for not meeting the setback requirements. In 2010, a permit was finally issued for the construction of a tiki hut on Ms. Walker's property. The permit was issued to Ms. Walker. Bennett Marine commenced work on the tiki hut without obtaining a building permit. On January 5, 2010, Bennett Marine entered into a contract with Chris Bevan (Mr. Bevan) to remove an existing dock, uninstall an existing boatlift, construct a dock, construct a tiki hut, and to reinstall the boatlift. The contract (the Bevan contract) required that the contractor obtain a City of Cape Coral building permit. The Bevan contract was signed by Mr. Organo for Bennett Marine. It is undisputed that the Bevan contract did not contain a written statement explaining Mr. Bevan's rights under the Florida Homeowners' Construction Recovery Fund. On March 17, 2010, Bennett Marine showed up on Mr. Bevan's property and commenced work, by knocking down a cantilever dock that was hanging over a seawall, removing old decking from the boatlift, and rough-framing part of the new dock. Bennett Marine worked until approximately March 25, 2010. That was the last that Mr. Bevan heard from Mr. Organo or Bennett Marine. Mr. Organo applied for a building permit for the Bevan contract on April 1, 2010. The permit was approved on April 13, 2010, but it was not issued. On May 14, 2010, the City of Cape Coral placed a stop-work order on the Bevan project. Mr. Bevan applied for an owner-builder permit for the dock construction, and the permit was issued on June 9, 2010. Mr. Bevan completed the dock construction at additional expense.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Mr. Organo violated sections 489.129(1)(i), 489.129(o), and 489.1425; imposing a fine of $250 each for the Walker contract and the Bevan contract for a total of $500, for failure to advise the owners of the recovery fund; imposing a fine of $3,000 and placing Mr. Organo on probation for two years for beginning work without a permit for the Walker contract; and imposing a fine of $1,000 and placing Mr. Organo on probation for one year for beginning work on the Bevan contract without a permit with the one-year probation to run concurrently with the probation imposed for the Walker contract. DONE AND ENTERED this 13th day of April, 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 13th day of April, 2011.
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File in this proceeding. A copy of the Order is attached hereto as Exhibit A.
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT'S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. Jul 28 2009 10:37 a7/2e/28e89 18:28 B589222679 DCA LEGAL PAGE @4/ae FINAL ORDER NO. DGA09-GM-266 CERTIFICATE OF FILING AND SERVICE LHEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct Waite have been furnished to the persons listed below in the manner described, on this ay of July, 2009. a Zp 2 Paula Ford fency Clerk Florida Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 U. §. Mail: Jerry Coleman, Esq- Jerry Coleman, PI. 201 Front Street, Suite 203 Key West, Florida 33041 Derek V. Howard, Esq. Monroe County Attorney's Office 1111 12" Street, Suite 408 Key West, Florida 33040 Barton W. Smith, Esq. Barton Smith, P.L. 309 Whitehcad Street Key West, Florida 33040 Richard E. Grosso, Esq. Everglades Law Center, Inc. 3305 College Avenue Fort Lauderdale, Florida 33314 Robert N. Hartsell, Esq. Everglades Law Center, Inc. 818 U.S. Highway 1, Ste. 8 North Palm Beach, Florida 33408-3857 Sherry A. Spiers, Esq. Robert C. Apgar, Esq. Greenberg Traurig, P.A. 101 East College Avenue Tallahassee, Florida 32301 Jul 28 2009 10:37 a7/2e/28e89 18:28 B589222679 DCA LEGAL PAGE @5/@8 FINAL ORDER NO. DCA09-GM-266 Richard Barfield, Esq. Navy Office of the General Counsel Naval Facilities Engineering Command Southeast United States Navy Box 30, Building 903 Jacksonville, Florida 32212-0102 Hand Delivery: Richard E. Shine, Esquire L. Mary Thomas, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Jul 28 2009 10:37 a7/2e/28e89 18:28 B589222679 DCA LEGAL PAGE 86/88 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS DEPARTMENT OF COMMUNITY AFFAIRS, Petitioner, and PROTECT KEY WEST AND THE FLORIDA KEYS, INC., d/b/a LAST STAND AND THE DEPARTMENT OF THE NAVY, Intervenor, vs. Case No. 08-2035GM MONROE COUNTY, Respondent , and ROBBIE”"S SAFE HARBOR MARINE ENTERPRISES, INC.; SAFE HARBOUR PROPERTIES, LLC; AND KW RESORT UTILITIES CORP., Intervenor.
The Issue The issue is whether Petitioners' Motions for Attorney's Fees should be granted, and if so, in what amount.
Findings Of Fact Based upon the stipulation of counsel, the papers filed herein, and the underlying record made a part of this proceeding, the following findings of fact are determined: Background In this attorney's fees dispute, Petitioners, Anderson Columbia Company, Inc. (Anderson Columbia) (Case No. 00-0754F), Panhandle Land & Timber Company, Inc. (Panhandle Land) (Case No. 00-0755F), Support Terminals Operating Partnership, L.P. (Support Terminals) (Case No. 00-0756F), Commodores Point Terminal Corporation (Commodores Point) (Case No. 00-0757F), and Olan B. Ward, Sr., Martha P. Ward, Anthony Taranto, Antoinette Taranto, J.V. Gander Distributors, Inc., J.V. Gander, Jr., and Three Rivers Properties, Inc. (the Ward group) (Case No. 00-0828F), have requested the award of attorney's fees and costs incurred in successfully challenging proposed Rule 18-21.019(1), Florida Administrative Code, a rule administered by Respondent, Board of Trustees of the Internal Improvement Trust Fund (Board). In general terms, the proposed rule essentially authorized the Board, through the use of a qualified disclaimer, to reclaim sovereign submerged lands which had previously been conveyed to the upland owners by virtue of their having filled in, bulkheaded, or permanently improved the submerged lands. The underlying actions were assigned Case Nos. 98- 1764RP, 98-1866RP, 98-2045RP, and 98-2046RP, and an evidentiary hearing on the rule challenge was held on May 21, 1998. That proceeding culminated in the issuance of a Final Order in Support Terminals Operating Partnership, L.P. et al. v. Board of Trustees of the Internal Improvement Trust Fund, 21 F.A.L.R. 3844 (Div. Admin. Hrngs., Aug. 8, 1998), which determined that, except for one challenged provision, the proposed rule was valid. Thereafter, in the case of Anderson Columbia Company, Inc. et al. v. Board of Trustees of the Internal Improvement Trust Fund, 748 So. 2d 1061 (Fla. 1st DCA 1999), the court reversed the order below and determined that the rule was an invalid exercise of delegated legislative authority. Petitioners then filed their motions. Fees and Costs There are eleven Petitioners seeking reimbursement of fees and costs. In its motion, Anderson Columbia seeks reimbursement of attorney's fees "up to the $15,000 cap allowed by statute" while Panhandle Land seeks identical relief. In their similarly worded motions, Support Terminals and Commodores Point each seek fees "up to the $15,000 cap allowed by statute." Finally, the Ward group collectively seeks $9,117.00 in attorney's fees and $139.77 in costs. In the Joint Stipulations of Fact filed by the parties, the Board has agreed that the rate and hours for all Petitioners "were reasonable." As to all Petitioners except the Ward group, the Board has further agreed that each of their costs to challenge the rule exceeded $15,000.00. It has also agreed that even though they were not contained in the motions, requests for costs by Support Terminals, Commodores Point, Anderson Columbia, and Panhandle Land in the amounts of $1,143.22, $1,143.22, $1,933.07, and $1,933.07, respectively, were "reasonable." Finally, the Board has agreed that the request for costs by the Ward group in the amount of $139.77 is "reasonable." Despite the stipulation, and in the event it does not prevail on the merits of these cases, the Board contends that the four claimants in Case Nos. 00-754F, 00-755F, 00-0756F, and 00- 757F should be reimbursed only on a per case basis, and not per client, or $7,500.00 apiece, on the theory that they were sharing counsel, and the discrepancy between the amount of fees requested by the Ward group (made up of seven Petitioners) and the higher fees requested by the other Petitioners "is difficult to understand and justify." If this theory is accepted, it would mean that Support Terminals and Commodores Point would share a single $15,000.00 fee, while Anderson Columbia and Panhandle Land would do the same. Support Terminals and Commodores Point were unrelated clients who happened to choose the same counsel; they were not a "shared venture." Each brought a different perspective to the case since Commodores Point had already received a disclaimer with no reversionary interest while Support Terminals received one with a reversionary interest on June 26, 1997. The latter event ultimately precipitated this matter and led to the proposed rulemaking. Likewise, in the case of Anderson Columbia and Panhandle Land, one was a landowner while the other was a tenant, and they also happened to choose the same attorney to represent them. For the sake of convenience and economy, the underlying cases were consolidated and the matters joined for hearing. Substantial Justification From a factual basis, the Board contends several factors should be taken into account in determining whether it was substantially justified in proposing the challenged rule. First, the Board points out that its members are mainly lay persons, and they relied in good faith on the legal advice of the Board's staff and remarks made by the Attorney General during the course of the meeting at which the Board issued a disclaimer to Support Terminals. Therefore, the Board argues that it should be insulated from liability since it was relying on the advice of counsel. If this were true, though, an agency that relied on legal advice could never be held responsible for a decision which lacked substantial justification. The Board also relies upon the fact that it has a constitutional duty to protect the sovereign lands held in the public trust for the use and benefit of the public. Because lands may be disclaimed under the Butler Act only if they fully meet the requirements of the grant, and these questions involve complex policy considerations, the Board argues that the complexity and difficulty of this task militate against an award of fees. While its mission is indisputably important, however, the Board is no different than other state agencies who likewise are charged with the protection of the health, safety, and welfare of the citizens. The Board further relies on the fact that the rule was never intended to affect title to Petitioners' lands, and all Petitioners had legal recourse to file a suit to quiet title in circuit court. As the appellate court noted, however, the effect of the rule was direct and immediate, and through the issuance of a disclaimer with the objectionable language, it created a reversionary interest in the State and made private lands subject to public use. During the final hearing in the underlying proceedings, the then Director of State Lands vigorously supported the proposed rule as being in the best interests of the State and consistent with the "inalienable" Public Trust. However, he was unaware of any Florida court decision which supported the Board's views, and he could cite no specific statutory guidance for the Board's actions. The Director also acknowledged that the statutory authority for the rule (Section 253.129, Florida Statutes) simply directed the Board to issue disclaimers, and it made no mention of the right of the Board to reclaim submerged lands through the issuance of a qualified disclaimer. In short, while the Board could articulate a theory for its rule, it had very little, if any, basis in Florida statutory or common law or judicial precedent to support that theory. Although Board counsel has ably argued that the law on the Butler Act was archaic, confusing, and conflicting in many respects, the rule challenge case ultimately turned on a single issue, that is, whether the Riparian Rights Act of 1856 and the Butler Act of 1921 granted to upland or riparian owners fee simple title to the adjacent submerged lands which were filled in, bulkheaded, or permanently improved. In other words, the ultimate issue was whether the Board's position was "inconsistent with the . . . the concept of fee simple title." Anderson Columbia at 1066. On this issue, the court held that the State could not through rulemaking "seek to reserve ownership interests by issuing less than an unqualified or unconditional disclaimer to riparian lands which meet the statutory requirements." Id. at 1067. Thus, with no supporting case law or precedent to support its view on that point, there was little room for confusion or doubt on the part of the Board. E. Special Circumstances In terms of special circumstances that would make an award of fees unjust, the Board first contends that the proposed rule was never intended to "harm anyone," and that none of Petitioners were actually harmed. But the substantial interests of each Petitioner were clearly affected by the proposed rules, and the appellate court concluded that the rule would result in an unconstitutional forfeiture of property. The Board also contends that because it must make proprietary decisions affecting the public trust, it should be given wide latitude in rulemaking. It further points out that the Board must engage in the difficult task of balancing the interests of the public with private rights, and that when it infringes on the private rights of others, as it did here, it should not be penalized for erring on the side of the public. As previously noted, however, all state agencies have worthy governmental responsibilities, but this in itself does not insulate an agency from sanctions. As an additional special circumstance, the Board points out that many of the provisions within the proposed rule were not challenged and were therefore valid. In this case, several subsections were admittedly unchallenged, but the offending provisions which form the crux of the rule were invalidated. Finally, the Board reasons that any moneys paid in fees and costs will diminish the amount of money to be spent on public lands. It is unlikely, however, that any state agency has funds set aside for the payment of attorney's fees and costs under Section 120.595(2), Florida Statutes (1999).
The Issue Whether Bill Colon, the Respondent, should be required to pay attorney's fees and costs to Steven B. Feren, the Petitioner, pursuant to Section 112.317(8), Florida Statutes?
Findings Of Fact The Parties. Steven B. Feren served as a member of the City Commission of the City of Sunrise, Broward County, Florida, at all times relevant to this proceeding. Mr. Feren served as a Commissioner from approximately March, 1987 until late 1992. Bill Colon is a citizen of the State of Florida and resides in the City of Sunrise, Florida. Mr. Colon served as a member of the City Commission of the City of Sunrise from approximately 1981 to 1987. Mr. Colon's Ethics Complaint Against Mr. Feren. On or about March 26, 1992, Mr. Colon filed a Complaint against Mr. Feren (hereinafter referred to as the "Complaint") with the Florida Commission on Ethics. The Complaint contained the following allegations: Feren is a City Councilman and now as a City Commissioner is a practicing attorney whose firms [sic] has for a continuous period of time performed legal services, particularly title closings for Universal Title Insurors which is a subsidiary of the Lennar Corporation. This has been a continuous conflict of interest as the Lennar Corporation is a corporation that continually conducts business before the City Commission. It presents plats, zoning changes and other matters relating to their business as a real estate developer in Sunrise. Feren has never filed a conflict of interest form nor has he ever announced at a public hearing that a potential conflict of interest arose because of his vote on any matter involving Lennar Corporation. . . . . Petitioner's Exhibit 1. A letter dated June 10, 1992, (Petitioner's exhibit 4) was sent to Mr. Colon from Peter Ostreich, a staff attorney for the Commission. In the June 10, 1992, letter, Mr. Colon was asked to provide more specific information concerning the allegations of his Complaint: . . . . Section 3 of the complaint form requires the Complainant to provide a detailed description of the facts and the actions of the person named in the complaint, any relevant dates, and the names and addresses of witnesses. The complaint you filed with this office does not contain this required information. In order to undertake a review of the complaint for legal sufficiency, I must request that you first provide us with detailed factual allegations that support your claims, particularly as to the matters of Mr. Feren's conflict of interest. . . . Mr. Ostreich goes on in the letter to ask Mr. Colon to answer specific questions concerning Mr. Colon's allegations against Mr. Feren. In response to Mr. Ostreich's June 10, 1991, letter, Mr. Colon filed another complaint (hereinafter referred to as the "Amended Complaint"), with the Commission. In response to Section 3 of the Amended Complaint Mr. Colon attached a one and one-half page, legal sized, "Statement of Facts." See Petitioner's Exhibit 5. In the Statement of Facts attached to the Amended Complaint, Mr. Colon lectured the Commission concerning Mr. Colon's perception of the Commission's responsibility in investigating his initial Complaint. Mr. Colon also addressed some of the specific questions Mr. Ostreich had asked. In the Statement of Facts attached to the Amended Complaint, Mr. Colon mentioned a telephone call that he made to Lennar Corporation concerning whether Lennar Corporation owned Universal Title Insurors. Although requested to do so by Mr. Ostreich in his letter of June 10, 1991, Mr. Colon did not provide the names of any potential witnesses to Mr. Ostreich. The Commission's Investigation of the Complaint. Robert G. Malone was involved in the Commission's investigation of the Complaint. Mr. Malone spoke by telephone with Mr. Colon concerning the Complaint several times. In the Report of Investigation (Petitioner's Exhibit 2) issued by the Commission on January 16, 1992, at the conclusion of the investigation of the Complaint, the following finding was made: (4) Mr. Colon stated by telephone that he learned that Mr. Feren's law firm performs real estate closings for Universal Title Insurors from an anonymous letter that was mailed to him in February 1991. Mr. Colon said he has no idea who mailed him the letter, and he could not locate the letter for examination, stating that he must have misfiled it in his personal papers. The Complainant acknowledged that, other then [sic] the anonymous letter, he has no evidence which verifies that [Mr. Feren] has performed any work for Universal Title Insurors. Mr. Colon was provided a copy of the Report of Investigation and was aware of the findings contained therein. Mr. Colon did not attempt to contact Mr. Malone or the Commission after receiving the Report of Investigation and question the statement that the only evidence to support his allegations was the anonymous letter. The Commission's Disposition of the Complaint and the Amended Complaint; Mr. Feren's Request for Fees. On March 11, 1992, the Commission entered a public report. Based upon the Report of Investigation and a recommendation from an Advocate for the Commission, the Commission dismissed the Complaint. On or about April 2, 1992, Mr. Feren filed a pleading titled "Respondent's Petition for Attorney's Fees and Costs" with the Commission. Information Relied By Mr. Colon to Support His Allegations Against Mr. Feren. The allegations in the Complaint and the Amended Complaint were based primarily upon an anonymous letter Mr. Colon received in approximately February, 1991 (hereinafter referred to as the "Anonymous Letter"). The Anonymous Letter stated the following: Councilman Colon I know you are concerned about what is going on in Sunrise. Please look into Steve Feren's dealings with DCA. I know that he is doing title closings for them and has kept quiet about them. Check with the City Clerk and the city records you will find that he as never mentioned his working for DCA. He should not be permitted to get away with it. You are the only one who cares what happens in this city. A concerned Taxpayer In filing the Complaint and Amended Complaint, Mr. Colon assumed the following: (a) the reference to "DCA" in the Anonymous Letter was a reference to the Development Corporation of America; (b) Lennar Corporation had purchased Development Corporation of America; (c) Lennar Corporation had appeared before the Sunrise City Commission and, in particular, Mr. Feren; (d) Universal Title Insurors was a subsidiary of Lennar Corporation; (e) Mr. Feren had conducted title closings with Universal Title Insurors; and (f) Mr. Feren had not filed notice of his having worked for Universal Title Insurors or Lennar Corporation. These assumptions are not identified in the Anonymous Letter. The weight of the evidence also failed to prove that any of these assumptions are correct except (a). Mr. Colon's Effort to Verify the Anonymous Letter and the Mr. Colon's Assumptions. At some time after receiving the Anonymous Letter Mr. Colon telephoned the Sunrise City Clerk's office and inquired whether Mr. Feren had filed a form indicating he had a working relationship with Lennar Corporation. Mr. Colon was told that no such disclosure form had been filed. Mr. Colon also telephoned an employee of the City of Sunrise, Joan Vega. Mr. Colon believed that Ms. Vega attended most City Commission meetings. Ms. Vega told Mr. Colon that she had not heard Mr. Feren disclose any conflict of interest concerning Lennar Corporation. Mr. Colon also telephoned Lennar Corporation's Miami office and asked someone whether Universal Title Insurors was a subsidiary of Lennar Corporation. Mr. Colon was told that Universal Title Insurors was a subsidiary of Lennar Corporation. Based upon findings of fact 16, 17 and 18, Mr. Colon attempted to determine whether the assumptions he had made as set out in finding of fact 15(d) and (f). The weight of the evidence failed to prove that Mr. Colon made any effort prior in filing the Complaint or Amended Complaint to verify the assumptions he had made as set out in finding of fact 15(a), (b), (c) or (e). The most significant of the assumptions which Mr. Colon made no effort to verify was the assumption that Mr. Feren had performed closing for Lennar Corporation or Universal Title Insurors. Mr. Colon's Complaint was frivolous and without basis in law or fact. F. Other Alleged Efforts to Verify Mr. Colon's Assumptions: The Anonymous Telephone Call. In addition to the Anonymous Letter and the telephone calls to the Clerk's office, Ms. Vega and Lennar Corporation, Mr. Colon testified during the taking of his deposition of September 8, 1992 (Petitioner's Exhibit 6), that he had received an anonymous telephone call from a man who made allegations similar to those contained in the Anonymous Letter. Mr. Colon, however, failed to disclose this telephone call to the Commission's investigator. He also did not mention the telephone call in response to the questions asked by Mr. Ostreich. Mr. Colon also failed to mention the telephone call during his direct examination during the final hearing in response to a question from counsel for Mr. Feren concerning what Mr. Colon had relied upon in filing the Complaint. Finally, Mr. Colon failed to list the telephone call on Respondent's Exhibit 1, Mr. Colon's list of efforts he purportedly took to verify his charges against Mr. Feren. Based upon the weight of the evidence, it is concluded that Mr. Colon did not receive an anonymous telephone call concerning the allegations against Mr. Feren prior to the filing of the Complaint. Even if such a telephone call had been received, it would add no more support for the specific allegations made by Mr. Colon in his Complaint and Amended Complaint than the Anonymous Letter. H. Other Alleged Efforts to Verify Mr. Colon's Assumptions: Former Mayor Larry Hoffman's Comment. In addition to the Anonymous Letter and the telephone calls to the Clerk's office, Ms. Vega and Lennar Corporation, Mr. Colon testified during the taking of his deposition of September 8, 1992 (Petitioner's Exhibit 6), and during the final hearing of this case that a former Mayor of the City of Sunrise, Larry Hoffman, had told him the following: To the best of my knowledge and belief, Mayor Hoffman said that, he brought to my attention that it had come to his attention that Steven Feren was doing work for Universal Title Insurors. Page 10, Lines 9-12, Petitioner's Exhibit 6. The Report of Investigation, Petitioner's Exhibit 2, does not mention the alleged comment by Mr. Hoffman. Nor is there any indication in the Report of Investigation that any effort was made by the investigator for the Commission to determine if Mr. Hoffman had any knowledge about the incident. In the Report of Investigation, as quoted in finding of fact 10, it is only reported that Mr. Colon "acknowledged that, other then the anonymous letter, he has no evidence which verifies" the charges Mr. Colon made against Mr. Feren. Mr. Colon also did not inform Mr. Ostreich of Mr. Hoffman or the alleged comment that Mr. Hoffman made in response to Mr. Ostreich's letter to Mr. Colon. Based upon the weight of the evidence, Mr. Colon's testimony concerning the alleged comment of Mr. Hoffman is rejected. Even if Mr. Hoffman had made the comment to Mr. Colon, it would add no more support for the specific allegations made by Mr. Colon in his Complaint and Amended Complaint than the Anonymous Letter. Mr. Colon indicated that he made no effort to discuss Mr. Hoffman's comment with Mr. Hoffman. Mr. Colon testified that Mr. Hoffman simply made the statement and that he did not ask any questions concerning the source of Mr. Hoffman's information. I. Other Alleged Efforts to Verify Mr. Colon's Assumptions: The Telephone Call to Universal Title Insurors. In addition to the Anonymous Letter and the telephone calls to the Clerk's office, Ms. Vega and Lennar Corporation, Mr. Colon testified during the final hearing of this case that he had telephoned Universal Title Insurors and inquired whether Mr. Feren was conducting title closings at Universal Title Insurors. Mr. Colon testified that he was told "yes." Mr. Colon's testimony concerning his alleged telephone call to Universal Title Insurors is rejected. Mr. Colon made no mention of the alleged telephone call to Universal Title Insurors in his deposition of September 8, 1992: Q. Who did you speak to at Universal or Lennar; do you recall? A. No, I don't. There was a lady that I know that I used to deal with in claims there, but I don't recall if she was the one who I talked to. Q. But, you would have talked to somebody at Universal and asked them what, specifically? A. I didn't say that. I said Lennar Corporation. Q. Oh, you talked to somebody at Lennar? A. I asked the question is Universal Title Insurers a subsidiary of Lennar Corporation, and they said yes, that it was. Q. Did you speak to somebody that you knew or somebody who was an officer? A. As I recall, I spoke to somebody; not that I spoke to somebody, I asked for somebody that I knew. It sounds like an Israeli name that I talked to, but I don't recall if that was the person that I talked to, but the only question I had is Universal Insurers a subsidiary of Lennar, and they said yes, that it was . . . . Page 36, Lines 6-25 and Page 37, Lines 1-8, Petitioner's Exhibit 6. The alleged telephone call to Universal Title Insurors was not mentioned in the Report of Investigation. Mr. Colon did not mention the alleged telephone call to Mr. Ostreich in response to Mr. Ostreich's June 10, 1991, letter. It also was not listed on Respondent's Exhibit 1, Mr. Colon's list of the efforts he purportedly made to verify his charges against Mr. Feren. Mr. Colon brought up the alleged telephone call to Universal Title Insurors for the first time during the final hearing of this case and only after extensive questioning about the other alleged events that he had already testified he had relied upon. His only explanation as to why he had not mentioned the alleged telephone call earlier was that he "probably forgot." Page 78, Line 24, Transcript of November 16, 1992. Mr. Colon's Purpose in Filing the Complaint and the Amended Complaint. Mr. Colon testified that he filed the Complaint against Mr. Feren because he was a concerned citizen who has been involved in the politics of the City of Sunrise for over 20 years and that his main concern was that the people receive an honest and responsible government. Mr. Colon also considers himself the "Watchdog of the City". Mr. Colon's explanation of why he filed the Complaint is not a credible explanation of Mr. Colon's total reason for filing the Complaint. While Mr. Colon does have some concern about good government in the City of Sunrise, Mr. Colon's judgment in exercising that concern has been distorted by his vindictiveness against, and his malice toward, Mr. Feren. Therefore, it is concluded that Mr. Colon's motivation for filing the Complaint was not limited to any public mindedness on the part of Mr. Colon. Mr. Colon also was motivated by his desire to harm Mr. Feren. This finding of fact is based upon Mr. Colon's dealings with Mr. Feren as evidenced by the testimony of Mr. Colon and Mr. Feren. Mr. Colon filed the Complaint with a malicious intent to injure Mr. Feren's reputation. The incidents between Mr. Colon and Mr. Feren have been adequately addressed in Mr. Feren's deposition testimony and are summarized in Mr. Feren's proposed finding of fact 32 (to the extent accepted and relevant--see the discussion of proposed finding of fact 32 in the Appendix to this Recommended Order). There is no need to reiterate those disagreements here. Additionally, Mr. Colon has filed two prior complaints with the Commission against Mr. Colon. All three complaints filed by Mr. Colon against Mr. Feren have now been dismissed. Although filing a complaint in and of itself may not be of much consequence in determining a person's motive, the fact that Mr. Colon has filed other complaints against Mr. Feren, when considered with the other testimony, supports the conclusions reached in this Recommended Order. Mr. Colon professed in his testimony to be neutral concerning Mr. Feren as an individual. His actions and his testimony in his deposition of September 8, 1992, and during the final hearing of this case indicate otherwise. During Mr. Colon's testimony at the final hearing he made statements such as the following: . . . . If you're talking to me whether I feel he is a competent legislature [sic], whether he was a competent City Commissioner, that has nothing to do with personality, that has all to do with ability. [Mr. Feren] has no abilities as far as I'm concerned. Page 90, Lines 20-24, Transcript of November 16, 1992. And you said, I did not contact Mr. Feren because I wouldn't believe him no matter what he said. That is correct, sir. I made that statement, yes. If he told me it was raining outside I would look out the window. Let me go further to say this: Mr. Feren probably holds the only title of a person getting elected to the state house because the citizens of Sunrise didn't want him in the city. Page 91, Lines 16-23, Transcript of November 16, 1992. Following a description by Mr. Colon of things that Mr. Feren allegedly did as a City Commissioner which were contrary to the best interest of the citizens of Sunrise, Mr. Colon stated the following: There are so many things that this man has done that - and I will say this I am the president of the Sunrise Political Club. We have a membership totaling over 300 members and every one of those members voted for Mr. Feren to the state house because that was the only way they could get rid of him and get him out of the city; does that answer your question, sir? Page 97, Lines 13-19, Transcript of November 16, 1992. Mr. Colon should have been aware when he filed his Complaint of the potential harm which could be caused to Mr. Feren. Mr. Colon has suggested that no harm should have come to Mr. Feren because proceedings before the Commission confidential prior to a finding of probable cause of wrong doing by the Commission. Mr. Colon's position ignores the possibility that the Complaint could have been disclosed and the potential harm to Mr. Feren's reputation that could have resulted therefrom. Mr. Colon's position also ignores the possibility that probable cause that a violation could have been found, the Complaint would then have been made public and ultimately the Complaint could have been found to be without basis. Finally, Mr. Colon's position ignores the potential harm to Mr. Feren's reputation which may have arisen as a result of the Complaint having been filed even after it was dismissed. Mr. Colon's should have been aware of the potential harm to Mr. Feren's reputation when he filed his Complaint. Legal Representation of Mr. Feren. Stuart R. Michelson, Esquire, represented Mr. Feren before the Commission and in this proceeding. The City of Sunrise authorized the payment of some of the attorney fees owed to Mr. Michelson as a result of his representation of Mr. Feren. The evidence failed to prove who retained Mr. Michelson, or what type of agreement was entered into for Mr. Michelson's legal services, or who was liable for Mr. Michelson's services. The evidence failed to prove whether Mr. Feren was liable for any of the fees or costs incurred as a result of defending the Complaint. The evidence also failed to prove that Mr. Feren paid any of the fees or costs incurred as a result of defending the Complaint or Amended Complaint. Cost and Attorney's Fees Incurred. A reasonable hourly rate for Mr. Michelson's legal service is $125.00 per hour. Based upon Mr. Goren's expert testimony, the total amount of attorney fees reasonably incurred as a result of Mr. Colon's Complaint is $19,200.50. Although Mr. Goren testified that the total reasonable fee was $19,255.00, the amounts of the individual bills for service that he reviewed totalled $19,200.50. Mr. Feren offered into evidence a bill for legal services dated May 18, 1992, in the amount of $1,768.75. See Petitioner's Exhibit 9. No testimony concerning this exhibit was offered to explain what the exhibit is, other than Mr. Goren's testimony that a bill for $1,770.00 of May 18, 1992, was reasonable. Mr. Colon offered a number of exhibits which appear to be minutes and/or agendas of meetings of the City Commission of Sunrise. Mr. Colon also offered what appears to be several bills from Mr. Michaelson concerning this matter. These exhibits, Respondent's Exhibits 5-8 and 10, were not properly authenticated or identified. They also constitute hearsay. It is also not apparent from the exhibits whether the amounts identified were actually paid or whether they were reasonable. The weight of the evidence failed to prove what the reasonable costs of responding to the Complaint was. Although Mr. Colon did offer into evidence which included what appeared to be information concerning the costs which may have incurred by Mr. Michelson, there was no testimony concerning what the information was, whether the costs were paid or even whether that the costs were incurred as a result of the Complaint. Additionally, there was no testimony that those costs were "reasonable".
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics enter a Final Order dismissing the Petition for Attorney's Fees and Costs be DISMISSED. DONE and ENTERED this 5th day of February, 1993, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 1993. APPENDIX The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Mr. Feren's Proposed Findings of Fact 1-2 Accepted in 1. Accepted in 3. The correct date is March 26, 1991 and not March 29, 1991. Accepted in 4. Accepted in 5, 8 and hereby accepted. Accepted in 9-10. Accepted in 11. Accepted in 12. See 40-44. The evidence failed to prove exactly who "hired" Mr. Michelson. Not supported by the weight of the evidence. The only evidence concerning this matter consisted of document that suggested that bills were provided to the City of Sunrise. The documents were not identified, authenticated nor explained. The only credible evidence concerning the amount of attorney fees was offered through the testimony of Mr. Goren. That testionly dealt with the question of the reasonable amount of time and fees for Mr. Michelson's work. Evidence concerning who was responsible for the fees and whether the fees were paid was not offered by Mr. Feren. 11 See 41-44. Accepted in 21 and 24. Accepted in 30. Accepted in 29. 15 See 24-27 and 29-32. Accepted in 10-11. Hereby accepted. Not supported by the weight of the evidence. Accepted in 21 and 24. 20-24, 26-28 These proposed findings of fact are cumulative and unnecessary. Almost identical proposed findings of fact have already been made. Proposed finding of fact 23 is not supported by the weight of the evidence. Mr. Colon did rely on something besides the anonymous letter. See findings of fact 16-18. 25 See 28. Hereby accepted. See 45. Primarily a summary of testimony. See 46. Primarily a summary of testimony. See 35. The 5th and 6th sentences are not relevant. 33-35 Hereby accepted. Accepted in 33-34 and 36. Accepted in 39. Whether Mr. Feren was caused "great personal distress" is not the legal issue. At issue is whether Mr. Colon acted with the intent of injuring Mr. Feren's reputation. These proposed findings of fact are cumulative and unnecessary. Almost identical proposed findings of fact have already been made. The second sentence is not supported by the weight of the evidence. Accepted in 33-34. Accepted in 33-34 and 39. Not supported by the weight of the evidence. See 39. Not supported by the weight of the evidence. Accepted in 20. Mr. Colon's Proposed Findings of Fact 1-2 Accepted in 1. Mr. Feren was elected in 1987 and not 1989. Not relevant to this proceeding. The decision in this case did not depend on whether Mr. Colon disclosed the Complaint to the media. Nor was any evidence offered by the Mr. Feren to support such an allegation. The last two sentences are not supported by the weight of the evidence. There is no proposed finding of fact 4. The first sentence is not supported by the weight of the evidence. Mr. Colon did contact Lennar Corporation, the city clerk's office and Ms. Vega. See 16-18. The evidence failed to prove that Universal Title Insurors is a subsidiary of Lennar Corporation. Not supported by the weight of the evidence. See 27. 16-18. The third sentence is not supported by the weight of the evidence. See 29-32. The last two sentences are not supported by the weight of the evidence. Accepted, in part, in 3. Whether Mr. Colon receives lots of anonymous letters is not relevant. He also did not contact "various" city officials. He contacted two. See 16 and 17. The last sentence as "(d)" are not supported by the weight of the evidence. See 5. Not supported by the weight of the evidence, not relevant or conclusions of law. Not relevant. Not relevant and not supported by the weight of the evidence. Although consistent with Mr. Colon's testimony, see 33-34. Mr. Colon's testimony was not "credible and supported by the facts" in all respects. Not supported by the weight of the evidence. See 33-39. There is no proposed finding of fact 15. Not supported by the weight of the evidence. Not supported by the weight of the evidence. 18 See 40-44. Not supported by the weight of the evidence. Not supported by the weight of the evidence. Not supported by the weight of the evidence. Not supported by the weight of the evidence and not relevant. The remainder of Mr. Colon's proposed order beginning on page 14 consists of conclusions of law. COPIES FURNISHED: Stuart R. Michelson, Esquire 1111 Kane Concourse, Suite 517 Bay Harbor Islands, Florida 33154 Bill Colon 11640 N.W. 30th Place Sunrise, Florida 33323 Bonnie J. Williams Executive Director Commission on Ethics Post Office Box 6 Tallahassee, Florida 32302-0006 Phil Claypool General Counsel Commission on Ethics Post Office Box 6 Tallahassee, Florida 32302-0006
The Issue The issues are whether Respondent violated Sections 489.129(1)(i) and 489.129(1)(o), Florida Statutes, and if so, what discipline should be imposed.
Findings Of Fact At all times material to this proceeding, Respondent was licensed as a Certified Plumbing Contractor, holding License No. CF C056847. Respondent has maintained an active license since October 19, 1995. At all times material to this proceeding, Respondent conducted his business under the name of Ron Price Plumbing and Tile. On May 18, 2000, Respondent's business was located at 2043 Mike Street, South Daytona, Florida. On May 18, 2000, Respondent gave Edward Carlson a written proposal to perform some repair work in a bathroom at Mr. Carlson's residence, which was located in Daytona Beach, Volusia County, Florida. The letterhead on the written proposal indicates that Respondent's business address was 2043 Mike Street, Daytona Beach, Florida. The written proposal states that for the sum of $1,200, Respondent would perform the following work : (a) remove floor and bottom two rows of tile; (b) install PVC pan and drain; (c) install dura rock to walls; (d) install four-by-four wall tile; (e) install second floor; (f) install two-by-two floor tile; (g) use white grout; and (h) haul away refuse. Mr. Carlson accepted this proposal. Respondent did not pull a permit from the City of Daytona Beach Building Department before commencing the work in Mr. Carlson's bathroom. The City of Daytona Beach, Florida, requires a permit for the type of work performed by Respondent, even though very few plumbers or contractors actually take the time to pull one. Specifically, City of Daytona Beach Ordinance 104.1.4.1 requires a permit for minor repairs exceeding $500. Respondent, subsequently, completed the work in Mr. Carlson's bathroom. Mr. Carlson inspected the work and paid Respondent $1,200 as agreed. There is no credible evidence that Respondent's work was substandard or that he damaged Mr. Carlson's property in any respect. Thereafter, Respondent moved his business to 6089 Airport Road, Port Orange, Volusia County, Florida. As of September 1, 2000, Petitioner's records correctly reflect Respondent's current address of record at the new business location. Petitioner expended $312.48 in total cost, excluding attorney's fees, for investigating, filing, and pursuing the complaint against Respondent through the administrative complaint process.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order finding Respondent guilty of violating Section 489.129(1)(o), Florida Statutes, imposing an administrative fine in the amount of $500, and assessing investigative costs in the amount of $312.48. DONE AND ENTERED this 8th day of November, 2001, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 8th day of November, 2001.
Findings Of Fact The matters of fact being stipulated to by the parties are as follows: The City of Panama City has enacted a "local option" ordinance pursuant to Section 447.603, Florida Statutes. The City Ordinance No. 933 created the Panama City Public Employees Relations Commission ("PC-PERC") to exercise jurisdiction over labor relations matters arising between public employers and public employees of the City of Panama City in lieu of the State Public Employees Relations Commission ("PERC"). This ordinance was approved by the State of Florida Public Employees Relations Commission pursuant to Section 447.603, Florida Statutes following an order of the First District Court of Appeal in City of Panama City v. Florida Public Employees Relations Commission, 364 So.2d 109 (Fla. 1st DCA 1978) directing PERC to do so. On June 6, 1979 PERC issued an order to PC-PERC pursuant to Florida Administrative Code Rule 38D-23.01(2), the subject of this proceeding. The order relies on language in the Rule in question, which provides that "upon failure of the local commission . . . to timely submit such modifications, the commission shall revoke approval of the local commission and shall assume jurisdiction over all matters in dispute pending before the local commission". Thus, whereas the order is directed to the local commission, the penalty for failure to comply with the order is revocation of approval of the City's local option ordinance itself. Ordinance No. 933 gives the PC-PERC the sole power to adopt rules. Section 1.004(1) provides that the Commission "shall adopt, promulgate, amend or rescind such rules and regulations as it deems necessary and administratively feasible to carry out the provisions of this ordinance " Ordinance No. 933 further makes the local commission an independent body, providing at Section 1.003(1) that "the Commission in the performance of its duties and powers under this ordinance shall not be subject to the control, supervision or direction by the City Manager or City Commission." The City has no control whatsoever over whether, or to what extent, the Panama City Public Employees Relations Commission complies with PERC's order of June 6, 1979. That order, which is pursuant to Rule 38D-23.01, purports to provide for the revocation of approval of the local commission created by the City's ordinance within ninety (90) days unless PC-PERC complies with it. By request dated August 17, 1979, the Petitioner filed a Request to Take Official Notice of certain orders of the Public Employees Relations Commission and of certain sections of Panama City Ordinance No. 933. Respondent having been noticed of that request and entering no opposition thereto and, further, Respondent having referred in its brief herein to certain of the orders for which official notice was requested (PERC Order dated July 23, 1979, Page 1 of Respondent's brief) the Request to Take Official Notice is granted, and those items 1-11 in that request are admitted into evidence and made a part of the record of this proceeding. By order of the Public Employees Relations Commission dated July 23, 1979, the order of that same Commission dated June 6, 1979, and referred to in paragraph 1(b) above was vacated to allow the City of Panama City to make certain alleged necessary amendments to its local option ordinance and for such amendments to be approved by the Public Employees Relations Commission. By order dated July 19, 1979, the Public Employees Relations Commission notified the City of Panama City that Chapter 447, Park II, Florida Statutes had been substantially amended and that the City's local option ordinance must be amended and submitted to PERC for review and approval within ninety (90) days. The order further noted that "[f]ailure by the City to timely submit modifications for review and approval by the Commission may subject the local option to revocation of approval and jurisdiction." Finally, the order recited Florida Administrative Code Rule 38D-23.01(2) as the authority for the foregoing requirement. That is the same rule being challenged in this proceeding.
The Issue Whether Respondent, West Florida Hospital (Respondent or the Hospital), violated the Florida Civil Rights Act of 1992, as amended, sections 760.01–760.11 and 509.092, Florida Statutes,1/ by discriminating against Petitioner, Rachel Lynn Bivins (Petitioner), in her employment with the Hospital based upon Petitioner's race.
Findings Of Fact Respondent is a hospital in Pensacola, Florida. Petitioner worked for the Hospital as a Housekeeper in the Environmental Services (EVS) Department from October 6, 2009, until her termination on January 3, 2011. Petitioner is black. The following typed statement appears in the "Particulars" section of the Charge of Discrimination form which Petitioner filed with the Commission after her termination: I worked for the Respondent as a Housekeeper since October 2009. From August 2010 through December 2011, Charles Randolph (White, Housekeeping Supervisor) denied my request for paid time off nine out of eleven times. On January 2011, I called out sick and on January 03, 2011 Randolph and Jeff Lantot [sic] (White, Director of Housekeeping) terminated my employment. I believe I was retaliated and discriminated against because of my race, Black. In November 2010, I requested paid time off before Charlene Lewis (White, Housekeeper), but Randolph denied my request and granted her one week off. On January 3, 2011, I attempted to provide a copy of my doctor's excuse to Randolph and Lantot [sic]; however, they said that they already had a copy. In 2010, Chrystal Simpkins (White, Housekeeper) and Maria Alacon (White, Housekeeper) called out at least seven times each and were not terminated. I believe I was discriminated against in violation of Title VII of the Civil Rights Act of 1964, as amended. On the same Charge of Discrimination form, out of the ten boxes provided to designate the bases for the alleged discrimination, Petitioner checked only the box indicating “RACE” as the basis for her claim. Petitioner was hired by the Hospital after her interview with the Hospital's EVS Department director, Jeff Lanctot. Mr. Lanctot, who is white, made the decision to hire Petitioner. The interview worksheet prepared by Mr. Lanctot contains positive written remarks regarding Petitioner's interview. Petitioner began working for the Hospital on October 6, 2009, on an as-needed (PRN) basis. She worked the evening shift. The "team lead" for Petitioner's shift was Michael Johnson. Michael Johnson is black. Petitioner’s direct supervisor was Charles Randolph, the operation manager for the EVS Department. Mr. Randolph was responsible for managing the evening crew of housekeepers at the Hospital, including Petitioner. Contrary to the statement in the Charge of Discrimination, Mr. Randolph is not white. He is black. The Hospital has a number of policies, including, but not limited to, a "Meal Period Policy" and an "Attendance and Tardiness Policy." The Hospital's Meal Period Policy requires that non- exempt employees, such as Petitioner, clock in and out for meal periods, and also requires that employees take at least 30 minutes for the meal period. This is to comply with federal wage and hour law, because meal periods of less than thirty minutes must be counted as working time and be paid. Under the Hospital's Attendance and Tardiness Policy, an employee's unscheduled absence is considered an “occurrence,” without regard to whether or not the employee had a good excuse for being absent. Each time an employee is tardy or fails to work as scheduled is also considered an “occurrence.” Six “occurrences” within a 12-month rolling calendar year, or three “occurrences” within a 30-calendar-day period, is considered “excessive.” The evidence indicated that the Hospital’s Meal Period Policy and its Attendance and Tardiness Policy are applied consistently, regardless of race. When hired, Petitioner went through an orientation process and was given an employee handbook which set forth the Hospital’s policies. As a result, Petitioner was aware of both the Hospital's Meal Period Policy and its Attendance and Tardiness Policy. Shortly after starting her job at the Hospital, Petitioner began to receive discipline for her violations of the Hospital's policies. On December 29, 2009, within three months of starting her job, Petitioner was given a written warning for violating the Hospital’s Meal Period Policy on December 6, 14, and 26, 2009. Petitioner admitted that she understood the Meal Period Policy, and also admitted that the written warning she received on December 29, 2009, was not racially motivated. Just a few weeks later, on February 1, 2010, Petitioner again violated the Hospital’s Meal Period Policy. Petitioner was given a “Final/Last Chance Agreement” disciplinary action for repeating the same policy violation for which she had received the written warning on December 29, 2010. Petitioner also violated the Hospital's Attendance and Tardiness Policy. On January 28, 2010, Mr. Randolph met with Petitioner to counsel her about her absences and tardiness. Despite the verbal counseling, Petitioner continued to be late and absent from scheduled workdays. On June 24, 2010, Mr. Randolph met with Petitioner and presented her with a written warning for violation of the Attendance and Tardiness Policy, because Petitioner was absent for eight workdays within a nine-month period, and had six tardies within the past 30 days. Recent absences noted on the written warning included absences on March 3, March 8, March 27 through April 5, April 26, and May 14, 2010.2/ At the final hearing, Petitioner offered the excuse of her absences noted in the June 24, 2010, written warning, by advising that she had severely injured her finger on March 27, 2010. The first two absences noted on the written warning, however, predated her injury, and the April 26 and May 14 absences occurred well after her injury. Also, Petitioner’s doctor’s note regarding her finger injury stated that she would be out of work for only two days, but she was out for more than a week. Moreover, under the Hospital's Attendance and Tardiness Policy, it did not matter that Petitioner's absences from March 27 through April 5 may have been excused because the policy is based on “unscheduled” absences, not “unexcused” absences. In addition, the Hospital only counted Petitioner's extended absence from March 27 through April 5, as only one "occurrence." The evidence indicates that Petitioner's absences noted on the June 24, 2010, written warning were accurate. At the time the written warning was issued, Mr. Randolph again verbally counseled Petitioner regarding her absences. On July 8, 2010, Mr. Randolph met with Petitioner and presented her with a “Final/Last Chance Agreement Documentation” disciplinary action because she had another unscheduled absence on July 1, 2010. At the time of her July 1, 2010, absence, Petitioner had already exceeded the number of unscheduled absences allowed by the Hospital’s Attendance and Tardiness Policy. Once again, Mr. Randolph counseled Petitioner regarding her absenteeism. Petitioner understood that a “Last Chance” disciplinary action meant that if there were any more occurrences, she would be terminated. Petitioner admitted that her absence on July 1 was unrelated to her finger injury. She also admitted that she had no evidence that the July 8 “Final/Last Chance” disciplinary action was motivated by her race. Mr. Randolph's counseling sessions with Petitioner on January 28, 2010, June 24, 2010, and July 8, 2010, were, in effect, a form of progressive discipline, conducted with the hope that Petitioner might improve her attendance and punctuality. Notwithstanding the prior Written Warning on June 24, and the “Last Chance” disciplinary action on July 8, as well as the fact that Petitioner had already exceeded the allowable number of unscheduled absences, Petitioner continued to violate the Hospital’s Attendance and Tardiness Policy. Petitioner had two more unscheduled absences, one on November 12, 2010, and another on January 1, 2011. Petitioner admitted that she had no evidence to show she worked on November 12, 2010, and acknowledged that she did not work on January 1, 2011. Although Petitioner claimed that the January 1, 2011, absence was for a medical reason, she had not requested or obtained advance approval from EVS Management to be out of work on that date, thus, under the Hospital's policy, her absence constituted another “unscheduled” absence. Petitioner was aware that if she had six occurrences of unscheduled absences within a rolling 12-month period, she could be terminated. Because Petitioner had a total of eight occurrences of unscheduled absences during the previous rolling 12-month period, and because she had received prior disciplinary actions for violation of the Hospital's Attendance and Tardiness Policy, Mr. Lanctot decided to terminate Petitioner’s employment. Before actually terminating Petitioner, Mr. Lanctot had his clerical staff confirm that Petitioner had in fact been scheduled to work, and failed to work the number of times reflected on the prior disciplinary actions. His staff checked and confirmed the number of “occurrences.” Mr. Lanctot also conferred with Karen Oliver, the Vice President of Human Resources for the Hospital. Ms. Oliver reviewed all of the documentation from a Human Resources perspective and concluded the termination was justified. After conferring with Ms. Oliver, Mr. Lanctot met with Petitioner on January 3, 2011, to advise her of his decision to terminate her employment. During this termination conference, Mr. Lanctot explained to Petitioner that he was terminating her employment for violation of the Attendance and Tardiness Policy. Petitioner was terminated that same day, January 3, 2012. At the time of her termination, she had worked for the Hospital for one year and three months. EVS Department Director Jeff Lanctot made the decision to terminate Petitioner’ employment. As he had explained to Petitioner, the basis for her termination was her violation of the Hospital’s Attendance and Tardiness Policy. At the final hearing, Petitioner acknowledged that, during her termination conference, Mr. Lanctot advised her that the reason he decided to terminate her employment was due to her excessive unscheduled absences in violation of the Hospital's policy. At no time prior to or during the termination conference did Petitioner make any complaint of race discrimination. At the final hearing, while suggesting that her promotion to full-time employment was inconsistent with the Hospital's assertions that she was excessively absent, Petitioner admitted that she had no evidence that her disciplinary actions or termination were based on racial prejudice. Petitioner also failed to demonstrate that a non- minority employee, with a substantially similar employment situation and disciplinary record as her own, was treated more favorably. Although Petitioner claimed that a non-minority employee named Crystal Simpkins received preferential treatment, Petitioner did not introduce admissible, non-hearsay, evidence to show the dates or time periods of Ms. Simpkins’ alleged unscheduled absences and tardiness. Petitioner admitted that she had never looked at Ms. Simpkins’ employment file. Petitioner also admitted that Ms. Simpkins worked a different shift than Petitioner and that Ms. Simpkins had a different supervisor than Petitioner. According to team lead Daisy Machuca, who was called as a witness by Petitioner, Petitioner was “missing a lot” of workdays and the Hospital applied its Attendance and Tardiness policy consistently to all its employees. Ms. Machuca's testimony in that regard is credited. There is no evidence that Mr. Randolph, who is black, or Mr. Lanctot, who hired Petitioner in the first place, or anyone else at the Hospital, ever said anything to Petitioner that was racially discriminatory. Petitioner failed to introduce any evidence to indicate that, following her termination, she had been replaced by a non-minority or someone who was not black. There was no credible evidence adduced at the final hearing showing that the Hospital has not applied its policies consistently to all of its employees, regardless of race. And, the Petitioner failed to show that the Hospital terminated her employment because of her race. Rather, the evidence shows that the Hospital terminated Petitioner based on her violation of the Hospital’s Attendance and Tardiness Policy. In addition to her claim that she was terminated because of her race, Petitioner claims that the Hospital discriminated against her with regard to its "Paid Time Off" policy. The Hospital's Paid Time Off (PTO) policy provides guidelines for requesting advance approval for all scheduled absences. The primary factors used by the Hospital in deciding whether to approve PTO requests are the operational needs of the department, scheduling needs, the order in which the requests are received, employee PTO usage, and the length of service if two or more requests are received at the same time. In order to request PTO in the Environmental Services Department, where Petitioner worked, an employee on the evening shift was required to physically hand the PTO Request form to Mr. Randolph. If Mr. Randolph denied the request, the employee could then bring the request to Mr. Lanctot and ask that he review Mr. Randolph’s denial of the request. The Hospital maintains PTO request forms as part of its personnel records for its employees. The Hospital’s records show that Petitioner submitted four requests for paid time off, and she was approved for three of her four requests. According to Hospital records, Petitioner submitted her first request on May 18, 2010, to be off on June 11 and 12. That PTO request was approved by Mr. Randolph. Petitioner submitted a second request on August 19, 2010, to be off August 27 through August 29. Mr. Randolph initially disapproved this PTO request. However, Petitioner spoke to Mr. Lanctot about it, and Mr. Lanctot decided to approve the request. Petitioner admitted this PTO request was ultimately approved. Petitioner submitted a third PTO request, which was undated, to be off from December 4 through December 8, 2010. Mr. Randolph denied this PTO request because two other housekeepers had already requested and been granted time off during that time. Mr. Randolph explained his reasoning to Petitioner at the time of his denial of her request. Petitioner suggests that denial of her third, undated PTO request was improper because another employee received the time off but her PTO request was denied. While suggesting that the other employee received preferential treatment, Petitioner did not personally review the PTO Requests in the Hospital’s files, and thus had not seen the actual PTO request submitted by the other employee. Review of the actual PTO file shows that the other employee's PTO request was not even for the same time frame as Petitioner's PTO request. Petitioner otherwise failed to show that her third PTO request was denied because of her race. Petitioner submitted her fourth PTO request on November 29, 2010, requesting to be off December 12 and 13. Mr. Lanctot approved this PTO Request. In fact, Mr. Lanctot could not recall ever personally denying any of Petitioner’s PTO requests. Both Mr. Randolph and Mr. Lanctot credibly testified that they did not destroy any PTO requests that were submitted to them by Petitioner. Petitioner also claims that there were other PTO requests which she submitted that were denied. Those alleged requests, however, were not in the Hospital’s records. In support of her claims, Petitioner presented copies of PTO requests with her handwriting only, which were not from the Hospital’s records. Mr. Randolph denied that Petitioner had given any of these other requests to him, as required. There are several inconsistencies on the copies of PTO requests that Petitioner alleges that she presented for approval but are not reflected in the Hospital's files. On some of Petitioner’s copies, there were requests for days off that predated the date of the purported PTO request. Another one of the copies included a request for leave on the same date as one of the four official PTO Request forms from Petitioner in the Hospital's files, but the signature and other writing on Petitioner's copy was starkly different than the Hospital’s official copy. In addition, the only writing appearing on Petitioner’s copies is Petitioner’s own handwriting, and her copies contain no writing by any other Hospital employee. Further, the PTO request forms are required to be approved or denied in writing by a supervisor, before they become effective. Petitioner presented no records indicating the requests in her copies were ever approved or not. Considering the evidence, it is found that the only PTO requests submitted by Petitioner are the four PTO requests introduced by the Hospital in Exhibit R10. There is no evidence that any of Petitioner's PTO requests were denied because of Petitioner's race. The evidence presented by Petitioner was otherwise insufficient to show that the Hospital failed to apply its PTO policy, or any other policy, consistently to all of its employees, regardless of race. The Hospital has an Equal Employment Opportunity (EEO) Policy that prohibits all unlawful forms of discrimination, harassment, and retaliation. The EEO policy provides four alternative ways to make a discrimination complaint: (i) report complaint to the immediate supervisor, (ii) report complaint to a member of management, (iii) report complaint to the Human Resources Department, or (iv) call a confidential 1-800 Ethics Line number. Employees are notified of the Hospital’s EEO policy during orientation and during annual Code of Conduct trainings. The Hospital’s EEO Policy is also set forth in the Employee Handbook and posted on posters throughout the Hospital. Petitioner was familiar with the Hospital’s EEO Policy. However, she never utilized the Hospital’s policy for making a complaint of race discrimination to anyone at the Hospital at any time while she was employed by the Hospital. She also never called the Hospital’s confidential 1-800 Ethics Hotline number displayed in the Employee Handbook and on posters throughout the Hospital. In fact, she never made any written complaint in any form to anyone about racial discrimination during her employment. And, at no time during her employment did Petitioner ever complain of race discrimination to Mr. Lanctot, Mr. Randolph, or the Hospital's Director of Human Resources, Karen Oliver.3/ The first time that Petitioner made any written complaint of race discrimination was after her termination, when she filed her Charge of Discrimination with the Commission. Inasmuch as Petitioner never made any complaint of race discrimination prior to her termination of employment, it necessarily follows that Mr. Lanctot, who made the decision to terminate Petitioner’s employment, had no knowledge of any such complaint at the time he made the decision to terminate her employment. In sum, Petitioner failed to show that the Hospital discriminated against Petitioner by treating her differently or terminating her because of her race, and she also failed to show that the Hospital retaliated against her based on her filing a complaint of race discrimination, or because she engaged in any other protected activity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner’s Charge of Discrimination and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 18th day of September, 2012, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 18th day of September, 2012.
The Issue Whether Petitioner was eligible for membership in the Florida Retirement System (FRS) during the effective dates of the Client Service Agreement (Agreement) between Petitioner and ADP TotalSource Services, Inc. (TotalSource).1 Whether Respondent is estopped to deny Petitioner’s request to purchase retirement credit for the subject employees during the seven-month period during which the Agreement was in effect.
Findings Of Fact TCT is an independent special taxing district of local government established pursuant to Section 1.01(A)(11) of the Miami-Dade County Home Rule Charter; Ordinance No. 02-247, Sections 1-11 (adopted December 3, 2002); and Section 125.901, Florida Statutes, et. seq., for the provision of children’s services. TCT is devoted to funding “improvements for the children of Miami-Dade County in the areas of health, safety, parental responsibility, community responsibility and other necessary and important services.” Miami-Dade County Code Art. CIII, §§ 2-1521-2-1531. Other special taxing districts for services in the State of Florida participate in the FRS. On July 23, 2003, officials from TCT contacted DOR to communicate TCT’s desire to participate in FRS and request instructions on how to enroll its employees for FRS retirement benefits. On July 24, 2003, Ms. Smith, acting in her capacity as a benefits administrator employed by Respondent, forwarded to TCT an FRS membership package which included a Resolution relating to FRS membership to be approved by TCT’s Board and two accompanying FRS Agreements. On July 30, 2003, Resolution #2003-01, Resolution Relating to Membership into the FRS, was adopted by TCT’s Board. On September 1, 2003, after receiving TCT’s Notice of Employer Identification Number from the Internal Revenue Service on August 27, 2003, Mr. Abety, in his capacity as the president and CEO of TCT, signed the two FRS Agreements. On September 9, 2003, Mr. Abety sent a letter to Ms. Smith enclosing the two FRS Agreements, TCT’s Resolution Relating to Membership into the FRS, and the IRS Notice of Employer Identification Number, fully expecting that FRS coverage would be initiated on October 1, 2003. Mr. Abety again corresponded with Ms. Smith on September 17, 2003, to advise that TCT would make its retirement contributions to FRS by check and asked if FRS preferred bi- weekly or monthly payments. On September 5, TCT entered into the Agreement with TotalSource to provide TCT with payroll, health insurance, life insurance, short and long-term disability insurance, and dental and vision coverage. TotalSource did not provide TCT employees with any retirement benefits. After reviewing TCT’s Agreement with TotalSource, FRS advised TCT on September 23, 2003, that because it appeared the employees covered under the Agreement would be under the control and direction of TotalSource, they were employees of a private company and thus ineligible for FRS benefits. Following Respondent’s denial of participation in FRS, TCT began the process of entering into a new agreement for the provision of personnel services with a vendor other than TotalSource. On February 18, 2004, TCT emailed DOR a new proposed agreement between TCT and AlphaStaff for the provision of payroll, insurance and other human resources services in order to determine if the agreement would permit FRS benefits to begin for TCT employees. On April 20, 2004, FRS determined that the agreement between TCT and AlphaStaff would not bar the workforce of TCT from participating in FRS because AlphaStaff provided only “routine personnel services” to TCT.3 After approving the agreement between TCT and AlphaStaff, DOR accepted TCT as an FRS member effective May 1, 2004. On April 22, 2004, TCT transmitted to DOR the County Ordinance creating TCT, two FRS Agreements, a Resolution Relating to Membership in FRS, TCT’s federal employer tax identification number, and a notification that a fully executed agreement between TCT and AlphaStaff would be forwarded on April 26, 2004. The two FRS Agreements, the Resolution, and the employer tax identification number were identical to those sent to FRS in September 2003. The agreement between TCT and AlphaStaff that had been approved by FRS was fully executed on April 26, 2004. On April 29, 2004, DOR signed and approved the FRS Agreement to commence FRS benefits effective May 1, 2004. Per letter dated May 7, 2004, DOR advised TCT that “since your agency did not qualify for FRS membership until May 1, 2004, past service cannot be purchased prior to the amendment date.” Per letter dated May 27, 2004, Mr. Abety requested the FRS effective date be changed to October 1, 2003. Throughout the period TCT attempted to secure FRS membership. TCT did not participate in any other retirement plan. After being informed in September 2003 that its contract with TotalSource precluded participation in FRS, TCT was engaged in the process of entering into an agreement for personnel services that DOR would find acceptable. On June 23, 2004, TCT received notice of a final agency action from DOR in which DOR rejected TCT’s request to purchase past service and advised TCT of its appeal rights. TCT filed its Petition to review final agency action requesting an evidentiary proceeding on July 15, 2004. Past FRS benefits are being requested for the seven- month period beginning October 1, 2003 and ending May 1, 2004. The 18 TCT employees affected are:4 Modesto E. Abety Lilia R. Abril Emily Cardenas Dwight Danie Robin J. Douglas David C. Freeman Lisete Fuertes K. Lori Hanson Andrea Harris Chareka Hawes Christine Muriel Jeanty Jolie C. Jerry Jean S. Logan Susan B. Marian Eric R. Pinzon Diana Ragbeer Deborah Robinson Margaret L. Santiago The six employees who are vested in the FRS are: Modesto E. Abety Dwight Danie Andrea Harris Jolie C. Jerry Diana Ragbeer Deborah Robinson. TotalSource is a licensed employee leasing company under Part XI of Chapter 468, Florida Statutes. “Employee leasing” is defined by Section 468.520(4), Florida Statutes, as being “. . . an arrangement whereby a leasing company assigns its employees to a client and allocates the direction and control over the leased employees between the leasing company and the client ”5 TCT is referred to as the “client” in the Agreement between TotalSource and TCT. Section (1) of the Agreement, styled “The Parties Relationship,” provides as follows: The parties intend to create an arrangement so that TotalSource, as the Professional Employer Organization (PEO), can provide human resource services to Client. As provided by the Florida legislature, TotalSource shall have sufficient authority so as to maintain a right of direction and control over Worksite Employees (defined in Section 2) assigned to Client’s location, and shall retain the authority to hire, terminate, discipline, and reassign Worksite Employees. Client shall, however, retain sufficient direction and control over the Worksite Employees as is necessary to conduct Client’s business and without which Client would be unable to conduct its business, discharge any fiduciary responsibility that it may have, or comply with an applicable licensure, regulatory, or statutory requirement of Client. Such authority maintained by Client shall include the right to accept or cancel the assignment of any Worksite Employee. Additionally, Client shall have sole and exclusive control over the day to day job duties of Worksite Employees and over the job site at which, or from which, Worksite Employees perform their services. Client expressly absolves TotalSource of liability which results from control over the Worksite Employee’s day-to-day job duties and the job site at which, or from which, Worksite Employees perform their services. Further, Client retains full responsibility for its business products and services, worksite premises, property, and any actions by an third party, contractor, independent contractor or non-Worksite Employee. Client acknowledges that TotalSource has the right to retain and reassign a Worksite Employee who has been terminated by Client. Section 2 of the Agreement, styled “TotalSource Relationship to the Worksite Employees,” provides as follows: The term “Worksite Employees” means individuals hired by TotalSource, assigned to Client’s worksite, after the individuals [have] satisfactorily completed TotalSource pre-employment paperwork [and] background screens as necessary. Client agrees to submit to TotalSource the completed TotalSource pre-employment paperwork no later than two (2) business days after the Client selects the person for employment. The term excludes 1) those employees hired by TotalSource to perform services for TotalSource and not assigned to any Client Worksite (i.e., TotalSource Corporate Employees), and 2) Independent contractors or individuals who may be providing services to Client through any other arrangement entered into solely by Client. TotalSource will notify all Worksite Employees in writing about the PEO arrangement at the beginning and end of this Agreement. During the Agreement, both Client and TotalSource will employ each Worksite Employee. This Agreement does not change the underlying employment relationship between any Worksite Employee and Client that existed prior to or may be created after the Effective Date. Further, this Agreement does not create any rights for any Worksite Employee that did not previously exist (e.g., creating an employment contract with the Worksite Employee). In Section 5(F) of the Agreement, the parties acknowledge that the Client exercises control over the primary terms and conditions of employment for the subject employees. Miguel Masedo was the General Manager for the Southeastern operations for TotalSource when it entered into the Agreement with TCT. Mr. Masedo did not negotiate the Agreement between his company and TCT, but he did sign the Agreement, and he testified as to the manner in which his company operated with TCT. Mr. Masedo’s deposition was admitted as Joint Exhibit 17. On page 22, beginning at line 12, the following Questions from Ms. Arista-Volsky and Answers from Mr. Masedo appear: Q. Okay. Earlier you told me and we discussed that The Trust employees in fact were hired by The Trust before they contracted with your services, correct? A. Yes. Q. So basically when they entered into this contract and were put on the payroll for the purposes of payroll processing, that’s when you make the determination, or you’re saying that they became . . . [sic] A. We actually hired them into ADP TotalSource, they signed new documentation, I-9s, W-4s, they gave us their employment information, so we literally hired them on to ADP TotalSource.[6] On page 23, beginning at line 13, the following Questions from Ms. Arista-Volsky and Answers from Mr. Masedo appear: Q. And the Client Services Agreement did not change the underlying employment relationship between The Trust and its employees; correct? A. What the Client Services Agreement did was it defined us as another employer for these employees, so we are under a co- employment relationship, so certain employment responsibilities would have been the responsibilities of The Trust and would have remained, and other employment responsibilities would have transferred over to ADP TotalSource. TotalSource was the named employer on each employee’s W-2 forms. For each subject employee, TotalSource also paid social security taxes and provided workers’ compensation coverage. TotalSource issued salary warrants to each employee. These payments were to be from funds TCT was required by the Agreement to pay to TotalSource. TotalSource was, by the terms of the Agreement, responsible for the payment of the subject employees even if TCT failed to make its required payments to TotalSource. Although by the terms of the Agreement, TotalSource had legal authority to hire, supervise, and discipline the subject employees, TotalSource rarely exercised those rights in dealing with a client and it did not do so in its dealings with TCT. TotalSource never attempted to control or run the affairs of TCT. It never attempted to exercise any direction or control over Mr. Abety or any other subject employee. TCT initially recruited and hired all of the subject employees. At no time during the period at issue did a TotalSource corporate employee come to the TCT worksite for the purposes of supervising or monitoring the activities of the subject employees. TCT controlled the daily activities of the subject employees at all times relevant to this proceeding. At all times relevant to this proceeding, Mr. Abety and his staff set the terms and conditions of employment for the subject employees and supervised the day-to-day operations of TCT. At no time relevant to this proceeding did Mr. Abety, acting on behalf of TCT, intend for TotalSource to exercise any control over the subject employees. Mr. Abety intended only that TotalSource provide human resources services in the forms of payroll services, worker’s compensation coverage, and a benefits package (excluding a retirement plan). Mr. Abety testified that he did not construe the Agreement as being a contract to lease the subject employees from TotalSource. Based on the findings that follow, it is found that Mr. Abety knew or should have known that he was entering into an employee leasing agreement with TotalSource. As set forth above, in the Agreement, TotalSource refers to itself as a Professional Employer Organization, which is a term for an employee leasing company. The Agreement provides that TotalSource shall have “. . . sufficient authority so as to maintain a right of direction and control over Worksite Employees . . . and shall retain the authority to hire, terminate, discipline, and reassign Worksite Employees. ” Moreover, in the final paragraph of the Agreement, under the heading of “Additional Client Representation” the following appears: “Client understands that, pursuant to Florida law, it may not enter into a PEO (sometimes referred to as an employee leasing) agreement with TotalSource if Client owes a current or prior PEO any money pursuant to any service agreement which existed between that current or prior PEO and Client, or if Client owes a current or prior insurer any premium payments. . . . DOR denied TCT’s request for past service because, under the terms of the Agreement, and Part XI of Chapter 468, Florida Statutes, the subject employees appeared to be employees of TotalSource. In its letter dated June 23, 2004, with the style of “Final Agency Action”, DOR advised Mr. Abety that TCT “. . . joined the FRS effective May 1, 2004 and is ineligible to purchase past service since prior to that date the employees were employed by ADP TotalSource Services, Inc., a private company.” While the Agreement was in effect, the subject employees were employees of both TCT and TotalSource for certain purposes. Under the Agreement between TotalSource and TCT, TotalSource and TCT were dual or joint employers. There was a co-employment relationship. DOR agrees that TCT and TotalSource were co-employers or joint employers. In paragraph 25 of its Proposed Recommended Order, DOR submitted the proposed finding of fact that during the effective dates of the Agreement, the subject employees were “. . . dual or joint employers. There [was] a co-employment arrangement.” In paragraph 53 of its Proposed Recommended Order, DOR proposed the following conclusion of law: 53. However, the totality of the evidence establishes that TotalSource and Children’s Trust are, as Mr. Masedo testified, ‘under a co-employment relationship.’ Children’s Trust and TotalSource were inextricably linked as co-employers, or joint or dual employers. They both shared attributes of being an ‘employer.’ Prior to entering into the Agreement, staff of TCT contacted staff of DOR to inquire what needed to be done for TCT employees to become members of the FRS. DOR staff advised that a membership package would be mailed and that the TCT employees would become part of the FRS after the membership package was processed. For service performed by TCT employees prior to the date TCT became part of the FRS, DOR staff advised that TCT employees could purchase credit for that prior service period if TCT did not participate in another retirement plan. TCT maintains that the information provided by DOR staff that TCT could participate in FRS as long as TCT did not participate in another retirement plan was misleading. TCT further maintains that it detrimentally relied on that misleading information from DOR and that DOR should be estopped to deny the right to purchase credit for the seven-month period at issue in this proceeding. TCT did not disclose to DOR that they were contemplating entering into the Agreement with TotalSource prior to doing so. Consequently, DOR had no reason to discuss with TCT its position that the Agreement would preclude TCT’s membership in FRS. DOR staff gave TCT staff accurate advice based on the information provided to DOR by TCT. TCT would not have executed the Agreement had it known that the terms of the Agreement would disqualify it from membership in FRS. Most of the subject employees were initially recruited by TCT because they were experienced government employees. It was important to TCT from its inception that its employees continue to be eligible for FRS benefits. TCT made diligent efforts to locate a suitable human resources provider to replace TotalSource after it learned from DOR that the terms of the Agreement disqualified the subject employees from membership in FRS. It took TCT almost the entire seven-month period at issue in this proceeding to locate the replacement provider (AlphaStaff).
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order providing that TCT be granted membership in FRS effective October 1, 2003, and that it be permitted to purchase retirement credit for the subject employees for the seven-month period beginning October 1, 2003, and ending April 30, 2004. DONE AND ENTERED this 28th day of April, 2006, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 28th day of April, 2006.
