The Issue The issue is whether Petitioner's request for an exemption from disqualification from employment in a position of special trust should be granted.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This case involves a request by Petitioner, Charles W. Leverson, Sr., for an exemption from disqualification from employment in a position of special trust. If the request is approved, Petitioner would be allowed to return to work as a unit treatment rehabilitation specialist in a unit for developmentally disabled adults at Florida State Hospital (FSH). Respondent, Department of Children and Family Services (DCFS), is the state agency charged with the responsibility of approving or denying such requests. In a preliminary decision entered on an unknown date, a DCFS committee denied the request principally on the ground that Petitioner had minimized or denied the gravity of his disqualifying offenses. Petitioner is now barred from doing such work because of disqualifying offenses which occurred on December 16, 1990, and March 24, 1992. On the first date, Petitioner was arrested for the offense of aggrevated battery on his wife, a misdemeanor under Section 784.04, Florida Statutes (1990). On the second date, Petitioner was again arrested for five offenses, including battery on his wife in violation of Section 784.03, Florida Statutes (1991). As to the first charge, on January 26, 1993, Petitioner entered a plea of nolo contendere to the charge of battery and was placed on one year's supervised probation. He was also required to "[s]pend 15 weekends in the county jail." In addition, Petitioner was ordered "not [to] possess or consume any alcohol during the term of [his] probation," and to "[c]ontinue with counseling" (of an undisclosed nature). As to the second charge, Petitioner was found guilty by a jury on July 24, 1992, of committing battery on his wife in violation of Section 784.03, Florida Statutes. A "not guilty" verdict was entered as to the remaining four charges. The record does not indicate the sentence, if any, that he received for this offense. Petitioner successfully completed all terms of his probation. Since his arrest in March 1992, he has not consumed any alcoholic beverages. This is an important consideration since both disqualifying offenses occurred when he was intoxicated. Petitioner began working at FSH on September 26, 1979. He was first employed as a support service aide but was eventually promoted to the position of unit treatment rehabilitation specialist, a position involving supervision of developmentally disabled adults. Because of a background screening which occurred in 1997, Petitioner's disqualifying offenses were discovered, and he was forced to resign effective February 12, 1998. He has requested an exemption so that he can return to his employment. Since being forced to resign some four months ago, he has not been employed. The two disqualifying offenses involve battery on Petitioner's long-time wife, Shirler. In both cases, she suffered injuries serious enough to require treatment at a local hospital. Shirler says, however, that Petitioner has "changed" since his 1992 arrest, and he no longer drinks, is communicative with her and the three children, and is a good father. Petitioner attends church, is a member of a lodge in Quincy, Florida, and has a much better attitude since he stopped drinking. He has received good work evaluations during his most recent years of employment at FSH. Former co-workers and supervisors attested to the fact that Petitioner has good rapport with his co-workers and residents, and he performs his stressful job with a "cheerful" and "pleasant" attitude. He was also described as one of the "better" employees in the forensic unit. In March 1987, or more than eleven years ago, Petitioner received a five-day suspension because of an altercation with an inmate in the FSH forensic section laundry room. The suspension was meted out after Petitioner became involved in an argument with an inmate and drew an opened knive in a threatening fashion. Although Petitioner denied that the blade was exposed, testimony by a co-worker established that it was exposed in a threatening fashion. The altercation was resolved, however, before any violence occurred. In mitigation, it was established that Petitioner's possession of a knive in the laundry room was not unlawful since it was necessary for him to use a knive to open the sealed buckets of detergents. On October 13, 1993, Petitioner received a written reprimand for "Abusive and/or Threatening Language." On that occasion, Petitioner was instructed by his supervisor to help fold some laundry in the laundry room. Petitioner replied that he would not and told him "to get off my fucking back." Petitioner also pointed his fist at the supervisor in a threatening manner and "threatened to kick his butt." On June 27, 1994, Petitioner was suspended for fifteen work days effective July 8, 1994, for using threatening and/or abusive language towards a supervisor. This disciplinary action was taken after Petitioner had again refused to comply with instructions by his supervisor. On that occasion, he became "real mad," called her a "motherfucker," shook his fist at her, and threatened to "get her." Although the supervisor stood her ground against Petitioner, she was "afraid" for her safety. Petitioner was less than candid in describing the incidents which led to him receiving disciplinary action by his employer in 1987, 1993, and 1994. He has, however, expressed remorse for striking his wife in 1990 and 1992, and he regrets the embarrassment he caused his wife and children. For the last four years, Petitioner has had a blemish-free record at FSH, including good evaluations from his supervisors and a reputation as one of the "better" employees in his section. Given these considerations, it is found that Petitioner has sufficiently rehabilitated himself since the disqualifying incidents, and that he will pose no threat to the FSH clients and inmates.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Children and Family Services enter a final order granting Petitioner's request for an exemption from disqualification for employment in a position of special trust. DONE AND ENTERED this 4th day of June, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 1998. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, Esquire Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Ben R. Patterson, Esquire Post Office Box 4289 Tallahassee, Florida 32315-4289 John R. Perry, Esquire Department of Children and Family Services 2639 North Monroe Street, Suite 252A Tallahassee, Florida 32399-2949
The Issue Whether the Petitioner was discriminated against based upon his race when he was disciplined for absenting his post contrary to Chapter 760.10, Florida Statutes.
Findings Of Fact The Petitioner, Willie B. Smith, is an African-American male. He is now and was at the time of the incidents involved in his complaint employed by the Respondent, Department of Children and Family Services, at Florida State Hospital as a guard in the forensic (prison) unit. The Petitioner is part of a bargaining unit that is represented by the Florida Police Benevolent Association. On November 15, 2001, at approximately 1:05 a.m., the Petitioner contacted his Shift Supervisor, Jimmie Williams, an African-American male, and requested to leave his assigned post in Tower B and go to Unit 3 at the hospital and pick up food from a fish fry. Williams approved the Petitioner’s leaving his post to get the food and to return to his post after getting the food. At 2:35 a.m., Williams was contacted on the radio by the Control Room Officer, Johnny Smith, who indicated that the Petitioner wanted to talk to him on the telephone. Williams provided Johnny Smith a telephone number at which the Petitioner could reach him, and the Petitioner called Williams a short time later. The Petitioner informed Williams that he had spilled diesel fuel on his uniform and asked permission to take the remainder of the shift off. Williams asked the Petitioner where he was, surprised that the Petitioner was some place other than at his post. The Petitioner refused to identify where he was, and Williams denied his request for leave. Realizing that the Petitioner was not at his post, Williams proceeded to Tower B and manned that post until the Petitioner arrived there at 3:04 a.m. When he arrived at Tower B, Williams asked the Petitioner where he had been, and the Petitioner stated he had been at the Florida State Hospital gas station. Williams had checked the Florida State Hospital gas station looking for the Petitioner and was aware that the Petitioner had not been there. At this point, angry words were exchanged and the Petitioner admitted that he had not been at the gas station. Williams wrote up an incident report that initiated a formal investigation into the Petitioner's having absented himself from his post while on duty without proper authorization. The Petitioner was advised of the investigation, and he requested that the PBA represent him in the investigation pursuant to the provisions of the collective bargaining agreement. At the Petitioner's specific request, Steve Mears, from the Tallahassee Office of the PBA, represented the Petitioner in this matter. During the course of a break in a meeting held with regard to the investigation, the Petitioner mentioned to Mears voluntarily changing duty stations, and Mears raised this request with representatives of the Respondent, including William T. Parker, now Chief of Security. As a result, the Petitioner was re-assigned from the forensic unit to the central forensic unit because this was the only place where there was a vacancy. His shift and days off remained the same, which did not constitute a transfer under the terms of the contract. Such a re-assignment was not subject to being grieved under the terms of the bargaining agreement. See testimony of Parker and Mears. The Petitioner's days off changed from the first and third weeks of the month to the second and fourth weeks of the month, but the days of the week remained the same. Although the evidence supports a finding that this move was voluntary, it is not material because, under terms of the bargaining agreement, such a re-assignment was not subject to a grievance. The investigation established sufficient cause for the Respondent to issue an official letter of reprimand to the Petitioner for absenting his post without permission. Pursuant to internal policy, the Petitioner's new supervisor, Roger Howell, who had had nothing to do with the incident upon which the reprimand was based, issued the letter. See testimony of Howell and Bryant. The Respondent introduced the Employee's Handbook, dated Mary 29, 2001, which the Petitioner had received. The book contains the Standards for Disciplinary Action, which include absences without authorized leave. This provision provides that for the first occurrence of Absence Without Authorized Leave, the section under which the Petitioner was disciplined, the violator can be given a range of punishments from a written reprimand to dismissal. See testimony of Bryant. Evidence was received that these penalties have been imposed upon employees of the Respondent without regard to race or gender. See testimony of Williams. At the hearing, the Petitioner expressed his concern that his reprimand had been signed by someone who had no knowledge of the incident, and stated that he felt he had permission to leave his post. He also introduced a doctor's excuse (Petitioner's Exhibit 2); however, the date of the doctor's visit did not relate to the date of the incident. The supervisor who signed the letter of reprimand and the personnel specialist who prepared the letter testified that it was policy for an employee's supervisor to sign the reprimand, even if he or she personally did not have knowledge of the events. Mr. Williams testified regarding his authorization to the Petitioner to leave his post to get food. He was very credible. He expected the Petitioner, in accordance with regular procedure, to leave his post, get his food, and return to the post immediately, being absent from the Tower for approximately 30 minutes. This was the normal process for getting food during a shift. The Petitioner was gone for two hours, and gone for over an hour without Williams being aware that Tower B was not covered. There was significant evidence introduced that none of the actions complained of by the Petitioner were motivated by racial animus. The disciplinary action taken by the Petitioner was at the lower end of penalties that could have been imposed. The complainant, Williams, was also an African-American. The PBA representative, whom the Petitioner specifically requested over the regular one at the hospital, testified regarding the events leading up to the Petitioner's re-assignment. The Petitioner sought a change of assignment and voluntarily accepted the change. See the testimony of Mears and Parker. There was no evidence adduced to show pretext.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations dismiss the Petition for Relief filed by the Petitioner. DONE AND ENTERED this 31st day of March 2004, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2004. COPIES FURNISHED: Anita L. Davis, Qualified Representative 708 Brag Drive Tallahassee, Florida 32305 Jacqueline H. Smith, Esquire Department of Children and Family Services Post Office Box 1000 Chattahoochee, Florida 32324-1000 Cecil Howard, General Counsel Human Relations Commission 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Human Relations Commission 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue to be resolved in this proceeding concerns whether the Respondent, Florida State Hospital, is an "employer" as statutorily defined at Section 760.02(7), Florida Statutes (2007).
Findings Of Fact Behavioral Health Solutions LLC is a private business entity (BHS). The Petitioner was employed by BHS as a clerk- typist beginning on October 6, 2006, and until February 6, 2007, when she was terminated. BHS and the Department of Children and Family Services/Florida State Hospital entered into a contract on September 16, 2006, whereby BHS was to be responsible for providing staff for various positions for the provision of services to residents of Florida State Hospital. One of those positions was that occupied by the Petitioner, at times pertinent to this proceeding. The contract provided that BHS would be responsible for hiring, transferring, promoting, discipline, and discharge/termination of BHS staff. BHS was also responsible for providing its staff with salaries, benefits, compensation packages and training. BHS has its own organizational structure which was not integrated into that of the Respondent Florida State Hospital's organizational structure. The Respondent Florida State Hospital was charged with supervising BHS's staff and with recommendations where required, for disciplinary action or removal from the work site. BHS had the final authority to reassign, discipline or terminate BHS staff, however, by the terms of the contract. The Petitioner was hired by BHS as of October 6, 2006. The offer of employment which she accepted came from BHS. The Petitioner was told later that she was terminated in February 2007 by Angie Burge, the BHS Human Resources Manager. The Petitioner's date of employment were October 6, 2006, through February 6, 2007. The testimony of Angie Burge and Amy Bryant establishes that BHS employees such as the Petitioner, were trained by BHS. Ms. Bryant established through her testimony, as the Operations and Management Consultant for the Department of Children and Families (Department) that neither the Department nor Florida State Hospital had controlling responsibility over employee relations matters regarding BHS's staff/employees, such as the Petitioner. Although she and Florida State Hospital worked in conjunction with Ms. Burge and BHS on employee training requirements, BHS employees, including the Petitioner, were trained by BHS and its staff. BHS and the Respondent Florida State Hospital had a contract for BHS to provide staff for the forensic unit at Florida State Hospital, where the Petitioner was employed by BHS and the contract included the requirement that BHS operate that unit. At orientation, BHS provided its employees or new hires, including the Petitioner, all polices and procedures of BHS and trained them as to such policies and procedures. Ms. Burge, a BHS staff member, provided that training. BHS had authority to hire employees or to terminate them or discipline them and to make final decisions on the performance of the duties of the staff it hired, including the Petitioner. Florida State Hospital and the Department did not have final authority on such matters but could only recommend to BHS. The salary and benefits plan of BHS was very different from that of Florida State Hospital. It was based upon the parent company's pay and benefits scheme, the parent company being Lakeview Center, Inc. The administrators of Florida State Hospital did not have any decision-making authority in employee regulation, discipline, hiring, and termination decisions. Ms. Burge, the BHS Human Resources Manager, made the decision and informed the Petitioner of her termination. The Petitioner has not presented persuasive evidence that Florida State Hospital had sufficient control over the terms and conditions of the Petitioner's employment, or the employment of other BHS staff members, so that such staff members, including the Petitioner, could be deemed employees of the Respondent.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and the arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety due to lack of jurisdiction. DONE AND ENTERED this 5th day of March, 2008, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 5th day of March, 2008. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Corrine Hamilton 440 South Cone Street Quincy, Florida 32351 Jacqueline H. Smith, Esquire Department of Children and Family Services Post Office Box 1000 Chattahoochee, Florida 32324-1000
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This case involves a request by Petitioner, Bobby Jones, for an exemption from disqualification from employment in a position of special trust. If the request is approved, Petitioner would be allowed to return to work as a unit treatment rehabilitation specialist in a unit for developmentally disabled adults at Florida State Hospital (FSH). Respondent, Department of Children and Family Services (DCFS), is the state agency charged with the responsibility of approving or denying such requests. In a preliminary decision entered on an unknown date, a DCFS committee denied the request. Petitioner is now barred from doing such work because of a disqualifying offense which occurred on June 4, 1989. On that date, Petitioner was arrested for the offense of "battery- domestic," a misdemeanor under Section 784.03(1)(a), Florida Statutes (1987). According to Petitioner, the victim in the incident was his former wife. Thus, the offense constituted domestic violence as it subsequently became defined in 1994 by Section 741.28, Florida Statutes. Petitioner entered a plea of guilty to the charge of "battery" on August 10, 1989. He was fined $75.00, and he was placed on probation for a period of "up to 9 months." In addition, the court retained jurisdiction "to [o]rder rest[itution]," and Petitioner was required to complete a mental health counseling program. Petitioner successfully completed all terms of his probation, including the counseling course which lasted around "six to nine months." In October 1989, Petitioner began working at FSH as a human services worker in a unit for developmentally disabled adults. Eventually, he attained the position of unit treatment rehabilitation specialist, a position involving supervision of developmentally disabled adults. Due to a change in the law, in 1996, he was required to undergo a background screening. That screening uncovered his 1989 offense, and on July 14, 1997, he was disqualified from working in a position of special trust with developmentally disabled adults. Petitioner was then offered a temporary assignment effective July 24, 1997, without any "direct care duties." Most recently, however, he has been employed at a Wal-Mart store in Tallahassee, Florida. Because of his desire to return to his former position, he has applied for an exemption from disqualification. Since the disqualifying incident in 1989, Petitioner worked continuously at FSH for almost eight years. Since leaving FSH, he has been steadily employed by Wal-Mart. Petitioner was described by a former supervisor at FSH as being "dependable," "very good" with residents, and someone who got along well with other staff. Three former co-workers echoed these comments. A present co-worker at Wal-Mart also described Petitioner as friendly, helpful, and courteous with customers. Except for the fact that a former wife was the victim, the circumstances surrounding the incident for which the exemption is sought are not of record, and the "harm [if any] caused to the victim" is unknown. Despite the glowing comments of other workers, the adverse testimony of a former supervisor at FSH must be taken into account. In December 1995, she found Petitioner engaged in a verbal confrontation with another worker. She then directed that Petitioner report to her office. On the way to the office, he told her that the other employee was "going to make [Petitioner] put a board on his ass." At the ensuing meeting, Petitioner became extremely upset and told the supervisor that he wished she were dead, that she would get killed in a traffic accident on the way home, and that he would "spit on her grave." Petitioner subsequently received a written reprimand for using "Threatening and/or Abusive Language" towards his supervisor. In another incident that occurred on May 22, 1997, Petitioner was observed by the supervisor "horseplaying with another employee" in the dining room. When told by the supervisor that such conduct was inappropriate for the workplace, Petitioner stated in a loud, hostile manner, in the presence of both co-workers and clients, that he "would choke the motherfucker out." For this conduct, he received another written reprimand for "Threatening and/or Abusive Language," and he was suspended from work for three days. According to the same supervisor, Petitioner has an "explosive" temper, and she would not want him returning to her unit. Given this testimony, it is found that Petitioner has failed to demonstrate by clear and convincing evidence that he will not present a danger if continued employment is allowed. Besides the disqualifying offense, Petitioner has a long string of misdemeanor convictions beginning in 1979 and continuing through 1992. The specific crimes are described in Respondent's Exhibits 1-7 and 9-31 received in evidence. Petitioner himself acknowledged that he has been convicted of passing worthless bank checks approximately thirty times. Most recently, he was convicted for the offense of disorderly conduct in November 1992. In addition, he was convicted for the offense of simple battery on a former wife in October 1990. These convictions, by themselves, are not disqualifying offenses, and many are so old as to be arguably remote and irrelevant. They do, however, establish a continuing pattern of misconduct, especially since Petitioner has at least eight convictions for various misdemeanors since the disqualifying offense in 1989. Given these circumstances, it is found that Petitioner has failed to demonstrate sufficient evidence of rehabilitation since the disqualifying event. This being so, his request for an exemption should be denied.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Children and Family Services enter a final order denying Petitioner's request for an exemption from disqualification for employment in a position of special trust. DONE AND ENTERED this 3rd day of March, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 1998. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Pete Peterson, Esquire Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Ben R. Patterson, Esquire Post Office Box 4289 Tallahassee, Florida 32315-4289 John R. Perry, Esquire Department of Children and Family Services 2639 North Monroe Street, Suite 252A Tallahassee, Florida 32399-2949
Other Judicial Opinions A party who is adversely affected by this final order is entitled to judicial review pursuant to Sections 120.68 and 766.311, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original of a notice of appeal with the Agency Clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the appropriate District Court of Appeal. See Section 766.311, Florida Statutes, and Florida Birth-Related Neurological Injury Compensation Association v. Carreras, 598 So. 2d 299 (Fla. 1st DCA 1992). The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.
Findings Of Fact The Department of Professional Regulation, Board of Dentistry, filed an Administrative Complaint in DPR Case Number 00-52375 against the Petitioner's license to practice dentistry on May 13, 1986. The Petitioner did not dispute the facts alleged in the Administrative Complaint and the Board of Dentistry held an informal hearing, pursuant to Section 120.57(2), Florida Statutes, on September 13, 1986. On October 2, 1986, the Board of Dentistry issued a Final Order suspending the Petitioner from the remunerative practice of dentistry for a period of ten (10) years and advised the Petitioner of his right to appeal the Board's Final Order. The Petitioner did not appeal the October 2, 1986 Final Order of the Board of Dentistry. On or about May 1, 1987, and/or May 2, 1987, the Board of Dentistry met to consider correspondence from the Petitioner seeking a determination of compliance with the Board's October 2, 1986 Final Order for his proposal to do volunteer community service dental work at "St. Catherine Laboure Manor" in Jacksonville, Florida. The Board of Dentistry requested further clarification from the Petitioner and took no further action with respect to the Petitioner's request. On June 10, 1987, the Board of Dentistry met to consider the Petitioner's request to allow him to provide volunteer community service dental work under indirect supervision, and on June 26, 1987, the Board of Dentistry issued an Order Denying the Modification. The Petitioner did not appeal the June 26, 1987, Order of the Board of Dentistry. On or about March 9, 1988, the Petitioner submitted his second request to the Board of Dentistry for modification of its October 2, 1986 Final Order. The Petitioner identified the following reasons as why the Board of Dentistry should grant his request: My obligation to the people of the State of Florida was fully satisfied on September 28, 1987 (enc.). My civil rights were restored on February 25, 1988 (enc.). The fine imposed by the Board of Professional Regulation ($2000.00) has been paid in full. Since July 1987 I have been treating patients in St. Catherine Laboure' Manor under the direct supervision of Owen Boales D.D.S., as required by order of the Board (enc.). I am currently 64 years of age and need gainful employment. My wife and I are currently surviving primary on her earnings as an employee of the Florida Community College at Jacksonville. My mentally disabled son was admitted to The Northeast Florida State Hospital approximately one month after my arrest. His condition would be benefited by whatever personal attention and care my wife and I may be able to provide. The ten year suspension order now in effect is tantamount to lifetime punishment. This long suspension does not benefit the public but severely obstructs rehabilitative effort. It minimizes the opportunities for professional public service and prevents professional employment. It reduces the available options to demonstrate reliability and observable conformity to the profession's ethical standards. It will continue to impede all my effort to becoming a self sustaining productive and worthy member of society. On April 23, 1988, the Board of Dentistry met to consider the Petitioner's second request for modification of the Board's October 2, 1986 Final Order. After discussion and consideration of the evidence and arguments of the Petitioner, the Board of Dentistry on July 13, 1988, issued an Order Denying Modification of Final Order. The Petitioner did not appeal the Board's July 13, 1988 Order denying his second request. On or about June 5, 1990, the Petitioner through his attorney submitted his third request to the Board of Dentistry for a modification of the October 2, 1986 Final Order. The Petitioner's third Motion for Modification of Final Order submitted to the Board on or about June 5, 1990, did not contain information or circumstances that were substantially different from those known to the Board at the time the Final Order of October 2, 1986, was entered, at the time the first order was entered denying the modification request, or that were known to the Board when it had previously heard and denied Petitioner's second request in 1988. On July 28, 1990, the Board of Dentistry met to consider the Petitioner's third request for modification of the October 2, 1986 Final Order. After discussion of the parties and upon the advice of legal counsel, the Board of Dentistry on August 13, 1990, issued an Order Denying Modification of Final Order. The Petitioner timely sought an appeal of the Board's August 13, 1990 Order in the First District Court of Appeal, Case Number 90-2369. On September 4, 1991, the First District Court of Appeal issued its opinion where they found the August 13, 1990 Final Order to be ambiguous, vacated the August 13th Final Order, and remanded the case back to the Board of Dentistry for further proceedings. On October 8, 1991, the First District Court of Appeal issued its Mandate to the Board of Dentistry to hold further proceedings consistent with the Court's opinion. On or about October 15, 1991, the Petitioner submitted an Amended Motion for Modification alleging for the first time that "there had been material changes in circumstances since his suspension was entered and/or since the previous rulings as to his suspension." On November 8, 1991, the Board of Dentistry met to consider the Petitioner's third request for modification of the Board's October 2, 1986 Final Order, the Amended Motion for Modification of Final Order, and the Opinion and Mandate of the First District Court of Appeal. After discussion and consideration of the Petitioner's requests for modification, the Opinion and Mandate of the First District Court of Appeal, and the evidence presented, on December 12, 1991, the Board of Dentistry issued a Final Order on Remand granting the Petitioner's Amended Motion for Modification of the Board's October 2, 1986 Final Order. The Petitioner is a sole proprietor of a professional practice of dentistry. His principal office and domicile are located in Jacksonville, Florida. He has fewer than twenty-five (25) full-time employees, and his net worth, at the time of filing, was less than two million ($2,000,000) dollars. The Petitioner incurred appellate attorney's fees in the amount of $8,990.00 and costs in the amount of $323.92. The Respondent did not dispute the reasonableness of the fees and costs in this case.
The Issue Whether J. Glenn Brown, Jr., was an "employee" of Northwest Florida Community Hospital for purposes of the State of Florida retirement system?
Findings Of Fact The Parties. Petitioner, Board of Trustees of the Northwest Florida Community Hospital (hereinafter referred to as the "Board of Trustees"), is the governing body of the Northwest Florida Community Hospital. Petitioner, Board of County Commissioners of Washington County, Florida (hereinafter referred to as the "County Commissioners"), is the governing body of Washington County, Florida, and the owner of the Northwest Florida Community Hospital. The Respondent, the Department of Management Services, Division of Retirement (hereinafter referred to as the "Division"), is the agency charged with responsibility for administering the Florida retirement system established by Chapter 121, Florida Statutes. Operation of Northwest Florida Community Hospital Prior to February of 1988. The Northwest Florida Community Hospital (hereinafter referred to as the "Hospital"), is a small, rural acute-care hospital located in Chipley, Washington County, Florida. During the mid-1980's, the Hospital suffered from a financial crisis that threatened its continued existence. As a consequence thereof, it was concluded that the Hospital should be sold. A contract was negotiated and entered into for the sale of the Hospital to National Healthcare, Inc. (hereinafter referred to as "NHI"). As a part of the contract entered into with NHI, NHI was to operate the Hospital before the contract for sale was completed. J. Glenn Brown was an employee of NHI. NHI assigned Mr. Brown to the Hospital to act as the administrator of the Hospital. As administrator of the Hospital, Mr. Brown was the top manager of the Hospital. Mr. Brown, while employed by NHI, acted as the administrator of the Hospital from September 1986, until approximately September or October of 1987. At some time prior to February 1988, the contract for sale of the Hospital to NHI was cancelled and the Board of Trustees began to operate the Hospital. The Consulting Contracts. On or about February 1, 1988 the Hospital and Mr. Brown entered into a Consulting Contract (hereinafter referred to as the "First Contract"). Petitioner's exhibit 1. Mr. Brown agreed in the First Contract to operate the Hospital. Mr. Brown operated the Hospital pursuant to the First Contract until its expiration. Although the term of the First Contract ended January 31, 1991, Mr. Brown continued to operate the Hospital. A second Consulting Contract (hereinafter referred to as the "Second Contract"), was entered into on or about May 29, 1992 between Mr. Brown and the Hospital. The Second Contract applied to the period February 1, 1992, through February 1, 1993. Mr. Brown continued to perform services for the Hospital between the end of the First Contract and the beginning of the Second Contract. The differences between the First Contract and the Second Contract (hereinafter referred to jointly as the "Consulting Contracts"), were not substantial other than the amount of the annual fee to be paid to Mr. Brown. The Treatment of Mr. Brown for Purposes of the Florida Retirement System. During the period of time that Mr. Brown operated the Hospital from February 1, 1988 until he departed in the fall of 1992, the Hospital treated Mr. Brown as an "independent contractor" and not an "employee" for purposes of the Florida retirement system. Although the Hospital could have requested a determination of Mr. Brown's status for purposes of the Florida retirement system, the Hospital was not required to do so. The Hospital, as it was authorized to do pursuant to Chapter 121, Florida Statutes, made the initial decision to treat Mr. Brown as an independent contractor. After Mr. Brown had left the Hospital, an audit of the Hospital was conducted by the management review section of the Division. As a result of the audit, the Division raised a question about the status of Mr. Brown for purposes of the Florida retirement system. As a result of the audit of the Hospital, the Division required the Hospital to submit a Florida Retirement System Employment Relationship Questionnaire form requesting a determination of Mr. Brown's status as an employee or independent contractor. The Hospital did so. See Respondent's exhibit 2. The Division reviewed the Questionnaire and determined that Mr. Brown was an "employee" for purposes of the Florida retirement system, and so notified the Hospital. The Hospital filed a request for a formal administrative hearing to contest the Division's determination that Mr. Brown was an employee. Based upon the foregoing, it is the Division that is attempting to change the status quo in this matter. But for the Division's audit and requirement that the Hospital file a Questionnaire, the Hospital's treatment of Mr. Brown as an independent contractor for purposes of the Florida retirement system would have been final. Services to be Provided by Mr. Brown Pursuant to the Consulting Contracts and Mr. Brown's Relationship with the Board of Trustees. Mr. Brown, referred to as the "consultant" in the Consulting Contracts, agreed to provide the following services: 1:1 The Hospital hereby contracts with Consultant to provide services to the Hospital to perform such services as may be necessary to properly and efficiently run the Hospital for the purpose of providing quality healthcare to the citizens of Washington County and a more productive business operation. 1:2 Consultant hereby contracts with the Hospital to perform such services as may be necessary to provide the Hospital advice, expertise and a more efficient and productive business operation. The Consulting Contracts also contained the following provision pertaining to Mr. Brown's operation of the Hospital: 2:1 Consultant agrees to devote such of his time and efforts to the performance of such services as are necessary to perform and achieve the objectives set forth in Article I above. Consultant agrees that he will not directly or indirectly render any service of a business, commercial or professional nature to any other Hospital in Northwest Florida, whether for compensation or otherwise, during the term of this Agreement without the prior written consent of the Board of Trustees of the Hospital. Consultant agrees to comply with the Hospital's policies, rules and regulations as determined from time to time by the Board of Trustees of the Hospital. It was the intent of the Hospital and Mr. Brown that he would act as an independent contractor, and not an employee, in performing the services contemplated by the Consulting Contracts. Mr. Brown was to, and did, provide his services personally. Mr. Brown did not operate through a corporation or other business entity. Between February 1988 and the Fall of 1992, Mr. Brown administered the Hospital in essentially the same manner that he had prior to 1988 while employed by NHI. The Board of Trustees established policies for the operation of the Hospital during the term of the Consulting Contracts. Mr. Brown carried out policies adopted by the Board of Trustees. Mr. Brown was involved in the formulation of policies by the Board of Trustees and he advised the Board of Trustees concerning policies it adopted. The Board of Trustees had little experience in operating the Hospital. The day- to-day operations of the Hospital had been handled by NHI prior to entering into the First Contract. Prior to NHI's operation of the Hospital, the Hospital was administered by Hospital Corporation of America (hereinafter referred to as "HCA"). HCA had operated the Hospital through an employee, Buel Sapp. The Board of Trustees, therefore, relied heavily on Mr. Brown and his expertise in developing polices and for his efficient operation of the Hospital. The manner in which Mr. Brown administered the Hospital was also largely the same as the manner in which the Hospital has been administered by the person who replaced by Mr. Brown. The new administrator has been treated as an "employee" by the Hospital. Training. Mr. Brown was a professional hospital administrator with a number of years of experience operating hospitals, including the Hospital. In light of Mr. Brown's experience, especially at the Hospital, training was not required when Mr. Brown undertook the services contemplated by the First Contract. Integration. The services to be performed pursuant to the Consulting Contacts were integral to the operation of the Hospital. Mr. Brown performed services normally performed by an "administrator" or top manager of any hospital. Manner In Which Mr. Brown Performed Services. Mr. Brown did not hire any assistants or employees to assist him in the performance of the services required by the Consulting Contracts. The Consulting Contracts did not prevent Mr. Brown from using the services of others to carry out the services to be provided. Although Mr. Brown was ultimately obligated to insure that the services contemplated by the Consulting Contracts were provided, the manner in which services required by the Consulting Contracts were to be carried out was not specified. Continuing Relationship. Mr. Brown was required, as a condition of the Hospital entering into the First Contract, to move to Washington County. Pursuant to the First Contract, Mr. Brown was obligated to perform services for the Hospital for a period of four years. The First Contract expired February 1, 1991. The Second Contract obligated Mr. Brown to perform services for the Hospital for a period of one year. The Second Contract was effective February 1, 1992. Mr. Brown continued to perform services for the Hospital between February 1, 1991 and February 1, 1992, although the First Contract had expired and the Second Contract had not yet been entered into. The evidence failed to prove why Mr. Brown continued to perform services for the Hospital between February 1, 1991, and February 1, 1992. Mr. Brown performed services for the Hospital after he left NHI for between 3 and 4 years. Mr. Brown's Working Hours. Mr. Brown's working hours were not specified in the Consulting Contracts. Mr. Brown, therefore, was not legally required to perform services during any set period of time. Mr. Brown generally performed services for the Hospital from the early morning until the early evening. Mr. Brown's hours were consistent with the hours worked by employees of the Hospital. Mr. Brown did not keep time-sheets indicating the hours he worked. Nor did Mr. Brown use, or "punch," a time-clock which employees of the Hospital used. Full-Time or Part-Time Work. Mr. Brown was not required to work any set amount of hours pursuant to the Consulting Contracts. The services expected of Mr. Brown pursuant to the Consulting Contracts reasonably contemplated that Mr. Brown would perform services full- time, only if necessary. The Consulting Contracts also provided that Mr. Brown was not required to perform services on days he attended seminars or meetings to improve his position. The Consulting Contracts also required that Mr. Brown make himself available "for all reasonable meetings, engagements, and any and all other reasonable attempts by the Hospital to promote the Hospital." Mr. Brown did not receive annual or sick leave. Mr. Brown did not work at the Hospital every day of the week. During some weeks, he only worked three or four days. Where Mr. Brown Performed Services. Although not specifically required to do so, Mr. Brown performed the services contemplated by the Consulting Contracts essentially on the premises of the Hospital. In order to effectively administer the Hospital, it was necessary that Mr. Brown be available at the Hospital. Reports from Mr. Brown to the Hospital. Mr. Brown regularly reported to the Board of Trustees and kept the Board informed of his actions. Compensation for Mr. Brown's Services. Pursuant to the First Contract, Mr. Brown was paid an annual fee of $70,555.00. The annual fee was paid biweekly in twenty-six equal installments. Payments were made on the last day of every other week. The annual fee to be paid to Mr. Brown pursuant to the First Contract was agreed upon during negotiations based upon the average salary paid to administrators of similarly sized hospitals who were serving as employees, and adding thereto the amount of withholding tax, retirement contributions and other amounts which would be paid on behalf of an "employee." Had Mr. Brown been hired as an "employee", presumably he would have only been paid an amount based upon the average salary of other employee/administrators. Pursuant to the Second Contract Mr. Brown was paid an annual fee of $98,770.00. The annual fee was paid monthly on the first day of each month and upon the submission of an invoice from Mr. Brown. The Consulting Contracts also provided the following: Consultant hereby acknowledges and agrees that he is an independent contractor individually liable for self employment and all other taxes of any nature due on the fees paid by the Hospital to Consultant. Payments of Mr. Brown's annual fee were made to him by the Hospital out of a separate account and not the Hospital's "payroll" account from which Hospital employees were paid. Payments were made at the same time that Hospital employees were paid. The Hospital also paid for group health insurance for Mr. Brown. Health insurance benefits provided to Mr. Brown were the same benefits provided to Hospital employees. The Hospital also paid for disability insurance for Mr. Brown and a life insurance policy larger than provided to Hospital employees. Mr. Brown's Expenses; Tools and Materials; Investment. Pursuant to the Consulting Contracts, the Hospital paid dues Mr. Brown was required to pay to maintain "membership in applicable organizations or associations deemed necessary for promotion of the Hospital " The Hospital paid expenses incurred by Mr. Brown to attend meetings and seminars on new federal and state health care regulations which impacted the operation of the Hospital. The Hospital paid Mr. Brown a vehicle allowance of $250.00. The Hospital also provided Mr. Brown with an office, furniture, office supplies, a secretary (who was an employee of the Hospital) and with telephone and other services necessary to operate as the administrator of the Hospital. The office provided to Mr. Brown was the office used by the Hospital administrator. Other then Mr. Brown's education, Mr. Brown did not have any substantial investment in his position with the Hospital. Capital investment necessary for Mr. Brown to carry out his duties was provided by the Hospital. Profit and Loss Potential. In light of the fact that Mr. Brown was guaranteed payment for his services and the lack of investment and expenses Mr. Brown was required to provide, there was no reasonable potential Mr. Brown would incur a loss. Mr. Brown operated as an individual. Offer of Services to the General Public. The Consulting Contracts prohibited Mr. Brown from providing his services to others in "Northwest Florida." Mr. Brown was, therefore, free to perform services elsewhere. During the term of the Consulting Contracts, Mr. Brown did perform services for other companies located outside of Florida. Article X of the Consulting Contracts provided, in pertinent part, the following: . . . . Consultant further agrees that he shall not participate, directly or indirectly, individually or as a partner, shareholder, employee, agent, consultant, officer, director or otherwise, in any other business where such participation will in any manner interfere (as reasonably determined by the Board of Trustees and Consultant) with the business of the Hospital or which ultimately, in the final opinion of the Board of Trustees, could result in the integrity of the Hospital being subject to doubt. Right to Terminate Mr. Brown and Mr. Brown's Right to Quit. Pursuant to the Consulting Contracts, the Hospital had the right to terminate Mr. Brown's services for "good cause" as determined by majority vote of the Board of Trustees and "upon sixty (60) calendar days written notice of termination to the Consultant." The Hospital was required, however, to pay Mr. Brown for four months of service. The Hospital also had the right to terminate Mr. Brown's services if he were convicted of a felony, required to take treatment for drug or alcohol abuse, engaged in activity harmful to the reputation of the Hospital or failed to comply with the terms of the Consulting Contract. Mr. Brown was authorized by the Consulting Contracts to terminate his services upon sixty days written notice. The Consulting Contracts provide that the agreement terminated upon the death of Mr. Brown. Weighted Consideration of the Facts. Several of the facts in this case indicate that Mr. Brown was an independent contractor of the Hospital and several of the facts indicate that he was an employee. Based upon a weighted consideration of the facts in this case, it is concluded that Mr. Brown operated as an independent contractor, and not an employee, for the Hospital.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a Final Order concluding that J. Glenn Brown, Jr., was not a compulsory member of the Florida retirement system pursuant to Section 121.051, Florida Statutes. DONE AND ENTERED this 18th day of November, 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 18th day of November, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1635 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. The Hospital's Proposed Findings of Fact Accepted in 1. Accepted in 2 and hereby accepted. Accepted in 7-8. Accepted in 28. Accepted in 10. See 11-13 and 38-39. The First Contract expired January 31, 1991, and not January 31, 1992. Accepted in 16 and 24. Accepted in 35. Accepted in 54 and hereby accepted. The last sentence is not relevant. 9 Accepted in 26, 42-43, 52, 57 and 63. Hereby accepted. Accepted in 68. Accepted in 48. Accepted in 50. Accepted in 30-31. Accepted in 3. The Division's Proposed Findings of Fact Accepted in 4-6. Accepted in 7. Accepted in 9 and hereby accepted. 4 Accepted in 10,53-54, 58-59 and 62. Accepted in 28. Accepted in 23. Accepted in 23 and 69. The first sentence is not relevant. 8 Accepted in 41-42, 44, 47, 52-53 and 63. See 41-43 and hereby accepted. Although Ms. Ward did testify consistent with this finding of fact, the testimony was not sufficiently detailed to conclude that Mr. Brown and Mr. Mason provided services in exactly the same manner. Accepted in 61. 12 Accepted in 11-14, 38-39 and 55. Accepted in 14, 25 and 66. Accepted in 23. Accepted in 60-61. See 73. See 53-62. The conclusion on page 10 is not supported by the weight of the evidence. COPIES FURNISHED: Gerald Holley, Esquire Post Office Box 268 Chipley, Florida 32428 William S. Howell, Jr., Esquire Post Office Box 187 Chipley, Florida 32428 Stanley M. Danek, Esquire Division of Retirement Department of Management Services 2639 North Monroe Street, Building C Tallahassee, Florida 32399-1560 A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Sylvan Strickland, Esquire Department of Management Services Knight Building, Suite 309 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950
