The Issue The ultimate issue in the instant case is whether Petitioner abandoned his position with Respondent and resigned from the Career Service.
Findings Of Fact Based upon the record evidence, the Hearing Officer makes the following Findings of Fact: Petitioner was formerly employed as an Unemployment Compensation (UC) Adjudicator in Respondent's Miami UC office. In this capacity, he interviewed claimants seeking unemployment compensation and made initial determinations regarding the validity of their claims. Petitioner was often absent because of illness. When he was at work, however, he performed his duties competently. Petitioner and his fellow employees at the Miami UC Office were required to notify supervisory personnel no later than the beginning of the workday if they were going to be absent that day. Petitioner was made aware of this requirement on various occasions prior to the absences that led to the termination of his employment with Respondent. On Tuesday, September 5, 1989, Petitioner telephoned his supervisor and told her that he would be absent that day because of an ankle injury he had sustained. He did not indicate during the conversation whether he would be at work the following day. On Wednesday, September 6, 1989, and Thursday, September 7, 1989, Petitioner neither reported to work nor contacted his supervisor at any time during the day to give notification of his absence. On Friday, September 8, 1989, Petitioner again failed to report to work. He did, however, telephone his supervisor concerning his absence, but he did not do so until 4:50 p.m., 20 minutes after the shift to which he was assigned had ended. By letter dated September 11, 1989, Respondent notified Petitioner that it had determined that Petitioner had abandoned his position and resigned from the Career Service effective the close of business September 8, 1989, in view of his unauthorized absence from work on September 6, 7, and 8, 1989. It is this determination that is the subject of the instant controversy.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Administration enter a final order sustaining Respondent's determination that Petitioner abandoned his UC Adjudicator position with Respondent and resigned from the Career Service. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of February 1990. STUART H. LERNER 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 16th day of February 1990. APPENDIX TO RECOMMENDED ORDER Petitioner's Proposed Findings of Fact To the extent that Petitioner asserts in his letter that he contacted his supervisor on September 5, 1989, and again on September 8, 1989, his proposed findings of fact have been accepted and incorporated in substance in this Recommended Order. To the extent that he claims that he "did not have 3 consecutive days of unauthorized absences," his proposed factual findings have been rejected because they are contrary to the preponderance of the evidence. Respondent's Proposed Findings of Fact First Sentence: Accepted and incorporated in substance; Second Sentence: Rejected because it adds only unnecessary detail. First and second sentences: Rejected because they add only unnecessary detail; Third sentence: Accepted and incorporated in substance. Rejected because it adds only unnecessary detail. Accepted and incorporated in substance. Rejected because it adds only unnecessary detail. Accepted and incorporated in substance. First, second and fifth sentences: Accepted and incorporated in substance; Third and fourth sentences: Rejected because it adds only unnecessary detail. Accepted and incorporated in substance. COPIES FURNISHED: Jerry Cooper 1601 Northwest 17th Street, #2 Miami, Florida 33125 Edward A. Dion, Esquire Assistant General Counsel Florida Department of Labor and Employment Security Suite 131, Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-0657 William A. Frieder Senior Attorney Office of the General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr. General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Hugo Menendez, Secretary Florida, Department of Labor and Employment Security Berkeley Building, Suite 200 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152
The Issue The issues presented are whether Respondent properly terminated Petitioner from his employment as a deputy sheriff for alleged insubordination in violation of Chapter 89-404, Section 8, Laws of Florida, as amended by Chapter 90-395, Section 8, Laws of Florida (the Civil Service Act) and Respondent's General Order Section 3-1.1, Rule and Regulation 5.17(a), and, if not, whether Respondent should reinstate Petitioner to his former position with back pay, benefits, and seniority.
Findings Of Fact Respondent is a constitutional officer of the State of Florida. Respondent is responsible for providing law enforcement and correctional services within Pinellas County, Florida. At all times pertinent to this case, Respondent employed Petitioner as a deputy sheriff, and Petitioner was subject to relevant rules and regulations identified in the record as General Orders and Rules. Sometime in July 2004, Ms. Caroline Hart, a private citizen, communicated to Petitioner that she had previously been the subject of inappropriate sexual misconduct from Deputy Sheriff Gerald Akins when Deputy Akins responded to a call from Ms. Hart within the city of Dunedin, Florida. Ms. Hart knew Petitioner from a previous relationship. Petitioner was uncertain of the procedure he should follow, and sought advice from Corporal James Cooper, Petitioner's immediate supervisor. Corporal Cooper was the acting sergeant for their squad. No sergeant was scheduled to be on duty that night when the squad was to begin its shift. Petitioner telephoned Corporal Cooper and reported the accusations by Ms. Hart. Corporal Cooper assured Petitioner that Petitioner had followed the correct procedure and that Corporal Cooper would report the information to Sergeant Michael Rogers, the shift commander for the shift that included their squad and that of Sergeant Rogers. During the conversation between Corporal Cooper and Petitioner, Corporal Cooper stated that Petitioner should not discuss the matter with Deputy Akins. Petitioner subsequently telephoned Deputy Akins and told him about the accusations by Ms. Hart. Respondent alleges that when Petitioner communicated with Deputy Akins Petitioner committed insubordination by "refusing to obey a lawful order" from Corporal Cooper within the meaning of General Order Section 3-1.1, Subsection 5.17(a)(the rule). Petitioner asserts that the statement by Corporal Cooper was advice, rather than an order, and that Petitioner did not commit insubordination. The factual issue presented is whether Corporal Cooper ordered Petitioner not to speak to Deputy Akins. A finding of insubordination requires a preponderance of evidence to show that Corporal Cooper intended to issue an order, that the express words used by Corporal Cooper clearly stated an order, that Petitioner understood the statement to be an order, and that Petitioner intentionally refused to follow an order. Relevant rules do not define terms such as an "order" or "refusing an order" and do not distinguish an "order" or an "instruction" from "advice." The trier of fact defines relevant terms based on the plain and ordinary meaning of relevant terms as they are defined in The American Heritage Dictionary of the English Language, 4th ed., at 25, 1238, and 1469 (Boston 2000), and as explained in relevant testimony during the hearing. As the Chief Deputy explained during his testimony: The terminology that we use is a lawful order. I'm not certain that there is a specific definition within the policies. My understanding of the . . . the term order . . . in the context of our rules and regulations is basically the definition that I guess you would refer to in a dictionary in terms of when an order is given. Transcript (TR) at 220. Corporal Cooper clearly intended to order Petitioner to refrain from talking to Deputy Akins. Corporal Cooper assumed in his own mind there was a possibility for either a criminal or internal investigation, or both. Consistent with standard operating procedures in either type of investigation, Corporal Cooper intended to preserve the opportunity for investigators to "blind side" Deputy Akins by not giving him a head's up before questioning him. A preponderance of evidence does not support a finding that Corporal Cooper ever articulated the disputed order. The words used by Corporal Cooper to articulate the alleged order are not in evidence. Corporal Cooper does not recall what he said to Petitioner. The words used to communicate an order are essential to the existence of an order and to an understanding in the mind of a recipient, such as Petitioner, that he is receiving an order. As the Chief Deputy explained during his testimony: Obviously you need to be clear as to what words were used at the time when Corporal Cooper spoke with Deputy Collinsworth as it related to any communication with Deputy Akins. TR at 221-222. Corporal Cooper does not recall the exact words he used to communicate with Petitioner. Petitioner understood Corporal Cooper to advise Petitioner not to contact Deputy Akins. Corporal Cooper and Petitioner were the only parties to their conversation. The exact words used by Corporal Cooper, if they were in evidence, must also be interpreted in the context of the conversation with Petitioner. In response to a question from the trier of fact concerning the distinction between an order and advice, the Chief Deputy explained: And I think that the best way to describe that is in the context of . . . the words used. . . . [T]here would be some question as to the specific verbiage that was used and putting that into context as you made your decision. TR at 221-222. The conversation between Corporal Cooper and Petitioner arose in the context of Petitioner soliciting advice from Corporal Cooper. Corporal Cooper gave Petitioner advice in the same conversation in which he intended to "instruct" Petitioner to refrain from talking with Deputy Akins. However, Corporal Cooper did not verbally distinguish the advice from the instruction or clearly segue from advice to an order. Conflict testimony from Corporal Cooper during direct and cross examination elucidates the ambiguous context of the conversation with Petitioner. During direct examination by counsel for Respondent, Corporal Cooper testified that he gave Petitioner an instruction in response to Petitioner's request for advice: Deputy Collinsworth had called. He was upset. He stated he needed some advice. Q. Did you give Mr. Collinsworth some advice regarding his dealings with Ms. Hart? A. Yes. I told him not to talk with her any further, ignore her phone calls and not to have any personal contact with her. Q. And what did you tell Mr. Collinsworth about the allegations that Ms. Hart had made pertaining to Deputy Akins? A. Well . . . I told him that he started at the right spot and that I was going to have to get with Sergeant Rogers, because he was our shift commander at the time, and present the information to him and see where it goes from there. Q. And did you give . . . Deputy Collinsworth any other instructions about how he should deal with this information? A. I did tell him not to contact Akins, so I wanted to get a word for word from Akins. I didn't want him to have a head's up. (emphasis supplied) TR at 53-55. On cross-examination, Corporal Cooper did not recall the exact words he used to communicate with Petitioner and cast the conversation with Petitioner in a different light. In relevant part, Corporal Cooper testified: Q. And Shane was off duty to the best of your knowledge? A. Yes. Q. 'Cause he worked with you on the same shift, is that correct? A. Yes. Q. And you gave advice to Deputy Collinsworth about this whole situation, didn't you? A. Yes. Q. And some of your advice was to terminate all the phone calls with Ms. Hart and all the communication and all that, is that correct? A. Yes. Q. And that wasn't an order, was it? A. No. Q. Now when you were testifying on direct you mentioned that you went into the conversation about what to do with Akins, is that correct? A. Yes. Q. Did you preface anything in between the conversation about Hart and now talking about Akins, did you preface it with anything such as, well, now this is an order? Did you make any suggestion that you were changing from advice to an order? A. Not in that manner, no. Q. And as a matter of fact you don't remember what you said verbatim, is that correct? A. That's correct. Q. As a matter of fact you could have said I don't think you should call him. Could you have said that? A. Yes. Q. And that wouldn't be an order, would it? A. No. Q. And you could have also said I don't think it's a good idea to call him. Could you have said that? A. Yes. Q. And if you did indeed say that, that wouldn't be an order, would it? A. No. Q. And you could have also said, no, I wouldn't. Why get him upset? You could have said that, couldn't you? A. Yes. Q. And had you said that, that wouldn't be an order, would it? A. No. Q. Deputy Collinsworth has never disobeyed your orders in the past, is that correct? A. Correct. (emphasis supplied) TR at 69-71. Petitioner's understanding that Corporal Cooper advised, rather than ordered, Petitioner not to talk to Deputy Akins was corroborated by Deputy Akins. At a time more proximate to the incident, Petitioner asked Deputy Akins not to tell anyone about their conversation because Corporal Cooper had "advised" Petitioner not to discuss the matter with Deputy Akins. In relevant part, Deputy Akins testified: Q. Did Deputy Collinsworth tell you whether you should expect a call from Corporal Cooper? A. No, he did not. Q. Do you recall how this conversation concluded with Deputy Collinsworth? A. He stated that if anyone asked if we had spoken, to say no, we had not. Q. And did you ask him why he was asking you to do that? A. Yes. Q. And what did he say in response to that? A. Because he was advised by Corporal Cooper not to talk to me. . . . I don't remember verbatim word by word how the conversation went, but . . . I'm absolutely positive of the context of the conversation and how it was said. (emphasis supplied) TR at 112 and 116-117. It is undisputed that advice is not an order. Advice is a recommendation or suggestion. An order is a command or instruction given by a superior to a subordinate to act or to refrain from an act. The words used by Corporal Cooper and the context of the conversation with Petitioner did not create an understanding in the mind of Petitioner that he had received an order not to contact Deputy Akins. Petitioner lacked the requisite intent to refuse to follow an order. Respondent urges that Petitioner should have understood he was receiving an order from Corporal Cooper. As the Chief Deputy explained during his testimony: But I would also tell you that Corporal Cooper and Deputy Collinsworth were both aware of the fact that an allegation is made, that there is potential for an administrative investigation, and in the context of their discussion if Corporal Cooper was clear that there was the possibility of an administrative investigation, then at that point by general order there is no discussion with the principal. (emphasis supplied) TR at 222. Corporal Cooper was not clear that there was the possibility of an administrative investigation. Corporal Cooper advised Petitioner that he had started at the right place and that Corporal Cooper would report to the shift commander and see where it goes from there. Even if Corporal Cooper clearly stated that an administrative investigation were possible, Respondent did not terminate Petitioner from his employment on the alleged ground that Petitioner violated Respondent's written policy. The synopsis of the charge against Petitioner states: You were ordered by Corporal Cooper not to call or speak to Deputy Akins regarding an allegation concerning him. You disregarded this order and then you told Deputy Akins not to tell Corporal Cooper that you called him concerning the allegation. (emphasis supplied) Inter-Office Memorandum dated May 13, 2005. The expression, "see where it goes from there" is not synonymous with an administrative investigation. The matter could have been resolved through informal investigation by a front line supervisor. As Sergeant Rogers explained during cross-examination by counsel for Respondent: Q. If Akins was making improper comments to a member of the public, particularly someone that was a victim of a crime that he was involved in investigating, that would be improper? A. Yes, sir. Q. That would be subject to an investigation? A. Depends on what type of investigation you mean. Whether it would be a formal investigation or one done by a front line supervisor. That was my intent, I was going to have a front line supervisor look into it. TR at 247. Sergeant Rogers did not request an administrative investigation. When Corporal Cooper reported the allegations against Deputy Akins to Sergeant Rogers, the shift commander told Corporal Cooper to refer the matter to a sergeant identified in the record as either Sergeant Hubbard or Marshall (Sergeant Marshall). Sergeant Marshall was the shift commander for the squad or squads assigned to the city of Dunedin, Florida, the situs of the alleged violation. Sergeant Rogers ordered Corporal Cooper to refer the matter to Sergeant Marshall for investigation the next day. Sergeant Rogers received the report from Corporal Cooper at about 4:00 a.m. Ms. Hart was "extremely drunk," according to the information available to Sergeant Rogers, when Ms. Hart made the allegations against Deputy Akins. As Sergeant Rogers explained during cross-examination by counsel for Respondent: [T]he woman was extremely drunk. Why would I call her back at four or five in the morning when she's probably passed out? Let her sober up and let another supervisor talk to her later. TR at 248. Respondent did not undertake an administrative investigation of the allegations by Ms. Hart against Deputy Akins until months later when Respondent discovered those allegations during the administrative investigation of Petitioner that led to this proceeding. The investigation of the allegations by Ms. Hart exonerated Deputy Akins. Even if the words used by Corporal Cooper to communicate his intended order to Petitioner were in evidence, the disclosure by Petitioner to Deputy Akins of the allegations by Ms. Hart did not defeat the purpose of the alleged order from Corporal Cooper. As the Chief Deputy explained during his testimony: Q. Did the basis for exonerating Deputy Akins, if you know, have any relationship with the potential harm created by the disclosure of the allegations by petitioner to Deputy Akins? A. [I]n fact I don't believe it would have changed the final outcome. It [exoneration] probably still would have been followed . . . . The primary concern was the [lack of] veracity of the [alleged] victim. TR at 226-227. The refusal of Petitioner to follow the advice of Corporal Cooper arguably may have been disrespectful. The refusal arguably may have been made contemptuous by the efforts of Petitioner to conceal his conversation with Deputy Akins. However, disrespectful and contemptuous disregard of advice is not insubordination. Corporal Cooper did not treat the disclosure by Petitioner to Deputy Akins as insubordination. Respondent's written policies require Corporal Cooper to report insubordination to his superior. Corporal Cooper neither reported the alleged insubordination to Sergeant Rogers nor filed a written report of insubordination. Corporal Cooper explained, in substance, that he routinely does not write up subordinates because he needs to maintain a working relationship with his deputies. Corporal Cooper thinks he may have filed a verbal report with the shift commander but, again, does not recall the exact words in his verbal report. The shift commander does not recall such a report. When Deputy Akins informed Corporal Cooper that Petitioner had disclosed the allegations by Ms. Hart earlier that evening, Corporal Cooper did not respond in a manner consistent with a perception that Petitioner had committed insubordination. As Deputy Akins explained during direct examination by counsel for Respondent: Q. And what did Corporal Cooper tell you in that conversation? A. He asked me if I had spoken with Deputy Collinsworth and I advised him yes. Q. Did he say anything in response to that? A. He stated he had a feeling that Collinsworth might have called me. TR at 113. Corporal Cooper had no reason to believe that Petitioner "might" commit insubordination. Petitioner had never disobeyed orders from Corporal Cooper in the past.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order finding Petitioner not guilty of insubordination, rescinding the termination of employment, and reinstating Petitioner to his former position of employment with back pay, benefits, and seniority. DONE AND ENTERED this 7th day of October, 2005, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 7th day of October, 2005. COPIES FURNISHED: Kenneth J. Afienko, Esquire Kenneth J. Afienko, P.A. 560 First Avenue, North St. Petersburg, Florida 33701 Keith C. Tischler, Esquire Jolly & Peterson, P.A. 2145 Delta Boulevard, Suite 200 Post Office Box 37400 Tallahassee, Florida 32315 Aaron C. French, Esquire 4600 North Habana Avenue, Suite 17 Tampa, Florida 33614 William C. Falkner, Esquire Pinellas County Attorney's Office 315 Court Street Clearwater, Florida 33756
The Issue Whether Respondent Employer is guilty of an unlawful employment practice on the basis of failure to hire (sex discrimination), sexual harassment, and/or retaliatory termination.
Findings Of Fact This case was referred to the Division of Administrative Hearings on or about August 15, 2006. The parties filed respective responses [sic "compliances"] with the Initial Order herein, which responses were considered in setting the case for hearing. Petitioner's response requested that the final disputed-fact hearing be scheduled for any day after October 12, 2006. On September 6, 2006, final hearing was noticed for November 8, 2006. On October 5, 2006, Petitioner provided a change of address to New York. On October 10, 2006, a joint Pre-hearing Stipulation was filed. On October 23, 2006, Petitioner filed a Motion to Continue [sic “Request for Continuance for Good Cause”]. On October 27, 2006, Respondent filed its Objection to Petitioner's Request for Continuance. On November 1, 2006, a motion hearing was held by telephonic conference call. At that time, both parties agreed to continue the final disputed-fact hearing to January 16, 2007. Petitioner was orally cautioned that no further continuances would be granted except upon good cause shown. Also on November 1, 2006, an Order Granting Continuance and Re-Scheduling Hearing was entered and mailed. The new date noticed for final hearing in that Order was January 16, 2007, as follows: 2. This cause is hereby re-scheduled for final hearing on January 16, 2007, at 10:00 a.m., at the Department of Transportation, Seminole County Conference Room, 4th Floor, 719 South Woodland Boulevard, Deland, Florida. On January 8, 2007, Petitioner filed a Motion, titled "Motion Requesting a Continuance of Hearing Date for Good Cause." Apparently also on January 8, 2007, Respondent filed a response in opposition to the proposed continuance, but this item was not seen by the undersigned until January 16, 2007, at the final hearing.1/ Petitioner's Motion did not, in fact, state good cause for a continuance and was denied by an Order entered January 10, 2007, which Order was mailed that day to Petitioner's address of record in New York. On January 11, 2007, a copy of the Order was mailed to the Florida address which Petitioner had given under her signature on her Motion. On January 16, 2007, the final disputed-fact hearing was convened as noticed in the November 1, 2006, Order. At that time, the undersigned, a court reporter, Respondent's counsel, Respondent's principal, and two additional witnesses on behalf of Respondent were present. Petitioner was not present. The undersigned inquired by telephone of her office staff and of the Clerk of the Division of Administrative Hearings if Petitioner had contacted the Division with any explanation for her absence and was told that she had not. The undersigned sounded the docket in the hallway of the hearing room in Deland and inquired at the front desk. Petitioner had not appeared in the building. After waiting 30 minutes, Petitioner still had not appeared. Respondent's counsel represented on the record that he had spoken to Petitioner by phone on January 10, 2007, at which time Petitioner had told him that she would not appear for the January 16, 2007, hearing herein. He produced a January 10, 2007, letter he had sent Petitioner at the Florida address she had used on her second motion to continue. (See Findings of Fact 11 and 13.) Respondent's counsel's letter was admitted as Exhibit R-1, and represents that Respondent’s counsel advised Petitioner that her motion to continue had been denied and that the final disputed-fact hearing would be going forward on January 16, 2007, as previously noticed for hearing on November 1, 2006. (See Finding of Fact 10.) Respondent then moved ore tenus for a Recommended Order of Dismissal, which was taken under advisement, pending the undersigned's return to the Division of Administrative Hearings and further inquiries as to why Petitioner had not appeared for the final disputed-fact hearing. Respondent next moved ore tenus to tax fees and costs, and presented Exhibit R-2, itemizing the charges of Respondent’s counsel to Respondent and further presented the testimony of Respondent's principal, James Frank Kulger, in support thereof. Respondent's counsel was granted five days in which to file an affidavit of reasonableness in regard to the services and charges billed on Exhibit R-2. That affidavit was timely filed, and has been marked and admitted as Exhibit R-3. No transcript was provided. Upon the undersigned’s personal inquiries, when she returned to Tallahassee, of her office staff and of the Clerk of the Division of Administrative Hearings on January 17, 2007, the undersigned was yet again informed that Petitioner still had not contacted the Division with any excuse for not attending the previously-noticed final disputed-fact hearing on January 16, 2007. On January 18, 2007, the undersigned's secretary informed her that Petitioner telephoned the secretary to the undersigned and indicated that prior to January 16, 2007, Petitioner had received the January 10, 2007, Order denying a continuance; knew the final hearing had remained scheduled for January 16, 2007; and had elected not to attend the hearing. Petitioner inquired if the hearing had gone forward anyway, and was told by the secretary that it had. Petitioner inquired if an order had been entered and was informed that one had not.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 31st day of January, 2007, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2007.
Findings Of Fact Petitioner, Rodney G. Green and Charter Realty, Inc. (petitioners) are both small business parties within the meaning of Subsection 57.111(3)(d), Florida Statutes (Supp. 1984). This is not disputed by respondent. They are licensed real estate brokers actively engaged in the real estate business in Oveido, Florida. On February 1, 1985 respondent, Department of Professional Regulation Division of Real Estate (Division), filed an administrative complaint against petitioners alleging that they had violated certain provisions within Chapter 475, Florida Statutes, in connection with a real estate transaction that occurred in 1984. After hearing a Recommended Order was entered by the undersigned on July 3, 1985 dismissing the complaint with prejudice. The Recommended Order was adopted as a Final Order by the Division on August 20, 1985. There is no judicial review of that order. By adopting the Recommended Order, respondent's Final Order sustains petitioners' position that no impropriety or unlawful conduct occurred. The petition for attorney's fees and costs was filed on October 7, 1985 and is therefore timely. With leave of the undersigned an amended petition was later filed on October 25, 1985. Respondent filed its response on November 15, 1985. To defend against the Division's action, petitioners engaged the services of an attorney. According to an affidavit attached to the amended petition; petitioners have incurred $399.50 in costs and $2,287.50 in legal fees. These costs are found to be reasonable since respondent has not filed a counter-affidavit questioning their reasonableness. According to petitioners' affidavit, the disciplinary action in Case NO. 85-0735 was substantially unjustified because of the following reasons: The actions of the state agency in bringing this proceeding and prosecuting it through formal hearing were not substantially justi- fied and under the circumstances it would be just to award attorney's fees and costs to Respondents pursuant to Subsection 57.111, Florida Statutes. Respondent's affidavit responds in the following manner: The Petitioner acted within the scope of its judicatory responsibilities as prescribed in Chapter 475, Florida Statutes, when it initiated and advocated that administrative disciplinary action be taken against the licensees of Respondent's Rodney G. Green and Charter Realty, Inc. In accordance with the pre-existing statutory and regulatory re- quirements, petitioner's actions in this matter conformed to and were consistent with the aforementioned delegated authority. At all times relevant, the Petitioner's acts were "substantially justified" in that there was a reasonable basis in law and fact that the Respondents had violated Chapter 475, Florida Statutes. The administrative complaint in Case NO. 85-0735 generally alleged that petitioners had solicited and obtained a sales contract from certain prospective purchasers of property, that the purchasers had given respondents a $20,000.00 cash deposit to be held in escrow, and that when the transaction did not close petitioners failed to return the deposit to the purchasers until they complained to the Division. The complaint also charges petitioners with having failed to properly place the deposit in their escrow account, and with having failed to notify the Division when conflicting demands for the deposit were made. In an attempt to substantiate the charges, the agency presented the testimony of the principal purchaser and offered into evidence certain documentation concerning the transaction. The charges were ultimately determined to be without merit, and the complaint was dismissed.
The Issue Whether the suspension of the Petitioner Nelson was based on just cause.
Findings Of Fact Allen T. Nelson, Petitioner, was employed by the Department of Education, Division of Universities, University of Florida, as a Career Service employee Custodial Worker in the Physical Plant Division. During a three and a quarter month period of time the official attendance record disclosed 20 attendance deficiencies ranging from 15 minutes tardy to unauthorized absences for a full day. The employee had received an oral reprimand on July 8, 1977 for unsatisfactory attendance; a written reprimand on July 29, 1977 for unsatisfactory attendance and on September 29, 1977 was advised that his probationary period as a Groundskeeper II was unsatisfactory because of his attendance record. Because his probation was unsatisfactory, he was returned to his permanent position as a Custodial Worker. Notwithstanding official reprimands as well as counseling from his immediate supervisor, Mr. Earl Davis, and the Personnel representative for the Physical Plant Division, Mr. Danny Busseni, the employee's pattern of poor attendance and tardiness continued. While suggesting that some of his tardiness was caused by transportation problems and some of his absences were caused by family sickness and personal business, the employee was unable to give any clear or convincing reason why his attendance patterns were in any manner excusable. The employee indicated that he felt that the agency had not treated him fairly and this was one of the reasons for his poor attendance. Documentary evidence submitted by the employer confirms the steps of progressive discipline taken against the employee in an effort to improve his attendance record. The Guidelines for Standards of Disciplinary Action promulgated by the University provide that for unsatisfactory attendance the first offense shall result in an oral reprimand, the second offense in a written reprimand and that following a third offense the employee may be suspended for one week or dismissed. 8, All employees were aware of the guidelines which were incorporated in an Employee Handbook, covered in employee orientation sessions as well as being posted in areas where Career Service Employees are employed. Competent substantial evidence exists to sustain the action of the agency and "just cause" for the suspension of the employee is evident.
Recommendation Sustain the decision of the Respondent University of Florida. DONE and ENTERED this 31st day of May, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Allen T. Nelson 227 N.W. 7th Avenue Gainesville, Florida 32611 Ashmun Brown, Esquire 207 Tigert Hall University of Florida Gainesville, Florida 32611 Mrs. Dorothy Roberts Career Service Commission 530 Carlton Building Tallahassee, Florida 32304
Findings Of Fact 12. The factual allegations in the Stop-Work Order and Order of Penalty Assessment issued on February 3, 2009, and the Third Amended Order of Penalty Assessment issued on November 4, 2009, which are fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Alex Sink, Chief Financial Officer of the State of Florida, or her designee, having considered the record in this case, including the Stop-Work Order and Order of Penalty Assessment and the Third Amended Order of Penalty Assessment served in Division of Workers’ Compensation Case No. 09-042-D4, and being otherwise fully advised in the premises, hereby finds that: 1. On February 3, 2009, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued a Stop-Work Order and Order of Penalty Assessment in Division of Workers’ Compensation Case No. 09-042-D4 to GILLION ENTERPRISES, INC. The Stop-Work Order and Order of Penalty Assessment included a Notice of rights wherein GILLION ENTERPRISES, INC. was advised that any request for an administrative proceeding to challenge or contest the Stop-Work Order and Order of Penalty _ Assessment must be filed within twenty-one (21) days of receipt of the Stop-Work Order and Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. 2. On February 3, 2009, the Stop-Work Order and Order of Penalty Assessment was served via personal service on GILLION ENTERPRISES, INC. A copy of the Stop- Work Order and Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3. On March 10, 2009, the Department issued a Second Amended Order of Penalty Assessment to GILLION ENTERPRISES, INC. in Case No. 09-042-D4. The Second Amended Order of Penalty Assessment assessed a total penalty of $24,732.08 against GILLION ENTERPRISES, INC. The Second Amended Order of Penalty Assessment included a Notice of Rights wherein GILLION ENTERPRISES, INC. was advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. 4. The Second Amended Order of Penalty Assessment was served on GILLION ENTERPRISES, INC. by certified mail on March 19, 2009. A copy of the Second Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. | 5. On March 3, 2009, GILLION ENTERPRISES, INC. filed a timely Petition for a formal administrative hearing in accordance with Sections 120.569 and 120.57, Florida Statutes. The Petition was forwarded to the Division of Administrative Hearings and assigned Case No. 09-1389. 6. On November 4, 2009, the Department issued a Third Amended Order of Penalty Assessment to GILLION ENTERPRISES, INC. in Case No. 09-042-D4. The Third Amended Order of Penalty Assessment assessed a total penalty of $21,729.49 against GILLION ENTERPRISES, INC. The Third Amended Order of Penalty Assessment was served on GILLION ENTERPRISES, INC. through the Division of Administrative Hearings. A copy of the Third Amended Order of Penalty Assessment is attached hereto as “Exhibit C” and is incorporated herein by reference. 7. On November 5, 2009, GILLION ENTERPRISES, INC. filed a Notice of Voluntary Dismissal in DOAH Case No. 09-1389. A copy of the Notice of Voluntary Dismissal . filed by ROYMO, INC. is attached hereto as “Exhibit D.” 8. On November 9, 2009 Administrative Law Judge Susan B. Harrell entered an Order Closing File, relinquishing jurisdiction to the Department. A copy of the November 9, 2009 Order Closing File is attached hereto as “Exhibit E.”
The Issue The issue is whether Petitioners, Judith C. Cleary and Charles B. Houck (Petitioners or Ms. Cleary and Mr. Houck), are entitled to an award of attorney's fees against Respondent, Department of Financial Services (Respondent or the Department), pursuant to section 57.111, Florida Statutes (2009).1/
Findings Of Fact The underlying proceedings were initiated by Respondent on February 22, 2010, by the issuance of substantively identical Administrative Complaints against Petitioners. Petitioners timely requested administrative hearings to contest the charges against them, and the cases were forwarded to the Division of Administrative Hearings where they were consolidated for hearing. Count 1 of each Administrative Complaint charged Petitioners with willfully misrepresenting and or omitting material information in order to induce Mr. and Mrs. Nagle to cash in another annuity they held in order to purchase an annuity sold by Petitioners. Included in the alleged misrepresentations or material omissions were: misrepresenting that there would be no surrender charges to withdraw the entire amount of the new annuity after one year, when in fact there would be a 15 percent surrender charge; falsely representing that the annuity would earn the Nagles ten to 20 percent returns; and (3) misrepresenting the suitability of the Nagles to purchase the annuity by misrepresenting the Nagles' net worth and by misrepresenting the Nagles' investment objective as long-term, in a form Petitioners submitted to the insurance company issuing the annuity. Count 2 of each Administrative Complaint charged Petitioners with similar conduct in order to induce the Nagles' son, Robert, to purchase an annuity. Included in the alleged misrepresentations or material omissions were: misrepresenting that there would be no surrender charges to withdraw the entire amount of the new annuity after one year, when, in fact, there would be a 15 percent surrender charge; and falsely representing that the annuity would earn Robert Nagle ten to 20 percent annual returns. Petitioners do not dispute that if the allegations charged in the Administrative Complaint had been proven by clear and convincing evidence, then Respondent would have established the statutory violations alleged as the predicate for taking disciplinary action against Petitioners' insurance agent licenses. Petitioners also acknowledge that Respondent initiated the disciplinary actions against them on the basis of two complaint letters received by Mrs. Phyllis Nagle, the attestation of Mrs. Nagle to the material allegations in an affidavit, and a corroborating complaint letter by Mrs. Nagle's son, Robert Nagle. After a full evidentiary hearing, a Recommended Order issued in the underlying disciplinary actions determined that the more credible evidence failed to establish the allegations in the Administrative Complaints. In particular, the undersigned weighed the credibility of testimony by Robert Nagle and by Petitioners at the final hearing, as well as deposition testimony by both Mr. and Mrs. Nagle. The question posed in this case, however, is not whether credibility judgments caused the Department to ultimately not prevail in its charges against Petitioners. Instead, the question here is whether Respondent had a reasonable basis, in law and in fact, at the time it initiated the underlying disciplinary actions. In this regard, Petitioners contend that the Department's investigation file contained documents from the insurance company issuing the annuities that contradict the allegations in the Administrative Complaints. Petitioners point to three documents in particular. The first document was a customer survey response submitted by Mrs. Nagle to the insurance company after she purchased the annuity from Petitioners. Her completion of the survey form indicated that she knew that "[s]urrender charges are imposed on premature full withdrawal"; that she considered the "annuity to be a long-term investment"; that she did "not intend to use these funds to meet current expenses"; and that Petitioners reviewed her "financial status . . . and other pertinent information to determine whether this annuity purchase" was suitable to her. The other document claimed to contradict the allegations in the Administrative Complaints was the Nagles' annual statement showing a yield of 5.66 percent, which was different than the 2.6 percent yield claimed by Mrs. Nagle in her complaint letters or affidavit. Finally, Petitioners point to statements of understanding signed by the Nagles, showing the surrender charges that would be imposed for early withdrawals. None of these documents conclusively refute the charges in the Administrative Complaint. For example, with respect to surrender charges, the Nagles' complaints assert that Petitioners represented that there would be no surrender charges for a withdrawal after one year. Mrs. Nagle's survey form only acknowledged that there would be surrender charges for "premature" withdrawal. It certainly would have been possible to reconcile these two concepts in that Mrs. Nagle may have been thinking that "premature" withdrawal, as used in the survey form, was a withdrawal in less than one year. The response in the survey form to the "surrender charge" question does not conclusively contradict Mrs. Nagle's complaint and affidavit, nor does it conclusively contradict the allegations in the Administrative Complaint. Similarly, the responses in the survey form about suitability do not conclusively contradict the allegations in the Administrative Complaint. The annual statement likewise does not conclusively contradict the allegations in the Administrative Complaint, even though the yield shown is somewhat different from the yield Mrs. Nagle referred to in her complaint. Whether the yield was actually 2.6 percent or 5.66 percent, the material allegations in the Administrative Complaint were that Petitioners misrepresented that the yield would be 10 to 20 percent per year. These allegations and the complaints on which they were based, were not so plainly lacking in credibility that no reasonable agency would have proceeded with charges. Finally, the signed statements of understanding showing that surrender charges would be imposed for early withdrawals do not contradict the Nagles' complaints or the allegations in the Administrative Complaint. Although the undersigned ultimately found against the credibility of the Nagles' complaints, those complaints were that Petitioners made oral representations assuring the Nagles that there would be no surrender charges after one year, even though the policy forms themselves said otherwise. The ultimate lack of credibility of the complaining witnesses' testimony was not so clear that no reasonable agency would have prosecuted the claims. In short, Respondent had a reasonable basis in law and in fact, following a reasonable investigation, to make the allegations and to charge the statutory violations it did in the Administrative Complaints. The documentation gathered in the investigation did not conclusively contradict the factual allegations, and the credibility of the complainants was not so obviously lacking that no reasonable agency would have made the allegations in the Administrative Complaints. And it is beyond dispute that if those factual allegations had been proven, the charged statutory violations would have been established. Thus, it cannot be said that Respondent's action in initiating the disciplinary proceedings against Petitioners was unreasonable governmental action.
