The Issue Whether Respondent terminated Petitioner from her employment based on perceived handicap discrimination.
Findings Of Fact Petitioner was hired by Respondent on March 5, 1991, to work as a server at Respondent's restaurant, Bon Appetit. Shortly thereafter, on or about April 8, 1991, Petitioner was promoted to restaurant manager. During her tenure as restaurant manager, Petitioner was counselled about her appearance and personal hygiene. Additionally, Petitioner had problems with Respondent's performance including balancing the cash and credit card receipts collected during her shifts. Respondent required its managers to notify Respondent in advance of any absence due to a medical condition where possible. In all cases; however, managers were required to communicate with Respondent concerning their absence so that Respondent could schedule and plan for a manager's absence to avoid any disruption in its business and the scheduling of other employees. During her employment as restaurant manager, Petitioner was diagnosed as having "hammer toes". Petitioner was out of work for three weeks to have this condition surgically corrected. This absence was approved in advance by Respondent and Petitioner received full compensation for that medical leave. Following the scheduled three week absence for the surgery, there was an additional two to three week period during which Petitioner reported for work late or would leave early. Respondent considered those late arrivals and early departures to be unexcused absences. Following foot surgery, Petitioner returned to her position as manager with the same pay. Subsequently, during May 1992, Petitioner was out of work for surgery to have an ovarian cyst removed. This absence was approved by Respondent and Petitioner was out of work for five days. During this period of medical leave, Petitioner received her pay and returned to work following surgery. Following the cyst surgery, Petitioner complained of lower back pain which her gynecologist attributed to swelling from the cyst surgery. On May 30, 1992, Petitioner went to the emergency room at Morton Plant Hospital in Tampa suffering from lower back pain. Petitioner contacted restaurant manager, Leo Enciso, and told him of her visit to the hospital and "not to count on her reporting for work that day". Petitioner also informed Enciso that she would call as soon as she had been examined to give an update on her status. Subsequent to her initial phone call to Enciso on May 30, 1992, Petitioner did not speak with Enciso nor did he receive any messages from Petitioner concerning her status from May 30, 1992 to June 8, 1992. Following her treatment in the emergency room at Morton Plant, Petitioner sought treatment on that same date, May 30, 1992 from chiropractor Dr. Lynn Colucci. At that time, Petitioner knew she would be out of work until at least one more day. Petitioner did not communicate that information to Respondent or any of its management personnel. Petitioner's next consultation with her chiropractor to evaluate her condition was June 1, 1992. Following that session, Petitioner was advised that she would be out of work for at least two more days. Petitioner did not communicate this information to Respondent or any of its management staff. Petitioner again met with her chiropractor on June 3, 1992 and was told that she would be unable to return to work until June 8, 1992. Petitioner failed to communicate this information to any of Respondent's management or staff. Kailie Borzoni, Peter Kreuziger and Sharon Verhage, all managerial employees of Respondent, made several unsuccessful attempts to contact Petitioner by phone. Verhage left a message on Petitioner's answering machine but Petitioner did not return her phone call. Petitioner was released to return to work by her treating chiropractor on June 9, 1992. There were no restrictions placed on her when she was released for work and her physician related that Petitioner's back problem had "resolved itself". Petitioner was discharged by Respondent on June 9, 1992, when she reported for work. Peter Krueziger made an independent decision to discharge Petitioner based on what he considered to be poor performance, poor appearance, excessive absences and failing to truthfully advise of her work status and whereabouts from May 30, 1992 to June 8, 1992. When Petitioner was initially employed as a restaurant manager, Respondent's manager, Krueziger, noticed that Petitioner's dress apparel did not meet up to the standards of a "four star" restaurant that Respondent was operating. As a result, Respondent spoke with Petitioner about his expectations with regard to her dress and advised the controller to advance Petitioner some funds to purchase a wardrobe. Respondent sent one of its managerial employees to accompany Petitioner on a shopping trip to upgrade her wardrobe to reflect what Respondent considered to be appropriate dress for a restaurant manager. Respondent's managerial staff noted and complained to Petitioner on several occasions after she was given a new wardrobe, that her attire did not measure up to the standards that they expected of a manager. Negative comments were made about Respondent's stained clothing, her fingernails and her unkempt hair. Petitioner conceded that she had an exceptionally hard time balancing her cash and credit card accounts at the end of each shift. While some managers experience difficulty at the outset of their employment because an antiquated accounting system was being used, they soon became proficient in closing out the cash and credit card accounts following their shift. Respondent discharged Petitioner based on her failure to properly notify it of her absence from work during the period May 30, 1992 through June 8, 1992. Petitioner's medical condition, real or perceived, played no part in Respondent's decision to terminate her.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: The Florida Commission on Human Relations enter a final order dismissing Petitioner's petition for relief as she failed to establish that she was terminated from employment because of a perceived handicap. DONE AND ENTERED this 6th day of December, 1994, in Tallahassee, Florida. JAMES E. BRADWELL 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 6th day of December, 1994. APPENDIX Rulings on Petitioner's Proposed Findings of Fact Paragraph 3 adopted as modified, paragraph 2 recommended order. Paragraph 4 rejected, contrary to the greater weight of evidence, paragraph 5 recommended order. Paragraph 5, adopted as modified, paragraph 4 recommended order. Paragraph 7, adopted as modified, paragraphs 9 and 10 recommended order. Paragraph 8 rejected, irrelevant. Paragraphs 9 and 10 rejected, contrary to the greater weight of evidence, paragraph 15 recommended order. Paragraphs 11-16 rejected, contrary to the greater weight of evidence. Paragraph 17 rejected, irrelevant and unnecessary. Paragraphs 18 and 19 rejected, conclusionary. COPIES FURNISHED: C. A. Sullivan, Esquire 311 S. Missouri Avenue Clearwater, FL 34616 Charles A. Powell, IV, Esquire Peter W. Zinober, Esquire Zinober and McCrea, P.A. 201 E. Kennedy Blvd., Ste. 1750 Tampa, FL 33602 Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, FL 32399-1570 Dana Baird, General Counsel Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, FL 32399-1570
The Issue The issue is whether a Consent Order executed by Respondents on March 25, 2010, and by the Department of Environmental Protection (Department) and the Board of Trustees of the Internal Improvement Trust Fund (Board) on April 1, 2010, is a reasonable exercise of the Department's enforcement authority.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: History of the Proceeding A lengthy history precedes the execution of the Consent Order and can be summarized as follows. Shannon Sue, LLC (Shannon Sue) is a Florida limited liability company and the current owner of property located at 18261 Southeast Federal Highway, Tequesta, Florida, just north of the Martin County-Palm Beach County line. The property consists of 0.482 acres, is on the western bank of the Indian River Lagoon, and is adjacent to the Jensen Beach - Jupiter Inlet Aquatic Preserve, an Outstanding Florida Water. A commercial marina has been located on the upland property since at least the mid or late-1980s. The Department has the power and duty to administer and enforce Chapters 373, 376, and 403, Florida Statutes (2009),2 and the rules promulgated thereunder, including Chapter 62-780. The marina lies within the District Office's regulatory jurisdiction. MABE is a Florida limited liability corporation with its principal place of business in Martin County. It owns a small parcel of property located at 18245 Southeast Federal Highway, Tequesta, which is adjacent to, and immediately north of, the marina. Edmund Brennen is an officer and director of MABE and has resided at that site for twenty years. Besides his residence, Mr. Brennan has two boat slips for rent and two floors of commercial office space on the property, which is zoned commercial/residential. Over the last twenty years, MABE has had tenants who have historically used the dock and the aquatic preserve for fishing, boating, and other recreational activities. Although currently vacant, MABE plans to continue to lease its property to residential or commercial tenants. Shannon Sue currently leases the marina property to Jupiter Hills Lighthouse Marina, Inc. (JHLM), a Florida corporation with its principal place of business in Martin County. JHLM has operated the marina since at least the 1990s. The property was owned by John and Barbara Canonico (husband and wife), as Trustees of the Barbara Canonico Revocable Trust, from 1988 until November 21, 2002, when title was transferred to Shannon Sue. John Canonico is an officer, director, and registered agent of JHLM and Barbara Canonico is a manager and registered agent of Shannon Sue. The record reflects that a dock and slips were located on the property for a number of years. On July 29, 1992, JHLM applied for a wetland resource permit to expand the existing dock to provide for additional mooring and to substantially reconfigure the existing dock. On December 13, 1994, the Department issued an Intent to Issue Permit No. 432170499 (Permit) to JHLM allowing the expansion of the existing dock from 6 to 18 slips. See Petitioner's Exhibit 1.3 The Permit was eventually issued on July 1, 1996. See Petitioner's Exhibit 2. The Permit included a number of general and specific conditions, including Specific Conditions 8 and 12, which required the installation of a stormwater exfiltration system to provide treatment for the first inch of runoff, and prohibited any boat maintenance or repair activities except those that were "minor" or necessitated by "emergency conditions." There is no record of any objection to the issuance of the permit being filed by any person. Although authorized to do so, for unknown reasons, JHLM did not make the changes authorized by the Permit. In March 1998, it submitted a new application for a Standard General Environmental Resource Permit (ERP) seeking to expand the number of wet slips from six to twelve and to reconfigure the existing dock. See Petitioner's Exhibit 3. One-half of the slips would be used by powerboats while the other six would be for sailboat mooring only. Under the new permit, the applicant would be allowed to remove the existing docks and construct a new access dock and terminal platform and add six new finger piers. On August 16, 1999, the Department approved the application and issued Standard General ERP No. 43-0114838-001. See Petitioner's Exhibit 4. Like Specific Condition 8 in the 1996 permit, Specific Condition 14 was included in the new permit for the purpose of improving water quality and required the applicant to "install a stormwater exfiltration system" to "provide treatment for [the first inch of runoff from] all paved surfaces on the property." The system was to be constructed and certified as complete by a registered professional engineer before the permit became effective; it was to be cleaned monthly or after major rainfall events and inspected annually by a professional engineer; and annual reports were to be filed each year by that engineer. Also, Specific Condition 24 prohibited any boat repair work other than minor or emergency repairs. Acting on behalf of the Board, which has the responsibility for overseeing state owned lands, the Department also entered into a five-year lease with the Canonico Trustees (Trustees) to use sovereign submerged lands. See Petitioner's Exhibit 5. Among others, Condition 1 of the lease specifically prohibited the mooring of commercial vessels at the facility. Id. Again, the Permit was not opposed by any third party. In 2001, Chris Baker, identified as a "purchaser of the site" but more than likely a prospective purchaser, authorized a firm known as Environmental Matters to conduct a "Phase I and Limited Phase II Environmental Site Assessment" of the property. The consultant's Environmental Assessment Report (Report), dated June 2001, indicated, among other things, that there were concentrations of metals and petroleum hydrocarbons on the site; that some of the concentrations exceeded Department standards; that the soils were "contaminated throughout the Site"; an abandoned water well and septic tank system were on the site; and that a 1,000-gallon aboveground unleaded gasoline storage tank had been installed in 2001 without the required secondary containment, but no leaks were observed. See Petitioner's Exhibit 38. The report noted that during the assessment, Mr. Canonico acknowledged that all types of boat maintenance took place on the site, including scraping boat hulls, and that the waste was discharged (or allowed to run off) into the basin. On March 14, 2003, former counsel for MABE sent a three-page letter to the District Office advising that since JHLM received a permit in 1994, the marina had been operated in a manner that constituted violations of the permit conditions and lease. The letter described in detail what the author perceived to be violations of the law. In addition, a copy of the 2001 Report was enclosed with the letter. The letter asked that the Department initiate an enforcement action against the marina and that the unlawful practices be halted. A Department memorandum dated March 28, 2003, indicates that the letter and Report were reviewed by a District employee, who considered the Report to be incomplete in certain respects, and that "without appropriate measurement tools and additional information, it is not possible to state that the site is contaminated based upon the sludge analysis." See Petitioner's Exhibit 37. The memorandum conceded, however, that further investigation was needed and that the report "provides an indication of a petroleum related discharge." Id. The memorandum recommended that JHLM be given a copy of the Report and the District Office memorandum, that JHLM submit a Discharge Reporting Form pursuant to Rule 62-761.900(1), that the marina's stormwater drain be cleaned, and that JHLM contact the District Office to discuss the voluntary implementation of Best Management Practices for on-site operations. Id. Because the Report "[had] no laboratory reports and no method detection limits," the District Office decided not to conduct any follow- up inspections of the marina property at that time. In response to the Department's memorandum and Report, on June 3, 2003, Mr. Canonico filed a Discharge Report Form indicating that there was "no known discharge" on the property. He also enclosed a copy of a letter he signed on December 7, 1994, presumably in conjunction with his application for Permit No. 432170499, in which he described the maintenance schedule for the facility's stormwater exfiltration system and agreed to conform to that schedule, as generally required by Specific Condition 7 of the original permit. Also, on August 5, 2003, the facility's contractor advised the District Office by letter that "[t]he work authorized in Permit #43-0114834-001 has [been] commenced and completed in full, with the exception of the demolition of the finger pier, which we seek to remain." See Petitioner's Exhibit 6. This was probably in reference to the facility's intent to file an application to modify its 1999 ERP. There is no indication that any further action was taken by the Department in response to the MABE complaint. In November 2003, JHLM filed an application with the District Office seeking to modify its 1999 ERP by allowing an existing 4-foot by 24-foot finger pier to remain in place (the 1999 ERP required that it be removed), and to install a retractable wheelchair ramp to allow vessel access for wheel- chair bound individuals. The application was unopposed. On January 22, 2004, the Department approved the application. See Petitioner's Exhibit 7. Except for the addition of three specific conditions (32, 33, and 34), all other terms and conditions remained the same. Id. The finger pier was intended to be used for passenger loading of rental vessels stored on the uplands. Even though ownership of the property had been transferred to Shannon Sue in 2002, on August 26, 2004, the Department, on behalf of the Board, renewed submerged land lease 43003006 with the Trustees for another ten years, or until August 16, 2014. See Petitioner's Exhibit 8. The renewed lease contains the same terms and conditions as the 1999 lease, including the condition that the facility be restricted to mooring recreational vessels. On July 3, 2008, MABE, through its former counsel, sent the Department a verified complaint against the marina under Section 403.412, Florida Statutes (2008). See Petitioner's Exhibit 25. The complaint sought to compel the Department to take action to address alleged violations of the ERP conditions and the submerged land lease. Under the statute, an agency has 30 days after receipt of a complaint in which "to take appropriate action" against the alleged violator, or the complaining party may then institute judicial proceedings. Following receipt of the complaint, on July 10, 2008, representatives of the District Office conducted an inspection of the marina property. The case manager was Donald H. Keirn, Jr., an Environmental Specialist III, who is responsible for, among other things, compliance enforcement in a large, heavily- populated multi-county area. Another inspection was conducted on July 22, 2008. During those visits, Mr. Keirn noted significant evidence of major boat repairs on the premises, freshly spilled oil, and hull scraping. In fact, Mr. Canonico admitted to Mr. Keirn that the facility had been performing major boat repairs since the original permit had been issued. Based on these inspections, on July 29, 2008, the District Office initiated an enforcement action by sending a Warning Letter to the Canonicos advising them that Specific Conditions 11, 14, 15, and 24 of the ERP had been violated, and that the lease of submerged lands must be transferred to the current owner. See Petitioner's Exhibit 9. Condition 11 required the placement of channel markers; Conditions 14 and 15 required an exfiltration system to be constructed, certified by a professional engineer as complete as indicated on the permit drawings, maintained for the life of the system, cleaned monthly, and inspected by a professional engineer annually with follow-up annual reports; and Condition 24 prohibited repairs to vessels other than minor or emergency repairs, so as to prevent the discharge of hazardous materials into the aquatic preserve. The record does not show what action, if any, Respondents took after receiving the Warning Letter. Frustrated by Respondents' inaction, and their repeated disregard of Permit and Lease conditions over the years, in the fall of 2008 MABE hired an outside consulting firm (E Sciences, Inc.) to collect and analyze samples of soil and water from both the MABE property as well as Shannon Sue's property. (Authorization to enter Shannon Sue's property was pursuant to a court order.) The report was completed on October 16, 2008, and concluded that since the 2001 assessment was performed, the concentrations of petroleum and metals had increased. It further concluded that the marina activities during those years had adversely impacted the soil and sediment at both the marina and MABE's adjacent property. See Petitioner's Exhibit 37. A copy of the report was provided to both the District Office and Shannon Sue. After receiving the report, on November 14, 2008, the District Office staff conducted another inspection to "identify any potential hazardous waste material discharge(s) or source(s) of contamination at the property." The staff found evidence of leaking containers, an engine "bone yard" along the fence line with the MABE property, unlabeled containers, and stains under the fuel tank. The inspection essentially confirmed the findings of E Science, Inc.; accordingly, the District Office concluded that a Site Assessment Report (SAR) under Chapter 62- 780 was necessary in order to determine the extent of contaminants on the property. A SAR assesses and describes the extent of contamination and makes recommendations as to how to address it. On February 24, 2009, the District Office sent a letter to the Canonicos, as registered agents for Shannon Sue and JHLM, advising them that "contaminants may have been released or discharged into the environment." The letter required Shannon Sue and JHLM to initiate a site assessment within 60 days, and to file a SAR that complied with the requirements of Chapter 62-780 no later than July 13, 2009. See Petitioner's Exhibit 26. The District Office subsequently extended the due date for the SAR to October 1, 2009. By letter dated April 24, 2009, the Department also advised the Canonicos that an "ongoing investigation," preliminary to agency action, revealed the possible mooring of commercial vessels at the dock on two occasions, which was prohibited under the submerged land lease. (Based upon visual sightings confirmed by photographs, MABE had earlier advised the District Office that this occurred on a frequent basis, but subsequent inspections by the District Office resulted in only two observations of commercial vessels at the dock.) The letter further reminded the Canonicos that, pursuant to Specific Condition 24, boat repairs with the potential to discharge pollutants or hazardous substances into the adjacent waters were prohibited under the ERP. See Petitioner's Exhibit 21. As noted above, during the July 2008 inspections, Mr. Canonico admitted to Mr. Keirn that there were "multiple violations" of that condition, including multiple discharges of oil and grease associated with engine repairs. Assuming that the matter could be resolved by consent order, on November 18, 2009, Mr. Keirn submitted for review by his supervisor a "Civil Penalty Authorization Southeast Florida District," which outlined the nature of the violations observed and proposed penalties for those violations. See Petitioner's Exhibit 12. By now, additional violations had been observed through more inspections, including, as noted above, the mooring of commercial vessels at the marina; a failure by JHLM to construct an "exfiltration trench" as required by the original 1996 permit, file annual reports for that system, and regularly maintain the system; a failure to notify staff of the commencement of construction; and a failure to maintain used oil storage containers within secondary containment structures and to legibly label them. The Department has issued an Administrative Directive entitled Settlement Guidelines for Civil and Administrative Penalties (Settlement Guidelines), effective July 17, 2007, which contains guidelines that "are intended to provide a rational, fair and consistent method for determining the appropriate amount of civil and administrative penalties the Department should seek from responsible parties in settling enforcement actions." See Department Exhibit 3. They are intended only "for internal staff guidance," and the District Office is authorized "to deviate from these guidelines . . . when doing so will result in better compliance and better capability for carrying out the mission of the agency." Id. at Relying in part upon that document, Mr. Keirn recommended a $27,500.00 civil penalty for violations of permit conditions, $2,500.00 for the lease violation, and $500.00 for investigative costs, or a total civil penalty of $30,500.00. The Penalty Rationale is found on page 3 of that exhibit. This recommendation was approved by the District Office Director on December 11, 2009, and was incorporated into a proposed consent order. As pointed out by Mr. Keirn, the purpose of the proposed settlement was not to collect fines, but to restore and protect the environment. By email dated January 11, 2010, Mr. Keirn provided the Canonicos with a copy of the draft consent order. See Petitioner's Exhibit 13. He asked that they review it and be prepared to discuss the violations and penalties the following week. A series of emails between the parties ensued over the next month or so for the purpose of discussing the cited violations and related penalties. Mr. Keirn's email also advised them to "get [the SAR] in ASAP" by mail, hand-delivery, or email. The next day, January 12, 2010, the Canonicos submitted a SAR to the Department. On January 26 and February 1, 2010, the Canonicos sent emails to Mr. Keirn providing their explanation for each violation "in the hope of reducing the penalties outlined in the Consent Order." See Petitioner's Exhibits 14 and 15. One explanation for violating the prohibition against major repairs (Specific Condition 24) was a statement that the Canonicos believed that engine repairs, scraping of boat hulls, and the like were "minor" repair work. Mr. Keirn noted in an email to his supervisor that the Canonicos' proposed "amounts are seriously too low[,]" that "the statements are skewed to their position," and that "[the explanations] are not a logical reason for reduction." See Petitioner's Exhibit 15. By letter dated March 29, 2010, the Department advised the Canonicos that the SAR submitted on January 12, 2009, contained a number of deficiencies, that additional work must be undertaken, and that an Addendum to the SAR must be submitted within sixty days, or by the end of May 2010. See Petitioner's Exhibit 28. Around the same time that the Department requested an Addendum to the SAR, on March 25 and April 1, 2010, Respondents executed a Consent Order to resolve all outstanding violations. John and Barbara Canonico signed the Consent Order on behalf of the non-agency Respondents. In general terms, the Consent Order noted that Respondents collectively had failed to comply with the ERP conditions in the following respects: they failed to construct the stormwater system in accordance with the permit; they failed to maintain the stormwater system, have it inspected by an engineer on an annual basis, or have an engineer file annual reports; they repeatedly conducted non-minor repairs, maintenance, and painting of vessels resulting in unauthorized discharges of contaminants; they failed to install channel markers; they failed to notify the Department of the ownership transfer to Shannon Sue; they failed to submit written notice to the Department at least 48 hours prior to the commencement of construction of the project; they failed to limit the use of the marina to the mooring of recreational vessels; and they failed to properly contain or maintain the used oil disposal storage containers within a secondary storage structure. See Department Exhibit 2 at 3. In addition, the Consent Order noted that based upon the E Science, Inc. report, there were concentrations of total recoverable hydrocarbons in soils that would reasonably leach into groundwater; that a polluting condition had occurred; and that Respondents had failed to submit a SAR by the October 1, 2009 deadline. Id. at 4. Finally, the Consent Order noted that Shannon Sue had failed to obtain the required lease since acquiring ownership of the property in 2002. Id. Rather than imposing the $30,500.00 penalty originally recommended by Mr. Keirn, as a result of negotiations between the parties, the Department agreed to reduce the penalties in the Consent Order to $17,750.00 as settlement of the matter, including $500.00 in costs and expenses for investigating the matter. The penalties were to be paid in installments, with the first installment of $5,000.00 due immediately. This installment has been paid. The Consent Order required additional corrective action, the filing of a SAR, and the obtaining of a lease by Shannon Sue within certain timeframes. Because the Department's primary goals when resolving enforcement actions are remediation and avoiding protracted litigation rather than collecting fines, it is not unusual for a final consent order to have a lower civil penalty than that originally proposed. As explained by a Department witness, in this case its goals were (a) to avoid protracted litigation that would delay the implementation of corrective actions; (b) to require Respondents to quickly assess and begin the cleanup of contamination; (c) to restore and protect the environment as quickly as possible; and (d) to require Respondents to remove and contain all activities on the property that are prohibited by the Permit and Lease. All of these considerations were taken into account in arriving at the terms and conditions of the final Consent Order. Immediately after the Consent Order was executed, MABE timely filed its Petition challenging it on numerous grounds including a failure by the Department to address all violations in the Consent Order; a failure to recognize continuing violations; a failure to impose an adequate penalty; a failure to incorporate language into the Consent Order to ensure that all conditions will be met; and a failure to consider all relevant information at the time the Consent Order was executed. By letter dated June 29, 2010, the Department advised the Canonicos that no response to its March 29, 2010, letter had been received, and that the SAR Addendum had not yet been filed. The letter noted that even though the Consent Order had been challenged, which "placed the timeframes contained therein in a 'proposed' status," the SAR Addendum was overdue and that it must be submitted "immediately." See Petitioner's Exhibit 29. The Canonicos did not respond to this letter. At hearing, a Department employee interpreted the language in the June 29 letter to mean that until this proceeding has been concluded, the fine and corrective action are temporarily stayed. Apparently, the Canonicos have assumed the same thing and have not performed any remedial action or paid any further penalties while this action is pending. Rationale for the Consent Order The Consent Order addressed the violations described in Finding of Fact 26, supra, and required Respondents to pay a civil penalty of $2,000.00 for their failure to construct the stormwater system in accordance with the Permit. There was no negotiated reduction or increase in the $2,000.00 amount. This amount was based on a provision in the Environmental Litigation Reform Act (ELRA) codified in Section 403.121, Florida Statutes. That statute prescribes the penalties that must be imposed when the Department pursues administrative remedies for violations of Chapter 403. A Notice of Violation (NOV) must be issued to trigger the ELRA process. In this case, the ELRA process was not required since a NOV was never issued, but the Department elected to impose that penalty. The Consent Order requires Respondents to repair the stormwater system and submit to the Department an as-built certification form signed and sealed by a professional engineer that the system meets or exceeds the requirements of the permitted activity. In essence, Respondents are required to re-build the system and certify that it is built consistent with the Permit. No water quality data was introduced indicating any degradation of water quality at the marina from the exfiltration system not being built according to the Permit. To address Respondents' failure to maintain the stormwater system, inspect it, and submit reports to the Department, enforceable conditions were added to the Consent Order, including the filing of reports that the Permit did not previously contain, and a stipulated penalty of $100.00 per day for each day they fail to submit the required reports. The Consent Order requires Respondents to pay a civil penalty of $3,500.00 for their failure to maintain the stormwater system, inspect it, and submit reports to the Department. This amount was reduced in negotiations from an initial amount of $7,000.00. Exercising its discretion, the Department did not consider economic gain by Respondents in assessing the penalty. As noted earlier, the Department's primary goal in negotiating the Consent Order was to avoid a long and uncertain litigation process that would delay an enforceable order requiring Respondents to immediately implement a Chapter 62-780 waste assessment and cleanup. In order to address the finding that Respondents were conducting repairs and maintenance of vessels at the upland portion of the marina in violation of the Permit, the Department included language in the Consent Order that specifically defined a "major repair," which was not included in the existing Permit. This will make enforcement easier by clarifying any ambiguity regarding what activities are prohibited. It also required that any such activity must be conducted off-site, an additional requirement that was not included in the existing Permit. The Consent Order assessed a penalty of $5,000.00 for the finding that Respondents were conducting repairs and maintenance of vessels at the upland portion of the marina. This amount was obtained using the Settlement Guidelines. Under the Penalty Matrix in that document, which classifies violations at three levels of potential for harm (major, moderate, and minor), the violation was identified as major, resulting in an amount of $10,000.00. This amount was later reduced to $5,000.00 during negotiations. However, the Department achieved its goal of binding Respondents to an enforceable agreement that would require them to immediately implement a Chapter 62-780 assessment and cleanup. In order to address the violation that Respondents failed to install channel markers, the Consent Order contained a provision that required them to apply for the required permits and install the markers within 30 days of receipt of the permits. The Consent Order also contained a stipulated penalty paragraph where Respondents would pay $100.00 per day for each day of failing to comply with the marker requirements. The Department is not precluded by the stipulated penalties from pursuing any statutory remedies or other penalty options available to it. The Consent Order assessed a $750.00 penalty for Respondents' failure to install the channel markers, which was less than the original proposed fine of $2,000.00 based on ELRA guidelines. To avoid uncertain and costly litigation, however, and to get Respondents under an enforceable agreement to implement a Chapter 62-780 assessment and cleanup, the Department reduced the penalty. In order to address the finding that Respondents failed to notify the Department of its ownership transfer to Shannon Sue, the Consent Order required payment of $250.00. Although ELRA guidelines specified a $1,000.00 penalty, this amount was lowered during negotiations to avoid protracted litigation and to get Respondents under an enforceable agreement to implement Chapter 62-780. The Consent Order also requires submission of a $555.00 processing fee along with supporting documents for assignment of the lease to the proper party. In addition, a penalty of $500.00 was assessed for failure to obtain the required lease after ownership transfer, along with stipulated penalties of $100.00 per day for failure to do so. For Respondents' failure to notify the Department within 48 hours prior to commencing construction at the marina, there is no corrective action required. However, the Department assessed a $250.00 penalty, which was lowered during negotiations from the ELRA penalty of $1,000.00 for the reasons expressed above. For Respondents' unauthorized mooring of commercial vessels, the Consent Order requires a penalty of $2,500.00, which was based on a second violation under Rule 18-14.002(4). Although MABE submitted an affidavit, dated photographs, and testimony to establish multiple violations of the rule, the Department opted to rely only upon the two violations that its inspector observed. For Respondents' used oil violation, the Consent Order requires removal of all containers, material, or equipment at the marina that handle or contain petroleum or hazardous substances greater than one quart in quantity, unless they are maintained in their original container or an independent and secondary containment system which is designed to contain discharges to the environment and is secure from the weather. The assessed penalty of $2,000.00 was lowered from the ELRA penalty of $4,000.00 during negotiations for the reasons expressed above. To address the finding that a polluting condition had occurred at the marina and a SAR was not timely submitted, the Department negotiated an enforceable agreement that requires Respondents to commence and complete all tasks required under Chapter 62-780 within certain timelines. A penalty was not assessed because the Department desired to get Respondents under an enforceable agreement to immediately implement the assessment and cleanup corrective actions. In addition, by not imposing a fine, the violator has more resources to assess and remediate any contamination, which is often a very expensive undertaking. Under Rule 18-14.002, a person is subject to a fine of up to $10,000.00 for each offense constituting a knowing refusal to comply or a willful violation of the provisions of Chapter 253, Florida Statutes. The Department may impose fines not to exceed $2,500.00 for the first offense; otherwise, approval of the Board is required. Subsequent offenses carry a fine of $1,000.00 to $10,000.00. In this case, the Consent Order imposed a $2,500.00 fine for violation of the Lease and a $500.00 fine for violating Section 253.77, Florida Statutes. Neither fine was shown to be unreasonable under the circumstances. The penalty amounts, plus $500.00 for Department costs, were mistakenly summed as $17,750.00 in paragraph 25 of the Consent Order. The correct amount is $17,250.00. In summary, the Consent Order was issued to settle existing outstanding violations of law and requires Respondents to pay penalties, reimburse Department costs, and take corrective measures. It also establishes a framework for compliance. Taking into consideration all of the circumstances, the terms are a reasonable exercise of the Department's enforcement discretion. Having incurred substantial expenditures in legal fees and site assessment costs in attempting to bring its neighbor into compliance (which probably total much more than the civil penalties assessed against Respondents), and waiting years for the Department to take action, MABE is understandably dissatisfied with many of the terms and conditions of the Consent Order. One of MABE's concerns is that given Respondents' history of failing to comply with ERP and lease conditions for more than a decade, they will not comply with the assessment and remediation requirements of Chapter 62-780. However, the Consent Order is an enforceable agreement that compels immediate compliance with those rules. The Consent Order spells out in clear terms the ability of the Department to seek the judicial imposition of damages or civil penalties, or other appropriate relief, for any violations of the Consent Order. Because of Respondents' prior conduct, which amounted to a clear disregard of permit terms and conditions, it is presumed that the Department will respond quickly to reported violations, if any occur, and take appropriate action. MABE also questions the adequacy (and accuracy) of the penalties. As explained in the Conclusions of Law, this issue is a matter solely within the discretion of the agency. In the same vein, MABE contends that the District Office did not take into account all of the violations that have occurred over the years, made mistakes in calculating the penalties, and failed to consider the fact that Respondents have continued to violate certain Permit and Lease conditions since the enforcement action began. Although some violations were not addressed, some errors in calculating penalties were made, and in some instances multiple violations were counted as a single violation for purposes of calculating a penalty, the Consent Order requires that the violator undertake corrective actions that are designed to remediate all prior violations, strictly comply with new terms and conditions, and subject it to stern penalties should future violations occur.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order ratifying and approving Consent Order OGC No. 08-1823 as final agency action of the Department. DONE AND ENTERED this 4th day of November, 2010, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of November, 2010.
The Issue The ultimate issues are whether ACT Corporation (ACT) engaged in unlawful employment practices by discriminating against Petitioners Rosa Gibson (Gibson) or Lillian Brown (Brown) on account of race. More specifically, both Petitioners allege that they were terminated based on race.
Findings Of Fact ACT Corporation is a comprehensive community mental health provider. In 1989, it had five major clinical departments and employed approximately 500 people, of whom 24% were minority employees and 18% were black. One of the clinical departments includes two residential facilities for mentally ill clients, Big Pine and Big Tree. The Petitioners herein have been employed at both facilities, but were on the staff of Big Tree at the time of their terminations. Brown began working for ACT on September 14, 1982. She worked at several different facilities, but was working at Big Pine in 1987 as a Residential Specialist or Residential Advisor (RA) under the immediate supervision of the house manager, Myra Morris, who is black. Gibson began working for ACT in November, 1987, as Residential Specialist or Residential Advisor (RA) at Big Pine under Morris. Gibson was often tardy for work and Morris counseled with her about the problem. During one discussion between Morris and Gibson about tardiness, Gibson became haughty and verbally aggressive toward Morris. Morris would have terminated Gibson for this aggression, but she knew Gibson needed the job. Instead, Morris had Gibson transferred to Big Tree. In early 1988, Morris was transferred to another position with ACT. She was replaced as house manager by Kenneth Polite, a black employee. Brown continued as an RA at Big Pine. Brown was transferred to Big Tree and promoted to House Manager on September 30, 1988. Gibson continued as an RA at Big Tree under Brown. In January, 1989, Ann Turley became the Clinical Administrator for Adult Services and the immediate supervisor over both facilities. Brown was still on probation in the House Manager position because Turley's supervisor, Chris Kennedy, had extended Brown's probation. The extension resulted from Brown's poor performance, including poor follow through on assignments, incorrect preparation of reports and paperwork, inability to communicate effectively, and inability to conceptually grasp and carry out programs. Turley kept Brown on in the House Manager position despite the poor performance because Brown told her that Kennedy and she just did not understand all that Brown was doing. Turley told Brown to keep a written record to show what she was doing. In July, 1989, Polite left employment with ACT. Turley made some organizational changes at that time. ACT and her department needed to come up with $100,000 in revenue or in expense reduction. Turley made the decision to cut back one staff person at Big Pine. The position of house manager at Big Pine was eliminated. The two facilities were reorganized to have a Team Leader at Big Pine and a Residential Coordinator at Big Tree. Turley told Brown of these changes before they were announced. Brown was promoted to the Residential Coordinator position. Donna Dooley, a white employee was made Team Leader at Big Pine. She received a 5% raise, not a raise to the salary level of House Manager. Turley made the selection for Team Leader from the five eligible employees remaining at Big Pine. All five had been employed at ACT by Turley's predecessor. Turley examined the personnel files of the five employees, including performance evaluations. The employee with the best evaluation, within the most recent evaluations made by Polite, was Dooley. Polite noted in her evaluation that Dooley had filled in for him and had done a good job at it and that the other staff at Big Pine came to Dooley for leadership and advice. Turley's decision was poorly received by some of the staff. Polite had wanted the house manager position to go to his roommate, a black employee. Other staff thought the position should have been awarded based on seniority. Staff from the various facilities of ACT asked Turley by letter to meet with them to discuss the position. Turley met with the staff, but no real discussion occurred. The staff in attendance was racially mixed. Individual staff members, including Gibson, verbally attacked Turley because they failed to understand that the house manager position had been eliminated and that the Team Leader position was not its equivalent. Turley was quite emotionally upset about the hostile tone displayed at the meeting. She was also concerned that Brown had signed the staffs' letter requesting a meeting and had attended the meeting, because Brown was a supervisor and not a member of the supporting staff. Brown also had been told before anyone else the reasons for the reorganization and she knew that she was being promoted to Residential Coordinator. Turley had made the decision to promote Brown as Residential Coordinator because the reorganization had to go through and Brown's duties would not change that dramatically. The Residential Coordinator would work closely with the Team Leader to organize and coordinate the operation of both facilities. The position of House Manager ceased to exist at either facility. Brown's inadequate performance continued while she was on probation as Residential Coordinator. The same problems were apparent and some new ones arose. One significant problem was in Brown's supervision and discipline of Gibson. Gibson was repeatedly late for work and she brought her child to work with her. Brown was told by Turley to take certain corrective and disciplinary actions with Gibson, but she failed to do so. Gibson also was rude to a case manager at medication clinic (med clinic), refused to get a client's chart for a case worker, and repeatedly yelled at, demeaned and was uncooperative with the staff at med clinic. Turley instructed Brown to give a counseling statement to Gibson for this behavior, but again Brown did not do so. Because of Brown's lack of appropriate job performance, Turley demoted her from Residential Coordinator to Residential Advisor at Big Tree on September 7, 1989. Turley assumed Brown's job duties temporarily. Brown and Gibson were very upset over this demotion. The evidence taken as a whole shows that Brown and Gibson developed an "us versus them" attitude which significantly interfered with their job performance thereafter. After Brown's demotion, Turley discovered a new fiscal problem. One option for addressing the problem was to change Big Tree from a level two to a level one facility. That change would require a change in staffing patterns such that licensed practical nurses would be required around the clock and a registered nurse as the supervisor of the LPNs. Turley rewrote the job description for the Residential Coordinator position to require a registered nurse's license. In October, 1989, Darlene Hasenkamp, who is white, was hired as the Residential Coordinator because she was an RN and had experience with mentally ill patient care. As Residential Coordinator, Hasenkamp supervised all staff at both Big Tree and Big Pine. Donna Dooley, the Team Leader at Big Pine was the person immediately below Hasenkamp in the supervisory chain. While the staff at Big Tree were not immediately responsible to Dooley, Dooley did have some supervisory responsibilities over the staff at both facilities when Hasenkamp was not there. Brown and Gibson did not like working for Hasenkamp or Dooley. Both were subtly resistant and uncooperative with Hasenkamp and Dooley. Mentho Saafir is another black Residential Advisor with ACT. Her observation is that Brown and Gibson were part of a small tight group of black employees. The group got mad because Dooley was made Team Leader. Then when Brown was demoted and Hasenkamp was hired, they became openly oppositional to any encounter with Dooley. Gibson was especially hostile and uncooperative with Dooley. On a Saturday during November, 1989, Dooley and Hasenkamp were both off work, but they were on call for their respective facilities. A client at Big Pine was suicidal. The one staff person working at Big Pine was managing the client and called Dooley for assistance in getting the van and transporting the client to the hospital. The van was parked at Big Tree because Big Tree always had two staff persons on duty and Big Pine only had one. Therefore in an emergency, one staff person could leave Big Tree to take the van to Big Pine to assist. Dooley was at home and called Big Tree to get the van delivered to Big Pine. Gibson answered the telephone at Big Tree. She was evasive and refused to answer Dooley's questions about who was working at Big Tree and where that person was. Dooley told Gibson that she needed the van for a suicidal client. Gibson kept saying that her coworker wasn't there and finally told Dooley that if she needed the van "I suggest you come and get it yourself." After much pressing by Dooley, Gibson acknowledged that her coworker was Brown and Brown was not there. Dooley called Hasenkamp and explained the problem and described Gibson's evasiveness and lack of cooperation. Hasenkamp told Dooley to meet her at Big Tree. When Dooley arrived at Big Tree, Hasenkamp was discussing with Gibson her rude and uncooperative behavior toward Dooley on the telephone. As Dooley walked in to Big Tree, Gibson jumped up, leaned over the desk and shouted that Dooley was not her supervisor and she did not have to report (or listen) to Dooley. In order to avoid a confrontation and to get the van to the client in need, Hasenkamp told Dooley to take the van. Dooley left. Hasenkamp sat down and waited for Brown to return to work. When Brown came in 45 minutes later, she had a bag of fast food. Hasenkamp asked where she had been and Brown advised that she had been getting breakfast. Brown said she had only been gone 25 to 30 minutes. Hasenkamp told Brown that it was against normal procedures to leave like that while on duty. Brown simply said she didn't know that. Hasenkamp then took Brown to Big Pine to relieve Dooley who was there alone, having sent the staff person in the van with the client. On the way, Hasenkamp stopped at her home and at her mother's home. When they arrived at Big Pine, Hasenkamp's briefcase fell open to reveal a counseling statement to Brown regarding some furniture, however, that counseling statement was administered at a later time. The counseling statement about the furniture arose from Hasenkamp's direct instructions to Brown to inspect some furniture that was to be delivered before signing the invoice. Brown did not inspect the furniture, but did sign the invoice. When the furniture was finally inspected by Hasenkamp, a tear was discovered in one chair. Brown claimed that she had told the maintenance man to look at the furniture, but that was contrary to Hasenkamp's direct instruction. Brown was "written up" for this failure to carry out her supervisor's instructions. Brown and Gibson were also written up for the incident regarding the van. Gibson was also written up regarding another matter. Hasenkamp had sent a memo to all of the staff about eating pastry in the office. She instructed all staff to initial and sign-off on the memo by a certain date. Everyone signed the memo except Gibson, who refused. The time for signing the memo passed, but rather than write Gibson up for failing to carry out her instructions, Hasenkamp called Gibson to find out why she had not signed the memo. Gibson was off work at the time and Hasenkamp called her at home. Gibson was extremely rude, told Hasenkamp that she had no business bothering her at home, and refused to discuss the memo. Gibson gave Hasenkamp no choice except to write her up again. On December 12, 1989, at approximately 4:00 p.m., Hasenkamp and Dooley drove up to Big Tree. Dooley went in for Hasenkamp because Hasenkamp was on crutches. Brown came outside to the car and told Hasenkamp she needed to come inside regarding a problem. Dooley and Hasenkamp observed Gibson holding and comforting a client, Janice, who was suffering a locked jaw and an extremely painful muscular reaction as a side effect of her psychotropic medication. The patient had to have been in severe discomfort for a couple of hours. The side effects are counteracted by another medication, Cogentin. It was obvious to Hasenkamp that the client needed emergency medical care. Hasenkamp asked if the client had been given her Cogentin. The Cogentin is to be given every day at 9:00 p.m., so Hasenkamp asked to see the medication records from December 11, 1989, to see whether the client had received her Cogentin. Gibson and Brown were the staff people for the 4 to 12 p.m. shift on both December 11 and 12, 1989. Hasenkamp asked Gibson if she had given the client the Cogentin on December 11th. Gibson said yes. Hasenkamp then looked at the medication records and found that no one had initialed to show that they had given the Cogentin on December 11th. Hasenkamp again asked Gibson, but when Gibson was shown the unsigned medication record, she admitted that she did not know if she had given the medication. Hasenkamp sent Gibson to take the client to the emergency room. The client was given an injection of Cogentin. When Gibson asked Hasenkamp if she should give the December 12th dose of Cogentin to the client, Hasenkamp told her no, because the injection would serve in place of the dose. Hasenkamp told Gibson to initial the medication record for December 12th to show that Cogentin was given. Hasenkamp also instructed Brown to hold the client back from work the next morning and to make sure the client was sent to med clinic so that the psychiatrist could review and adjust her medications. The next morning, December 13, 1989, Hasenkamp arrived at Big Tree just as the van was leaving with clients for med clinic. She flagged down the van and asked the driver, Rosario Rizzo, if that client, Janice, was on the van. Rizzo said "no" because no one had told him to take that client. Hasenkamp told Rizzo what had happened the night before, because Rizzo is a nurse. She then sent Rizzo to find the client and take her to med clinic. When Rizzo had arrived that morning, he went to the office and spoke with Brown and Nadine Banning. Banning was the person who had been on duty from midnight to 8:00 a.m. He personally asked Brown and Banning who was scheduled to go to med clinic. Brown read him the names off of a list, but did not mention Janice. At Hasenkamp's instructions, Rizzo found Janice at the bus stop, waiting to go to work. He took her to med clinic. When Hasenkamp went into Big Tree, she immediately asked Brown why she had failed to hold Janice and send her to med clinic. Brown's only reply was "It doesn't matter anyway because the psychiatrist won't see Janice without an appointment." Hasenkamp then went to look at the medication records for Janice and discovered that Gibson had gone back and filled in her initials to show that she had given the missed dose of Cogentin to Janice on December 11th. When Hasenkamp asked Gibson about this, Gibson told her that she remembered that she had given the medication on the 11th. In fact, it is not possible for the client to have had such a severe side effect reaction on December 12th if she had been given her medication on the 11th. Hasenkamp determined that Gibson and Brown had endangered the safety and health of a client and had failed to follow her direct instructions, because Gibson did not properly given the medication and Brown did not hold Janice for med clinic. Gibson's late "memory" that she had given the medication further undermined her confidence in Gibson. She felt she could no longer trust their judgment and could no longer entrust the care of patients to them. Hasenkamp recommended that both be terminated. Turley took that recommendation and did an investigation. From that investigation, she determined that they had, in fact, endangered the client. Specifically, Turley found that Gibson had failed to ensure that the medication was taken and had then tried to cover up that failure and that Brown had failed to get the client to med clinic as instructed. Turley terminated Brown and Gibson on December 14, 1989. The reason given to each in the letter of termination was "insubordination." This reason was given in writing because the personnel director of ACT recommended that they not say "endangerment of a client's health and safety" for liability reasons. Both Gibson and Brown filed a grievance with ACT's affirmative action officer, Carolyn Fleming, a black employee. Fleming did an extensive investigation of all of Gibson's and Brown's allegations of harassment and termination based on racial discrimination. Fleming determined that there was no racial discrimination in ACT's actions. Based on an observation of the candor and demeanor of all the witnesses and on a review of the contradictions in the testimony, it is determined that the testimony of Brown and Gibson is less credible than that of the witnesses for ACT. Both Brown and Gibson gave testimony that was calculated to show them in the best light. While it is not determined that their testimony was untrue, it is found that their memories of these events are skewed so as to diminish the severity of their failures.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitions for Relief filed by Rosa Gibson and Lillian Brown be DENIED and DISMISSED. DONE and ENTERED this 2nd day of April, 1993, in Tallahassee, Florida. DIANE K. KIESLING 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 2nd day of April, 1992. COPIES FURNISHED: Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Margaret Jones, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Rosa Gibson 1129 Hillcrest Drive Daytona Beach, FL 32117 Reginald E. Moore Attorney at Law Post Office Box 1848 Daytona Beach, FL 32015 Mitchell A. Gordon Attorney at Law Post Office Drawer 9670 Daytona Beach, FL 32120
The Issue Whether the Division of Administrative Hearings has jurisdiction to hear this cause, alleging that Respondent Employer has committed an unlawful employment practice against Petitioner.
Findings Of Fact Following a July 28, 2003, "Notice of Determination: No Jurisdiction," by the Florida Commission on Human Relations, Petitioner filed a Petition for Relief as more fully described below. On or about September 3, 2003, the matter was referred to the Division of Administrative Hearings. It appearing on the face of the referral package that Respondent did not regularly employ 15 persons and that therefore Respondent did not qualify as an "employer" under Chapter 760, Florida Statutes, a September 12, 2003, Order was entered scheduling a telephonic hearing for October 1, 2003, and permitting the filing of any documents in support of the parties' respective positions. Respondent's "Submission of Materials in Support of Dismissal of Petition and Supporting Memorandum of Law" was served by United States Mail on September 25, 2003. It contained a prayer for dismissal. Pursuant to Rule 28-106.204, Florida Administrative Code, Petitioner was entitled to respond in writing by October 6, 2003. Petitioner did not respond. Respondent's "Supplemental Motion to Dismiss for Lack of Jurisdiction" was served upon Petitioner by hand-delivery, by United States Mail, and by "e-mail" on September 26, 2003. Per Rule, Petitioner was entitled to file a written response by October 8, 2003. Petitioner did not respond. A Corrected Order entered September 26, 2003, permitted the parties until October 7, 2003, to submit any documents tending to support or refute jurisdiction by the Division of Administrative Hearings over this cause. This Order also rescheduled the telephonic hearing for October 9, 2003. Petitioner filed nothing in response to either the September 12, 2003, Order or the September 26, 2003, Corrected Order. At the October 9, 2003, telephonic conference call, Respondent appeared through counsel. The opening of hearing was delayed five minutes, but Petitioner did not appear. Thereafter, oral argument upon all Motions proceeded without Petitioner. Petitioner still had not called in to the meet-me telephone number after 15 minutes, and the telephonic hearing was concluded. In an abundance of caution, an Order to Show Cause was entered on October 10, 2003, giving Petitioner 10 days in which to show cause, in writing, filed with the Division, why this cause should not be dismissed for lack of jurisdiction. Petitioner has filed nothing. Therefore, Respondent's documentation, including but not limited to: Respondent's accountants’ affidavits and its payroll journals, unemployment tax returns, and a payroll schedule, may be presumed true and accurate. All the documentation supports a finding that Respondent never employed more than 14 people for any one week in the year 2001 and employed 15 or more employees for only one week (December 21-28, 2002) in the year 2002.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing this cause for lack of jurisdiction. DONE AND ENTERED this 30th day of October, 2003, 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 30th day of October, 2003. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Truman Jeffery Mayfield 902 Phillips Street Jacksonville, Florida 32207 Robert G. Riegel, Jr., Esquire Ryan R. Fuller, Esquire Coffman, Coleman, Andrews & Grogan, P.A. Post Office Box 40089 Jacksonville, Florida 32203
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts, are found: At all times material to this proceeding, Respondent has held Florida Teacher's Certificate No. 270021, issued by the Department of Education, State of Florida. Respondent's Florida Teacher's Certificate covers the areas of elementary education and early childhood education. On or about October, 1983, the Grand Jury filed an eight (8) count indictment against the Respondent in the Nineteenth Judicial Circuit. State of Florida vs. Laurence J. Jacobson, Case No. 83-1079-CF-A. On July 29, 1985, after being tried and convicted by a jury of three counts of sexual battery on a person eleven (11) years of age or less, a violation of Section 794.011(2), Florida Statutes and punishable as a life felony, and four (4) counts of making a lewd, lascivious or indecent assault or act upon or in the presence of a child under the age of fourteen (14) years, a violation of Section 800.04, Florida Statutes, and punishable as a second degree felony, the Respondent was sentenced to three (3) life terms with a 25 year minimum mandatory sentence, the last two (2) sentences to run concurrently with the first sentence and four (4) fifteen (15) year sentences with the first fifteen (15) year sentence to run consecutively with the first life sentence and the last three (3) fifteen (15) year sentences to run concurrently with the first fifteen (15) year sentence. The Respondents was given 686 days credit against his sentence for time incarcerated prior to imposition of sentence. The Respondent was committed to the department of Corrections and is presently serving the sentences imposed.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witness, it is, therefore, RECOMMENDED that the Education Practices Commission enter a Final Order permanently revoking Respondent's Teaching Certificate for violation of Counts I and II of the Amended Administrative Complaint. It is further RECOMMENDED that Count III of the Amended Administrative Complaint be DISMISSED. RESPECTFULLY SUBMITTED and ENTERED this 1st day of April, 1988 in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 1988. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-2906 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the Petitioner. The Respondent failed to submit any Proposed Findings of Fact. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1 - 2. Adopted in Finding of Fact 1. 3. Adopted in Finding of Fact 2. 4 - 19. Adopted in Finding of Fact 3 but clarified. 20 - 21. Adopted in Finding of Fact 4 but clarified. COPIES FURNISHED: Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Karen Barr Wilde Executive Director Education Practices Commission Room 418, Knott Building Tallahassee, Florida 32399 Sidney H. McKenzie, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32399 Chris H. Bentley, Esquire Mr. Laurence Jacobson W. Douglas Beason, Esquire ID No. 098761 ROSE, SUNDSTROM & BENTLEY Post Office Box 221 2544 Blairstone Pines Drive Raiford, Florida 32083-0221 Tallahassee, Florida 32302-1567
