Findings Of Fact The Respondent, Department of Corrections ("Department"), conducted the bid opening for the proposed award of lease number 700:0487 on June 27, 1989. The bids submitted by Petitioner, Miami International Commerce Center ("MICC"), and Intervenor, Luis Sanchez ("Sanchez") were the only two timely responses received to the bid solicitation for this lease. At the bid opening, the Department rejected MICC's bid on the grounds that it was unresponsive. The Department contends that MICC's bid was not responsive because: The map included in the proposal form on which the bidder was supposed to depict the location of the project was not included as an attachment to the package submitted. However, the MICC bid package did include a map from which the location of the project could easily be determined. The package submitted did not include adequate evidence of compliance with the energy performance index. The package submitted did not include a clear photo of the building demonstrating that the building was "dry and measurable". Mary Goodman, the Chief of the Bureau of Property Management for the Department of General Services, was called as a witness by the Department to testify regarding MICC's bid submittal. Ms. Goodman has been Chief of the Bureau of Property Management for 18 years and has been involved in leasing for state projects since 1958. She drafted the proposal form and the schedule of required attachments thereto. In September of 1988, she sent a letter to the state agencies involved in leasing (including the Department) advising them as to the mandatory nature of the proposal form and the need to insist upon strict adherence to the requirements set forth in the proposal. This directive was applied by the Department in rejecting MICC's bid. After testifying regarding the deficiencies in the MICC's bid submittal, Mrs. Goodman reviewed the energy performance certification included as part of the Intervenor's submittal package. Mrs. Goodman testified that the certification letter included in that package was inadequate, and therefore, the Intervenor's bid was also nonresponsive. Both the bid submitted by Petitioner and the bid submitted by Intervenor failed to include acceptable energy performance certifications and were therefore nonresponsive.
Recommendation Based upon the foregoing, it is RECOMMENDED that both bids submitted in connection with the proposed award of Lease No. 700:0487 be deemed nonresponsive and the Department of Corrections rebid the lease. DONE and ENTERED this 25th of August, 1989, at Tallahassee, Florida. J. STEPHEN MENTON 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 25th day of August, 1989. APPENDIX The Petitioner has filed a Proposed Recommended Order which does not comply with the format anticipated in Rule 221- 6.031, Florida Administrative Code. However, the undersigned has reviewed the Proposed Recommended Order and it has been considered in the preparation of this Recommended Order. The first two pages of the Proposed Recommended Order consist of background information and quotes from the bid documents. These two pages do not constitute proposed findings of fact. Page three of the Proposed Recommended Order includes proposed findings of fact and they have been adopted in the Findings of Fact set forth above. Page four of the Proposed Recommended Order constitutes legal argument. COPIES FURNISHED: Charles Fritz, Designated Representative 8181 Northwest 14th Street Miami, FL 33126-1899 Luis Sanchez, Pro Se P. O. Box 34021 Tallahassee, FL 33134 Drucilla E Bell, Esquire Department of Corrections 1311 Winewood Boulevard Tallahassee, FL 32399-2500
The Issue The issues are (1) whether Respondent violated Chapters 381, 386, and 489, Florida Statutes; and if so, (2) whether Respondent is subject to an administrative fine; and if so, (3) what penalty should be imposed.
Findings Of Fact At all times material to this proceeding, Petitioner was registered with Respondent as a septic tank contractor, under the authorized name of LA Ford Septic Tank. As of March 1, 1995, single compartment septic tanks must be used in series or in conjunction with a outlet filter which has been approved by Respondent. An outlet filter is designed to prevent solid wastes from reaching the drainfield of a septic system. Removal of an outlet filter will cause the premature failure of a drainfield system and create a potential sanitary nuisance. In September of 1996, Rita Haynes contracted with Petitioner for the installation of a septic system for her mobile home. The system received construction approval from the Suwannee County Health Department on September 5, 1996. At that time, the outlet filter was attached to the system. On September 12, 1996, the Suwannee County Health Department re- inspected the system. The inspector discovered that the filter was missing. Ms. Haynes did not remove the filter or authorize anyone else to do so. Removal of the outlet filter constituted theft of Ms. Haynes' property. Allegations concerning the removal of the outlet filter on Ms. Haynes' property are included in the Administrative Complaint at issue here. In September of 1996, Tracy Fernandez contracted with Petitioner to install a septic system for her mobile home. The system received construction approval from the Suwannee County Health Department on September 4, 1996. At that time, the outlet filter was present. The filter was missing when the Suwannee County Health Department re-inspected the system on September 10, 1996. Ms. Fernandez did not remove the filter or authorize anyone else to do so. Removal of the outlet filter constituted theft of Ms. Fernandez's property. Allegations concerning the removal of the outlet filter on the property of Ms. Fernandez are included in the Administrative Complaint at issue here. In July of 1996, Laura Landen contracted with Ford to install a septic system for her mobile home. Petitioner told Ms. Landen that he would save her some money by removing the outlet filter after the initial inspection. The system received construction approval from the Suwannee County Health Department on July 24, 1996. At that time, the outlet filter was attached to the septic tank. The filter was missing when the Suwannee County Health Department re-inspected the system on September 11, 1996. Ms. Landen did not remove the filter or authorize anyone else to do so. Removal of the outlet filter constituted theft of Ms. Landen's property. Allegations concerning the removal of the outlet filter on Ms. Landen's property are included in the Administrative Complaint at issue here. In October of 1996, John and Mary Phillips contracted with Petitioner to install a septic system for their home. The system received construction approval from the Columbia County Health Department on October 23, 1996. At that time, the outlet tee filter was present. Subsequently, the Phillips' daughter saw Petitioner take something out of the septic tank. The filter was missing when the Columbia County Health Department re-inspected the system on October 25, 1996. Mr. and Mrs. Phillips did not remove the filter or authorize anyone else to do so. Removal of the outlet filter constituted theft of the Phillips' property. Allegations concerning the removal of the outlet filter on the Phillips' property are included in the Administrative Complaint at issue here. In April of 1996, Marshall and Karen Merriman contracted with Petitioner to install a septic tank system on their property. The outlet filter was attached to the septic tank at the time of an initial inspection by the Suwannee County Health Department on April 22, 1996. Subsequently, Mr. Merriman saw Petitioner drive up and remove the outlet filter from the septic tank. Petitioner's removal of the outlet filter constituted theft of the Merrimans' property. A re-inspection by the Suwannee County Health Department on April 23, 1996, revealed that the outlet filter was missing. The inspector also discovered that Petitioner had not placed enough rock in the Merrimans' drainfield. Accordingly, the system did not pass final inspection. Mr. Merriman stopped payment on his check made payable to Petitioner in the amount of $909.50. Another septic tank contractor was hired to properly install the septic system on the Merrimans' property. Mr. Merriman's complaint to the Suwannee County Health Department resulted in a citation for a $1,500 fine against Petitioner for violating the following rules: (1) Rule 10D-6.0751(1)(k), Florida Administrative Code, practicing fraud or deceit; (2) Rule 10D-6.0751(1)(l)2, Florida Administrative Code, misconduct causing harm to customer; and (3) Rule 10D-6.055(3)(a), Florida Administrative Code, removal of outlet filter. Petitioner acknowledged receipt of the citation on September 24, 1996. That same day he requested an informal administrative hearing to contest the citation. The Suwannee County Health Department referred Petitioner's request for an informal hearing concerning the above-referenced citation to Respondent on September 27, 1996. Respondent then requested its District 3 Administrator to conduct the necessary proceedings and submit a Recommended Order to Respondent. The record does not reveal the disposition of Petitioner's request for an informal hearing regarding the citation. The Administrative Complaint at issue here does not contain any allegations relative to Mr. Merriman's complaint. However, since Petitioner did not dispute the material allegations contained in the citation, they may be considered as true in aggravation of any penalty imposed in the instant proceeding. In addition to the missing filters referenced above, the Columbia County Health Department found filters missing from Petitioner's installations on property owned by Richard Johnson and David Timmerman in September of 1996. The filters had been present during prior inspections of Petitioner's installations on the Johnson and Timmerman properties. The removal of the outlet filters from the Johnson and Timmerman properties constituted theft of their property. The Administrative Complaint at issue here contains allegations concerning Petitioner's removal of these outlet filters. The Suwannee County Health Department and the Columbia County Health Department had many citizen complaints about Petitioner's work. They performed a random check of all recent septic tank installations in their respective counties. They re- inspected the septic tank installations of other registered septic tank contractors as well as Petitioner's installations. They found missing outlet filters only in Petitioner's installations. The two health departments began spray painting a spot on filters during initial inspections to stop anyone from using the filters at multiple installations and inspections. Petitioner habitually, and as a routine business practice, removed the outlet filter from the septic tanks he installed after the initial inspection but before he covered the tank with dirt. He was responsible for stealing the required outlet filters on the property of Rita Haynes, Tracy Fernandez, Laura Landen, John and Mary Phillips, David Timmerman, and Richard Johnson. In each of these instances, Petitioner acted fraudulently and deceitfully. His gross misconduct created a potential sanitary nuisance and caused his customers monetary harm. An outlet tee filter costs approximately $50. Petitioner was able to underbid his competitors by removing the filter from an inspected system and using the same filter on another installation. From time to time, septic tanks need to be pumped out to prevent the flow of sludge and solids from the tank into the drainfield. Sludge and solids will clog the drainfield causing the system to fail. A failed system is expensive to repair or replace. A failed system also creates a public health hazard. When a septic tank is pumped out, all of the sludge should be removed. After the tank is empty, it should be washed down with a hose and inspected for cracks. If the tank is in good condition, a septic tank contractor is supposed to sign an inspection slip. In September of 1996, Allen Donaway contracted with Petitioner to pump out his septic tank and install a new drainfield. Petitioner's employees arrived at Mr. Donaway's residence on or about September 18, 1996, to pump out the tank. They claimed they had completed the job even though they left 12 or more inches of sludge at the bottom of the tank. Despite Mr. Dunaway's demands, Petitioner's employees refused to pump any more septage from the tank. When Mr. Donaway contacted Petitioner to complain that his employees had only partially pumped the tank, Petitioner demanded immediate payment. Mr. Donaway gave Petitioner a check for $135 which Petitioner cashed immediately. Mr. Donaway had to pay another registered septic tank contractor to pump the rest of the sludge from the tank and to install the new drainfield. Allegations concerning Petitioner's failure to completely pump out the sludge from Mr. Donaway's septic tank are contained in the Administrative Complaint at issue here. In a Letter of Warning dated July 15, 1996, the Columbia County Health Department informed Petitioner that Debbie Gregory had filed a complaint against him for an unsatisfactory septic pump-out. This letter requested a response to an allegation that Petitioner, without good cause, had abandoned a project which he was under a contractual obligation to perform in violation of Rule 10D-6.0751(1)(g), Florida Administrative Code. Petitioner was advised that he could avoid the imposition of a $500 fine or a disciplinary action against his contractor's license by correcting the problem within five working days. As of August 6, 1996, Petitioner had not responded to the health department's inquiry. He made no attempt to correct the problem by completely removing the solids and greases from Ms. Gregory's septic tank. Petitioner was advised by letter that Respondent intended to initiate enforcement procedures. Allegations concerning the unsatisfactory septic pump-out on Debbie Gregory's property were included in the Administrative Complaint at issue here. Petitioner's failure to completely pump out all of the sludge from the septic tanks of Allan Donaway and Debbie Gregory created a potential health hazard. Additionally, his gross misconduct caused these customers monetary harm. They had to pay another septic tank contractor to complete Petitioner's work so that they could avoid the expense of prematurely replacing their drainfields. In August of 1996, Petitioner installed an onsite sewage treatment and disposal system on the property of Johnny Howard, Jr. The Suwannee County Health Department subsequently determined that Petitioner had installed the septic system on the wrong side of the Howard residence with the drainfield extending across the property line of the adjoining property. The inspector also discovered that the septic tank was installed next to a dryer vent opening in the Howard residence. When Petitioner refused to correct the problems at the Howard residence, the county health unit paid another septic tank contractor to correct the septic system. Respondent then filed an Administrative Complaint seeking revocation of Petitioner's septic tank contractor's registration and imposition of an administrative fine. On July 22, 1997, Respondent entered a Final Order in Department of Health Case Number 97-154 which revoked Petitioner's septic system contractor's registration and imposed a fine in the amount of $1000 due to the improper installation of the septic system at the Howard residence. This Final Order approved and adopted a Recommended Order in DOAH Case Number 96-5543, finding that Respondent was guilty of violating Rule 10D-6.0751(1)(b)2, Florida Administrative Code, for completing contracted work at the Howard residence without a permit and Rule 10D-6.0751(1)(l)2, Florida Administrative Code, gross misconduct causing monetary harm. Allegations concerning Petitioner's improper installation of the septic system on Mr. Howard's property were not contained in the instant Administrative Complaint. However, they may be considered in aggravation of any administrative fine imposed in the instant case. In the course of investigating citizen complaints against Petitioner, Respondent learned that Petitioner was advertising his business using the name of Ford Septic Tank and/or Ford Septic Tank Service(s) on his trucks and in the Yellow Pages. Petitioner's authorized business name is LA Ford Septic Tank. Respondent sent Petitioner a Letter of Warning dated August 27, 1996, advising him that advertising his services in a form other than his authorized business name violated part III of Chapter 489, Florida Statutes, and Rule 10D-6.0751(1)(a), Florida Administrative Code. The letter informed Petitioner that continued violations could result in an administrative fine of $500 per day. The letter stated that the violations might be cited in a future complaint based on repeat violations. Petitioner did not exercise his option to request an administrative hearing to contest the allegations contained in the Letter of Warning. On November 20, 1996, employees of the Suwannee County Health Department took photographs of Petitioner's business sign using an unauthorized name on a county road in Suwannee County. On November 22, the same employees took photographs of Petitioner's trucks bearing an unauthorized name. Petitioner's persistence in using an unauthorized business name was especially egregious because other septic tank contractors with the last name of Ford, who were not affiliated with Petitioner, worked in the same commercial and residential areas. For example, Mr. Merriman contracted with Wilbur Ford to correct the septic system that Petitioner improperly installed. North Florida Septic Tank was owned by Robert and Donna Ford. Their Yellow Page advertisement specifically disclaimed any affiliation with Petitioner. The instant Administrative Complaint contains allegations concerning Petitioner's use of an unauthorized name to advertise his business. Petitioner filed an application to become a registered septic tank contractor on August 6, 1991. Petitioner was convicted of grand theft and stopping payment on a check with intent to defraud on October 28, 1991, in the circuit court of Hernando County, Florida. Petitioner was convicted of these two felonies before he took the septic tank contractor's examination in November of 1991. Petitioner did not inform Respondent about the two convictions. Petitioner obtained his septic tank registration through fraud or misrepresentation by failing to disclose his felony convictions. The instant Administrative Complaint contains allegations concerning Petitioner's failure to disclose the two felony convictions. Respondent's efforts to persuade Petitioner to correct his improper installations and/or unsatisfactory pump-outs were not successful. He made no attempt to replace the filters he removed. He did not heed Respondent's warnings regarding his use of an unauthorized business name. He has failed to make any effort to rehabilitate himself or to mitigate the effects of his behavior despite the following: (1) the severity of his offenses; (2) the danger to the public that he created; (3) the number of times that he repeated the offenses; (4) the number of complaints filed against him; and (5) the monetary harm he caused his customers.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent enter a Final Order imposing an administrative fine in the amount of $7,000 against Petitioner. DONE AND ENTERED this 5th day of September, 1997, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 1997. COPIES FURNISHED: Thomas D. Koch, Esquire Department of Health Building 6, Room 133 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Larry A. Ford 25295 CR 137 O'Brien, Florida 32071 Angela T. Hall, Agency Clerk Department of Health Building 6 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Pete Peterson, Esquire Department of Health Building 6, Room 102-E Tallahassee, Florida 32399-0700 James Howell, Secretary Department of Health Building 6, Room 306 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue is whether this case should be dismissed based on Petitioner's failure to appear at the hearing.
Findings Of Fact The Notice of Hearing in this case was issued on January 12, 2011, setting the hearing for March 30 and 31, 2011, in Tavares, Florida. The hearing was scheduled to commence at 9:00 a.m. on March 30, 2011. Also on January 12, 2011, an Order of Pre-hearing Instructions was entered. Neither the Notice of Hearing nor the Order of Pre- hearing Instructions was returned as undeliverable to Petitioner. On March 23, 2011, Petitioner filed a letter at the Division of Administrative Hearings stating that she would be unable to attend the hearing on March 30, 2011, for unexplained medical reasons. This letter indicated that Petitioner was aware of the scheduled hearing dates. At the hearing on March 30, 2011, counsel for Respondent stated that Petitioner did not serve a copy of this letter to Respondent. On March 29, 2011, Petitioner filed a second letter at the Division of Administrative Hearings that declined to request a continuance of the hearing and proposed that the hearing proceed based on hearsay documents that Petitioner had previously filed at the Division of Administrative Hearings. At the hearing on March 30, 2011, counsel for Respondent stated that Petitioner did not serve a copy of this letter to Respondent. At 9:00 a.m. on March 30, 2011, counsel and witnesses for Respondent were present and prepared to go forward with the hearing. Petitioner was not present. The undersigned delayed the commencement of the hearing by fifteen minutes, but Petitioner still did not appear. The hearing was called to order at 9:15 a.m. Counsel for Respondent entered his appearance and requested the entry of a recommended order of dismissal. As noted above, Respondent had received no notice that Petitioner did not intend to appear at the hearing or that continuance was under consideration. Respondent's counsel had flown to Florida from Tennessee to appear at the hearing. One of Respondent's witnesses was a former employee whom Respondent had flown to Florida from Wisconsin at Respondent's expense. Respondent vigorously opposed any continuance of the scheduled proceeding. The undersigned declined on the record to continue the hearing. The hearing was then adjourned.
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 the Petition for Relief in this case. DONE AND ENTERED this 4th day of April, 2011, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 4th day of April, 2011. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Jack Leebron Grand Court Tavares 111 Westwood Place, Suite 200 Brentwood, Tennessee 37027 Ann L. Brunette Post Office Box 304 Fruitland Park, Florida 34731 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Air Comfort Services, Inc. (ACS) was a subcontractor on state construction project No. BR-729, an extension of the Administrative Support Service Complex on the campus of the University of West Florida at Pensacola. The general contractor on the project was Samuel R. Sharpe, Inc. (Sharpe) Petitioner spent 248 hours on this job as an employee of ACS, between September 13, 1978, and January 24, 1979. After petitioner submitted his affidavit, Jack C. Coons, an administrator employed by the Department of General Services, directed Harrel Bolden, the project manager, to withhold $2,530.30 from the general contractor, pending resolution of the dispute between petitioner and ACS. ACS was also a subcontractor on state construction project No. BR-725, the Educational Research and Development Center at the University of West Florida. The general contractor on this project was Greenhut Construction Company, Inc. (Greenhut). Petitioner spent 176 hours on this job as an employee of ACS, between October 4, 1978, and November 22, 1978. After petitioner filed his affidavit, Jack C. Coons directed Harrel Bolden to withhold $590.24 from the general contractor, pending resolution of the dispute between petitioner and ACS. Petitioner is a certified welder. On the Sharpe job, he worked with other welders and pipefitters, putting in water lines. On November 26, 1978, the excavations for the pipes were first dug. Petitioner himself spent about five hours using a shovel to dig for pipes. Petitioner, who is not a certified pipe fitter, helped fit pipe together, and welded the joints, once everything was in place. In all, there were some 79 four inch pipe joints and 111 two inch pipe joints on the Sharp job water lines. Petitioner also helped a plumber put in other plumbing lines and assisted with the installation of piping for the air conditioning system. He silver soldered the copper pipe joints, and put in cast iron pipe for rain leaders. Petitioner performed similar tasks on the Greenhut job, including welding joints on about 1,020 feet of pipe with 1 1/2" and 2" diameters laid in double random lengths, and welding at least 8 joints of pipe with a four inch diameter. A welder can weld 20 four inch pipe joints or 30 two inch pipe joints in an eight hour day. Petitioner was initially paid at the rate of $6.00 per hour. Beginning in January of 1979, he was paid at the rate of $6.76 per hour. He was paid at the higher rate for 60 of the 248 hours he worked on the Sharpe job. Both the Greenhut and Sharpe jobs involved contracts in excess of $5,000.00.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner be paid $1,825.25. That Greenhut be paid nothing. That Sharpe be paid $1,295.29. DONE and ENTERED this 28th day of August, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Mr. Donald A. Lowery 7706 Gadsden Street Pensacola, Florida 32506 Sharpe, Inc. Post Office Box 107 Pensacola, Florida 32591 Greenhut Construction Co., Inc. Post Office Box 12603 Pensacola, Florida 32576 Lucian H. Morgan 5503 East Shore Drive Pensacola, Florida Mr. Luther Moore Department of Labor and Employment Security Room 205, Ashley Building 1321 Executive Center Drive East Tallahassee, Florida 32301 Air Comfort Services, Inc. 315 South A Street Pensacola, Florida
The Issue Whether, as alleged, Respondent, International Paper Company, violated the Human Rights Act of 1977, by discharging Petitioner from employment because of his race or color, and, if so, the affirmative relief which should be granted.
Findings Of Fact Petitioner, a twenty-five year old black male, was hired as a general laborer by the Company on August 4, 1972, and continued in the Company's employment until his discharge on August 28, 1978. During the course of his employment, Petitioner worked at the Company's Panama City pulp and paper mill as a laborer, power plant utility man, turbine operator, assistant water treatment plant operator, and finally, as a power plant tender. Each new job assignment was a promotion and was accompanied by a salary increase. At the time of his discharge by the Company, Petitioner was employed as a power plant tender, and received $9.08 per hour. (Testimony of Petitioner, P.E. 2, 4, 5, 6,) Petitioner's Performance Record During his six years of employment with the Company, Petitioner's work performance was periodically reviewed every six months by this supervisors through completion of an Employee Performance Review Form. His performance records reflect that his work performance was marginally satisfactory, generally meeting minimum Company standards, although falling below average in several areas. He was frequently characterized by his supervisors as an individual who was lazy, laced initiative, needed frequent reminders to do his work, and not dependably present at his work station. His last periodic performance evaluation, dated April 6, 1978, noted that his performance, after two and one half years on the job, had not improved, and that he "must improve his performance during the next period." (P.E. 9) The Petitioner's reactions, during the counseling session on that performance review, were characterized by his supervisor as "passive-unconcerned." Id. (Testimony of Petitioner, P.E. 8, 9) Petitioner's Disciplinary Record Prior to Discharge During his employment with the Company, and prior to the final infraction resulting in his discharge, Petitioner was subject to disciplinary actions by the Company on five separate occasions. Each disciplinary action was evidenced by an Employee Warning Record completed by the Petitioner's foreman at, or near, the time of the infractions. The first three disciplinary infractions occurred on July 8, 1974, January 14, 1976, and May 20, 1977. Each infraction involved defective work performance by Petitioner, or his failure to follow proper work and safety procedures. In each case, the Company action consisted of reprimanding the Petitioner, and warning him that further occurrences of such nature could result in stronger or more serious disciplinary action. (R.E.2) The next disciplinary infraction by Petitioner occurred during May, 1977. Petitioner had been counseled on four separate occasions during the work week beginning May 22, 1977, for being absent fro his area of responsibility, and not answering his calls. On May 27, 1977, he was again reminded of the importance of being in his assigned work area so that he could hear calls and immediately respond. Later that day, Petitioner was told to go to the fourth floor and stand by for a call to start the load burners. When he was later called from the control room, Petitioner did not respond. Upon checking, the shift foreman found him sitting on the fourth floor porch. The pertinent Employee Warning Record concluded: "Communication is a critical part of the Power Plant, and it has been reemphasized to Smith that he must be in the area where he can hear his calls and respond. He understands that a recurrence of this nature will result in more severe disciplinary action." (R.E. 2) On July 7, 1978, Petitioner, without authorization, used a company telephone to make personal long-distance calls at Company expense. In lieu of discharge, the Petitioner was lid off for fourteen working days, and required to reimburse the Company for the telephone charges connected with his calls. The Company expressly informed Petitioner that "further acts of neglect of duty and/or improper use of telephones will be considered as cause for discharge". (R.E. 2) Petitioner's Discharge for Repeated Acts of Neglect of Duty Since 1973, the Petitioner performed various jobs working in the company power plant which furnishes essential power to its Panama City pulp and paper mill. The mill is dependent upon the power plant for its electrical power - a ten minute interruption of power would require the mill to shut down production. Because of the sustained steam pressure, high temperature conditions, and the possibility of ruptured valves and pipes, work at the power plant can be both dangerous and difficult. Power plant workers must be able to respond immediately and effectively to the exigencies associated with operating the plant, and take remedial action. (Testimony of Weathers, Daniels, P.E. 8 and 9) On August 16, 1978, Petitioner worked as a power tender at the mill power plant during the 11:00 P.M. - 7:00 A.M. shift. He became overheated while working in the cinder pit area and asked for and received permission to take a break to "cool-off." Ten to fifteen minute breaks for such purposes were normally authorized at the plant, since no regular lunch hour or breaks were specified during the production workers' eight hour shift. Production workers, such as Petitioner, were required, however, to be on duty, i.e., within the work area or responsive to calls, at all times during their eight hour shifts. (Testimony of Weathers, Daniels, Petitioner) Upon receiving permission to take a break, Petitioner proceeded to the porch and then to the No. 5 men's bathroom. After Petitioner remained absent for twenty - twenty-five minutes, his lead worker, E. J. Weathers became concerned and sought to locate him by calling the control room, and repeatedly paging him on the house loudspeaker system. That system has loudspeakers located throughout the work area, including the bathrooms. (Testimony of Petitioner, Weathers) After Petitioner failed to respond to Weathers' efforts to locate him, Weathers called and reported the Petitioner's absence to his shift supervisor, Marion Daniels. Daniels told him to search for and locate the Petitioner. Five minutes later, Weathers located the Petitioner asleep, seated on the toilet, located in the first stall in the men's bathroom. Weathers, then, reported the incident to Daniels, without waking Petitioner, because Weathers had previously told him not to wake Petitioner if he were found sleeping. Daniels came immediately to the bathroom, where Petitioner remained seated on the toilet, asleep, with his head down, eyes closed, and pants down around his ankles. Daniels called out Petitioner's name, and shined a flashlight in his face - but Petitioner did not respond. Finally, Daniels turned up the squelch volume on his radio, and Petitioner awoke. Petitioner denied he had been sleeping. Approximately thirty - thirty-five minutes elapsed between the commencement of Petitioner's "cooling-off" break, and the awakening of him from his sleep. (Testimony of Weathers, Daniels and Petitioner) Daniels, then, filed a report on the incident with the power plant supervisor. The next day, the superintendent told Petitioner that he would be discharged and informed him of his appeal rights. On August 19, 1978, a meeting was held between the mill manager, union representatives, and Petitioner to discuss the incident. At the close of the meeting, the Petitioner was advised by the mill manager that he was "layed [sic] off until further investigation." On August 25, 1978, Petitioner was informed, in writing, by the mill manager that he was discharged from employment, effective August 22, 1978, for "repeated acts of neglect of duty." (Testimony of Petitioner, P.E. 12) Grounds for Discharge Under Labor Agreement Petitioner's discharge from employment was subject to a Labor Agreement between the Company and two labor unions represented at the Panama City mill. The Agreement lists fifteen specific grounds for the discharge of mill employees. The grounds are not necessarily mutually exclusive, and include, without further elaboration, "neglect of duty," and "deliberate sleeping on duty." An employee's previous disciplinary record may be considered in determining the appropriate disciplinary action, but; "[w]hen an Employee has received no disciplinary action for a period of one year, prior disciplinary warnings for minor offenses will not be used against him." (P.E. 1) (Testimony of Daniels) Several of the more specific grounds listed for discharge, such as "deliberate sleeping on duty," are interpreted by the Company's management as falling within the more general ground for discharge - "neglect of duty." An employee can be discharged for one or more of the grounds which apply to a given factual situation. (Testimony of Daniels) Company's Disciplinary Action Against Caucasian Mill Workers On July 7, 1978, Michael Dewberry, a white male employee, improperly used Company telephones to make long-distance personal calls at the Company's expense. As with Petitioner, he was laid off for fourteen days, required to reimburse the Company, and warned that further acts of neglect of duty or improper use of telephones would be grounds for discharge. He did not subsequently neglect his duty or improperly use the telephones. (Testimony of Petitioner, P.E. 17) Bill O'Neal, a white male employee, was laid off on June 24, 1976, for being under the influence of alcohol. He was given a thirty-day leave of absence with the understanding that he would make a good faith effort at rehabilitation, and expressly warned that future misconduct of such nature would be considered as grounds for discharge. On September 9, 1976, O'Neal was, again, disciplined for reporting to work under the influence of alcohol. Instead of being discharged, O'Neal was suspended from work, and advised that reinstatement would be considered only after he provided proof of having received professional assistance. (P.E. 20) Edward Demers, a white male employee, was disciplined for numerous infractions. On January 1, 1978, Demers was reprimanded for pulling a knife in an argument with another employee; on March 14, 1978, and June 16, 1978, he was reprimanded for reporting late to work, and not reporting prior to the start of his shift, respectively; on June 27, 1978, he was reprimanded for being uncooperative with fellow workers, inattentive to instructions, slow in performing his duties, and making personal telephone calls; and, on August 25, 1978, he was suspended from work for seven working days for defective work, and warned that neglect of such magnitude would not be tolerated and recurrence would result in "the most severe disciplinary action." Occasionally, however, Demers performed his work in a good, and above average, manner. (P.E. 22) From January 1, 1976, to December 31, 1978, eight Company employees were disciplined for sleeping on duty - three were white and five black. Each employee, irrespective of color, received the identical punishment - a seven day suspension. Company disciplinary records referred to these as "sleeping on job" rather than "neglect of duty" offenses. (P.E. 26) From January 1, 1976, to December 31, 1978, ten Company employees (five black, five white) were discharged from employment for disciplinary reasons. Six of these employees were discharged after having received prior Company warnings that another infraction would be grounds for, or result in, discharge. (P.E. 26) The Company has promulgated Absentee Control Guidelines which allow three or four unauthorized absences within a twelve month period before discharge can be considered. (R.E. 1)
Conclusions Conclusions: The company established that Petitioner was found sleeping on duty after receiving a prior warning that further neglect of duty would be grounds for his discharge. Such conduct by Petitioner constituted neglect of duty and provided a legitimate, nondiscriminatory reason for his discharge. Petitioner failed to prove, by statistical or comparative evidence, that this stated reason for his discharge was a pretext, or mask for a discriminatory motive. Since Petitioner did not show that he was discharged because of his race or color, the Company's action did not constitute an unlawful employment practice in violation of the Human Rights Act of 1977. [Section 23.167(1), Florida Statutes] Recommendation: That the Petition for Relief filed by Petitioner, and supported by Intervenor, be DISMISSED. Background: On October 11, 1978, Petitioner, a black male, filed with the Florida Commission on Human Relations (hereinafter "Commission"), a discrimination complaint charging Respondent, International Paper Company (hereinafter "Company"), with unlawfully discharging him from his employment because of his race or color. On June 6, 1979, after investigating the charges, the Commission entered a "Determination" that there was reasonable cause to believe that an unlawful employment practice had occurred. On August 15, 1979, after unsuccessful efforts to conciliate Petitioner's complaint, Petitioner filed a Petition for Relief from the Company's alleged unlawful employment practice. On October 25, 1979, the Commission forwarded the Petition for Relief to the Division of Administrative Hearings for assignment of a Hearing Officer and the conducting of a Section 120.57(1), Florida Statute (1979), hearing. The Commission's subsequent Motion to Intervene in the proceedings was granted. On November 28, 1979, the Company filed a Motion to Dismiss the Petition for Relief on several grounds. The motion was denied. The Company also filed its Answer to the Petition, denying that it had engaged in the alleged unlawful employment practice. On February 27, 1980, Petitioner filed a Motion for Summary Judgment, which was denied. By Notice of Hearing, dated November 9, 1979, final hearing was set for February 4, 1980. The Petitioner's subsequent motion to continue the hearing was granted and hearing was reset for March 5, 1980. On March 4, 1980, the Company moved to continue the hearing, which motion was granted and final hearing was rescheduled for April 8, 1980. At final hearing, Petitioner testified in his own behalf, and offered Petitioner's Exhibits Nos. 1 through 26, 1/ inclusive, each of which was received into evidence. The Company called E. J. Weathers and Marion Daniels as its witnesses, and offered Respondent's Exhibits Nos. 1 through 6, inclusive, each of which was received in evidence. At the close of hearing, the parties requested into evidence. At the close of hearing, the parties requested the opportunity to file proposed findings of fact and conclusions of law by April 21, 1980. On April 18, 1980, due to an automobile accident involving her husband, counsel for the Company requested additional time within which to submit proposed findings of fact and conclusions of law. After hearing arguments of the parties, the time for filing was extended to May 2, 1980, with the Petitioner and the Commission granted the additional right to file reply memoranda within five working days from the Company's filing. The parties agreed that the thirty-day period for submittal of the Recommended Order to the Commission would begin to run upon receipt of the proposed findings of fact and conclusions of law, or the reply memoranda, whichever was later.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petition for Relief filed by Petitioner, and supported by Intervenor, be DISMISSED. DONE and ENTERED this 5th day of June, 1980, in Tallahassee, Florida. R.L. CALEEN, JR., Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
The Issue Should Petitioner's application for Class 0701 and Class 0704 Fire Equipment Dealer license and Class 0901 and Class 0904 Fire Equipment permit be granted?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency of the State of Florida charged with the responsibility of issuing licenses and permits under Chapter 633, Florida Statutes, and enforcing the provisions of Chapter 633, Florida Statutes. By Final Order dated September 8, 1993, the Department revoked all licenses and permits previously issued to Petitioner under Chapter 633, Florida Statutes, for a period of five years. During this revocation period Petitioner was prohibited from engaging in any type of business requiring a license or permit under Chapter 633, Florida Statutes. After the revocation period expired, Petitioner filed an application with the Department for the issuance of a Class 0701 and Class 0704 Fire Equipment Dealer License and a Class 0901 and Class 0904 Fire Equipment Permit. By letter of denial dated December 30, 1998, the Department advised Petitioner that the Department was denying Petitioner's application for licensure on the basis that Petitioner had conducted business contrary to the provisions of the Department's Final Order dated September 8, 1999. Subsequently, the Department moved to amend its initial letter of denial dated December 30, 1998. The motion was granted and this matter proceeded forward on the amended letter of denial. The amended denial letter provided in pertinent part as follows: Investigation of your activities during the period of revocation resulted in a determination that you have conducted business contrary to the provisions of the Department's Final Order issued September 1993, therefore your request for licensure has been reviewed and must be denied. You continued to engage in the business of servicing, repairing and inspecting preengineered systems without being licensed by soliciting companies for the purposes of servicing their preengineered systems and by making arrangements with Rogers Fire Protection of Dade City, Florida for the performance of these services, and then by receiving a payment or "kickback" for the servicing of these extinguishers and systems. You also continued to engage in the business of servicing, repairing and inspecting fire extinguishers and preengineered systems without being licensed by supervising and training employees who service, repair, inspect and/or install fire extinguishers and/or preengineered systems. The amended denial letter also advised Petitioner that such activity was in violation of Section 633.061(1), Florida Statutes. At all times pertinent to this proceeding, Petitioner was co-owner of Canady CO2 Gas Co. and Canady Fire Equipment Co.(Canady Co.) located in Lakeland, Florida. Richard Dawley was co-owner of Canady Co. with Petitioner from October 1996 through 1997. During the years 1996 and 1997, Daniel Dawley, Billy Benton, and Todd Gardner were employed by Canady Co. During the years of 1996 and 1997, all of the employees of Canady Co. and Richard Dawley were licensed by the office of the State Fire Marshall pursuant to Chapter 633, Florida Statutes which allowed all of them to engage in the business of servicing portable fire extinguishers. During the years 1996 and 1997, neither the owners nor any of the employees of Canady Co. were licensed to service, test, inspect, repair, and install preengineered fire systems. During the years 1996 and 1997, Canady Co. sold and delivered C02 cartridges. Before Petitioner's licenses and permits were revoked by Final Order dated September 8, 1993, Petitioner engaged in the business of testing, servicing, inspecting, and repairing preengineered fire systems. During this period of time, Petitioner established customers with whom he maintained contact with after his licenses and permits were revoked. During the years 1996 and 1997, Canady Co. ran an advertisement in the yellow pages which advertised "Automatic Kitchen Hood Fire Systems, Kitchen Hoods Installed W/Exhaust Fans, Kitchen Hoods & Exhaust Ducts Cleaned, and Kitchen Hood Filters." Petitioner sold this type fire equipment but was not licensed to test, install, repair, service, or inspect such equipment. There is nothing in the advertisement to indicate that Petitioner was licensed to test, install, repair, service, or inspect such fire equipment. There was no evidence that any potential customer or former customer of Petitioner would assume, based on the language of the advertisement, that Petitioner was licensed to test, install, inspect, service, or repair such equipment. Likewise, during the period of revocation, Petitioner did not advise any former customer or potential customer that he was licensed to test, install, repair, service, or inspect fire systems. During 1997, Roy Rogers, owner of Rogers Fire Protection, was licensed to test, install, repair, service, and inspect fire systems. During 1997, Roy Rogers and Petitioner entered into an agreement whereby Petitioner would refer customers to Rogers whose fire systems needed testing, repairing, servicing, or inspection. Roy Rogers would perform this work under his license and bill Petitioner for his regular fee. Petitioner would then bill his customer for the amount charged by Roy Rogers plus a referral fee. The invoice submitted by Petitioner to the customer did not indicate that Roy Rogers had performed the work or that the customer was being charged a referral fee by Petitioner. Upon being paid by the customer. Petitioner would pay Roy Rogers and retain the referral fee. By invoice number 10288 dated May 22, 1997, Rogers Fire Protection billed Canady Fire Equipment $55.00 for testing and inspecting a Range Guard 2.5 gallon Fire Suppression System for Dockside Lounge, Lakeland, Florida. By invoice number 00260 dated June 2, 1997, Canady Fire Equipment Co. billed Dockside Lounge, Lakeland, Florida $80.00 for services rendered by Rogers which included Petitioner's referral fee of $25.00. Petitioner's referral fee was not stated separately on the invoice. By invoice number 10286 dated May 22, 1997, Rogers Fire Protection billed Canady Fire Equipment $55.00 for testing and inspecting a Kiddle HDR-25 Fire Suppression System for Lakeside Baptist Church, Lakeland, Florida. By invoice number 00258 dated June 2, 1997, Canady Fire Equipment Co. billed Lakeside Baptist Church, Lakeland, Florida $80.00 for services rendered by Rogers which included Petitioner's referral fee of $25.00. Petitioner's referral fee was not stated separately on the invoice. By invoice number 10287 dated May 22, 1997, Rogers Fire Protection billed Canady Fire Equipment $55.00 for testing and inspecting a Safety First ARS-15C Fire Suppression System for Dove's Nest, Lakeland, Florida. By invoice number 10285 dated May 22, 1997, Rogers Fire Protection billed Canady Fire Equipment $55.00 for testing and inspecting a Ansul R-102 3-gallon Suppression System for Brothers Bar-B-Q, Lakeland, Florida. On May 27, 1997, Petitioner issued a check in the amount of $220.00 to Rogers Fire Equipment. Although the check does not state which invoice(s) are being paid, the amount equals the total of invoices numbers 10285 through 10288. By invoice number 10294 dated May 27, 1997, Rogers Fire Protection billed Canady Fire Equipment $55.00 for testing and inspecting a Ansul R-101 Fire Suppression System for Silver Ring Cafe, Lakeland, Florida. By invoice number 10319 dated June 13, 1997, Rogers Fire Protection billed Canady Fire Equipment $55.00 for testing and inspecting a Range Guard 6-gallon Fire Suppression System for the Elks Lodge, Lakeland, Florida. By invoice number 10320 dated June 13, 1997, Rogers Fire Protection billed Canady Fire Equipment $55.00 for testing and inspecting a Range Guard 2.5-gallon Fire Suppression System for the Plantation Café, Lakeland, Florida. By invoice number 10343 dated June 27, 1997, Rogers Fire Protection billed Canady Fire Equipment $55.00 for testing and inspecting a Range Guard 2.5-gallon Fire Suppression System for Grace Lutheran Church, Lakeland, Florida. On June 2, 1997, Canady Fire Equipment issued a check to Rogers Fire Protection in the amount of $155.00. On June 17, 1997, Canady Fire Equipment issued a check to Rogers Fire Protection in the amount of $122.50. By invoice number 10327 dated June 20, 1997, Rogers Fire Protection billed Canady Fire Equipment $105.00 for inspecting and servicing a Range Guard 2.5-gallon Fire Suppression System and for labor and material for Jackie's Caribbean Cuisine, Auburndale, Florida. By invoice number 10328 dated June 21, 1997, Rogers Fire Protection billed Canady Fire Equipment $140.00 for inspecting and servicing a Range Guard 2.5-gallon Fire Suppression System and other labor for other worked performed for Citrus Woods Property Owner's Association, Lakeland, Florida. By invoice number 00400 dated June 21, 1997, Canady Fire Equipment billed Citrus Woods Property Owner's Association $359.90 for services rendered by Rogers Fire Protection which apparently included Petitioner's referral fee. By check dated June 24, 1997, Canady Fire Equipment paid Rogers Fire Protection $245.00 which covered invoice numbers 10327 and 10328. By Fax dated May 15, 1997, Petitioner advised Rogers Fire Protection that Star Foods, Winter Haven, Florida; Chings Place, Lakeland, Florida; Touchdown Eddie's, Lakeland, Florida; Silver Ring Café, Lakeland, Florida; Dove's Nest, Lakeland, Florida; Brothers Bar-B-Q. Lakeland, Florida; and Dockside Lounge, Lakeland, Florida were systems to be serviced and invoiced to Canady Fire Equipment Co. Additionally, Petitioner advised Rogers that each of the above customers had been advised that Petitioner was sending someone to service their systems and that Rogers was to remind the customer that he was doing the work for Petitioner. Petitioner also advised Rogers that Petitioner would invoice the customers for the work. There is insufficient evidence to show that Petitioner supervised or trained employees or Richard Dawley on the servicing or repair of portable fire extinguishers during the time that he was not licensed by the Department, notwithstanding the testimony of Richard Dawley and Daniel Dawley to the contrary of which I find lacks credibility. There is insufficient evidence to show that Petitioner allowed the unlicensed employees of Canady Co to tag fire extinguishers or used another company to certify fire extinguishers, notwithstanding the testimony of Richard Dawley and Daniel Dawley to the contrary of which I find lacks credibility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Insurance enter a final order denying Petitioner's application for the issuance of Class 0701 and Class 0704 Fire Equipment Dealer license and Class 0901 and Class 0904 Fire Equipment permit. DONE AND ENTERED this 30th day of September, 1999, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1999. COPIES FURNISHED: Bill Nelson State Treasurer and Insurance Commissioner The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Daniel Y. Sumner, General Counsel Department of Insurance and Treasurer The Capitol, Lower Level 26 Tallahassee, Florida 32399-00300 Robert Paine, Esquire 914 South Florida Avenue Lakeland, Florida 33803 Mechele R. McBride, Esquire Department of Insurance and Treasurer 200 East Gaines Street Tallahassee, Florida 32399-0333
The Issue The issues are (1) whether engaging in air conditioning contracting regulated by the Florida Electrical Contractors Licensing Board pursuant to Section 489.500 et seq. Part II, Florida Statutes, constitutes exceeding the scope of one's license as an electrical contractor, (2) whether performing air conditioning contracting in the name of "Dixon's Heating and Air Conditioning" constitutes operating in a name other than the name his electrical contracting license is issued in, contrary to Subsection 489.533(1)(l), and (3) whether Respondent willfully violated the building codes by venting the heater improperly, failing to get a permit and get work inspected.
Findings Of Fact Notice of hearing was given to Respondent at Route 2, Box 595, Yulee, Florida 32097. Arnold Dixon is and has been at all times material to this case a registered electrical contractor, license number ER0004417. (Pet. Ex. 1 & 2) He has maintained his address of record as Route 2, Box 595, Yulee, Florida 32097. (T-Pg. 6) He has held such license since 1976. (Pet. Ex. 1 & 2) Arnold Dixon does not hold a license, a state registration or certification to engage in contracting as a heating or air conditioning contractor. (Pet. Ex. 4 & 6) Arnold Dixon does hold a Nassau County Occupational License as an electrical contractor and as a heating and air conditioning contractor. No check of local records was conducted to see if he had a local license as an air conditioning contractor. (T-Pg. 22) On or about June 1985, the Respondent's company, Dixon's Heating and Air Conditioning, contracted to install an air conditioning and heating unit at the home of John Williams for a contract price of $1985. (Pet. Ex. 5 and T-Pgs. 10 & 11) The work on this contract was done by David Everett, who negotiated the contract. The Respondent's company, Dixon's Heating and Air Conditioning, did not obtain a permit to perform the work at the Williams' residence. Inspections on the Williams' job were not called for by Dixon's Heating and Air Conditioning. Permits and inspections were required by the applicable building code. (T-Pgs. 25 & 26) Entering into a contract to perform air conditioning and heating work and performing such work is air conditioning contracting, which is regulated under Part I, Chapter 489, Florida Statutes. After installation by Dixon's Hearing and Air Conditioning, the Williams' heating system generated carbon monoxide when operating because there was insufficient fresh air being provided to the unit. Because the air intake was in a closet which restricted the air supply to the hot air handling system, the air handling unit sucked fumes from the exhaust side of the unit back through the unit's combustion chamber and circulated it through the house. The longer the unit ran, the more debris was trapped in the louvered door of the closet and the more combustion gases were pulled through the combustion chamber and distributed through the house by the air handling unit. (T-Pg. 34) According to the manufacturer's representative, the hot air return is required to be ducted into the unit. In this case, the return air was pulled from inside a closet which had louvered doors. No duct was used and this installation was not in accordance with the manufacturer's instructions. Although the unit as installed was unsafe and had the potential to kill, no evidence was received that failure to install the unit in accordance with the manufacturer's instructions was a violation of local building code. (T-Pgs. 34- 38) Dixon's Heating and Air Conditioning did not hold itself out to be and was not engaged in electrical contracting in fulfilling the Williams' contract. Dixon's Heating and Air Conditioning did hold itself out to be an air conditioning contractor and the work performed in fulfilling the Williams' contract was air conditioning contracting.
