The Issue Whether Proposed Rule 69O-186.003(1)(c) should be invalidated on the grounds that it is an invalid delegation of legislative authority as defined in Section 120.52(8), Florida Statutes (2005).1
Findings Of Fact Based on the record of this proceeding, the following findings of fact are made: Background The Commission was created by statute effective January 7, 2003. It is composed of the Governor, the Attorney General, the Chief Financial Officer, and the Commissioner of Agriculture. The Commission members "serve as agency head of the Financial Services Commission." § 20.121(3), Fla. Stat. The OIR is an "office" of the Commission and is "responsible for all activities concerning insurers and other risk bearing entities . . . ." The OIR is headed by a director, who is also known as the Commissioner of Insurance Regulation. § 20.121(3)(a)1., Fla. Stat. Pertinent to this proceeding, the legislature delineated the powers to be exercised by the Commission and the OIR, respectively, in Section 20.121(3), Florida Statutes, as follows: (c) Powers.--Commission members shall serve as the agency head for purposes of rulemaking under ss. 120.536-120.565 by the commission and all subunits of the commission. Each director is agency head for purposes of final agency action under chapter 120 for all areas within the regulatory authority delegated to the director's office.[3] Stipulated Facts (verbatim) The following stipulated facts are adopted as findings of fact for the purpose of this Final Order: On February 25, 2003, the Commission met, considered, and approved an agenda item involving the rulemaking process to be used by the Commission, the OIR, and the Office of Financial Regulation. The rulemaking procedure that is under consideration in this case involves the Commission's delegation to the OIR of the authority to engage in certain rulemaking activities. A true and correct copy of that agenda item, as approved by the Commission, and the relevant pages of the transcript of that meeting, are attached hereto as "Appendix A." On May 13, 2003, the Commission met and without objection approved the minutes of the Commission's February 25, 2003, meeting. The rulemaking process and delegation set forth in Appendix A permit the OIR to initiate rulemaking and to publish a proposed rule without the prior approval of the Commission, but require the Commission to approve the proposed rule prior to its filing for final adoption pursuant to Section 120.54(3)(e), Florida Statutes. Since its adoption in 2003, the Commission and the OIR have routinely employed the rulemaking process described in Appendix A and used this delegation of rulemaking authority in promulgating rules regulating the insurance industry. The Commission and the OIR employed the rulemaking process described in Appendix A and used this delegation of rulemaking authority in promulgating the proposed JLP rule that is the subject of the pending rule challenge. In May 2005, the OIR issued an order approving the JLP forms that had previously been submitted by First American Title Insurance Company. Shortly thereafter, on June 3, 2005, the OIR published a proposed rule in the Florida Administrative Weekly that would set an industry-wide premium rate for the newly approved JLP forms. Pursuant to the OIR's notice of proposed rulemaking, a public hearing was held on July 13, 2005, at which interested parties had the opportunity to speak and address the provisions of the proposed rule. The OIR's counsel specifically stated on the record during the hearing that the rulemaking process was ongoing and that the "final" hearing for the proposed rule would be subsequently noticed in the Florida Administrative Weekly and held before the Governor and Cabinet sitting as the Commission. On or about July 25, 2005, the Fund and the Association filed a petition with the Division of Administrative Hearings challenging the validity of the proposed JLP rule. Consistent with the Commission's routine practice, a notice of the "final" hearing before the Commission on the proposed JLP rule will be published in Part VI of the Florida Administrative Weekly ("Notices of Meetings, Workshops and Public Hearings"), and a copy of the notice will be mailed to all persons who notified the OIR of their interest in the proposed JLP rule, including the Fund and the Association. Statutory rulemaking procedures A "rule" is defined in Section 120.52(15), Florida Statutes, as "each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule." Section 120.54, Florida Statutes, sets forth the rulemaking procedures that are to be followed by all Florida agencies, including the Commission, see § 120.52(1)(b)4., Fla. Stat., and these procedures constitute the exclusive process for the promulgation and adoption of rules in Florida. See § 120.54(1)(a) and (3)(c)2., Fla. Stat. The rulemaking procedures mandated in Section 120.54, Florida Statutes, are detailed and comprehensive and contain two primary requirements: public notice at each step of the rule-development and rule-adoption process and an opportunity, throughout the rulemaking process, for the public and substantially affected persons to be heard with respect to any rule an agency proposes to adopt. See § 120.54(2) and (3), Fla. Stat. Generally, the first step in the rulemaking process is "rule development," as described in Section 120.54(2), Florida Statutes. The agency is required to give notice of its intent to develop proposed rules in the FAW "before providing notice of a proposed rule as required by paragraph (3)(a)," and the notice must "indicate the subject area to be addressed by rule development, provide a short, plain explanation of the purpose and effect of the proposed rule, cite the specific legal authority for the proposed rule, and include the preliminary text of the proposed rules, if available " § 120.54(2)(a), Fla. Stat. The agency may also hold public workshops during the rule development process, and it must hold a public workshop "if requested in writing by any affected person, unless the agency head explains in writing why a workshop is unnecessary." Id. Once the agency has developed a proposed rule, it must follow the adoption procedures set forth in Section 120.54(3), Florida Statutes. Foremost among these procedures is publication of notice of the agency's "intended action" in the FAW. This notice must be published by the agency "[p]rior to the adoption, amendment, or repeal of any rule other than an emergency rule" and only "upon approval of the agency head." § 120.54(3)(a)(1), Fla. Stat. The notice "must state the procedure for requesting a public hearing on the proposed rule" and must include a short, plain explanation of the purpose and effect of the proposed action; the full text of the proposed rule or amendment and a summary thereof; a reference to the specific rulemaking authority pursuant to which the rule is adopted; and a reference to the section or subsection of the Florida Statutes or the Laws of Florida being implemented, interpreted, or made specific. § 120.54(3)(a)1., Fla. Stat. If requested in writing, a public hearing must be conducted by the agency prior to adoption of a proposed rule in order to "give affected persons an opportunity to present evidence and argument on all issues under consideration." See § 120.54(3)(c)1., Fla. Stat. Once this public hearing has been held, the agency may modify or withdraw the proposed rule or may adopt the proposed rule by filing it with the Department of State. See § 120.54(3)(d) and (e), Fla. Stat. If the agency decides to modify the substance of a proposed rule after the final public hearing or after the time for requesting a public hearing has passed, any substantive change in the rule "must be supported by the record of public hearings held on the rule, must be in response to written material received on or before the date of the final public hearing, or must be in response to a proposed objection by the [Administrative Procedures] committee." § 120.54(3)(d)1., Fla. Stat. The agency must also, among other things, publish notice of the change and the reasons for the change in the FAW. Id. When the agency has determined that the proposed rule is ready for adoption, it must file with the Department of State "three certified copies of the rule it proposes to adopt, a summary of the rule, a summary of any hearings held on the rule, and a detailed written statement of the facts and circumstances justifying the rule. § 120.54(3)(e)1., Fla. Stat. The proposed rule must be filed for adoption "no less than 28 days nor more than 90 days after the notice required by paragraph (a) [of Section 120.54(3), Florida Statutes]," § 120.54(3)(e)2., Fla. Stat.; the proposed rule is adopted upon filing with the Department of State and becomes effective 20 days after it is filed. § 120.54(3)(e)6., Fla. Stat. In addition to the opportunities to be heard at public hearings specified in Section 120.54, Florida Statutes, persons who are substantially affected by a proposed rule may file a petition with the Division of Administrative Hearings requesting an administrative hearing to determine the validity of the proposed rule, pursuant to Section 120.56, Florida Statutes, which provides in pertinent part: GENERAL PROCEDURES FOR CHALLENGING THE VALIDITY OF A RULE OR A PROPOSED RULE.-- (a) Any person substantially affected by a rule or a proposed rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority. * * * (e) Hearings held under this section shall be de novo in nature. The standard of proof shall be the preponderance of the evidence. Hearings shall be conducted in the same manner as provided by ss. 120.569 and 120.57, except that the administrative law judge's order shall be final agency action. The petitioner and the agency whose rule is challenged shall be adverse parties. . . . CHALLENGING PROPOSED RULES; SPECIAL PROVISIONS.-- Any substantially affected person may seek an administrative determination of the invalidity of any proposed rule by filing a petition seeking such a determination with the division [of Administrative Hearings] within 21 days after the date of publication of the notice required by s. 120.54(3)(a), within 10 days after the final public hearing is held on the proposed rule as provided by s. 120.54(3)(c), within 20 days after the preparation of a statement of estimated regulatory costs required pursuant to s. 120.541, if applicable, or within 20 days after the date of publication of the notice required by s. 120.54(3)(d). The petition shall state with particularity the objections to the proposed rule and the reasons that the proposed rule is an invalid exercise of delegated legislative authority. The petitioner has the burden of going forward. The agency then has the burden to prove by a preponderance of the evidence that the proposed rule is not an invalid exercise of delegated legislative authority as to the objections raised. Any person who is substantially affected by a change in the proposed rule may seek a determination of the validity of such change. Any person not substantially affected by the proposed rule as initially noticed, but who is substantially affected by the rule as a result of a change, may challenge any provision of the rule and is not limited to challenging the change to the proposed rule. * * * (c) When any substantially affected person seeks determination of the invalidity of a proposed rule pursuant to this section, the proposed rule is not presumed to be valid or invalid.
The Issue Whether Respondent violated Section 475.25(1)(d)1, Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact At all times material to this proceeding, Respondent, Manuel Angel Huerta (Huerta), was a real estate broker licensed by the Petitioner, the Department of Business and Professional Regulation, Division of Real Estate. He was the broker/officer for M A Huerta & Company, a broker corporation located in Miami, Florida. M A Huerta & Company had listed a house for sale on Granda Boulevard, Coral Gables, Florida. The house was offered through multiple listing, and the advertised commission was three percent of the selling price. Pedro Garay (Garay), a real estate broker with another company, showed the house to Andrew Labbie, a prospective buyer. Mr. Labbie indicated that he would make an offer for the house through his attorney. Garay was to pick up the offer when it was put together. Garay called Huerta to schedule a meeting with the sellers, but Huerta told him that he did not want Garay to present the offer to the sellers. Huerta called Garay the day after the offer was presented to the sellers and told Garay that the house was being withdrawn from the market. The house was later sold to Mr. Labbie on November 8, 1993. Garay learned of the sale and called Huerta, who stated that the sale had been between the sellers and buyer and that he had not been involved in the transaction. Huerta said that his office had received a real estate commission in the mail for $16,000 and that he was surprised that the commission had been sent to him. Garay demanded part of the commission. Garay was a member of the Miami Board of Realtors, which had a procedure to arbitrate disputes among realtors. Garay requested that the dispute over the commission be arbitrated. Garay and Huerta participated in the arbitration and were represented by counsel at the arbitration. On April 18, 1994, the Award of Arbitrators was entered, awarding $16,000 to Garay. The award was to be paid within 30 days. Garay demanded that Huerta pay the $16,000, but Huerta refused. Garay retained counsel and went to circuit court to enforce the arbitration. On January 17, 1996, a final judgement was entered enforcing the arbitration award and awarding $16,800 to Garay. After the final judgement was entered, Huerta still did not pay Garay. Counsel for Garay attempted to collect the judgment. In October, 1996, Garay filed a complaint with Petitioner based on Huerta's failure to pay the commission. Petitioner assigned one of its investigators, Kenneth Rehm, to investigate the complaint. Mr. Rehm interviewed Huerta, who stated that he was not going to pay Garay because Garay did not deserve it and he did not care if the court had ordered him to pay. Apparently Huerta changed his mind about paying because on February 10, 1998, Garay and Huerta entered into a Stipulation Regarding Execution. Huerta agreed to pay the judgment amount with interest in monthly installments of $1,056.72 for 24 months beginning February 17, 1998. Huerta began making payments in February 1998 and continued to do so through December 1998. Huerta sent Garay a check for the January 1999 payment, but the check was returned for insufficient funds. As of the date of the final hearing no further payments had been made.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Manuel Angel Huerta violated Section 475.25(1)(d)1, Florida Statutes, imposing an administrative fine of $500, placing Respondent on probation for two years, and suspending Respondent's license during the probation period until such time Respondent pays Pedro Garay the portion of the judgment still outstanding. DONE AND ENTERED this 9th day of June, 1999, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 9th day of June, 1999. COPIES FURNISHED: Herbert S. Fecker, Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 William Woodyard, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Geoffrey Kirk, Esquire Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Robert Flavell, Esquire First Union Financial Center 200 South Biscayne Boulevard Suite 4600 Miami, Florida 33131-2310
Findings Of Fact Danny Michael Shipp is a black male who was employed at the Jacksonville, Florida, aluminum can plant of Respondent Kaiser Aluminum and Chemical Corporation. This period of employment was from October 29, 1978 until November 19, 1978. Mr. Shipp was hired as an equipment tender. In that position his duties included loading pallets, maintaining six paint spray guns and generally checking on equipment to ensure that is was functioning properly in the assembly of aluminum cans. His job required no special skills or qualifications. At the tame Mr. Shipp was hired, Kaiser was adding 70 to 80 people to its working force because it was starting up a new production shift. There were approximately 500 applicants and around 300 people were interviewed by plant management. A background check was made by Pinkerton's of Florida, Inc. on the newly-hired personnel including Mr. Shipp and another employee K.M. 1/. Of the 70 to 80 people hired, only K.M., who is white, and Mr. Shipp were reported to have a criminal record. Mr. Shipp's Pinkerton's report indicated: 7-2-77 Case number 77-2789 Possession of Contra. Substance (more than 5 grams) WHASJ Guilty 19 Month Probation. Released on $751.00 Bond. 3-26-70 Case number 701455 Assault and battery, case discharged 4-7-70 Case number 70 1454 Malicious Mischief, sugar in gas tank of Gail Shipp. K.M.'s report stated: 4-30-76 Case number 21013 possession Narcotics implements Nol. Press. Possession controlled substance Marijuana, over 5 gr. $250.00 Fine 7-31-78 Case number 3105 Sale of controlled substance, 80 days Duval County jail, 1 year Probation. There were other charges which were later shown as misdemeanor's. (sic.) On the job application form filled in by Mr. Shipp, Kaiser asked if he had been convicted of a felony within the last seven years. Mr. Shipp answered by checking a box "no." After several weeks of employment, Mr. Shipp on November 19, 1978, was invited to a conference with Mr. Rice, the Kaiser administrative manager; the plant manager; and the plant superintendent. This was still during his thirty- day probation period when he could be fired without cause and without the right to grieve a discharge. He was told by Mr. Rice that he was being terminated due to the Pinkerton's report. When Mr. Shipp asked for a specific reason for his discharge, Mr. Rice responded: (From Hearing Transcript p. 142) "He said, Well what are you talking about specifically?' And I said, 'Well, based on the evidence, the background check, that we no longer want to keep you as an employee. He said, 'Well, what specifically are you talking about?' And I said, 'Well,' I said, 'You currently are on probation?' He said, 'Yes, sir.' And I said, 'Well, let's just let it go at that, and I'm not going to talk about it anymore.' And that's basically what we did. And then Mr. Carlson walked back to the lockerroom with Mr. Shipp and we all walked out to the front, shook hands, and that was it. On October 21, 1977, Mr. Shipp was placed on probation, adjudication withheld for the felony possession of more than 5 grams of marijuana. His probation successfully expired on April 21, 1979, subsequent to his discharge at Kaiser. On his application with Kaiser, gave "layoff" as the reason for leaving a former employer, Jacksonville Shipyard. In fact, as was brought out during his cross examination, he was terminated there due to being absent from work. Kaiser's primary reason for discharging Mr. Shipp was because of his arrest record. At the time of his termination, Mr. Rice believed after consulting with Kaiser counsel, that Mr. Shipp had not been convicted of any felonies. He further believed that for the purpose of terminating an employee, K. M.'s report was the equivalent of Mr. Shipp's. K.M. who was also in his probationary period as an equipment tender was dismissed by Kaiser because of his arrest record. Kaiser has and had no custom, policy (written or otherwise) or practice of terminating an employee for his arrest record, conviction or criminal probation status. The decision to fire Mr. Shipp and K. M. was made spontaneously by Mr. Rice, Mr. Gene Miller, the plant manager, and Mr. Curtis Thompson, who collectively are the top management at the Jacksonville plant. There is no proof that anyone has ever been fired either before or after the termination of Mr. Shipp and K.M. because of their arrest record, convictions or criminal probation status. After his discharge, Mr. Shipp spoke with his probation counselor, Mrs. Susan Karl, about his discharge. She wrote a letter to Mr. Kaiser on November 28, 1978, in which she explained Mr. Shipp's legal status and gave her opinion about his currently being a law-abiding citizen. She asked that Mr. Shipp be considered for reemployment. He was not rehired. A copy of the Notice of Failure of Conciliation in Mr. Shipp's case was sent to him on March 10, 1980. He filed his Petition for Relief with the Commission on April 8, 1980. For reasons not appearing in the record, a Second Notice of Failure of Conciliation was sent to Mr. Shipp on March 28, 1980. During his employment at Kaiser, Mr. Shipp received three weekly evaluations as a probationary employee. For the first week his evaluator rated him as "fair" and commented that he "overreacted and needs to study more for the test." During the second week he received a "good" with the note that he "Works good on line, picks up on job fast." Finally, on November 17, 1980, he was given a "good" rating with the comment that "Danny's performance has been consistently good overall (He was late once)." With respect to Mr. Shipp's complaint charging Kaiser with race discrimination the Commission by its Executive Director has made a determination of reasonable cause to believe that an unlawful employment practice occurred.
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 filed by Danny Michael Shipp and supported by the Commission. DONE and RECOMMENDED this 8th day of January, 1981, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
The Issue The issue for determination is whether Respondent engaged in conduct unbecoming a public servant in violation of Chapter 89-404, Section 8, Laws of Florida, as amended by Chapter 90-395, Section 8, Laws of Florida (the "Civil Service Act") and Rules 3-1.1 and 3-1.3 of the Pinellas County Sheriff's Office ("Rules 3-1.1 and 3-1.3").
Findings Of Fact Petitioner is a constitutional officer of the State of Florida who is responsible for providing law enforcement and correctional services within Pinellas County, Florida. At all times pertinent to this case, Respondent was employed by Petitioner. On September 6, 1999, Respondent responded as backup deputy sheriff to the apartment of Mr. Cornell Cunningham and Ms. Karen Stewart. The purpose of the response was to arrest Mr. Cunningham on a civil warrant for failure to pay child support. Deputy Ward Snyder was the primary deputy on the call. Deputy Snyder is also employed by Respondent. It was raining outside when the two deputies arrived at Mr. Cunningham's residence. Mr. Cunningham invited both deputies inside. Once inside, Deputy Snyder talked to Mr. Cunningham and advised him of the civil arrest warrant. Deputy Snyder also contacted the Sheriff's Office to confirm that the warrant was still valid. While Deputy Snyder was talking to Mr. Cunningham and the Sheriff's Office, Respondent conducted a security search of the residence to confirm that no one else was present in Mr. Cunningham's apartment. By the time Respondent completed the security search, Deputy Snyder had finished his telephone call. Respondent concluded his search of the residence in the kitchen. While standing in the kitchen, Respondent stood adjacent to and viewed a countertop that separated the kitchen from the dining area. The kitchen and counter top were well lit with florescent lighting. Respondent observed a marijuana seed on the countertop. Respondent picked the seed up from the countertop and held it up for Deputy Snyder to see. Respondent said, "We got a problem here." Deputy Snyder and Mr. Cunningham were standing in the dining room adjacent to the countertop that separated the kitchen from the dining room. Deputy Snyder had a clear and unobstructed view of the countertop. A Nike shoebox was on the countertop inside the kitchen. The shoebox contained a hinged top that opened from one side and also contained circular holes in the sides. Respondent, Deputy Snyder, and Mr. Cunningham were within two or three feet of the shoebox. The top on the shoebox was closed. There was no other access into the shoebox other than through the top of the shoebox. Respondent removed his flashlight from his belt, turned it on, shined the light into the holes in the side of the shoebox, and observed the contents of the shoebox. Respondent then opened the shoebox and looked inside the shoebox. Respondent observed a small bag of marijuana and a small scale inside the box. Respondent then told Deputy Snyder that there was "a problem." Respondent then showed Deputy Snyder the contents of the box. Mr. Cunningham denied ownership of the shoebox as well as any knowledge of its contents. The deputies arrested Mr. Cunningham based on the civil warrant for failure to pay child support. Mr. Cunningham protested his arrest and asserted that the matter had been taken care of. However, he did not physically resist, did not threaten either deputy, and did not display any intent to flee. Neither deputy charged or arrested Mr. Cunningham at the time with any offense related to the marijuana or the scale. Deputy Snyder transported Mr. Cunningham to the Pinellas County Jail on the original civil warrant. While Deputy Snyder was transporting Mr. Cunningham to jail, Respondent contacted Deputy Snyder by radio. Respondent told Deputy Snyder that Respondent was going to charge Ms. Stewart with criminal offenses related to the possession of marijuana and the scale. Mr. Cunningham overheard the radio conversation between the two deputies and stated that he would claim ownership of the marijuana and scale. Upon hearing this, Deputy Snyder advised Mr. Cunningham of his rights. Mr. Cunningham then denied ownership of the contraband. While Deputy Snyder transported Mr. Cunningham to jail, Respondent remained at Mr. Cunningham's residence and awaited the arrival of Ms. Stewart. With the consent of Ms. Stewart, Respondent conducted a further search of the residence. The further search revealed additional marijuana in a drawer located in the kitchen where the shoebox was located. Respondent combined the marijuana found in the drawer with the seed on the countertop and the marijuana previously found in the shoebox. Respondent then seized the contraband and proceeded to the jail where he charged Mr. Cunningham with felony possession of marijuana and misdemeanor possession of paraphernalia. Respondent prepared an arrest report stating that Respondent had observed marijuana "scattered" on top of the kitchen counter. Respondent also stated in the report that, "Laying next to the scattered marijuana in a partially opened Nike shoebox, was a clear plastic baggie filled with marijuana and also laying next to that baggie was a silver hand-held weight scale." Respondent’s supervisor, Sergeant Robert Helmick, approved the report on the same day that Respondent prepared the report. On the following day, September 7, 1999, Deputy Snyder prepared his supplemental report of the events occurring at the Cunningham residence. In his report, Deputy Snyder stated that Respondent "pointed out a seed on the kitchen countertop. There was a Nike shoebox also on the countertop. Deputy Broome used his flashlight to illuminate the inside of the box by shining the light through a hole in the box. Deputy Broome then opened the box and displayed a bag of what appeared to be marijuana and a small balance scale." Deputy Snyder’s report also recited the events occurring in his vehicle as he transported Mr. Cunningham to jail. Sergeant Helmick, who was off duty that day, did not review or approve Deputy Snyder's report. Rather, Corporal Larry Weiland approved Deputy Snyder's report. Sergeant Helmick did not see Deputy Snyder’s report until much later. Three days later, on September 10, 1999, Respondent participated in a pre-filing investigation conducted at the office of the State Attorney for Pinellas County. Assistant State Attorney Patricia Cope conducted the investigation. As part of the investigation, Ms. Cope took the sworn testimony of Respondent. In his testimony to Ms. Cope, Respondent repeated the same version of events found in his report. Respondent testified to Ms. Cope that he had observed marijuana scattered on the countertop and that the top of the shoebox on the countertop was ajar. Respondent further testified that he was able to see the marijuana and the scale inside the shoebox through the space created by the partially open top of the shoebox. Ms. Cope specifically asked Respondent whether the shoebox was open or closed in order to confirm that Respondent's search was within the scope of the plain view doctrine. Respondent testified that the shoebox was open. Ms. Cope did not speak with Deputy Snyder or review his report. As a result of the investigation and the information provided by Respondent, Mr. Cunningham was charged with felony possession of marijuana and misdemeanor possession of paraphernalia. Sometime after Ms. Cope's conversation with Respondent, Deputy Snyder spoke with Sergeant Helmick concerning the discrepancies between the two reports filed by Deputy Snyder and Respondent. Sergeant Helmick advised Deputy Snyder to allow the discrepancies to be worked out by the state attorney’s office and to allow the criminal process to run its course. Sergeant Helmick did not report the discrepancies to the state attorney’s office, to his supervisors, or to anyone else. At the time, Sergeant Helmick did not initiate any complaint or investigation against either Respondent or Deputy Snyder. In June 2000, depositions were set in the criminal prosecution of Mr. Cunningham. Ms. Cope contacted Deputy Snyder to inquire about the possibility of having the shoebox tested for fingerprints. At that time, Deputy Snyder directed Ms. Cope's attention to the discrepancies in the respective reports prepared by Deputy Snyder and Respondent. Ms. Cope reviewed the reports and the discrepancies between the two reports. Ms. Cope concluded that the discrepancies would create a problem in the criminal prosecution of Mr. Cunningham. The discrepancies between the accounts by Respondent and Deputy Snyder created the possibility that Respondent had conducted an illegal search of the shoebox that would render the evidence seized as a part of that search inadmissible. The plain view doctrine applicable to the law of search and seizure would allow the search of the shoebox if the top had been ajar and the contents of the shoebox could be observed. However, the search would not be lawful if the shoebox top was closed and observation of the contents could have only been accomplished by shining a light through the holes in the box. The differing statements in the reports of the two deputies placed the credibility of Respondent in question. No independent evidence was available, including the testimony of Mr. Cunningham, from which it could be ascertained which deputy was being truthful. The State Attorney’s Office deemed it unfair to the defendant, the court, and the witnesses to proceed on a case where the prosecution could not be certain if the evidence was properly seized. Ms. Cope referred the matter to Mr. Robert Lewis, her supervisor. Mr. Lewis reviewed the reports of the two deputies and agreed with Ms. Cope's assessment that the discrepancies precluded any further criminal prosecution of Mr. Cunningham. Ms. Cope cancelled the depositions set in the Cunningham case on the grounds that Respondent had been accused of lying and that the two investigating police officers recalled two inconsistent views of the events that occurred at Mr. Cunningham's residence. Mr. Lewis then instructed Ms. Cope to enter a nolle prosequi of the charges against Mr. Cunningham. After the State Attorney's Office filed the nolle prosequi, the State Attorney’s Office referred the matter to the Sheriff's Office. The matter was brought to the attention of Major Samuel F. Lynn, the commander of the road patrol division. Major Lynn prepared an administrative inquiry form that disclosed the allegations communicated to him by the State Attorney’s Office. Thereafter, the Administrative Investigation Division of the Sheriff’s Office ("AID") initiated an investigation. During the investigation, Respondent and Deputy Snyder each provided a sworn statement to the investigators. The investigators also obtained a sworn statement from Ms. Cope and a letter from Mr. Lewis. The investigators were unable to locate Mr. Cunningham and therefore did not interview him or ascertain his account of the matters at issue in this proceeding. During the investigation, Respondent had the opportunity to offer additional information or comments. Respondent’s attorney placed a statement on the record at the conclusion of Respondent’s sworn statement. Respondent did not offer any witnesses on his behalf or provide the investigators with any information pertaining to the location of Mr. Cunningham. At the conclusion of the investigation, the Board conducted a hearing concerning the charges against Respondent. The charges were: Violation of Pinellas County Sheriff’s Office Civil Service Act, Laws of Florida, 89-404, as amended by Laws of Florida, 90-395, Section 6, subsection 4: violations of the provisions of law or the rules, regulations, and operating procedures of the office of the Sheriff; Violation of Rule and Regulation of the Pinellas County Sheriff’s Office, 3-1.1 (Level Five violation), 006, relating to untruthfulness by being untruthful in relation to the seizure of narcotics at the Cunningham residence. Violation of Rule and Regulation of the Pinellas County Sheriff’s Office, 3-1.3 (Level Three violation), 060, relating to standards of conduct by bringing discredit upon the Pinellas County Sheriff's Office by being untruthful and by inaccurately documenting facts and circumstances submitted to the State Attorney’s Office. Respondent was present at the hearing, had an opportunity to offer a statement, responded to questions, and presented additional evidence. At the conclusion of the hearing, the Board determined that Respondent violated the Civil Service Act and Rules 3-1.1 and 3-1.3. The violations resulted in a cumulative point total of 65 points under the progressive discipline policy of the Sheriff's office. The 65 points were added to 23 discipline points that the Sheriff's Office had previously assessed against Respondent for a total of 88 progressive discipline points. When a deputy has 88 progressive discipline points, Petitioner's progressive discipline policy authorizes discipline that ranges from a ten-day suspension to termination. Petitioner terminated Respondent's employment. Respondent violated relevant portions of the Civil Service Act and Rule 3-1.1 by being untruthful in relation to the seizure of narcotics at the Cunningham residence. Respondent conducted an improper search at the residence of Mr. Cunningham. Respondent then charged Mr. Cunningham with a felony and misdemeanor offense related to the fruits of that search. Respondent then prepared a false report relating the events occurring at Mr. Cunningham's residence and then provided false testimony under oath to the State Attorney’s Office. Respondent violated relevant portions of the Civil Service Act Rule 3-1.3 and by bringing discredit upon the Sheriff's Office. Respondent was untruthful by inaccurately documenting facts and circumstances submitted to the State Attorney’s Office. Respondent's conduct discredited the Sheriff's Office by encouraging mistrust of law enforcement officers and by creating the appearance that persons in law enforcement engage in improper tactics to effectuate an arrest. Respondent's untruthfulness resulted in the improper arrest and prosecution of an individual. Truthfulness on the part of a deputy sheriff is an important part of the job. It is necessary in order to maintain discipline and to preserve the integrity of the agency and the functions performed. Respondent's untruthfulness violated those essential elements and exposed the Sheriff's Office to the potential for civil liability for an improper arrest. Although much of Respondent's testimony was credible and persuasive, there were significant parts of Respondent's testimony that were neither credible nor persuasive. The flawed part of Respondent's testimony was inconsistent with prior statements by Respondent and with the testimony of Deputy Snyder. For the most part, no one inconsistency in Respondent's testimony, standing alone, would be sufficient to adversely affect Respondent's credibility. However, the cumulative effect of all of the inconsistencies deprives Respondent's testimony of credibility and persuasiveness concerning material issues in this case. In an earlier sworn statement to AID, Respondent testified that he found marijuana on the countertop in Mr. Cunningham's apartment, showed the seed to Deputy Snyder, and then looked inside the shoebox. At the final hearing, however, Respondent testified that he found the marijuana seed on the countertop, saw the marijuana in the shoebox, and then walked over to Deputy Snyder to show him the marijuana seed. Respondent further testified at the final hearing that he could not recall whether he picked up the seed first or saw the marijuana in the shoebox first. Respondent made inconsistent statements regarding the location of Deputy Snyder and Mr. Cunningham at the time that Respondent found the seed and searched the shoebox. At the final hearing, Respondent insisted that Deputy Snyder and Mr. Cunningham never got within ten to fourteen feet of the shoebox. In an earlier sworn statement to AID, however, Respondent indicated that Deputy Snyder and Mr. Cunningham were two to three feet from the shoebox. Respondent made inconsistent statements regarding the position of the top of the shoebox at the time that Respondent found the seed and searched the shoebox. Respondent testified at final hearing that the shoebox was open between 1.5 and 2.0 inches. In a sworn statement to AID, however, Respondent testified that the top of the shoebox was open less than one inch. Respondent made inconsistent statements regarding the manner in which he shined light from his flashlight into the shoebox. At final hearing, Respondent testified that he shined light into the holes on the side of the shoebox. In an earlier deposition, however, Respondent testified that he shined the light in the top of the shoebox where the top was open and could not remember if the shoebox had holes. Respondent made inconsistent statements regarding the location of the marijuana on the countertop. At the final hearing, Respondent indicated that the marijuana was spread out into the center of the dark countertop where there was a white paint spot, as shown in one of the photographs in evidence. However, the drawing provided during the course of Respondent's earlier deposition did not indicate that marijuana was spread into the center of the dark countertop where the white paint spot was located. The testimony of Respondent differed from that of Deputy Snyder regarding the location of the shoebox. Respondent placed the shoebox close to the wall where it may have been more difficult for Deputy Snyder to view the box. Deputy Snyder placed the shoebox in the middle of the countertop where it was more easily seen. The testimony of Respondent differed from that of Deputy Snyder regarding the vantage points of Respondent and Deputy Snyder. Respondent placed Deputy Snyder ten to fourteen feet from the shoebox and stated that Deputy Snyder could not see the shoebox or the marijuana from that vantage point. Deputy Snyder placed himself within two to three feet of the shoebox and stated that he had an unobstructed and clear view of the countertop and the shoebox. Deputy Snyder's testimony was consistent with an earlier sworn statement to AID by Respondent indicating that Deputy Snyder and Mr. Cunningham were two to three feet from the shoebox. See Finding of Fact 43. The testimony of Respondent differed from that of Deputy Snyder regarding the amount of marijuana on the countertop. Respondent stated there was a considerable amount or marijuana on the countertop. Deputy Snyder stated there was no marijuana on the countertop except the seed displayed to him by Respondent. The testimony of Respondent differed from that of Deputy Snyder regarding the actions taken by Respondent in looking into the shoebox. Respondent testified that he identified the debris, saw the marijuana in the shoebox, showed the seed to Snyder, and then looked into the shoebox. Deputy Snyder testified that Respondent showed him a seed, shined his light into a hole in the shoebox, and then opened the shoebox. The testimony of Respondent differed from that of Deputy Snyder regarding the actions of Respondent after discovering the marijuana and the shoebox. Respondent claimed he walked from the kitchen into the living and dining area to display the seed to Deputy Snyder. Deputy Snyder testified that Respondent remained in the kitchen and displayed the seed across the countertop. The testimony of Respondent differed from that of Deputy Snyder regarding the issue of whether Respondent had his flashlight out before he looked into the shoebox or removed it in order to look inside the shoebox. Respondent testified he had the flashlight out the entire time he was in the residence. Deputy Snyder stated that Respondent removed the flashlight from his belt in order to look into the shoebox. The testimony of Respondent differed from that of Deputy Snyder regarding the issue of whether Deputy Snyder was on the telephone when Respondent observed the marijuana and shoebox and pointed these items out to Deputy Snyder. Respondent stated that Deputy Snyder was on the telephone when these events occurred. Deputy Snyder testified that he had completed his call by the time Respondent arrived in the kitchen. The testimony of Respondent differed from that of Deputy Snyder regarding the ability of Deputy Snyder and Mr. Cunningham to be in the dining room and close to the countertop. Respondent claimed that the dining room table and chairs did not allow sufficient room for Deputy Snyder and Mr. Cunningham to be within two or three feet of the countertop in the dining room. Deputy Snyder and other testimony by Respondent concerning the dimensions of the dining room and table and chairs indicated there was sufficient room for Deputy Snyder and Mr. Cunningham to stand in the dining room within two or three feet of the shoebox. The testimony of Respondent differed from that of Deputy Snyder regarding Respondent's testimony that he searched the shoebox, in part, because he was concerned over the existence of booby traps in the shoebox. Deputy Snyder saw no such concern indicated in Respondent’s actions. Respondent's testimony that he was concerned the shoebox contained booby traps is neither credible nor persuasive. Respondent testified that the room was sufficiently well lit to allow him to clearly see the marijuana inside the partially open shoebox without shining his flashlight into the shoebox before opening it. Respondent attempted to explain why he used his flashlight in a well-lit kitchen by expressing concern that the shoebox may have contained booby traps. Regarding the discrepancies between the testimony of Respondent and Deputy Snyder, there is no apparent motive for Deputy Snyder to fabricate his version of the events or to attempt to create any form of disciplinary problem for Respondent. Respondent had no prior experience with Deputy Snyder that would create a reason for Deputy Snyder to be untruthful. Respondent suggested that Deputy Snyder fabricated his report and testimony in exchange for a transfer to a position as a detective. That testimony is neither credible nor persuasive. Deputy Snyder’s transfer occurred months before any concerns arose pertaining to Respondent. There is no evidence that Deputy Snyder played any role in the initiation of the investigation. Deputy Snyder's initial disclosure to his supervisor did not result in any investigation or action against Respondent. The transfer to the detective unit was a lateral transfer without any increase in rank, pay, or benefits. The evaluation system in effect at the Sheriff's Office provided a specific component for self-initiated arrests. The arrest of Mr. Cunningham in this case falls into the category of self-initiated arrests and could have resulted in a positive evaluation component for Respondent, who already had 23 disciplinary points against him. Respondent has a prior disciplinary history. In June 1999, Respondent received a one-day suspension and five disciplinary points for violating rules that are not relevant to this proceeding. In January 2000, Respondent received a three- day suspension and 15 disciplinary points for violating rules that are not relevant to this proceeding. The two violations resulted in 20 progressive points with a range of discipline from reprimand to a three-day suspension. In August 2000, Respondent received a seven-day suspension for violating rules that are not relevant to this proceeding. The violations consisted of three level three violations resulting in the assignment of 40 disciplinary points. The 40 points were combined with ten "modified points" from the prior violations and resulted in a total of 50 progressive points with a range of discipline from a five-day suspension to termination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a Final Order finding Respondent guilty of conduct unbecoming a public servant and terminating Respondent's employment. DONE AND ENTERED this 1st day of May, 2001, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of May, 2001. COPIES FURNISHED: Richard C. Millian, Esquire Joseph A. Corsmeier, Esquire Tew, Zinober, & Barnes, L.L.P. 2655 McCormick Drive, Prestige Professional Park Clearwater, Florida 33759 B. Norris Rickey, Esquire Pinellas County Attorney's Office 315 Court Street Clearwater, Florida 34756 Keith C. Tischler, Esquire Powers, Quaschnick, et al. 1669 Mahan Center Boulevard Post Office Box 12186 Tallahassee, Florida 32317-2186
Findings Of Fact Petitioner is a Florida corporation with its business located in Tampa, Florida. Respondent is a stated agency charged with responsibility for investigating and resolving unlawful employment practices. Its duties and powers are enumerated in Chapter 23, Florida Statutes, the Human Rights Act of 1977. 2. Respondent has adopted Rules 9D-8.06, 8.22(2), 9.03(4), and 9.03(7), Florida Administrative Code. These rules authorize Respondent to issue subpoenas, serve them by registered mail, and enforce them through judicial proceedings. The rules specifically authorize issuance, service, and enforcement of subpoenas in connection with investigations of unfair employment practices. They provide that inferences may be drawn from the failure of a person to provide requested information. . . Linda Parties filed a complaint against Petitioner with the Respondent, alleging sex discrimination by Petitioner. Based upon the complaint, Respondent initiated an investigation. It formally requested information from Petitioner on July 13, 1979. On April 7, 1981, Respondent issued a subpoena in connection with the investigation and served it by registered mail in accordance with its rules. Petitioner objected to the subpoena and has not provided the requested information. Respondent has sought to enforce the subpoena through a "Petition for Enforcement" filed in Circuit Court in Leon County, Florida. Circuit Judge Donald O. Hartwell has entered an Order which provides: This cause came to be heard on the Motion To Dismiss Petition For Enforcement of Investigatory Subpoena filed by the Human Development Center, Respondent. Both parties were represented by Counsel who presented argument to the court. The court being otherwise fully advised enters this its order; therefor it is, Ordered that the service of an investigatory subpoena served by certified mail pursuant to Rule 9D-8.22, Florida Administrative Code is valid service. Such service is not required to be served in accordance with Florida Statutes 48.031 or Rule 1.410(c), Florida Rules of Civil Procedure. It is further, Ordered that the Motion To Dismiss Petition For Enforcement of Investigatory Subpoena is denied. It is further, Ordered that further proceedings to enforce the investigatory subpoena in this cause are stayed pending the ruling of Hearing Officer G. Steven Pfeiffer in Case No. 81-2101RX now set for hearing on October 21, 1981. Respondent has made no determination of reasonable cause to believe that Petitioner has engaged in any unlawful employment practice.
The Issue Whether Keith Jackson, Ph.D. (‘Petitioner’) should be required to pay FAMU’s claimed overpayment of salary as calculated in the amount of $29,141.57, for the pay periods between July 11, 2008 and December 12, 2008.
Findings Of Fact 1, On or about July 1, 2005, Petitioner executed an employment contract with FAMU to serve as Vice President for Research. The contract executed by Petitioner provides that Petitioner “is subject to the Constitution and Laws of the State of Florida and the United States and the rules, policies, guidelines and procedures of the Board of Governors and the University as now existing or hereafter promulgated.” 2. On July 11, 2008, Petitioner submitted to the University a letter advising that he was resigning from his administrative position with the University as the Vice President for Research. 3. Petitioner's letter of resignation was accepted by the University effective July 11, 2008. 4. Tenure as a faculty member was granted to Petitioner by the University on May 25, 2007. 12
Conclusions This matter is now before Florida Agricultural and Mechanical University Board of Trustees (“FAMU,” “Respondent,” or the “University”) for final agency action.
The Issue Whether the Statewide Nominating Commission for Judges of Compensation Claims’ “Guidelines of Operation of the Statewide Judicial Nominating Commission” constitutes an unadopted rule, as defined in section 120.52(2), Florida Statutes, in violation of section 120.54(1), Florida Statutes. Filed January 10, 2018 4:52 PM Division of Administrative Hearings
Findings Of Fact 1. Judges of Compensation Claims are appointed by the Governor and charged with conducting administrative proceedings on petitions for benefits filed under Florida’s “Workers’ Compensation Law,” Chapter 440, Florida Statutes. See § 440.45(2) (a) & (c), Fla. Stat.; Fla. Admin. Code R. 600Q-6.105. These Judges are appointed for four-year terms, with the Governor having the discretion —- as qualified below - to reappoint a sitting Judge for a subsequent term. § 440.45(2) (c), Fla. Stat. The statute does not limit the number of times the Governor may reappoint a Judge of Compensation Claims, and does not prohibit the Governor from appointing a qualified person to serve non-consecutive terms as a Judge. 2. The Statewide Nominating Commission for Judges of Compensation Claims (“Commission”) is charged with making a threshold eligibility determination as part of the reappointment process. Prior to the expiration of a judge’s term of office, the statewide nominating commission shall review the judge's conduct and determine whether the judge’s performance is satisfactory. Effective July 1, 2002, in determining whether a judge’s performance is satisfactory, the commission shall consider the extent to which the judge has met the requirements of this chapter, including, but not limited to, the requirements of ss.440.25(1) and (4) (a)-(e), 440.34(2), and 440.442. If the judge’s performance is deemed satisfactory, the commission shall report its finding to the Governor no later than 6 months prior to the expiration of the judge’s term of office. The Governor shall review the commission’s report and may reappoint the judge for an additional 4-year term. If the Governor does not reappoint the judge, the Governor shall inform the commission. The judge shall remain in office until the Governor has appointed a successor judge in accordance with paragraphs (a) and (ob). If a vacancy occurs during a judge’s unexpired term, the statewide nominating commission does not find the judge’s performance is satisfactory, or the Governor does not reappoint the judge, the Governor shall appoint a successor judge for a term of 4 years in accordance with paragraph (b). § 440.45(2)(c), Fla. Stat. (emphasis added). Without a reported determination of “satisfactory” from the Commission, the Governor is required to appoint a successor Judge. In such an instance, the Governor has no legal authority to reappoint the incumbent. 3. Other than reporting on whether a sitting Judge’s performance has been satisfactory, the Commission is not statutorily authorized to make a recommendation on reappointment. 4. The Office of the Judges of Compensation Claims (“Office”) is a unit within the Department of Management Services comprised of all Judges of Compensation Claims and headed by a Deputy Judge of Compensation Claims. § 440.45(1) (a), Fla. Stat. The Office has the duty to adopt rules, including those for the Commission to follow in reviewing the performance of incumbent Judges.} The Office of the Judges of Compensation Claims shall adopt rules to carry out the purposes of this section. Such rules must include procedural rules applicable to workers’ compensation claim resolution, including rules requiring electronic filing and service where deemed appropriate by the Deputy Chief Judge, and uniform criteria for measuring the performance of the office, including, but not limited to, the number of cases assigned and resolved, the age of pending and resolved cases, timeliness of decisions, extraordinary fee awards, and other data necessary for the judicial nominating commission to review the performance of judges as required in paragraph (2) ({c). [emphasis added] § 440.45 (4), Fla. Stat. This statutory mandate was passed sixteen (16) years ago and has remained essentially unchanged since. See Ch. 2001-91, § 26, Laws of Fla. (2001) .? 5. Pursuant to this mandate, the Office adopted the “Rules of Procedure for Workers’ Compensation Adjudications,” Chapter 600-6, Florida Administrative Code, which became effective February 23, 2003. The Chapter contains individual rules that address initial pleadings, discovery, mediation, hearings, and other procedural matters. 6. None of the rules in this Chapter contain uniform criteria for measuring performance. None of the rules cite section 440.45(2) (c), Florida Statutes, as a “law implemented.” There are no rules in this Chapter or adopted elsewhere for the Commission to follow in determining whether an incumbent Judge’s performance has been satisfactory and reporting this determination to the Governor. 7. In the absence of rules, the Commission follows a document titled “Guidelines of Operation of the Statewide Judicial Nominating Commission” (“Guidelines”) in “review[ing] the applications of Judges of Compensation Claims who seek reappointment.” Guidelines, § I.3 The Guidelines require applicants to complete an application form by a specified deadline, establish procedures for public comment, and allow the Commission to pose “questions deemed pertinent to each applicant’s fitness and qualifications to hold the judicial office.” Id., §§ I & IV. Section V of the Guidelines, titled “Standards and Qualifications; Criteria,” provides that [n]o nominee shall be recommended to the Governor for appointment unless the Commission finds that the nominee meets all constitutional and statutory requirements and is fit for appointment after full and careful consideration which consideration may include, but [is] not necessarily limited to, the following criteria: (a) Personal attributes (1) Personal integrity (2) Standing in community (3) Sobriety (4) Moral conduct (5) Ethics (6) Commitment to equal justice under law (b} Competence and experience (1) General health, mental and physical (2) Intelligence (3) Knowledge of law (4) Professional Reputation (5) Knowledge of and experience in the court involved (c) Judicial capabilities (1) Patience (2) Decisiveness (3) Impartiality (4) Courtesy (5) Civility (6) Industry and promptness (7) Administrative ability (8) Possible reaction to judicial power (9) Temperament (10) Independence 8. The Guidelines do not contain uniform criteria or a procedure for the Commission to report whether a judge’s performance has been satisfactory. Rather, the Guidelines direct the Commission to take the following action at the conclusion of the review process: When considering a Judge for reappointment, by majority vote, the Commission shall vote upon whether to recommend each particular judge for reappointment. The names of each judge considered by the Commission shall be certified to the Governor in writing, which shall include only the judge’s name and whether recommended or not. 9. The Guidelines bear an effective date of November 22, 2013, and provide that they “may be amended by majority vote of the Nominating Commission” and “may be readopted periodically at the discretion of the Commission members.” Id., § XII. The Guidelines contain no mention of the rulemaking process under Chapter 120, Florida Statutes. 10. The Guidelines have not been adopted by the Office or the Commission as a rule pursuant to the rulemaking procedures in section 120.54, Florida Statutes. The Commission has no rulemaking authority. See Fla. Att’y Gen. Op. 92-72 (1992). 11. Petitioner Gerardo Castiello is a resident of Dade County, Florida. Petitioner was appointed as a Judge of Compensation Claims for the Miami District of the State of Florida, Office of the Judges of Compensation Claims, at some point prior to 2013. In November 2016, Petitioner was serving as a Judge and seeking reappointment for another four-year term. 12. On November 1, 2016, the Commission conducted a hearing to consider Petitioner’s application for reappointment. The Commission did not vote or otherwise make a determination of whether Petitioner’s performance was satisfactory. Instead, the Commission applied the Guidelines in reaching its decision. This decision is memorialized in a letter sent by the Commission to the Governor on November 14, 2016, which contains the following statement regarding Petitioner: “The Commission did not nominate Hon. Gerardo Castiello (MIA) for reappointment.” 13. Petitioner commenced this proceeding on January 20, 2017, when, by and through counsel, he filed a Petition Challenging Agency Statements Defined as Undaopted Rules with the Division of Administrative Hearings (“DOAH”). The Petition alleges that the Guidelines meet the definition of “rules,”4 have not been adopted as rules as required by statute,® and have been relied upon by the Commission as “the basis of its denial and rejection of the Petitioner’s reappointment application.” Petition { 38. Petitioner requested a formal administrative hearing, a determination that the Guidelines are unadopted rules, and related relief. Id. @ 42. 14. DOAH did not assign an administrative law judge to preside over this proceeding within ten days after receipt of the petition as required by section 120.56(1) (c), Florida Statutes. On February 22, 2017, Petitioner filed a Motion for Appointment of Administrative Law Judge, and Notice of Objection to Consideration by Administration Commission. 15. Petitioner then filed petitions with the First and Third District Courts of Appeal beginning in February 2017 to address this issue and related matters. Among other relief, these petitions sought to compel DOAH to appoint an administrative law judge. The Commission objected to this relief, in part, on the basis that “DOAH is the real party in interest,” and this matter has “been referred to the Administration Commission for appointment of an attorney to hear the case pursuant to § 120.80(1), Fla. Stat.” Respondent’s Response to Petitioner’s Petition, Third DCA Case No. 3D17-0341 (March 8, 2017). 16. The Third District Court of Appeals ultimately denied Petitioner’s petition for writ of prohibition, writ of mandamus, and/or alternative writs and remedies. Order, Third DCA Case No. 3D17-0341 (March 29, 2017). The Court subsequently denied Petitioner’s motion for written opinion, clarification, rehearing, certification, and/or rehearing en banc. Order, Third DCA Case No. 3D17-0341 (May 3, 2017). 17. Approximately four months later, without any action by the Administration Commission, undersigned was designated by DOAH Chief Judge Cohen as the “hearing officer to conduct the hearing” in this matter under the authority of section 120.65(5), Florida Statutes. Order of Assignment at 1 (September 18, 2017). That section allows DOAH to assign a full-time state employee as a hearing officer “[i]f the division cannot furnish a division administrative law judge promptly in response to an agency request.” § 120.56(5), Fla. Stat.® 18. Based on the assignment of undersigned, the First District Court of Appeals dismissed Petitioner’s petition for writ of mandamus as moot. See Castiello v. Florida Div. of Admin. Hearings, 229 So. 3d 861 (Fla. lst DCA 2017), reh'g denied (Nov. 8, 2017). 19. After filing the petition that commenced this proceeding and while the petitions for various writs were pending before the District Courts of Appeal, Petitioner propounded discovery to Respondent. On February 13, 2017, Petitioner served on Respondent and filed with DOAH a request for admissions. Respondent did not timely answer or object to this request. 20. On September 20, 2017, after undersigned was assigned as the Hearing Officer, counsel for Petitioner sent to counsel for Respondent an e-mail stating that the request would be deemed admitted due to the failure to respond. The Commission did not respond to this e-mail, answer the request, or file an objection. 21. On December 5, 2017, Petitioner filed a Motion for Summary Order. As support for the Motion, Petitioner asserts 10 that the material facts in this proceeding are undisputed because of Respondent’s failure to respond to the February request for admissions. More than 30 days (indeed, over 9 months) have passed since the request for admissions was serviced on the SNC, and the SNC has never responded to Castiello’s request for admissions. The SNC has never moved for additional time to respond, and has not attempted to demonstrate any excusable neglect for failing to timely respond. Nor is there any possibility of any excusable neglect for the SNC’s failure to respond -— especially after the Petitioner reported the SNC’s failure to response at least three different times. 22. Respondent did not file a response to the Motion for Summary Order as allowed under Rule 28-106.204, Florida Administrative Code, and the time for doing so has expired. Respondent has not answered or objected to the request for admissions.
Other Judicial Opinions A party who is adversely affected by this Summary Final Order is entitled to judicial review pursuant to section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceeding are commenced by filing the original notice of administrative appeal with the agency clerk of the Division of Administrative Hearings within 30 days of rendition of the order to be reviewed, and a copy of the notice, accompanied by any filing fees prescribed by law, with the clerk of the District Court of Appeal in the appellate district where the agency maintains its headquarters or where a party resides or as otherwise provided by law. 21
