The Issue Whether the Division of Administrative Hearings has jurisdiction to conduct a formal hearing under the provisions of Sections 120.569 and 120.57(1), Florida Statutes, if the Petition for Relief does not allege that Respondent is an "employer" under Section 760.02(7), Florida Statutes, and if the Petition for Relief was not timely filed pursuant to Section 760.11(7), Florida Statutes.
Recommendation Based on the foregoing facts and conclusions of law, it is RECOMMENDED that a final order be entered dismissing with prejudice the Petition of Maria Oliveras in DOAH Case No. 01-3928; FCHR Case No. 21-01229. DONE AND ENTERED this 28th day of November, 2001, in Tallahassee, Leon County, Florida. _____________________________________ DANIEL M. KILBRIDE 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 28th day of November, 2001. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Christopher J. Coleman, Esquire Schillinger & Coleman, P.A. 1329 Bedford Drive, Suite 1 Melbourne, Florida 32940 Maria Oliveras 339 Galicia Street Southwest Palm Bay, Florida 32908
The Issue The issue presented is whether Florida Administrative Code Rule 2B-1.002 is an "invalid exercise of delegated legislative authority."
Findings Of Fact The following facts have been stipulated by the parties: Petitioner, Brian L. Blair, is a Respondent in a case before DOAH styled, Florida Elections Commission v. Brian L. Blair, Case No. 09-2069, wherein the Florida Elections Commission ("Commission") has charged Mr. Blair with two counts of willfully accepting campaign contributions in excess of $500.00 in violation of Subsection 106.19(1)(a), Florida Statutes. Petitioner filed a Petition to Determine Invalidity of Existing Rule on August 28, 2009, wherein he alleges that the Commission Rule, Florida Administrative Code Rule 2B-1.002, constitutes an invalid exercise of delegated legislative authority. As a person subject to Chapter 106, Florida Statutes, and accused of willfully violating one of its prohibitions, Mr. Blair is substantially affected by the Commission's application of Florida Administrative Code Rule 2B-1.002 to his case and, therefore, has the requisite standing to bring this action. In 2007, the Florida Legislature repealed Section 106.37, Florida Statutes (2006), which contained a definition of "willfulness" for purposes of Chapter 106, Florida Statutes. That section was repealed by CS/HB 537 (Section 51, Chapter 2007-30, Laws of Florida), effective January 1, 2008. Contemporaneous with the repeal of Section 106.37, Florida Statutes, the same legislation amended Subsection 106.25(3), Florida Statutes, to provide that willfulness is "a determination of fact." (§ 48, Chap. 2007-30, Laws of Florida, effective January 1, 2008). Subsection 106.25(3), Florida Statutes, currently provides: (3) For the purposes of commission jurisdiction, a violation shall mean the willful performance of an act prohibited by this chapter or chapter 104 or the willful failure to perform an act required by this chapter or chapter 104. Willfulness is a determination of fact; however, at the request of the respondent, willfulness may be considered and determined in an informal hearing before the commission. (Emphasis added.) The 2007 Legislative Session ended on May 4, 2007; CS/HB 537 was signed and approved by the Governor on May 22, 2007. On May 24 and 25, 2007, Barbara Linthicum, executive director of the Commission at the time, engaged in the following exchange via email with the Commission's attorney, Edward A. Tellechea, counsel of record in this case, regarding Florida Administrative Code Rule 2B-1.002: Ms. Linthicum: "Do you think we have authority to add chapter 106 to the willfulness rule?" Mr. Tellechea: ". . . Someone will challenge it[,] but what the heck[,] I'm game." Ms. Linthicum: "But, if you are game, I think we should definitely go ahead before January 1 comes along. You certainly do have a good track record defending our rules" The amendment of Florida Administrative Code Rule 2B-1.002 was effective December 25, 2007. The repeal of the definition of "willfulness" in Section 106.37, Florida Statutes, became effective January 1, 2008. The proposed rule amendment to Florida Administrative Code Rule 2B-1.002 that is the subject of this proceeding was reviewed in 2007 by the Joint Administrative Procedures Committee of the Florida Legislature, pursuant to Section 120.545, Florida Statutes, prior to its adoption, and the Committee made no written comments or filed any written objections. In order to determine whether willful violations of Chapter 106, Florida Statutes, have occurred, the Commission employs the definition of "willful" contained in Florida Administrative Code Rule 2B-1.002, when making the factual determination of willfulness.
The Issue Whether the Petition for Relief from an unlawful employment practice was timely filed with the Florida Commission on Human Relations, thereby permitting the Division of Administrative Hearings to exercise jurisdiction for the conduct of a formal hearing under the provisions of Section 120.57(1), Florida Statutes.
Findings Of Fact On December 13, 1995, and again on January 12, 1996, the Florida Commission on Human Relations (FCHR) transmitted to the Division of Administrative Hearings (DOAH) a Petition for Relief from an Unlawful Employment Practice, together with all other "pleadings and jurisdictional papers heretofore filed in this proceeding." The pleadings and papers transmitted by FCHR show that Petitioner filed a complaint with FCHR on December 2, 1994, charging an unlawful employment practice by Respondent. On October 11, 1995, the FCHR concluded its investigation into the matter and issued its determination of No Cause to believe that an unlawful employment practice had occurred. Notice of that determination was served on Petitioner at his Quincy, Florida address by regular mail. The "Notice of Determination: No Cause" served on Petitioner included the following statement: Complainant may request an administrative hearing by filing a PETITION FOR RELIEF with 35 days of the date of this NOTICE OF DETER- MINATION: NO CAUSE. The "Notice of Determination: No Cause" also contained the following statement: If the Complainant fails to request an admini- strative hearing within 35 days of the date of this notice, the administrative claim under the Florida Civil Rights Act of 1992, Chapter 760, will be dismissed pursuant to Section 760.11, Florida Statutes (1992). Petitioner received the Notice of Determination. Sometime after receipt of the notice, Petitioner telephoned the FCHR and spoke with a secretary who again explained the necessity of filing a Petition For Relief to Petitioner within the specified time limits. Petitioner filed a Petition For Relief on November 27, 1995, approximately 47 days after issuance of the Notice of Determination: No Cause. No evidence was presented by Petitioner that he did not receive the mail notice of the FCHR determination in a timely fashion sufficient to permit his timely filing of a Petition For Relief.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered dismissing with prejudice the Petition for Relief in DOAH Case No. 95-6018 and FCHR Case No. 94-E334, for failure to timely file the Petition. DONE and ENTERED this 18th day of March, 1996, in Tallahassee, Leon County, Florida. DON W. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th of March, 1996. COPIES FURNISHED: Lorenzo McGill Route 7, Box 4096 Quincy, Florida 32351 Kimberly L. King, Esquire Messer, Caparello, Madsen, et al. Post Office Box 1876 Tallahassee, Florida 32302-1876 Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Ronald M. McElrath, Executive Director Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue Whether Petitioner's request for exemption from disqualification from mental health personnel employment should be granted pursuant to Section 435.07, Florida Statutes.
Findings Of Fact Petitioner, Jack V. Fulford, at the time of hearing, was twenty-nine years old. In June of 1997, he was hired as a member of the mental health personnel at the Heart of Florida Behavioral Center. In order to continue in the position, Mr. Fulford was subject to "level 2 screening," a type of security background check conducted under Chapter 435, Florida Statutes. The background check indicated that Mr. Fulford had been found guilty of a felony prohibited under one of the provisions of the Florida Statutes (or under any similar statute of another jurisdiction) listed in Section 435.04(2), Florida Statutes. It is not clear from the record whether Heart of Florida or the Department notified Mr. Fulford that he was disqualified for employment, but he was so notified. Mr. Fulford then sought an exemption from the disqualification. The Department of Children and Family Services is the licensing agency with discretionary power "to grant to any employee otherwise disqualified from employment [in this case, Mr. Fulford] an exemption from disqualification for . . . [f]elonies committed more than three years prior to the date of disqualification . . .". Section 435.07, Florida Statutes. The Department denied Mr. Fulford's request for the exemption following the recommendation by an Exemption Review Committee that the exemption be granted. An FBI record introduced into evidence shows that Mr. Fulford has a long history of drug and alcohol abuse. Mr. Fulford admitted as much in testimony in which he described in some detail the destructive consequences the abuse has caused to friends, family and himself. His use of drugs and alcohol, begun in high school, continued to the point of unquestionable abuse while he was in the United States Navy, from which he received a discharge classified by the Navy as "other than honorable." Mr. Fulford participated in several programs and different treatment centers after his discharge. Although successfully able to discontinue drug use in the early part of this decade after a fourteen to fifteen-month stint in prison for violation of probation, Mr. Fulford continued to drink. In February of 1997, a conviction for DUI convinced him that he could drink no more. At the time of hearing, Mr. Fulford had been drug and alcohol free for at least 15 months. During that fifteen months he had consumed "no drugs, alcohol or mind- altering substances, whatsoever." (Testimony of Mr. Fulford.) The FBI record introduced into evidence by the Department, although difficult to decipher without any supporting explanation, is full of arrests and convictions suffered by Mr. Fulford since 1987. The only item that reflects an offense that falls within the list for "level 2 screening" is a plea of nolo contendere with a disposition of "guilty/convicted" (Petitioner's No. 1, page 6) for the third degree felony of possession of cocaine. The arrest leading to the disposition occurred on March 2, 1990; the disposition, twenty days later, on March 22, 1990. During his service in the Navy, Mr. Fulford received training in the medical field. He worked as an orderly, emergency room technician, and a mental health facilitator. He was trained in CPR. The only meaningful employment he has enjoyed during his adult life has been in a hospital environment. In one of the treatment programs in which Mr. Fulford participated, one of the steps in the multi-step pdrocess was to participate as a facilitator providing therapy to other patients or participants. Mr. Fulford reached that step. When asked about his work experience, therefore, in the papers reviewed by the Exemption Review Committee, Mr. Fulford listed his "work" as a facilitator for other participants in the abuse program in which he was also a patient or participant. The Exemption Review Committee recommended that Mr. Fulford be granted an exemption. Prior to exemption becoming finalized, however, one of the department's employees, Mr. Miller, discovered that the "work" done by Mr. Fulford in the treatment program was not done as an employee of the program but as a patient/participant progressing along a multi-step process. Thinking that Mr. Fulford had filled out papers of the committee falsely, Mr. Miller advocated that the Department reject the review committee's recommendation. The Department did so. On February 25, 1998, the Department advised Mr. Fulford that his request for an exemption had been denied "because [he had] failed to show clear and convincing evidence that [he had] been sufficiently rehabilitated." Letter from Sue B. Gray, District 14 Administrator, filed with the Department Clerk on April 2, 1998.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Department enter a final order either: Granting the exemption subject to a probationary period, (the terms of the probation could include participation by Mr. Fulford as an out-patient in a drug rehabilitation program, monitoring at work at the Heart of Florida Behavioral Center, and participation in regular attendance at Narcotics and Alcoholics Anonymous Groups;) or Denial of the exemption without prejudice to reapply and obtain an exemption upon a showing of rehabilitation by sufficient evidence at the appropriate time in the future. DONE AND ENTERED this 5th day of October, 1998, in Tallahassee, Leon County, Florida. DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 1998.
The Issue Whether Florida Administrative Code Rule 2B-1.002 is an "invalid exercise of delegated legislative authority," as alleged by Petitioner.
