Findings Of Fact Petitioner is a small business party within the meaning of Subsection 57.111(3)(d), Florida Statutes (1987). Petitioner was required to relocate its business in 1986 as the result of a public taking of the property where the business was situated. Petitioner sought relocation benefits from Respondent's relocation assistance program. The program is operated by Respondent in accordance with authority contained in Sections 339.09(4) and 421.55(3), Florida Statutes. Various requests by Petitioner for payment of relocation benefits in accordance with the Uniform Relocation Act were denied by Respondent. In DOAH Case No. 88-0778T, Petitioner sought a formal administrative hearing pursuant to Section 120.57, Florida Statutes concerning Respondent's denial of the requested reimbursements. At the final hearing in DOAH Case No. 88-0778T, evidence was presented regarding Respondent's denial of benefit payments of $1,324 for advertisement expense in a telephone directory; $1,370 for installation of an exhaust fan at the new facility; $2,405 for fees for consultative services from an attorney; $1,200 for the alleged loss of employee time spent in conferences with Respondent personnel regarding relocation; $1,500 for expense of a second search for a suitable relocation site; and $1,035 for consultation fees associated with design of a product display area in the new facility. With the exception of Respondent's denial of the claim for $1,035 for consultant fees, Respondent's denials were found to be appropriate in DOAH Case No. 88-0778T. Such a finding of appropriateness also equates to a finding of substantial justification for denial for purposes of this proceeding. A recommended order was issued in DOAH Case No. 88-0778T, finding denials of all requested reimbursements to be appropriate with the exception of Respondent's denial of the request for $1,035 for consultation fees associated with design of a product display area. Payment of this latter amount was recommended as constituting an authorized reimbursement under legal provisions governing the relocation program. On December 26, 1988, Respondent entered a final order awarding Petitioner $1,035 for this consultation fee expense. Other claims for reimbursement by Petitioner in the amount of $10,414.17 were paid by Respondent, prior to the final hearing in DOAH Case No. 88-0778T, in the course of proceedings in the Circuit Court for Broward County, Florida. That court adopted a settlement stipulation of the parties regarding those claims which expressly reserved attorney fees in regard to those issues for later determination by that court. Petitioner presented no evidence with regard to those claims at the final hearing in DOAH Case No. 88-0778T. At the final hearing in the present proceeding, Respondent offered testimony that confusion concerning payment of those claims resulted from the death of the attorney handling the case for Respondent. Respondent initially denied the claims in the absence of the deceased attorney's records in the mistaken belief that the matter had been resolved earlier in the circuit court condemnation proceeding. Upon learning such was not the case, payment of the claim and effectuation of settlement of the issue was made in the circuit court case and occurred shortly after Petitioner's request for hearing in DOAH Case No. 88- 0778T. The circumstances surrounding the initial denial of payment of this benefit by Respondent substantially justify Respondent's denial and constitute a sufficient basis to deny Petitioner's recovery of fees or costs related to this payment recovery in this administrative proceeding. The proof submitted at the final hearing in this cause establishes that Petitioner's counsel expended between 55 and 70 hours of time in his representation of Petitioner's attempts to recover all denied benefits in DOAH Case No. 88-0778T. Counsel's average hourly rate was $125. However, the fee arrangement between client and counsel was a "modified or combined contingency fee" permitting any recoverable attorney fees to serve as the primary source of payment of counsel's fees. Petitioner was not bound by the agreement to pay counsel's fees beyond amounts determined to be appropriate by the hearing officer in the administrative case or the judge in the circuit court matter. To that extent, attorney fees in this cause that have been incurred by Petitioner may be considered "contingent." Documentation submitted by Petitioner includes an affidavit from its president which simply recites the status of Petitioner as a small business party, but sets forth no specifics of a fee arrangement with counsel. The affidavit of Petitioner's counsel establishes a minimum number of hours (55) and dates of work performed by counsel, and states that his hourly rate is $125. Calculating the number of hours by the hourly rate, one reaches a total fee amount of $6,875. Counsel's affidavit does not address which of the various benefits sought to be recovered was the subject of any particular expenditure of time. Although the relocation benefits sought to be recovered were separable subjects, allocation of time expended with regard to a particular benefit recovery effort is not established by the evidence. Testimony of William Robert Leonard was also offered by Petitioner to support the reasonableness of a legal fee amount of $10,000 for Petitioner's counsel. While Mr. Leonard opined that he normally would not support a $10,000 attorney fee as reasonable for a $1,000 recovery, the circumstances of this case were different because "[y]ou are arguing with the state." Petitioner attempted to establish through further testimony of Leonard that the enormity of the resources of the government of the State of Florida justify such a fee because cost considerations prevent private litigants from engaging in costly and protracted proceedings in matters of limited recovery. Leonard did not address allocation of the requested attorney fee among the various benefits for which recovery was sought, choosing instead to premise his opinion regarding reasonableness of a $10,000 attorney fee upon "the amount of time counsel was required to respond to a state agency." Leonard's testimony is not credited with regard to reasonableness of a $10,000 fee for recovery of the $1,035 relocation benefit due to his professed lack of knowledge of certain administrative law procedures; the failure of his testimony to address the nature or difficulty of tasks performed by counsel for Petitioner; and his concurrence with the assertion that his opinion of such a fee was based in part upon a "gut reaction." No evidence was submitted to support the reasonableness of the cost amount of $250 requested as a witness fee for Mr. Leonard's participation in the proceeding. Petitioner seeks recovery of $448.50 in costs associated with the transcript of final hearing had in DOAH Case No. 88-0778T and a $480 expert witness fee in conjunction with testimony of E. Scott Golden, an attorney, at that final hearing. The testimony of Mr. Golden in that proceeding related to his provision of relocation site advice to Petitioner and drafting of legal documents for Petitioner. Petitioner did not prevail with regard to recovery of relocation benefits related to the expense of Mr. Golden's services.
The Issue Whether Petitioner, who was convicted of three felony counts in federal court, must forfeit his rights and benefits under the Florida Retirement Systems (FRS), pursuant to Section 112.3173, Florida Statutes (2006).1 Whether Petitioner's conviction in U.S. District Court in the underlying criminal case is not final because a petition for writ of habeas corpus, based upon ineffective assistance of trial counsel, is pending in the U.S. District Court.
Findings Of Fact Based on the joint exhibits and joint stipulation of facts submitted by the parties, the following findings of fact are made: The Division of Retirement (Respondent) is charged with the responsibility of managing, governing, and administering the FRS on behalf of the Department of Management Services. The FRS is a public retirement system, as defined by Florida law. As such, Respondent's proposed action regarding the forfeiture of Petitioner's rights and benefits under the FRS are subject to administrative review. Petitioner was formerly employed by the Charlotte County Sheriff's Department as a deputy sheriff. Petitioner retired from the aforesaid employment and began receiving FRS benefits in March of 2003. Petitioner is a special risk class member of the FRS. On May 28, 2003, Petitioner was charged by Incident in the U.S. District Court for the Middle District of Florida, Fort Myers Division, in case number 2:03-cr-00065, with (1) One Count of Deprivation of rights under color of law, in violation of 18 U.S.C. Section 242; (2) One Count of engaging in misleading conduct, in violation of 18 U.S.C. Section 1512(b)(3); and (3) One Count of making a false statement, in violation of 18 U.S.C. Section 1001. On September 18, 2003, a Superseding Indictment was entered charging the same offenses. Count One of the Superseding Indictment, dated September 18, 2003, provides: On or about May 21, 2002, in Charlotte County, in the Middle District of Florida, defendant WYATT O. HENDERSON, who was then employed as a detective with the Charlotte County, Florida Sheriff's Department, while acting under color of the laws of the State of Florida, did willfully deprive C.G., a juvenile, resulting in bodily injury to C.G. and did thereby willfully deprive C.G. of the right preserved and protected by the Constitution of the United States not to be deprived of liberty without due process of law, which includes the right to be secure in his person and free from the intentional use of unreasonable force by one acting under color of law. All in violation of Title 18, United States Code, Section 242. 18 U.S.C. Section 242 provides, in relevant part: Whoever, under color of any law, . . . willfully subjects any person in any State . . . to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, that are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more that one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both. . . . Count Two of the Superseding Indictment provides: On or about May 22, 2002, in Charlotte County, in the Middle District of Florida, defendant WYATT O. HENDERSON, who was then employed as a detective with the Charlotte County, Florida Sheriff's Department, did knowingly engage in misleading conduct toward another person, with intent to hinder, delay or prevent the communication to a law enforcement officer of information relating to the commission or possible commission of a Federal offense, namely, Deprivation of Rights Under Color of Law, as charged in Count One of this Indictment, by submitting to Sergeant Jerry White of the Charlotte County Sheriff's Department an incomplete and inaccurate statement regarding the arrest on or about May 21, 2002, of C.G., a juvenile. In violation of Title 18, United States Code, Section 1512(b)(3). 18 U.S.C. Section 1512(b)(3) provides, in relevant part: (b) Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to -- * * * (3) hinder, delay, or prevent the communication to a law enforcement officer . . . of information relating to the commission or possible commission of a Federal offense . . .; Shall be fined under this title or imprisoned not more that ten years, or both. Count Three of the Superseding Indictment provides: On or about October 4, 2002, in Charlotte County, in the Middle District of Florida, defendant WYATT O. HENDERSON, who was then employed as a detective with the Charlotte County, Florida Sheriff's Department, did knowingly and willfully make a false and fictitious statement and representation of material fact in a matter within the jurisdiction of the Federal Bureau of Investigation, an agency of the United States, in that the defendant stated and represented while being interviewed by agents of the Federal Bureau of Investigation, that on or about May 21, 2002, prior to pushing C.G., a juvenile, to the ground, the defendant threw his handgun into the window of his car, whereas the defendant then knew that on or about May 21, 2002, he did not throw his handgun into the window of his car prior to pushing C.G., a juvenile, to the ground. In violation of Title 18, United Stated Code, Section 1001. 18 U.S.C. Section 1001 provides, in relevant part: Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully -- falsifies, conceals, or covers up by any trick, scheme, or device a material fact; makes any materially false, fictitious, or fraudulent statement or representation; or makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry; Shall be fined under this title, imprisoned not more that 5 years . . . or both. The charges contained in the Superseding Indictment were committed prior to Petitioner's retirement under the FRS. On December 10, 2003, a jury returned a verdict of guilty of all three counts in the Superseding Indictment. On March 12, 2004, the Amended Judgment in a Criminal Case was entered on the aforesaid verdict, by the Honorable Anne C. Conway, United States District Judge. Therein, Petitioner was adjudicated guilty of all counts charged in the aforesaid superseding indictment. Petitioner was sentenced to a term of imprisonment in the custody of the United States Bureau of Prisons. Petitioner appealed his conviction and in an opinion issued on May 23, 2005, the U.S. Court of Appeals for the Eleventh Circuit, in case number 04-11545, affirmed the aforesaid judgment in part, vacated the same in part, and remanded the case to the District Court. See United States v. Henderson, 409 F.3d. 1293 (11th Cir. 2005), certiorari denied, 126 S.Ct. 1331 (2006). The Circuit Court issued its mandate on July 26, 2005. On May 3, 2006, a Judgment on Remand in a Criminal Case was entered by the District Court on the aforesaid verdict, wherein Petitioner was again adjudicated guilty of all counts charged in the aforesaid Superseding Indictment and was re- sentenced. An appeal was again taken and in an opinion issued on December 22, 2006, the U.S. Court of Appeals for the Eleventh Circuit, in case number 06-12816, affirmed the aforesaid judgment on remand. See United States v. Henderson, 211 Fed. Appx. 919, 2006 U.S. App. LEXIS 31565 (11th Cir. 2006). The Circuit Court issued its mandate on January 22, 2007. On July 24, 2006, Petitioner filed a Petition for Writ of Habeas Corpus and Motion to Vacate and Set Aside Sentence in the U.S. District Court for the Middle District of Florida, in case number 2:06-cv-00373. Said Petition and Motion are now pending before the U.S. District Court (M.D. Fla.). On March 19, 2007, Petitioner received the Notice of Action to Forfeit Retirement Benefits signed by Sarabeth Snuggs, State Retirement Director, by certified letter, dated March 15, 2007. The letter advised Petitioner of the proposed agency action to forfeit his FRS rights and benefits as a result of the above referenced conviction. Petitioner timely requested a formal hearing before an Administrative Law Judge to challenge the proposed agency action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order forfeiting Petitioner's rights and benefits under the FRS. DONE AND ENTERED this 10th day of September, 2007, in Tallahassee, Leon County, Florida. S 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 10th day of September, 2007.
The Issue Whether Petitioner, by pleading guilty to a charge of organized scheme to defraud, in violation of Sections 817.034(4)(a)1. and 777.011, Florida Statutes, committed a “specified offense” under Section 112.3173, Florida Statutes, and forfeited all rights and benefits under the Florida Retirement System.
Findings Of Fact Based on the testimony and documents presented as evidence at the hearing, the following Findings of Fact are made: Petitioner is a retired physical education teacher who is a member of the Florida Retirement System (FRS). Dr. McCoggle entered the Deferred Retirement Option Program (DROP) on or about August 1, 2003, and ended his participation in DROP on June 3, 2005. Respondent is the agency responsible for managing, governing, and administering the FRS. At all times material to the allegations of this case, Petitioner was employed by the Miami-Dade County Public Schools (MDCPS or the school district) as a high school physical education teacher and coach. After ending his participation in DROP in June 2005, Petitioner was issued a warrant for his DROP-accumulated funds, but payment of the warrant was stopped. On July 18, 2005, Petitioner was charged with certain crimes, based on events that occurred while he was a physical education teacher. Specifically, a Miami-Dade County Grand Jury issued an indictment charging Petitioner with one count of grand theft, first degree, in violation of Sections 812.014(1)(2)(a) and 777.011, Florida Statutes, and one count of a scheme to defraud, as defined in Subsection 817.034(3)(d), that constituted organized fraud in violation of Sections 817.034(4)(a)1. and 777.011, Florida Statutes (2005). On November 17, 2005, an amended information filed to supersede the indictment provided: WILLIAM L. McCOGGLE, from on or about JANUARY 1, 1999 to on or about MARCH 31, 2004, in the County and State aforesaid, did unlawfully and feloniously engage in a scheme to defraud as defined by s. 817.034(3)(d), Fla. Stat., by engaging in a systematic, ongoing course of conduct with intent to defraud one or more persons, to wit: MIAMI-DADE COUNTY PUBLIC SCHOOLS, by false or fraudulent pretenses, representations, or promises or willful misrepresentations of a future act, and did thereby obtain property, to wit: U.S. COINS OR CURRENCY, of an aggregate value of fifty thousand dollars ($50,000.00) or more, the property of MIAMI-DADE COUNTY PUBLIC SCHOOLS, as owner or custodian, in violation of s. 817.034(4)(a)1 and s. 777.011, Florida Statutes, contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida. (Emphasis added.) On November 18, 2005, a plea agreement between Petitioner and the State was filed, in which Petitioner pled guilty to the one count in the amended information and the circuit court entered a judgment adjudicating Petitioner guilty. After notice of the guilty plea and judgment, Respondent’s legal office reviewed grand jury and court documents, determined that Petitioner had been convicted of a specified offense under Section 112.3173, Florida Statutes, and recommended the termination of Petitioner’s rights and benefits under the FRS. On September 6, 2006, Respondent notified Petitioner, by letter, of the forfeiture of his FRS rights and benefits. On September 25, 2006, Petitioner timely sought an administrative review of the agency action. The legal action taken against Petitioner resulted from his involvement, for at least a decade, in arranging for teachers to receive academic credit for state and school district-required teacher certification and recertification. According to the grand jury and Petitioner, he entered into agreements with accredited post-secondary educational institutions for Petitioner on his own, at first, and then through his organization, Move on Toward Education and Training (MOTET), to provide courses to teachers and for the colleges to provide them transcripts. The grand jury found that teachers came to Dr. McCoggle at the high school where he was teaching, after regular school hours and on Saturday mornings, and paid him to sign-up for classes. Dr. McCoggle’s use of school facilities was authorized. Teachers from Miami-Dade, Broward, and Palm Beach Counties participated in the program. The grand jury also found that the transcripts were fraudulently obtained because there were no classes, no tests, no homework, no assignments, and that no teachers attended any classes. As counsel for the Respondent summarized the issues in this case, in his Proposed Recommended Order, any public employee (undisputed) who is convicted of a specified offense (disputed) committed prior to retirement (undisputed) shall forfeit all rights and benefits under any public retirement system of which he or she is a member (undisputed). The evidence supports Petitioner's claim that his guilty plea to a scheme to defraud was not related to the performance of his official duties as a physical education teacher and coach. Petitioner notes that defrauding a public employer is not a "specified offense" unless the fraud is job- related. The grand jury's final report that was introduced as Respondent's Exhibit 1 and the Petitioner's testimony support a conclusion that he charged the teachers fees but took no money directly from the school district. Petitioner notes that a theft is a "specified offense" only if the victim is the public employer. It is the position of the school district that, by pleading guilty to a scheme to defraud, Petitioner pled guilty to theft, and that he committed the theft by assisting teachers in getting paid public funds of the MDCPS to which they were not entitled.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order requiring William L. McCoggle to forfeit all rights and benefits under the Florida Retirement System. DONE AND ENTERED this 20th day of March, 2007, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 20th day of March, 2007. COPIES FURNISHED: Geoffrey M. Christian, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Emily Moore, Esquire Florida Education Association 118 North Monroe Street Tallahassee, Florida 32301 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue Whether Respondent filed frivolous motions to introduce additional evidence after the final hearing and after proposed recommended orders had been filed that needlessly increased the cost of litigation, justifying the imposition of sanctions under Section 120.569(2)(e), Florida Statutes (2007).
Findings Of Fact 1. The Petitioner, Department of Management Services, Division of Retirement ("Division") filed Petitioner’s Motion for Attorney’s Fees, on April 21, 2008. The Motion is as follows: The Department of Management Services, Division of Retirement, by and through its undersigned counsel, requests the Administrative Law Judge to enter an order awarding the agency reasonable attorney’s fees in this case and states: The case was originally referred to the Division of Administrative Hearings on June 20, 2007. Pursuant to the Order of Pre-hearing Instructions and after extensive discovery, the Parties filed their respective exhibit list.(1) The Final Hearing was held on January 16, 2008. At the Final Hearing, the Administrative Law Judge ruled certain evidence would not be considered because it was not timely filed. Counsel for Mr. Tamalavich, Ms. Jane Letwin, subsequent to the Final Hearing, filed three additional motions entitling the Division of Retirement to receive attorney’s fees and costs. These motions were frivolous. Jurisdiction was specifically reserved within the Proposed Recommended Order to “consider Respondent’s claim of entitlement to fees and costs.” Each motion sought to supplement the record by introducing exhibits not timely filed. (See: Exhibit-1, dated March 4, 2008; Exhibit-2, dated March 14, 2008; Exhibit 3, dated March 21, 2008.) The filing of the motions as described in paragraph two (2) above, constitute grounds for the imposition of attorney’s fees and costs as set forth in Section 120.569(2)(e), Florida Statutes (2007), which reads: All pleadings, motions, or other papers filed in the proceeding must be signed by the party, the party’s attorney, or the party’s qualified representative. The signature constitutes a certificate that the person has read the pleading, motion, or other paper and that, based upon reasonable inquiry, it is not interposed for any improper purposes, such as to harass or to cause unnecessary delay, or for frivolous purpose or needless increase in the cost of litigation. If a pleading, motion, or other paper is signed in violation of these requirements, the presiding officer shall impose upon the person who signed it, the represented party, or both, an appropriate sanction, which may include an order to pay the other party or parties the amount of reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney’s fee. An objection to each motion was filed by counsel for the agency, asserting the exhibits were outside the record in the case and would prejudice the agency. (See: Exhibit-4, dated March 5, 2008; Exhibit-5, dated March 14, 2008; Exhibit-6, dated March 24, 2008.) Counsel also requested attorney’s fees and costs. In support of this motion, counsel has attached affidavits as to attorney’s fees with an activity record for the time spent responding to the motions. The amount totals $915.00. Footnote: Respondent agreed to all of Petitioner's exhibits. In response to the Motion for Attorney's Fees, the Respondent filed Petitioner’s (sic) Response to Motion for Attorney’s Fees (in which references to the parties are based on their status in the original retirement case, not the current fees case), stating that: PETITIONER [sic] THROUGH UNDERSIGNED COUNSEL, files this Response to the Motion for Attorney’s Fees pursuant to Fla. Stat. 120.569 (2 © [sic], Fla. Stats. 2007, and would state: The initial Motion to Supplement the Record was filed in good faith as a response to the urging by the Administrative Law Judge who encouraged the efforts to locate the missing payroll record. The entire episode which occurred during the trial hearing is described in detail in the Motion and was filed in good faith. The goal was to ascertain the facts in the interests of justice, not for delay or bad faith. The Motion to Take Notice was also filed in good faith based on the existence in the record of the documents which were the subject of the motion. The Second Motion to Supplement the Record was also filed in good faith and in the interests of justice, as the very document found in another case with similar issues which involved the Respondent Division of Retirement was thought to be of great interest to the court. This document was probative of the very concepts proposed by Petitioner that the notice mandated by the governing rule had to be presented in writing to the employee upon his initial hiring in order to satisfy the requirements of the FRS’ own rules and regulations. This document was not prejudicial to the Respondent since it must have been aware of the document well before the hearing. Proposed Recommended Orders were filed in the retirement case, DOAH Case No. 07-2759, on February 25, 2008. Respondent filed the initial Motion to Supplement the Record on March 4, 2008. The Motion requested consideration of documents discovered by Mr. Tamalavich's wife after the hearing. Respondent's Counsel stated that questions raised at the hearing prompted the search for more documents and made her believe that she had been instructed to have her client do so. The specific questions related to whether or not Mr. Tamalavich worked during a certain month. The Division's witness testified that she had no way of knowing the answer from her records and that it would be best to ask Mr. Tamalavich. Respondent's Counsel did not explain her failure to ask her client to search for records to support his allegations prior to filing the case or during discovery. She also maintained that, as used in her motion, "[t]he terminology 'supplementing the record' was meant to be the equivalent to a motion to reopen the record." See Petitioner’s Proposed Recommended Order on Respondent’s Motion for Attorney’s Fees, page 2. In the second post-hearing pleading, Respondent's Counsel filed a Motion to Take Notice. Respondent's Counsel argued that the exhibit that was the subject of the Motion had not been withdrawn during the hearing and that it was re- submitted after she checked the DOAH website and found that it had been logged in by the DOAH Clerk at 3:56 p.m. on the day before the hearing began. As explained in the Recommended Order: That [tender] was untimely under the requirements of the pre-hearing order [that required submission of a list of exhibits no later than ten days prior to the date of the hearing]. In addition, when an objection to the introduction of the exhibit was raised at the hearing, the record reflects, on page 47, line 20 of the transcript, that the tender was withdrawn. At the final hearing, Respondent's Counsel said she did not intend to have her words construed as withdrawing the tender of an exhibit because "I couldn't withdraw something that had been filed in the record." DOAH Case No. 08-1770F, transcript p. 12, lines 2 - 4. 5. The third pleading, the Second Motion to Supplement the Record, was filed to introduce an exhibit used in a DOAH case that was decided in January 2004. Respondent's Counsel conceded that she could have possibly requested and received the document while she was preparing her case, explaining,"[H]owever, notwithstanding, I certainly didn't file this motion to harass or delay." DOAH Case No. 08-1770F, transcript p. 23, lines 23 - Petitioner asserted that the only effect of the motion was "to harass my client and take up additional, take up my time." DOAH Case No. 08-1770F, transcript p. 23, lines 8 - 9. The Petitioner submitted an Affidavit As To Attorney's Fees from a 26-year member of The Florida Bar, attesting to the reasonableness of a fee of $150.00 an hour for a total of 6.1 hours, or a total fee of $915.00. According to the activity sheet, the attorney’s reviewed each motion, consulted with the client on each, and prepared the three responses. During the telephone final hearing, Respondent's Counsel suggested that the work performed should have taken no more than .5 hour because the responses to the three motions were essentially the same. She also asserted that the imposition of any sanction is improper due to her good faith, subjective belief that she was pursuing a just result for her client, and that the reasonable inquiry required, under Subsection 120.569(2)(e), was "not [whether] the motion is legally permissible," [b]ut whether or not the facts you are advancing in the motion are, indeed accurate." DOAH Case No. 08-1770F, transcript p. 44, lines 14 - 18. The Division established that there was no legal justification for the three post-hearing/post-proposed recommended order motions filed in DOAH Case Number 07-2759. There is no dispute that the three pleadings at issue were signed by Respondent's Counsel, not by the Respondent, nor by Respondent's co-counsel who entered a Notice of Appearance, but did not otherwise participate in the proceedings.
The Issue Whether Petitioner may purchase retirement credit for the period of time from his suspension date to his reinstatement date as creditable service in the Florida Retirement Service.
Findings Of Fact Petitioner, Philip J. Cobb, was employed by the Pinellas County Board of County Commissioners (County) in May 1985, as a property manager. As a permanent employee of the County, Petitioner was enrolled as a member of the regular class of the Florida Retirement System (FRS). In order to vest and be eligible to receive retirement benefits under state law, Petitioner needed to complete ten years of creditable service. Petitioner continued to work for the County until he was terminated on August 1, 1992. The reason Respondent terminated Petitioner was because he allegedly failed to support his supervisor and was insubordinate. At the time Petitioner's employment with the County was terminated, he had earned approximately seven years and two months of creditable service and was thirty-four months short of vesting in the FRS. Petitioner challenged his termination by instituting legal proceedings against the County, alleging that his termination was illegally motivated by age discrimination. The lawsuit, Case No. 94-1054-CIV-T-21C, was filed in June 1994, in the U. S. District Court for the Middle District of Florida, Tampa Division, and sought Petitioner's reinstatement to his former position. At the time of his termination, Petitioner was sixty-seven years old, and at the time of this proceeding he was one day shy of being seventy-three years old. After discovery had been undertaken and prior to the case being set for trial, the Court ordered the parties into mediation. During settlement negotiations, the parties specifically discussed the importance of Petitioner purchasing credit in the FRS as necessary for vesting. In light of this consideration, before of the Agreement was finalized, counsel for Petitioner contacted Respondent regarding the cost of Petitioner's purchasing the service credit required to vest in the FRS. In a letter dated November 30, 1995, from Maurice Helms, Chief, Bureau of Retirement Calculations, to counsel for Petitioner, Mr. Helms noted that Petitioner had only 7.25 years of creditable service in the FRS, not the ten years required to vest. Nevertheless, the letter stated, "If [Petitioner] were eligible to purchase the service credit required to vest and then retire, we estimate the cost would be $30,273.69". This projected amount was considered in negotiations and was represented in the settlement amount. In January 1996, as a result of the mediation, Petitioner and the County entered into a Settlement Agreement, Release and Disclaimer (Agreement), in exchange for Petitioner's dismissing his lawsuit. Paragraph Two of the Agreement provides that the County would make a lump sum payment distribution of $64,000.00 to Petitioner. Of the total amount, $34,000.00 was designated as back pay and liquidated damages. The remaining $30,00.00 was for "fees and other costs associated with the above-captioned case." Further, the County agreed to rescind Petitioner's termination, convert the termination to a suspension without pay, and reinstate Petitioner to his former position. Finally, the Agreement included a provision that Petitioner would resign from that position on the date he was reinstated. Paragraph Three of the Agreement provides that the $64,000.00 is not a "mere recital, but is the cash consideration for this Agreement and the full and final release affected thereby." Notwithstanding the provision in the Agreement that the $34,000.00 is for back pay and liquidated damages, Paragraph Three of the Agreement expressly states that the settlement amount paid by the County and accepted by Petitioner was not to compensate Petitioner for back wages, benefits, or other forms of compensation. Rather, the settlement amount was part of the compromise to settle and compromise the matter. In this regard, Paragraph Three of the Agreement provides in pertinent part the following: ...The parties hereto recognize that substantial questions of law and of fact exist as to any possible claim or claims by Cobb for any compensation, back pay, forms of compensation, benefits or damages, liquidated/compensatory or otherwise, interest and any other claim for relief; therefore, [this settlement is being made purely on a compromise basis in order to avoid further trouble, litigation and expense, and the settlement amount is considered to be a part of the compromise, paid by Defendant and accepted by Cobb not to compensate Cobb for back wages, benefits or other forms of compensation, but to settle and compromise the matter relative to the trouble, interference, damage, and expense which would have been and would otherwise continue to be claimed and/or associated therewith]. [Emphasis supplied.] Paragraph Eleven of the Agreement addresses changes in Petitioner's employment status and delineates the method by which the County would accomplish these changes. That paragraph provides the following: The parties hereto further agree that, without any waiver of the sufficiency of the grounds and cause for Cobb's termination, and [in settlement of all claims of Cobb as set forth hereinabove, a personnel action form will be prepared changing Cobb's termination action on July 31, 1992, to a suspension without pay through the date this Agreement is signed. Additionally, a personnel action will be issued reinstating Cobb to paid status effective the date this Agreement is signed.] Cobb agrees to sign and submit the attached letter of resignation, effective the date he signs this Agreement, and further agrees to waive any pay and/or benefits to which he may be entitled from Defendant since July 31, 1992. [Emphasis supplied.] After the Agreement was executed and pursuant to the terms thereof, the County prepared and processed the required paperwork which effectively rescinded Petitioner's termination, changed the termination to a suspension without pay, and reinstated Petitioner to paid status. Petitioner did not return to work with the County, but resigned on the day he was reinstated. Petitioner's resignation was consistent not only with the terms of the Agreement, but with Petitioner's intentions at the time he was being considered for employment by the County. At or near the time Petitioner was initially employed by the County, he indicated to County officials that he was committed to remaining with the County for ten years so that he could vest in the FRS. Based on his understanding of the Agreement, Petitioner did not intend to return to work with the County after the Agreement was executed. Petitioner believed that the County's action of rescinding his termination, changing his status to suspension without pay, and reinstating him provided him with more than the thirty-four months he needed to vest in the FRS. Had Petitioner not been terminated by the County, he would have vested in the FRS in May 1995, and would have thereupon retired. Although the Agreement provided that Petitioner would resign, there is no indication that the County was opposed to Petitioner's returning to work. In fact, one of the negotiators for the County, testified that "I am not sure that Pinellas County didn't want Mr. Cobb to return to employment. We wanted to settle the lawsuit that was pending. " After the Agreement was finalized, in a letter dated February 12, 1996, Petitioner provided Respondent with a copy of the executed Agreement and "copies of personnel actions completed in accordance therewith." The letter requested that Respondent do the following: (1) reinstate Petitioner in FRS in accordance with Section 121.011(3), Florida Statutes, and Rule 60S-2.016, Florida Administrative Code; and (2) provide Petitioner "with the amount of his required contributions for retirement credit for his period of suspension up to and including the date of his vesting." Petitioner was prepared to pay into the State Retirement Fund the contribution required to receive retirement credit. On March 5, 1996, Respondent issued a letter to Petitioner denying him the right to make contributions for retirement for the period of suspension without pay, July 31, 1992, through the date of his reinstatement, January 22, 1996. The denial letter stated that the purported "reinstatement" did not occur. As rationale for its position, Respondent found that: (1) after being "reinstated", Petitioner never performed work in a regularly established position and, therefore, was not compensated for services or work performed; (2) the County never intended to reinstate Petitioner "to employment with pay, nor was there an expectation of Petitioner to be "made whole" by the County; and (3) Petitioner and the County never intended to "enter into an employer and employee relationship retroactively for the period in question." Respondent stated that the purported reinstatement of Petitioner "was more in the nature of a ruse or sham to achieve a goal other than gainful employment." Moreover, Respondent believed that "neither the member nor the employer intended to enter into a regular employer and employee relationship." Respondent thus concluded that the reinstatement was not "bona fide" and was solely for the purpose of allowing Petitioner to vest in FRS and obtain retirement benefits. Respondent also objected to the form of Petitioner's reinstatement of employment with the County, declaring that it was not a "bona fide" as signified by his failure to receive back pay for the period of suspension and his failure to enter into an employer-employee relationship with the County for the equivalent of one calendar month. Respondent acknowledged that once Petitioner's termination was changed to a suspension without pay Rule 60S-2.016, Florida Administrative Code, applies to the case. This rule is interpreted by Respondent to require that for reinstatement to occur, an individual must work in a regularly established position for at least one calendar month following the suspension. Respondent admits that the "one calendar month" requirement is not contained in either Section 121.011(3)(e), Florida Statutes (1991), or in Rule 60S-2.016, Florida Administrative Code, both of which govern retirement credit for periods of suspension without pay. Nevertheless, Respondent's interpretation of Rule 60S-2.016, Florida Administrative Code, is that a person must work thirty days after a suspension without pay to be deemed "reinstated". Respondent derives this interpretation by applying language from the rule that governs granting credit for leaves of absence. Respondent's interpretation of "reinstatement," as it relates to members who have been suspended without pay, is not evident from the language of the applicable statute or rule and may be ascertained only upon reviewing individual member files. The Florida Retirement System currently has 600,000 active members and 140,000 retirees, for a total of 740,000 files.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division of Retirement enter a Final Order that awards Petitioner retirement credit for the period of time from his date of suspension to his date of reinstatement subject to his purchasing retirement credit for that period of time. DONE and ENTERED this 30th day of October, 1996, in Tallahassee, Florida. CARLOYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-647 Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 1996. COPIES FURNISHED: Robert F. McKee, Esquire Kelly and McKee, P.A. 1718 East Seventh Avenue, Suite 301 Tampa, Florida 33675-0638 Stanley M. Danek, Esquire Department of Management Services Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399 Paul A. Rowell General Counsel Department of Management Services Division of Retirement 4050 Esplanade Way Tallahassee, Florida 32399-0950 A. J. McMullian, III, Director Department of Management Services Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
The Issue The issue is whether Respondent's request for a hearing to contest a Stop-Work Order and Amended Order of Penalty Assessment (Amended Assessment) issued by Petitioner, Department of Financial Services, Division of Workers' Compensation (Division), was timely filed by virtue of the doctrine of equitable tolling.
Findings Of Fact The Division is the state agency responsible for enforcing the various requirements of chapter 440. Respondent is a Florida limited liability company engaged in the construction business. Its offices are located at 1717 West Memorial Drive, Lakeland, Florida. On April 6, 2015, while driving in Spring Hill, Florida, Dale Russell, a Division compliance inspector, observed three individuals reroofing a single-family residence located at 1006 Chastile Drive. The three individuals confirmed that they were employed by Respondent's construction firm. Mr. Russell contacted Mr. Hutchinson, the owner of the corporation, who confirmed that the three individuals were employed by his firm and that the three were not covered by workers' compensation insurance. Because Mr. Hutchinson was in Lakeland that day, a Stop-Work Order was not served. However, the two agreed to meet at a later date in the Division's Tampa District Office. A Stop-Work Order and request for business records was served on Mr. Hutchinson by another investigator on April 8, 2015. The Stop-Work Order contained an Order of Penalty Assessment, which explained how a penalty is calculated, but gave no specific amount pending a review of Respondent's financial records. On May 20, 2015, an Amended Assessment was prepared indicating that Respondent was being assessed a total penalty of $96,364.78 for failing to secure the payment of workers' compensation insurance. The Amended Assessment was personally served on Respondent by Mr. Russell on May 26, 2015, when Mr. Hutchinson visited the Tampa District Office. The standard assessment form contains two important deadlines that must be met by the employer. On the first page, the form states that pursuant to Florida Administrative Code Rule 69L-6.028, "if the Division imputes the employer's payroll, the employer shall have twenty business days after service of the first amended order of penalty assessment to provide business records sufficient for the Division to determine the employer's payroll for the period requested in the business records request for the calculation of the penalty." It goes on to state that these records may be used to recalculate the employer's penalty "only if the employer provides all such business records within the twenty days after service of the first amended order of penalty assessment. Otherwise, the first amended order of penalty assessment will remain in effect." This means that Respondent had until June 23, 2015, in which to provide business records to the District Office. On the second page of the Amended Assessment is a section entitled Notice of Rights (Notice). Among other things, it states that if the employer requests a hearing, he "must file the petition for hearing so that it is received by the Department within twenty-one (21) days of your receipt of this agency action." Notably, this timeframe is measured in calendar days, not business days, and means that if Respondent decided to request a hearing rather than providing additional financial records, the request had to be filed with, and received by, the Division no later than June 15, 2015. During his meeting with Mr. Hutchinson, the investigator explained the Amended Assessment, section by section. He specifically told Mr. Hutchinson that he had 20 business days in which to produce additional business records. He also told him that he had 21 calendar days in which to request a hearing. Mr. Russell is an experienced investigator, having worked as a deputy sheriff for 28 years before working as a Division inspector. He has issued numerous notices and is very familiar with the deadlines. Although Mr. Hutchinson testified that he asked Mr. Russell to confirm that he had 21 business days in which to file his business records, and was told that this was correct, which differs from Mr. Russell's version of the conversation, the testimony of the experienced investigator is accepted as being the most credible on this issue. The undersigned finds that Mr. Russell correctly explained the ramifications of the two deadlines and he did not mislead Mr. Hutchinson. The facts here do not demonstrate equitable tolling. Even though he was given accurate information regarding the two deadlines, it is evident that Mr. Hutchinson, a lay person, either misunderstood what he was told or was just plain confused. Obviously, he did not read the instructions on the Amended Assessment before submitting his records. Faced with a potential $96,364.78 assessment, it is somewhat surprising that Mr. Hutchinson did not contact the Tampa District Office after the May 26 meeting to reconfirm the precise date on which the records (or request for a hearing) were due. Even at hearing, he admitted that he did not know the difference between submitting business records and requesting a hearing. Believing that he had 21 business days to provide business records, Mr. Hutchinson carried his records to the Tampa District Office on June 24, 2015, or one day past the deadline established in the Amended Assessment. He was told by a Division supervisor that the submission was untimely and he had waived his right to produce them. Even though it was now too late, she recommended that Mr. Hutchinson prepare a request for a hearing, which would be submitted to Tallahassee for legal counsel to review. Pursuant to her instructions, that same morning, Mr. Hutchinson prepared a handwritten, one-page letter requesting a hearing. According to Respondent, the assessment is based on missing checks that, if produced, would establish that no penalty assessment is warranted. At hearing, over the Division's objection, Respondent was allowed to introduce into evidence bank records and copies of checks. See Resp. Ex. 6-23. Although the Division has not yet reviewed them, it acknowledged that they may substantially reduce the assessment. Throughout this proceeding, Respondent's qualified representative has contended that the Amended Assessment is defective because it does not inform the employer that a qualified representative can represent its interests. The first paragraph of the Notice in both the Amended Assessment and the Stop-Work Order states that "you may be represented by counsel," but it makes no reference to a qualified representative. However, in the second paragraph, which provides information regarding the filing of a petition requesting a hearing, it states that the petition must contain "the name, address, and telephone number, and facsimile number of the attorney or qualified representative of the petitioner (if any) upon whom service of pleadings and other papers shall be made." While more clarity in the first paragraph of the Notice would be appropriate, there is sufficient information in the Notice, if read, to alert the employer that alternative representation is allowed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order determining that Respondent's request for a hearing was untimely. However, it is recommended that the business records provided by Respondent at hearing be reviewed and considered to determine the correct amount owed, if any. DONE AND ENTERED this 3rd day of February, 2016, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 2016. COPIES FURNISHED: Julie Jones, CP, FRP, Agency Clerk Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390 (eServed) Trevor Sutor, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-4229 (eServed) Jamison Jessup, Qualified Representative 557 Noremac Avenue Deltona, Florida 32738-7313 (eServed)
The Issue The issue is whether Respondent should be required to pay attorney's fees and costs to Petitioner to compensate her for the defense of an ethics complaint Respondent filed against her with the Florida Commission on Ethics.
Findings Of Fact Respondent J. Curtis Boyd ("Respondent" or "Mr. Boyd") owns property located at 111 Boston Avenue, Fort Pierce, Florida, that he bought in 2002 or 2003. The house on the property was once owned by the late Florida Governor Dan McCarty. Mr. Boyd testified that he has been offered $650,000 to sell the property with the house on it and $1.2 million to sell the land without the house. Mr. Boyd requested and received permission to demolish the house by a 5-to-1 vote of the Historic Preservation Board. That decision was apparently revoked by vote of the City Commission, including that of Petitioner Christine Coke ("Petitioner" or "Ms. Coke"). A complaint filed by Mr. Boyd with the State Attorney accusing Ms. Coke of "misuse of authority" was dismissed on July 6, 2009. Complaint No. 09-087, filed with the Florida Commission on Ethics ("Ethics Commission") on June 25, 2009, was dismissed on July 29, 2009. Mr. Boyd testified that, after the vote of the Historic Preservation Board, he believed Ms. Coke found some unnamed person to appeal the decision to the City Commission. He also testified that, some time later, he found out that the house was not in the historic district and that he did not need permission to demolish it. Mr. Boyd testified that he had overdue property taxes, but that he paid the back taxes and had the assessed value of the property reduced to lower his taxes because of the poor condition of the house. The City of Fort Pierce has waived approximately $70,000 in code enforcement fines on the property, and offered to pay $5,000 for a design fee, but Mr. Boyd noted that the design fee will not go to him but to an architect. Mr. Boyd alleges, with no supporting evidence, that the actions taken by Ms. Coke and others are intended to force him to sell the property to a friend of hers. Based on Mr. Boyd's testimony it is impossible to conclude, as he alleged, that Ms. Coke persuaded some one to appeal the decision of the Historic Preservation Board to the City Commission. There is also no evidence to support or refute Mr. Boyd's allegation that Ms. Coke was motivated by trying to force him to sell his property to a friend of hers. Related to costs and fees, Petitioner's counsel proffered an affidavit of an attorney, filed with the Division of Administrative Hearings on September 23, 2009, representing that the attorney had reviewed the files of Petitioner's counsel and agreed that fees of $1,447.50 for one billing period and of $1,765.00 for another billing period were reasonable. In the absence of supporting testimony and after Petitioner rested her case, the objection to the admission of the affidavit as being untimely filed and unsupported hearsay was sustained. There is no competent substantial evidence that Respondent either made or did not make a complaint against Petitioner with knowledge that the allegations were false or with reckless disregard for whether the complaint contained false allegations. There is also no competent substantial evidence of the amount of fees and costs incurred by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is Recommended that the Florida Commission on Ethics dismiss the Petition for Attorney's Fees and Costs filed by Christine Coke. DONE AND ENTERED this 22nd day of October, 2009, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 2009. COPIES FURNISHED: Kaye Starling, Agency Clerk Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Richard E. Coates, Esquire 200 West College Avenue, Suite 311B Tallahassee, Florida 32301 Patrick Farrell, Esquire c/o J. Curtis Boyd 120 Orange Avenue Fort Pierce, Florida 34950 Philip C. Claypool, Esquire Executive Director and General Counsel Florida Commission on Ethics 3600 Macclay Boulevard, South Post Office Drawer 15709 Tallahassee, Florida 32317-5709 James Peterson, Esquire Linzie Bogan, Esquire Advocates for the Commission Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050
The Issue Whether the Division of Administrative Hearings has jurisdiction to hear this cause alleging that Respondent Employer has committed an unlawful employment practice against Petitioner.
Findings Of Fact 1. Following a May 23, 2003, "Notice of Determination: No Jurisdiction," by the Florida Commission on Human Relations, Petitioner filed a Petition for Relief as more fully described below. On or about July 3, 2003, the matter was referred to the Division of Administrative Hearings and scheduled for a disputed-fact hearing on the merits for August 25, 2003. 2. On July 17, 2003, Respondent served by mail its Motion for a Summary Final Order. 3. On August 12, 2003, Respondent served by mail its Supplemental (Second) Motion for a Summary Final Order. 4. On August 14, 2003, Respondent filed and served its Notice of Filing Supplemental Materials In Support of its (Second) Motion for Summary Final Order. 5. The foregoing pleadings and the exhibits attached thereto, together with the "Determination: No Jurisdiction," which is part of the referral package from the Florida Commission on Human Relations, suggest on their face(s) that the Commission, and derivatively, the Division of Administrative Hearings, is without jurisdiction to determine this case. 6. Petitioner did not timely respond in opposition to the Motion for Summary Final Order as permitted by Rule 28-106.204, Florida Administrative Code, and in a telephonic conference call convened by the undersigned on August 19, 2003, Petitioner represented that she had never received that Motion. Petitioner offered to pick it up at Respondent's attorney's office later on August 19, 2003. 7. Petitioner had received the Supplemental (Second) Motion for Summary Final Order, but from her oral representations in the telephonic conference, it appeared that she did not open the envelope containing it. As of August 19, 2003, Petitioner still had, pursuant to rule, until August 26, 2003, to respond in writing. Also, if Respondent's supplemental materials were to be considered, Petitioner had until August 28, 2003, per rule, to respond. 8. The undersigned is without final order authority in this type of proceeding, and accordingly, the pending Motions have been treated as Motions for a Recommended Order of Dismissal. 9. On August 21, 2003, an Order Canceling Merits Hearing and Permitting Future Filings was entered. That Order provided, in pertinent part: The disputed-fact hearing is now scheduled for August 25, 2003, and all jurisdictional issues could be addressed at the commencement of that hearing, but that hearing is subject to cancellation due to Petitioner's failure to file a unilateral pre-hearing statement. Moreover, it is not cost-effective to require both parties to appear with all their witnesses, prepared for a disputed-fact hearing, when a short delay may obviate the need for such a hearing. If that hearing is cancelled, it will be possible to re-schedule this case for trial within the aspirational time frame established by the legislature, if such re- scheduling is necessary. Accordingly, it is ORDERED: 1. The disputed-fact hearing now scheduled for August 25, 2003, is hereby cancelled. 2. The pending motions will be treated as Motions for Recommended Order of Dismissal. 3. Petitioner is permitted to, and until, September 2, 2003, to file, in writing, any response in opposition to Respondent's Motion for a Summary Final Order, and Respondent's Supplemental (Second) Motion for a Summary Final Order, including the Supplemental Materials Filed August 14, 2003. 4. In her response, Petitioner should address all factual and legal arguments posed by Respondent. She may attach exhibits supporting her position. 5. In the event the undersigned requires any further oral argument or advice from the parties, another telephonic conference call will be scheduled for that purpose, and a formal notice of hearing will be issued. 6. In the event no further oral argument or advice is required, the issues presented in the motions and response will be disposed of, pursuant to Rule 28-106.204, Florida Administrative Code, without hearing; and a disputed-fact hearing on the merits will be re-scheduled only if necessary and appropriate. 10. Petitioner did not file any response to dispute any legal or factual issue raised by Respondent. Petitioner did not file any response attacking the validity of any of Respondent's exhibits. Petitioner did not file any response attacking any portion of the Commission's referral package. Therefore, the filed items may be presumed to be authentic, and the pending Motions may be addressed without an evidentiary hearing. 11. Petitioner filed with the Commission a charge of discrimination against Respondent Employer. That charge was assigned FCHR Case No. 2003342, and was dismissed by the Commission on or about December 6, 2002. 12. On October 18, 2002, Petitioner filed with the Commission a second charge of discrimination, the charge of discrimination underlying the instant case. The Commission assigned the instant charge FCHR Case No. 23-00222. 13. This instant charge of discrimination herein states that Petitioner was notified on October 14, 2001, that she would be terminated by the Employer on October 18, 2001. This charge of discrimination was signed by Petitioner on October 18, 2002. Therefore, it could not have been filed with the Commission before October 18, 2002. The date of October 18, 2002, is more than 365 days after October 14, 2001. See Section 760.11(1), Florida Statutes. 14. By a "Determination: No Jurisdiction" entered May 23, 2003, the Commission's Executive Director found and concluded that all jurisdictional requirements for coverage had not been met, to wit: : The Complainant was notified on October 12, 2001, that she would be terminated effective October 18, 2001, and she received a termination letter on October 14, 2001. Thus the 365-day period for filing a claim with the Commission commenced on October 12, 2001. Complainant, however, filed her complaint on October 18, 2002, which is 370 days from the date she first received notice. 6. The Commission does not have jurisdiction over the complaint because it was filed more than 365 days from the date the Complainant received notice that she would be terminated. 15. While the Director's foregoing findings/conclusions do not bind this forum's de novo proceeding, the Commission's acknowledgement that the instant charge of discrimination was not filed with it until October 18, 2002, constitutes competent evidence of that filing date and is relevant in this proceeding. 16. Attached to Respondent's first Motion for Summary Final Order is a copy of the instant charge of discrimination which shows the Commission's "October 18, 2002," date stamp. Also attached thereto is a Disciplinary Action Report dated October 12, 2001, which shows that Petitioner saw the report but refused to sign it on the same date of October 12, 2001. This report is, in effect, a notice of termination to take effect on October 18, 2001. Another exhibit to this pleading is Petitioner's October 12, 2001, written request to the Employer for a pre-termination hearing. All of these items indicate that Petitioner had notice on October 12, 2001, that she would be terminated, effective October 18, 2001. 17. No one has explained what effect a pre-termination hearing would have had on the planned termination date. No evidence that a pre-termination hearing was ever held has been presented. 18. Petitioner was effectively terminated by Respondent on October 18, 2001. 19. A "Notice of Determination: No Jurisdiction," entered by the Clerk of the Commission on May 23, 2003, provided: The parties are advised that the Complainant may request that a formal, post- investigative proceeding be conducted. The Request for Hearing/Petition for Relief must be filed within 35 days of the date of mailing of this Notice and should be in compliance with the provision of Rule 60Y- 5.008 and Chapter 60Y-4, Florida Administrative Code. A Petition for Relief form in enclosed. If you elect to file a Petition for Relief, it may be beneficial to seek legal counsel prior to filing the Petition. This action will not become final until time has expired for Complainant to file a Request for Petition for Relief. Failure of Complainant to timely file a petition for relief will result in dismissal of the complaint pursuant to Rule 60Y-5.006, Florida Administrative Code. 20. Accordingly, the last date for filing a Petiton for Relief on the instant charge was June 27, 2003, per Section 760.11(7), Florida Statutes, and 60Y-5.008, Florida Administrative Code. 21. Petitioner FAXED her Petition for Relief to the Commission. Petitioner's FAX cover sheet indicated that, Ms. Razavi, I am faxing this again, since I'm not aware that you have rec'd it yet. I first sent it on Thurs. 26th to a different fax #. The young lady sitting in for Barbar gave me this one. Thanks. 22. On July 1, 2003, the Commission date-stamped receipt of the foregoing cover letter and the Petition for Relief, which it transmitted to the Division of Administrative Hearings on the same date. 23. An Affidavit of Violet D. Crawford, Clerk of the Florida Commission on Human Relations, states that Petitioner's Petition for Relief was received by way of facsimile to the Commission on June 30, 2003, but that it was clocked-in on July 1, 2003.
Conclusions For Petitioner: Michelle Burt, pro se 2121 West Pensacola Street, PMB 538 Tallahassee, Florida 32304 For Respondent: William Haselden, Esquire City of Tallahassee 300 South Adams Street, Box A-5 Tallahassee, Florida 32301-1731
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing this cause for lack of jurisdiction. DONE AND ENTERED this 23rd day of September, 2003, in Tallahassee, Leon County, Florida. Lahn alan ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 2003. 12 COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Michelle Burt 2121 West Pensacola Street, PMB 538 Tallahassee, Florida 32304 William Haselden, Esquire City of Tallahassee 300 South Adams Street, Box A-5 Tallahassee, Florida 32301-1731
