The Issue Whether Respondent discriminated in its hiring and employment practices against Petitioner based upon his age.
Findings Of Fact Petitioner, Timothy Cahill, is a 1976 graduate of the University of Iowa with a degree in education. He spent ten years working as a manager for Hy-Vee Foods, Inc. (Hy-Vee), one of the larger privately held food and grocery chain stores in the country. Petitioner was also a skilled, competitive golfer. After working for Hy-Vee for ten years, Petitioner decided to change careers and pursue a career as a golf professional. In 1986, he began working as an assistant golf professional at a private golf club in Omaha, Nebraska. The following year, he was hired as an assistant golf pro at Tiger Point Golf and Country Club in Gulf Breeze, Florida, which was owned by Jerry Pate, a well-known playing professional and golf course architect. Petitioner worked at Tiger Point for two years completing the Professional Golf Association’s (PGA) Golf School Business School curriculum, the player’s ability test, oral comprehensives, and apprenticeship program. This certified him as a PGA “Class A” Professional (Class A Professional). Petitioner was employed as the Head Golf Professional at Musgrove Country Club an 18-hole facility in Jasper, Alabama, from 1989-1992. There was an average of 15,000 rounds of golf played at this club annually when he resigned to take a position at Oxmoor Valley. Petitioner was employed in 1992 as the property manager and director of golf at Oxmoor Valley, the first of the Robert Trent Jones Golf Trail courses in Alabama. In this position he coordinated and developed a $2.1 million budget for the facility in Birmingham, Alabama. This course was a 36-hole course that immediately drew 83,000 rounds of golf a year. In 1994, Petitioner was recruited to return to Tiger Point, which had been purchased by K.S.L. Fairways Group (KSL), as the “Director of Golf/Head Golf Professional.” He managed golf operations at Tiger Point. At this time, Petitioner was 39 years old. He reported directly to the property manager at Tiger Point, Lance Guidry. The property manager’s office was in the club’s clubhouse, and Guidry was primarily responsible for club operations including food and beverage, coordinating course maintenance, and golf operations. Petitioner was primarily involved with operations of the golf store, where his office was located, scheduling golfing events, and golfing operations. He eventually oversaw the golf operations at affiliated courses as head golf professional. This permitted young golf professionals to apprentice under him, and he was a resource person for managing their operations. During all times material to Petitioner’s complaint, KSL owned and operated Tiger Point and 27 other golf courses and clubs around the country. At the time Petitioner was hired, KSL owned two smaller, 18-hole courses in the panhandle of Florida: Scenic Hills in Pensacola and Shalimar Point in Shalimar/Ft. Walton Beach. Shortly after August 1995, KSL purchased a fourth 18-hole course named Hidden Creek in Navarre. KSL is subject to the Florida Civil Rights Act. Tiger Point was typical of KSL’s operation. It was a country club; however, it was open to public play. In this regard, it was a drawing card to visitors enjoying golfing junkets to the region. Tiger Point drew over twice as many package rounds as the other clubs owned by KSL in the region. It was the primary draw, and Petitioner, as mentioned above, functioned as the PGA golf professional for the other clubs. This meant that the golf professionals at the other facilities could apprentice under him as a Class A Professional, and earn credit towards becoming Class A Professionals. This was a drawing card for these professionals, who were mostly young, former college golfers attempting to make careers as touring or club professionals. Joey Garon was the District Manager for club operations in the panhandle. When Petitioner was hired, Garon was physically located at the Scenic Hills golf course where he was also the property manager. In January 1995, Garon moved to Tiger Point, transferred Guidry to Shalimar Point, and took over as the property manager at Tiger Point. On March 29, 1995, Garon performed an evaluation of Petitioner’s performance of his duties as Head Golf Pro. See Petitioner’s Exhibit 5. Garon rated him highly; the sales from his golf store were among the highest in KSL. He was well respected by members, young professionals who worked under him, and guests at the facility. Property managers averaged $45,000 per year, and the Tiger Point Property Manager made $50,000 a year. Garon had additional duties and made more. Petitioner was making $40,000 in the early fall of 1995. In the late summer of 1995, Hurricane Erin stuck the Florida panhandle and did serious damage to the area, including Tiger Point. Damage was done to the club, to the course, and to facilities in the area such as hotels and motels. Power was lost in many areas for two to three weeks. Traffic was restricted to Santa Rosa Island. Less than two months later, Hurricane Opal struck the same region causing greater damage. Because of the nature of Tiger Point’s business, these storms seriously impacted business. Various cost-cutting measures were instituted and some assets were sold to reduce losses. A review of all the positions in the panhandle was conducted. Personnel expense on hourly employees was reduced by sending non-essential personnel home early. Garon and the President of KSL, Eric Affeldt, decided to reduce Petitioner’s salary by 25 percent, from $40,000 to $30,000. Petitioner was told in November that his salary would be reduced in this manner, and if he did not like it, he could leave. At the same time, his assistant club professional, Sam Harrell, was discharged. Garon explained to Petitioner that Harrell was being fired because “new blood was needed,” “Harrell did not fit the image,” and “new faces” and “younger legs” were needed. Harrell was in his late 30’s. No evidence was received that other salaried employees at Tiger Point or the other clubs were discharged or had their salaries reduced although there were salaried employees at the other KSL facilities whose profits had been impacted adversely by the storms. Petitioner accepted the salary cut because the holidays were coming up; he had a family to feed; and there was no way he could quit so abruptly. Sam Harrell was permitted to stay on at the facility at give golf lessons, however, as an independent contractor. In December 1995, while on a golfing trip to a KSL course in South Florida, Garon advised Petitioner that Eric Affeldt had decided to restore his former salary. Petitioner was not offered his lost salary. Garon stated at hearing that the reason this was done was that it was the right thing to do; his testimony in this latter regard is not credible. Nothing was mentioned to Petitioner at this time or at any other time about plans to eliminate or consolidate positions within the company because of the bad earnings. Two weeks after Petitioner’s pay was cut, KSL transferred Patrick Barrett to Tiger Point as the property manager and increased his salary to $50,000 year. Garon stayed on as Regional Manager until June of 1996. His pay was charged to Tiger Point for 60 days after he departed and assumed duties at a new KSL facility. On the morning of March 26, 1996, there was a staff meeting at Tiger Point chaired by Barrett. Barrett mentioned that there might be personnel reductions; however, after the meeting, Petitioner specifically asked Barrett about him and his staff. Barrett stated that they had done well and had added to the facilities' bottom line. Petitioner had worked to increase dues-paying club memberships as a means to offset financial losses from the loss of tourists’ dollars. That afternoon, Garon announced to Petitioner that Petitioner was terminated immediately. KSL wrote a letter that indicates that Petitioner’s discharge was in no way performance related. Garon testified at hearing that Petitioner had indicated in early 1995, before the storms and before the financial problems, that he did not want a club management position based upon his experience with these positions in Alabama. This was Garon’s rationale for not offering the property manager’s position to Petitioner, and promoting Barrett. It is not credible that Garon held an honest belief that Petitioner would not accept the position of property manager at an increase of $10,000 a year in salary as an alternative to discharge. Petitioner stated that he did not want to be in management in two off-hand remarks to an abstract inquiry about his interest in a management position. Petitioner's comments were irrelevant to the post-storm situation facing Petitioner. It is not controverted that Barrett is younger than Petitioner. Garon testified that Barrett performed the duties of Director of Golf and Property Manager. This is not supported by the facts. The testimony of those who were in a position to observe golf operations before and after Petitioner’s discharge indicated that Barrett was seldom in the golf store and had nothing to do with the day-to-day duties of the Director of Golf. He did not run the store; he did not organize events; he did not supervise the employees directly. The budget for 1996 had been prepared by Petitioner before his discharge. The duties previously performed by Petitioner were performed by a succession of younger, less qualified employees all of whom were paid substantially less than Petitioner. From March 26 until June 3, 1996, John Fell performed the duties. Fell was 29 or 30 years old. He ran the golf shop, he conducted tournaments, and he supervised the other employees. When he resigned in June, John Ferrel was brought in. Ferrel was approximately the same age as Fell. Ferrel handled golfing play; and Gary James was retail coordinator, ordering and selling merchandize. These men did what Petitioner had done at Tiger Point. Leah Head transferred to Tiger Point in late 1996. She was in her late 20’s or early 30’s. She started at $25,000 as the head golf pro, but when she realized that she was to be responsible for all of the shop and golf, she demanded and got a salary of $30,000. Her performance evaluation indicates that she was performing the duties of Director of Golf to include improving sales and service, managing inventory, golf operations, tournaments, conducting employee/department meetings, setting goals for the department, and taking responsibility for poor staff performance. She was unaware that Barrett was calling himself “Director of Golf,” and considered him the general manager of the property. Head and others testified there was no essential difference between the titles Director of Golf and Head Golf Professional. The facts reveal that Petitioner’s duties were performed by younger persons, in some instances, transferred to Tiger Point for that purpose. Barrett did not really assume responsibility for the golf, and was Director of Golf in name only as reflected in Head’s designation of duties on her performance evaluation by Barrett. Tamara Bass testified regarding her experience at Tiger Point. Bass was in her 20’s. She had begun at Tiger Point a month before Petitioner’s discharge. His discharge adversely impacted her plans for obtaining her Class A Professional’s certification. She spoke with Barrett about this, and Barrett stated to her that he was interviewing to replace Petitioner with someone younger, cheaper and less experienced. Within several months, Head was hired. Following his discharge, Petitioner sought employment in the Panhandle area. He owned a house adjoining the Tiger Point course, his wife was employed at a local hospital, and his school age children were in local schools. It was not practical to uproot the family at this juncture. His job search was not helped by the fact that KSL owned several of the courses in the area; however, he did find employment, and eventually reached the salary he was making when discharged by KSL. However, he was without meaningful employment for several months; he was under-employed for several months, and it was several years before he reached the salary he was making when he was discharged, and, then, had to commute 86 miles to work. Petitioner received unemployment from April until October 12, 1996, in the amount of $11,141. He would have made $19,994 at Tiger Point during that period, his expenses were estimated (See Exhibit 16) and are disallowed. His economic loss was $8,853 for this period. From October 13, 1996 until December 1996, Petitioner made $7,296 at Ft. Walton Beach Golf Club. He worked 66 days, and commuted each working day 76 miles. At $.31/mile he had $1,555 in travel expenses. His meals were included in his compensation at Tiger Point, and he had to pay for his meals at Ft. Walton Beach Golf Club. His lunch was $3.00 each working day for a total of $198. He would have earned $9,228 at Tiger Point. Petitioner’s economic loss for this period was $3,685. From January until October 1997, Petitioner made $24,320 at Ft. Walton Beach Golf Club. He would have made $30,760 at Tiger Point. His economic loss for the period was $6,440. From November until December 1997, Petitioner made $7,668 at Ft. Walton Beach Golf Club. He would have made $9,228 at Tiger Point. His lost wages for November and December are $1,560. His expenses to commute to Ft. Walton Beach for the year were based upon a 50-week year, working six days a week, and commuting 76 miles each day at $.31/mile. This was a total of $7,068. His meals for 298 days at $3.00 a day were $894. His total economic loss for 1997 was $15,962. From January until April 25, 1998, Petitioner made $12,780 at Ft. Walton Beach Golf Club. He would have made $15,380 at Tiger Point. He commuted a total of 96 days, 76 miles each day at a cost of $.31/mile. This was a total of $2,261.61. His meals for 96 days at $3.00/ day were $288. His total economic loss for the period was $5,149.61. From May until December 1998, Petitioner made $29,536 at Glen Lakes Golf and Country Club. He would have made $24,608 at Tiger Point. He commuted a total of 192 days, 86 miles each day at a cost of $.31/mile. This is a total of $5,118.72. His total economic loss for the period was $190.72. For 1999, Petitioner made $48,000 at Glen Lakes Golf and Country Club. He would have made $40,000 at Tiger Point. He commuted a total of 275 days, 86 miles a day at $.31/mile. This was a total of $7,331.50. For the first time since his discharge, Petitioner exceeded his prior salary by $668.50.
Recommendation Based upon the foregoing findings of fact and conclusion of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter its final order finding that Respondent engaged in age discrimination, directing Respondent to pay Petitioner the amount of Petitioner's economic losses and directing Respondent to cease and desist from discriminatory employment practices in its businesses. DONE AND ENTERED this 30th day of April, 2002, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 2002. COPIES FURNISHED: John C. Barrett, Esquire 5 Calle Traviesa Pensacola Beach, Florida 32561 David S. Shankman, Esquire Post Office Box 172907 Tampa, Florida 33672-0907 Denise Crawford, Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 240 Tallahassee, Florida 32303-4149 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 240 Tallahassee, Florida 32303-4149
The Issue The Department adopts and incorporates in this Final Order the Statement of Issues contained in the Recommended Order.
Findings Of Fact Respondent has submitted two (2) exceptions to the Hearing Officer's Findings of Fact in the Recommended Order. These two exceptions are rejected for the reasons set forth below. Respondent's First Exception-- Finding of Fact No. 5: The Hearing Officer's finding that Rebos Club does not control the hot-line is supported by substantial competent evidence. Testimony indicated that Rebos Club does not provide counseling training to the employees or volunteers that answer the phone. Volunteers or employees handle each call using their own discretion-- they do not follow procedures or guidelines established by Rebos Club. This exception is therefore rejected. Respondent's Second Exception-- Finding of Fact No. 5: The statement as to the nature of "12th step calls" is not relevant, and is therefore rejected. RULINGS ON EXCEPTIONS TO CONCLUSIONS OF LAW Respondent has submitted two (2) exceptions to the Hearing Officer's Conclusions of Law in the Recommended Order. These two exceptions are rejected for the reasons set forth below. Respondent's First Exception-- Conclusion of Law No. 32: The Hearing Officer's findings that Rebos Club itself does not provide counseling services to alcoholics or their families, and that it does not offer active intervention has been revised in this Final Order's modification of the Hearing Officer's Conclusion of Law Number 32. This exception therefore, now is not relevant. Respondent's Second Exception- Conclusion of Law No. 34: The Hearing Officer's findings that Rebos Club does not provide the direct services required by statute and does not spend in excess of 50 percent of its expenditures directly towards a referenced charitable concern has been revised in this Final Order's modification of the Hearing Officer's Conclusion of Law Number 34. This exception is now, therefore, not relevant.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Pinellas Rebos Club's application for reissue of a sales tax exemption certificate be granted. RECOMMENDED this 8th day of February, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 8th day of February, 1996. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 95-1800 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Accepted and incorporated herein. Accepted. - 8. Accepted and incorporated herein. Accepted. - 12. Accepted and incorporated herein. 14. - 17. Accepted and incorporated herein. 18. - 22. Accepted and incorporated herein. First clause rejected. Balance accepted. Accepted and incorporated herein. - 28. Accepted and incorporated herein. Accepted and incorporated herein. Not a proper Finding of Fact. More a statement of agency rule interpretation. FOR THE RESPONDENT: Accepted and incorporated but also a statement of the law. & 3. Accepted and incorporated herein. Not a proper Finding of fact but more a comment on the nature of the evidence. Accepted and incorporated herein. & 7. Accepted and incorporated herein. Accepted but not of major evidentiary import. & 10. Accepted and incorporated herein. Accepted and incorporated herein. & 13. Accepted and incorporated herein. 14. & 15. Accepted. COPIES FURNISHED: Nancy Francillon, Esquire Olivia P. Klein, Esquire Office of the Attorney General The Capitol - Tax Section Tallahassee, Florida 32399-1050 Carl A. Schuh, Esquire 256 3rd Street North St. Petersburg, Florida 33701 Larry Fuchs Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100 Linda Lettera General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100
Findings Of Fact The Subject Property. The Applicant is the owner of approximately 799.58 acres of land (hereinafter referred to as the "Country Club Property"), located on Loch Rane Boulevard, Clay County, Florida. In the early part of 1987, the Applicant applied to rezone the Country Club Property as a planned unit development district (hereinafter referred to as a "PUD"). The Country Club Property is to be developed in phases. At issue in this proceeding is that portion of the Country Club Property other than Unit One, which consists of lots 1 through 295. Development of the Property; Government Action Relied Upon by the Applicant. Prior to approving the rezoning of the Country Club Property requested in the early part of 1987, Clay County advised the Applicant that it would be required to commit to resignalize and expand the Loch Rane/Blanding Boulevards interchange as a condition to Clay County approving the rezoning of the Country Club Property as a PUD. Clay County approved the requested rezoning of, and the master land use plan for, the Country Club Property on March 24, 1987. The master land use plan specifies that the Country Club Property will include development of the following: (a) up to 599 single-family dwelling units within the residential portion; (b) ten acres of commercial uses, including retail shops, a day-care center and a restaurant; (c) a sales center; and (d) a golf course and club facilities. Engineering plans for phase one of the proposed development were submitted to Clay County in 1987. As part of the engineering plans, the Applicant obtained permits from the Army Corps of Engineers, the St. Johns' River Water Management District and the Florida Department of Environmental Regulation. The plat for phase one of the Country Club Property was submitted to Clay County and on May 12, 1987, Clay County approved the final plat for phase one. In April, 1989, the Applicant applied for building permits for construction of the golf course clubhouse, pool facilities and the golf cart storage barn. Permits for these facilities were issued by Clay County in October, 1989. In 1991, engineering plans for phase two of the Country Club Property were submitted to Clay County. They were approved effective January 1, 1992. On February 12, 1993, Clay County issued a Vested Property Certificate for phase one of the development, Lots 1 through 295 of Unit One, pursuant to Section 20.8-6 of the Vested Rights Review Ordinance of Clay County, Florida. The Applicant's Detrimental Reliance. In reliance on Clay County's actions in approving the PUD rezoning and accompanying master plan and the engineering plans for phase one and phase two, the Applicant constructed master infrastructure improvements for the project. Improvements have included drainage, water and sewer systems, a master road system designed and sized to serve the entire development at a cost of approximately $4,972,670.00. These improvements were made between November, 1988 and April, 1990. The Applicant has also constructed the entry features for the Country Club Property, master recreational facilities, including an eighteen-hole golf course, golf course clubhouse, pool and tennis facilities and a sales center. Total costs of these improvements were approximately $7,224,917.00. These improvements were made between November, 1988 and April, 1990. Finally, the Applicant has resignalized and expanded the Loch Rane/Blanding Boulevards interchange. The cost of these improvements was approximately $72,000.00. These improvements were made between October, 1991 and January, 1992. Rights That Will Be Destroyed. Pursuant to the Clay County 2001 Comprehensive Plan, the portion of Blanding Boulevard impacted by the Country Club Property development does not have sufficient capacity to develop the property as proposed. To comply with the comprehensive plan will require considerable delays in completion of the project which will result in a substantial adverse financial impact on the Applicants. Procedural Requirements. The parties stipulated that the procedural requirements of the Vested Rights Review Process of Clay County, adopted by Clay County Ordinance 92-18, as amended by Clay County Ordinance 92-22 have been met.
The Issue The issues are whether Petitioner is entitled to attorney fees and costs pursuant to Section 120.595(3), Florida Statutes, and if so, in what amount.
Findings Of Fact Petitioner was the prevailing party in DOAH Case No. 00-1600RX on one of two challenged rule provisions. In that case, the challenge to Rule 61K1-1.0011(3)(c), Florida Administrative Code, which required all contracts between a manager and a boxer to be filed with Respondent within seven days of execution, was dismissed on its merits. Rule 61K1- 1.0011(3)(g), Florida Administrative Code, and Form BPR-0009451 incorporated therein, were found to be invalid exercises of delegated legislative authority to the following extent: (a) that Rule 61K1-1.0011(3)(c), Florida Administrative Code, deemed contacts between managers and boxers to contain all provisions set forth in Form BPR-0009451; and (b) that Form BRP- 0009451 deemed contracts between managers and boxers to be void if the managers were unlicensed on the date their contracts were executed or if the managers failed to file the contracts with Respondent within seven days of execution. Respondent presented no evidence, testimonial or documentary, in DOAH Case No. 00-1600RX or the instant case, showing that it had a reasonable basis in fact to promulgate Rule 61K1-1.0011(3)(g), Florida Administrative Code, and Form BPR-0009451 incorporated therein, in 1985 or thereafter to amend, enforce, or defend said rule and form. Respondent admits that it has not maintained the pertinent rulemaking record required by Section 120.54(8), Florida Statutes. There is no competent evidence that Respondent in fact conducted the mandatory rule reviews required by Section 9 of Chapter 96-159, Laws of Florida, or Section 3 of Chapter 99-379, Laws of Florida. Respondent did not file post-hearing depositions showing that it ever conducted these rule reviews. Respondent admitted during the hearing of the instant case that it had no written documentation confirming that the rule reviews took place. There is no factual evidence showing the existence of special conditions that would make an award of attorney's fees and costs unjust in this case. There is no evidence showing how to allocate Petitioner's requested attorney's fees and costs between the two challenged rule provisions. The record in DOAH Case No. 00-1600RX does not indicate that the Intervenor Danny Santiago created duplicitous and unnecessary work for Petitioner and Respondent. Two of the depositions taken on December 5, 2000, at the instance of Intervenor Danny Santiago and over Respondent's objections, were filed in DOAH Case No. 00-1600RX, becoming part of the record in that case. Moreover, there is no evidence showing how to allocate a portion of Petitioner's requested attorney's fees and costs to work created exclusively by Intervenor Danny Santiago. Petitioner filed an Affidavit of Attorney Fees and Costs on March 19, 2001. Petitioner seeks to recover $13,235 in fees and costs. Petitioner presented competent evidence that the requested attorney's fees were reasonable based on the number of hours expended (66.175) and the rate charged per hour ($200). Petitioner also presented competent evidence that an expert witness fee in the amount of $1,000 is reasonable in this case. Respondent objected to Petitioner's requested attorney's fees as they relate to the following specific charges: (a) charges pertaining to an unrelated case in which Respondent sought to discipline Petitioner for violating Respondent's rules; (b) charges relating to Petitioner's Motion to Compel Discovery after Petitioner improperly served the original discovery requests and was required to serve the discovery requests a second time; and (c) charges relating to the preparation of the instant motion for fees and costs. Petitioner agreed to reduce his claim for fees and costs by the amount of the disputed charges if Respondent could provide the total amount. After much discussion, the parties agreed to file a post-hearing stipulation as to the amount to be deducted from Petitioner's claim. The parties never filed that stipulation. The undersigned has compared the record in DOAH Case No. 00-1600RX with the list of charges for fees and costs attached to Petitioner's Affidavit of Attorney Fees and Costs. The undersigned has also taken into consideration Respondent's objections to certain charges and Petitioner's acquiescence to those objections. The record reveals that Petitioner is not entitled to recover the following: (a) charges on April 13 and 27, 2000, in the amount of $100 that pertain to a request for and granting of oral argument that did not occur in the underlying case; (b) charges on July 6, 2000, and July 31, 2000, in the amount of $100, relating to review of an unidentified motion to compel and review of an order granting that motion, which did not occur in the underlying case; (c) charges on July 17 and 27, 2000, and August 14, 2000, in the total amount of $320, relating to Petitioner's improper motion to compel discovery after Petitioner incorrectly served the original discovery requests on the Attorney General and was required to serve the discovery requests a second time; (d) a charge on August 24, 2000, in the amount of $200 for attendance at court, which did not occur in the underlying case; (e) a charge on September 11, 2000, in the amount of $50 for review of an order dismissing with prejudice, which did not occur in the underlying case; (f) charges on February 23, 2001, in the amount of $80, relating to the preparation of the instant motion for fees and costs; and (g) charges on October 26, 2000, in the amount of $500 for travel to a deposition. The reduction amount for attorney's fee charges totals $1,350. There are no other identifiable disputes over amounts claimed by Petitioner as recoverable expenses or costs. Therefore, Petitioner is entitled to recover $11,885 in attorney's fees and costs incurred in DOAH Case No. 00-1600RX and an additional $1,000 for expert witness fees in the instant case, for a total recovery in the amount of $12,885. This amount is reasonable under the facts of this case. The record in DOAH Case No. 00-1600RX clearly reflects that Respondent had sufficient and timely notice of Petitioner's intent to seek attorney's fees and costs prior to the entry of the Final Order. In Respondent's meeting on December 6, 2000, Respondent's counsel advised Respondent several times that it would be liable for attorney's fees and costs if the challenged rules or portions thereof were found to lack statutory authority. Counsel for Petitioner and Intervenor Danny Santiago made appearances on behalf of their respective clients at that meeting. Petitioner made his first formal demand for attorney's fees and costs in his Proposed Final Order, which was filed in DOAH Case No. 00-1600RX on January 22, 2001. Respondent filed its Statement of Defenses to Petition for Attorney Fees in the instant case on March 19, 2001. Respondent raised the issue that Petitioner's demand for attorney's fees and cost was untimely for the first time in Respondent's Proposed Final Order filed in the instant case on May 11, 2001.
The Issue Whether Respondent's employment as a bartender/waitress at the Tarpon Springs Golf Course was terminated by the City of Tarpon Springs in accordance with the City's Personnel Rules and Regulations?
Findings Of Fact An Employer-Employee Relationship From December 20, 1995 until her termination on November 14, 1996, Deborah Monley was employed by the City of Tarpon Springs as a part-time bartender/waitress at the City's municipal golf course. Her duties at the course's "inside" bar consisted of serving beer and wine and food such as hot dogs and packaged snacks. Prior to the initial date of her employment with the City, the golf course was privately owned with Ms. Monley as the employee in charge of the course's inside bar. The City kept Ms. Monley as an employee when it acquired the golf course on December 20, 1995, making that day her first as a City employee. Management and Staffing During the time covering the events pertinent to this case, the golf course was supervised by Mike Hoffman, the Golf Course Manager. He was assisted by Michael Houlis. As an assistant manager, Mr. Houlis was primarily responsible for the food and beverage operations of the golf course. Since Ms. Monley was a food and beverage employee, her supervision fell in the first instance to Mr. Houlis, although Mr. Hoffman had ultimate supervisory authority over her position. The bar operated seven days a week. In the fall of 1996, it was staffed in the main by three employees who were assigned regular shifts. Ms. Monley, normally on duty four days a week, worked the most hours of the three. A second employee, Tom Bowman, worked two to three days per week. Peggy Johnson, the last of the three regular employees, worked one day a week. From time-to-time, the City would call on Pearl Standahl to fill in for the three regular employees on an as-needed basis. But whether Ms. Standahl would provide assistance or not in any given instance was nothing upon which the City could rely with certitude. The City's arrangement with her allowed her to decline for whatever reason whenever requested to work. As obstacles arose on different occasions to the ability or convenience of any one of the three regular employees to be at work, another would cover for the absent employee. If, for example, an emergency came up for one, another employee would fill in or if one employee needed to switch a day, another would usually be willing to accommodate the switch. Management did not object to these informal arrangements among the employees so long as the snack bar was covered by any of the three regular employees or Ms. Standahl. Autumn of 1996 The events critical to the facts of this case occurred in the fall of 1996. The Tournament In late October, one of the major annual events for the golf course was under way: a tournament involving a group of golfers from North Carolina. A reciprocal event was held each year in North Carolina at another time of the year for members of the Tarpon Springs Golf Course. These reciprocal golf tournaments had been annual events for some 25 years. During the tournament in 1996, Ms. Monley met and became friendly with one of the seventy or so North Carolina golfers. He was identified at hearing only as "Terry." Ms. Monley attended some of the tournament's events in Terry's company over the several days the tournament lasted. A Request for Time Off On Monday, October 28, 1996, Ms. Monley asked Mr. Houlis if she could take off Friday, November 14, 1996 and Monday, November 17, 1996 as vacation days so that she would be able to enjoy a long weekend in North Carolina. Aside from her developing relationship with Terry, Ms. Monley felt that she deserved the time off. The only real time away from work she had had in the recent past was sick leave following surgery. Although she had wanted to use accrued vacation leave, she had been required to work the entire summer sometimes five or six days a week from 7 a.m. until 6 or 7 p.m., because, in her view, the bar was not then adequately staffed. In response to the request, Mr. Houlis advised Ms. Monley that there was "no problem" as long as there was someone to cover for her on the two days she would have otherwise worked. Mr. Houlis planned on asking Tom Bowman if he could cover for Ms. Monley. Domestic Violence On the evening of October 29, 1996, Ms. Monley and her two children were subjected to or present at home during acts of domestic violence committed by Ms. Monley's former boyfriend. Ms. Monley called the police. After responding, one of the officers advised Ms. Monley that she should obtain a "domestic violence" injunction against her ex-boyfriend as soon as possible the next day, October 30. October 30 The following day, October 30, 1996, was a Wednesday. Wednesday is a busy day of the week at the golf course. Typically, the course is crowded in the early morning. The snack bar is busy as golfers arrive and enjoy coffee or a breakfast snack while they wait for their tee time. At home early that morning, Ms. Monley faced a difficult decision. Her eight-year-old son was not feeling well and did not go to school. Ms. Monley feared that her ex- boyfriend might come to the house. He had been on prescription medication, drinking, and irate the night before when the domestic violence had occurred. She worried that he could pose a danger to her son. She also knew that she was expected at work on what promised to be a busy day. Furthermore, she had to obtain the "domestic violence" injunction as soon as possible. She decided she would go to work, ask to be allowed to leave after the morning rush (around 8 to 8:30 a.m.), obtain the injunction and return home well before noon, all the while hoping her ex-boyfriend would not have come by. She hoped, too, that arrangements to cover her position at the course could be made by Mr. Houlis during the time she handled the morning rush. To assist her son in case her former boyfriend showed up while she was at work or seeking the injunction, Ms. Monley instructed her twelve-year-old daughter, whom she regarded as unusually mature for her age, to remain at home with the eight-year-old. Ms. Monley reported to work as scheduled. She met with Mr. Houlis and advised him of the domestic violence the evening before. She also told him that her son was ill at home and that she needed to leave work to attend to him as well as obtain the injunction. Mr. Houlis told Ms. Monley that he would attempt to have another employee cover for her as soon as possible so that she could leave. Ms. Monley left to attend to her job, but she did not think Mr. Houlis appreciated the gravity of the situation or its exigent nature. Nonetheless, Mr. Houlis called Tom Bowman right away. He did not reach him but left a message on his answering machine. Mr. Bowman was good about returning calls so Mr. Houlis felt that he would hear from him in a reasonable amount of time. Mr. Houlis was fully aware that Ms. Monley needed time off during the day, but he was not aware of the direness of her predicament. He felt that Ms. Monley had informed him of the circumstances in a "casual" way rather than in a way that indicated that she needed to leave as soon as possible, if not immediately. While Mr. Houlis attempted to reach Mr. Bowman, Pearl Standahl arrived at the course, not for work, but to play golf. Ms. Monley asked her to fill in for her. Ms. Standahl refused. At approximately 10:30 a.m., Styllianous Splinis (known as "Stan") entered the bar area. Stan Splinis is a City employee who works at the golf course handling all the money that constitutes golf course revenue and manning the pro shop where most of the money is received. Mr. Splinis, however, is not under the supervision of golf course management. Instead, he is supervised by the City Clerk. Although he had occasionally filled in at the bar, bartending is not part of his regular duties. He has been informed by the Clerk's office that the City Clerk disapproves of his doing so. By the time of Mr. Splinis' entry into the bar area the morning of October 30, 1996, Ms. Monley had become agitated. Mr. Houlis did not appear to her to be making much of an effort to get a replacement. Ms. Standahl had preferred to play golf rather than help her out in a moment of real need. But most of all, she was worried about the safety of her children and the need to obtain the injunction. Ms. Monley believed, moreover, that Mr. Houlis was not making much of an effort because of a previous private encounter in which she had rebuffed what she interpreted as Mr. Houlis' romantic interest in her. What she saw as indifference stemming from resentment was exacerbated during the recent tournament for the North Carolina golfers. Mr. Houlis, at the time having trouble with his girlfriend, inquired about Ms. Monley's relationship with her boyfriend, who would soon be charged with domestic violence. Ms. Monley believed that Mr. Houlis stopped talking to her when he learned that she had met Terry during the tournament. (Mr. Houlis disputes Ms. Monley's interpretation and assumptions; he believes that their relationship outside of work had never been anything more than casual friends.) As soon as Mr. Splinis appeared, Ms. Monley's state of agitation turned to action. She locked up her cash drawer, handed Mr. Splinis the key, and left work without clearing her departure with Mr. Houlis. In Ms. Monley's absence, Mr. Splinis took over at the bar. He informed Mr. Houlis of Ms. Monley's departure and worked the rest of her shift. When Ms. Monley reached her home, her ex-boyfriend was present. As she feared, he was threatening her son. She called 911. By the time the police arrived, the ex-boyfriend was gone. One of the police officers who responded, John Ulrich, spoke to Ms. Monley after an unsuccessful search of the neighborhood. Officer Ulrich advised Ms. Monley to remain at home. Later in the afternoon, Mr. Houlis called Ms. Monley to check on her. He, too, told her to stay home and assured her that her position was covered for the afternoon. Ms. Monley did not attempt to obtain an injunction. She remained home for the rest of the day with her children. October 31 The following day, Ms. Monley, acting on the advice of the police, went to the State Attorney's office to swear out a warrant for her ex-boyfriend's arrest. The warrant was issued. Ms. Monley decided to abandon any attempt to obtain the injunction, thinking that the warrant was at least as effective at curbing her former boyfriend's threatening behavior as the injunction would be. October 31 was also a day Ms. Monley was scheduled to work. When she arrived at the golf course, Mr. Hoffman and Mr. Houlis asked her to meet with them. Still not appreciating the seriousness of Ms. Monley's situation the day before, they told her that while sympathetic to her situation, they believed she should not have left work without permission and without following proper procedure for closing out the cash drawer. They also advised her that she was subject to discipline. No discipline, however, was decided upon or meted out. Ms. Monley left the meeting upset. As she emerged from the room, she bumped into Officer Ulrich. Officer Ulrich had come to the golf course to check on Ms. Monley in follow-up of her case and to tell her that the State Attorney would be considering the filing of charges. She was informed of the time of the deliberations since her presence would be needed. Ms. Monley, in tears, said to Officer Ulrich something to the effect of, "See, I told you I would get in trouble for leaving work." Officer Ulrich entered Mr. Hoffman's office and undertook to explain to management the real danger in which he perceived Ms. Monley to be. He entered the room where the meeting had just taken place and said to both Mr. Hoffman and Mr. Houlis something like, "I wouldn't want to be the one who had prevented Ms. Monley from obtaining an injunction." Mr. Houlis paid the officer no real attention because, in his view, the officer did not understand the other side of the story, that being management's concerns about a departure with neither notice nor observance of proper procedure. Early November On November 1, 1996, or thereabouts, Tom Bowman gave management the required ten days notice of his resignation effective a few days before the commencement of Ms. Monley's planned vacation in North Carolina. This development, unforeseen when Ms. Monley had first requested time off, meant to Mr. Houlis that it would be difficult to schedule replacements for Ms. Monley on the two days she asked to be on leave. In the meantime, Ms. Monley, believing that there should be no difficulty in covering her vacation days, purchased discount non-refundable airline tickets for the planned trip. When Ms. Monley heard that Tom Bowman was quitting, she was not concerned that it would be a problem because she thought Peggy Johnson, Pearl Standahl or Stan Splinis could cover for her. On November 3, 1997, a few days after Mr. Bowman's announcement, Mr. Houlis told Ms. Monley that her request for vacation was denied. (The parties are in agreement about this fact. See Respondent's Proposed Order of Findings of Fact and Conclusions, pgs. 8 and 11.) Mr. Houlis needed Ms. Johnson to cover some of the time Mr. Bowman would have worked had he stayed. He thought it would be difficult for Ms. Johnson to cover both Mr. Bowman's normal working days and the two days Ms. Monley would be gone because it would be too much work for Ms. Johnson at her age. Ms. Standahl was never a sure replacement and Mr. Splinis stepping up as a replacement was frowned on by the City Clerk's office. November 7 On November 7, Peggy Johnson returned to work after leave she had taken. Ms. Monley asked her if she could cover for her on November 14 and 17. Ms. Johnson replied that she could as long as management approved. Since the vacation time request had been disapproved by Mr. Houlis, Ms. Monley went directly to Mr. Hoffman to ask him about the request for time off. Ms. Monley told Mr. Hoffman that Ms. Johnson could cover her shifts but she neglected to tell Mr. Hoffman that her request had already been denied by Mr. Houlis. Mr. Hoffman replied, "As long as the shifts are covered, no problem." Ms. Monley felt reassured. She now had Mr. Hoffman's conditional consent. She remained, moreover, convinced despite Mr. Houlis' misgivings that the two days could be covered among Peggy Johnson, Pearl Standahl and Stan Splinis. In the worst case, Ms. Monley felt that Mr. Houlis, himself, could cover the bar, if necessary. By now, Ms. Monley had formed the intent to go to North Carolina no matter what. Among other reasons for her determination were that she felt she had given appropriate notice, had made informal arrangements to have the shifts covered which management usually sanctioned, had purchased non-refundable airline tickets in reliance on the timely request, thought she had been denied a vacation in the past when she clearly deserved one, and had obtained the general manager's conditional consent. Finally, she could see no real reason when she examined all the circumstances why her position could not be covered on the two days she wanted to be off. Ms. Monley's determination did not take into account several factors. She had not been given unequivocal permission by the Golf Course Manager to take the time off. The agreement with Peggy Johnson was explicitly subject to management's approval, approval Mr. Houlis was not likely to give. And Mr. Houlis, Ms. Monley's immediate supervisor, had told her that the request was denied. When Mr. Houlis saw Peggy Johnson on November 7, after Ms. Monley had spoken to her, he approached her to ask her to cover for Bowman after November 11. Ms. Johnson told him about the arrangement she had just made with Ms. Monley. In the wake of this information, Mr. Houlis conferred with Mr. Hoffman about the dilemma. The two agreed that Ms. Monley would not be able to take the days off. The Eve of the Trip and Plans Carried Out Mr. Hoffman and Mr. Houlis heard from several golf course employees that Ms. Monley intended to take off the two days that she had requested for vacation, November 14 and 17, no matter what Mr. Houlis' position might be. On Thursday, November 13, 1997, the day before the trip was to commence, Mr. Hoffman called Ms. Monley into his office to make sure that she understood management's position. In the presence of Mr. Houlis, Golf Course Manager Mike Hoffman, the head of management at the course and Ms. Monley's ultimate on-site supervisor, informed her that she did not have permission to take the vacation days requested. He told her clearly that she was expected to be at work on both the fourteenth and the seventeenth of November. Ms. Monley went to North Carolina as planned. Return to Work On November 19, 1996, Ms. Monley reported to work. She was told her conduct on October 30 and November 14 and 17 was under review. On November 20, 1996, Ms. Monley was given notice of her termination in a letter signed by Golf Course Manager Mike Hoffman. The cited basis for termination was Rule 18, Section 5 of the City's Personnel Rules and Regulations. The notice stated: On October 30, 1996, you abandoned your station around 10:00 a.m. and did not return until your next scheduled work day. You left without notifying your supervisor of your departure, even though he was readily available and accessible. In addition, on October 30, 1996, you left your cash draw without properly accounting for it and closing it out. On November 14, 1996, and November 17, 1996, you failed to report for duty as scheduled. Your absences on these dates were with the full knowledge as communicated by your supervisor on November 13, 1996, that your presence was required on these scheduled dates. Petitioner's No. 1. After her termination, Ms. Monley looked for jobs in the food industry, mainly in positions dealing directly with the public. For example, she applied at Chili's for a job as a waitress. In March of 1997, however, Ms. Monley, then more than four months pregnant, abandoned her search for work serving food since it had become futile in her condition.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That the Civil Service Board for the City of Tarpon Springs dismiss the October 30, 1996, incident as a ground for discipline and, with regard to the November absences, discipline Ms. Monley short of dismissal: suspension without pay from November 20, 1996, until the Board's consideration of this recommended order, with reinstatement as a City employee in a position outside the City Golf Course. DONE AND ENTERED this 22nd day of October, 1997, 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 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 1997. COPIES FURNISHED: Thomas M. Gonzalez, Esquire Kelly L. Soud, Esquire Thompson Sizemore & Gonzalez, P.A. Post Office Box 639 Tampa, Florida 33601-0639 William Newt Hudson, Esquire 23 West Tarpon Avenue Tarpon Springs, Florida 34689
The Issue Whether a consumptive-use permit for quantities of water as applied for should be granted.
Findings Of Fact Application No. 7500022 requested water from three (3) wells for the purpose of drinking and for the purpose of irrigation. The center of withdrawals will be located at latitude 270 degrees 56' 32" North, longitude 82 degrees 48' 19" West, plus an average of 120,000 gallons per day from a private lake located at latitude 27 degrees 56' 50" North, longitude 82 degrees 48' 11" West in Pinellas County, Florida. In well "No. 1", used for irrigation, 105,000 gallons per day, average, well "No. 2", 165,000 gallons per day average, used for irrigation; and well "No. 3", 40,000 gallons per day, used for drinking; and the lake 120,000 gallons per day for irrigation. Notice was published in a newspaper of general circulation, to-wit: The St. Petersburg Times and Evening Independent on April 28 and May 15, 1975, pursuant to Section 373.146, Florida Statutes. Notices of said public hearing were duly sent by certified mail as required by law. The application and map of the premises, the legal description, the receipt of certified mail, and the copy of the notice were received without objection and entered into evidence as "Exhibit 1". The affidavit of publication was received without objection and entered into evidence as "Exhibit 2". One letter of objection was received from Mrs. Helen Woolsey and entered into evidence as "Exhibit 3". Witnesses were duly sworn and agreement was reached on each point enumerated as required by Rule 16J2.11, Rules of the Southwest Florida Water Management District and Chapter 373, Florida Statutes. The letter of objection was examined by the parties and by the Hearing Officer and was found to be without merit inasmuch as the author was mistaken as to the subject of the hearing.
