The Issue An Administrative Complaint dated October 21, 1998, alleges that Respondent committed violations of Chapter 475, Florida Statutes, by dishonest dealing, culpable negligence, or breach of trust; by failing to account for delivering certain funds; and by violating a lawful order of the Real Estate Commission. The issues in dispute are whether those violations occurred and if so, what penalty is appropriate.
Recommendation Based on the foregoing it is, hereby RECOMMENDED: that the Agency enter its Final Order finding Respondent did not commit the alleged violations and dismissing the Administrative Complaint. DONE AND ENTERED this 27th day of April, 1999, in Tallahassee, Leon County, Florida. MARY CLARK 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 27th day of April, 1999. COPIES FURNISHED: Ghunise Coaxum, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street N-308 Post Office Box 1900 Orlando, Florida 32802-1900 Howard Hadley, Esquire 2352 Carolton Road Maitland, Florida 32751-3625 Herbert S. Fecker, Division Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 William Woodyard, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Gene Flinn (Flinn), filed Complaint Number 95-156 dated October 31, 1995, with the Commission on Ethics against John G. Tomlinson, Jr., (Tomlinson) alleging that Tomlinson committed the following unlawful acts: Advising or instructing his attorney to suborn perjury by denying to the Executive Director and Chairman of the Ethics Commission the existence of Rose Upton. Advising or instructing his attorney to certify false and misleading information to the Ethics Commission concerning himself and Rose Upton with the intent to influence the Supreme Court in Flinn's disbarment proceedings. Conspiring to or participating in the act of tampering with jurors in the 1991 trial of Flinn v. Shields. Forwarding misstatements concerning the Shield litigation to clerks of the Florida Supreme Court to effect Flinn's disbarment and to foreclose appeals. Advising or instructing his attorney to falsely inform the Ethics Commission concerning the status of law enforcement investigations being conducted of Flinn. Committing acts in violation of federal and state racketeering laws by providing false information to other Judges of Compensation Claims, resulting in loss of fees and costs to Flinn. Filing a fraudulent application with the Governor for reappointment. On January 8, 1996, Bonnie Williams, Executive Director of the Commission on Ethics, filed a Recommendation of Legal Insufficiency with the Commission, recommending that the Commission dismiss Complaint Number 95-156 without investigation as legally insufficient. On January 25, 1996, the Commission entered a Public Report and Order Dismissing Complaint, dismissing Complaint Number 95-156 for failure to constitute a legally sufficient complaint. The order stated, "No factual investigation preceded the review, and therefore the Commission's conclusions do not reflect on the accuracy of the allegations of the Complaint." The unrebutted testimony of Tomlinson is that the allegations in the Complaint are false. Based on the testimony of Tomlinson and the case, The Florida Bar v. Flinn, 575 So.2d 634 (Fla. 1991), I find that Flinn filed Complaint Number 95-156 with a reckless disregard for whether the allegations in the Complaint were false. The only evidence presented relating to the amount of the attorney's fee requested is Exhibit Number 9 which is a letter from Stephen Slepin (Slepin) to Tomlinson, stating that the fee for representing Tomlinson regarding Complaint Number 95-156 was $10,000 plus expenses. On December 1, 1995, Slepin did file a five-page response to the Commission on behalf of Tomlinson. No evidence was presented as to the amount of time that Slepin spent in representing Tomlinson relative to Complaint Number 95-156. No evidence was presented as to the nature of the actual work performed by Slepin other than the written response submitted by Slepin to the Commission. Exhibit 9 did indicate that Slepin would review the Complaint, the previous Compliant, Flinn's disbarment proceedings and Flinn's federal actions and research the applicable law. However, no evidence was presented to show what work was actually done. No evidence was presented to show what the customary charge in the community is for such services. No evidence was presented concerning the experience, ability, and reputation of the lawyer performing the services.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying John Tomlinson, Jr.'s petition for attorney's fees. DONE AND ENTERED this 1st day of July, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 1st day of July, 1996. COPIES FURNISHED: Stephen Marc Slepin, Esquire Stephen Marc Slepin, P.A. 1114 East Park Avenue Tallahassee, Florida 32301 Gene Flinn 5100 Southwest 87th Avenue Miami, Florida 33165 Carrie Stillman Complaint Coordinator Commission on Ethics Post Office Box 15709 Tallahassee, Florida 32317-5709 Bonnie Williams, Executive Director Florida Commission On Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, General Counsel Ethics Commission 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue Whether Petitioner should be ordered to pay reasonable costs and attorney's fees to Respondent, and, if so, the determination of the amounts of costs and attorney's fees.
Findings Of Fact On April 16, 1996, pursuant to Section 337.14, Florida Statutes, Petitioner submitted its Application for Qualification (Application) to bid on road and bridge contracts. On May 29, 1996, Respondent notified Petitioner of Respondent’s intent to deny the Application, based in part upon the findings of a federal administrative law judge that Petitioner had violated numerous provisions of the Occupational Safety and Health Act of 1970, 29 U.S.C. Sections 651-678 (1970) and should be assessed penalties in the amount of $2,662,834. Petitioner challenged Respondent’s denial with a request for formal administrative hearing before the Division of Administrative Hearings. Following requested continuances, a formal hearing on Petitioner’s request was convened on March 18, 1997, in Division of Administrative Hearings Case No. 96-3037. In the course of discovery proceedings, Petitioner manifested his intention to participate in the final administrative hearing. However, Petitioner did not appear at the final hearing and did not notify the undersigned or counsel for Respondent that an appearance for Petitioner would not be made. Also, Petitioner did not provide explanation for its nonappearance subsequent to that hearing. Petitioner was previously denied pre-qualification to bid on road and bridge contracts. On June 21, 1995, Petitioner had submitted its Application to Respondent and, following Respondent’s denial dated August 23, 1995, requested formal administrative proceedings. After a formal hearing in that case before the Division of Administrative Hearings, Respondent adopted the Recommended Order in its entirety, denying Petitioner’s Application. See, Recommended Order issued February 23, 1996, in Division of Administrative Hearings Case No. 95-5904 (Final Order issued March 28, 1996). On March 17, 1997, the day before the final hearing scheduled in Division of Administrative Hearings Case No. 96- 3037, Respondent received yet another Application from a firm named Anastasios Corporation. This firm performs the same type of work as E. Smalis Painting, Inc., the Petitioner in this matter, and contains an almost identical list of employees to that of E. Smalis Painting, Inc. Both applications have been filled out by hand, with handwriting that appears identical on both documents. The proof presented at final hearing in this case establishes that E. Smalis Painting, Inc., is providing financial backing for Anastasios Corporation and that Ernest Smalis is the chief executive officer of both business entities. Petitioner’s expressed intention to pursue this matter to conclusion; its subsequent failure to follow through on that intention by appearing at the final hearing in Division of Administrative Hearings Case No. 96-3037, or providing either notification of such absence or subsequent explanation; its previous application filing in Division of Administrative Hearings Case No. 95-5904; and its latest filing of an Application for Anastasios Corporation one day before the final hearing in Division of Administrative Hearings Case No. 96-3037, establish that Petitioner has participated in this proceeding for a frivolous, improper purpose. Respondent incurred significant time and expense in preparing its case in this matter which would not have been incurred but for Petitioner’s action in requesting these proceedings for a frivolous, improper purpose. Those expenses include: $711.92 for travel, lodging, shuttle, and parking (Pittsburgh, Pennsylvania) expenses incurred in connection with the depositions of John Morris, a representative of OSHA, and Ernest Smalis, Petitioner’s representative. $893.50 for transcript and service of process costs associated with the above- mentioned depositions. $7,768.75 for attorney time.
Recommendation Accordingly, it is recommended that a final order be entered granting Respondent’s motion for fees and costs in the following amounts: $711.92 for travel, lodging, shuttle, and parking (Pittsburgh, Pennsylvania) expenses incurred in connection with depositions. $893.50 for transcript and service of process costs associated with the depositions. $7,768.75 for attorney time. DONE AND ENTERED this 21st day of August, 1997, at Tallahassee, Leon County, Florida. DON W. DAVIS 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 21st day of August, 1997. COPIES FURNISHED: Murray M. Wadsworth, Jr., Esquire Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399 Ernest Smalis E. Smalis Painting Company, Inc. 4073 Liberty Avenue Pittsburgh, Pennsylvania 15224 Thomas F. Barry, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Pamela Leslie, Esquire Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0450
The Issue Whether Respondent committed an unlawful employment practice in violation of Sections 760.10(1), Florida Statutes.
Findings Of Fact The Respondent, Beard Equipment Company, Inc., sells and maintains heavy equipment in Panama City, Florida. The Petitioner, Robert G. Harrison began employment with the Respondent in Panama City, Florida, in September, 1988. The Petitioner was employed as a janitor. Petitioner's duties included running numerous and varied errands which required driving of a motor vehicle. In April of 1989, Petitioner was hospitalized in order to adjust his medication for what he indicated was a bipolar disorder. However, at the hearing, Petitioner produced no expert testimony to establish that he was mentally handicapped or had bipolar disorder. At that time, Respondent became aware that Petitioner had a medical problem. Later, Petitioner was hospitalized in order to adjust his medication on two more occasions in 1989, and twice in 1992. On each occasion the Respondent accommodated Petitioner by making arrangements to hire temporary employees or readjust other employees' duties so that they could perform Petitioner's duties while he was hospitalized. In early 1992, the Respondent's liability insurance company conducted a random audit of employee driving records. The Respondent was notified by its insurance company that no coverage would be provided for any accident where the employee/driver had a DUI conviction. This random audit prompted Respondent to conduct a complete company- wide internal audit of driving records of all employees. The driving record audit resulted in some transfers for those employees for whom driving was an essential part of their job duties, but whose driving records would prohibit them from being covered under Respondent's liability policy. Employees who could not fulfill the duties of a non-driving position were terminated. Respondent could not afford to allow employees to drive who could not be insured by Respondent's liability carrier. The in-house driving record audit revealed that Petitioner had a DUI conviction on his record. Respondent had no other non-driving positions for which the Petitioner was qualified. Respondent was therefore forced to discharge the Petitioner since he could no longer fulfill the duties of his employment. Petitioner was discharged in November of 1992. When Petitioner was terminated, Petitioner was advised by Mark Veal, his supervisor, that the driving record audit had revealed that Petitioner had a DUI conviction, and because he would not be covered under the company insurance policy, they had no alternative but to discharge him. Within a day or so, Petitioner's wife called and requested his discharge letter in writing. Veal prepared the letter, indicating that due to Petitioner's medical history, his operating a motor vehicle would be too much of a liability. Although the real reason for Petitioner's discharge and the reason given him at the time was the DUI conviction, Veal tried to write the discharge letter in such a way as to minimize any embarrassment for the Petitioner due to his DUI conviction. Therefore, the termination letter does not support the conclusion that Respondent discriminated against Petitioner based on a mental handicap. In fact, there was no substantial evidence that Respondent terminated Petitioner based on a mental handicap. The evidence clearly showed Respondent was terminated for his driving record and his lack of qualifications to fill any other non-driving position. Moreover, Petitioner failed to establish that his position was filled by a person not in a protected class or that Respondent is an employer employing more than 15 employees. Given these facts, Petitioner has not established a prima facie case that Respondent committed an unlawful employment practice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding that Petitioner did not prove by a preponderance of the evidence that he was discriminated against because of his alleged handicap in violation of the Florida Human Rights Act and that the petition be dismissed. DONE AND ORDERED this 22nd day of December, 1994, in Tallahassee, Florida. DIANE CLEAVINGER 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 22nd day of December, 1994.
The Issue The issues in this case are: a) whether White Construction Company, Inc. timely filed its requests for hearing with the Department of Transportation in response to notices of intent to suspend White's certificate of qualification because of alleged delinquencies on State Project Nos. 97770-3305 and 97770-3306 and; (b) if not, whether the doctrine of equitable tolling, waiver, estoppel or other legal or equitable principles apply under the facts of this case such that White is entitled to a formal hearing on the merits of the department's determination of delinquency.
Findings Of Fact White Construction Company, Inc. (White) is a contractor prequalified to bid on Department of Transportation (Department) construction projects in excess of $250,000. It was incorporated in 1951 and maintains a home office in Chiefland, Florida. White was the successful bidder on three projects that are included within the Department's Seminole Expressway Project in Seminole County which is being funded and supervised by the Department's Turnpike Office. The projects are three contiguous segments and are identified as State Project Nos. 97770-3304, 97770-3305 and 97770-3306. The Seminole Expressway Project consists of twelve separate projects. HNTB Corporation is the Department's Resident Engineer for Project Nos. 97770-3304 and 97770-3306 and maintains an office at 2927 US 17-92 in Sanford. ICF Kaiser Engineers is the Resident Engineer for Project No. 97770-3305 and maintains an office in a trailer at the job site. The Resident Engineers are the main liaison between White and the Department on the Project. The Department's Turnpike Office maintains a local office at 112 Beider Avenue in Casselberry. The Resident Engineers are supervised from that location by Mr. Gary Geddes, the Department's Program Manager, in conjunction with Mr. Ray Daniel, an Area Engineer who is employed by Post, Buckley, Schuh and Jernigan, which is under contract with the Department. The Resident Engineers, though employed by private consultants, serve as the Department's representatives and are delegated the title of Engineer of the Project for the Department. On July 30, 1993, the Department issued notices of intent to suspend White's certificate of qualification because of alleged delinquencies in White's performance on State Project Nos. 97770-3305 and 97770-3306. The Department's notices of intent to suspend were received by White at its Chiefland offices on August 3, 1993. Each notice contained the following language: Pursuant to Florida Administrative Code Rule 14-23 and in accordance with this determination, we intend to suspend your Certificate of Qualification and those of your affiliates. This suspension will become conclusive final agency action unless you request an Administrative Hearing within ten (10) days of receipt of this notice. Your request for a hearing shall be in writing and shall be filed with the Clerk of Agency Proceedings, Mail Station 58, Haydon Burns Building, 605 Suwanee Street, Tallahassee, Florida 32399-0450 within ten days of receipt of this notice. A copy of the request for hearing shall also be provided to the State Construction Engineer, Mail Station 31, Haydon Burns Building, 605 Suwanee Street, Tallahassee, Florida 32399-0450. The request for hearing shall include: The name and address of the party making the request; A statement that the party is requesting a formal or informal proceeding; and All specific facts and circumstances which the Contractor believes legally excuses the unsatisfactory progress on the project. A request for hearing is filed when it is delivered to and received by the Clerk of Agency Proceedings. If a hearing is timely requested after the receipt of the notice of the intent, the hearing shall be held within 30 days after receipt by the Hearing Officer of the request for hearing in accordance with 337.16 of the Florida Statutes. In addition to a request for an Administrative Hearing and in accordance with Article 8-8.2 of the Special Provisions of this project, you are hereby given opportunity to request an extension of allowable contract time in an amount of cause progress on this contract to be acceptable or to submit other information to show that progress of work is not delinquent. (Petitioner's Exhibit #7, emphasis added) White forwarded the two Notices of Intent to its attorneys, Cummings, Lawrence and Vezina, P.A. On August 11, White's attorneys sent to Mr. Burney Keen of White Construction, via Federal Express Priority Morning Delivery, a package containing originals and copies of requests for formal hearing and for contract time extensions for both projects, with written instructions to have the requests executed and delivered to the Clerk of Agency Proceedings and James Lairscey, via Federal Express, and to hand deliver copies to the Project Engineers no later than August 13. The package from White's attorneys did not arrive at White's offices until late in the afternoon on August 12, when Mr. Keen was no longer in the office. Mr. Keen did not receive the package from White's counsel until the morning of August 13. Notwithstanding the Priority Delivery designation, Federal Express delivery to White's Chiefland office occurred between 3:00 p.m. and 5:00 p.m. Mr. Keen instructed his secretary, Patti Cook, to have the documents executed by an officer of White, and to have them hand-delivered to the Department's Resident Engineers and delivered to the Department's Tallahassee offices by Federal Express, in accordance with counsel's instructions. On Friday afternoon, August 13, 1993, White hand-delivered its request for hearing, along with its requests for contract time extension, to the Department's two Resident Engineers. On that same day, White sent out a package containing copies of these documents by Federal Express addressed to Mr. J. Lairscey, 605 Suwanee Street, MS 58, Tallahassee, Florida 32399. Mr. Keen and Ms. Cook both believed that J. Lairscey was the Clerk of Agency Proceedings. This is not surprising since at his deposition, J. Lairscey, who is the State Construction Engineer for the Department, did not know who the Clerk of Agency Proceedings was either. Standard operating procedure for the Project established by the Department at the preconstruction conference required that all correspondence from White be sent to the Department's Resident Engineers. Mr. Keen believed it to be of utmost importance to timely hand-deliver the requests for formal hearing to the Department's Resident Engineers. Although White had filed notices or requests with the Department Clerk in the past, this was Mr. Keen's first experience with the delinquency filing procedures. The package arrived at the Department's offices in Tallahassee on Saturday, August 14, 1993, and was delivered to Mr. Lairscey's office, MS 31, and not MS 58 (which is the Clerk of Agency Proceedings' Mail Station and office) on the morning of August 16, 1994. The package delivered to ICF Kaiser contained an original letter from White addressed to Michael Landry, which requested an extension of time on Project No. 97770-3305 and referred to an enclosed request for hearing. The package also contained an original letter addressed to: Clerk of Agency Proceedings, 605 Suwanee Street, MS 58, Tallahassee, Florida 32399. The letter to the Clerk requested a formal hearing in response to the Department's July 30th Notice of Intent and referred to three large appendices which were enclosed. Upon its receipt on August 13, 1993, a secretary and the office engineer at ICF Kaiser's office recognized that they received misdirected originals of important legal documents. The office engineer and secretary telephoned Ray Daniel, the Department's Area Engineer, at the Department's office in Casselberry and told him that they had received from White what looked like an original legal document, which they did not think they were supposed to have. They questioned whether the documents should be redirected to the Department. Mr. Daniel instructed them not to send the documents to him. Mr. Daniel knew that requests for hearing should be sent to the Clerk of Agency Proceedings in Tallahassee, but was not sure that a mistake was made and took no action regarding the request for hearing. The documents were filed away at ICF Kaiser until August 27, 1993, when Michael Landry followed up an inquiry from Ray Daniel and had the originals forwarded to the Turnpike's Casselberry office. The package delivered to HNTB Corporation also on August 13 contained an original letter from White addressed to Ralph Burrington which requested an extension of time on Project No. 97770-3306 and referred to an enclosed request for hearing. Like its counterpart, this package also contained an original letter addressed to: Clerk of Agency Proceedings, 605 Suwanee Street, MS 58, Tallahassee, Florida 32399. The letter to the Clerk requested a formal hearing in response to the Department's July 30th Notice of Intent and referred to three large appendices which were enclosed. The Resident Engineer at HNTB, Mr. Ralph Burrington, did not note that the documents were originals and filed them away. Mr. Burrington's normal procedure is to forward such documentation by facsimile to the Department's Casselberry office, but in this instance he feels he made a mistake. The package delivered to the Department's Tallahassee offices on Saturday, August 14, 1993, contained one signed photocopy of the requests for formal hearing for Project No. 97770-3305 addressed to the Clerk of Agency Proceedings, unsigned copies of the requests for formal hearing in Project Nos. 97770-3305 and 97770-3306 addressed to the Clerk of Agency Proceedings, as well as copies of the request for time extension for Project Nos. 97770-3305 and 97770-3306 and appendices. The documents were received by J. Lairscey on Monday, August 16, 1993, and were filed away until they were inspected on August 27, 1993, as a result of an inquiry by Ava Parker, a Department attorney. Sometime before August 27, 1993, Ava Parker, as a result of an inquiry from Gary Geddes, the Department's Program Manager, began to investigate whether White had filed its requests for hearing. Ms. Parker first checked with the Clerk of Agency Proceedings and was informed that nothing had been filed at that location. Ms. Parker then contacted Charles Peterson, the Department's Area Construction Engineer, to discern whether White had filed a request for hearing. Mr. Peterson searched his files and the Department's central files; he questioned various people in the Department's Tallahassee office and telephoned Ray Daniel in the Department's Casselberry office. Ray Daniel told Mr. Peterson that he had no knowledge concerning White's requests for hearing and no idea where they were. Mr. Daniel in fact knew at that time that White had delivered its requests for hearings to both Resident Engineers on August 13, based upon previous conversations with the Department's Resident Engineers and office staff. Mr. Peterson later discovered from Jimmy Lairscey that Mr. Lairscey had received the requests for hearing but they had been filed away. On Friday, August 27, 1993, Joe Lawrence, counsel for White, telephoned Ava Parker to discuss consolidation of the hearings and discovery. Ms. Parker advised White's counsel that no requests for hearing had been filed with the Clerk in response to the two Notices of Intent. Ms. Parker knew prior to her conversation with counsel for White that the requests had not been filed with the Clerk of Agency Proceedings, yet made no attempt to contact White or its counsel to notify them that the Clerk had not received the request. On Monday, August 30, 1993, copies of the requests for hearing were delivered to the Department's Tallahassee offices from counsel for White, via Federal Express addressed to Ava Parker and Clerk of Agency Proceedings, Florida Department of Transportation, 605 Suwanee Street, MS 58, Haydon Burns Building, Tallahassee, FL 32399-0450. The documents were received by Ms. Parker who delivered the requests for hearing to the Clerk and they were stamped in by the Clerk of Agency Proceedings on that same date. The Clerk of Agency Proceedings' function is to docket and maintain a record of documents and to send a copy of any requests for hearing in contractor suspension cases to the legal section and to Jimmy Lairscey. The Department's standard procedure after receipt of requests for hearing and contract time extension is to have the documents reviewed by Jimmy Lairscey and the Project Resident Engineer to determine whether the time extension should be granted. The legal section then determines whether to send the matter to the Division of Administrative Hearings. The Department's purpose in soliciting a request for contract time extension in conjunction with its Notice of Intent to Suspend is to afford the contractor the opportunity to cure the delinquency. The Department, prior to taking action on the request for hearing, reviews the time extension request to determine whether it may obviate the need for further delinquency proceedings. The Department's Resident Engineers are primarily responsible for evaluating and making recommendations concerning time extension requests. It is generally after the Department makes a determination concerning the appropriateness of the request for contract time that it proceeds to act upon the request for hearing. The Department did not deny White's request for contract time extension until August 30, 1993, the same date that White's requests for hearing were docketed in by the Clerk. The Department's review, analysis and decision can take up to five months. The delay in docketing the requests for hearing did not, therefore, delay the process. There was no prejudice to the Department by White's delivery of its requests for hearing to the Department's Resident Engineers on August 13, 1993, rather than to the Clerk of Agency Proceedings. There was no harm to the Department by Jimmy Lairscey's receipt of White's requests for hearing on Monday August 16, 1993, rather than the Clerk receiving it on Friday, August 13, 1993. The Department was aware, prior to and on August 13, 1993, that White disputed the Department's determination of delinquency on State Project Nos. 97770-3305 and 97770-3306. The Department expected White to file requests for formal hearing challenging the Department's determination of delinquency on State Project No. 97770-3305 and 97770-3306. White had verbally notified the Department prior to August 13 that it was challenging the delinquency notices. No evidence established any prejudice or harm to the Department from the Clerk's receipt of White's requests for hearing on August 30, 1993 rather than August 13, 1993. White will be severely prejudiced if not afforded a hearing, and therefore automatically declared delinquent, because it will be precluded from bidding and acquiring much needed additional work. White's work is primarily for the Department, in all phases of highway construction. At the time of hearing White had Department contracts of approximately $100 million, which contracts carry over a several year period, and it employed approximately 500 people. No culpability or blame can be ascribed to either party in the series of gaffes surrounding the filing of White's requests for hearing. Mr. Keen, a novice to the process, thought he was doing the right thing by assuring timely filing with the Resident Engineers, who had always received other correspondence related to the Project. Mr. Daniel, who was immediately informed that the original documents were filed in the wrong place, did nothing to correct the error, but neither did he deliberately frustrate the process (as argued by White) since the message he received about some original legal documents was ambiguous. Mr. Lairscey had no idea that his packet was intended for the Agency Clerk; moreover, he had no idea who the agency clerk was. Under these circumstances, and in the absence of any more than mere inconvenience to the Department, it is patently unfair to deny White its hearing on the merits.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED that the Department enter its final order granting a formal hearing to White Construction Co., Inc. on the substantive issue of whether it should lose its qualification to bid. DONE AND ENTERED this 29th day of August, 1994, in Tallahassee, Leon County, Florida. MARY CLARK 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 29th day of August, 1994. APPENDIX The following constitutes specific rulings on the findings of fact proposed by the parties. Petitioner's Proposed Findings Adopted in paragraph 1. - 4. Adopted in substance in paragraph 2; otherwise rejected as unnecessary and immaterial. Adopted in part in paragraph 10; otherwise rejected as unnecessary. Adopted in substance in paragraph 4. Adopted in paragraph 30. Adopted in paragraph 4. Except as to the conclusion that the notice was not filed with the clerk on August 13, rejected as contrary to the greater weight of evidence, considering the testimony of Keen in its entirety. Adopted in substance in paragraphs 5, 8, 9, 10 and 12. Rejected as argument and conjective unsupported by the weight of evidence. Adopted in substance in paragraph 5. Adopted in part in paragraphs 6-9, otherwise rejected as immaterial. Adopted in part in paragraph 9; otherwise rejected as statement of testimony or unnecessary. Adopted in substance in paragraph 13. 16.-18. Adopted in paragraphs 14 and 19; otherwise rejected as unnecessary. Adopted in paragraph 21. Adopted in substance in paragraph 22. Adopted in substance in paragraph 16; otherwise rejected as unnecessary. Adopted in substance in paragraph 18. Adopted in substance in paragraph 20. Adopted in part in paragraphs 23-26; otherwise rejected as unnecessary. Adopted in substance in paragraphs 27 and 29. Rejected as contrary to the weight of evidence. 27.-28. Adopted in part in paragraph 36; otherwise rejected as argument or unnecessary. White clearly proved it will be severely prejudiced, even if it is not "put out of business". 29. Rejected as contrary to the weight of evidence (as to prejudice to the agency). 30.-31. Rejected as unnecessary. 32. Rejected as contrary to the weight of evidence; more commonly, the agency rules on the extension request first. Respondent's Proposed Findings Adopted in paragraph 1. Adopted in paragraph 2. Adopted in paragraph 3. Adopted in paragraph 4. Adopted in paragraph 5. Adopted in paragraph 6. Adopted in paragraph 7. Adopted in paragraph 8. Adopted in paragraph 9. Adopted in paragraph 10. Adopted in paragraph 11. Adopted in paragraph 12. Adopted in paragraph 13. Adopted in paragraph 14. Adopted in paragraph 15. Adopted in paragraph 16. Adopted in substance in paragraph 17. Rejected as unnecessary. 19. Adopted in paragraph 18. 20. Adopted in paragraph 19. 21.-22. Adopted in substance in paragraph 20. 23. Adopted in paragraph 21. 24. Adopted in paragraph 22. 25. Adopted in paragraph 23. 26. Adopted in paragraph 24. 27. Adopted in substance in paragraph 25. 28. Adopted in paragraph 26. 29. Adopted in paragraph 27. 30. Adopted in paragraph 28. Rejected as unnecessary. Adopted in paragraph 29. Adopted in part in paragraph 30; otherwise rejected as contrary to the weight of evidence (as to being a "paper shuffler"). 34.-38. Adopted in paragraph 31. 39.-40. Adopted in paragraph 32. 41.-42. Adopted in paragraph 33. Adopted in paragraph 34. Adopted in paragraph 35. Adopted in paragraph 36, except that the implication that the company will absolutely go out of business is rejected as unsupported by the evidence. Rejected as unnecessary. COPIES FURNISHED: Paul Sexton, Esquire Department of Transportation Haydon Burns Building, MS 58 605 Suwanee Street Tallahassee, Florida 32399-0458 Joseph W. Lawrence, II, Esquire Cummings, Lawrence and Vezina, P.A. 1600 S.E. 17th Street, Suite 304 Fort Lauderdale, Florida 33316 Ben G. Watts, Secretary Attn: Eleanor F. Turner, M.S. 58 Department of Transportation Haydon Burns Building 605 Suwanee Street Tallahassee, Florida 32399-0450 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwanee Street Tallahassee, Florida 32399-0450
Findings Of Fact Petitioners, High Point of Orlando/Calton Homes (High Point) and Breedlove, Dennis and Associates, Inc. (BDA) were among named Respondents in a petition for formal hearing filed by Central Florida Wetlands Society, Inc. (CFWS) in DOAH Case number 91-8339. High Point was a Respondent in DOAH Case number 92-0364, also initiated by a CFWS petition. BDA was retained as consultant for High Point for a project in Orange County involving wetlands and requiring the evaluation of impact and the mitigation of that impact on the wetlands. A permit for the project was granted by the St. Johns River Water Management District (SJRWMD). In late 1991 High Point requested a permit modification when it was determined that mitigation could not be accomplished within the deadlines in the permit conditions. There had been delays in planting caused in part by delays in construction of the project's stormwater management system and it was apparent that the required plantings could not grow fast enough to comply with the mitigation conditions. The technical staff report recommending approval describes the modification as extensions of the deadlines for successful establishment of forested and herbaceous mitigation. CFWS is a Florida nonprofit corporation according to its articles of incorporation filed with the Secretary of State on August 3, 1990. Article III provides these purposes for the corporation: To educate on the roll [sic] of wetlands with emphasis on the values of preservation of wetlands and the prevention of destruction of same. To implement the national policy of no loss of wetlands. To coordinate with other environmental groups to focus attention on wetland preservation. All other things that are lawful under the charter of this corporation and under the laws of the State of Florida. (Exhibit filed at DOAH 8/21/92) On October 7, 1991, CFWS filed a petition for administrative hearing with the SJRWMD in opposition to the district's proposed grant of permit modification to High Point. The petition was verified and signed by Michael W. Mingea as President of CFWS. The petition did not identify CFWS as a corporation, but rather "a not-for-profit private organization under the laws of the State of Florida". The petition named as Respondents, High Point, SJRWMD, DBA and another alleged consultant for High Point, Dyer, Riddle, Mills and Precourt, Inc., (DRMP). The petition was forwarded by SJRWMD to the DOAH for hearing on December 30, 1991, and was assigned DOAH Case number 91-8339. On January 8, 1992, CFWS filed a petition for formal administrative hearing with the SJRWMD disputing a proposed consent order between High Point and SJRWMD assessing $2,463.60 penalty and costs for violation of the mitigation conditions and requiring a mitigation survey. Like the petition described in paragraph 4, above, this petition was signed and sworn by Michael Mingea and did not identify CFWS as a corporation. The Respondent named in the petition was SJRWMD. This petition was forwarded to the DOAH by the district and was received at DOAH on January 21, 1992. It was assigned DOAH Case number 92-0364. A motion in opposition to the petition was filed on January 28, 1992 by counsel for SJRWMD requesting dismissal based on Petitioner's lack of standing, as the consent order does not authorize any activity subject to the district's permitting authority. Further, the motion argued, any issues regarding the proposed permit modification would be addressed in pending case number 91-8339. In an order dated January 28, 1992, the two cases, 91-8339 and 92-0364 were consolidated and set for hearing in Orlando, Florida on June 16 and 17, 1992. On March 5, 1992 a telephone conference hearing was conducted on various pending motions and an order was entered on March 6, 1992 granting motions to dismiss the two consultant parties, BDA and DRMP. The order denied BDA's and DRMP's motions for fees and costs pursuant to Section 120.57(1)(b)5., F.S., based on a finding that the error in including the consultants as Respondents did not rise to the level of bad faith required for an award under 120.57(1)(b)5, F.S. The order granted SJRWMD's motion in opposition to the petition in number 92-0364 and closed the file in that case with remand of the petition to the agency. And finally, the order granted High Point's motion for a more definite statement in Case number 91-8339. The order required CFWS to file its amended petition within thirty days stating how the proposed permit modifications would adversely affect the waters of the state or otherwise violate statutes and rules governing management and storage of surface waters (MSSW) permits. On April 14, 1992 Karen West, Esquire, filed her notice of appearance on behalf of CFWS and a motion for extension of time of fourteen days to file a more definite statement. On April 21, 1992 Ms. West filed the Petitioner's notice of voluntary dismissal of the petition in number 91-8339, and an order closing file was entered. On April 28, 1992, High Point and BDA filed with the SJRWMD their motion for remand which resulted in the district's order of remand discussed in the preliminary statement, above. The sole issue for remand was these Respondents' entitlement to attorneys fees and costs. High Point and BDA also filed separate motions for sanctions dated May 21, 1992 requesting fees and costs of $6,766.88 for High Point and $1,096.49 for BDA. A telephone conference was conducted on June 11, 1992 on Karen West, Esquire's, motion to withdraw as counsel for CFWS. Michael Mingea, President of CFWS participated and stated that the society had no opposition to the motion. The Hearing Officer and parties then discussed procedural matters related to resolution of the fees case, DOAH Case number 92-3010F. Mr. Mingea asked for, and was given, two weeks to obtain substitute counsel prior to Petitioners commencing discovery. The parties agreed to conduct the final hearing by telephone on August 10, 1992. An order and notice of hearing was entered confirming these matters on June 17, 1992. Notwithstanding the parties' agreement, the August 10th hearing was continued because Petitioners were unable to effectuate discovery or serve subpoenas on Michael Mingea or Todd Swearingen, another CFWS board member. Despite frequent filings of well-drafted requests for extensions, responses to Petitioners' pleadings and similar documents, Michael Mingea never appeared at any of the several hearings scheduled in this case after his initial appearance on June 11th. Despite several explicit orders Mr. Mingea never appeared for deposition by Petitioners, either in person or by telephone. Yet, according to the testimony of other board members, Todd Swearingen and Marty Sharpe, only Michael Mingea initiated the petitions involving High Point and he, alone, was cognizant of the specific basis for those petitions. Marty Sharpe who appeared consistently on behalf of CFWS in this proceeding became a board member in February 1992, several months after the petitions were filed. Petitioners were wholly frustrated in their effort to obtain the discovery to which they were entitled with regard to the bases for the CFWS petition in Case number 92-8339 and its abrupt dismissal. In various written documents and attempts to provide evidence through affidavit CFWS argues that its motives were not bad faith; however, throughout this proceeding CFWS has effectively prevented Petitioners from testing those bare assertions through discovery or cross examination. Mr. Mingea apparently travels extensively with his regular employment and the organization's mail goes to a post office box where it is picked up by volunteers. Contact with the organization was most effectively made through Marty Sharpe who attempted, in turn, to reach Mr. Mingea and convey messages. In the absence of competent evidence to the contrary, the record in this and in the underlying cases, number 91-8339 and 92-0364 support a reasonable inference that the petition in number 91-8339 was filed for a frivolous purpose. The order granting CFWS leave to amend its petition acknowledged that the original petition was legally insufficient. The petition was not amended within the allotted period; but rather was voluntarily dismissed shortly after legal counsel appeared on behalf of the organization. This dismissal reduces, but does not eliminate exposure to liability for filing the initial petition. The fees and costs requested by the Petitioners here are reasonable. Those fees are supported by billing logs attached to the motions for sanctions and reflect an hourly rate of $100.00 for BDA and $160.00 for High Point. Douglas Rillstone testified to the reasonableness of a total of $9,592.00 for High Point, and $2,495.00 for BDA. Those totals are not supported by billing logs and it is not possible to determine the basis for those amounts beyond the original amounts requested.
The Issue The issue is whether Respondent's untimely request for an administrative hearing is excused by the doctrine of equitable tolling.
Findings Of Fact The Department is the state agency responsible for enforcing the requirement of the Workers' Compensation Law that employers secure the payment of workers' compensation coverage for their employees and corporate officers. § 440.107, Fla. Stat. To enforce this requirement, the Department performs random inspections of job sites and investigates complaints concerning potential violations of workers' compensation rules. On January 16, 2018, Hemant Balgobin, a Department compliance inspector, conducted a compliance investigation at a job site in Bartow, Florida. The inspection resulted in a determination by Mr. Balgobin that Respondent was the responsible entity supervising the job site, and three individuals employed by Respondent did not have the required workers' compensation coverage. On January 17, 2018, a Stop-Work Order and Request for Production of Business Records was served on Ms. Morales. After the business records produced by Ms. Morales were reviewed by the Department, on May 21, 2018, the Department served her with a Penalty Assessment proposing to assess the company a penalty in the amount of $55,187.12. The Penalty Assessment contained a Notice of Rights, which stated that, if Ms. Morales wished to contest the penalty, she must file a "petition for hearing so that it is received by the Department within twenty-one (21) calendar days of your receipt of this agency action." It also stated that the petition "must be filed with Julie Jones, DFS Agency Clerk, Department of Financial Services, 612 Larson Building, 200 East Gaines Street, Tallahassee, Florida 32399-0300." Finally, the Notice of Rights stated in bold capital letters, "FAILURE TO FILE A PETITION WITHIN TWENTY-ONE (21) CALENDAR DAYS OF RECEIPT OF THIS AGENCY ACTION CONSTITUTES A WAIVER OF YOUR RIGHT TO ADMINISTRATIVE REVIEW OF THIS AGENCY ACTION." This meant that a petition had to be filed and in the hands of the Agency Clerk no later than June 11, 2018. The petition was not filed until June 15, 2018. Because the petition was filed four days late, the Department issued an Order to Show Cause, which required Ms. Morales to show cause why her petition should not be dismissed. In her response, Ms. Morales asserted that she did not have a fax number for filing a petition, so she contacted Mr. Balgobin, who told her to fax it to him and "they would fax it to the right person." She essentially contends that this statement led her to believe that by filing the petition with Mr. Balgobin, it would be treated as a timely filing. The Department construed this conversation as possibly excusing the late filing and forwarded the matter to DOAH to resolve that narrow issue. The record shows that on June 14, 2018, or after the filing deadline was missed, Ms. Morales telephoned Mr. Balgobin to ask "who to send it to," as there was no email or fax number in the Notice of Rights. She testified that he told her to fax the petition to the Fort Myers office and it would be forwarded to Tallahassee. After speaking with Mr. Balgobin, she prepared a petition and then faxed it to the Fort Myers office the following day, June 15, 2018. In his testimony, Mr. Balgobin did not say whether he spoke with Ms. Morales on June 14, 2018, or if he told her to fax the petition to him. However, it is reasonable to find that he did, because she faxed a petition to the Fort Myers office on June 15, 2018, and it then was forwarded by that office to Tallahassee. However, all of these events occurred after the deadline for filing a petition. There is no credible evidence that Mr. Balgobin gave Ms. Morales a specific date when the petition was due, and he made no statements that caused her to miss the deadline. In fact, on the few occasions that he spoke with Ms. Morales throughout this process, he always reminded her to read the Notice of Rights. It is not the practice of compliance inspectors (or any other employee in the Fort Myers district office) to tell persons when their petitions must be filed. At hearing, Ms. Morales also contended that one reason for the delay in filing a petition was because the Notice of Rights listed only a street address in Tallahassee, and not a fax number or email address. She explained that she attempted to telephone the Agency Clerk in Tallahassee to secure that information, but was unsuccessful. She gave no explanation as to why the petition was not sent by mail to the Tallahassee address pursuant to the instructions in the Notice of Rights. The undersigned has not credited Ms. Morales' assertion that she was confused on where and how to send a petition, given the clear instructions in the Notice of Rights. Ms. Morales also spoke by telephone with Ms. Almas, a Department regulatory consultant in the Fort Myers office. The record is confusing on the gist of those conversations because Ms. Morales was unclear about when the calls occurred, and whether the calls related to the deadline for filing business records to take advantage of a penalty discount, filing her request for a hearing, or filing a response to the Order to Show Cause. The record is clear, however, that Ms. Almas telephoned Ms. Morales six days after the Stop-Work Order was issued in January 2018 to remind her that all business records must be filed within ten days in order to be eligible for a discount. According to Ms. Almas, a second telephone conversation took place on May 31, 2018, when Ms. Morales contacted her to ask why she did not receive a discount on the penalty. At hearing, Ms. Morales contended that during that call, Ms. Almas provided her with a specific date on which the petition must be filed, and that she timely filed her petition in accordance with those instructions. However, she could not recall the date allegedly given to her by Ms. Almas. Ms. Almas denied giving Ms. Morales a specific due date for the petition and says she only referred her to the Notice of Rights. She also denied providing any misleading information that would cause Ms. Morales to late-file her petition. On this issue, Ms. Almas' testimony is credited. Finally, Ms. Morales acknowledged that she read the Notice of Rights and she understood she had 21 calendar days in which to request a hearing. She admitted that nothing prevented her from filing a petition in a timely manner, but she "was just trying to see how [she] would do it," since this was the first time she was involved in an administrative proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers' Compensation, enter a final order dismissing Respondent's request for a hearing as untimely. DONE AND ENTERED this 7th day of January, 2019, 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 7th day of January, 2019.
The Issue Whether the Respondent, BankAtlantic, committed an act of discrimination in violation of Chapter 760, Florida Statutes, in relation to its treatment of the Petitioner, Ethel Rials.
Findings Of Fact At all times material to allegations of this case, the Petitioner, Ethel Rials, was an employee of BankAtlantic. The Petitioner worked in the Loan Servicing Department and was responsible for monitoring outstanding loans. She is black. The Loan Servicing Department was comprised of two divisions: standard loans and complex loans. Alice Moore supervised the standard loan division. Barbara Halprin was the Senior Vice President and Manager of the entire Loan Servicing Department. She evaluated the employees and, in August 2000, gave the Petitioner an excellent evaluation. At that time, the Petitioner exceeded the performance expectations of her employer. Subsequently, the Petitioner was promoted to the position of lead complex loan servicing specialist. Again, when the Petitioner was evaluated, her work exceeded the performance expectations of the employer. The Petitioner continued to perform her work responsibilities in an excellent fashion through September 2001. Sometime in 2002 it was announced that Alice Moore intended to retire at the end of the year. Although Ms. Moore did not recommend the Petitioner to assume her role as the supervisor in standard loan servicing, other BankAtlantic employees did. In fact, Ms. Halprin determined the Petitioner to be the most qualified and intended to promote the Petitioner to the Moore position. She advised the Petitioner accordingly. Petitioner acknowledged that she would be interested in the promotion and, until the fall of 2002, Ms. Halprin presumed the promotion would follow as planned. In November 2002, the Petitioner took sick days on November 20-21. She was scheduled for vacation days and was off November 22 and 25. When the Petitioner returned to work November 26, 2002, she alleged she had been the victim of racial discrimination and hostilities. On November 26, 2002, the Petitioner told Ms. Halprin of incidents that she claimed evidenced a hostile work environment. For example, the Petitioner claimed that on one occasion someone had spilled coffee in front of her desk (a large volume) such that the mess made her work area difficult to use. Second, the Petitioner claimed that on one occasion someone had left a note for her with "KKK" written on it. Third, the Petitioner claimed that someone had spit on her desk. And, fourth, the Petitioner claimed that an employee (Ms. Cass) had attempted to publicly humiliate and harass the Petitioner by implying work errors were attributable to the Petitioner. It is undisputed a large quantity of coffee was spilled in front of the Petitioner's desk on one occasion. Who spilled the coffee is unknown. The alleged "KKK" note was not produced or offered into evidence. If written, it is unknown who wrote the "KKK," when it was written, or what it was intended to mean. There is no evidence that anyone spit on the Petitioner's desk. There is no evidence that Ms. Cass intended to humiliate or embarrass the Petitioner when errors were identified. Unknown persons in the Loan Department committed errors that the Loan Servicing Department was required to identify and correct. Although generally found and corrected without issue, Ms. Cass did not like to deal with errors. The Petitioner misapprehended her comments. The comments complained of occurred on one occasion. On November 27, 2002, the Petitioner resigned her position with BankAtlantic and claimed she could not continue in the hostile work environment. The Respondent timely submitted all of the Petitioner's claims to its personnel office for investigation, but the Petitioner terminated employment without waiting for the conclusion of the review.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petitioner's claim. DONE AND ENTERED this 27th day of August 2004, in Tallahassee, Leon County, Florida. COPIES FURNISHED: J. D. PARRISH 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 27th day of August, 2004. Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Angelo M. Filippi, Esquire Stearns, Weaver, Miller, Weissler, Alhadeff & Sitterson, P. A. 200 East Broward Boulevard, Suite 1900 Fort Lauderdale, Florida 33301 Ethel Rials 3832 Baymeadows Road, No. 211 Jacksonville, Florida 32217 Victoria Bloomenfeld Bankatlantic 1750 East Sunrise Boulevard Fort Lauderdale, Florida 33304
