The Issue The issue in this case is whether Respondent committed the acts alleged in the Administrative Complaint and if so, what penalty is appropriate.
Findings Of Fact Based upon the testimony of the witnesses and the evidence presented and the entire record in this proceeding, the following material and relevant facts are found. At no time material hereto was Respondent, Donald Clark, licensed by the State of Florida Construction Industry Licensing Board to engage in construction contracting. At no time material hereto was Cancun Development Company ever qualified or certified by any State of Florida agency as a certified contractor. With knowledge of that he was not licensed by the State of Florida to solicit, engage in, nor contract for construction work, Respondent entered into an oral agreement with homeowner Ms. Eichar to build a second-story addition to her home, located in Indian Rocks Beach, Florida, for a contract price of $30,000.00. Respondent, who was paid by Ms. Eichar a total of $25,000.00, subcontracted with Mr. Erwin, a licensed electrical contractor, to do the electrical work at the Eichar's residence for $2,364.00. Respondent, after notice, failed to attend the formal final hearing regarding this matter. The investigative and prosecution costs to the Department of Business and Professional Regulation, excluding cost associated with attorney time, were $550.00.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered by the Department as follows: Finding Respondent, Donald Clark, guilty of having violated Subsection 489.127(1)(f), Florida Statutes, as alleged in the Administrative Complaint herein filed and imposing as a penalty an administrative fine in the amount of $5,000.00. Assess costs of investigation and prosecution, excluding costs associated with an attorney's time, in the amount of $550.70. DONE AND ENTERED this 23rd day of July, 2002, in Tallahassee, Leon County, Florida. FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 2002. COPIES FURNISHED: Donald Clark 813 East Bloomingdale Avenue Suite 252 Brandon, Florida 32720 Brian A. Higgins, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issue in this case was to determine whether Respondent violated Sections A-5(B) and F-4(4), (19), (27) and (33) of the ECUA Human Resources Policy Manual.
Findings Of Fact In 2000, Respondent was employed by Petitioner. At the time, Respondent was given a copy of the employee handbook, receipt of which was acknowledged by Respondent. The Handbook is a summary of Petitioner’s human resource policies. Specific human resources policies are contained in Petitioner’s Human Resources Policy Manual. Both documents reference a Code of Ethics that is to be adhered to by employees (page 2 of the Employee Handbook and page 5 of the Human Resources Policy Manual). Likewise, both documents contain provisions for discipline of an employee (page 32 of the Employee Handbook and page 52 of the Human Resources Policy Manual). The Human Resource Manual states, in relevant part, as follows: Section A-5 Code of Ethics * * * * B. No ECUA employee shall use or attempt to use their position to secure special privilege or exemptions for themselves or others, except that which may be provided by policy and/or law. * * * * Section F-4 Disciplinary Offenses * * * * (4) Conduct Unbecoming an ECUA Employee Any act or activity on the job or connected with the job that involves moral turpitude, or any conduct, whether on or off the job, that adversely affects the employee’s effectiveness as an ECUA employee. . . . Conduct unbecoming an ECUA employee includes any conduct which adversely affects the morale or efficiency of the ECUA, or any conduct which has a tendency to destroy public respect or confidence in the ECUA, in its employees, or in the provision of ECUA services. * * * * (19) Unauthorized use of ECUA Property or Equipment The unauthorized use of any ECUA property or equipment for any reason other than ECUA business. * * * * (27) Theft or Stealing The unauthorized taking of any material or property of the ECUA, other employees, or the public with the intent to permanently deprive the owner of possession or to sell or to use for personal gain. * * * * (33) Violation of ECUA Rules or Policies or State or Federal Law. The failure to abide by ECUA rules, policies, directives or state or federal statutes. This may include, but is not limited to, misuse of position, giving or accepting a bribe, discrimination in employment, or actual knowledge of failure to take corrective action or report rule violations and employee misconduct. * * * * Sometime in 2003 or 2004, Respondent moved to his residence located at 280 East Ten Mile Road. The home had a 10,000 gallon pool. The home’s waterline was attached to a metered water tap on a three-inch ECUA waterline. At some point Respondent became dissatisfied with his home water service and wanted to connect his home’s waterline to a 12-inch ECUA water line that also ran in front of his home. Respondent asked Steve Castro, a crew supervisor for Region 1, the region Respondent’s house was in, about “what I needed to do” to transfer his house waterline from the three- inch line to the 12-inch line. Respondent was informed that when the work in that region was caught up, Mr. Castro would have the new tap put in. About two days later, Jeremy Stewart, an ECUA service technician, installed a tap on the 12-inch line in front of Respondent’s home. No meter was installed on the new tap. At the time, Respondent’s houseline was not hooked to the new tap, leaving the tap unused. In 2004 and 2005, the Pensacola area was hit with multiple hurricanes that caused damage to Respondent’s home. His pool developed black algae, which generally requires pressure washing and chemical treatment to remove. In preparation for removal of the algae, Petitioner drained his pool about half way. Sometime in late March or early April, 2006, Petitioner asked Harry Shoemore, his supervisor, to find out how to apply for water service from the 12-inch line and how much it would cost in fees to obtain the new water service. Mr. Shoemore obtained the information for Respondent and radioed him with the information. The fees for the new service would exceed 1000.00 dollars and had to be paid prior to service being installed. On April 9, 2006, Respondent, with full knowledge that he had not paid for any tap, hooked a waterline to the 12-inch tap that had been installed earlier. The line ran around the house to the backyard and into the pool. He did not attach a meter to the tap and did not pay any fees to ECUA. Respondent used water from the tap to pressure wash his pool and fill it. An estimated amount of water used by Petitioner to accomplish these tasks would be over 7,000 gallons of water. On April 10, 2006, Mr. Dawson received a telephone call that there was an unmetered tap at 280 Ten Mile Road. Mr. Dawson and Mr. Shoemore drove to the address to investigate the call. They arrived at Respondent’s house around 8:30 a.m. and saw the ECUA’S one-inch black service tubing from the 12- inch line attached to white PVC piping extending to the backyard of Respondent’s home and emptying into Respondent’s pool. The pool was being filled and water had overflowed into the backyard. There was no meter on the service line. Respondent’s father met Mr. Dawson and Mr. Shoemore at the door to the house. He advised them that he had called Respondent and that Respondent was on his way to his house. Respondent drove up to the house in an ECUA work truck. As he approached Mr. Dawson and Mr. Shoemore, Respondent stated, “You caught me.” Respondent also admitted to attaching the PVC pipe to the line and using the water to pressure wash and fill his pool. He admitted he was wrong for making the attachment and using the water without paying for it. Respondent indicated he was willing to pay for the water and service. There is no question that Respondent illegally connected to and used ECUA property, stole water from ECUA, and deprived ECUA, as well as the County, the connection and impact fees related to such use. Respondent was immediately placed on Administrative Leave with Pay, pending further investigation by Petitioner. Later Respondent was afforded his due process rights by ECUA. Petitioner did review prior disciplinary action against other employees who were allegedly “caught stealing,” including two past incidents that Respondent indicated had not resulted in termination of the employee. One of the incidents could not be verified. The other incident was vague, was not brought to the attention of the past administration for discipline and occurred well prior to the current administration’s policy against theft and employee conduct. Respondent also referenced two employment actions that involved the falsification of time records. At least one of these actions resulted in some form of hearing. However, the evidence was vague regarding these disciplinary actions and any similarity between these cases cannot be determined from the evidence.
Conclusions For Petitioner: John E. Griffin, Esquire Carson & Adkins 2958 Wellington Circle, North Suite 200 Tallahassee, Florida 32308-6885 For Respondent: Marc Hughes 280 East Ten Mile Road Pensacola, Florida 32534
The Issue Whether petitioners Hampton, Busbee, Davis and Robertson, as elected board members of the Escambia County Utilities Authority, are eligible for membership in the Elected State Officers' Class of the Florida Retirement System as "county elected officers" within the meaning of Section 121.052(1)(g), Florida Statutes (1985)?
Findings Of Fact By letter dated April 17, 1985, A. J. McMullian III, State Retirement Director, advised C. H. Wigley, Jr., Acting Executive Director of the Escambia County Utilities Authority (ECUA) that the individual petitioners were eligible for inclusion in the Regular Class, but not the Elected State; Officers' Class, of the Florida Retirement System. Respondent's Exhibit No. 8. "The major difference between the Elected State Officers' Class and the Regular Class is the ESOC members . receive a higher retirement benefit for the same number of years of service." (T. 38) To finance higher benefits the public employer pays a higher amount, set on "an actuarily sound basis." Deposition of Andrew J. McMullian, III, page 19. ECUA CREATED. A few years back, "Escambia County and the City of Pensaco1a, felt it was time . . . to combine . . . utilities' systems into one agency. The City had just completed construction of a twenty-million-gallon-a-day treatment plant and had excess capacity. [Unincorporated] Escambia County had the .,. customers but not the facilities ." (T. 74) "Escambia County was faced with extending or having to go to the bond market to borrow significant money to built] treatment facilities . . . [but] it was more practical that the City and County get together." (T. 88) By special act the legislature created the ECUA to purchase and operate the water and sewer systems that had belonged to both City and County, and to exercise "all powers with respect to water and sewer, and such other additional utilities as may be hereafter designated . . . which are . . . could be, or could have been but for this act, exercised by the City of Pensacola or Escambia County, Florida." Ch. 81-376, Section 3, Laws of Florida, (1981). The ECUA came into existence on October 1, 1981, (T. 90) and now provides natural gas service (T. 95) at least outside the franchised area of the City of Pensacola. Ch. 85-410, Section 5(r), Laws of Florida (1985). The ECUA is authorized to provide utility services to the extent of its capacity to do so even in areas outside Escambia County. Ch. 85-410, Section 5(q), Laws of Florida (1985). The original Special Act transferred city and county utility employees to the ECUA "without loss of benefits, Ch. 81- 376, Section 9(c), Laws of Florida (1981j, and specifically provided, with respect to retirement benefits: (b) The authority may provide social security for its employees pursuant to the provisions of chapter 650, Florida Statutes, and may bring its employees under the Florida Retirement System, the State and County Officers and Employees Retirement System, or any other qualified retirement program. (c) . . . Employees who are transferred to the authority and who are members of the retirement systems available to employees of the City of Pensacola or Escambia County shall not lose those pension or retirement rights or any reserves accrued to their benefit during the period of their employment by the city or county. Such employees may elect to retain the pension and retirement rights accrued during the period of their employment by the city or the county. Any employee so electing shall give written notice of his election, within thirty (30) days or such longer period of time determined by the authority after the effective date of the transfer, to the City Manager of the City of Pensacola or to the County Administrator of Escambia Coutny, as appropriate, who shall then process the notice. In the event any employees elect to retain their pension and retirement rights accrued during the period of their employment with the city or the county, or prior to such election, the authority shall pay into the appropriate retirement system during the period that such employees remain as authority employees, such sums of money as are paid by the city or the county for the benefit of such employees in order to guarantee their continuing participation in such retirement program. The authority may make appropriate deductions from the employees' salaries to preserve their retirement benefits. Chapter 81-376 Section 9(d), Laws of Florida (1981) Escambia County joined the Florida Retirement System effective October 1, 1982. (T. 90) None of the individual petitioners were transferred to the ECUA by Chapter 81-376, Section 9(c), Laws of Florida (1981), although Terry D. Busbee, the Chairman, had worked for Escambia County for 18 years, as Supervisor of Taxes, (T. 58) and W. F. Hampton was employed with a governmental agency participating in the Florida Retirement System as early as 1977. Petitioners' Exhibit No. 3. ELECTED BOARD As required by Chapter 81-376, Section 4, Laws of Florida (1981), the Escambia County Commission selected three members of the ECUA Board, two of whom were county commissioners; and the Pensacola City Council selected three members of the ECUA Board, two of whom were city councilmen. These six then selected the seventh and final ECUA board member. Thereafter, a second Special Act, Chapter 83-403, Laws of Florida (1983) and then a third amended the original Special Act, to provide that the successor of the third County Commission appointee and the "successors of the members of the Board of County Commissioners] and [City] Council appointed to" Chapter 84-427, Section 1, Laws of Florida (1984), the ECUA Board, would be elected in 1984, while the terms of the other two ECUA board members would, "expire upon the commencement of the terms of the members," Chapter 84-427, Section 1, Laws of Florida (1984), elected to succeed the county commission appointees and the city council members. These five were "eligible for reelection." Chapter 81- 376 Section 4(c), Laws of Florida (1984). The four individual petitioners in the present case seek membership in the Elected State Officers' Class effective January 8, 1985, the date the successor terms began. By passing a resolution and signing an agreement effective October 1, 1982, (T. 108), the ECUA joined the Florida Retirement System and "decided to purchase past service back to October, '81, for all employees who were employed as of October 1st, '82." (T. 107) See Respondent's Exhibit No. 5. Beginning with the 1984 elections, candidates for the ECUA Board had to meet the same qualifications as candidates for county office and had to live in the county commission district they sought to represent. Each of the five single-member districts has the same boundaries as the corresponding county commission district. Terms of ECUA board members are staggered just as county commissioners' terms are and, beginning in January 1987, all members will be elected for four-year terms, as county commissioners are. Each ECU board candidate is subject to state election laws governing filing papers, qualifying fees and the like, to the same extent as candidates for county office are; and each takes an oath before entering upon the duties of the office. Petitioners' Exhibit No. 2. The ECUA is on the same fiscal year as Escambia County, October 1 to September 30 (T. 63) and its territorial; jurisdiction is coextensive with Escambia County. The ECUA has all of the duties that Escambia County and the City of Pensacola had relative to water and sewer, before ECUA's creation. (T. 65) The ECUA's principal source of revenue is utility charges, at rates which it is empowered to establish, Chapter 81-376, Section 8, Laws of Florida (1981), although it receives state and federal grants (T. 93); and has authority to borrow money, and has in fact issued bonds. (T. 80) For the fiscal year ending September 30, 1984, Escambia County paid $2,230,040 to the Social Security system while ECUA paid $342,402.00 Petitioners' Exhibits 4 and 5. POWERS AND DUTIES The Special Act confers on the ECUA "all privileges, immunities and exemptions accorded political subdivisions of this state," Chapter 81-376, Section 5(j), Laws of Florida (1981) and makes ECUA's "property, facilities, services and activities . non-taxable." Chapter 81-376, Section 6, Laws of Florida (1981). For purposes of the Public Records Act, but not for the purposes of the Administrative Procedure Act, Chapter 81-376, Section 4(g), Laws of Florida (1981) provides that the ECUA "shall be deemed to be an 'agency'." The same provision specifies that the ECUA "shall be deemed an agency or authority of the county for purposes of S.286.011, Florida Statutes, the "'Government in the Sunshine Law'." Although it once contracted for accounting services from the county, (T. 101), the ECUA budget is .separate and distinct from the county budget. The State Comptroller's Office has determined that ECUA "is an independent authority for purposes of Chapter 218," Deposition of Billy J. Givens, page 8, and the ECUA has not disputed this determination, possibly because it was never advised of the determination as such. The ECUA uses the same financial reporting form that counties and independent districts use in filings required by law to be made with the State Comptroller. The ECUA treats at least some "county buildings-as customers for water and sewer purposes." (T. 70) In the spring of 1985, ECUA switched the tags on its vehicles from county tags to state tags. (T. 98) The ECUA must apply to Escambia County for permits in order to cross county rights of way (T. 101), just as the City of Pensacola did when it operated its water and sewer system. (T. 102) The ECUA also has to apply for a permit in order to cross city rights of way. (T. 101) Deposition of Charles W. Bates page 7. COUNTY OFFICERS The "Florida Retirement System . . . is a statewide consolidated system that covers public programs and employee groups on all levels of government, state, county, school board, cities, special districts . . . ." Deposition of Andrew J. McMullian, III, page 13. State retirement programs before the Florida Retirement System, which came into existence on December 1, 1970, did not distinguish between elected officials and regular employees. Deposition of Ruth Sansom, page 16. After the Elected State Officers' Class had been created, the law was again amended, effective July 1, 1981, to make "county elected officials, including any sheriff, tax collector, property appraiser, supervisor of elections, clerk of the circuit court, county commissioner, school board member, or elected school board superintendent," Section 121.052(1)(g), Florida Statutes (1985), eligible for participation in the Elected State Officers' Class. Chapter 81-214, Laws of Florida (1981). Aside from holders of the offices named, the Comptrollers of Orange and Escambia Counties and the Mayor of Metropolitan Dade County are enrolled in the Elected State Officers' Class. (T. 40) Respondent viewed the Mayor of Metropolitan Dade County as differing in name only from a county commissioner and allowed participation in the Elected State Officers' Class on that account. (T. 50) With respect to the Orange and Escambia County Comptrollers, "the majority in one case of the duties of the Clerk were transferred to the Comptroller and in the other case, it seems like it was about a 50/50 split of the prior duties being transferred over to the Comptroller." (T. 50) In these circumstances respondent decided that "based on the functions that they were performing, the duties of the office, that whether the title said Comptroller or Clerk, they essentially fit the definition." (T. 50) In response to a question from respondent's Assistant Director, Lew Dennard, respondent's chief legal officer, Augustus Aikens, Jr., wrote a memorandum dated October 20, 1981. Petitioners' Exhibit No. 1. As phrased by Mr. Aikens, the question was whether the statutory language "limits membership in the Elected State Officers' Class to those elected county officers who are enumerated in Section 121.052(1)(g)?" In the memorandum, Mr. Aikens declared himself of the opinion that the language "any county elected officer" was intended to establish the class of individuals eligible for participation in the Elected State Officers' Class; and the term "including" followed by an enumeration of elected county officers was merely intended to be descriptive of the individuals eligible for inclusion in the Elected State Officers' Class as county elected officers. Accordingly, the class is not exhausted by the enumeration found in subsection (g). Other elected county officers are also includable in the Elected State Officers' Class. Petitioner's Exhibit No. 1. On November 6, 1984, however, respondent promulgated Rule 22B- 1.05, Florida Administrative Code, which did not make participation in the Florida Retirement System mandatory for any county officer and provided: Effective July 1, 1981, participation in the Elected State Officers' Class of the Florida participation in the Elected State Officers' Class of the Florida Retirement System shall be optional for the following elected county officers: sheriff, tax collector, property appraiser, supervisor of elections, clerk of the circuit court, county commissioner, district school board member, and elected district school board superintendent. The elected officer may transfer to and participate in the Elected State Officers' Class by submitting an application to the Administrator within one year from July 1, 1981 if already in office on that date, or within one year from the date of election if elected after July 1, 1981. Officers appointed to fill an unexpired term may join the Elected State Officers' Class under this provision. An elected county officer who transfers to the Elected State Officers' Class and who fails to win reelection to an elected office shall cease to be a member of the class. If the member returns to a position covered under the Florida Retirement System he shall receive credit thereafter based on the class of membership of his position. 22B- 1.055(2)(d) In these proceedings, respondent takes the position that this rule provision, and the statutory language it implements preclude petitioners' participation in the Elected State Officers' Class of the Florida Retirement System.
Recommendation RECOMMENDED: That respondent grant the individual petitioners' requests to be included in the Elected State Officers' Class of the Florida Retirement System effective January 8, 1985. DONE and ENTERED this 27th day of February, 1986, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of February, 1986. COPIES FURNISHED: CARSON LINN, P.A. Cambridge Centre 253 East Virginia Street Tallahassee, Florida 32301 Ray Kievit 15 West Main Street Pensacola, Florida 32501 Andrew J. McMullian, III, Director Division of Retirement Building C Cedars Executive Center Tallahassee, Florida 32303 Stanley M. Danek, Esquire Cedars Executive Center 2539 North Monroe Street Suite 207-Building C Tallahassee, Florida 32303 APPENDIX Petitioners' proposed findings of fact one through five, seven through fourteen, sixteen, nineteen, twenty, twenty-three through twenty-seven, twenty nine, thirty-one, thirty-three, thirty-four and thirty-five have been adopted, in substance. Petitioners' proposed finding of fact six is supported by the weight of the evidence, except for the final sentence which states that ECUA board members are required to take the same oath of office as that sworn to by county commissioners." Although they are similar, the oaths are not identical. Petitioners' proposed finding of fact fifteen incorporates petitioners' exhibit 6 which is accurate except that it overlooks the initial two years (1985-1987) during which some of the ECUA board members have two-year terms. Petitioners' proposed findings of fact seventeen and eighteen fail to mention that ECUA also exercises powers and duties pertaining to what were city utilities. Petitioner's proposed finding of fact twenty-one is supported by the weight of the evidence except for the second sentence, which was not proven. Petitioners' proposed finding of fact twenty-two is accurate insofar as the date of the adoption of Rule 22B-1.055, Florida Administrative Code, but there was no competent evidence of the intent of the Division of Retirement, which, on this record, must be inferred from the language of the rule. Petitioners' proposed findings of feet twenty-eight, thirty and thirty-two pertain to the course of free-form proceedings, which became immaterial once formal proceedings began. Respondents' proposed findings of fact one through five, seven, eight, and nine have been adopted, in substance. Respondents' proposed finding of fact six is supported by the weight of the evidence, except that it was Ch. 83-403, Laws of Florida (l984) that made the ECOA board elective. After the Division informed Petitioners by letter dated April 17, 85 that they were ineligible "for membership in the Elected State Officers' Class", Petitioners filed their petition for formal administrative proceedings with the Division of Retirement on Hay 14, 1985. The petition was assigned to the Division of Administrative Hearings. The instant case was later consolidated with a rule challenge by Petitioners in DOAH Case No. 185-2518R. A Final Order in the rule challenge was entered by the Hearing Officer on February 27; 1986, holding that Rule 22B-1.055(2)(d), Florida Administrative Code, was an invalid exercise of delegated legislative authority. That Final Order was not appealed by the Division. HEARING OFFICER'S FINDINGS OF FACT Because the Division is accepting certain of the Hearing Officer's Findings of Fact and rejecting others in part, each finding of fact in the Recommended Order will be considered individually. Paragraph 1: Accepted. Paragraph 2: Accepted. Paragraph 3: Accepted. Paragraph 4: Accepted. Paragraph 5: Accepted. Paragraph 6: Accepted. Paragraph 7. Accepted in part, rejected in part. The jurisdiction of the Authority is greater than the prior jurisdiction of Escambia County since it may provide utility service to areas outside Escambia County. See Paragraph 2 of Recommended Order. The only source of revenue possessed by the Authority is utility rates paid by customers of its systems. Funds obtained from bond issues, loans, or the federal government, are not considered as revenue. Paragraph 8: Accepted. Paragraph 9: Accepted in part. The phrase ".possibly because it was never advised of the determination as such" is rejected as having no support in the record. Paragraph 10. Accepted. Paragraph 11. Accepted. Paragraph 12. Accepted. Paragraph 13. Accepted. ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION DIVISION OF RETIREMENT ESCAMBIA COUNTY UTILITIES AUTHORITY, W. F. HAMPTON, TERRY BUSBEE, GEORGE DAVIS, and WILSON B. ROBERTSON, Petitioners, vs. DOR Case No. DR85-5 DOAH Case No. 85-1718 STATE OF FLORIDA, DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT, Respondent. /
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: During the development stage of a condominium project, known as Lake Villas Condominium, in Altamonte Springs, Florida, First Federal Savings and Loan of Orlando foreclosed on some forty (40) units of the project. At that time, approximately in November of 1975, thirty-one (31) units already had fee- simple owners or were under a lease/purchase option and they were not involved in the foreclosure proceedings. Mr. David McComb, a vice-president and mortgage loan officer with First Federal Savings and Loan of Orlando, was given the responsibility of assuring the completion of the remaining units, selling the units and setting up a homeowners' association for the Lake Villas Condominium. The petitioner Lake Villas Condominium Association's five-position board of directors was originally comprised of three members who were personnel of First Federal Savings and Loan of Orlando, so that First Federal would have majority control at a time when it held the ownership to the majority of the units. In June of 1976, thirty-seven of the seventy-one units had been sold to individuals. Thereafter, the composition of the petitioner's board of directors changed and the individual-unit owners held the majority of the five positions. Mr. McComb, as a representative of First Federal Savings and Loan of Orlando, remained on the board of directors and continued First Federal's attempts to sell the remaining unsold units. First Federal retained a sales representative who lived in one of the condominium units, operated her sales office from one of the vacant units owned by First Federal and was paid a real estate commission when she sold a unit. The sales contract on the last of the units owned by First Federal was closed on December 12, 1977. Prior to mid-1976, the Florida Power Corporation account for seven or eight common element meters was in the name of First Federal Savings and Loan of Orlando, doing business as Lake Villas Condominium Association, and the billing statements were mailed to the Orlando office of First Federal Savings and Loan. In June or July of 1976, after the majority of units had been purchased by individual owners and majority control of the board of directors was obtained by the individual owners, Mr. McComb of First Federal placed a telephone call to the respondent's Winter Park office. The purpose of this call was to inform respondent that First Federal wanted the account name and address for the seven or eight meters changed and to inform respondent that the Lake Villas Condominium Association had taken over responsibility for the accounts. Mr. McComb spoke on the telephone to a female who handled commercial accounts for the respondent's Winter Park office and informed her that he wanted the name of First Federal Savings and Loan taken off the account and the bills to be mailed to the Lake Villas Condominium Association at a post office box in Altamonte Springs. The female to whom Mr. McComb spoke took down the information regarding the account numbers and change of billing names and addresses, and told him she would take care of it. Mr. McComb did not inquire about a rate adjustment, and no discussion was had concerning rates for the seven or eight meters. Following the June or July, 1976, discussion between Mr. McComb and a female at the respondent's Winter Park office concerning a change in billing name and address, the billing statements were sent and received at the post office address of the Lake Villas Condominium Association, Inc. in Altamonte Springs. Approximately one year later, in mid-1977, Mr. McComb was forwarded some delinquent notices on the seven or eight meters. They had originally been sent to the petitioner's post office box in Altamonte Springs, but were thereafter forwarded to Mr. McComb's attention at First Federal. Mr. McComb noticed that, although the post office address had been changed, the accounts were still in the name of First Federal Savings and Loan of Orlando. He then placed another telephone call to the respondent's Winter Park office, spoke with a female in the commercial department and requested that the name of First Federal Savings and Loan of Orlando be removed from the account and that the Lake Villas Condominium Association, Inc. be inserted as the new-named customer. The female informed Mr. McComb that this request would be taken care of and that nothing further need be done. No inquiry by Mr. McComb or discussion was had concerning a rate adjustment for these seven or eight meters. Electricity for the individual living units of the Lake Villas Condominiums are separately metered. In addition, there are seven or eight separately billed meters which service the common areas of the condominium, such as the two swimming pools, the internal street and sidewalk lighting, the clubhouse and small post lamps for an open green area. From at least April of 1979 through October of 1980, no commercial activity occurred in any of the condominium units. In April of 1979, Mr. O. K. Armstrong became the manager of the Lake Villas Condominiums and was responsible for the association's financial transactions. He noticed in May of 1979 that the bills for the seven or eight subject meters contained the name of First Federal Savings and Loan of Orlando, though they did list the condominium's post office box number for the address. After speaking with Mr. McComb about the matter, Mr. Armstrong telephoned a Mr. Harbour at the respondent's Winter Park office. It was during this discussion that petitioner, through Mr. Armstrong, learned that the seven or eight common element meters might qualify for a residential, as opposed to the higher commercial, rate. Thereafter, the rates for the seven or eight meters were changed by Florida Power Corporation from commercial to residential. The request of Mr. Armstrong for a retroactive application of those residential rates to January 1, 1976, which would amount to a refund of all amounts paid in excess of the residential rates from that date, was denied by Mr. Harbour, respondent's office manager in Winter Park. During the hearing, the petitioner verbally amended the request for retroactive application of the residential rate from January 1, 1976, to July of 1976.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the petition filed by the Lake Villas Condominium Association, Inc. be DISMISSED. Respectfully submitted and entered this 17th day of June, 1981, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 1981. COPIES FURNISHED: James D. Mapp Hunter, Pattillo, Marchman, Mapp and Davis Post Office Box 340 Winter Park, Florida 32790 Blair W. Clack Assistant Counsel Post Office Box 14042 St. Petersburg, Florida 33733 Arthur Shell Public Service Commission Legal Department 101 East Gaines Street Tallahassee, Florida 32301 Steve Tribble, Clerk Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32301
The Issue The question presented here concerns the entitlement of the Petitioner, Theodore D. Walker to be approved to serve as Chief of Security, Palm Beach Jai Alai, Palm Beach County, Florida, in the face of the Director, Division of Pari- Mutuel Wagering's disapproval of that request.
Findings Of Fact The Petitioner in this cause, Theodore D. Walker, has made application to serve as Chief of Security for the Fronton, Inc., in its fronton known as Palm Beach Jai Alai, Palm Beach County, Florida, for the seasons 1980-81. This request has been denied by the Respondent in the person of the Director of the Division of Pari-Mutuel Wagering. The justification for this denial is premised upon the alleged conflict of interest between the employment responsibilities of the Petitioner in his part- time employment as Chief of Security at the Palm Beach Fronton and his primary duty responsibilities as Lead Investigator in the State Attorney's office, Fifteenth Judicial Circuit, Palm Beach County, Florida, which is the State Attorney's office with jurisdiction over the County in which the Palm Beach Jai Alai is located. As authority for his denial, the Director has referred to Rule Subsections, 7E-3.03(11) and (12), Florida Administrative Code. 1/ The Petitioner has held seasonal employment as a security officer with the Fronton, Inc. in its West Palm Beach facility from 1965 until the Director's denial of approval which occurred on August 26, 1988. Beginning in 1972, Petitioner had been approved as Chief of Security at the aforementioned fronton. Walker has worked as an investigator in the State Attorney's office, Fifteenth Judicial Circuit, continuously beginning in 1973, and at the time he was hired in his primary employment as investigator, he held the secondary employment as Chief of Security with the Palm Beach Fronton. The Honorable David Bludworth, State Attorney, Fifteenth Judicial Circuit, knew of Mr. Walker's secondary employment as Chief of Security for the fronton when Walker was hired. Over the years, Walker has been promoted from the position of investigator to the position of Lead investigator. Presently his duties for the State Attorney's office involve assisting the attorneys in that office in the preparation of their cases for trial; original investigations that do not have their origins with other law enforcement agencies, in particular "white collar" crime, including public officials and law enforcement personnel and the primary responsibility to head up the "organized" crime unit of that State Attorney's office. In connection with his duties, the Petitioner is granted arrest powers and carries a weapon. As a full-time employee of the State, Walker is paid by the State of Florida. His salary is approximately $23,888 per year in contrast to his salary as a Chief of Security which has been in the amount of $14,888 for tax year, constituted of two meetings (seasons) at the fronton. (Pending the outcome of these matters, the Respondent's secondary employment with the Palm Beach Fronton, is that of floor supervisor at an undisclosed amount of compensation.) Walker's responsibilities as Chief of Security for the fronton include the hiring and supervising of security officers; the security of the physical plant at the fronton, to include the ejection of unruly patrons with the assistance of local law enforcement; initial contact with individuals over betting disputes which are ultimately referred to the Respondent; initial investigation of irregularities involving the computer system utilized by the fronton in running its facility; supervision of watchmen; initial investigation of matters involving betting on credit; investigation of shortages of money involving employees of the Fronton end prohibiting prostitutes and "book makers" from plying their trades on the fronton premises. In connection with his duties as Chief of Security, the Petitioner has no special expertise in the field of computers. When the Director of the Division of Pari-Mutuel Wagering disapproved the Respondent's request to serve as Chief of Security for the Fronton, Inc., he contended and continues to hold that belief, that the Petitioner's dual employment as Investigator for the State Attorney's office and as Chief of Security for the fronton, would serve to undermine public confidence in the integrity of the sport of jai alai and, therefore, was not in the best interest of the pari-mutuel industry. Consequently there was ample cause to reject Walker's request, according to the Director. In elaborating on his position, the Director expressed the opinion that law enforcement type officials should not be allowed to hold secondary employment in a fronton in a capacity as security official within the same geographical area in which the individual applicant has law enforcement responsibilities. To that end, six to eight other individuals, excluding the Petitioner, have also been disapproved as security officials at pari-mutuel wagering establishments, following the Walker disapproval. Gary Rutledge, Director of the Division of Pari- Mutuel Wagering in stating the reasons for denying Walker's request, goes on to say that the Chief of Security is a primary person responsible for detecting violations of law at the fronton and Rutledge has a concern that those matters might not be investigated by the Chief of Security or that the appearance might be created that the matters might not be investigated. Moreover, the Director worries about the potential flow of information from the State Attorney's office to the fronton, in particular, when there is, in his mind, the aura of "organized crime" which surrounds the pari- mutuel wagering industry. In response to concerns referred to above, neither the Petitioner nor the Respondent has shown any acts of impropriety on the part of Walker in serving in the capacity as Investigator for the State Attorney's office or in his part-time employment as Chief of Security for the Fronton, Inc., or do they have any reason to suspect that Walker is less than a man of utmost integrity in his profession and in his private life. There was, however, one instance in 1978, in which a fire occurred at the Palm Beach Fronton and State Attorney Bludworth made the judgment not to allow Walker to serve as State Attorney Investigator on that case, in which arson was suspected. This decision on Bludworth's part was made to protect against the appearance that might be created that as investigator to the prosecutor, some special knowledge and advantage could possibly be afforded to Walker in his role as Chief of Security for the fronton. Although Walker was above reproach in this matter, the State Attorney lost the advantage of his services as investigator in a circumstance wherein other law enforcement officials felt that it would have been extremely helpful to have Walker serving in his primary duty as State Attorney Investigator in attempting to solve the arson case. This instance points up the viability of the Director's argument on the issue of public confidence in the industry, in particular, in avoiding the appearance of fraud or dishonesty in that industry, and it is no less valid in the face of Walker's insistence that he would step down in future cases such as the 1978 incident and the State Attorney's indication that he would give serious consideration to the role that Walker would play in investigations involving incidences at the fronton in West Palm Beach. As stated before, criminal acts have occurred at the fronton and it is a reasonable expectation those events shall take place in the future. Alleged conflict of interest is the only ground upon which the Petitioner has been denied his request to act as Chief of Security at the Palm Beach Fronton. There has been some suggestion concerning a rumor that the Director had denied the application based upon a lack of good moral character on the part of the Petitioner and the ensuing effect that this has had on the community, and in particular, the black community in Palm Beach County of which the Petitioner is a member; however, Director Rutledge has never offered lack of good moral character as a reason for denying the permit application, and his decision to deny Walker's application was not racially motivated.
The Issue Whether Respondent committed the violations of Emerald Coast Utility Authority’s Human Resources Manual as alleged in the agency action letter dated July 17, 2017.
Findings Of Fact At the outset of the hearing, Mr. Ward’s attorney announced that Mr. Ward no longer wished to challenge ECUA’s intent to terminate his employment. In other words, Mr. Ward withdrew his request for a hearing. Furthermore, Mr. Ward made a statement consistent with his attorney’s announcement. The undersigned finds that Mr. Ward’s decision to withdraw his hearing request was voluntarily made and uncoerced.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Executive Director of Emerald Coast Utilities Authority find that Mr. Ward violated Section B-13 A (4)(conduct unbecoming an ECUA employee), Section B-13 A (13)(falsification of records), Section B-13 A (18) (loafing), Section B-13 A (26)(substandard quality or quantity of work), and Section B-13 A (33)(violation of ECUA rules or guidelines or state or federal law) of the ECUA’s Human Resources Manual.3/ DONE AND ENTERED this 28th day of September, 2017, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 28th day of September, 2017.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as a personal view of the subject premises by the undersigned, the following relevant facts are found: By an application submitted to the Department of Environmental Regulation in January of 1976, Florida Power Corporation seeks a permit to construct and maintain three electrical power poles, two on Banana Island and one on Parker Island in the King's Bay area of Crystal River. Two spans of wire are to exist between the three poles. The minimum clearance of the bottom wire of the lines spanning between Parker and Banana Islands will be forty-four (44) feet. The wires crossing Banana Island will be some 29 feet in height. The wires will be stretched in a vertical fashion with three wires spaced one above the other, and will carry 12,470 volts of power. Because a mean high water survey was not performed, it is not known whether the three poles will be located on privately or sovereignty-owned land. Inasmuch as Florida Power Corporation has applied for the applicable permits from both the Department of Environmental Regulation and the Department of Natural Resources (See Case No. 77-960), a finding on this issue is not necessary. Darrell F. Howton, a field inspector with the Department of Environmental Regulation, conducted two on-site visits and an appraisal of the permit application. He recommended approval of the project. Finding that the "short-term or immediate impact of the project will deal almost strictly with the transportation of equipment to and from the site," the only recommendation he made was that, in order to minimize the crushing of vegetation, a direct route to the sites be taken with little moving around in the area with vehicles or equipment. Mr. Howton considered potential impediments to navigation resulting from the overhead wires, but found none due to their proposed heights. The dredge and fill section of the Department of Environmental Regulation gave notice of its intent to issue the permit applied for by the Florida Power Corporation. Thereafter, the petitioners herein filed a request for a hearing on the permit application, the Department of Environmental Regulation transferred the petitions to the Division of Administrative Hearings for hearing, Central Development Company as the owners of Parker and Banana Islands intervened as a party-respondent, and the undersigned Hearing Officer was duly designated to conduct the hearing. This matter was consolidated for hearing purposes with Case Nos. 76-1102, 77-849, 77-850 and 77-960, for which separate recommended orders are being entered. The majority of testimony presented by the petitioners related to the issue of whether or not the proposed power lines would create a hazard or a serious impediment to navigation in the area between Parker and Banana Islands. As noted above, the minimum clearance of the wires extending between these islands is 44 feet. The depth of this area at high tide is between four and five feet. The greater weight of the evidence was to the effect that sailboats with masts higher than 35 to 40 feet were too large to use this particular channel because their draft would be too great for the depth of the channel. Deeper navigable waters exist on the west side of Banana Island, and it would not be prudent for a large sailboat owner to risk the expenses and dangers of becoming grounded in the more shallow waters. It was the testimony of the distribution engineering supervisor for Florida Power Corporation that if the power lines created any problems after their installation with respect to sailboat masts, Florida Power would correct the situation by raising the lines to accommodate local traffic. Seaplanes (five or six per year) occasionally utilize the air space between Banana and Parker Islands, depending upon the prevailing wind direction. There would be no harmful or adverse effect upon the manatee by the existence of the power poles or lines. Several waterfront property owners testified that they felt their view of the waters would be obstructed by the existence of the proposed power lines.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that Department of Environmental Regulation issue to the Florida Power Corporation a permit authorizing and allowing the installation and maintenance of the power poles and lines contained in its application. This permit should not be issued unless and until the applicant receives and exhibits the necessary form of consent from the Trustees of the Internal Improvement Trust Fund, pursuant to Florida Statutes Section 253.77 (1976). Respectfully submitted and entered this 16th day of September, 1977, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Kenneth F. Hoffman, Esquire Post Office Box 1872 Tallahassee, Florida 32302 Alfred W. Clark, Esquire Assistant General Counsel Department of Environmental Regulation 2562 Executive Center Circle, E. Montgomery Building Tallahassee, Florida 32301 Baya Harrison, III, Esquire Post Office Box 391 Tallahassee, Florida 32302 David Gluckman, Esquire 3348 Mahan Drive Tallahassee, Florida 32303 Mr. H. A. Evertz, III Florida Power Corporation Post Office Box 14042 St. Petersburg, Florida 33733 Kent A. Zaiser, Esquire Assistant Department Attorney Department of Natural Resources Crown Building 202 Blount Street Tallahassee, Florida ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION CRYSTAL RIVER PROTECTION ASSOCIATION, INC., et al., Petitioner, vs. CASE NO. 76-1103 STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION, FLORIDA POWER CORPORATION and CENTRAL DEVELOPMENT COMPANY, Respondent. /
The Issue Whether Petitioner, Karen L. Ehlers was wrongfully terminated from her position with Respondent, Florida Employers Insurance Service Corporation because of her handicap or perceived handicap in violation of Section 760.10(1)(a), Florida Statutes.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: FEISCO is a Florida corporation which is in the business of providing insurance-related services to insurance companies, self-insurer funds and self- insured employers, and is an employer as that term is defined in Section 760.02(6), Florida Statutes. FEISCO has a department called Information Services (formerly known as Management Information Services) which is responsible for providing the computer information systems within FEISCO and maintaining the many applications and data bases used by other FEISCO departments. The Petitioner, Karen L. Ehlers, was employed by FEISCO from July 17, 1989, to November 15, 1990, as a computer programmer in the Information Services department. The minimum education requirement for the position of computer programmer was two years' computer science education or equivalent Micro/Mini exposure. Petitioner holds a bachelor's degree in mathematics with an emphasis in computer science. As a computer programmer, Petitioner's job duties included writing computer programs, designed by analysts, using several computer languages and working and communicating with analysts and program users to correct design problems to assure the final program fit the user's needs. At all times during her employment with FEISCO, Petitioner was supervised by Joan Zare, Production Supervisor, Information Services department. Zare was responsible for overseeing Petitioner's training during her probationary period and for all formal evaluations of Petitioner's work. John Keegan, Manager of FEISCO's Information Services department, was Zare's immediate supervisor at all times relevant to this proceeding. Keegan reviewed and approved the written evaluations of Petitioner by Zare, but did not review Petitioner's work. Keegan did not have any direct knowledge of Petitioner's competence, and did not interview either Zare or Petitioner regarding the evaluations. Jim Venza, Director of Information Services for FEISCO, was Keegan's immediate supervisor at all times relevant to this proceeding. Venza had no direct knowledge of Petitioner's work performance. Upon being hired by FEISCO, Petitioner was subject to a ninety-day probationary period. After this probationary period (July 7, 1989 to October 13, 1989), Zare gave Petitioner a positive evaluation which included ratings of "Achieves" in all performance standards. Zare viewed Petitioner's overall performance during her probationary period as satisfactory and recommended Petitioner for full employee status. In January, 1990, Petitioner received a salary adjustment upward from $20,000.00 to $20,500.00 In June, 1990, Petitioner received a congratulatory memorandum and a $50.00 bonus for successfully completing a Property and Liability Insurance course and examination. FEISCO encouraged its employees to take course work to increase their knowledge of insurance and to join Toastmasters, a group organized to help its members improve self-confidence and public speaking skills. Petitioner participated in outsider course work and Toastmasters. On July 4, 1990, Petitioner was diagnosed as having chronic fatigue syndrome. This condition did not restrict Petitioner in her job as a computer programmer or effect her work negatively. On July 9, 1990, Petitioner advised Zare that she had chronic fatigue syndrome. On July 17, 1990, Zare gave Petitioner her first annual performance evaluation. Although Petitioner had experienced some problems with her work during the period after her probationary performance evaluation, Zare felt that her job performance in the latter part of the evaluation period indicated that Petitioner had overcome those problems. Zare rated the Petitioner as achieving at or above the standards expected of her in all areas of her job performance. In one area of work Petitioner was rated as "Exceeds". While Zare considered Petitioner as performing satisfactory at the time of her first annual performance evaluation, it was understood between Petitioner and Zare that continued improvement by the Petitioner would be necessary in order for Petitioner to maintain a satisfactory performance rating. On October 15, 1990, Keegan and Bob Burgoon, a program analyst, assigned Petitioner to the extra duty of Problem Manager. The duties of Problem Manager involved reviewing and solving problems with programs which were called in by users, and required being on-call to assist operations during off-hours. The job of Problem Manager had previously been rotated among analysts and not assigned to programmers. However, the job of Problem Manager was assigned to Petitioner because Keegan and Burgoon felt that she could handle the job. On October 16, 1990, Petitioner advised Keegan of her previously diagnosed medical condition, and presented Keegan with a written statement from her doctor recommending that Petitioner restrict herself to a forty-hour week. Petitioner advised Keegan that she still wanted to try the Problem Manager's job. However, Keegan decided not to "second guess" the doctor and removed Petitioner from the Problem Manager duties. There is insufficient evidence to establish facts to show that Keegan at any time, including the meeting with Petitioner on October 15, 1990, advised the Petitioner that her medical condition would adversely affect her job with FEISCO. Petitioner became concerned about her job after the meeting with Keegan on October 15, 1990 and discussed this matter with Frances White in personnel on October 22, 1990. Petitioner also shared these same concerns about her job with Zare on October 23, 1990. At this meeting with Zare there was no reference to Petitioner's job performance by Zare. On this same day, Zare met with Venza and Keegan together and with White individually in regard to Petitioner's concerns. On October 24, 1990, Petitioner met with Zare and White. At this meeting, Zare and Petitioner discussed concerns about Petitioner's job performance. They also discussed Zare's intention to develop a detailed list of skills necessary for the satisfactory performance of the programmer position which would be used to revise the current programmer position description, and would involve a self-assessment by all programmers. The purpose of the self- assessment was to identify the areas in which the programmers felt they needed improvement. After each programmer finished their respective self-assessment, Zare reviewed the self-assessment individually with each programmer. In reviewing Petitioner's self-assessment, Zare concluded that Petitioner had overrated her abilities in several areas. After Zare concluded the review of the individual self-assessments with each programmer, Zare prepared a memorandum of her findings to all programmers. The memorandum outlined a proposed training project that was to be given in conjunction with the individual self-assessment. As with other programmers, Petitioner was assigned a series of projects to be completed as part of this training. As each part of the project was completed, Zare orally evaluated the Petitioner's performance and tested the program and reviewed the coding used by Petitioner. Errors were pointed out to Petitioner and she was given an opportunity to correct the errors. On November 14, 1990, after completion of the entire project, Zare reviewed Petitioner's work and prepared a written appraisal of Petitioner's performance on the project. The written appraisal described Petitioner's shortcomings but also included some positive criticism. Zare concluded that Petitioner's work on the project was below the expected standard. Basically, the written appraisal was contradictory to all performance evaluations previously given to Petitioner by Zare. The programmers, other than Petitioner and Chris Brady, were unable to begin work on the project due to prior work commitments before Zare was transferred to another department. After Zare was transferred this project was terminated. While Zare did verbally counsel Brady about his work, Brady did not receive a written appraisal by Zare before her transfer. Therefore, Petitioner was the only programmer to receive a written appraisal of her work on the project. On November 14, 1990 when Petitioner met with Zare to review Zare's written appraisal of her performance, the Petitioner became upset and defensive. Therefore, Zare suggested that the Petitioner review the appraisal overnight and come back the next day to discuss the appraisal. Petitioner did not return to discuss the appraisal with Zare. Petitioner's failure to return and discuss the appraisal with Zare resulted in Zare concluding that Petitioner was unwilling to accept constructive criticism of her performance. This precluded Zare from working with Petitioner to attain any progress. Therefore, Zare concluded that nothing could be accomplished in attempting to work with Petitioner in the future. Therefore, Zare recommended to Keegan and Venza that Petitioner be terminated. Although Zare considered Petitioner's work performance to be below standards, Zare would not have recommended Petitioner's termination had it not been for Petitioner's very negative reaction and her unwillingness to discuss the appraisal with Zare. Petitioner's employment with FEISCO was involuntarily terminated on November 15, 1990. Between being terminated with FEISCO and being re-employed, Petitioner lost ten weeks of pay at $418.00 per week, an annual bonus equal to one month's pay and other monetary damages in the form of lost medical benefits. Although FEISCO had several employees that suffered a medical condition during times relevant to this proceeding, there was no evidence that FEISCO discriminated against any of these employees because of their medical condition. There was insufficient evidence to establish facts to show that FEISCO discriminated against Petitioner because of her medical condition, chronic fatigue syndrome, when FEISCO terminated Petitioner on November 15, 1990.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Commission enter a Final Order finding that the Petitioner, Karen Ehlers, was not discharged due to her handicap or perceived handicap in violation of Section 760.10, Florida Statutes, and that the Petition For Relief be dismissed. RECOMMENDED this 26th day of May, 1993, at Tallahassee, Florida. WILLIAM R. CAVE 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 26th day of May, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-3782 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 in this case. Petitioner's Proposed Findings of Fact. 1. Proposed Findings of Fact 1 through 31 have been adopted in substance as modified in the Recommended Order, except where they may be subordinate, cumulative, unnecessary, irrelevant, immaterial or a restatement of testimony, with the exception of the second sentence of Proposed Finding of Fact 30 which is rejected as not being supported by competent substantial evidence in the record. Respondent's Proposed Findings of Fact. Proposed Findings of Fact 1 through 18 and 22 through 55 have been adopted in substance as modified in the Recommended Order, except where they may be subordinate, cumulative, unnecessary, irrelevant, immaterial. Proposed Findings of Fact 19 through 21 are rejected as not being supported by competent substantial evidence in the record. COPIES FURNISHED: Snowden S. Mowry, Esquire KANETSKY, MOOR & DEBOER, P. A. Post Office Box 1767 Venice, Florida 34284-1767 David J. Stefany, Esquire HOGG, ALLEN, NORTON & BLUER, P. A. S. Hyde Park Avenue, Suite 350 Tampa, Florida 33606 Sharon Moultry, Clerk Human Relations Commission John Knox Road Building F, Suite 240 Tallahasse, Florida 32303-4149 Dana Baird, General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
