The Issue The issues are whether Respondent, LP Ormond Beach, LLC d/b/a Signature Healthcare ("Signature") committed unlawful employment practices contrary to section 760.10, Florida Statutes (2013),1/ by discriminating against Petitioner based on her race by subjecting her to disciplinary procedures that were not applied to non-minority employees.
Findings Of Fact Signature is an employer as that term is defined in subsection 760.02(7). Signature is a provider of long-term nursing care in many markets in the United States. Signature operates the skilled-nursing facility in Ormond Beach that is the locus of this proceeding. Petitioner is a black female. On February 29, 2012, Petitioner was hired by Signature as a Certified Nursing Assistant (“CNA”). Petitioner’s job consisted of providing personal care to the residents of Signature’s Ormond Beach facility, including assisting the residents with their activities of daily living (“ADLs”). Signature terminated Petitioner’s employment in August 2013, when she failed to show up for work or call to notify her superiors that she would not be there. Petitioner did not contest the grounds of her dismissal in this proceeding. Petitioner’s complaint is limited to her allegations of disparate treatment on the job at Signature. At the time of her hiring, Petitioner was provided a copy of Signature’s “Stakeholder Handbook,” a document setting forth the company’s employment policies, including its anti- discrimination and anti-retaliation policies. The handbook sets forth Signature’s policies and procedures that prohibit, among other things, discrimination or harassment on the basis of race, national origin, or any other categories of persons protected by state or federal anti-discrimination laws. Prior to filing her Employment Complaint of Discrimination with FCHR, Petitioner never made a complaint of employment discrimination while working at Signature. Signature also has a written “Abuse, Neglect and Misappropriation Policy” (abbreviated herein as the “Abuse and Neglect Policy”). Petitioner received a copy of this policy during her orientation and raised no objection to any of its contents. The policy states that the facility will “immediately report and thoroughly investigate allegations of mistreatment, neglect, abuse, misappropriation of resident’s property or any injury of unknown origin.” The policy further states, “Employees accused of participating in alleged abuse will be immediately suspended until the findings of the investigation have been reviewed by the Administrator, Director of Nursing Services, and Human Resources Director.” Signature’s uniform practice is to suspend the accused employee without pay during the investigation. If the investigation discloses that the employee did not commit the alleged abuse, then the employee receives back pay for the period of the suspension. On September 27, 2012, Petitioner’s supervisor, Director of Nursing Judy Wade, issued a “Stakeholder Performance Improvement Plan” to Petitioner because of resident complaints. Ms. Wade wrote: You’ve had three residents complain of your care in the past five months. Complaints summarized as “less than gentle” care, that you told resident you couldn’t provide care because we didn’t have enough staff, sitting in resident room without resident’s permission, rudeness, and lack of assistance to residents in need.[2/] These complaints resulted in you being removed from providing care for these residents. Staff complaints summarized as: Not open to direction, makes excuses, confrontational, not a team player, and off the floor without informing nurse. Ms. Wade went on to outline Petitioner’s future expectations, which included providing care “in a timely, gentle and caring manner,” assisting co-workers and taking direction from superiors “in a positive, friendly manner,” and not leaving the floor without permission of the supervising nurse. The Performance Improvement Plan concluded with the statement, “If any expectation is not fully met your employment will be terminated.” Petitioner was not suspended pursuant to the Performance Improvement Plan because it addressed work performance issues, not “abuse” or “neglect” as defined by the Abuse and Neglect Policy. In late October 2012, Signature suspended Petitioner without pay pursuant to the Abuse and Neglect Policy pending an investigation into an incident in which a resident whom Petitioner had placed upright in a wheelchair, fell out of the wheelchair and was injured. At the hearing, Petitioner acknowledged that she placed the resident in the wheelchair and saw the resident fall. Petitioner’s only contention is that a white co-worker, Claudia Dominique, was also present and witnessed the fall but was not suspended. Luz Petrone, then the human relations director for Signature’s Ormond Beach facility, and Tiffani Petersen, the facility’s abuse prevention coordinator, testified that at the time of the incident they were not aware of any involvement by or allegation of abuse and neglect against Ms. Dominique. Therefore, they were in no position to suspend Ms. Dominique for the resident’s fall. Both women testified that Ms. Dominique would have been suspended if there had been an allegation of her involvement in the incident. The investigation concluded that Petitioner needed additional training on wheelchair usage but that she had not engaged in any abuse or neglect. Signature reinstated Petitioner to her position and paid her for the time she had missed while on suspension. Petitioner was not otherwise disciplined for this incident. On November 19, 2012, Petitioner was suspended without pay pursuant to the Abuse and Neglect Policy pending an investigation into an allegation of abuse and neglect. Petitioner did not allege that any white employees were involved in this incident. The record does not disclose the specifics of this incident, but does indicate that the investigation concluded with a finding that Petitioner had not engaged in any abuse or neglect. Petitioner was reinstated to her position on November 26, 2012, and reimbursed for the work she missed while on suspension. Petitioner was not otherwise disciplined for this incident. On January 15, 2013, Petitioner was suspended without pay pursuant to the Abuse and Neglect Policy pending an investigation into an allegation that she was being “rough” with a resident while providing care. One of Petitioner’s co- workers, Tina Williams, was involved in the incident and was also suspended pending the investigation. The investigation concluded that Petitioner needed additional training but had not engaged in any abuse or neglect.3/ Petitioner was reinstated to her position and paid for the time she missed while on suspension, as was Ms. Williams. Petitioner was not otherwise disciplined for this incident. On March 5, 2013, Signature suspended Petitioner without pay pursuant to the Abuse and Neglect Policy pending an investigation regarding rough handling of a resident and failure to toilet a resident when the resident asked to use the bathroom on March 2. A white co-worker, Patricia Capoferri, was also involved in the incident and was also suspended without pay pending investigation. Ms. Capoferri asserted that the resident in question was assigned to Petitioner but that Ms. Capoferri had to answer the resident’s call light because Petitioner would not do so.4/ Ms. Capoferri claimed that she had to answer Petitioner’s “lights all the time, because she don’t answer them.” Upon completion of the investigation, Signature determined that the allegations of abuse or neglect against Petitioner were not substantiated. Petitioner was reinstated to her position and paid for the time she had missed while on suspension. Petitioner was not otherwise disciplined for this incident. Petitioner credibly testified as to the hardship caused by the suspensions imposed on her during the investigations. It is reasonable to assume that a person attempting to survive on a CNA’s wages can scarcely afford to go a week without being paid, even when she ultimately receives full compensation for the suspension. Petitioner suffers from high blood pressure, and the tension generated by the frequent suspensions required several visits to her physician. On March 11, 2013, Signature terminated Ms. Capoferri’s employment as a result of the investigation. Petitioner claimed that Ms. Capoferri never went into the resident’s room on March 2, and that Signature suspended and fired Ms. Capoferri in order to cover its tracks regarding its pattern of discriminatory actions against Petitioner. Petitioner claimed that Signature acted against Ms. Capoferri only after Petitioner filed her Employment Complaint of Discrimination with FCHR. However, Ms. Capoferri was suspended on March 5, three days before Petitioner filed her complaint. Ms. Capoferri was fired on March 11, three days after Petitioner filed her complaint, but Ms. Petrone and Ms. Petersen credibly testified that they were unaware of the complaint at the time Ms. Capoferri’s employment was terminated. Petitioner offered no credible evidence to support her somewhat fanciful claim that Signature would fire a white employee solely to shield itself from a charge of discrimination by a black employee. Signature offered persuasive evidence that it applies its Abuse and Neglect Policy consistently and without regard to race or any other protected category. In April 2013, an allegation of abuse and neglect was made against Nancy Harnonge, a white CNA working at the Ormond Beach facility. Consistent with its policy, Signature suspended Ms. Harnonge without pay pending investigation and then reinstated her to her position with back pay after the investigation concluded that the allegations could not be substantiated. In May 2010, an allegation of abuse and neglect was made against Ms. Capoferri, who was suspended without pay pending investigation and then reinstated with back pay after the investigation did not substantiate the allegations. Petitioner never complained of discriminatory treatment or harassment to any supervisor at Signature prior to filing her Employment Complaint of Discrimination. Petitioner offered no credible evidence disputing the legitimate, non-discriminatory reasons given by Signature for her several suspensions pending investigation of abuse and neglect allegations. Petitioner offered no credible evidence that Signature's stated reasons for her suspensions were a pretext for race discrimination. Petitioner offered no credible evidence that Signature discriminated against her because of her race in violation of section 760.10, Florida Statutes. Petitioner made no claim that her dismissal from employment was in retaliation for any complaint of discriminatory employment practices that she made while an employee of Signature.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that LP Ormond Beach, LLC d/b/a Signature Healthcare did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 30th day of January, 2014, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 2014.
Findings Of Fact The Respondent was certified by the Commission on January 22, 1981, and was issued certificate number 02-026742. At all times material to the allegations of this case, Respondent has been employed as a law enforcement officer with the City of Pompano Beach Police Department. Cocaine is a schedule II controlled substance pursuant to Section 893.03, Florida Statutes. Pursuant to Section 893.13, Florida Statutes, possession of cocaine is a felony. In accordance with a collective bargaining agreement, the Police Benevolent Association, as the bargaining unit for its members, agreed to random drug and alcohol testing for all police officers employed by the City of Pompano Beach Police Department. Pursuant to that agreement, Respondent was requested to, and agreed to submit a urine sample for testing on September 24, 1992. In order to coordinate the testing, the City of Pompano Beach had contracted with a private company, Worker's Compensation Medical Center (WCMC), which was to conduct the collection of urine samples for testing purposes. On the testing dates selected, WCMC employees set up collection facilities at the police station. Ms. Bobkier, a WCMC employee with four and a half years experience, was responsible for collecting the urine sample from Respondent. According to Ms. Bobkier, employees from WCMC set up tables at the police station during the hours of 6:00 a.m. until 6:00 p.m. on September 24, 1992. On that date, Respondent presented for testing, completed the paperwork to accompany the sample, went into the bathroom designated for use, and returned a sample to the collection table. This sample was identified as DO482663-5. As she did with all samples collected that date, Ms. Bobkier then placed the sample into a holding cooler until it was transferred back to the WCMC office. Before transferring the samples back to the office, they were cataloged and inventoried. Once back at WCMC, a courier from the testing center, National Health Laboratories (NHL) picked up the samples at approximately 7:15 p.m. on the evening of September 24, 1992. The courier presumably took the samples to NHL where they were given assension numbers by a NHL employee. Neither the courier nor the "assension" employee testified at the hearing. The assension number assigned to sample DO482663-5 was 3303217-5. According to Dr. Donald R. Stalons, the director of NHL, testing on assension sample no. 3303217-5 was performed on September 24, 1992 at approximately 2:45 p.m. NHL is a clinical laboratory fully licensed by the State of Florida and the federal government and is authorized to perform forensic toxicological testing. According to the test results for assension sample no. 3303217-5, such sample was positive for cocaine metabolite. The "assension number" referred to above was the control number assigned to the sample for testing purposes. The sample retained that number throughout the testing process.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That Criminal Justice Standards and Training Commission enter a final order dismissing the administrative complaint. DONE AND RECOMMENDED this 29th day of April, 1994, in Tallahassee, Leon County, Florida. Joyous D. Parrish 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 April, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3695 Rulings on the proposed findings of fact submitted by the Petitioner: Paragraphs 1 through 12, and 21 are accepted. Paragraphs 13 through 20 are rejected to the extent that they conclude the sample was Respondent's. The Petitioner failed to prove the sample was Respondent's as his sample was not transported to the testing center until approximately 7:15 p.m. on September 24, 1992. The sample tested by NHL purported to be Respondent's sample was tested at 2:45 p.m. that same day. This would be physically impossible. To the extent that the paragraphs correctly outline the testing procedures and results at NHL, they could be accepted but are irrelevant as the sample could not have been Respondent's. Paragraph 22 is rejected as it is not supported by the weight of credible evidence. Paragraphs 23 through 32 are rejected as irrelevant and outside the scope of the administrative complaint. Rulings on the proposed findings of fact submitted by the Respondent: 1. None submitted in a form which can be addressed by either accepting or rejecting a statement of fact. Otherwise, Respondent's proposed findings of fact are rejected as argument. COPIES FURNISHED: Richard E. Lober Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 W. George Allen One River Plaza, Suite 701 305 S. Andrews Avenue P.O. Box 14738 Fort Lauderdale, Florida 33302 Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether the Petitioner, Macia Poole, was subject to an unlawful employment practice by Respondent, Westminster Village of Pensacola, on account of her sex or due to retaliation for her opposition to an unlawful employment practice in violation of section 760.10, Florida Statutes.
Findings Of Fact On April 3, 2015, Petitioner’s Employment Complaint of Discrimination and Petition for Relief were transmitted to the Division of Administrative Hearings by the Florida Commission on Human Relations for a formal administrative hearing to be held in accordance with section 120.57, Florida Statutes. On April 10, 2015, a Notice of Hearing by Video Teleconference was entered which set the final hearing for June 1, 2015, at 9:00 a.m., Central Time, (10:00 a.m., Eastern Time), at video teleconference sites in Pensacola, at the Office of the Judges of Compensation Claims, Video Teleconferencing Room, 700 South Palafox Street, Suite 305, Pensacola, Florida, and in Tallahassee, at the Division of Administrative Hearings, the DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida. On May 4, 2015, one Subpoena Duces Tecum and four Subpoenas Ad Testificandum were issued at the request of Petitioner. On May 14, 2015, Petitioner electronically filed her Notice of Appearance in this proceeding. On May 26, 2015, Petitioner filed a Request to Reschedule Video Hearing. The Request made no allegation of an inability to attend the hearing, only that her attendance would be an “inconvenience.” The Request was denied. The filing of the Request is convincing evidence that Petitioner knew that the final hearing was scheduled to be heard in accordance with the Notice of Hearing by Video Teleconference. On June 1, 2015, at the scheduled date, time, and place, the final hearing was convened. Mr. Moran, representing Respondent, Westminster Village of Pensacola, made his appearance. Petitioner did not appear. The final hearing was recessed for twenty minutes to allow Petitioner to appear. During the recess, the undersigned confirmed that the Division had not received any communication from Petitioner of exigent circumstances that may have interfered with her appearance at the final hearing. After twenty minutes had passed, the final hearing was re-convened. Petitioner was not in attendance. Respondent was prepared to proceed, and had its witnesses in attendance at the Pensacola video location. Mr. Moran confirmed that he had received no emails from Petitioner, that being their normal form of communication. At 9:25 a.m., Central Time, (10:25 a.m., Eastern Time), the final hearing was adjourned. There was no evidence presented at the final hearing in support of Petitioner’s Employment Complaint of Discrimination and Petition for Relief.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Respondent, Westminster Village of Pensacola, did not commit an unlawful employment practice as to Petitioner, Macia Poole, and dismissing the Petition for Relief filed in FCHR No. 2014-01235. DONE AND ENTERED this 3rd day of June, 2015, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 2015. COPIES FURNISHED: Tammy Scott Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 Brian J. Moran, Esquire Moran Kidd Lyons Johnson, P.A. 111 North Orange Avenue, Suite 900 Orlando, Florida 32801 (eServed) Macia Deanne Poole Apartment 176 6901A North 9th Avenue Pensacola, Florida 32504 (eServed) Christopher R. Parkinson, Esquire Moran, Kidd, Lyons, and Johnson, P.A. 111 North Orange Avenue Orlando, Florida 32801 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399
Findings Of Fact On November 9, 1972, the State of Florida, acting through Petitioner, certified Respondent as a law enforcement officer. Certificate number 6350 was duly issued to Respondent by Petitioner. On September 10, 1984, the following occurred in Delray Beach, Florida: At approximately 12:30 a.m., Respondent was found asleep in his automobile by two Delray Beach police officers, Sergeant Stephen Barborini and Detective Thomas Tustin. Respondent was alone in the automobile. Respondent's automobile was parked in a public parking lot in the 1100 block of North Federal Highway in Delray Beach with its engine running and its headlights on. Respondent was awakened by the police officers and questioned while in the parked automobile after the engine had been turned off by Officer Barborini. Respondent was very intoxicated. Upon being questioned, Respondent produced a police badge case, without a police badge, and identified himself as a Metro-Dade Police Officer. The Delray Beach police officers advised Respondent that he was in no condition to drive and offered to either give him a ride home or to arrange other transportation for him. Respondent then got out of the car. As a result of his intoxication, Respondent was unable to maintain his balance, his eyes were bloodshot, and his speech was slurred. At times Respondent was incoherent. Respondent began to behave in an erratic manner. He shouted and yelled obscenities at the officers, he cried, and he pleaded on his knees for the officers to leave him alone. Respondent became angry with Detective Tustin while Detective Tustin was trying to calm him down. Respondent placed his hands on the person of Detective Tustin and pushed him back a couple of steps. Respondent was arrested by Officer Barborini for disorderly intoxication and taken into custody. Upon arrival at the police station, Respondent again began to shout obscenities and pushed another officer, Officer Giovani. Respondent met with the officers about two months later and apologized for his actions. Officer Barborini asked the State Attorney's Office not to prosecute because Respondent was a police officer and because Officer Barborini had been told that Respondent was seeking help for his drinking problem. The State Attorney's Office granted Officer Barborini's request. Respondent was not charged with battery because Officer Barborini and Detective Tustin thought Respondent was too intoxicated to intentionally batter Detective Tustin. On August 28, 1985, Respondent was found guilty by the Dade County Court of the charge of battery on the person of Jose Lleo. The battery occurred on February 22, 1985, while Respondent was on duty. Although Respondent was not intoxicated at the time, he had consumed alcohol before reporting to work. Following his conviction, the Court withheld adjudication of guilt and also withheld sentence. On April 3, 1986, the following occurred in Deerfield Beach, Florida: At approximately 3:35 a.m., Respondent was found asleep in his automobile by Officer John Szpindor and Officer Dale Davis of the Deerfield Beach Police Department. Respondent was alone in the automobile. Respondent's automobile was parked on the grassy shoulder of the road in the 2700 block of Southwest 10th Street with its engine running and its headlights on. The officers were able to awaken Respondent after several minutes of shaking him and talking to him. Respondent, upon being awakened, was belligerent and uncooperative. He used profanity towards the officers, calling them names and telling the officers they had no right to bother him. Respondent got out of the automobile after being instructed to do so. Respondent was very intoxicated. As a result of his intoxication, Respondent was groggy and unable to maintain his balance. His eyes were bloodshot and his speech was slurred. Respondent's pants were wet in the crotch area. The officers identified Respondent by examining a wallet, with Respondent's permission, which was lying on the seat of the car. The wallet contained an empty badge case. From examining the wallet, the officers obtained sufficient information to enable the dispatcher to contact Shirley Daniels, who was married to Respondent at that time. Mrs. Daniels was asked to come to the scene. While waiting for Mrs. Daniels to arrive on the scene, Respondent became more belligerent. His shouting grew louder and more confrontational. Despite the officers' attempts to calm him down, Respondent took off his jacket, threw it on the ground, and assumed a defensive stance as if he wanted to fight the officers. The shouting disturbed the residents of a nearby residential area. Respondent confronted Officer Davis, who had Respondent's wallet, told Officer Davis that he had no business with the wallet, and he struck Officer Davis in the chest and chin areas. The blow to the chin was a glancing blow as opposed to being a hard blow. Officer Davis was not injured. Officer Davis and Officer Szpindor immediately thereafter physically overpowered Respondent, placed him under arrest for disorderly intoxication and battery, and took him into custody. When Shirley Daniels arrived on the scene, she told the officers that she would be unable to manage Respondent at home in his intoxicated condition. Respondent was then taken to jail by the officers. There was no evidence as to the disposition of the charges of disorderly intoxication and battery. Respondent is an alcoholic and was an alcoholic at the times of the incidents described above. Prior to those incidents, Respondent had sought treatment and thought that he had successfully completed the program. Between the incident in Delray Beach and the incident in Deerfield Beach, Respondent attended Alcoholics Anonymous. Respondent continued to drink, to the extent that he suffered blackouts, because he did not immerse himself in the Alcoholics Anonymous program. During the periods Respondent maintained control of his drinking, he exhibited the qualities required of a enforcement officer. Whenever the alcoholism gained control, as was the case in the 1984 incident in Delray Beach and the 1986 incident in Deerfield Beach, Respondent lost control of himself and of his actions. As of the date of the final hearing, Respondent had abstained from alcohol for two and one-half years. For the past two and one-half years Respondent has been seriously, and successfully, involved in Alcoholics Anonymous. Respondent is a recovering alcoholic who has good moral character as long as he has control of his alcoholism. Respondent currently operates his own business as a private investigator.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that Petitioner, Florida Department of Law Enforcement, Criminal Justice Standards Training Commission, enter a final order which finds that Respondent failed to maintained good moral character, which places Respondent's certification on a probationary status for a period of two years and which contains as a condition of probation that Respondent abstain from the use of alcohol. DONE AND ENTERED this 18th day of August, 1989, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-0714 The proposed findings of fact submitted on behalf of Petitioner are addressed as follows: 1. Addressed in paragraph 1. 2-3. Addressed in paragraph 2(a). Addressed in paragraph 2(c). Addressed in paragraph 2(d). Addressed in paragraph 2(e). Addressed in paragraph 2(g). Addressed in paragraph 2(h). 9-10. Addressed in paragraph 2(i). Addressed in paragraph 3. Addressed in paragraph 12. 13-14. Addressed in paragraph 6(a). 15-16. Addressed in paragraph 6(b). Rejected as being unnecessary to the results reached. Addressed in paragraph 6(c). Addressed in paragraph 6(e). 20-22. Addressed in paragraph 6(f). Addressed in paragraph 6(g). Addressed in paragraph 6(h). The proposed findings of fact submitted on behalf of Respondent are addressed as follows: 1. Addressed in paragraph 1. 2-5. Addressed in paragraphs 2(a), (b), and (c). Addressed in paragraphs 2(f) and (g). Addressed in paragraphs 2(h) and (i). Rejected as being recitation of testimony and as being subordinate to the findings reached. Addressed in paragraph 4. 10-12. Rejected as being recitation of testimony and as being subordinate to the findings reached. 13. Addressed in paragraph 3. 14-16. Addressed in paragraph 6(a). Addressed in paragraph 6(b). Addressed in paragraph 6(e). Rejected as being recitation of testimony and as being subordinate to the findings reached. Addressed in paragraphs 6(g) and (h). 21-24. Rejected as being recitation of testimony and as being subordinate to the findings reached. 25. Addressed in paragraph 5. 26-27. Rejected as being recitation of testimony, as being unnecessary to the result reached and, in part, as being subordinate to the findings reached in paragraphs 9 and 10. 28-31. Rejected as beings recitation of testimony as being unnecessary to the result reached, and, in part, as being subordinate to the findings reached in paragraphs 7, 9, and 10. 32-36. Rejected as being recitation of testimony as being unnecessary to the result reached, and, in part, as being subordinate to the findings reached in paragraphs 8, 9, and 10. 37-38. Rejected as being unnecessary to the results reached. 40-41. Rejected as being recitation of testimony , as being unnecessary to the result reached, and, in part, as being subordinate to the findings reached in paragraphs 8, 9, and 10. 42-45. Rejected as being recitation of testimony, as being unnecessary to the results reached, and, in part, as being subordinate to the findings reached in paragraph 8. 46-49. Rejected as being recitation of testimony, as being unnecessary to the results reached, and, in part, as being subordinate to the findings reached in paragraph 8. 50. Addressed in paragraphs 1 and paragraph 11. 51-54. Rejected as being unnecessary to the results reached Addressed in paragraph 7. Addressed in paragraph 5. Rejected as being irrelevant. The purported statement of Mr. Kastrenatis is rejected as being hearsay. Addressed in paragraph 9. Rejected as being unnecessary to the results reached. COPIES FURNISHED: Joseph S. White, Esquire Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 James C. Casey, Esquire 10680 N.W. 25th Street Suite 100 Miami, Florida 33172 Jeffrey Long, Director Department of Law Enforcement Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rodney Gaddy, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact On or about July 7, 1981, Respondent, Douglas Earl Nalls, M.D. (Nalls), submitted an application for licensure by endorsement to the Petitioner, Board of Medicine (Board). As part of his application for licensure, Nalls was required to disclose to the Board any criminal conviction, any discipline imposed against his license to practice medicine, information related to military service, and other matters specified in the license application. Nalls answered in the negative to questions regarding any criminal convictions and any discipline by other Boards or entities, and Nalls did not reveal any military service. Nalls' Florida medical license was originally issued on or about December 14, 1981, by endorsement. Nalls' license to practice medicine in Florida became void and of no force and effect on or about October 28, 1985, because Nalls failed to demonstrate to the Board that he had continuously practiced medicine in Florida for a minimum of one year during the first three years after issuance of the license by endorsement as required by Section 458.313(3), Florida Statutes (1981). The Board was unaware of Nalls' military status at the time the license was deemed to be void and of no force and effect. On or about July 1, 1987, Nalls was found guilty by jury trial of two counts of child abuse and two counts of third degree sexual offense in the State of Maryland. The charges related to Nalls' thirteen year old stepdaughter for whom Nalls had the care, custody or responsibility for supervising. On or about August 27, 1987, Nalls was sentenced to three years incarceration, of which all but four months were suspended. On or about July 9, 1987, Nalls submitted an application for licensure to the District of Columbia's Board of Medicine. Nalls did not reveal his arrest or conviction to the District of Columbia's Board of Medicine. On or about September 7, 1989, Nalls' license to practice medicine in the District of Columbia was revoked. In early 1991, prior to February 1, 1991, Nalls contacted the Board to reinstate his license by endorsement. Nalls was required to submit minimal information to the Board related to his request for reinstatement. He presented documentation of his military service and discharge. He was not questioned concerning prior convictions or revocations of his medical license in another jurisdiction. On or about February 7, 1991, Nalls was notified that the Board approved his request for reinstatement. Nalls became eligible to practice medicine in Florida on or about May 28, 1991, when his request for reinstatement was completed. On or about April 1, 1991, Nalls was hired as a staff physician at the Workers' Compensation Medical Center located in Pompano Beach, Florida. On or about November 25, 1991, the Board received Nalls' licensure renewal for the license renewal period for January 1, 1992 through January 31, 1994. Nalls listed his business address as Workers' Compensation Medical Center, 150 South Andrews Avenue, Pompano Beach Florida 33069. Twelfth Avenue is also known as South Andrews Avenue. Nalls' last date of employment with the Workers' Compensation Medical Center was April 14, 1992. After April 14, 1992, the Board sent an inquiry to Nalls at the address listed for the Workers' Compensation Medical Center. The administrator at the Workers' Compensation Medical Center sent a handwritten note to the Board stating that Nalls no longer worked at Workers' Compensation Medical Center. On January 24, 1994, Nalls advised the Board that he wished to change his address since the time of his last renewal and listed his new primary place of practice as The Ideal Clinic, 155 N.W. 167th Street, Suite 202, North Miami Beach, Florida 33169.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered in regard to DOAH Case No. 93- 2704 finding Douglas Earl Nalls, M.D. guilty of violating Section 458.331(1)(b), Florida Statutes, dismissing the counts relating to violation of Sections 458.331(1)(x) and (ll), Florida Statutes, imposing a $5,000 fine, and revoking his license to practice medicine in the State of Florida. In regard to DOAH Case No. 94-1129, it is RECOMMENDED that a final order be entered, finding Douglas Earl Nalls, M.D. guilty of violating Section 458.331(1)(c), Florida Statutes, imposing a $5,000 fine and revoking his license to practice medicine in the State of Florida. DONE AND ENTERED this 3rd day of February, 1995, 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 3rd day of February, 1995.
The Issue Whether the application of Respondent Gulf County (County) for permit to install a beach access road, constructed of oyster shell or dolomite, at the stumphole area on Cape San Blas should be granted.
Findings Of Fact On April 11, 1996, the County applied for a permit from DEP to install a beach access road constructed of oyster shell or dolomite over an area 275 feet in length by 12 feet wide at the stumphole area on Cape San Blas. The County owned the property at the site where a crude road bed to the beach already existed. On that same date, County Manager Donald Butler met with a DEP field engineer, William Fokes, on the site to determine the linear footage that would be necessary for the access road at the stumphole area. Fokes then issued the field permit for the access road to be constructed of oyster shell or dolomite over an area 275 feet in length by 12 feet wide. Since beach driving is permitted by the County in the area, the access road aids in preventing illegal crossing of beach dunes by motorists to get to the beach. Prior to issuance of the field permit and construction of the access road, the only legal motorist access to the beach was seven miles away. Permits to drive on the beach are issued by the County. DEP rules require that all applicants proposing to conduct permitted activities on a beach use a designated beach access. This road will allow access to conduct permitted activities, thereby preserving and enhancing public beach access. DEP will not permit a project that is expected to adversely impact the beach dune system. Although seaward of the Coastal Construction Control Line (CCCL) in the County, the area which is the subject of this field permit contained no dunes or vegetation since Hurricane Opal had flattened the area. Such a project cannot be permitted if the project will adversely impact existing upland property or property of others. In the instant case, neither the Petitioner’s property, which is located two miles away from the project site, or property of other owners in the area will be adversely impacted. The road is designed to be a non-rigid, pervious structure which causes less impact to any existing dune system. The road site is located on County property and provides logical and appropriate access. The construction of the road did not violate DEP prohibitions on permitting activities having adverse impact to marine turtles since the construction permit expired prior to the turtle nesting season. A requirement of field permit issuance is that the applicant and the DEP area engineer meet on site and review the project. This event occurred on April 11, 1996, when Butler and Fokes met on the site. Fokes determined that the project was within field permitting guidelines and issued the permit. Fokes was authorized to issue the field permit because the project fell in DEP’s category of a driveway or similar activity. Expected impacts of construction of the access road and a driveway are deemed similar by DEP. Subsequent review by DEP staff of Fokes’ issuance of the field permit determined that sufficient information had been provided to him for issuance of the permit, that the project falls in the category of minor activity and that no adverse impact to dunes, property of others, beach access or nesting marine turtles is expected.
Recommendation Based upon the foregoing findings of fact and the conclusions of law, it is, RECOMMENDED: That a final order be entered confirming the grant of the field permit which is the subject of this proceeding. DONE and ENTERED this 9th day of May, 1997, in 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 9th day of May, 1997. COPIES FURNISHED: Lynette L. Ciardulli, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, FL 32399-3000 Michael Paulsson, Pro Se Route 1, Box 347B Port St. Joe, FL 32456 Timothy J. McFarland, Esquire Post Office Box 202 Port St. Joe, FL 32457 Virginia B. Wetherell, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000 Perry Odom, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000
Findings Of Fact Petitioner was hired by the Palm Beach Gardens Holiday Inn in 1974. She began work as a cashier and later worked as a hostess in the restaurant. She was promoted to Food and Beverage Manager in 1978. On November 27, 1978, Respondent purchased the Holiday Inn and appointed Mr. John Astarita as its general manager. Astarita made several personnel changes in late 1978 and early 1979, and on March 9, 1979, discharged Respondent. Immediately prior to her discharge, Petitioner had given information to an investigator regarding a sex discrimination complaint of a female employee who had been discharged earlier by Respondent. Astarita questioned Petitioner about her conversation with the investigator the day before he discharged her. She refused to give him the information he sought. Petitioner's evidence of sex discrimination is limited to a rumor she had heard that Astarita did not want women in management positions. This hearsay evidence lacks credibility and is uncorroborated. Respondent's evidence established that Petitioner's job performance was not satisfactory. The ratio of liquor costs to sales had increased above an acceptable level, and she had failed to clean up the bar area after having been instructed to do so by Astarita.
Recommendation From the foregoing, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner's complaint. DONE AND ENTERED this 20th day of May, 1983, at Tallahassee, Florida. R. T. CARPENTER, 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 20th day of May, 1983. COPIES FURNISHED: Ms. Catherine Scott 12712 Ellison-Wilson Road Juno Isles, Florida 33408 R. E. Williams, Executive Director Florida Commission on Human Relations 2562 Executive Center Circle, East Suite 100, Montgomery Building Tallahassee, Florida 32301 Eugene W. Murphy, Jr., Esquire Murphy, MacLaren & Littell, P.A. 341 Royal Poinciana Plaza Post Office Box 2525 Palm Beach, Florida 33480
The Issue Respondent is charged with a single incident of selling beer to a minor. The issue is, therefore, if that incident occurred, what disciplinary action should be taken? The Division of Alcoholic Beverages and Tobacco Notice to Show Cause dated September 18, 1984, alleges: On or about the 19th day of August, 1984, you, JEFFREY NELSON ADKINS, a licensed vendor, and/or your agent, servant or employee, did sell, give, and/or serve alcoholic beverages, to wit: three (3) Michelob beers to a person, JOHN JOSEPH KELLAT, under the age of 19, contrary to F.S. 562.11(1). At the hearing, by stipulation, six exhibits were admitted: the Notice to Show Cause, the Request for Hearing, Petitioner's Request for Admissions, Respondent's Answer to the Request, Petitioner's First Set of Interrogatories and Respondent's Response to Interrogatories, and Affidavit of the minor, John Joseph Kellat. Petitioner called three witnesses: John Joseph Kellat; Rufus Blanton, beverage officer for the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco; and William Moore, a New Smyrna Beach police officer. Respondent also called three witnesses: Michael Block, an employee of Brew- thru during the summer of 1984; Troy Long, Market Manager at the Publix supermarket in New Smyrna Beach; and the Respondent, Jeffrey Nelson Adkins.
Findings Of Fact Both parties submitted Proposed Findings of Fact and Conclusions of Law. Those have been carefully reviewed and considered. Findings of fact which are supported by the evidence have been incorporated herein, unless those findings are subordinate, cumulative, immaterial or unnecessary. More specifically, Petitioner's Proposed Finding of Fact #2, regarding the employee's failure to deny that he sold the beer, is wholly immaterial in light of Petitioner's chief witness' description of the salesperson and his identification of the licensee as the individual who made the sale. As to Proposed Finding of Fact #3, the only evidence that John Kellat purchased beer on prior occasions was his bare, non-substantiated statement to that effect. Such evidence is neither competent nor substantial when viewed in the context of his testimony as a whole.
Recommendation On the basis of the foregoing, I recommend that the Director of the Division of Alcoholic Beverages and Tobacco enter a final order in this case dismissing the charge against the licensee. DONE and ORDERED this 10th day of October, 1985, in Tallahassee, Florida. MARY CLARK, 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 10th day of October, 1985. COPIES FURNISHED: Thomas A. Klein, Esquire Staff Attorney Dept. of Business Regulation The Johns Bldg. 725 South Bronough Street Tallahassee, Florida 32301 William Clay Henderson, Esquire HENDERSON & HENDERSON, P.A. Post Office Box 1840 New Smyrna Beach, Florida 32070-1840 Richard B. Burroughs, Jr. Secretary Department of Business Regulation The Johns Building 725 S. Bronough Street Tallahassee, Florida 32301 Harold F. X. Purnell, General Counsel Department of Business Regulation The Johns Bldg. 725 S. Bronough Street Tallahassee, Florida 32301 Howard M. Rasmussen, Director Division of Alcoholic Beverages & Tobacco 725 S. Bronough Street Tallahassee, Florida 32301
