The Issue The issue for determination is whether Respondent is guilty of discrimination in employment on the basis of marital status.
Findings Of Fact Petitioner is Julie Wallace. She was employed by Respondent as an automobile salesperson from the last week of June, 1987, until September 12, 1988. Respondent is an automobile dealership, Heartland Pontiac-Buick- Cadillac-GMC Truck, Inc. Its corporate president at the time of Petitioner's employment termination was Nancy Cosgrove. Respondent hired Petitioner on June 18, 1987. Respondent's corporate president at that time was Steven Cosgrove, then husband to Nancy Cosgrove. Petitioner and her husband were married in July, 1987, shortly after she began her employment with Respondent. At the time, Petitioner's husband was also employed by Respondent as an automobile salesperson. The wedding ceremony took place at the Cosgrove home. Respondent does not have a work practice prohibiting nepotism and there are several examples of Respondent's employment of married couples, as well as employment of other multiple members of individual families. Petitioner fared well in Respondent's employment initially. She was recognized by the dealership as the "salesperson of the month" in August, 1987. She was awarded a trip to the "Indy 500" in May, 1988. In spite of Petitioner's productivity during the first year of her employment, Respondent lost a great amount of money for a period of approximately 14 months prior to terminationof Petitioner's employment. Respondent's financial losses resulted from insufficient sales overall in the dealership during that period of time. The separation and subsequent divorce of the Cosgroves coincided with Ms. Cosgrove's assumption of the presidency of Respondent. Ms. Cosgrove took over the dealership in order to prevent it from collapsing financially. For approximately two to four weeks prior to termination of Petitioner, sales records were abysmal for the entire sales force. Further, morale of the sales force was poor as the result of management changes and efforts to cut unnecessary expenses. In conjunction with management attempts to strengthen the dealership's dwindling finances, traditional assignment of demonstrator automobiles to salespeople were eliminated a few days prior to the termination of Petitioner's employment. The elimination of the demonstrator automobiles, coupled with the change in management from Mr. Cosgrove to Ms. Cosgrove, resulted in a verbal altercation between Petitioner's husband and Ms. Cosgrove on September 12, 1988. The upshot of that confrontation was the firing of Petitioner's husband by Ms. Cosgrove. A short time, perhaps an hour later, the sales manager employed by Ms. Cosgrove requested to see Petitioner. He asked Petitioner whether she might prefer to resign in theaftermath of her husband's termination. Petitioner said she did not wish to leave her employment. After Petitioner and Respondent's sales manager concluded their discussion, the sales manager returned later in the day and explained that Petitioner's employment was terminated in view of Petitioner's lack of production or automobile sales. Later, Respondent's sales manager provided Petitioner with a letter erroneously stating that Petitioner had been employed by Respondent for two years. The letter correctly stated that Petitioner was always in the top one third of the sales force in her performance, but did not elaborate on the extent to which performance of all members of the sales staff had plummeted prior to Petitioner's termination. At the time of Petitioner's employment termination, there was only one other salesperson, in addition to the sales manager, remaining on Respondent's sales staff. Through attrition and previous terminations, Ms. Cosgrove had virtually eliminated the sales force inherited from her ex-husband's management by the time of Petitioner's termination. The world of automotive salespersons is extremely competitive and pressurized. Individuals are constantly urged to produce or seek other employment. The fact of previous sales accomplishments provides salespersons no cushion for future periods of sale failures. As stated by Ms. Cosgrove, in a somewhat cold and dispassionate manner, at the final hearing, "you're either a hero or a zero." The discharge of sales personnel after a change of management and an extended period of financial non-profitability is not unusual in the automobile dealership business. Such a movement on the part of Ms. Cosgrove was also motivated by a desire to increase sales and improve morale with salespersons of her own choosing. Salespeople, such as Petitioner, working at Respondent's dealership are "at will" employees, possessing no employment contracts of a specified term, or conditions governing the termination of their employment. Sales employees at the dealership did have a payment plan or agreement with Respondent. The plan in effect during Petitioner's employment permitted her to draw a salary against commissions, provided she had accumulated commissions in-house and elected to utilize this draw procedure versus direct commission payment. At the time of her termination, Petitioner had no accumulations against which to draw a salary. The payment plan did not provide a set term of employment or address standards for employment termination.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this 18th day of June, 1990, in Tallahassee, Leon County, Florida. DON W.DAVIS 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 June, 1990. APPENDIX It should be noted that both parties incorrectly filed their proposed findings with the Commission On Human Relations as opposed to the Division Of Administrative Hearings. Upon discovery of the error, the parties were permitted to have the proposed findings forwarded to the abovesigned by Commission personnel. Upon review of the proposed findings, it was noted that neither party's proposal is presented in the form of separately numbered paragraphs which would permit a referenced comment or ruling on each proposed finding. Each party's proposed findings have been reviewed and addressed to the extent possible by the foregoing findings of fact. COPIES FURNISHED: Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925 Julie Wallace 1406 Chloe Terrace Sebring, FL 33870 E. Mark Breed III, Esq. 335 South Commerce Sebring, FL 33870 Clerk Florida Commission on Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925 General Counsel Florida Commission on Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925
The Issue The issue is whether Section 11B(3) of the Florida Workers' Compensation Reimbursement Manual for Hospitals, 2004 Second Edition, is an invalid exercise of delegated legislative authority.
Findings Of Fact The petitions filed by FFVA and TIC challenge the validity of Section 11B(3) of the 2004 Manual,4/ which prior to October 1, 2007, was adopted by reference as part of Florida Administrative Code Rule 69L-7.501(1). Florida Administrative Code Rule 69L-7.501(1) was amended effective October 1, 2007, to adopt by reference the Florida Workers' Compensation Reimbursement Manual for Hospitals, 2006 Edition ("the 2006 Manual"). Florida Administrative Code Rule 69L-7.501(1), as it existed when the petitions were filed and as it currently exists, adopts by reference the 2006 Manual, not the 2004 Manual. The 2004 Manual is no longer adopted by reference as part of Florida Administrative Code Rule 69L-7.501, or any other rule. AHCA applied the 2004 Manual in the reimbursement dispute initiated by HRMC against FFVA under Section 440.13, Florida Statutes, as reflected in the determination letter issued by AHCA on October 24, 2007, which was attached to FFVA's petition. The reimbursement dispute is the subject of the pending DOAH Case No. 07-5414. AHCA applied the 2004 Manual in a reimbursement dispute involving TIC under Section 440.13, Florida Statutes, as reflected in the determination letter issued by AHCA on January 9, 2008, which was attached to TIC's petition. The reimbursement dispute is the subject of the pending DOAH Case No. 08-0703.
Findings Of Fact Frank Bowder began his employment with Exports, Inc., under the tutelage of Kenneth L. Kellar, President and sole stockholder of Exports, Inc., at the office in Washington state approximately 20 years ago. He became very knowledgeable about the company's business, and approximately 15 years ago he was sent by Kellar to operate the company's Florida office. He was given the title of general manager of the Florida office and remained an excellent employee until his recent death. Kellar considered Frank Bowder to be an excellent manager of the product of Exports, Inc., but recognized that Frank Bowder had a large turnover of employees. His wife Mae Bowder was also an employee of Exports, Inc., and was considered by Kellar to be "the best cleaning woman there is." She was in charge of cleaning and maintenance duties at the Florida office. At some point Mae Bowder began representing to people that she was the office manager of the Florida office. That information was brought to Kellar's's attention on several occasions, and he corrected that information by explaining that she was simply in charge of maintenance. At some point Mae Bowder's son, Wayne Evans, became employed by the Bowders in the Florida office and was given the title of warehouse manager. Within the last several years, Frank Bowder allowed his wife to "become" the office manager. When Kellar found out, he fired her because he believed that she was "not office material." Approximately a year later Kellar found out that Mae Bowder was once again the office manager. He spoke to Frank about it, and Frank explained, essentially, that Mae was giving him so many problems at home about it that he had to hire her back. Kellar fired her once again. Sometime thereafter, Kellar found out that Frank was ill. He came to the Florida office and discovered Mae Bowder once again employed as "office manager." He again discussed the matter with Frank and determined the extent of Frank's illness, which was terminal. He told Frank that Frank was too ill to be running the office full time and told Frank that he should only come to the office a few hours a day. Frank responded that he did not know what to do about his wife. Kellar then went to Mae Bowder and discussed with her the fact that he only wanted Frank to be at the office a few hours a day and that it was too difficult for Frank to continue working full time. He also told Mae Bowder that she should be staying home and taking care of Frank because Frank was so sick. Mae Bowder specifically asked Kellar if he were firing her, and Kellar responded "no" but that she should be staying home to take care of her husband. Mae Bowder "got in a huff," threatened two of the female office personnel, and left. Kellar did not see her again until the final hearing in this cause. Kellar began investigating the operations of the Florida office at that point and began discussing with the other employees there how the office had been managed. He discovered problems. He was told that the Bowders gave highly preferential treatment to Wayne Evans in comparison to the other employees. He discovered that Mrs. Bowder did not like to hire black employees, and the black employees who were hired were not given keys to the office. There was a stated policy by Mrs. Bowder to not hire people with children. Specifically, one black employee did not tell Mrs. Bowder that she had a child when she was hired. When she later became pregnant, Mrs. Bowder was furious. The employee was given one month for unpaid maternity leave and when she called at the end of that month, Mrs. Bowder told her she had been laid off. When she called two months later, the time by which her baby who was sick could be left with someone else, Mrs. Bowder returned her call a week later telling her she could come back to work because another black employee had left. Lastly, the other employees reported that Mrs. Bowder would yell and curse at them, threaten to hit them with an upraised hand, and even pushed and shoved an employee on one occasion because that employee had made a mistake in her work. The employees had previously not made these complaints because they could have only complained to the general manager who was the husband of the person about whom they would be complaining. Kellar brought an employee from the Washington office down to the Florida office to assist Frank Bowder and continued to pay Frank Bower his salary until he died. No evidence was offered that Kellar would not have continued to pay Mae Bowder her salary if she had reduced her hours in order to take care of Frank rather than walking out when Kellar tried to discuss the matter with her. No one else was present when Kellar and Mae Bowder had their discussion at the time when Mae Bowder resigned. Later that day, according to her son, Kellar made a comment that the Bowders had been the last of the married couples working for the company. Such a statement, if it were made, is susceptible of many interpretations, including sadness for the end of an era. Kellar did not fire Mae Bowder.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is therefore, RECOMMENDED that a Final Order be entered finding Exports, Inc., not guilty of committing an unlawful employment practice and dismissing Petitioner's Petition for Relief filed in this cause. DONE and RECOMMENDED this 26th day of May, 1989, in Tallahassee, Florida. LINDA M. RIGOT 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, 1989. COPIES FURNISHED: James R. McGlynn, Esquire 4633 10th Avenue North Lake Worth, Florida 33463 Kenneth L. Kellar President/Owner Exports, Inc. Post Office Box 449 Blaine, WA 98230 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue The issue is whether the Respondent discriminated unlawfully against the Petitioner by discharging him because of a handicap contrary to Chapter 760, Florida Statutes, and, if so, the nature and extent of financial loss suffered by the Petitioner.
Findings Of Fact The Petitioner, Shannon M. Spence, was employed from March 1993 until May 1, 1993 by the Respondent. The Respondent is an employer as defined by Chapter 760, Florida Statutes. The Petitioner, who earned on average $125/week, was employed by the Respondent as a bouncer and "bar backer", a person who assisted the bartender. On or about April 29, 1993, the Petitioner suffered an on the job injury which was duly reported to the employer and for which the Petitioner was treated at a local hospital pursuant to arrangements made by the employer. The Petitioner's injury was determined to be a right inguinal hernia, and the Petitioner was cautioned against lifting more than 25 pounds and standing for long periods of time. The Petitioner reported for work the following day, and communicated to his supervisor his inability to lift and to stand for long periods of time. His supervisor, Jess Wall or J.W., placed the Petitioner on security detail for the parking lot and entrance. There were additional light duties available for security personnel within the employer's business in which the employee could have been placed. The Petitioner's employment was terminated later that evening. The testimony is conflicting regarding whether the Petitioner was discharged because he was dating another employee, or because he was injured, or quit in sympathy with Jess Wall, who was also terminated on that evening. The most credible evidence is that the Petitioner was discharged because of his injury, but was told it was because he was dating another employee. The prohibition against dating was a new rule, it was applied against the Petitioner without any prior warning, the female employee was not discharged, and the Petitioner was the only person discharged for this activity although there were others who dated employees. The alternative theory that Petitioner quit in sympathy with the head bouncer, Mr. Wall, is specifically rejected for lack of credibility of the various witnesses. The Petitioner subsequently settled his workman's compensation claim arising from this injury with the Respondent for $15,000. No details were received regarding the allocation of moneys for medical and wages. The Petitioner is entitled to back wages from his discharge until the hearing on April 27, 1995, less any mitigation, including any portion of the settlement of his workman's compensation claim attributable to lost wages, occurring after surgical repair of the hernia when the Petitioner was reemployed. The Petitioner is entitled to reasonable costs and attorneys fees.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Commission find that the Petitioner was unlawfully discriminated against by the Respondent, and that the Respondent be ordered to pay the Petitioner his lost wages from May 1, 1993 until April 27, 1995 less any amounts the Petitioner earned during this period and any amounts included in the workman's compensation settlement specifically provided for wages; that the Commission retain jurisdiction for the award of damages and attorney's fees and costs; and the Commission remand the matter for a determination of the attorney's fees and costs and to permit the Respondent to present any evidence in mitigation of its damages. DONE and ENTERED this 20th day of June, 1995, in Tallahassee, Florida. STEPHEN F. DEAN, 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 20th day of June, 1995. APPENDIX The parties filed proposed findings which were read and considered. The following states which of their findings were adopted and which were rejected and why: Petitioner's Recommended Order Findings Paragraph 1,2 Subsumed in Paragraph 1 and 2. Paragraph 3-5 Subsumed in Paragraphs 3-5. Paragraph 6-8 Subsumed in Paragraphs 6-9. Paragraph 9 Subsumed in 3 and 11. Respondent's Recommended Order Findings Paragraphs 1-3 Paragraphs 1-3 Paragraph 4 Rejected because the date was April 29, 1993. Paragraph 5 Subsumed in Paragraphs 4,5. Paragraph 6,7 Rejected as contrary to more credible evidence. Paragraph 8,9 Subsumed in Paragraphs 10,11. COPIES FURNISHED: James P. Tarquin, Esquire Michael B. Staley, Esquire P.O. Box 906190 Ocala, FL 34478 John Daley, Esquire 201 E. Pine Street 15th Floor Orlando, FL 32801 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113
The Issue The issue in the case is whether the Petitioner should be granted an exemption from employment disqualification, pursuant to section 435.07, Florida Statutes (2014).
Findings Of Fact The Petitioner is seeking employment as a direct service provider in a “position of special trust” with disabled persons. The Respondent is the state agency responsible for making disqualification and exemption determinations related to persons seeking such employment. A person seeking employment in a “position of special trust” is subjected by law to a background screening process. A person who has committed one of a specified group of criminal offenses is disqualified from the employment. A disqualified person has the opportunity to seek an exemption from the disqualification. The Petitioner's background screening revealed that, in 2002, the Petitioner was charged in Seminole County, Florida, with fraudulent use of a credit card, a third-degree felony violation of sections 817.61 and 817.67(2), Florida Statutes (2014). Pursuant to section 393.0655(5)(j), Florida Statutes (2014), violations of section 817.61 are disqualifying offenses.1/ The Petitioner entered a plea of guilty, and was placed on probation for five years, ordered to complete 50 hours of community service, and required to make restitution in the amount of $2,416.20 to “People’s First Bank” in Panama City, Florida. The sentencing order prohibited the Petitioner from “work[ing] where you have unsupervised access to cash, equipment or merchandise of others” and prohibited the Petitioner from entering the premises of a Burger King. Adjudication was withheld. In the Respondent’s request for exemption, the Respondent stated that she had been shopping in a clothing store with someone else who was using a credit card. In the exemption request, the Respondent wrote “[a]t the time, I honestly didn’t know that this was not her mom (sic) card as that’s what she told me before going to the store.” The Respondent insinuated that she was arrested because she had been observed with the person using the card. At the time of the offense, the Petitioner was employed at a Burger King, where, on at least one occasion, she worked the drive-thru window. A customer who came through the drive-thru window accidently left a credit card. The Petitioner took the credit card and used it to make various purchases. According to the arrest report, the customer realized at some point that she was not in possession of the credit card, and that charges were appearing on her account. She reported the issue to law enforcement authorities, who, after an investigation, determined that the Petitioner had the credit card and was using it, at which time she was arrested. At all times material, the Petitioner was aware of the source of the credit card, and knew that it was not hers. In the request to the Respondent for an exemption from employment disqualification, the Petitioner set forth a false statement of the circumstances surrounding her arrest. The background screening also revealed two non- disqualifying offenses that occurred subsequent to the 2002 disqualifying offense. In 2004, the Petitioner entered a plea of nolo contendere to, and was adjudicated guilty of, a charge of petty theft, apparently related to a shoplifting incident at a T.J. Maxx department store. In 2006, the Petitioner was charged with a “failure to appear” violation related to the sentence imposed for the petty theft. In addition to the criminal offenses referenced herein, the Petitioner has been involved in a number of minor traffic offenses identified in the exhibits presented by the Respondent, but the offenses were relatively insignificant. The Petitioner has a high school diploma, and is gainfully employed. She was described as a good employee in several letters of recommendation submitted to the Respondent with her request for exemption, which were included in the exhibits admitted at the request of the Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order denying the Petitioner's request for an exemption from disqualification. DONE AND ENTERED this 14th day of July, 2015, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 14th day of July, 2015.
The Issue Whether Respondent, First Commerce Credit Union (“First Commerce”), discriminated against Petitioner, Ian H. Williams, in violation of the Florida Human Rights Act; and, if so, what penalty should be imposed?
Findings Of Fact Mr. Williams is a 29-year-old, African-American male who contends he was discriminated against by First Commerce when he applied for a position as a teller at that institution. First Commerce is a credit union doing business in Tallahassee, Florida. It has more than 15 employees. On December 2, 2016, Mr. Williams submitted an employment application with First Commerce. He was seeking a part-time position as a teller, identified internally by First Commerce by Job ID No. 10201603. In his application, Mr. Williams indicated that he had received a bachelor’s degree from the University of Colorado, but that he had no experience as a teller in a bank or credit union. He also answered a question in the application about his experience handling cash; he indicated he had “None.” However, in his resume attached to the application, Mr. Williams noted that he had “Adept skill in infrastructure of cash operations.” The resume did not provide any explanation as to what that skill may have entailed. Ms. Sorne reviewed about 170 applications for the part- time teller position. Her initial review was done to determine which applicants met the minimum requirements for the job, i.e., whether the applicant had teller experience and/or experience handling cash. Ms. Sorne did not know the age, race, or gender of the applicants at that point in time. From her review of Mr. Williams’ application, Ms. Sorne determined that Mr. Williams did not meet the minimum qualifications. That is, she did not interpret the statement concerning “infrastructure of cash operations” as meeting the “cash handling” requirement. Ms. Sorne sent letters by way of email to all applicants who did not meet the minimum requirements. Unfortunately, when she sent the email to Mr. Williams, she selected the wrong “form letter” from her computer drop-down selections. The letter in the email to Mr. Williams stated: “Thank you for taking time to interview for our Teller position at First Commerce Credit Union. It was a pleasure meeting you. Although your credentials are impressive, we have chosen to pursue other candidates that better align with the needs of our company.” In fact, Mr. Williams had not been afforded an interview and had never met Ms. Sorne. He apparently believed the emailed letter was therefore indicative of some discriminatory animus by First Commerce. How he made the connection between the erroneously-selected letter and discrimination was not made clear from the evidence presented at final hearing. Nonetheless, he replied to Ms. Sorne’s email, stating, “I did not interview with you people.” Upon receiving Mr. Williams’ email response, Ms. Sorne called him to explain her mistake in sending the erroneous “form letter” concerning rejection of his application. During the telephone conversation, Mr. Williams simply advised Ms. Sorne that he would be filing a complaint with the FCHR and that he would see her in court within the year. He did not attempt to correct his erroneous application, i.e., he offered no other information concerning his experience handling cash. True to his word, Mr. Williams filed a complaint with FCHR. First Commerce, meanwhile, hired two people to fill the part-time teller position it had advertised. Both of the hired individuals were African-American; one was male and the other was female. At final hearing, Mr. Williams pointed out that the two applicants hired for the teller position may have had less education or experience than he had. He noted that he was a graduate of the University of Colorado (although his application says that he attended there for less than one year), while the two hired applicants attended Florida A & M University. He did not explain why that fact may have contributed to the discrimination against him by First Commerce. However, both of the other applicants had indicated on their application forms that they had teller experience and cash-handling experience. That is, each of them met the minimum requirements for the position. That was enough to get them a job interview. Inasmuch as Mr. Williams’ application said he did not have that experience, he was not chosen for an interview. Mr. Williams presented no evidence whatsoever that he was treated differently from any other applicant based on his race (black, African-American) or his gender (male). At final hearing he raised the issue of discrimination based on age, apparently because one of the competing applicants erroneously indicated on her application that she was “under the age of 18.” That disclosure was later determined to have been a mistake. Age was not a consideration for the part-time teller position anyway. Mr. Williams failed to establish even a prima facie case of discrimination. It is, in fact, difficult to make any connection between the way he was treated and discriminatory practices in general. Mr. Williams appears to have been treated equally with all applicants; there is no evidence that he was discriminated against for any reason.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the Complaint filed by Ian H. Williams. DONE AND ENTERED this 29th day of August, 2017, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 29th day of August, 2017. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399 (eServed) Ian H. Williams Apartment 311C 2315 Jackson Bluff Road Tallahassee, Florida 32304 Jason Curtis Taylor, Esquire McConnaughhay, Duffy, Coonrod, Pope and Weaver, P.A. Suite 200 1709 Hermitage Boulevard Tallahassee, Florida 32308 (eServed) Donna Carson Utecht First Commerce Credit Union Post Office Box 6416 Tallahassee, Florida 32314 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue Should discipline be imposed against Respondent's license to practice medicine for violation of Section 458.331(1)(b) and (kk), Florida Statutes (2005)?
Findings Of Fact Petitioner is the state department charged with the regulation of the practice of medicine pursuant to Chapter 20.43, Florida Statutes; Chapter 456, Florida Statutes; and Chapter 458, Florida Statutes. Respondent is Gina Marie Dieudonne, M.D. Respondent is a licensed medical doctor in the State of Florida, having been issued license ME 89209. Respondent's mailing address-of-record is 48 Goldfield Cove, Jackson, Tennessee 38305. The Illinois Department of Financial and Professional Regulation (IDFPR) is the licensing authority regulating the practice of medicine in the State of Illinois. On or about January 4, 2006, the IDFPR entered an Order indefinitely suspending Respondent's license to practice as a physician and surgeon in the State of Illinois. The IDFPR disciplined Respondent for failing to pay Illinois individual income tax for the tax years of 1999 and 2003. On March 27, 2006, Respondent executed a Petition for Restoration in front of a Notary Public in Illinois, seeking to have her Illinois license to practice medicine reinstated. On or about July 10, 2006, the Respondent signed a Stipulation and Recommendation for Settlement that, if approved by the IDFPR, would lift the suspension and allow the Respondent to renew her Illinois license, while placing her Illinois medical license on indefinite probation, until such time as the Respondent satisfactorily completed the payment of delinquent state income taxes and satisfactorily completed repayment of her Illinois Student Assistance Commission student loans outstanding. The Stipulation and Recommendation for Settlement was approved by the Medical Disciplinary Board on August 2, 2006. On or about October 18, 2006, the Director of the IDFPR signed an Order adopting the Stipulation and Recommendation for Settlement, subject to the terms therein, including the indefinite probation. The January 4, 2006, Order entered by the IDFPR, which indefinitely suspended Respondent's license to practice as a physician and surgeon in the State of Illinois, constitutes disciplinary action against the Respondent's Illinois medical license. The October 18, 2006, Order entered by the IDFPR adopting the Stipulation and Recommendation for Settlement, subject to the terms therein, including the indefinite probation, constitutes disciplinary action against the Respondent's Illinois medical license. Respondent failed to report, in writing, to the Board within thirty (30) days of the January 4, 2006, suspension of her medical license by the IDFPR. Respondent reported the October 18, 2006, order of stipulated indefinite probation of her medical license by the IDFPR to the Board on February 12, 2007. The report letter dated February 12, 2007, had a copy of the disciplinary documents from Illinois attached to it and was received by DOH Licensure Services Unit on February 15, 2007. On April 3, 2007, an order was entered by IDFPR terminating the earlier order of probation on Respondent's Illinois' license pertaining to Respondent's failure to repay student loans. Other restrictions imposed on the license remained in force and effect. Prior Disciplinary History Respondent's Illinois medical license was subjected to disciplinary action in two prior cases. In Case No. 92-2870 Respondent's Illinois medical license was placed on probation by terms of a Consent Order signed by Respondent on September 14, 1992, for failure to repay student loans. The probation was terminated by Consent order approved March 26, 1993. In Case No. 96-4999, an Order was issued, effective July 31, 1996, ordering that her license not be renewed for failure to repay student loans. Her license was restored by Order to Restore dated August 20, 1996.
Recommendation Based upon the findings of facts found and the conclusions, it is RECOMMENDED: That a final order be entered reprimanding Respondent's medical license, imposing an administrative fine of $4,000.00, and placing Respondent's license on probation until she presents evidence to the Florida Board of Medicine that her Illinois medical license is free and unencumbered. DONE AND ENTERED this 19th day of June, 2008, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 19th day of June, 2008.
The Issue Whether GMD Carpet, Inc., failed to comply with coverage requirements of the workers’ compensation law, Chapter 440, Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency responsible for enforcing provisions of Florida law, specifically Chapter 440 of the Florida Statutes, which require that employers secure workers’ compensation coverage for their employees. Respondent, whose principal is Emmanuel Simone, Jr. (Mr. Simone), is in the business of providing carpet installation services. At all times material to this case, Respondent is an employer within the meaning of Section 440.02(16)(a), Florida Statutes. At all times material to this case, Respondent was legally obligated to provide workers' compensation insurance in accordance with the provisions of Chapter 440, Florida Statutes, for Mr. Simone and four other individuals employed by GMD. On or about May 21, 2004, Petitioner became aware that Mr. Simone and another GMD employee were working a carpet installation job in Broward County, Florida. Upon inquiry, Petitioner accurately determined that GMD had not furnished the required coverage, and that there was no valid exemption from the coverage requirement. Accordingly, on May 21, 2004, a Stop Work and Penalty Assessment Order was properly entered. Thereafter, Petitioner reviewed Respondent's payroll records, which revealed that GMD employed three other individuals under circumstances which obliged Respondent to provide workers’ compensation for these employees. Based upon Respondent's payroll records, Petitioner recalculated the penalty assessment to be imposed in accordance with the requirements of Chapter 440, and issued an Amended Order in the amount of $1,916.65 on May 25, 2004. Respondent did not intend to violate the law. Rather, he mistakenly believed that he held a valid exemption; that his wife was not an employee, but rather a helper; and that the three other carpet installers were subcontractors to whom he had no insurance-related obligations. It is undisputed that Petitioner correctly calculated the penalty prescribed by law in the amount of $1,916.65 based upon Respondent's records and applicable law.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Petitioner enter a final order confirming the Stop Work Order and imposing a penalty in the amount of $1,916.65, as set forth in the Amended Order. DONE AND ENTERED this 15th day of October, 2004, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS 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 15th day of October, 2004. COPIES FURNISHED: Colin M. Roopnarine, Esquire Department of Financial Services Division of Workers’ Compensation 200 East Gaines Street Tallahassee, Florida 32399-4229 Emmanuel Simone, Jr. Debra Simone GMD Carpet, Inc. 717 North 31st Avenue Hollywood, Florida 33021 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florid a 32399-0300 Pete Dunbar, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
