The Issue Whether the Respondents committed the acts complained of in the Notices of Specific Charges filed by the Petitioner on June 30, 2005; and, if so, what penalty should be imposed.
Findings Of Fact At all times material to the allegations of these cases, the Petitioner was a duly constituted School Board charged with the responsibility to operate, control and to supervise the public schools within the Miami-Dade County, Florida public school district. Such authority includes the personnel decisions for non-instructional persons employed by the School Board. At all times material to the allegations of these cases, the Respondents were employed by the School Board as electricians assigned to work from the Coral Reef Satellite Maintenance Operations Department (Coral Reef). The Respondents received their daily assignment at the Coral Reef site and then went to the assigned job location to perform their assigned work. As part of their duties, the Respondents were required to clock in and out at the Coral Reef site. There are two time machines at the Coral Reef site and each employee is responsible for personally swiping his identification badge through the clock. The machine generates a computer record for the time of arrival and departure for each employee. Thus the daily time record can be produced for payroll purposes. Each time clock is under surveillance by a video camera system that records all activity at the time clocks. The video records each employee as he or she clocks in or out. At all times material to the allegations of these cases, the School Board’s policy required that each Coral Reef employee personally swipe his identification badge when clocking in or out. In 1982, the Respondents were arrested for vehicular theft and possession of burglary tools. The Respondents were placed on probation for one year and six months for larceny, burglary and having burglary tools in their possession. Adjudication was withheld. In 1987, the Respondents completed applications for employment with the School Board. Such applications were falsified in that they failed to disclose the arrest and criminal disposition described above. The Petitioner did not discover the falsified applications until 1997, when the fingerprinting of school personnel was required by law. Once discovered, both of the Respondents were issued a letter that directed them to “refrain from any further falsification regarding information requested of you by this employer. Failure to comply with this directive will lead to disciplinary action.” The Respondents did not dispute the prior criminal history, do not dispute that they were warned to refrain from further behavior regarding the falsification of information, and do not dispute that they are subject to the School Board rules regarding non-instructional personnel. On March 5, 2004, Frank Semberger clocked out for himself and the Respondents at 3:30 p.m. Since Mr. Semberger possessed the Respondents’ badges in order to swipe them through the time machine, it is reasonable to find that the Respondents provided the badges to Mr. Semberger. The Respondents have not suggested that their badges were either stolen or missing at the relevant time. By allowing Mr. Semberger to clock out for them, the Respondents violated the Petitioner’s time clock policy. On March 19, 2004, Ismael Perez clocked out for himself on one time clock then proceeded to the second time clock and was video recorded swiping a second time there. The time records established that Juan Perez’ badge was swiped at or near the time Ismael Perez was video-taped swiping a time clock. Moreover, the time records did not disclose a second swiping of Ismael Perez’ badge. That is to say there is no record that Ismael Perez “double swiped” his own badge. It is reasonable to find that Juan Perez provided his badge to Ismael Perez so that it could be swiped at the pertinent time. By allowing Ismael Perez to swipe his badge for him, the Respondent, Juan Perez, violated the time clock policy. By swiping his brother’s badge, Ismael Perez violated the time clock policy. The Coral Reef center uses a form described as a daily status form (DSF) to track the assignments for all tradespersons who are sent from Coral Reef to a job site. The form documents the travel time to and from the job site, the hours at the site performing the work, and the status of the work. All tradespersons are to present the DSF at the job site and have the principal or the principal’s designee sign the form. The DSF is dated (including the time of day) and signed both on arrival and at departure from the job site. Although it is difficult to locate a principal or the principal’s designee on busy days or during early morning hours (when many workers arrive at the job), the School Board’s maintenance employee handbook (which is provided to or is available and known to all trades people employed by the Petitioner) specifically requires that all daily status forms be dated and then signed by all tradespersons reporting time on the DSF. Ismael Perez knew the policy required the signature of the principal or the principal’s designee. In practice, many tradespersons do not take time to locate an appropriate signatory. Such behavior is in conflict with the policy. On March 19, 2004, the Respondents submitted a DSF that indicated they had each worked eight hours at Coral Reef Senior High School installing a new outlet to eliminate an extension cord being used to operate a fish tank. The DSF was purportedly signed by Arthur James, a zone mechanic at the school. Mr. James did not sign the DCF. Someone forged Mr. James’ signature on the form. On March 19, 2004, the Respondents did not spend eight hours at Coral Reef Senior High School installing a new outlet for the fish tank. On March 19, 2004, Julio Horstman and Martin Mikulas went to the Coral Reef Senior High School site several times attempting to locate the Respondents. No one at the site verified that the Respondents had been there on that date. Mr. James who had purportedly signed their DSF could not verify the Respondents were on the job on the date in question. On March 5, 9, 10, 11, and 29, 2004, the Respondents turned in DSFs that were not signed by authorized personnel at Coral Reef Senior High School. The name purportedly signed on the forms was a person not employed at the school. These DSFs were not completed correctly and cannot support the hours represented by them. The DSFs claimed the Respondents had spent 78 hours working on the Coral Reef Senior High School marquee. No one at the school can verify the Respondents were there for that time on the dates in question. Had the Respondents complied with the policy, gotten appropriate signatures on the DSF, the uncertainty would not exist. The time spent at the site would be easily verifiable. As it is, persons who went to the job site looking for the Respondents on the pertinent dates could not find them. The Respondents were assigned a large project at the dance studio for the Southwood Middle School (Southwood). They never completed the job. According to the DSFs submitted by the Respondents they worked 120 hours at the site over the following dates: January 26, 27, 28, and 29; March 15, 17, and 28; and April 29 and 30, 2004. Despite the number of days and the number of hours allegedly expended at the site by the Respondents, the dance instructor at the site saw them for only “a couple of hours.” Given the description of her duties and her constant presence in and near the studio during the pertinent time, it would have been reasonable for the instructor to observe the Respondents more than “a couple of hours” for a 120-hour job. Additionally, the Respondents submitted DSFs that were not signed by the Southwood principal or the principal’s designee. In fact, the DSFs submitted for the Southwood job contained the names of persons not employed at Southwood. As the names cannot be verified, the times of arrival and departure from the Southwood site cannot be verified. It is reasonable to find the Respondents again violated the DSF policy. Similar incidents occurred on March 22, 24, 25, and 28, 2004. On each of these dates the Respondents submitted DSFs that cannot be verified. In each instance the person whose name is on the form is not an employee at the school site to which the Respondents were to work. Mr. Horstmann, who went to the job sites looking for the Respondents, could not locate them. The inclusion of a false name or the forgery of a name on a DSF is contrary to School Board policy. The Respondents knew or should have known that the submission of the DSFs without proper signatories was against policy. Article IV of the DCSMEC contract requires that employees such as the Respondents be disciplined for “just and good cause.” The DCSMEC contract does not require “progressive discipline.” At all times material to the allegations of these cases the Respondents were advised of their rights to have a Union representative present during any conference for the record (CFR) regarding the issues of these cases. Additionally, the Respondents were advised that the School Police were conducting an investigation of the matter and waived their right to representation (legal or Union) during the course of an interview with Detective Hodges. The Petitioner conducted a CFR on November 8, 2004. At that time the Respondents appeared with a Union representative. After receiving information regarding the improper time clock and DSFs, the Respondents were afforded an opportunity to explain or provide additional information that would respond to the allegations. Martin Mikulas recommended to the School Superintendent that the Respondents be terminated from their employment with the school district. That recommendation went to the School Board on May 18, 2005, and the action to suspend and initiate dismissal proceedings against the Respondents for non-performance, deficient performance, and misconduct was approved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Miami-Dade County, Florida enter a Final Order approving the suspensions and dismissals of the Respondents. S DONE AND ENTERED this 1st day of February, 2006, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 2006. COPIES FURNISHED: Dr. Randolph F.Crew Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue No. 912 Miami, Florida 33132-1394 Honorable John L. Winn Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400 Robert A. Sugarman, Esquire Sugarman & Susskind, P.A. 2801 Ponce de Leon Boulevard Suite 750 Coral Gables, Florida 33134 Melinda L. McNichols, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132
The Issue The issue for determination in this proceeding is whether Respondent engaged in an unlawful employment practice.
Findings Of Fact The U.S. Government owns Cape Canaveral Air Force Station in Cape Canaveral, Florida. The Air Force Station covers approximately 60 to 89 square miles. Respondent provides launch base support services to the U.S. Air Force at Cape Canaveral. Respondent employs approximately 1,800 people at Cape Canaveral. The Air Force requires security clearances and Space Human Assurance and Reliability Program ("SHARP") certification for 80 to 90 percent of Respondent's employees. Security clearances for employees at the Air Force Station are determined by the Defense Investigative Services, United States Department of Defense. SHARP certifications are determined by an independent board based on Air Force Regulations and investigations conducted by federal government investigators. After supplying applications for security clearance and SHARP certification, Respondent has no role in the investigation and ultimate determination regarding clearance and certification for new employees. Respondent does not review applications for either a security clearance or certification. Members of the SHARP Board are not Respondent's employees, are appointed by the Air Force Base Commander, and are otherwise independent of Respondent. An employee awaiting security clearance and certification must be escorted by an individual with escort authority when the new employee is in an area requiring either security clearance or certification. Escort authority and access entry are determined by the Air Force. Authority to assign and approve an escort for a new employee awaiting security clearance and certification is limited to one or two individuals at each work location. Respondent terminates any new employee who fails to obtain required security clearance and certification within 12 months of the date of hire. Such an employee is retained during the pendency of his or her appeal, if any. Respondent's policy serves a legitimate interest. The policy is designed to limit the additional cost in manpower, time, and resources required to escort new employees within the launch base support project who have no security clearance or certification. Respondent's policy is consistently and fairly applied. On October 2, 1989, Petitioner was employed as a structural painter by Respondent on Respondent's launch base support project at Cape Canaveral. Petitioner was employed subject to the condition that he obtain all security clearances and certifications required by the Air Force. Petitioner's application for certification was denied. Petitioner appealed to the SHARP Board and attended an appeal hearing on October 10, 1990. The SHARP Board denied Petitioner's appeal and informed Petitioner of its decision at the appeals hearing. Respondent was not notified by the SHARP Board or the Air Force of the reason for the denial. Mr. Everett Watson, Respondent's Facility Security Manager, was notified by the Air Force sometime after October 22, 1990, that Respondent's SHARP certification had been denied. Mr. H.D. Stanfill, Petitioner's Department Manager, and Mr. Ron Smith, Petitioner's Supervisor, received notice of the denial on November 2, 1990. Mr. Stanfill and Mr. Smith terminated Petitioner in accordance with Respondent's policy. By letter dated November 13, 1990, Petitioner was notified of his termination effective November 30, 1990. The termination was based solely on Petitioner's failure to obtain his SHARP certification within 12 months of his date of hire. Petitioner was not considered for any other positions on the launch base support project. All painter positions require SHARP certification. Other available positions for which Petitioner was qualified require SHARP certification. Petitioner neither applied for nor requested any other position on the launch base support project. Petitioner is an alcoholic. Petitioner was diagnosed in 1986 as suffering from alcoholism and drug abuse. Petitioner's alcoholism is the only handicap at issue in this proceeding. Petitioner was in an alcohol rehabilitation program prior to his employment by Respondent. Petitioner did not disclose his alcoholism to Respondent at the time of employment. In response to a specific question on his job application, Respondent stated that he had no physical or mental disabilities which would require special accommodations to permit him to perform the type of work for which he was applying. Petitioner did not consider himself handicapped at the time he applied for employment. Petitioner has a history of arrests and criminal charges. Petitioner was twice arrested for driving under the influence ("DUI") before his employment with Respondent. Petitioner had also been arrested for other offenses including assault and trespass. Petitioner was arrested for a third DUI offense in September, 1990, after his SHARP certification had been rejected but before the final appeal hearing on October 10, 1990. Petitioner enrolled in an employee assistance program ("EAP") after his SHARP certification was denied but before his appeal hearing. Petitioner was not referred to the EAP by his supervisor or anyone employed by Respondent. Respondent did not know Petitioner was in an EAP until after Petitioner was terminated. Petitioner enrolled in the Sunrise Substance Abuse Program at Wuesthoff Hospital. Petitioner was referred to the treatment program by his EAP counselor. Pursuant to EAP policy, Respondent was not notified that Petitioner had enrolled in either the EAP or treatment program. After his arrest for DUI in September, 1990, and before his appeal hearing for his SHARP certification, Petitioner requested transfer to Respondent's project on Kwajalein Atoll in the Republic of the Marshall Islands. Kwajalein is self- contained. It has its own project manager, its own personnel office in Huntsville, Alabama, and offices in Kwajalein. Final approval of transfers to Kwajalein are made in Huntsville. Kwajalein Atoll is a remote island more than 2,000 miles from Honolulu, Hawaii. Housing is available in the form of communal barracks. Medical facilities are limited. Prospective employees with a history of alcohol abuse must document two years of abstinence before they will be considered for Kwajalein. Respondent's policy and procedures required the request for transfer to be approved by Petitioner's department manager. Mr. Stanfill was new to the department at the time of the request. Mr. Stanfill did not know Petitioner personally. Mr. Stanfill discussed the transfer with Petitioner's supervisor. Mr. Stanfill refused to approve the transfer. Mr. Stanfill based his decision on information gained from Petitioner's supervisor and Mr. Stanfill's own military experience in remote locations similar to Kwajalein. Mr. Stanfill has received transfer requests in addition to Petitioner's. Mr. Stanfill has refused to approve transfers in cases other than Petitioner's. Other employees have been terminated for failure to receive security clearances. At least two employees, in addition to Petitioner, have initially failed to obtain SHARP certification. Like Petitioner, both of the employees were retained through the SHARP appeal process. One employee was terminated after he failed to obtain his SHARP certification following his appeal. The other employee was retained because he was granted SHARP certification after his appeal. Petitioner completed the Sunrise Substance Abuse Program in February, 1991. In early 1993, Petitioner was arrested for DUI. Petitioner is not currently in a rehabilitation program. SHARP policy requires that an individual who has a history of alcohol abuse or alcohol related incidents following a rehabilitation program to successfully complete a rehabilitation program and abstain from alcohol abuse for two years. Respondent's policy does not permit the retention of uncertified employees for two years.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Human Relations Commission enter a Final Order finding that Respondent committed no unlawful employment practice and denying the remedies requested by Petitioner. RECOMMENDED this 27th day of July, 1993, in Tallahassee, Florida. DANIEL MANRY 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 27th day of July, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5925 Petitioner's Proposed Findings Of Fact. Petitioner submitted no proposed findings of fact. Respondents' Proposed Findings Of Fact. All of Respondent's proposed findings of fact are accepted except proposed findings that Respondent did not know of Petitioner's handicap at the time of the request for transfer and at the time of the termination. COPIES FURNISHED: Ronald M. McElrath Executive Director Florida Commission On Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird General Counsel Florida Commission On Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Sharon Moultry Clerk Florida Commission On Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Carol B. Bess, Esquire Cullimore & Bess 3815 North U.S. 1, Suite 106 Cocoa, Florida 32926 Dorothy F. Green, Esquire James G. Brown, Esquire Richeson & Brown, P.A. 135 North Magnolia Avenue Orlando, Florida 32802
The Issue The preliminary issue in this case is whether the South Florida Water Management District (District) has jurisdiction over the Petition for Formal Administrative Hearing (Petition) filed by the Save the Manatee Club (Club)--i.e., whether the Petition was timely or, if not, if the District has jurisdiction under principles of equitable tolling or excusable neglect.
Findings Of Fact On October 11, 1999, Hidden Harbor filed with the District an application for an Environmental Resource Permit (ERP) to construct and operate a surface water management system serving a proposed residential development in Lee County, Florida. In January 2001, the Club sent an email to the Florida Wildlife Conservation Commission (FWCC) stating that it was concerned about Hidden Harbor's Application No. 991011- 13, as it might impact an area the Club would like to see as a manatee sanctuary, and was requesting copies of all FWCC documents relating to the permit. FWCC forwarded a copy of this email to the District on January 19, 2001. At the time, the Club's internet website gave the address of its main office in Maitland, Florida, as the Club's official mailing address. On April 9, 2001, the Club opened a Southwest Florida regional satellite office in Estero, Florida, and installed Laura Combs as Regional Coordinator in charge of that office. Responsibility for monitoring the Hidden Harbor application was delegated to Combs and the satellite office. Nonetheless, the Club's website continued to give the address of its main office in Maitland, Florida, as the Club's official mailing address. Combs's prior work experience with the Club was as assistant director of governmental relations in Tallahassee, Florida. In that position, she tracked legislation and actions of the Governor and Cabinet that were of interest to the Club. She had no role in the filing of petitions for administrative hearings on actions of governmental agencies. Combs's education included a bachelor's degree in English and a master's degree in urban and regional planning. She did not have specific legal education in the filing of petitions for administrative hearings on actions of state governmental agencies. On May 30, 2001, the District mailed to the Club at its Maitland office address a letter enclosing the "District's staff report covering the [Hidden Harbor] permit application [No. 991011-13]" and notifying the Club that the "recommendations as stated in the staff report [to grant the attached draft permit] will be presented to our Governing Board for consideration on June 14, 2001." The Club also was advised: Should you wish to object to the staff recommendation or file a petition, please provide written objections, petitions and/or waivers (refer to the attached "Notice of Rights") to [the District's deputy clerk]. The "Notice of Rights" addresses the procedures to be followed if you desire a public hearing or other review of the proposed agency action. You are advised, however, to be prepared to defend your position regarding the permit application when it is considered by the Governing Board for final agency action, even if you agree with the staff recommendation, as the Governing Board may take final agency action which differs materially from the proposed agency action. The Notice of Rights stated that it was intended to conform to the requirement of Section 120.569(1), Florida Statutes, to "inform the recipient of any administrative hearing or judicial review that is available under this section [120.569(1)], s. 120.57 or s. 120.68." It cautioned: Please note that this Notice of Rights is not intended to provide legal advice. Not all the legal proceedings detailed below may be an applicable or appropriate remedy. You may wish to consult an attorney regarding your legal rights. The Notice of Rights included a section entitled "Petition for Administrative Proceedings," which stated in pertinent part: A person whose substantial interests are affected by the South Florida Water Management District's (SFWMD) action has the right to request an administrative hearing on that action. The affected person may request either a formal or an informal hearing, as set forth below. A point of entry into administrative proceedings is governed by Rules 28-106.111 and 40E-1.511, Fla. Admin. Code, (also published as an exception to the Uniform Rules of Procedure as Rule 40E-0.109), as set forth below . . .. Formal Administrative Hearing: If a genuine issue(s) of material fact is in dispute, the affected person seeking a formal hearing on a SFWMD decision which does or may determine their substantial interests shall file a petition for hearing pursuant to Sections 120.569 and 120.57(1), Fla. Stat. or for mediation pursuant to Section 120.573, Fla. Stat. within 21 days . . . of either written notice through mail or posting or publication of notice that the SFWMD has or intends to take final agency action. Pertinent to this case, the Notice of Rights included a verbatim reproduction of Florida Administrative Code Rule 28- 106.201, addressing required contents of a petition to initiate proceedings involving disputed issues of material fact. Rules 28-106.111, 40E-1.5111, and 40E-0.109 were not reproduced in the Notice of Rights. It is not clear from the evidence when the letter dated May 30, 2001, with attachments (the Notice Correspondence), was received in the Club's Maitland office. It was not date-stamped, as time-sensitive correspondence normally would be. Apparently, it was decided to forward the Notice Correspondence to the new satellite office in Estero for handling. Combs received the forwarded Notice Correspondence in early June 2001. This was the "first time [Combs] had been through this type of process." Combs reviewed the Notice Correspondence, eventually focusing on paragraph 1.a. of the "Petition for Administrative Proceedings" section of the Notice of Rights. She did not read any of the cited statutes and rules except for the rules reproduced verbatim as part of the Notice of Rights. Combs made conflicting statements regarding her understanding of the District's administrative process. However, it appears that she understood that the Club could file a petition within 21 days of receipt of the Notice Correspondence, or within 21 days of the "final" action of the District's Governing Board. She testified that, because the Notice Correspondence did not bear a date-stamp, it was unclear when the first 21-day time period began or ended; as a result, she decided to wait until the District's Governing Board took "final" action and file a petition within the second 21-day time period. Combs appeared at the meeting of the District's Governing Board on June 14, 2001, and spoke in opposition to issuance of the draft permit. Notwithstanding the Club's opposition, the Governing Board decided to issue the draft permit. Combs does not have authority to file petitions for administrative hearings on District actions. She consulted with her supervisor, Patricia Thompson, and they made a recommendation to the Club's governing board, which has ultimate authority to file petitions. Prior to Combs's involvement in the Hidden Harbor application, the Club had staff legal counsel, who could be consulted with respect to the filing of petitions and would advise the Club's governing board. However, the Club did not have staff legal counsel at the time of Combs's involvement and through the time of filing of this petition. (The Club now again has staff legal counsel.) Neither Combs nor Thompson saw any need to consult an attorney. It is not clear when the recommendation of Combs and Thompson was presented to the Club's governing board or when the Club's governing board made its decision to file the Petition. Neither Thompson nor any member of the Club's governing board (nor anyone else who may have participated in the decision to file the Petition) testified. Several (according to Combs, approximately 12) times after the District's Governing Board's meeting on June 14, 2001, Combs telephoned the District's offices to obtain a copy of the District's Governing Board's "final" action when it was reduced to writing. It is not clear from the evidence why several telephone calls were required. Eventually, on June 26, 2001, Combs received a copy of the permit issued to Hidden Harbor; there was no Notice of Rights attached. On July 17, 2001, the Club filed its Petition challenging the permit issued to Hidden Harbor. In the meantime, Hidden Harbor had obtained a final development order from Lee County in reliance on the Club's failure to petition for an administrative hearing. The Club is not a newcomer to Florida's administrative process. It can be officially recognized that the Club has participated in numerous proceedings before DOAH. At least one of those cases involved issues similar to those presented for determination in this case. See Conclusion of Law 32, infra.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order dismissing the Petition. DONE AND ENTERED this 6th day of December, 2001, in Tallahassee, Leon County, Florida. _________________________________ J. LAWRENCE JOHNSTON 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 6th day of December, 2001. COPIES FURNISHED: Cindy L. Bartin, Esquire Post Office Box 861118 St. Augustine, Florida 32086 Martha M. Collins, Esquire 233 3rd Street North, Suite 100 St. Petersburg, Florida 33701 Keith W. Rizzardi, Esquire South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406-3089 Frank R. Finch, Executive Director South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416-4680
Conclusions This matter comes before the Agency for Persons with Disabilities (the Agency) for entry of a Final Order based on Petitioner’s Motion for Final Order. This case arose out of an Administrative Complaint filed by the Agency on September 21, 2011, charging Respondent Coral Street Group Home with two counts of violating Florida Law and Administrative Code and asking for the imposition of an administrative fine. After Respondent requested a hearing, the matter was referred to the Division of Administrative Hearings. On November 22, 2011, the Agency filed an Amended Motion to Relinquish Jurisdiction based upon the fact that the Parties had reached an agreement to dispose of the case. The agreement was set out in a Stipulation signed by the parties calling for the imposition of a fine for Count | of the Administrative Complaint and the dismissal of Count Il. On November 22, 2011, the Administrative Law Judge issued an Order Relinquishing Jurisdiction. Based on the foregoing, the facts alleged in Count | of the Administrative Complaint are hereby ADOPTED; Count Ii of the Administrative Complaint is hereby DISMISSED; and it is hereby FOUND AND CONCLUDED that Respondent Coral Street Group Home did commit the statutory and rule violations alleged in Count | of the Administrative Complaint. Therefore, based on the foregoing, it is hereby ORDERED that Respondent Coral Street Group Home shall pay an Administrative Fine in the amount of $1000.00 APD-12-0186-FO | 4 Filed April 16, 2012 11:28 AM Division of Administrative Hearings within thirty (30) days of the date of rendition of this Final Order.’ Failure to comply with the terms and conditions of this Final Order may result in further administrative or judicial proceedings against Respondent. DONE AND ORDERED, the \L day of Noc A , 2012, in Tallahassee, Leon County, Florida. / tut /. onetr Michael P. Hansen, Director Agency for Persons with Disabilities RIGHT TO APPEAL A party who is adversely affected by this final order is entitled to judicial review. To initiate judicial review, the party seeking it must file one copy of a “Notice of Appeal” with the Agency Clerk. The party seeking judicial review must also file another copy of the “Notice of Appeal,” accompanied by the filing fee required by law, with the First District Court of Appeal in Tallahassee, Florida, or with the District Court of Appeal in the district where the party resides. Review proceedings shall be conducted in accordance with Florida Rules of Appellate Procedure. The Notices must be filed within thirty (30) days of the rendition of this final order. * Respondent shall pay the fine by mailing a check or money order made out the Agency for Persons with Disabilities to: Percy W. Mallison, Agency Clerk, Agency for Persons with Disabilities, 4030 Esplanade Way, Suite 380, Tallanassee, FL. 32399-0950. * The date of the “rendition” of this Order is the date that is stamped on its first page. The Notices of Appeal must be received on or before the thirtieth day after that date. APD-12-0186-FO | 2 Information about some sources of possible legal assistance may be found at: http://apd .myflorida.com/customers/legal/resource-listing.htm. Copies furnished to: Coral Street Group Home APD Area 23 Office 822 West Coral Street Tampa, Fl 33604 Jonathan Grabb, Esq. APD Senior Attorney Rebecca F. Kapusta, Esq. Claudia Llado, Clerk DCF Legal Counsel Division of Administrative Hearings CERTIFICATE OF SERVICE | HEREBY CERTIFY that a copy of this Final Order was provided to the above- named individuals at the listed addresses, by U.S. Mail or electronic mail, this \L, day of , 2012. Fungdoe n_- Percy W. Mallison, Jr., Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Fl 32399-0950 APD-12-0186-FO | 3
The Issue The issues in this case are whether Respondent, Coconut Cove Resort and Marina, Inc., failed to comply with the requirements of Sections 440.10, 440.107, and 440.38, Florida Statutes, and, if so, the appropriate amount of penalty which should be assessed against Respondent.
Findings Of Fact The Department of Financial Services (hereinafter referred to as the “Department”), is the state agency charged with the responsibility of enforcing the requirement of Section 440.107, Florida Statutes, that employers in Florida secure workers' compensation insurance coverage for their employees. § 440.107(3), Fla. Stat. Respondent, Coconut Cove Resort and Marina, Inc. (hereinafter referred to as “Coconut Cove”), is a Florida corporation, which at the times relevant operated a small hotel/resort located in Islamorada, Florida. On November 4, 2008, a complaint was received by the Bureau of Compliance Office of the Division of Workers’ Compensation located in Miami, Florida, requesting a determination of whether Coconut Cove was in compliance with Florida’s workers’ compensation coverage requirements. The complaint was referred to Xotchilth Valdivia, a Department investigator, for investigation. After performing an in-office audit of the Department’s databases and finding no evidence that Coconut Cove had secured workers’ compensation coverage or had obtained exemptions from Florida workers’ compensation laws, Ms. Valdivia traveled to Coconut Cove’s location on November 6, 2008. Upon arriving at Coconut Cove’s location, Ms. Valdivia spoke with a woman by the named Comeau, who was manning the front desk of the resort. Ms. Valdivia asked to speak with Mr. Bates, but was informed that Mr. Bates, a commercial airline pilot, was away. Ms. Comeau, however, told Ms. Valdivia that Mr. Bates’ wife, Magda was available. While waiting for Ms. Bates to arrive, Ms. Valdivia observed four individuals who appeared to be performing work for the resort, in addition to Ms. Comeau, who was manning the front desk: a male who was working around the swimming pool, and two women who appeared to be maids with cleaning mops. When Ms. Bates arrived, Ms. Valdivia identified herself and the purpose of her visit. During the course of her discussion with Ms. Bates, Ms. Bates identified 18 individuals as employees of Coconut Cove by name and occupation. The 18 individuals included Mr. and Ms. Bates, both officers of Coconut Cove. While indicating that she knew nothing about Florida workers’ compensation requirements, Ms. Bates also stated that Coconut Cove did not have workers’ compensation coverage. Finding that Coconut Cove had four employees as of November 6, 2008, and no workers’ compensation coverage, conclusions not disputed by Ms. Bates, Ms. Valdivia issued Stop- Work Order No. 08-326-D5 and served it on Ms. Bates. A Request for Production of Business Records for Penalty Assessment Calculation (hereinafter referred to as the “Request for Records”), was also served on Ms. Bates. The Request for Records sought payroll records for the three-year period preceding the date of the issuance of the Stop-Work Order. Ms. Valdivia explained the reason why the Stop-Work Order was being issued and the purpose of the Request for Records. She also explained that the business records would be utilized in calculating any penalty owed by Coconut Cove for failing to carry workers’ compensation coverage. Although Coconut Cove attempted to prove that Ms. Valdivia acted arbitrary in her actions to this point, the evidence proved the contrary. Ms. Valdivia acted reasonably, appropriately, and had good cause for the actions taken. In response to the Request for Records, Ms. Bates telephoned the accountant for Coconut Cove and requested that he provide the payroll information being sought by the Department. Almost all that information was immediately faxed to Ms. Bates, who then provided a copy to Ms. Valdivia. The documentation consisted of a payroll report for Coconut Cove for the period January 1, 2008, to November 6, 2008, UCT-6 reports filed by Coconut Cove with the Florida Department of Revenue for the fourth quarter of 2005 through the third quarter of 2008. (Petitioner’s Exhibits 4B, 4E, 4F, and 4G.) Based upon the information contained in the UCT-6 reports provided by Coconut Cove to the Department, the names of employees and the gross income paid to them by Coconut Cove was reported by Coconut Cove to the Department of Revenue. Those reports indicate that Coconut Cove employed four or more individuals each month from October 2005 through September 2008. Subsequently, Coconut Cove provided additional payroll information to the Department concerning payroll for the periods of November 7, 2005, through December 31, 2005, and November 1, 2008, through November 6, 2008. Again, the documents, which were provided by Coconut Cove, indicate that it had employed four or more individuals during the periods of time covered by these documents. The Request for Records included a request for time sheets, check stubs, and check ledgers for the period of time at issue, November 7, 2005, to November 6, 2008 (hereinafter referred to as the “Audit Period”). None of these documents were provided to the Department or at hearing. While Coconut Cove had a stack of documents at hearing which Mr. Bates referred to generally as time cards, those documents were not offered into evidence and no specific testimony concerning the vast majority of the documents was provided. Based upon the documentation provided by Coconut Cove to the Department, documentation which was offered and admitted at hearing, the Department proved clearly and convincingly that Coconut Cove employed four or more individuals during each month of the Audit Period. This finding excludes Mr. and Ms. Bates, who, although employees of Coconut Cove who had not obtained exemptions from coverage during the audit period, received no remuneration from Coconut Cove during the Audit Period. The documentation provided by Coconut Cove was provided to Russell Gray, an employee of the Department since 1986. Mr. Gray reviewed all the payroll information provided by Coconut Cove to Ms. Valdivia, transferred the payroll information to spread sheets, and proceeded to calculate the penalty imposed pursuant to statutes and rules for Coconut Cove’s failure to comply with the insurance coverage requirements of Chapter 440, Florida Statutes. The manner in which Mr. Gray calculated the penalty is more specifically and accurately described in the Department’s proposed findings of fact numbered 21 through 25 and 27, which are hereby incorporated into this Recommended Order by reference. Mr. Gray determined that the penalty to be assessed against Coconut Cove was $27,897.58. An Amended Order of Penalty Assessment for the penalty was issued December 3, 2008, and served on Coconut Cove by certified mail on December 4, 2008. Subsequently, Mr. Gray concluded that his penalty calculation was incorrect to the extent that he had included gross income in the amount of $1,316.65 to an employee named Gerald Elmore. This figure was the income of another employee and not income attributable to Mr. Elmore. In order to correct his error, the Department filed a Motion to Amend Order of Penalty Assessment on September 18, 2009, seeking to file a 2nd Amended Order of Penalty Assessment, lowering the penalty assessment to $27,821.74. Despite objections to this amendment raised at hearing by Coconut Cove, the Motion to Amend was granted after hearing the impact of the change and the reason it was required. On December 15, 2008, Coconut Cove entered into a Payment Agreement Schedule for Periodic Payment of Penalty. The Department, therefore, issued a Conditional Release from Stop- Work Order, also dated December 15, 2008. Coconut Cove’s relevant defense to the foregoing consisted of the assertion by Mr. and Ms. Bates that they simply did not have more than three employees at anytime. It was asserted that employees listed on the documentation provided by Coconut Cove’s accountant to Ms. Bates and given by Ms. Bates to Ms. Valdivia, were actually employees of another entity owned by the Bates, Paul’s Beach Bar and Grill, Inc., which runs an on- site restaurant and catering service. The testimony of Mr. and Ms. Bates on this issue was not convincing and is rejected as unworthy. The testimony was uncertain as to time, short on specifics, and was contrary to the information reported on the payroll records and UCT-6s provided by Coconut Cove’s accountant. That testimony is also rejected because no explanation as to why the individuals had been listed as employees of Coconut Cove on the payroll records and UCT-6s if they were indeed employees of Paul’s Beach Bar and Grill, Inc. The Department proved clearly and convincingly, based upon documentation produced to it by Coconut Cove, that the individuals named on the penalty worksheet attached to the Amended Order of Penalty Assessment were employees of Coconut Cove during the Audit Period, that Coconut Cove paid those individuals the gross income included in the penalty worksheet, and that the calculation of the penalty assessment, as amended at hearing, was accurate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers' Compensation, enter a final order: Finding that Respondent, Coconut Cove Resort and Marina, Inc., failed to secure the payment of workers’ compensation for its employees during the Audit Period, in violation of Section 440.107, Florida Statutes; and Assessing a penalty against Coconut Cove Resort and Marina, Inc., in the amount of $27,821.74. DONE AND ENTERED this 30th day of November, 2009, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 30th day of November, 2009. COPIES FURNISHED: Timothy L. Newhall, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399 Paul Bates Magda Bates 8401 Overseas Highway Islamorada, Florida 33036 Tracey Beal, Agency Clerk Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390 Honorable Alex Sink Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Benjamin Diamond, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
Findings Of Fact Richard Young is a registered building contractor holding license number RB0027773. Young does business as H. H. Johnson and Associates. On July 16, 1976, Young, in behalf of H. H. Johnson and Associates, entered into a contract for the construction of a single family residence with Anthony Ventura aid his wife, Patricia Ventura. This contract called for the construction of said residence within six months. On or about December 25, 1976, the Ventura's moved into the house which had not been finished by Johnson without the approval of the contractor. After Ventura had moved in, Young obtained a certificate of occupancy from the local building authorities and continued to finish the house. Thereafter, certain problems developed with final finishing work on the house, specifically, a drainage problem involving the driveway and garage. Ventura, who had occupied the house, would not go to closing and make payment of the final draw as payment on the construction. In an effort to correct the drainage problem, a concrete cap was poured in the garage of the Ventura residence. This concrete cap subsequently cracked and there were other problems relating to it. It was at this point that Ventura made a complaint to the Cape Coral Licensing Board. The Cape Coral Board arranged a meeting between Ventura and Young. At the meeting between Ventura and Young, officials and members of the Cape Coral Building Construction Board ware present. This meeting resulted in an agreement as stated in the letter of the Board dated June 30, 1977 (Exhibit 7) This letter lists specifically the agreement between Ventura and Young which was intended to resolve the complaint pending before the Board. The letter stated as follows: Dear Mr. Young, In our meeting on Thursday past it was my understanding that the following agreement was reached regarding the Ventura home. The garage floor was to be replaced and the hot water heater elevated to proper level. A drain was to be installed just in front of the garage door. Door to utility room from garage was to be swung in the opposite direction to open out. Any other warranty items such as the wall settlement, cracks and etc., were to be corrected under the normal warranty. Mr. Ventura and yourself were to agree on a sum to be placed in escrow to insure completion. This item is strictly between you and he and does not involve the City of Cape Coral at this point. Sincerely, /s/ Mr. Herbert J. Werner, Director Department of Community Development HJW/lec cc: Mr. Ventura, complainant Mr. Jack Scheall, Chairman of the Board On the following day, July 1, 1977, Mr. E. G. Couse, legal counsel for Mr. Young, received a letter from Barbara A. Burkett, counsel for Mr. Ventura. See Exhibit 10. This letter indicated a dispute between Ventura and Young regarding credits for costs incurred by Ventura because of an alleged delay In construction, and certain material liens. Exhibit 10, a letter reflects that the amount of the final draw was $6,594, that Ventura asserted that Young was entitled to only $4,231 and that Young asserted a claim to $5,930. Burkett, in behalf of her client, proposed payment of the final draw in the amount of $6,994 to an escrow agent who would immediately disburse $2,762 directly to Mr. Ventura and disburse the remaining balance of $4,321 to H. E. Johnson and Associates upon completion of repairs as specified in the letter (Exhibit 10) and upon written acknowledgement of Mr. Ventura that tie repairs had been made and were satisfactory. In addition to the items listed in the letter of June 30, the Burkett letter lists repairs to the tile in the bathroom and repairs to a large sliding glass door in the pool area which also were to be repaired. Because of his inability to reach any agreement with Ventura, Young refused to perform any of the repairs listed in Werner's letter of June 30, 1977 although he did make repairs to the bathroom. The conflict existing between the parties over the escrowed amount were brought to the attention of the Board by Mr. Couse as reflected in the minutes of the Board meeting of September 21, 1977 (Exhibit 1). The Board's position was stated by Mr. Kirby on page 2 of the minutes wherein Mr. Kirby stated that the Board's responsibility in the matter was to determine whether poor workmanship existed and that the matte of financial obligations did not lie within the jurisdiction of the Board. The Board then determined that the contractor was guilty of poor or faulty workmanship and thereby was in violation of Section 5-1/2-21 of the Cape Coral Code. The Board thereafter suspended the license of R. M. Young d/b/a H. H. Johnson and Associates for a period of 30 days effective immediately. This decision of the Board was appealed to the City Council pursuant to the Cape Coral Code which remanded the Board's order for reconsideration of the penalty. As a result of the remand, another hearing was held on January 11, 1978. The minutes of this meeting reflect that Mr. Young and Mr. Couse were not present. See Exhibit 3. At this second proceeding additional evidence was taken to include statements by Mr. Ventura that he had not seen Mr. Young up until the time or the hearing, that the concrete contractor, Grimsley, had told him that he would repair the driveway and that the garage floor had been repoured and the repair was satisfactory to the customer. Bared upon Ventura's testimony and the testimony of others at this new proceeding, the Board voted to revoke the license of Young. This meeting resulted in the issuance of two orders, Exhibits 4 and 5. Exhibit 5 was identified as an order issued in error revoking Young's license for a period of 90 days. This order is dated January 11, 1978. On January 12, 1978 another order was issued which revoked Young's license effective January 11, 1978. These orders of the Board were appealed to the City Council on the basis of the failure of notice by Mr. Young. The City Council, having reviewed this, granted the appeal and referred the matter back to the Board to conduct another hearing at which Mr. Young could appear. This resulted in a hearing, the minutes of which were filed as late filed Exhibit A. This meeting was conducted on March 15, 1978. At this meeting Mr. Rollings, representing Mr. Ventura and Mr. Couse, representing Mr. Young were permitted to make argument to the Board. Mr. Rollings represented that all of the items the Board had requested the contractor to perform had been done two days prior to the meeting of March 15, 1978. Mr. Rollings represented that the concrete subcontractor had the work on his own accord. Mr. Rollings indicated that Mr. Ventura did not feel the Board should relieve Mr. Young of any possible punishment and that the Board's responsibility was to make the contractor responsible for his work and not to settle money disputes and things of this nature. Mr. Couse argued that the work had been done and the delay was solely the result of the finance dispute between Young and Ventura. The Board heard the testimony of Grimsley and then having heard the arguments of counsel, Jack Scheall, a member of the Board, moved and it was seconded, that "the appeal be denied". Mr. Kirby, a member of the Board, asked "what the denial was for exactly." Mr. Tolisano, a member of the Board, replied, "the license was still revoked." A voice vote was taken and the motion carried.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer concludes that the penalty assessed by the local Board was inappropriate and procedurally incorrect; that the increase in the penalty was without factual basis based upon the facts presented at the last hearing before the local Board. Therefore the Hearing Officer would recommend that the Florida Board take no action upon this complaint. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Barry Sinoff, Esquire 1010 Blackstone Building Jacksonville, Florida 32202 E. G. Couse, Esquire Suite 202 Courtney Building 2069 First Street Post Office Drawer 1647 Ft. Myers, Florida 33902
