The Issue Whether Petitioner is entitled to an award of costs and attorneys’ fees pursuant to section 112.313(7), Florida Statutes, and Florida Administrative Code Rule 34-5.0291; and, if so, in what amount.
Findings Of Fact Ethics Complaint 15-174 On August 17, 2015, the Commission received a complaint against George Hanns (“Hanns”) filed by McDonald which alleged that Hanns, as a member of the Flagler County Commission (“County Commission”) and the Flagler County Canvassing Board (“Canvassing Board”), violated Florida’s election laws, the Government-in-the-Sunshine Law (“Sunshine Law”), and Florida’s Code of Ethics for Public Officers and Employees (“Code of Ethics”). Specific allegations in the complaint included that: A Special Canvassing Board meeting was held on September 12, 2014 in the Supervisor of Elections office bringing in a record crowd of voters. Commissioner Hanns and other county commissioner's behaviors and actions towards the Supervisor of Elections were criticized by Joe Kubusky. George Hanns became argumentative, stood up (in a threatening manner) and very unprofessionally verbally lashed back yelling at the public in a threatening manner. Many of the individuals present recorded the meeting, as did the Supervisor of Elections. Following the September 12, 2014 Special Canvassing Board meeting a scheduled County Commission meeting was held. It was at this time County Commission Chair/Canvassing Board member George Hanns brought up at the end of the County Commission meeting issues faced during Canvassing Board meetings. The alternate canvassing board member Barbara Revels and county attorney/canvassing board attorney Albert Hadeed were present. A discussion then took place at the County Commission meeting about the appointment of a canvassing board attorney along with other election related topics; all which were captured on audio by the staff member of the Clerk of the Court. It is believed that none of the election related topics were reflected on the meeting agenda, advertised to the public or reflected in the Board of County Commission meeting minutes. Furthermore, the other canvassing board members (including the Supervisor of Elections) were not noticed and provided the opportunity to be present to participate in the discussions. It would not be expected that election Canvassing Board issues be discussed at a Board of County Commission Meeting with only a canvassing board member and canvassing board alternates present. During the Board of County Commission meeting it was stated that action was to take place at the next scheduled election canvassing board meeting (October 17, 2014) for the county attorney Albert Hadeed (the board of county commissioners attorney) to be appointed the official canvassing board attorney, which in fact did occur during the October 17, 2014 Canvassing Board meeting as had been stated at the County Commission meeting and Commissioner George Hanns was the one to make the motion on the matter. From my perspective and other public attendees it seemed that this voting in of Hadeed had been prearranged! No such topic was discussed during the September 12th Special Canvassing Board meeting or at any other prior Canvassing Board meetings, therefore, it is believed a violation of the Florida Sunshine Law occurred. It was unknown by the Canvassing Board Agenda that a vote was going to take place at the October 17, 2014 canvassing board meeting as to who the canvassing board attorney would be. This September 12, 2014 Board of County Commission meeting appeared to be the prime opportunity for collaboration between commissioners (canvassing board member and alternates) and their staff to poll support from one another to manipulate and conquer the events of election canvassing board meetings to their advantage and liking, and to undermine and attack the supervisor of elections who is a constitutional elected officer who is independently elected by the people to preserve the integrity of the elections process.[9/] The complaint also alleged that: The County Commission also discussed election related issues on or about October 20, 2014 at a regularly scheduled Board of County Commission meeting, which too is believed to be a violation of the Sunshine Law as it was not advertised, was not on the meeting agenda, nor were other canvassing board members noticed or provided the opportunity to participate in the discussions. These occurrences of discussing the Canvassing Boards business take place with Commissioner George Hanns, Chair of the County Commission leading the meetings, and are done at the end of Board of County Commission meetings where the public would not expect such events. All discussions are captured on meeting audio though they may not be reflected in the Board of County Commission meeting minutes. The complaint further alleged that: The actions of George Hanns, the other county commissioners, and their staff have been done willingly, intentionally and with knowledge. They have used their position for personal gain- to remain in office, and to benefit other fellow commissioners to get re-re-elected so they too could remain in office to carry out agendas collectively. In the last two election cycles four of these commissioners have been narrowly elected. Hanns was a five term incumbent but won by 318 votes to a first time candidate, that was less than 1% but more than the .5% required to recount. Ericksen won by 120 votes and Meeker survived by 209 votes. They together retaliated against the supervisor of elections by conspiring together to harm the Supervisor of Elections reputation and their actions impacted our elections. Chair Commissioner George Hanns used his county employees to carry out his agenda relating to unethical practice and attacking the Supervisor of Elections for exposing his wrong doing and his dislike for being requested to remove himself from the county canvassing board. Commissioner Hanns and his fellow Commissioners are responsible for the actions and behaviors of the county administrator Craig Coffey and County Attorney Albert Hadeed. The removal of Commissioner George Hanns from the Canvassing Board left him powerless in the canvassing process and an embarrassment to our County. Discussions regarding the canvassing board took place at least twice at board of county commissioner meetings following the September 12, 2014 special canvassing board meeting and again on October 20, 2014. It is believed that both times canvassing board member and others have violated the Sunshine Law, and it is believed that those involved that are not canvassing board members or alternates were being a conduit to certain canvassing board members who were present. The complaint was reviewed by the Executive Director of the Commission who found the complaint to be legally sufficient to warrant an investigation: The complaint alleges that the [Hanns] and other members of the Board [of County Commissioners] or members of the canvassing board were involved in discussions which may not have been in compliance with the Sunshine Law, in order to manipulate canvassing board members or canvassing board conduct, that the Respondent was involved in placement of the County Attorney as attorney for the canvassing board (a placement objected to by the Supervisor of Elections), and that the Respondent was involved in other or related conduct, including retaliation against the Supervisor of Elections, apparently for the benefit of a particular candidate the Respondent had endorsed, or for the benefit of others. This indicates possible violation of Section 112.313(6), Florida Statutes. As a result, the complaint was determined to be legally sufficient and the investigative staff of the Commission was directed to “conduct a preliminary investigation of this complaint for a probable cause determination of whether [Hanns] has violated section 112.313(6), Florida Statutes, as set forth above.” The Commission’s Investigation The complaint was investigated by Commission Investigator K. Travis Wade. On February 19, 2016, the Commission issued its Report of Investigation, which found, as follows: Florida law provides that a county canvassing board shall be comprised of the Supervisor of Elections, a County Court Judge, and the Chair of the County Commission. Additionally, an alternate member must be appointed by the Chair of the County Commission. The Canvassing Board for the 2014 Election was made up of Hanns (then-County Commission Chair), Judge Melissa Moore-Stens, and then-Supervisor of Elections Weeks. Initially, the alternate member of the Canvassing Board was County Commission member Charles Ericksen, Jr. Minutes from the September 15, 2014 Flagler County Commission (“County Commission”) meeting indicate that during the “Commission Reports/Comments” portion of the meeting there was a discussion regarding who had the authority to appoint the Canvassing Board attorney, but no official action was taken at that time. The minutes indicate that County Attorney Albert Hadeed advised that it would be the Canvassing Board's decision as to who its legal counsel should be; and that County Administrator Craig Coffey suggested that the Canvassing Board resolve the issue at its next meeting. Current Flagler County Supervisor of Elections Kaiti Lenhart advised that her records indicate that either the County Attorney or an attorney from the County Attorney's Office has served as the Canvassing Board Attorney since 1998. Records preceding the 1998 election are not available. County Attorney Hadeed indicated that the County Attorney, or someone from the County Attorney’s Office, had served as the Canvassing Board Attorney for the past 25 years. Minutes from the October 17, 2014 Canvassing Board meeting indicate that Weeks made a motion that she be given authority to select the Canvassing Board attorney and that her motion died for lack of a second. The issue of Commissioner Ericksen's contribution to a candidate in the subject election was raised at the October 17, 2014 Canvassing Board meeting by Weeks. Commissioner Ericksen was not present at the meeting. Hanns indicated at the meeting that he would bring the issue to the attention of the County Commission at its next regular meeting, which was scheduled for October 20, 2014, thus alerting the members of the Canvassing Board that the issue would be publicly discussed by the County Commission. Minutes from the October 20, 2014 County Commission meeting indicate that there was a discussion regarding Commissioner Ericksen’s contribution to Meeker, who had opposition in his upcoming reelection, and that Commissioner Ericksen resigned as an alternate member of the Canvassing Board at that time. The Commission then voted to appoint Commissioner Barbara Revels as the alternate Canvassing Board member. All discussions by the County Commission regarding the Canvassing Board took place during the “Commissioner Reports/Comments” or “Commission Action” portion of duly noticed County Commission meetings. The only members of the Canvassing Board present at the October 20, 2014 County Commission meeting were Hanns and alternate member Commissioner Ericksen. The minutes from the October 20, 2014 County Commission meeting indicate that the County Commission reached a “consensus” to authorize the County Administrator to request the observer for the remainder of the election cycle. This request resulted from Hanns’ observations, while a member of the Canvassing Board, regarding the handling of absentee ballots by Weeks, whom he believed had close connections to at least one candidate in the election. County Administrator Coffey raised these concerns at the October 20, 2014 Commission meeting and requested County Commission permission to request an observer from the Division of Elections. County Administrator Coffey's October 21, 2014 letter to the Secretary of State, requesting an observer, indicates that the County Commission voted unanimously to authorize him to pursue the request. County Administrator Coffey stated in the letter that the community's confidence in the elections process is low due to both recent and past events involving the Supervisor of Elections. When asked about his allegation that Hanns was involved in other or related conduct, apparently for the benefit of particular candidates or others, McDonald indicated that he had no information regarding that allegation. Commission on Ethics Advocate’s Recommendation On March 7, 2016, Commission Advocate Elizabeth L. Miller recommended that there was no probable cause to believe that Hanns violated section 112.313(6) by participating in discussions which may have been in violation of the Sunshine Law, or other related conduct regarding appointment of the County Attorney as attorney for the Canvassing Board in order to manipulate Canvassing Board members or to carry out a planned agenda for the benefit of particular candidates or others. In addition, the Commission Advocate recommended that there was no probable cause to believe that Hanns violated section 112.313(6) by retaliating against the then-Supervisor of Elections for her efforts to remove two County Commissioners from the Canvassing Board. On April 20, 2016, the Commission issued its Public Report dismissing McDonald’s complaint against Hanns for lack of probable cause. McDonald’s Knowledge of the Falsity of His Sworn Allegations McDonald filed a sworn complaint against Hanns. When he signed the complaint, McDonald executed an oath that “the facts set forth in the complaint were true and correct ” When he filed his complaint against Hanns, McDonald had access to the video of the County Commission meeting of September 15, 2014, posted on the County’s website and the published minutes of that meeting, also available online or by request. Video of the 2014 meetings of the County Commission are archived for public viewing on the Flagler County website. Minutes of all County Commission meetings are public record available to the public on the Flagler Clerk of Court’s website and upon request. Neither the posted video nor the minutes of the September 15, 2014 meeting of the Flagler County Commission indicate that any action was taken by consensus vote or by any other vote regarding who had the authority to appoint the attorney for the Canvassing Board. No vote was taken by the County Commission to designate the County Attorney as the attorney for the Canvassing Board. To the contrary, the County Commission determined that it was a matter for the Canvassing Board to select its own attorney. All meetings of the Canvassing Board are publicly noticed and open to the public and its records are open for public inspection. When asked by the Commission’s investigator whether Hanns was involved in other or related conduct, for the benefit of particular candidates or others, McDonald indicated he had no information regarding that allegation. The allegations in the McDonald’s complaint against Hanns, which the Commission found material to investigate, were known by McDonald to be false, or filed by McDonald with reckless disregard for whether they were true or false. Malicious Intent to Injure Hanns Whether the claims against public officials were “motivated by the desire to [impugn character and injure reputation],” is a question of fact. Brown v. State, Comm’n on Ethics, 969 So. 2d 553, 555 (Fla. 1st DCA 2007). The evidence adduced at the hearing established that McDonald worked in concert with other individuals to maliciously injure the reputation of Hanns by filing complaints containing false allegations material to the Code of Ethics with the Commission on Ethics and other agencies. This group, formed in 2009 or 2010, was known formally as the Ronald Reagan Republican Association, informally as the “Triple Rs.” Members of the group included McDonald, Richter Sr., John Ruffalo, Carole Ruffalo, Ray Stephens, William McGuire, Bob Hamby, and Dan Bozza. The Triple Rs were trying to influence the outcome of elections in Flagler County. They did this by fielding candidates against incumbent members of the Flagler County Commission. McDonald ran against and lost to Meeker in the 2012 and 2014 elections. In 2014, Richter Sr. ran against and lost to Commissioner McLaughlin. The Triple Rs also tried to influence the results of the elections by filing complaints with multiple agencies against various elected and appointed Flagler County officials. McDonald was the de facto spokesperson of the Triple Rs. McDonald was such a frequent visitor to Weeks’ office between the 2012 and 2014 election cycles that Weeks’ husband expressed concern to Commissioner McLaughlin about McDonald’s influence over her. This group filed 25 complaints against Flagler County officials, individually and collectively, including complaints against Hanns, all members of the 2014 County Commission, the County Attorney, and the County Administrator. The complaints were filed with the Commission on Ethics, the Florida Elections Commission, The Florida Bar, and the State Attorney for the Seventh Judicial Circuit. Certain members of the Triple Rs formed a limited liability company--the “Flagler Palm Coast Watchdogs”--and also filed suit against the County Commission to block renovation of the old Flagler Hospital into the Sheriff’s Operation Center, alleging violations of the Code of Ethics. At least 12 of the complaints filed by the group specifically alleged or referenced the false allegations which are at issue in this case: that members of the County Commission discussed Canvassing Board matters in violation of the Sunshine Law with the goal of manipulating elections, improperly selecting the Canvassing Board attorney, and advancing a hidden agenda. In addition to alleging that Hanns violated Florida’s ethics laws and Sunshine Law, the complaint filed with the Commission alleged that Hanns violated Florida’s campaign finance law in several respects. The allegations that Hanns discussed Canvassing Board matters in violation of the Sunshine Law with the goal of manipulating elections, selected the Canvassing Board attorney, and advanced a hidden agenda were crucial to the ethics complaint which McDonald filed against Hanns. These allegations formed the basis for the Commission’s finding that the complaint was legally sufficient and order that it be investigated. Had Hanns been found to have violated Florida ethics and elections law, it would have damaged his reputation in the community. The totality of these findings, including the number of complaints, the collaboration among the various complainants, and the inclusion of similarly false allegations in complaints filed by different complainants with different agencies, lead to no reasonable conclusion other than Ethics Complaint 15-174 was filed with a “malicious intent” to injure the reputation of Hanns, and create political gain for the Triple Rs and Weeks. The totality of these findings constitutes clear and convincing evidence that McDonald’s complaint was filed with knowledge that, or with a conscious intent to ignore whether, it contained one or more false allegations of fact material to a violation of the Code of Ethics. The totality of these findings constitutes clear and convincing evidence that McDonald showed “reckless disregard” for whether his sworn complaint contained false allegations of fact material to a violation of the Code of Ethics. The totality of these findings constitutes clear and convincing evidence that the true motivation behind the underlying complaint was the political damage the complaint would cause Hanns, with the corresponding benefit to the Triple Rs and Weeks, rather than any effort to expose any wrongdoing by Hanns. Attorneys’ Fees and Costs Upon receipt and review of the complaints filed against Hanns and others in late 2014, Flagler County informed its liability insurance carrier and requested that counsel experienced in ethics and elections law be retained to defend against those complaints. At the specific request of the County, Mark Herron of the Messer Caparello law firm was retained to defend these complaints. Mr. Herron is an experienced lawyer whose practice focuses almost exclusively on ethics and elections related matters. Mr. Herron was retained by Flagler County on the understanding that the Messer Caparello firm would be compensated by the County’s liability insurance carrier at a rate of $180 per hour and that the County would make up the difference between the $180 per hour that the insurance carrier was willing to pay and the reasonable hourly rate. The rate of $180 per hour paid by the County’s liability insurance carrier to the Messer Caparello firm is an unreasonably low hourly rate for an experienced practitioner in ethics and election matters. Expert testimony adduced at the hearing indicated that a reasonable hourly rate would range from $250 to $450 per hour. Accordingly, $350 per hour is a reasonable hourly rate to compensate the Messer Caparello firm in this proceeding. The total hours spent on this case by Messer Caparello attorneys is reasonable. The billable hourly records of the Messer Caparello law firm through May 14, 2017, indicate that a total of 73.54 hours were spent in defending the underlying complaint filed with the Commission and in seeking costs and fees in this proceeding. The record remained open for submission of Messer Caparello costs and attorneys’ fees records after May 14, 2017, through the date of submission of the Proposed Recommended Order. These additional records of the Messer Caparello law firm indicate that a total of 58.33 hours were spent in seeking costs and fees for that defense at the formal hearing in this cause and in preparation and submission of the Proposed Recommended Order. Costs of $1,919.21 incurred by the Messer Caparello law firm through May 14, 2017, are reasonable. Costs of $424.90 incurred by the Messer Caparello law firm after May 14, 2017, are reasonable. The total hours spent on this case by the Flagler County Attorney’s Office is reasonable. Time records of the Flagler County Attorney’s Office through May 15, 2017, indicate that a total of 13.20 hours of attorney time were spent assisting in the defense of the underlying complaint filed with the Commission and in seeking costs and fees in this proceeding. Time records of the Flagler County Attorney’s Office through May 15, 2017, indicate that a total of 22.20 hours of paralegal time were spent assisting in the defense of the underlying complaint filed with the Commission and in seeking costs and fees in this proceeding. The record remained open for submission of costs and attorneys’ fees records after May 15, 2017, through the date of submission of the Proposed Recommended Order. These additional records of the Flagler County Attorney’s Office indicate that a total of 6.60 hours of attorney time, and a total of 2.10 hours of paralegal time were spent in seeking costs and fees for that defense at the formal hearing in this cause and in preparation and submission of the Proposed Recommended Order. Costs of $168.93 incurred by the Flagler County Attorney’s Office law through May 15, 2017, are reasonable. Costs of $292.00 incurred by the Flagler County Attorney’s Office after May 15, 2017, are reasonable. A reasonable hourly rate for the time of Flagler County Attorney in connection with this matter is $325 per hour. A reasonable hourly rate for the time of the paralegal in the Flagler County Attorney’s Office in connection with this matter is $150 per hour. Based on the findings herein, Hanns established that he incurred: (i) reasonable costs in the amount of $2,346.11 and reasonable attorneys’ fees in the amount of $46,154.50 for the services of the Messer Caparello law firm in defending against the underlying complaint filed with the Commission and in seeking costs and fees in this proceeding; and (ii) reasonable costs in the amount of $461.92 and reasonable attorneys’ fees in the amount of $10,080.00 for the services of the Flagler County Attorney’s Office in defending against the underlying complaint filed with the Commission and in seeking costs and fees in this proceeding.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order granting Hanns’ Petition for Costs and Attorneys’ Fees relating to Complaint 15-174 in the total amount of $59,042.53. DONE AND ENTERED this 21st day of September, 2017, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 21st day of September, 2017.
Findings Of Fact Pursuant to a search conducted inside the Leon County Florida home residence of the Respondent and her husband, Lynwood Moore, the following items were discovered and seized by agents of the Leon County Sheriff's Department and the Tallahassee Police Department, pursuant to a search warrant: A brown print canvas bag which contained seven plastic packets. Each plastic packet contained cocaine, a controlled substance named or described in Section 893.03, Florida Statutes. The total aggregate weight of the cocaine within the seven bags was forty-five grams. The said brown print canvas bag also contained three bottles which themselves contained benzocaine, inositil, and procaine HCL, respectively. A brown case which contained a set of triple beam balance scales, graduated in metric weights. The said scales contained a residue of cocaine, a controlled substance, named or described in Section 893.03, Florida Statutes. The said residue was located on the weighing pan of the scales. Three smoking pipes which contained an aggregate of grams of cannabis, a controlled substance, named or described in Section 893.03 Florida Statutes. A transparent plastic bag which contained 1.9 grams of cannabis, a controlled substance, named or described in Section 893.03, Florida Statutes. A cellophane cigarette pack wrapper which contained 2.4 grams of cannabis, a controlled substance, named or described in Section 893.03, Florida Statutes. A brown glass vial which contained a residue of cocaine, a controlled substance, named or described in Section 893.03, Florida Statutes. Attached to the said vial was a miniature spoon. Two transparent glass vials which each contained a - residue of cocaine, a controlled substance, named or described in Section 893.03, Florida Statutes. A small gold colored straw or tube which contained a residue of cocaine, a controlled substance, named or described in Section 893.03, Florida Statutes. A single edged razor blade which contained a residue of cocaine, a controlled substance, named or described in Section 893.03, Florida Statutes. A partially burned, hand-rolled cigarette which contained .3 grams of cannabis, a controlled substance, named or described in Section 893.03, Florida Statutes. The Respondent married Lynwood hove on June 27,1970, and the two have lived together as husband and wife since that date to the present time. The Respondent has lived at the Leon County Florida home residence described in Paragraph One since 1977. The Respondent was certified by the Criminal Justice Standards and Training Commission on November 29, 1974 as a law enforcement officer and issued certificate Number 02- 13249. Respondent was employed with the Florida State University Police Department on November 29, 1974, and assigned as a uniform patrol officer. The Respondent performed this function as a full-time employee until October 22, 1982 when she was promoted to the position of Education Officer. The Respondent performed this function as a full-time employee until February 15, 1983. (a) On June 4, 1975, the Respondent wrote and filed a police report as the reporting officer. The Respondent stated in the report that upon the arrest and search of an individual on a charge of vandalism, three cigarettes which appeared to be marijuana were found in the individual's wallet. The Respondents wrote and filed an evidence impoundment form regarding the incident which described her impoundment of three suspected marijuana cigarettes and a "Zig Zag" package. On November 15, 1975, the Respondent wrote and filed a police report as the reporting officer. The Respondent stated in the report that she and another officer had stopped a motorist for a traffic violation. The Respondent stated that the other officer conducted a pat down search of the motorist and discovered what appeared to be a marijuana cigarette in the motorist's shirt pocket. On October 20, 1976, the Respondent wrote and filed a police report as the reporting officer. In the report, the Respondent stated that during a pat down search of an individual she found marijuana on the individual's person and seized it. On December 21, 1977, the Respondent wrote and filed a police report as the reporting officer. In the report, the Respondent stated that during the search of an arrested person's automobile, she discovered a plastic box which contained one suspected cannabis cigarette, a plastic bag of suspected cannabis and a plastic bag of suspected hashish. The Respondent stated in her report that she arrested the person for possession of cannabis and hashish. The Respondent wrote and filed an evidence impoundment form regarding the incident which described her impoundment of a rolled cigarette, a plastic bag of marijuana, a partially smoked cigarette, a plastic bag of hashish, a cigarette roller and cigarette papers. On May 9, 1978, the Respondent wrote and filed a police report as the reporting officer. In the report, the Respondent stated that she found a marijuana cigarette in a truck that three juveniles stood by. The Respondent also stated in her report that she observed rolling papers that were apparently dropped on the ground by the juveniles upon her approach. The Respondent's report also indicated that one of the juveniles was searched and the search uncovered a plastic bag containing marijuana. The Respondent wrote and filed an evidence impoundment form regarding the incident which described her impoundment of suspected marijuana cigarettes. On July 25,1979, the Respondent wrote and filed a police report as a reporting officer. The Respondent stated in the report that she had assisted another officer in stopping a motorist. The Respondent stated in her report that upon looking into the motorist's vehicle, she saw a plastic bag containing suspected cannabis which she seized. The Respondent stated in her report that a further search of the motorist's vehicle revealed a rolled cigarette of suspected cannabis, eleven pieces of cigarettes and suspected cannabis seeds. The Respondent arrested the motorist for possession of cannabis. On October 8; 1979, the Respondent wrote and filed a police report as the reporting officer. The Respondent stated in the report that she arrested a person for driving under the influence of alcohol and possession of less than twenty grams of cannabis. The Respondent wrote and filed an evidence impoundment form regarding the arrest which described her impoundment of a brown pipe, two packages of smoking papers and cannabis. Tallahassee police received information that Lynwood Moore, husband of Respondent, was selling drugs in this area. In a combined operation with local authorities and the federal drug administration, Richard G. Hafner, an FDLA agent in Panama City, came to Tallahassee to set up a meeting with Moore to buy cocaine. With the assistance of an informant, Hafner contacted Moore and arranged for the informant to pick up one ounce of cocaine on January 18, l983. On February 2, 1983 Hafner and the informant met Moore at a filling station and they arranged for Hafner to come to an address that evening to buy an ounce of cocaine. Hafner, accompanied by the informant who was pregnant at the time, went to the address which he discovered to be a house outside the city set back from the highway more than one hundred yards with no lights on. Two or three cars were parked in front and Hafner decided the area was too dangerous under the circumstances and he returned to Tallahassee. The informant then called Moore's residence and Respondent answered the telephone. Hafner took the phone from the informant and told Respondent he was calling about the "puppies" and that the area selected to purchase the puppies was unsatisfactory as being too remote and requested she get the message to Lynwood. Hafner had been told by the informant that in telephone conversations with Moore one "puppy" was to be used to designate one ounce of cocaine. When Hafner asked Respondent to give the message to her husband, she appeared to fully understand the message she was to deliver. At a subsequent meeting with Hafner, Lynwood Moore became suspicious of Hafner and refused to sell him any cocaine. For several years Lynwood Moore has bred, raised and sold greyhound dogs, both as a business and an avocation. Respondent testified that she frequently got calls from prospective greyhound buyers inquiring about buying dogs from her husband. Some of these calls would be late in the evening and be received from women. Geneen Marsh, the informant, agreed to help police authorities arrest Lynwood Moore in exchange for releasing her husband from prison. Ms. Marsh had been buying cocaine from Moore for more than six months making purchases of 1/8 ounce twice per week. She often called the Moore residence and on occasion talked to Respondent who would pass messages to her husband. Marsh never received any cocaine from Respondent but Respondent was at home on several occasions when Marsh picked up her "buy" at the Moore residence. On one occasion Lynwood Moore had the balance scale on which the cocaine was weighed in the room while Marsh was there to pick up her buy and Respondent came into the room where the scales were in clear view. Following the controlled buys of cocaine from Lynwood Moore, the police obtained a search warrant and, on February 15, 1983, a search was made of the Moore's residence. Upon arrival of the police officers accompanied by Lynwood Moore they allowed Lynwood to go in first to alert his mother who was living with them so she would not be too upset at the arrival of the police. Upon entering the residence the police put all occupants in the living room while the search was conducted. Upon their arrival Respondent was in the bathtub washing her daughter's hair. She was told the police were there and when she exited the bathroom she was taken immediately to the living room. Upon being told the nature of the search Respondent gave no evidence of surprise but remained stoical. Two police officers searched the master bedroom occupied by Respondent and her husband. The officer who searched the walk-in closet found the items in findings l(a) and l(b) above on the floor of the closet. Although these bags were under hanging clothes on the side of the closet containing men's clothing, they could be seen without first having to remove the clothes which partially obscured these bags. The aroma of cannabis was noted in the bedroom by the police officers. The other police officer, Spears, searched the remainder of the room. On the top of the dresser in the master bedroom Spears found a cup containing several .38 caliber bullets, a razor blade with some white powder, later identified as cocaine, on the cutting edge, and police collar insignia. Also on the dresser was a marijuana cigarette, a glass cutting screen, and a man's jewelry box. Inside the jewelry box were rings, cuff links, a bag containing marijuana, three bottles containing traces of cocaine, and many wrappers used to wrap bills in $1000 and $2000 bundles. In the bottom drawer of the night stand alongside the bed were three marijuana pipes containing some marijuana in each. These pipes were covered by letters, insurance policies and exercise instructions. Some of Respondent's personal effects were kept in this night stand. Lynwood Moore testified that his wife never touched any of his possessions or intruded on his side of the closet. She wouldn't dare open his jewelry box and look in it. He normally kept the cocaine in a detached building on his property but a few weeks before the raid brought the cocaine into the house where it would not absorb as much moisture as in the out building. He insisted his wife had no knowledge that he was dealing drugs and that he left home at all hours and returned when he pleased without offering any explanation for his actions. Respondent testified that she never looked on her husband's side of the closet that she had never seen any evidence of drugs in their residence that Lynwood had been raising and selling greyhounds for several years and she often received calls regarding purchase of these dogs that she never saw Ms. Marsh until she testified at the earlier Career Service hearing that she never walked in while Lynwood was dispensing drugs to Marsh and that she never saw a marijuana cigarette, the razor blade, scales, or any other evidence of drugs in her home. On the other hand Respondent, while undergoing training leading to certification as a law enforcement officer, received training in drugs, in drug identification and drug paraphernalia. She also received refresher courses from time to time. After her promotion to sergeant she was made education officer at the FSU police department and given the duty, inter alia, of instructing other officers in the prevention of drugs on campus. A display board with pictorial identification of various drugs and drug paraphernalia was on the wall in her office. As noted in finding of fact 5 above Respondent has made numerous arrests for possession of controlled substances and was fully capable of identifying a marijuana cigarette and paraphernalia used with controlled substances. Accordingly, her testimony that she never saw any drugs or any drug paraphernalia in her home is simply not credible. While she may never have participated in any of her husband's "dealings" the paraphernalia associated with such transactions could hardly have been kept in the master bedroom and Respondent be totally unaware of its presence.
The Issue The issue in this case is whether just cause exists for Petitioner, Broward County School Board, to suspend Respondent, Brenda Joyce Fischer, from her employment as a teacher for three days without pay.
Findings Of Fact The Parties Petitioner, Broward County School Board, is charged with the duty to operate, control, and supervise free public schools in Broward County pursuant to article IX, section 4(b) of the Florida Constitution and section 1012.33, Florida Statutes.2/ Respondent has been employed as a teacher with Petitioner since 1992, and has been employed as an art teacher at Western High School ("Western") since 2009. Evidence Adduced at the Final Hearing During the 2018—2019 school year, Respondent was assigned to teach Creative Photography I, an elective course, at Western. The 2018—2019 school year was the first year this course was taught at Western. In May 2018, Respondent requested that textbooks be ordered for the Creative Photography I course. As of the first few weeks of the 2018—2019 school year, the textbooks for the course had not yet arrived. Respondent testified, credibly, that she did not have access to any textbooks from which to plan her instruction during the time she was waiting on the arrival of the textbooks. During the planning period before the first week of school, Respondent contacted photography teachers at other schools in the Broward County Public School District ("District") to obtain materials to use until her textbooks arrived. For a variety of reasons, much of the material she received from other teachers was not suitable for her course. According to Respondent, Christine Malin, who taught a photography course at another public high school in the District, assisted her by providing materials. Much of what Malin provided was not suitable because Respondent's class did not have access to cameras for student use. Malin also told Respondent about two videos on photography that she had found on the internet, and that Malin's description of the content of the videos sounded suitable for Respondent's course. Respondent testified that Malin told her that she had reviewed the videos. However, when asked whether Malin told her the videos were appropriate to show to a high school class, Respondent acknowledged that "[s]he didn't say anything about that." Respondent previewed one video in its entirety. She testified that "when it came to the second one, I did not preview it as closely as I did the first one because the first one I said, okay, this isn't bad." According to Respondent, she previewed the second video after school in the evening while she was working on school paperwork. She testified "[s]o I was doing that along with listening to the video and watching the video and I was doing some other stuff." Respondent showed the videos to her first period class on August 23, 2018. One of the videos contained a total of 11 images of nude men and women on seven slides. Two of the images, shown twice during the video, depicted the models in sexually suggestive poses with their genitalia clearly visible. One of the six images depicted a nude male, which, while not depicting genitalia, was accompanied by an audio narrative referencing a dominant sexual partner. The first nude images were shown in the interval from 3:02 to 3:13 in the video. Additional nude, sexually explicit images appeared in the interval from 3:14 to 3:21 and 3:21 to 3:36 in the video. All of these images were again shown in the interval from 3:36 to 3:43 in the video. The last nude images appeared in the interval from 5:08 to 6:25 in the video, accompanied by the sexually explicit narrative. The images comprised approximately two minutes of the nearly 13—minute long video. Respondent testified that she did not realize that the video contained nude images until she saw the first nude image, at which point she tried to turn the projector off. According to Respondent, she was "fumbling," but did eventually stop the projection of the nude images, albeit not before the students saw the additional nude images. Respondent also showed the video to her second period class. According to Respondent, as soon as she saw the first nude image, she shut the projector lens off and fast—forwarded past the other images, so that the students only saw one nude image. According to Respondent, she was able to use the portions of the video that did not contain nude images for instructional purposes in her first and second period classes. Six students in Respondent's class testified about what they saw in the video shown in Respondent's class that day. The students who testified were 15— and 16—years—old at the time of the incident. All six students who testified also had provided handwritten statements to Western assistant principal Derek Gordon as part of Petitioner's investigation into the incident. Four of the six students who testified were in Respondent's first period class. They each testified to the effect that they had viewed all of the nude images in the video. Some of these students, either in testimony or in their written statements, characterized the images as "inappropriate" or "disturbing." Two of the students who testified were in Respondent's second period class. They testified to the effect that they had seen more than one nude image and had heard sexually explicit audio narrative accompanying the last nude image in the video. One of these students, in a written statement provided during the investigation, characterized the images as "inappropriate." Respondent acknowledged that she did not obtain prior approval from the principal of Western or his designee, her department head, before showing the video to her class. She also acknowledged that she had previewed the video only three days, at most, before she showed it to her classes, and that she had not watched the entire video because she was multitasking. When questioned about when she prepared her lesson plan for August 23, 2018, she responded: "I wound up doing it that Monday, Tuesday, Wednesday because I was told I was getting my textbooks, they didn't come in and I know I needed an assignment. . . . I didn't plan for two weeks because I was expecting to get the textbooks in so we could use the textbooks." She acknowledged that it was her responsibility to thoroughly preview the video before she showed it to the students, and that she had not vetted it to the extent she should have before she showed it in her classes. After her second period class on August 23, 2018, Respondent reported to Derek Gordon that she had shown a video containing nude images in her first and second period classes. Gordon initiated the investigation that culminated in Petitioner proposing to suspend Respondent for three days without pay. Respondent's timely challenge to that proposed action is the subject of this proceeding. According to Gordon and Western Principal Jimmy Arrojo, many parents contacted the school regarding the incident, some of whom wanted their children removed from Respondent's class. Arrojo testified that the incident also was widely reported in the news. Following this incident, and apart from serving her three—day suspension, Respondent taught the Creative Photography I course at Western for the remainder of the 2018—2019 school year. Respondent currently is serving as a teacher facilitator for an online class at Western. She is not teaching the Creative Photography I course at Western for the 2019—2020 school year. School Board Policy and Faculty Handbook Requirements Petitioner and the administration at Western each have adopted relevant standards and requirements governing the use of audiovisual materials in classroom instruction. Specifically, school board policy 6100, titled "Audiovisual Materials Use Policy," requires audiovisual materials to be previewed "in their entirety" before being shown to students by the teacher using the material to ensure that the language, theme, level of violence, and content are consistent with the maturity level of the students who will be viewing the material. The policy adopts the Motion Picture Association of America's ("MPAA") ratings as the guidance standards for determining whether audiovisual materials are age-appropriate. The MPAA rating rule for the PG—13 category states, in pertinent part: "[m]ore than brief nudity will require at least a PG—13 rating, but such nudity in a PG—13 rated motion picture generally will not be sexually oriented." By contrast, the MPAA rating rule for R—17 states, in pertinent part: [a]n R—rated motion picture may contain adult themes, adult activity, . . . sexually—oriented nudity, or . . . other elements, so that parents are counseled to take this rating very seriously. Children under 17 are not allowed to attend R—rated motion pictures unaccompanied by a parent or adult guardian." Additionally, the Western High School Faculty & Staff Handbook for the 2018—2019 school year ("Faculty Handbook") includes several provisions relevant to the charges at issue in this proceeding. Specifically, the section of the Faculty Handbook titled "Movies" states, in pertinent part, that "[a]ll instructional resources, including audiovisual materials, must: be consistent with School Board of Broward County policies[,] [and] [r]eflect the best teaching practices based on age— appropriateness and instructional relevance, meant to support instruction[,] not replace it." Additionally, the Faculty Handbook requires faculty who intend to use audiovisual materials for class instruction to "[c]omplete a Movie Request Form of corresponding assignment [and] [s]ubmit Request Form to department chair for approval." The Faculty Handbook also states that each teacher is required to keep his/her lesson plans one week in advance, and specifies the components that each lesson plan must contain. The purpose of this requirement is to ensure that each lesson is prepared a sufficient time in advance so that classroom instruction is organized and effective. The Faculty Handbook does not contain, and Arrojo confirmed the absence of, an exemption to the lesson plan preparation requirement for situations when a textbook on order has not arrived by the time the course begins. To this point, the Florida Department of Education has ratified the Curriculum Planning and Learning Management System ("CPALMS"), which is the "State of Florida's official source for standards information and course descriptions." CPALMS provides "an online toolbox of information, vetted resources, and interactive tools to help educators effectively implement teaching standards." As Arrojo explained, CPALMS is the "go—to site" for every course that is offered. For the Creative Photography I course, there are 460 vetted and approved course— specific resources that are available to teachers on the CPALMS website for use as instructional material.3/ Respondent's History of Prior Discipline Respondent previously has been subjected to disciplinary action while employed by Petitioner. Specifically, Respondent's disciplinary history consists of the following: a written reprimand in February 1997 for using inappropriate language in class; a written reprimand in April 1997 for making inappropriate comments in class; a three— day suspension in 2009 for using inappropriate language in class; a verbal reprimand in 2014 for intentionally exposing a student to unnecessary embarrassment and disparagement; a written reprimand in November 2017 for inappropriately touching and yelling at students; and a written reprimand issued by the State of Florida Education Practices Commission in October 2018 for failure to make reasonable effort to protect a student from conditions harmful to learning and/or the student's mental and/or physical health and safety. Findings of Ultimate Fact As discussed in greater detail below, Respondent has been charged in this case with misconduct in office, incompetency, and willful neglect of duty under Florida Administrative Code Rule 6A—5.056, and with violating Broward County School Board policies 6100 and 4008.4/ Whether a charged offense constitutes a violation of applicable rules and policies is a question of ultimate fact to be determined by the trier of fact in the context of each alleged violation. McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995)(whether particular conduct constitutes a violation of a statute, rule, or policy is a factual question); Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995)(whether the conduct, as found, constitutes a violation of statutes, rules, and policies is a question of ultimate fact); Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1st DCA 1985)(whether there was a deviation from the standard of conduct is not a conclusion of law, but is instead an ultimate fact). Misconduct in Office under Rule 6A—5.056(2) Based on the foregoing findings, it is found, as a matter of ultimate fact, that Respondent engaged in conduct constituting misconduct in office, as defined in rule 6A—5.056. Respondent's conduct violated several provisions of Florida Administrative Code Rule 6A—10.081, the Principles of Professional Conduct for the Education Profession in Florida, which has been incorporated into rule 6A—5.056(2). Specifically, in failing to adequately prepare her lesson plans a week in advance and failing to preview the video in its entirety, Respondent failed to exercise best professional judgment, as required by rule 6A—10.081(1)(b). As a result of her failure to exercise best professional judgment, she exposed the 15— and 16—year—old students in her classes to images that they found "inappropriate" and "disturbing." In doing so, she failed to make a reasonable effort to protect her students from conditions harmful to learning and their mental health, in violation of rule 6A—10.081(2)(a)1. Furthermore, even after Respondent became aware during her first period class that the video contained nudity and sexually explicit images, she nonetheless continued to show it, thereby exposing the students to additional nude, sexually explicit images and narrative that they otherwise would not have seen or heard. In doing so, she intentionally exposed the students in her first period class to unnecessary embarrassment, in violation of rule 6A—10.081(2)(a)5. Respondent's failure to exercise best professional judgment was further compounded when, after learning of the images and narrative, she nonetheless chose to show the video to her second period class. Although she testified that she skipped over almost all of the nude content, the students' testimony established that, at minimum, they were exposed to the first two nude images at 3:02 in the video and the last image, with its sexually explicit narrative, starting at 5:08 in the video. In choosing to show the video despite being aware of its contents, Respondent intentionally exposed the students in her second period class to unnecessary embarrassment, in violation of rule 6A—10.081(2)(a)5. Respondent's conduct also negatively affected the confidence and respect of her students' parents, in violation of rule 6A—10.081(1)(c), which establishes a standard to achieve and sustain the highest degree of ethical conduct. To this point, Arrojo and Gordon both testified, credibly, that they had received numerous calls from parents, requesting that their children be removed from Respondent's class. For the reasons discussed below, it is also found, as a matter of ultimate fact, that Respondent engaged in conduct that violated school board policies 6100 and 4008; thus, she violated rule 6A—5.056(2)(c). For the reasons discussed in detail above, it is found, as a matter of ultimate fact, that Respondent engaged in conduct that disrupted her students' learning environment, in violation of rule 6A—5.056(2)(d). Respondent's conduct also reduced her ability to effectively perform her teaching duties, in violation of rule 6A—5.056(2)(e). Specifically, as a result of Respondent's conduct, many parents requested to have their children removed from her class. This significant consequence evidences that Respondent's ability to effectively perform her teaching duties was reduced during the 2018—2019 school year. Incompetency under Rule 6A—5.056(3) It is also found, as a matter of ultimate fact, that Respondent's conduct constitutes incompetency due to inefficiency, in violation of rule 6A—5.056(3)(a). Specifically, in showing the video to her classes, Respondent violated school board policies and State Board of Education rules, and, thus, failed to perform her teaching duties as prescribed by law. By showing the video containing content that was not appropriate for her students to see and hear, she also failed to communicate appropriately with her students. Further, as a direct result of her disorganization in failing to adequately and timely prepare her lesson plans for August 23, 2018, including completely previewing both videos that she intended to show that day, the welfare of her students was diminished. The undersigned finds, as a matter of ultimate fact, that Respondent's conduct does not constitute incompetency due to incapacity. Although Respondent was not adequately prepared for her August 23, 2018, class, and, as a result, showed a video that was age—inappropriate for her students, the evidence does not establish that she lacked adequate command of her area of specialization. To the contrary, the evidence establishes that she taught the Creative Photography I course for the entire 2018— 2019 school year, and that, apart from her three—day suspension, incurred no further disciplinary action due to lack of preparation or use of inappropriate instructional materials. Willful Neglect of Duty under Rule 6A—5.056(5) It is found, as a matter of ultimate fact, that Respondent's conduct constitutes willful neglect of duty, in violation of rule 6A—5.056(5). As discussed above, once Respondent became aware, during her first period class, of the nude and sexually explicit images in the video, she nonetheless chose to continue showing the video to her first period class, thereby recklessly5/ exposing the students to additional nude images and sexually explicit content. Violation of School Board Policy 6100 It is found, as a matter of ultimate fact, that Respondent's conduct violated school board policy 6100. Specifically, by showing the video in her classes, Respondent violated policies 6100(1)(d) and (2)(a), which require that audiovisual materials selected for student instruction be age—appropriate. The evidence definitively establishes that the nude and sexually explicit images and narrative were not age— appropriate for the students enrolled in the class. The students who testified at the final hearing were 15— and 16—years—old. Pursuant to the MPAA ratings, which have been incorporated into school board policy 6100, audiovisual materials depicting sexually—oriented nudity——such as that depicted in multiple images in the video——would warrant an R—rating, indicating that they are inappropriate for viewing by children younger than 17 years old. Respondent's conduct also violated policy 6100(2)(b). She did not personally preview the video depicting the nude images that she showed in her class on August 23, 2018, and the video was neither part of Western's school audiovisual collection nor reviewed or recommended in professional literature. Additionally, Respondent's conduct violated policy 6100(3)(a), because she did not obtain prior approval from Arrojo or her department head before showing the video containing the nude images to her classes. Respondent's conduct also violated policy 6100(3)(c), because she did not preview, in its entirety, the video containing the nude images before she showed it to her students. Consequently, she did not pay due attention to assure that content was consistent with the maturity level of the students in her class. Violation of School Board Policy 4008 It is found, as a matter of ultimate fact, that Respondent's conduct violated school board policy 4008. Specifically, as discussed above, Respondent's conduct violated several provisions of rule 6A—10.081, and, thus, violated policy 4008(B)(1). Respondent also violated policy 4008(B)(1) by failing to effectively use the materials provided by the District or State in her class instruction on August 23, 2018. Although she could have chosen from the 460 units of material available on the CPALMS website——all of which were State—approved for use in Creative Photography I——she instead chose to show a video that that she had not previewed, that was not part of Western's audiovisual collection, and that had not been approved for instructional use by Arrojo or his designee. In doing so, she failed to employ sound teaching practices and methods. Respondent violated the directive in policy 4008(B)(3) to infuse responsibility in the classroom, by failing to adequately prepare for her class, and, consequently, showing nude, sexually explicit images that were inappropriate for her students to view. Because it is determined that Respondent violated provisions of rules 6A—5.056 and 6A—10.081, and school board policy 6100, it is found that she also violated school board policy 4008(B)(8).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Broward County School Board, enter a final order determining that just cause exists to suspend Respondent, Brenda Joyce Fischer, from her employment as a teacher for three days, without pay. DONE AND ENTERED this 21st day of January, 2020, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 21st day of January, 2020.
Findings Of Fact Ethics Complaint 14-232 On December 4, 2014, the Commission received a complaint against Charles Ericksen, Jr. (“Ericksen”), filed by Weeks, which alleged that Ericksen violated Florida’s election laws, the Government-in-the-Sunshine Law (“Sunshine Law”), and Florida’s Code of Ethics for Public Officers and Employees (the “Ethics Code”). Specific allegations in the complaint referenced a “whispered” conversation between County Attorney Hadeed and Ericksen, who was both a Flagler County Commissioner and an alternate Flagler County Canvassing Board (“Canvassing Board”) member at the time, outside of a Canvassing Board meeting. The complaint alleged: The actions and behaviors of some county commissioners and their staff demonstrate some have used their position for their personal gain and for the personal gain of their co-commissioners and employers. Such activities as described herein could allow voters to also believe some persons who are privy to information, change the outcome of elections when information is prematurely revealed. The public should be able to trust those who are responsible for canvassing our elections. Because the county attorney and county commissioners remain hushed on behavior that has been identified, it is unknown what else may have transpired that is unknown, and if such occurrences will happen again knowing they will be kept hidden and unaddressed. It is also unknown how many other persons the county attorney Al Hadeed and county commissioners have told about such incidents that give the public opinion that the Supervisor of Elections condones this type of activity, and such activity is common. It is believed candidates may receive support when it is known if they are elected and serve on the canvassing board that such occurrences will continue to take place to manipulate elections. The complaint also alleged that: On October 17th, 2014, it was requested that alternate canvassing board member Charles Ericksen Jr. step down as an alternate canvassing board member because it became known he contributed $50 to the re-election campaign of county commissioner Frank Meeker and in doing so, could allow the appearance of impropriety. However, he refused to do so at that time, and he failed to reveal he also attended a fund raising event for candidate, fellow County Commissioner Frank Meeker. It was not known by the supervisor of elections when Commissioner Ericksen was asked to step down from the canvassing board on October 17th, 2014, that he attended a fundraiser for candidate Meeker, which would have in itself disqualified him from serving as a canvassing board as an alternate. Charles Ericksen Jr. should have been transparent and forthcoming with his involvement in Commissioner Frank Meeker's re-election campaign, and he should not have served on the canvassing board when he wasn't eligible. He also should have relied on his training materials provided to him at the state workshop he attended, which it appears he failed to do. County attorney Hadeed should have advised this county commissioner he was not eligible to serve on the canvassing board and instead he stated financially contributing to a candidate's campaign docs not disqualify a canvassing board member from serving. Even after that was stated, county attorney Hadeed did not encourage commissioner [sic] Ericksen to step down to avoid the appearance of impropriety. The complaint further alleged: Therefore, it is believed they knowingly and willingly violated the provisions of the law. In fact, Commissioner Charles Ericksen Jr. was asked to step down from the canvassing board because he contributed S50 to the campaign of candidate Frank Meeker. Neither Charles Ericksen Jr. nor anyone else revealed the fact that he also attended a fund raising event; the supervisor of elections revealed that fact at a later canvassing board meeting. And: Though Charles Ericksen Jr. refused to step down as an alternate from the county canvassing board during the scheduled October 17, 2014 canvassing board meeting when it was requested that he do so, he did resign as alternate canvassing board member at the October 20, 2014 Board of County Commission meeting. The complaint was reviewed by the Executive Director of the Commission who found the complaint to be legally sufficient to warrant investigation: The complaint alleges that [Ericksen] engaged in a “whispering” exchange at a canvassing board meeting or otherwise was involved in discussions which may not have been in compliance with the Sunshine Law, that he had an unlawful connection as a canvassing board member to a candidate in the 2014 election, that the County Attorney may have been placed as attorney for the canvassing board, and that he was involved in other or related conduct, and that this may have been for the purpose of benefiting particular candidates or others. This indicates possible violation of Section 112.313(6), Florida Statutes. As a result, the complaint was determined to be legally sufficient and the investigative staff of the Commission was directed to “conduct a preliminary investigation of this complaint for a probable cause determination of whether [Ericksen] has violated section 112.313(6), Florida Statutes, as set forth above.” The Commission’s Investigation The complaint was investigated by Commission Investigator K. Travis Wade. On February 19, 2016, the Commission issued its Report of Investigation, which found, as follows: Florida law provides that a county canvassing board shall be comprised of the Supervisor of Elections, a County Court Judge, and the Chair of the County Commission. Additionally, an alternate member must be appointed by the Chair of the County Commission. The Canvassing Board for the 2014 Election was made up of Judge Melissa Moore-Stens, County Commission Chairman George Hanns (“Commissioner Hanns”), and then-Supervisor of Elections Weeks. Initially, Ericksen was the alternate member of the Canvassing Board. Minutes from the October 20, 2014 Flagler County Commission (“County Commission”) meeting indicate that during the “Commission Reports/Comments” portion of the meeting there was a discussion regarding who had the authority to appoint the Canvassing Board attorney, but no official action was taken at that time. The only members of the Canvassing Board present at the October 20, 2014 meeting of the County Commission were Commissioner Hanns and Ericksen. Weeks claimed that Ericksen refused to resign his position as an alternate member of the Canvassing Board at its October 17, 2014 meeting when it was discovered that he contributed to Meeker's reelection campaign. Minutes from the October 17, 2014 Canvassing Board meeting reflect that Ericksen did not attend that meeting. Minutes from the October 20, 2014 County Commission meeting reflect a discussion regarding Ericksen’s contribution to Meeker’s campaign and that Ericksen resigned as an alternate member of the Canvassing Board at that time. The Commission then voted to appoint Commissioner Barbara Revels as the alternate Canvassing Board member. All discussions by the County Commission regarding the Flagler County Canvassing Board took place during the “Commissioner Reports/Comments” or “Commission Action” portion of duly-noticed County Commission meetings. When asked about her allegation that Ericksen was involved in other or related conduct, apparently for the benefit of particular candidates or others, Weeks indicated that she had no information regarding that allegation. Commission on Ethics Advocate’s Recommendation On March 7, 2016, Commission Advocate Elizabeth L. Miller recommended that there was “no probable cause” to believe that Ericksen violated section 112.313(6), by participating in discussions which may have been in violation of the Sunshine Law or other related conduct to place the County Attorney as the attorney for the Canvassing Board against the wishes of the Supervisor of Elections, by having an unlawful connection as a Canvassing Board member to a candidate during the election, or by participating in other or related conduct for the benefit of particular candidates or others. On April 20, 2016, the Commission issued its Public Report dismissing Weeks’ complaint against Ericksen for lack of probable cause. Weeks’ Knowledge of the Falsity of Her Sworn Allegations Weeks filed a sworn complaint against Ericksen. When signing the complaint, Weeks executed an oath that “the facts set forth in the complaint were true and correct ” When she filed her complaint against Ericksen, Weeks had access to the video of the County Commission meeting of September 15, 2014, posted on the County’s website and the published minutes of that meeting, also available online or by request. Similarly, Weeks had access to the minutes of the Canvassing Board of which she was a member. Weeks was present at both the September 12, 2014 and the October 17, 2014 meetings of the Canvassing Board. Video of the 2014 meetings of the County Commission are archived for public viewing on the Flagler County website. Minutes of all County Commission meetings are public record available to the public on the Flagler Clerk of Court’s website and upon request. Weeks is familiar with the process of obtaining minutes of County Commission meetings by request as evidenced by her public record requests made during the pendency of this proceeding before the Division. Neither the posted video nor the minutes of the September 15, 2014 meeting of the County Commission indicate that any action was taken by consensus vote or by any other vote regarding who had the authority to appoint the attorney for the Canvassing Board. No vote was taken by the County Commission to designate the County Attorney as the attorney for the Canvassing Board. To the contrary, the County Commission determined that it was a matter for the Canvassing Board to select its own attorney. Contrary to Weeks’ allegation that Ericksen refused to resign his position as an alternate member of the Canvassing Board at its October 17, 2014 meeting, the official minutes of that meeting indicate that Ericksen was not even present at that meeting. When asked by the Commission’s investigator whether Ericksen was involved in other or related conduct, for the benefit of particular candidates or others, Weeks indicated that she had no information regarding that allegation. The allegations in Weeks’ complaint against Ericksen, which the Commission found material to investigate, were known by Weeks to be false, or filed by Weeks with reckless disregard for whether they were true or false. Malicious Intent to Injure Reputation Whether the claims against public officials were “motivated by the desire to [impugn character and injure reputation],” is a question of fact. Brown v. State, Comm’n on Ethics, 969 So. 2d 553, 555 (Fla. 1st DCA 2007). The evidence adduced at the hearing established that Weeks worked in concert with other individuals to maliciously injure the reputation of Ericksen by filing complaints containing false allegations material to the Ethics Code with the Commission and other agencies. It is also noteworthy that evidence established that Weeks targeted Ericksen with an animus to humiliate him during a public Canvassing Board meeting at which a sizable number of the public were in attendance. She embarrassed him by loudly instructing one of her female staff members to accompany him to the restroom during the canvassing of the absentee ballots. All action stopped as the public watched Ericksen proceed to the restroom with the staff person walking along side of him. Upon his exit and return to the canvassing activities, all eyes were fixed on his return and Weeks explained to the public that she feared he was going to illegally access ballots in a room further down the hall that contained canvassed ballots in a locked vault. Moreover, one of Weeks’ supporters, John Ruffalo (“Ruffalo”), who had also filed complaints against Flagler County officials, touched absentee ballots just before Weeks had her staff member escort Ericksen to the restroom. Ruffalo was not a member of the Canvassing Board or a Supervisor of Elections staffer. It was unlawful for Ruffalo to handle the ballots, but Weeks did not admonish him although she demonstrably accused Ericksen publicly of possibly having corrupt motives. Ruffalo was a member of a group, formed in 2009 or 2010, formally known as the Ronald Regan Republican Association, informally as the “Triple Rs.” Members of the group included Ruffalo and his wife, Carole Ruffalo; Dennis McDonald; Mark Richter Sr.; Ray Stephens; William McGuire; Bob Hamby; and Dan Bozza. The Triple Rs were trying to influence the outcome of elections in Flagler County. They did this by fielding candidates against incumbent members of the County Commission. In 2014, Richter Sr. ran against and lost to Commissioner McLaughlin. Dennis McDonald ran against, and lost to, Meeker in 2012 and 2014. The Triple Rs also tried to influence the results of the elections by filing complaints against Flagler County officials with multiple agencies. Weeks was not a member of the Triple Rs; however, Dennis McDonald, the de facto spokesperson of the Triple Rs, frequently visited Weeks’ office, particularly in the period between the 2014 primary and general election. Weeks’ interaction with McDonald and other Triple Rs during this timeframe was so pervasive that Weeks’ husband expressed concern to McLaughlin about McDonald’s influence over Weeks. This group filed 25 complaints against Flagler County officials, individually and collectively, including complaints against Ericksen and all other members of the 2014 County Commission, the County Attorney, and the County Administrator. The complaints were filed with the Commission on Ethics, the Florida Elections Commission, The Florida Bar, and the State Attorney for the Seventh Judicial Circuit. Certain members of the Triple Rs formed a limited liability company--the “Flagler Palm Coast Watchdogs”--and also filed suit against the County Commission to block renovation of the old Flagler Hospital into the Sheriff’s Operation Center, alleging violations of the Ethics Code. At least 12 of the complaints filed by the group specifically alleged or referenced the false allegations which are at issue in this case: that members of the County Commission discussed Canvassing Board matters in violation of the Sunshine Law with the goal of manipulating elections, improperly selecting the Canvassing Board attorney, and advancing a hidden agenda. In addition to alleging that Ericksen violated the Ethics Code and Sunshine Law, the complaint filed with the Commission alleged that Ericksen conspired to cover up felonious conduct by a member of the County Commission and that Ericksen violated Florida’s elections laws, specifically chapter 106, Florida Statutes (the “Campaign Finance law”), in several respects. Weeks also filed a complaint against Ericksen with the Florida Elections Commission. That complaint essentially tracks Ethics Complaint 14-232 and includes allegations that Ericksen violated the Ethics Code, the Sunshine Law, and that he conspired to cover up a felony. The Director of the Florida Elections Commission dismissed the complaint as legally insufficient. The allegations that Ericksen discussed Canvassing Board matters in violation of the Sunshine Law, had an unlawful connection to a candidate, improperly selected the Canvassing Board attorney, and engaged in other conduct to benefit particular candidates in the 2014 Election were crucial to the ethics complaint which Weeks filed against Ericksen. These allegations formed the basis for the Commission’s finding that the complaint was legally sufficient and ordered that it be investigated. Had Ericksen been found to have violated Florida law, it would have damaged his reputation in the community. The evidence also shows a concerted effort by Weeks and the Triple Rs to continue filing new complaints after dismissal orders in order to keep Flagler County officials under constant investigation by various agencies, which kept them under a cloud of suspicion with the public. The totality of these findings, including the number of complaints, the collaboration among the various complainants, and the inclusion of similarly false allegations in complaints filed by different complainants with different agencies, lead to no reasonable conclusion other than Ethics Complaint 14-232 was filed with a “malicious intent” to injure the reputation of Ericksen and create political gain for the Triple Rs and Weeks. The totality of these findings constitutes clear and convincing evidence that Weeks’ complaint was filed with knowledge that, or with a conscious intent to ignore whether, it contained one or more false allegations of fact material to a violation of the Ethics Code. The totality of these findings constitutes clear and convincing evidence that Weeks showed “reckless disregard” for whether her sworn complaint contained false allegations of fact material to a violation of the Ethics Code. The totality of these findings constitutes clear and convincing evidence that the true motivation behind the underlying complaint was the political damage the complaint would cause Ericksen, with the corresponding benefit to the Triple Rs and Weeks, rather than any effort to expose any wrongdoing by Ericksen. Attorneys’ Fees and Costs Upon receipt and review of the complaints filed against Ericksen and others in late 2014, Flagler County informed its liability insurance carrier and requested that counsel experienced in ethics and elections law be retained to defend against those complaints. At the specific request of the County, Mark Herron of the Messer Caparello law firm was retained to defend these complaints. Mr. Herron is an experienced lawyer whose practice focuses almost exclusively on ethics and elections related matters. Mr. Herron was retained by Flagler County on the understanding that the Messer Caparello firm would be compensated by the County’s liability insurance carrier at a rate of $180 per hour and that the County would make up the difference between the $180 per hour that the insurance carrier was willing to pay and the reasonable hourly rate. The rate of $180 per hour paid by the County’s liability insurance carrier to the Messer Caparello firm is an unreasonably low hourly rate for an experienced practitioner in ethics and election matters. Expert testimony adduced at the hearing indicated that a reasonable hourly rate would range from $250 to $450 per hour. Accordingly, a reasonable hourly rate to compensate the Messer Caparello firm in this proceeding is $350 per hour. The total hours spent on this case by Messer Caparello attorneys is reasonable. The billable hourly records of the Messer Caparello law firm through May 14, 2017, indicate that a total of 103.39 hours were spent in defending the underlying complaint filed with the Commission and in seeking costs and fees in this proceeding. The record remained open for submission of Messer Caparello costs and attorneys’ fees records after May 14, 2017, through the date of submission of the Proposed Recommended Order. These additional records of the Messer Caparello law firm indicate that a total of 49.93 hours were spent in seeking costs and fees for that defense at the formal hearing and in preparing the Proposed Recommended Order. The total hours spent by the Messer Caparello law firm in defense of the Complaint against Petitioner, and in seeking costs and fees for that defense, is 153.32. The total hours spent on this case by the Messer Caparello law firm is reasonable. Costs of $1,814.12 incurred by the Messer Caparello law firm through May 14, 2017, are reasonable. Costs of $957.44 incurred by the Messer Caparello law firm after May 14, 2017, are reasonable. The total hours spent on this case by the Flagler County Attorney’s Office is reasonable. Time records of the Flagler County Attorney’s Office through May 15, 2017, indicate that a total of 12.40 hours for attorney time were spent in assisting in the defense of the underlying complaint with the Commission and in seeking costs and fees in this proceeding. Time records of the Flagler County Attorney’s Office through May 15, 2017, indicate that a total of 24.75 hours for paralegal time were spent in assisting in the defense of the underlying complaint filed with the Commission and in seeking costs and fees in this proceeding. The record remained open for submission of costs and attorneys’ fees records after May 15, 2017, through the date of submission of the Proposed Recommended Order. These additional records of the Flagler County Attorney’s Office indicate that a total of 6.60 hours of attorney time, and that a total of 14.30 hours of paralegal time were spent in seeking costs and fees for that defense at the formal hearing in this cause and in preparation and submission of the Proposed Recommended Order. Costs of $168.93 incurred by the Flagler County Attorney’s Office through May 15, 2017, are reasonable. Costs of $292.99 incurred by the Flagler County Attorney’s Office after May 15, 2017, are reasonable. A reasonable hourly rate for the time of Flagler County Attorney in connection with this matter is $325 per hour. A reasonable hourly rate for the time of the paralegal in the Flagler County Attorney’s Office in connection with this matter is $150 per hour. Based on the findings herein, Ericksen has established that he incurred: (i) reasonable costs in the amount of $2,731.69, and reasonable attorneys’ fees in the amount of $53,662.00 for the services of the Messer Caparello law firm in defending against the underlying complaint filed with the Commission and in seeking costs and fees in this proceeding; and (ii) reasonable costs in the amount of $461.92 and attorneys’ fees in the amount of $12,032.50 for the services of the Flagler County Attorney’s Office in defending against the underlying complaint filed with the Commission and in seeking costs and fees in this proceeding.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order granting Ericksen’s Petition for Costs and Attorneys’ Fees relating to Complaint 14-230 in the total amount of $68,888.11. DONE AND ENTERED this 21st day of September, 2017, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 21st day of September, 2017.
The Issue The issue for determination is whether Respondent violated section 1012.795(1)(j), Florida Statutes (2015),1/ and Florida Administrative Code Rules 6A-10.081(5)(a), (h), and (i); and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is responsible for investigating and prosecuting allegations of misconduct against individuals holding educator certificates. Mr. Kellen is currently licensed as a teacher in Florida and has been issued Florida educator certificate 1007357. Mr. Kellen's certificate covers the areas of Educational Leadership, English, Pre-Kindergarten/Primary Education, Reading, and Exceptional Student Education. Mr. Kellen's certificate expires on June 30, 2020. Prior to obtaining his Florida educator certificate, Mr. Kellen was employed as a teacher in the State of Indiana from 1997 to 2005. In 2006, Mr. Kellen moved to Florida and became a reading teacher in Collier County from 2006 to 2007. From 2007 to 2008, he was a middle school teacher at Six Mile Charter Academy with Charter School USA. From 2009 to 2011, Mr. Kellen was employed as a substitute teacher in Lee County, Florida. From January through March 2012, Mr. Kellen was a paraprofessional in Monroe County, Florida. In August 2012, Mr. Kellen was employed as a teacher at Knox Academy in Lee County, Florida. Three months later, in November 2012, Knox Academy terminated his employment. Brad Buckowich was the principal at Knox Academy. Mr. Buckowich both hired and fired Mr. Kellen. In July 2013, Mr. Kellen applied for a teaching position at James Stevens International Academy ("James Stevens Academy"), a school within the School District. Alice Barfield, principal at James Stevens Academy, interviewed Mr. Kellen for a reading teacher position. Shortly, thereafter, she offered him the position. As part of the hiring process, the School District required Mr. Kellen to submit references from previous employers. On July 31, 2013, Mr. Kellen met with Georgianna McDaniel, the Executive Director of Personnel Services for the School District, to discuss the School District hiring procedures. Ms. McDaniel explained to Mr. Kellen that School District policy required the hiring school to contact the candidate's previous employer before the School District would hire him. Following the July 31 meeting, Mr. Kellen brought to Ms. Barfield at James Stevens Academy a recommendation letter from Knox Academy dated July 8, 2013, and signed by Brad Buckowich. The recommendation letter was a photocopy. However, Mr. Kellen represented throughout the hiring process (and maintained during the final hearing) that Mr. Buckowich prepared and signed the original recommendation letter on behalf of Knox Academy.2/ The photocopied recommendation letter which Mr. Kellen provided to Ms. Barfield included a Knox Academy letterhead. The letter also bore the signature of Brad Buckowich at the bottom. Upon review of the recommendation letter, however, Ms. Barfield noticed that the signature seemed odd. The top of the letter "B" in the name "Brad" and "Buckowich" was cut off. The signature was also slightly slanted. Thereafter, Ms. Barfield contacted Mr. Buckowich to personally inquire about Mr. Kellen's employment with Knox Academy, obtain his verbal recommendation as Mr. Kellen's last employer, and discuss the recommendation letter. When Ms. Barfield's secretary reached Mr. Buckowich by phone, however, he declined to recommend Mr. Kellen for the position. Furthermore, he denied that he had ever written a recommendation letter for Mr. Kellen. Ms. Barfield then faxed the recommendation letter to Mr. Buckowich. After reviewing the letter, Mr. Buckowich repeated to Ms. Barfield that he did not draft or sign the letter. Ms. Barfield faxed a copy of the recommendation letter to Ms. McDaniel at the School District office on August 2, 2013. On August 5, 2013, Mr. Kellen visited James Stevens Academy. He was told there was a problem with his reference letter. Later that morning, Mr. Kellen met again with Ms. McDaniel at the School District office. Ms. McDaniel informed Mr. Kellen that Mr. Buckowich said he did not prepare or sign the recommendation letter. Mr. Kellen disclosed that he had actually prepared the letter for Mr. Buckowich's signature. However, Mr. Kellen insisted that Mr. Buckowich signed the letter he submitted. In the afternoon of August 5, 2013, Mr. Kellen wrote an e-mail addressed to Mr. Buckowich. In the e-mail, Mr. Kellen asked Mr. Buckowich to "please fill out this form as you promised in March, that you would give me a good recommendation based on my working as Asst. Principal/Instructor." Mr. Kellen added, "[t]o avoid any mis-communication, email the form signed to me at this email and to Mrs[.] McDaniel in HR." On August 9, 2013, Mr. Buckowich met with Ms. McDaniel to discuss and review the recommendation letter. Mr. Buckowich observed that the signature on the photocopied letter was, in fact, a copy of his signature. However, Mr. Buckowich reiterated that he did not draft or sign the recommendation letter. Further, Mr. Buckowich produced for Ms. McDaniel another document he signed in October 2012, which he believed was the source of the signature that was "cut and pasted" onto the recommendation letter Mr. Kellen presented to Ms. Barfield. Mr. Buckowich had provided this document to Knox Academy employees, including Mr. Kellen. Mr. Buckowich surmised that Mr. Kellen, likely by using a computer Word or PDF program, cut his signature from the October 2012 document and pasted it onto the recommendation letter. Based on her meeting with Mr. Buckowich, Ms. McDaniel concluded that the recommendation letter Mr. Kellen submitted to support his application for the teaching position was fraudulent. Ms. McDaniel determined that the School District would not hire Mr. Kellen. At the final hearing, Mr. Buckowich expanded on why the recommendation letter should not be considered genuine. Mr. Buckowich stated that the recommendation letter had several formatting and style errors that he would not have used or made. These mistakes included: he would have adjusted the date to the right margin, not centered it under the Knox Academy seal; he would have placed the subject line flush with the left margin, not indented it; and he would not have capitalized every word of the addressee line. As far as the letter's content, Mr. Buckowich stated that he would not have used the words or phrases written in the letter. He would not have identified Mr. Kellen as the "Assistant Principal/Instructional Leader." Neither would he have used the term "RTI strategies." Finally, regarding the signature, other than not actually signing the recommendation letter, Mr. Buckowich commented that the signature looked as if it had been cut and pasted, as if from another PDF or scanned document, onto this letter. Aside from this fact, Mr. Buckowich testified that his actual signature block reads "Brad J. Buckowich, Principal/Director, Knox Academy," not "Mr. Brad Buckowich, Founder/Principal, Knox Academy," as written on the letter. To conclude, Mr. Buckowich commented that if he would have actually drafted a recommendation letter for Mr. Kellen, he would have sent an original letter with a Knox Academy color logo and an original signature, not a photocopy. At the final hearing, Mr. Kellen adamantly asserted that the recommendation letter with Mr. Buckowich's signature was genuine. Mr. Kellen stated that he obtained the letter from his former attorney. His attorney had received it from Mr. Buckowich and then forwarded it to Mr. Kellen. The Florida Education Practices Commission is the state agency charged with the certification and regulation of Florida educators. See Chapter 1012, Fla. Stat. Prior to this current matter, the Education Practices Commission entered two, separate final orders against Mr. Kellen sanctioning his educator certificate for misconduct, one dated December 4, 2006, and one dated October 23, 2008. Based on the evidence and testimony presented during the final hearing, Petitioner demonstrated, by clear and convincing evidence, that Mr. Kellen submitted a fraudulent recommendation letter to the School District as part of his application for employment in a teaching position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding Respondent, Irwin Kellen, in violation of section 1012.795(1)(j) and rules 6A-10.081(5)(a), (h), and (i). It is further RECOMMENDED that Petitioner revoke Respondent's certificate for a period of time deemed appropriate by the Education Practices Commission. DONE AND ENTERED this 27th day of August, 2015, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 27th day of August, 2015.
The Issue Whether Respondent, Working America, discriminated against Petitioner, Frances B. Schlein, based on her religion, race, and/or nationality (Jewish/Hebrew) when it did not hire her, in violation of the Florida Civil Rights Act (FCRA).
Findings Of Fact Ms. Schlein applied for the position of canvasser in July 2016 with Working America. Ms. Schlein’s religion is Judaism, but she also considers being Jewish a part of her national origin and race.2/ Working America is a non-profit organization focusing on economic issues such as jobs, education, healthcare, retirement security, and corporate accountability. It is an “employer” as defined by section 760.02(7), Florida Statutes (2016). In July 2016, Angel Darcourt served as a field director for Working America in Orlando, Florida. As a field director, Ms. Darcourt had authority to hire employees for Working America. Working America originally hired Ms. Darcourt for the canvasser position——the same job Petitioner had applied for. Although not offered as an exhibit, Ms. Darcourt testified Working America has an equal employment opportunity (EEO) policy, which “is against discrimination.” Working America’s EEO policy encourages people of all backgrounds, including women, “people of color,” and people who are LGBTQ (lesbian, gay, bisexual, transgender, or queer) to apply for positions. This EEO policy is included in all advertisements. Job Duties of a Canvasser Working America is a canvassing organization which conducts community outreach. In July 2016, Working America was hiring employees to canvass on behalf of the 2016 Democratic presidential candidate. This involved going to door-to-door to engage people in conversations about what issues they were concerned about in the presidential election, and then sharing information about the Working America’s candidate’s views on that issue. In the Orlando area, Working America was seeking to reach out and spread information in neighborhoods on the Democratic candidate’s views on immigration policy. As explained by Ms. Darcourt, this was a “hot button” issue in the 2016 presidential campaign given the Republican candidate’s promise to build a wall to prevent illegal immigration across the United States-Mexico border. The job of “canvasser” for Working America was to interact with the public, inform them of a candidate’s position, and leave a positive impression of that candidate in hopes to garner support and a vote in the upcoming election. Canvassers work without direct supervision. Therefore, the ability to speak without assistance about political issues in a tactful and non-offensive way is a basic qualification for the position. In 2016, Working America was also trying to “spread the message” regarding the Democratic presidential candidate, so it was imperative Working America canvassers use the right talking points and terminology when discussing the candidate’s position on various issues. The Hiring Process Applicants for the canvasser position could indicate interest in working for Working America by clicking on an electronic link via on-line advertisements. An interested candidate could enter his or her information, and then would be contacted by phone by a Working America employee. Alternatively, an applicant could call or apply to Working America directly. Once Working America made telephone contact with the applicant, it would screen the applicant to ensure he or she was comfortable going door-to-door, could work the necessary hours, and was in support of the Democratic presidential candidate. If the applicant was approved after an initial phone screening, Working America would bring the applicant in for a face-to-face interview with a field director. The field director then interviewed the candidate to determine if he or she would be good for the canvassing position. If he or she thought the candidate was acceptable, the applicant would be offered a background check form, before a second interview. The second interview consisted of shadowing a field manager, and ultimately participating in door-to-door canvassing. The field manager would then make a recommendation regarding the candidate to a field director. The field director would make the ultimate decision to hire. The Interview Ms. Schlein visited the Orlando office of Working America with two other applicants: Robert Velazquez and Robert Diaz. It is unclear if any of these three individuals had gone through the initial phone screening before coming to Working America’s office. Regardless, upon arrival to the office, the three were greeted by Ms. Darcourt and a conversation ensued in both Spanish and English. Ms. Darcourt asked the trio where they were from. Mr. Velazquez indicated he was from Puerto Rico; Mr. Diaz said he was from Cuba; and Ms. Schlein said she was from Bronx, New York. Ms. Darcourt then gave all three an application to fill out, and proceeded to interview them separately. Ms. Darcourt’s interview with Ms. Schlein did not go well. At some point the discussion turned to immigration policy. Ms. Darcourt indicated she was half-Cuban and half- Mexican. Ms. Schlein responded that her family were also immigrants, but emphasized the fact that her family immigrated to the United States legally. Ms. Schlein went on to use the word “illegals” to describe Mexican immigrants. Specifically, Ms. Schlein stated she did not like the Republican presidential candidate, but that she “agreed with him on the illegals.” She also indicated she understood Cubans needed asylum, but did not understand why Mexicans could not come here legally. Ms. Darcourt immediately informed Ms. Schlein that using the word “illegals” to describe humans was inappropriate. Either Ms. Darcourt suggested Ms. Schlein do some research on Mexican immigration, or Ms. Schlein indicated she would do some research on the issue. Regardless, both parties had negative reactions to the conversation. Ms. Darcourt found Ms. Schlein’s use of the word “illegals” personally offensive. In turn, Ms. Schlein felt anger from Ms. Darcourt during the interview. Ms. Schlein’s conduct at the interview raised concerns with Ms. Darcourt of how she might act if hired and was working unsupervised. Ms. Darcourt believed this kind of language, or agreeing with the Republican candidate’s views on immigration during canvassing, would be counterproductive to garnering support for the Democratic candidate promoted by Working America. Ms. Darcourt was also concerned that Ms. Schlein’s language and position on immigration policy would offend some of the other Working America employees, who were immigrants or whose families had recently immigrated to the United States. Ms. Darcourt’s concerns are validated by Ms. Schlein’s demeanor and testimony at the hearing. Although Ms. Schlein may not have intended to be offensive, Ms. Schlein’s statements regarding Mexicans, “gay,” “black,” and other minorities lead to the conclusion, at the very least, that she is unaware these statements may be perceived as insulting. Ms. Darcourt made the decision not to give Ms. Schlein a second interview. At the end of the interview, she informed Ms. Schlein she would call her if she thought she would be a good fit. Ms. Darcourt never called Ms. Schlein, even though, according to Mr. Velazquez, who was hired and began working for Working America, it was still looking for canvassers. A few weeks later, Ms. Schlein contacted Ms. Darcourt to let her know she had researched the immigration issue. Although there is a dispute about the language used by Ms. Schlein, there is no dispute Ms. Schlein conveyed that she believed Ms. Darcourt was unqualified to be in a management position, and questioned whether Working America employees who were from other countries or ethnicities had been properly vetted. Ms. Schlein admits Ms. Darcourt never asked about her religion, nor was there any discussion at any time about the fact she was Jewish. As evidence of discrimination, Ms. Schlein claims Ms. Darcourt gave her “dirty looks” and “the silent treatment,” while she was friendly to other employees. Even if true, there is no evidence Ms. Darcourt’s conduct was based on the fact Ms. Schlein is Jewish. Mr. Velazquez also testified Ms. Darcourt was “not friendly” toward Ms. Schlein, but was “friendly” toward him and Mr. Diaz. His testimony, however, was conclusory and unreliable. He could not provide any details of specific conduct and stated his “memory’s not too good.” Additionally, Mr. Velazquez admitted on cross-examination he is in a personal relationship and lives with Ms. Schlein. More importantly, his conclusion about Ms. Darcourt’s feelings toward Ms. Schlein was based on a single interaction he witnessed when they initially arrived at the Working America office. He was not present during the interview. There was also testimony about an employee known only as Layla, who was allegedly mistreated by the Working America management. It is unclear when or what position Layla held at Working America, but she was described as being Jewish, from a Muslim country, who spoke Spanish. Ms. Schlein admitted she had never met this employee and had only spoken with her on the phone; Mr. Velazquez’s knowledge regarding this employee was entirely secondhand. The undersigned cannot base any finding of fact based on this testimony as it is anecdotal and entirely based on hearsay. See § 120.57(1)(c), Fla. Stat.3/ The undersigned finds Working America did not hire Ms. Schlein based on her poor interview, and not based on the fact she was Jewish.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Frances B. Schlein’s Petition for Relief. DONE AND ENTERED this 21st day of June, 2019, in Tallahassee, Leon County, Florida. S HETAL DESAI 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 21st day of June, 2019.
The Issue The issue in this case is whether Respondent, Pro Quality Enterprises, LLC (“Pro Quality”), should have a penalty assessed against it by Petitioner, Department of Financial Services, Division of Workers’ Compensation (the “Department”), for failure to have workers’ compensation insurance in place, and, if so, the amount of such penalty or assessment.
Findings Of Fact The Department is the State agency responsible for, inter alia, insuring that all businesses operating in this State have workers’ compensation insurance coverage. Pro Quality is a duly-formed and validly-existing limited liability company in the State of Florida. The company was formed on April 23, 2012, for the purpose of conducting any and all lawful business. At the time of its formation, Gabor Albok and Jaco Kotze were the named managers of the company. Mr. Albok was also the registered agent. Mr. Albok created the company when he first came to the United States from his native Hungary. He envisioned using the entity for some business purpose, i.e., perhaps shipping automobiles back to Europe. When that venture did not pan out, Mr. Albok came up with the idea of being a referral source for businesses engaged in the construction industry, e.g., painters, carpenters, lawn services, roofers, etc. On January 14, 2014, Jose Bird, a compliance investigator with the Department, conducted an investigation at 47 Lake Walk, Palm Coast, Florida. Upon arrival at the site at around 11:30 a.m., Mr. Bird saw a person (later identified as Mr. Albok) “doing touch-up work” with a paint brush and then cleaning the brush. Mr. Bird approached Mr. Albok, identified himself as an investigator for the Department, and asked Mr. Albok to identify himself. Mr. Albok complied with the request, including the name of his company, Pro Quality. Mr. Albok did not attempt to hide from the investigator or avoid his questions; he was fully cooperative at all times. Mr. Bird then asked Mr. Albok to provide proof of identity, so Mr. Albok went to his car to retrieve his wallet. At that time he realized he had left his wallet somewhere, so he hurriedly left in his car to return to the 7-11 store he had visited that morning to see if they had his wallet. Meanwhile, Mr. Bird used the information he had received from Mr. Albok to begin his investigation as to whether Pro Quality had workers’ compensation insurance coverage required by someone in the painting business. He found that it did not have such coverage after checking the Department’s compliance and coverage automated system. Mr. Bird, operating under the assumption that Mr. Albok was a painter, provided his findings to his supervisor and was directed to issue an SWO and request for business records. He prepared the documents and they were sent via certified mail to Mr. Albok at his address of record. Mr. Albok responded by providing such business records as he could locate, but maintained that he did not have workers’ compensation insurance coverage because he was not engaged in an activity that required such insurance. Specifically, Mr. Albok explained that he was not a painter, had never been a painter, had never employed a painter in his business, and could not understand why the Department thought otherwise. Mr. Albok was not engaged in any construction-related business. Pro Quality was a company that attempted to help persons building a new home to find professionals who might assist in the development and maintenance of the new home. Pro Quality would then get a referral fee from the companies if they were hired. He was not an employee of any of the companies and performed no services for them nor were the professionals he referred employees of Pro Quality. At the time Mr. Bird arrived at the work site in Palm Coast, Mr. Albok was talking to a painter at the house who he had referred to the homeowner. He touched up a spot on a windowsill and was helping the painter clean his brushes as they talked. He had wiped a brush on the windowsill and was bending down to spray it off as he talked. He had not been painting and the painter was not under his employ, nor was he under the painter’s employ. Mr. Albok’s testimony was credible and is accepted as true. The Department did not provide any evidence to refute Mr. Albok’s assertions in this matter. Mr. Bird’s short observation and minimal inquiry to Mr. Albok was insufficient to establish that Mr. Albok was a painter working at the job site. The Department nonetheless found that Pro Quality was engaged in the business of painting, issued a penalty assessment based on that presumption, and calculated a penalty of $20,727.38, later reduced to $15,215.68. Based upon the determination that Mr. Albok and Pro Quality were not engaged in the business of painting (or other work requiring workers’ compensation insurance), there is no basis for calculating a penalty assessment or imposing a penalty against the company.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered rescinding the Stop-Work Order entered against Pro Quality Enterprises, LLC, and all penalties assessed therefrom. DONE AND ENTERED this 4th day of August, 2016, 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 4th day of August, 2016.
The Issue Whether Respondent, Ullyses Wynn, violated Pinellas County School Board policies related to unsatisfactory performance, misconduct, and insubordination and, if so, whether the violations constitute cause for his termination as a plant operator.
Findings Of Fact Beginning July 5, 1994, and at all times pertinent to this proceeding, Respondent, Ullyses Wynn (Respondent), was employed by Petitioner, Pinellas County School Board (School Board), as a plant operator at Gibbs High School. As a plant operator, at Gibbs High School, Respondent was responsible for cleaning designated areas of the school, including Buildings One and Four. In addition to cleaning these buildings, Respondent's duties included helping other crew members on his shift to clean the cafeteria. Respondent was also required to participate in “gang cleaning.” Gang cleaning is a term used when one crew member is absent and the crew members on duty join together to complete the duties of the absent crew member. At all times relevant hereto, Mark Sprecher was the Head Plant Operator at Gibbs High School. In that capacity, Mr. Sprecher was responsible for assigning and supervising the work of all plant operators and the night foreman. When the regularly assigned night foreman was not on duty, Mr. Sprecher assigned or designated the plant operator who would perform those tasks in his or her absence. 4. At all times relevant hereto, Freddie Fussell was the night foreman at Gibbs High School and was Respondent’s direct supervisor. At all times relevant hereto, Wayne Nundy was the assistant principal at Gibbs High School. In that capacity, Mr. Nundy’s responsibilities included supervising maintenance of the physical facility as well as the plant operators. In order to evaluate the job performance of plant operators, Mr. Sprecher regularly completed quality control sheets after inspecting areas cleaned by plant operators. The form, issued at the district level, is an evaluative tool designed to record areas of satisfactory as well as unsatisfactory performance. When Respondent initially began working at Gibbs High School, problems related to Respondent’s work surfaced, but were not documented. However, after about six months, it soon became evident to Mr. Sprecher that merely talking to Respondent about the problems related to his job performance was not effective and that formal disciplinary action would need to be taken. On May 25, 1995, Mr. Sprecher issued a reprimand to Respondent for excessive absences. Between January 1995 and May 1995, Respondent missed five and one-half days from work. This absentee rate is considered excessive. To the extent that Respondent is absent from work, his areas must be cleaned by other crew members, thereby reducing the amount of time that they can spend cleaning their designated areas. Due to his excessive absences, Mr. Sprecher met with Respondent for a summary conference and issued the reprimand. On June 1, 1995, a maintenance man replaced some of the ceiling tiles in the Gibbs High School gym. After completing the job, the maintenance man removed the large pieces of old ceiling tile that were on the floor. However, some debris from tile replacement project remained on the gym floor. Later that day, when Mr. Sprecher observed the debris on the gym floor, he directed Respondent to clean up the debris. The next day, while in the gym, Mr. Sprecher noticed that the debris was still on the gym floor, and again directed Respondent to clean it up. Respondent told Mr. Sprecher that he would not clean up the debris because that was not his job, and, in fact, did not clean it up. On January 8, 1996, Respondent left his assigned area during his shift to watch a basketball game in the Gibbs High School gym. When told to return to work by his supervisor, Night Foreman Fussell, Respondent began to argue with Mr. Fussell. The disagreement became so heated that the school resource officer had to intervene. Following this incident, Respondent received a county-level reprimand for poor job performance and insubordination. This letter of reprimand indicated that further problems in these areas may result in further disciplinary action, and that such action "may include suspension or dismissal." On or about March 15, 1996, Mr. Sprecher and Respondent’s direct supervisor, Mr. Fussell, made random inspections of the classrooms to determine if they were cleaned properly. The inspection of classrooms in Respondent’s building revealed that the carpets had not been vacuumed; the pencil sharpeners had not been emptied; and the chalkboards had not been cleaned. These cleaning deficiencies were noted on quality control forms and shared with Respondent during a conference. On or about March 15, 1996, and after the conference, Mr. Sprecher issued a warning letter to Respondent regarding the cleaning deficiencies. During the conference, Respondent did not deny the cited cleaning deficiencies. Rather, Respondent claimed that, because his area was so large, it was impossible for him to clean it during his shift. Thereafter, Mr. Sprecher checked the square footage of Respondent’s area and determined that Respondent’s assigned work area was actually 2800 square feet less than that recommended by the employees' union and the school district. On March 19, 1996, Mr. Nandy, accompanied by Mr. Sprecher, inspected Building One. Mr. Nandy’s observed that Respondent had failed to carry out his assigned cleaning responsibilities. By failing to satisfactorily clean his assigned areas, Respondent had completely disregarded instructions given during the previous conference with Mr. Sprecher and in the warning letter. During the March 19, 1996, inspection of Building One, numerous cleaning deficiencies were found. Specifically, the following cleaning deficiencies were observed in classrooms assigned to Respondent: low dusting not done; pencil sharpeners not emptied; chalkboards not cleaned; chalk trays not cleaned; floor not spot-mopped in room where coffee had spilled; furniture not spot-cleaned; graffiti on walls not removed; and window sills and audio visual screen not dusted. As a result of these cleaning deficiencies and the previous warning issued to Respondent, Mr. Nandy issued a school-level reprimand to Respondent on March 22, 1996, for insubordination and poor job performance. The reprimand stated that should similar problems occur in the future, Respondent might be subjected to further disciplinary action. On September 27, 1996, Mr. Sprecher observed several deficiencies in the second floor boys' bathrooms assigned to Respondent. There were cigarette butts and paper towels on the bathroom floor and urine in the toilets. Although the second floor bathrooms are usually locked and not normally used by students, Respondent was responsible for checking and cleaning his entire assigned work area. Later that day, Mr. Sprecher wrote a note to Respondent pointing out the cleaning deficiencies and indicating that Respondent had not cleaned all of his assigned areas the previous night. October 18, 1996, was designated a “Pro-Ed” day in the Pinellas County School District. On these days, students do not attend school. Because students are not in school, all plant operators work from approximately 9:00 a.m. to 5:30 p.m., and are expected to do more extensive cleaning than can be done on days that students are in school. On the morning of October 18, 1996, Mr. Sprecher accompanied Respondent to Building Four to point out several cleaning deficiencies. As a result of deficiencies observed on that day, Mr. Sprecher directed Respondent to clean the graffiti off the wall and paper towel dispenser in the boys' bathroom; clean the stairs and stair treads; pick up the trash on the floor; and vacuum the carpets. These deficiencies required Respondent’s immediate attention and were all tasks that Respondent should have completed the night before. In response to Mr. Sprecher’s directive, Respondent became argumentative with and enraged at Mr. Sprecher. Respondent yelled at and accused Mr. Sprecher of “picking on" him. On October 18, 1996, after this encounter with Respondent, Mr. Sprecher wrote a Foreman’s Complaint to Mr. Nundy, the assistant principal, regarding cleaning deficiencies in Respondent’s assigned area in Building Four. In the complaint to Assistant Principal Nundy, Mr. Sprecher stated that he found it impossible to talk to, reason with, or give simple directions to Respondent. Mr. Sprecher further stated that he was verbally abused, and given no respect by Respondent. On Monday morning, October 21, 1996, Mr. Sprecher checked the area that had been assigned to Respondent. Upon inspection, Mr. Sprecher found that the cleaning he had directed Respondent to complete on October 18, 1996, had not been done. Also, many of the classrooms in Respondent’s area had not been cleaned. Mr. Sprecher noted these deficiencies on the quality control sheets completed for Respondent’s area. On October 22, 1996, Mr. Sprecher wrote a Foreman’s Complaint to Assistant Principal Nundy stating that the specific items Respondent had been directed to complete on the October 18, 1996, had not been done, Later, on October 22, 1996, Mr. Sprecher and Mr. Fussell met with Respondent and talked with him about his failure to complete the assignments. Respondent offered no reason for his failure to perform his assigned tasks. On November 7, 1996, a Foreman’s Complaint was made to the Gibbs High School principal, Ms. Shorter, indicating that Respondent had been involved in a conflict with one of the plant operators in the cafeteria. This complaint was based on an incident that occurred when the entire twelve-member crew was cleaning the cafeteria. Pursuant to instructions of Foreman Fussell, all crew members were required to simultaneously mop the cafeteria, beginning in the front of the cafeteria and moving to the back. Respondent refused to mop in the same direction as the other plant operators, and insisted on mopping in the opposite direction from the other crew members. When Mr. Sprecher requested that Respondent perform the task as directed by Foreman Fussell, Respondent became upset and threw a cup of water and ice into the air and left the cafeteria. It was Respondent’s responsibility to lock all of the classrooms in Building Four. Nonetheless, on November 7, 1996, a complaint was made by the teacher assigned to Room 406, Building Four, that her classroom, had been left open the night before. Respondent’s failure to secure the room was of particular concern to the teacher because there were several new computers in the classroom. On November 12, 1996, while on duty at Gibbs High School, Respondent became engaged in a heated verbal confrontation with Mr. Willie Jones, another plant operator. The verbal exchange took place in the maintenance shop in the presence of other crew members working the night shift. At one point during the argument, Respondent pulled a box cutter from his pocket and moved toward the table where Mr. Jones was sitting. Upon the advice of another plant operator and in an effort to de-escalate the situation, Mr. Jones left the maintenance shop. As the night foreman, one of Mr. Fussell’s responsibilities was to return golf carts used by the school staff to the maintenance shop and to recharge them for the next day. On the evening of November 19, 1996, while Mr. Fussell was driving one of the golf carts into the maintenance shop, Respondent intentionally stood in the path of the golf cart. After Mr. Fussell asked Respondent to move, Respondent reluctantly moved to the side to let Mr. Fussell pass. However, as Mr. Fussell drove the golf cart past Respondent and into the maintenance shop, Respondent called Mr. Fussell a “mother fucker.” At the time Respondent made this comment to his supervisor, other crew members were in or near the maintenance shop and heard Respondent’s comment. On December 5, 1996, Assistant Principal Nundy received a complaint from a female student that graffiti containing her name had been in the girls' bathroom in Building Four for three weeks. Because Respondent's shift had not begun, Mr. Sprecher enlisted the assistance of a Plant Operator from the day crew to remove the graffiti. The crew member immediately removed the graffiti, using a heavy duty cleaning agent. Later that day, Mr. Nandy had a conference with Respondent regarding the graffiti in the girls' bathroom of Building Four. During the conference, Respondent acknowledged that the graffiti had been on the wall, but said it had been there only two weeks. According to Respondent, he had been unable to remove the graffiti with his cleaning supplies. The cleaning agent used by the day crew member to remove the graffiti from the girls' bathroom was readily available to plant operators who requested it from the night foreman. Respondent never informed Foreman Fussell that there was graffiti in the girls' bathroom in Building Four that Respondent was unable to remove. Also, at no time did Respondent ever request from the foreman a cleaner which might remove the graffiti in the girls' bathroom in Building Four. On the following day, December 6, 1996, Mr. Nundy and Mr. Specher checked the bathrooms in Respondent’s assigned areas and found "gang" graffiti in the other three bathrooms. Mr. Specher cleaned the graffiti from all three bathrooms in about five minutes, using cleaning supplies from Respondent’s custodial closet. On December 17, 1996, at about 6:30 a.m., after opening one of the buildings Respondent was responsible for cleaning, Mr. Sprecher observed obscene graffiti on walls in several different locations. Upon discovering the graffiti, Mr. Sprecher immediately cleaned all the graffiti from the walls. Mr. Sprecher was able to remove all the graffiti from the walls in about fifteen minutes with supplies that he obtained from Respondent’s custodial closet. On December 17, 1996, Mr. Specher wrote a note advising Respondent that earlier that day graffiti was again observed in the area assigned to him; that it was Respondent’s responsibility to remove all graffiti nightly; and that Mr. Sprecher had cleaned graffiti off the wall in fifteen minutes with cleaning supplies from Respondent’s custodial closet. Mr. Sprecher gave the note to Respondent, but Respondent refused to sign the note acknowledging that he received it. On January 7, 1997, Mr. Sprecher and Mr. Fussell had a conference with Respondent regarding his attendance. Respondent had been absent from work twelve days in the preceding months. That number of absences over the time period in question was considered excessive. Respondent was given a written notice regard the excessive absences, but he refused to sign it. On February 13, 1997, Respondent told Mr. Sprecher that he had heard someone walking through his building the night before. Respondent stated that he would not be held responsible for his actions if someone came into his building unannounced. It was later discovered that Mr. Fussell had entered the Respondent’s building to set a timer. Mr. Sprecher was concerned by the statements made by Respondent, and was fearful that Respondent would harm someone who had innocently entered the building for a legitimate reason. Mr. Sprecher wrote a letter to Respondent expressing these concerns. In the letter, Mr. Sprecher also reminded Respondent that he was an adult employee of the Pinellas School Board, and would be held responsible for his actions. The following day Mr. Sprecher and Foreman Fussell met with Respondent, discussed the context of the letter, and gave the letter to Respondent. A day or so after he received the letter discussed in paragraph 32 above, Respondent went to the maintenance shop about 3:15 p.m., and approached Mr. Sprecher. With the letter in hand, Respondent asked Sprecher, “What to you mean by this letter?” Mr. Sprecher told Respondent that he had some place to be at 3:30 p.m. and asked if they could discuss the matter the following day. Respondent never answered the question, but instead yelled at Mr. Sprecher and accused him of lying. While Mr. Sprecher was walking away from Respondent to leave the maintenance shop, Mr. Sprecher told Respondent that he would see him later. Respondent replied, “Damn right, you’ll see me later.” On February 14, 1997, Mr. Sprecher wrote a note to Principal Shorter stating that he could no longer supervise Respondent, and that he believed Respondent was a danger to himself and the crew. On February 27, 1997, Respondent complained to Mr. Sprecher that a co-worker was not fulfilling his responsibilities relative to assisting fellow crew members in cleaning the cafeteria. Mr. Sprecher told Respondent that the co-worker would be observed and cautioned if necessary. Respondent immediately became visibly angry, raised his voice, and accused Mr. Sprecher of not reprimanding the plant operator whom Respondent had accused of not helping to clean the cafeteria. Respondent left the cafeteria and did not return to assist other crew members in completing the cafeteria cleanup. As Respondent left the cafeteria, Respondent yelled to Mr. Sprecher, "Write me up." On March 5, 1997, when a crew member was absent, Mr. Sprecher received a complaint that Respondent was not participating in “gang cleaning.” Night Foreman Fussell confirmed that, in fact, Respondent did not participate in the gang cleaning that night and had not done so on several previous occasions. On May 7, 1997, Mr. Sprecher, Mr. Fussell, and Respondent met to discuss and review the quality control sheets detailing recent deficiencies observed in Building Four. Respondent refused to sign the quality control sheets and left the maintenance shop. After this meeting, Respondent was to assist in cleaning the cafeteria. However, Respondent never reported to the cafeteria that day to assist other crew members in cleaning the cafeteria. On three separate days, during the week of May 19, 1997, Respondent was observed sleeping in the auditorium while a play was being rehearsed. At other times during this week, Respondent was in the auditorium watching the rehearsal. Respondent had no duties in connection with the auditorium, and without exception, these incidents occurred when Respondent was on duty and should have been cleaning his assigned area. During the summer, on the morning of June 11, 1997, Respondent was assigned to thoroughly clean a teacher’s small workroom. Completion of this job should have taken approximately two hours. Two hours after Respondent was left in the workroom to perform this assignment, Mr. Sprecher returned to the workroom to check on Respondent’s progress. Mr. Sprecher found that Respondent not only had failed to complete the cleaning as expected, but had done very little cleaning in the workroom. When questioned on his lack of progress, Respondent became agitated and yelled at Mr. Sprecher and stated that he would not be able to finish cleaning this area in an additional two hours. Mr. Sprecher testified that in his twelve years as a Head Plant Operator, Respondent’s performance was the worst that he has ever observed. The Pinellas County School Policy 6Gx52-5.31, entitled “Disciplinary Guidelines for Employees," states that the school district generally follows a system of progressive discipline with its employees and that the severity of the employee’s conduct will determine if all steps will be followed or a recommendation will be made for dismissal. Employee conduct which may lead to a recommendation for suspension and/or dismissal during the term of appointment includes, but is not limited to the following: (1) failure to correct performance deficiencies, (2) insubordination, and (3) misconduct. On December 5, 1996, Respondent was sent a certified letter by Dr. J. Howard Hinesley, Superintendent of Pinellas County Schools, recommending that he be suspended for five days without pay. The recommendation was based on Respondent’s unsatisfactory performance, after receiving reprimands from supervisors; misconduct; and insubordination. On January 10, 1997, Respondent wrote a letter requesting a hearing in response to the superintendent's recommendation for a five-day suspension. After Respondent requested a hearing, but prior to the hearing being conducted, Respondent engaged in additional acts of misconduct and insubordination, by stating to Mr. Sprecher that Respondent would not be responsible for his actions if anyone came into his area without his knowledge, and refusing to perform job-related tasks directly assigned to him by Mr. Sprecher. As a result of Respondent’s further misconduct and insubordination, on April 1, 1997, Respondent was sent a second letter by Dr. Hinesley recommending the Respondent be suspended for a total of seven days, an increase of two days over the original recommendation. Following the recommendation for a seven-day suspension, Respondent engaged in additional acts of misconduct, including occasions when Respondent was observed to be in the auditorium, off-task, sleeping, and watching rehearsals of a play during work time. Respondent also failed to correct performance deficiencies. As a result of Respondent’s further misconduct, Dr. Hinesley sent a letter to Respondent dated August 7, 1997, advising him that Dr. Hinesley would recommend termination of Respondent’s employment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Pinellas County School Board enter the final order dismissing Respondent, Ullyses Wynn, from his position as a plant operator. RECOMMENDED this 14th day of January, 1998, at Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (850) 488-9675 SUNCOM 278-9675 Fax (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1998. COPIES FURNISHED: C. Wesley Bridges II, Esquire Pinellas County School Board 301 Fourth Street Southwest Post Office Box 33779-2942 Largo, Florida 34649-2942 Ullyses Wynn 2242 Lakeview Avenue South St. Petersburg, Florida 33712 Dr. J. Howard Hinesley, Superintendent Pinellas County School Board 301 Fourth Street Southwest Post Office Box 2942 Largo, Florida 33779-2942 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Michael H. Olenick General Counsel The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether Respondent, Frank J. Polacek, V, committed the violations alleged in an Administrative Complaint filed with Petitioner March 15, 2006, DBPR Case Nos. 2005-036101, 2005-035843, 2004-056690, 2005- 045647, and 2005-034560, and, if so, what disciplinary action should be taken against him.
Findings Of Fact The Parties. Petitioner, the Department of Business and Professional Regulation (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for, among other things, the licensure of individuals who wish to engage in contracting in the State of Florida; and the investigation and prosecution of complaints against individuals who have been so licensed. See Ch. 689, Fla. Stat. Respondent, Frank J. Polacek, V, is and has been at all times material hereto a licensed certified general contractor in Florida. Mr. Polacek's license number is CG C059603. At all times material hereto, the status of his license has been "Current, Active." At all times material, Mr. Polacek was certified as doing business as Endeavor Development, Inc (hereinafter referred to as "Endeavor"), a Florida corporation. Endeavor possessed a certificate of authority as a qualified business organization. The Department has jurisdiction over Mr. Polacek's license. Dalton Design, Inc.; Department Case No. 2004-056690. On June 29, 2004, Terri Ferrando, owner of Dalton Design, Inc. (hereinafter referred to as "Dalton Design"), entered into a contract with Mr. Polacek, acting as Endeavor (hereinafter referred to as the "Dalton Design Contract"). Pursuant to the Dalton Design Contract, Mr. Polacek agreed to renovate a bathroom of an apartment owned by a client of Dalton. The apartment is located in Delray Beach, Florida. Dalton Design agreed to pay Mr. Polacek $15,871.00 in exchange for his services. Mr. Polacek failed to include notification of the existence and availability of the Construction Industry Recovery Fund in the Dalton Design Contract. See § 489.1425(a), Fla. Stat. As contemplated by the Dalton Design Contract, Dalton Design paid $7,935.50, or 50 percent of the total contract price, to Mr. Polacek as a deposit. The deposit was paid via check dated June 29, 2004. A small of amount of work, consisting of demolition, was commenced on the Dalton Design Contract by Mr. Polacek. The demolition work was the only work performed by Mr. Polacek. The work performed by Mr. Polacek was significantly less than the amount he had been paid by Dalton Design. On or about May 16, 2005, Mr. Polacek abandoned the Dalton Design Contract when he wrote a letter to Ms. Ferrando and Dalton Design. Mr. Polacek stated the following in the letter: Please acknowledge this written notice that as a result of hurricane frances we will be unable to provide Dalton designs [sic] or their related customers with construction services this will be effective immediately and a partial refund of construction moneys will be refunded within one week. The refund was never made, despite efforts of Ms. Ferrando to contact Mr. Polacek by telephone, in writing, and in person. The Dalton Design Contract provided that "August 20, 2004, is the last day for work, and everything must be completed at that time." Because Mr. Polacek failed to perform work on the project and in light of his termination letter, Ms. Ferrando arranged to have the project completed by another contractor. That contractor performed the same work formerly agreed to by Mr. Polacek. The total costs of completing the Dalton Design Contract work was $16,877.33 and was paid by Dalton Design. Damages sustained by Dalton Design as a result of Mr. Polacek's abandonment of the Dalton Design Contract include the $7,935.50 deposit plus the amount of $1,006.33 paid to complete the project in excess of the original contract price ($16,877.33 minus $15,871.00) or a total of $8,941.83. The Department incurred costs investigating Case No. 2004-056690 of $616.88. The evidence failed to prove that Mr. Polacek failed to obtain the necessary permits or inspections for the work performed on the Dalton Design Contract. Palm Beach Biltmore Condominium Association; Department Case No. 2005-045647. In August 2004, Richard Brooks, the manager of the Palm Beach Biltmore Condominium Association (hereinafter referred to as the "Biltmore"), entered into a contract with Mr. Polacek, doing business as Endeavor (hereinafter referred to as the "Biltmore Contract"). The Biltmore Contract provided, in pertinent part, that Mr. Polacek would provide the following services to Biltmore: Propose to remove and replace two matching exterior access ladders to elevator service shafts. Remove all existing steel support brackets and prepare new surface for the installation of the new aluminum ladders. . . . Provide and install new 16' custom fabricated alluminum [sic] ladders same locations with no powder coated finish. In exchange for the foregoing services, Biltmore agreed to pay Mr. Polacek $5,000.00, "50% of the total sum due upon agreement; 50% of total sum due promptly upon completion." Biltmore paid Mr. Polacek $2,500.00 via check on August 18, 2004. Despite having been paid half the Biltmore Contract price, Mr. Polacek performed none of the services he had agreed to perform. Mr. Brooks made several efforts to communicate with Mr. Polacek by telephone and mail, but was unsuccessful. Mr. Polacek abandoned the Biltmore Contract for well in excess of 90 days. Mr. Polacek failed to refund any amount of the $2,500.00 down-payment paid to him by Biltmore. Thus Biltmore suffered damages of $2,500.00. The Department incurred costs investigating Case No. 2005-045647 of $266.33. A. Carter Pottash; Department Case No. 2005-034560. On August 9, 2004, A. Carter Pottash, M.D., entered into a contract with Dr. Polacek, doing business as Endeavor (hereinafter referred to as the "Pottash Contract"). The Pottash Contract provided, in pertinent part, that Mr. Polacek would remodel three condominium apartments owned by Dr. Pottash, converting the three apartments into one living space. In exchange for his services Mr. Polacek agreed to provide under the Pottash Contract, Dr. Pottash agreed to pay Mr. Polacek $170,821.00, "50% of the total due upon agreement; 35% of total sum due at 50% of completion; 15% of total sum due upon completion." Mr. Polacek failed to include notification of the existence and availability of the Construction Industry Recovery Fund in the Pottash Contract. See § 489.1425(a), Fla. Stat. As contemplated by the Pottash Contract, Dr. Pottash paid Mr. Polacek a total of $155,322.50, or 90 percent of the total contract price, between August 19, 2004, and October 22, 2004. The payments were made via check and wire transfer. Mr. Polacek commenced work on the Pottash Contract by performing demolition work, installing drywall, and performing some but not all of the finishing work. After November 1, 2004, no work was performed on the Pottash Contract by Mr. Polacek. Between November 1, 2004, and January 5, 2005, having invested a significant amount of money in the project, Dr. Pottash made numerous unsuccessful attempts via telephone, personal visits, and in writing to contact Mr. Polacek. As a result of the work Mr. Polacek did perform, he incurred financial obligations to sub-contractors. Some of the obligations were not paid by Mr. Polacek, resulting in three Claims of Liens being filed against Dr. Pottash's property. The liens, each one for $2,166.50, were filed by T & F General Contracting, Inc. (hereinafter referred to as "T & F"). T & F had performed some of the finishing work on the project. On or about March 22, 2005, Mr. Polacek abandoned the Pottash Contract when he wrote a letter to Dr. Pottash, in which he stated the following: Please acknowledge this written notice that ENDEAVOR DEV. INC. will no longer be performing any construction related services to you at the Palm Bch. Biltmore. By law I am bound to cancel all my permits or transfer them to your new contractor. I will inform the Palm Bch. Bldg. Dept. in writing. I am truley [sic] sorry for the problems we have had between us. I want to do whatever is possible to resolve this situation in your favor. Please respond if you are willing. Mr. Polacek did nothing to resolve his failure to perform. Nor did he make any refund of the moneys paid to him under the Pottash Contract, which exceeded the amount paid by Dr. Pottash to Mr. Polacek. Due to Mr. Polacek's failure to perform, Dr. Pottash had to hire other contractors to complete the project. He did so, acting as his own general contractor, completing the project in essentially the same manner contemplated by the Pottash Contract. Dr. Pottash incurred costs to complete the Pottash Contract totaling $90,280.77. These costs were paid by checks ($58,716.48) and credit card ($31,564.29). Dr. Pottash also paid a total of $3,653.50 to remove one of the three T & F liens. The total cost of completing the Pottash Contract incurred by Dr. Pottash was $93,934.27. Damages sustained by Dr. Pottash as a result of Mr. Polacek's abandonment of the Pottash Contract total $78,435.77, calculated as follows: Total Contract Price: $170,821.00 Amount Paid: 155,322.50 Amount To Be Paid: $ 15,498.50 Amount Paid To Complete: $ 93,934,27 Amount To Be Paid: 15,498.50 Total Financial Harm: $ 78,435.77 The Department incurred costs investigating Case No. 2005-034560 of $565.61. Alexander Rentz and Diane Jackson; Department Case No. 2005-036101. On January 13, 2005, Alexander Rentz and Diane Jackson, entered into a contract with Mr. Polacek, doing business as Endeavor (hereinafter referred to as the "Rentz/Jackson Contract"). The Rentz/Jackson Contract provided, in pertinent part, that Mr. Polacek would make repairs to their Lake Park, Florida, home caused by hurricane damage. In exchange for Mr. Polacek's services, Mr. Rentz and Ms. Jackson agreed to pay him $26,346.10, "1/3 upon agreement/ 1/3 at 50%/ 1/3 at complete." On January 14, 2005, an addendum to the Rentz/Jackson Contract was executed by Mr. Polacek whereby he agreed to remove and replace carpeting and padding. In exchange for these services, Mr. Rentz and Ms. Jackson agreed to pay an additional $1,520.00. Mr. Polacek failed to include notification of the existence and availability of the Construction Industry Recovery Fund in the Rentz/Jackson Contract. See § 489.1425(a), Fla. Stat. Mr. Rentz and Ms. Jackson paid Mr. Polacek a total of $13,933.05 via three checks issued on January 13, 2005, February 1, 2005, and February 11, 2005. Mr. Polacek commenced work on the Rentz/Jackson Contract by partially taking down a wooden fence on the property. After taking down the fence, no work, not even the removal of the fencing material, was performed on the Rentz/Jackson Contract by Mr. Polacek. On February 22, 2005, after efforts to get Mr. Polacek to return to the job failed, Mr. Polacek wrote a letter to Mr. Rentz and Ms. Jackson in which he abandoned the Rentz/Jackson Contract, stating: Please acknowledge this written notice. Since we have not heard from you w/ a decision on whether to proceed w/your job we can only assume you want to terminate the contract. Out last conversation on 2-15-05 Ms. Jackson was irate and threatened to sue our Co. if we could not produce roofing shingles. All supply Co's are on a back log and shingles are being allocated. We do not controll [sic] the production of shingles and we warned you of this problem at the start of our engagement. Fax us a letter of termination and the total of all $ will be returned in 30 days. Mr. Polacek's explanation concerning the unavailability of shingles, even if it had been supported by evidence at the final hearing, which it was not, fails to explain why none of the other work called for in the Rentz/Jackson Contract was performed. Mr. Rentz and Ms. Jackson did not at anytime terminate their contract. Instead, they made numerous efforts to get Mr. Polacek to carry out the terms of their agreement. Efforts to discuss the matter with Mr. Polacek were ultimately unsuccessful. Due to Mr. Polacek's failure to perform, Mr. Rentz and Ms. Jackson were required to hire another contractor, Built Right Construction, Inc. (hereinafter referred to as "Built Right"), to complete the project. The same services contemplated by the Rentz/Jackson Contract were ultimately performed by Built Right. The contract price for Built Right's services, including contract addendums, totaled $33,293.95. This amount was paid via checks by Mr. Rentz and Ms. Jackson. Damages sustained by Mr. Rentz and Ms. Jackson as a result of Mr. Polacek's abandonment of the Rentz/Jackson Contract totaled $19,360.90, calculated as follows: Total Contract Price: $27,866.10 Amount Paid: 13,933.05 Amount To Be Paid: $13,933.05 Amount Paid To Complete $33,293.95 Amount To Be Paid: 13,933.05 Total Financial Harm: $19,360.90 54. The Department incurred costs investigating Case No. 2005-036101 of $457.00. The evidence failed to prove that Mr. Polacek failed to apply for any permits required by the Rentz/Jackson Contract or that Endeavor was not in compliance with fictitious-name statutes. Nancy Sarro; Department Case No. 2005-035843. On April 17, 2005, Nancy Sarro, entered into a contract with Mr. Polacek, doing business as Endeavor (hereinafter referred to as the "Sarro Contract"). The Sarro Contract provided, in pertinent part, that Mr. Polacek would remodel the Sarro residence located in Jupiter, Florida. In exchange for Mr. Polacek's services, the Sarros agreed to pay Mr. Polacek $23,919.75, "50% of total sum upon agreement; 25% of total sum at 50% complete; 15% of total sum at 75% complete; 10% of total sum at 100% complete." Mr. Polacek failed to include notification of the existence and availability of the Construction Industry Recovery Fund in the Sarro Contract. See § 489.1425(a), Fla. Stat. Ms. Sarro paid Mr. Polacek a total of $11,039.87, or 46 percent of the total contract price, via check issued April 17, 2005. Mr. Polacek commenced work on the Sarro Contract by demolishing a small wooden deck at the rear of the Sarro residence and removing the front door of the residence, leaving the residence without a front door. After taking performing the foregoing work, no further work was performed on the Sarro Contract by Mr. Polacek. On May 16, 2005, after efforts to get Mr. Polacek to return to the job failed, Mr. Polacek wrote a letter to Ms. Sarro in which he abandoned the Sarro Contract, stating: Please acknowledge this written notice that Endeavor Dev. Inc. will no longer be providing construction services to you at . . . . My attorney will contact you to discuss the matter of our deposit. Do not attempt to contact Ms. Jessica Jolley or her family members regarding this matter. They are going to press charges against you for harassment. Endeavor Dev. Ind. Has had no in-tent [sic] to defraud or abandone [sic] your job and Ms. Jolley is not an employee of the Co. nor did she recieve [sic] anymoneys from you so please leave my girlfriend out of this matter. I will be contacting you via my attorney. Ms. Sarro made attempts to contact Mr. Polacek, but was unsuccessful. At no time, however, did Ms. Sarro abandon or otherwise attempt to terminate the Sarro Contract. Mr. Polacek subsequently sent a second letter to Ms. Sarro promising that the money paid as a deposit on the Sarro Contract would be refunded. Mr. Polacek did not, however, return any moneys to Ms. Sarro or complete any further work on the Sarro Contract. Damages sustained by Ms. Sarro as a result of Mr. Polacek's abandonment of the Sarro Contract totaled $11,039.87. The Department incurred costs investigating Case No. 2005-035843 of $368.76. Incompetency or Mismanagement in the Practice of Contracting. Mr. Polacek caused damages on the five contracts at issue in this case totaling $120,278.37. He did so without explanation to the individuals for whom he had contracted with.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department: Finding that Frank Joseph Polacek, V, committed the violations alleged in Counts I, IV through VII, IX through XII, and XV through XXV of the Administrative Complaint; Dismissing Counts II, III, VIII, XIII, and XIV of the Administrative Complaint; and Imposing an administrative fine in the total amount of $26,000.00; requiring that Mr. Polacek pay restitution on the five contracts equal to the amount of damages found in this Recommended Order; requiring that Mr. Polacek pay $2,275.58 as the costs of the investigation and prosecution of this matter; and that his license be permanently revoked. DONE AND ENTERED this 20th day of September, 2006, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 20th day of September, 2006. COPIES FURNISHED: Jeffrey J. Kelly, Esquire Department of Business and Professional Regulation Post Office Box 1489 Tallahassee, Florida 32302 Frank Joseph Polacek, V 5245 Center Street Jupiter, Florida 33401 G. W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issues to be resolved in this proceeding concern whether the Petitioner, in the work of his business or trade, operates within the definition of "construction industry" as that term is defined in Chapter 440, Florida Statutes (2008), and the rules of the Respondent Agency. It therefore must be determined whether the Petitioner was required to secure workers' compensation coverage or suffer the disputed penalty for failure to do so.
Findings Of Fact The Division is an Agency of the State of Florida charged with enforcing the provisions of Chapter 440, Florida Statutes, with regard to the regulation of the workers' compensation insurance system in the State of Florida. It is charged with inspecting and ensuring that employers in the State of Florida comply with the relevant provisions of Chapter 440, Florida Statutes, and Florida Administrative Code Chapter 69L-6, regulating the circumstances under which employers are required to have workers' compensation insurance coverage.1/ The Petitioner is a corporation having its principal place of business in Jacksonville, Florida, under the name "James T. Quinn Handyman." The business of the Petitioner is primarily a "handyman" type business or service in which the Petitioner performs all sorts of home repairs, maintenance, services including pressure washing, cleaning, organizing, minor maintenance duties, and even running errands for homeowners or clients. Because of the nature of his business in which home repair, home maintenance, and associated painting are of a very minor nature, the Petitioner was under the belief that he was not actually involved in the construction business or "construction industry" and did not require workers' compensation coverage. For the same reasons he also believed he was not required to have an exemption on record with regard to workers' compensation coverage. After the imposition of the Stop-Work Order, however, the Petitioner filed for an exemption for workers' compensation coverage with the Division, and on that exemption listed his trades as being home repair, home maintenance, and then painting and pressuring washing. He was granted the exemption. The Petitioner also attempted to secure workers' compensation insurance subsequent to the entry of the Stop-Work Order. He spoke with a representative of the National Council on Compensation Insurance (NCCI) who advised him that, because of the nature of his business, he fell within the "Scopes Manual" classification code of 9014 which is "maintenance, non- construction." This representative advised him that this was a classification similar to janitorial work. He indicated his belief to the Petitioner that the nature of the Petitioner's business was more like an apartment building superintendent and that he essentially does any task his clients ask him to do. The Petitioner does not do any building of structures. He does not do land clearing, filling, or excavating preparatory to construction of any sort of structure or to alter the appearance of land. None of his work results in substantial improvements to properties. The Petitioner does not hold himself out as a licensed contractor nor is he so licensed. In fact, he avoids doing jobs which require the obtaining of permits related to any construction or other work. He has consistently avoided undertaking jobs involving remodeling of structures, whether residences or otherwise, and indeed has routinely refused to accept jobs constructing outdoor decks, which require permits. He does no roofing, concrete driveway or sidewalk work, tree trimming, and he does not paint houses nor entire rooms of houses. He has not done roofing work, although he has provided occasional clients with an estimate of what a roof repair should cost so that clients would know what to expect when they contacted a roofing contractor. He does no new construction and only does very minor repair work to existing structures, usually associated with residences. The Division classified the Petitioner as a "painter." This stems from the original inspection by Inspector Michael Robinson, who testified for the Division at the hearing. During that inspection and the conversation the Petitioner had with Mr. Robinson, he advised Mr. Robinson that his work did include painting, at least on that day. He never advised Mr. Robinson or the Division that the majority of his work involved painting, either on that job, or generally as to other jobs. Indeed, some of the work the Petitioner has done, as depicted on Petitioner's Exhibit Three in evidence, does involve painting. He confirmed in his testimony that on the day the Stop-Work Order was imposed by Mr. Robinson that he had engaged in some painting because he had repaired and re-hung shutters on a residence and needed to paint over the repaired area on a shutter. Mr. Robinson, the Inspector for the Division, testified on its behalf, stating that anyone must secure workers' compensation, if engaged in the "construction industry," meaning a trade coming within the ambit of the construction industry. In lieu of securing such coverage, a person who is an officer of a corporation may file a request for exemption from coverage, which the Petitioner, Mr. Quinn, did. Mr. Robinson noted that the "Scopes Manual" is a manual published by the NCCI, used to describe specific trades. The trades described in the manual are given a designation number and an explanation of what each trade consists of under each designation number or code. That manual is relied upon to describe various trades by the insurance industry and also by the Division. In fact, the Division has adopted the Scopes Manual classification codes by rule in Florida Administrative Code Rule 69L-6.021. Mr. Robinson noted that the Petitioner was engaged in painting, in his belief, and because painting is designated as a construction code under Code 5474, he concluded that the Petitioner operated within the definition of a construction trade or the construction industry. He would also designate someone observed repairing or replacing wood in a structure as being within the definition of a member of the construction industry under the classification of carpentry, if that were the case. Mr. Robinson believes that if the Petitioner's work consisted of mostly odd jobs, involving such things as hanging ceiling fans, cleaning up debris, cleaning out garages, and other odd jobs then such jobs would have various classification codes, most of which would not be within the construction industry. Mr. Robinson explained that if he or other inspectors encountered people working at two different occupations on a job, then they would consider the nature of the job or jobs being done, or work being done, and take the "highest class code for the work they are performing," inasmuch as that method is used for classification of trades or jobs by the insurance industry. He indicated in his testimony that if any part of the work is considered to be construction, then that person is considered to be a member working in the construction industry and must obtain workers' compensation coverage if there are one or more employees employed by the entity involved. The Petitioner, Mr. Quinn, compiled a list of jobs he has performed over several years. While the list may not be exhaustive, it has been shown to be a representative sample of the various tasks the Petitioner has performed over the years. The list was admitted into evidence as Petitioner's Exhibit Three. It reveals that the Petitioner has engaged in a number of job duties for his clients, most of which do not involve painting. The list includes such things as retrieving a boat trailer and a replacing a flat tire on the trailer for a client, transplanting two boxwood plants, installing a rope hand-rail on a dock, installing an ice maker, organizing a workshop, cleaning a poolroom, filling in dog holes, signing for Federal Express packages, installing a flat screen television, replacing ceiling tile, assembling a swing set, replacing a doorbell button, setting up a child's telescope, replacing a garage door spring, replacing a kitchen faucet, replacing a garbage disposal, repairing a bicycle, installing signs, pressure washing a pool deck, setting up a DVD player, re-arranging furniture, assembling a basket ball hoop, cleaning wood paneling, installing curtains, fixing a leaky faucet, replacing lighting fixtures and lights, repairing two French doors that included filling-in dog scratches and then painting over the marks. This last task is perhaps illustrative of the manner in which painting represents a minor portion of the duties performed by the Petitioner in the typical jobs he performs as a handyman or "odd job" worker. The painting was only incidental to repairing the scratches made by a family dog and simply involving painting over the marks so that the repaired area would properly blend with the other painted portions of the door. When the Petitioner inquired of a representative of NCCI about the need to obtain workers' compensation insurance coverage, the representative advised him that he more closely resembled a Scopes Manual class code 9014. That code 9014 was admitted into evidence as Petitioner's Exhibit Four. The NCCI representative advised the Petitioner that Code 9014 describes janitorial type services or duties and that the Petitioner's occupation or jobs seemed more appropriate to that endeavor and that thus he did not appear to need workers' compensation insurance coverage. Mr. Robinson the Inspector for the Division, was not familiar with that class code of the Scopes Manual. Code 9014 provides: Code 9014 is assigned to insureds primarily engaged in providing janitorial services for others. See Codes 9000 and 9001 in Florida. Janitorial Services are defined as keeping and doing cleaning and engaging in various types of maintenance and minor repair work for upkeep of a building. Stated differently, a risk qualifies as a janitorial service if the risk engages exclusively in cleaning a building or performs maintenance or minor repair operations in addition to cleaning a building. These maintenances or minor repair operations may include, but are not limited to, painting, cleaning windows, changing light bulbs, assisting occupants with the placement of furniture, replacing glass panes, clearing drains, and cleaning carpets. This class code thus includes in its definition the act of painting. Mr. Robinson confirmed in his testimony that this class code is not listed in the list of class codes identified by the Division as those making up the definition of "construction industry." See Fla. Admin. Code R. 69L-6.201. Thus, not all occupations involving painting have been identified by the Division as being construction trades or come within the definition of "construction industry." If the Petitioner is not a member or participant in the construction industry, then he does not have to have workers' compensation coverage, because he does not have a sufficient number of employees to apply the requirement for coverage as it is imposed by Sub-section 440.02(17)(b)2., Florida Statutes, for non- construction services, trades, or industries. Although the job or profession of "painter" would be within the definition of "construction industry" or would be a construction trade, the persuasive evidence shows the Petitioner is not a painter by trade or profession, nor does he hold himself out as a painter. Merely because some repair jobs include incidental painting, does not render him a painter, thereby causing him to become part of or be engaged in the "construction industry." In fact, there is an at least informally recognized industry or occupation of "handyman" in the Jacksonville vicinity, as recognized by the yellow page listing for "handyman services" in the Jacksonville area telephone directory, an example of which was admitted into evidence as Petitioner's Exhibit One. Even if the Petitioner does not qualify as a "janitorial service" for purposes of the above-referenced code 9014, if one interprets that code to require the necessity of both performing maintenance or minor repairs, in addition to cleaning a building, the fact remains that the persuasive evidence in this case does not demonstrate that the Petitioner was engaged and functioning as a "painter" or member of the painting occupation. He thus was not engaged in the "construction industry." Aside from the issue of engagement in painting as a purported participant in the construction industry, the evidence referenced-above and findings of fact, concerning the actual functions the Petitioner performs in his business, do not persuasively establish that he is engaged in the construction industry, as defined by the Scopes Manual categories and rules referenced above, and relied upon by the Division. The Respondent contends, in advancing its thesis that the Petitioner's essential business is that of a painter in the construction industry, that the Petitioner spent "thousands of dollars" on paint or painting-related materials. In fact, the evidence shows that the Petitioner purchased $4,228.88 dollars worth of paint or paint-related materials at Brittan's Paint Store, the only place the evidence shows he purchased any paint. It is interesting that the majority of the paint so purchased ($2,408.68 worth) was used for one apparent job at Lakeshore Baptist Church during the three-year investigatory period, specifically from June 30, 2007, through March 20, 2008. The bank-related records in evidence show these expenditures for paint attributable to the church and also show two one-hundred dollar checks issued on the Petitioner's account to that church. Further, the evidence in the form of the "spread sheet" or cash flow records for 2007, shows a $7,120.00 dollar "charitable contribution" for that year, without identifying the recipient. There is no direct evidence showing remuneration to the Petitioner for any work done for the church, painting or otherwise, for 2007 and 2008. That lack of evidence coupled with the evidence that two one-hundred dollar checks were paid to the church by the Petitioner, or the Petitioner's wife, and the fact that a $7,120.00 dollar charitable contribution was made during that year, raises the possibility that the job may not have been done for profit or remuneration to the Petitioner, and thus that it does not constitute engagement in the construction industry as a for-profit activity. (See § 440.02(8), Fla. Stat.) The point is that it has not been established by persuasive evidence that these paint purchases were made for the primary purpose of engaging in the construction industry as a painter or painting business. The details regarding the use made of this purchased paint and the nature and scope of any work done at the church were not developed on direct or cross-examination. One could just as easily infer that the painting work for the church was done by the Petitioner as a contribution to the church with which he may have been affiliated as a member, or even as an employee. In any event, it was not clearly and convincingly established that he was engaged in the construction industry with regard to the painting in terms of the use made of these paint purchases from Britton's Paint Store. There were other, more minor purchases of paint from Britton's Paint Store shown in the bank records, which did not indicate how they were used or for which client. Some could have been merely for personal use. Three purchases were for "Dave" and three noted on the memo line on the check were for "dry storage." There were 22 of these "non-church" paint purchases. Only four were for more than $100.00. This indicates a pattern of mostly small paint material purchases which fits the Petitioner's business as being that of repairman or handyman and not as a professional painter. These purchases were made over a period of almost 14 months. In light of the lack of inquiry of the Petitioner, on direct and cross-examination, about the details of the uses and purposes of these paint material purchases, it was not established by persuasive evidence that these paint purchases were "for-profit," as a painting trade or business, nor that they represent evidence that painting was other than an incidental activity or minor part of the Petitioner's "handyman" work. The totality of the evidence of his type of work does not show that painting was a major part of it or other than an intermittent activity. It was thus not established that the paint purchases represent engagement in the "construction industry" as a for-profit painting activity.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Financial Services finding that James T. Quinn, d/b/a James Quinn Handyman was not required to secure payment of workers' compensation for any employee or employees and was not in violation of Sections 440.10(1)(a) and 440.38(1), Florida Statutes, during the times and circumstances pertinent to this proceeding. No penalty against said Petitioner should be assessed. DONE AND ENTERED this 7th day of November, 2008, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 7th day of November, 2008.
