The Issue The issues are whether Petitioner has shown, by clear and convincing evidence, that she is rehabilitated from her disqualifying offense, and if so, whether Respondent's intended action to deny Petitioner's request for an exemption from disqualification from employment would constitute an abuse of discretion.
Findings Of Fact The Agency is the state agency responsible for regulating the employment of persons in positions of trust for which Petitioner seeks to qualify. Petitioner is a 38-year-old female who seeks to qualify for employment in a position of special trust with Success for All of Florida, Inc., a service provider regulated by the Agency. Because she wishes to work as a direct service provider, Petitioner was required to undergo a background screening. The results of that screening identified a history of criminal offenses, including a disqualifying offense in 2003. Accordingly, Petitioner filed a request for exemption from disqualification, which triggered the instant proceeding. In a letter dated July 27, 2015, the Agency's Director, Barbara Palmer, notified Petitioner that after reviewing all information that led to her disqualification, her exemption request was denied. The letter advised Petitioner that this decision was based upon Petitioner's failure to "submit clear and convincing evidence of [her] rehabilitation." Resp. Ex. C. Before Director Palmer made her decision, Petitioner's request for an exemption was reviewed by a Department of Children and Families screener who compiled a 34-page report entitled "Exemption Review" dated June 10, 2015. See Resp. Ex. B. The packet of information contains Petitioner’s Request for Exemption, Exemption Questionnaire, various criminal records, and two character references. The Exemption Review did not make a recommendation one way or the other, but simply compiled all relevant information that would assist the Director in making her decision. The report was first given to the Agency Regional Operations Manager in Orlando, who reviewed it and then made a preliminary recommendation to the Director. In 2003, Petitioner had a disqualifying offense, Grand Theft, a third-degree felony, which automatically disqualified her from employment in a position of special trust. Around the same time, she committed a second-degree misdemeanor, Trespassing in a Structure or Conveyance, a non-disqualifying offense. Both offenses occurred at a JC Penney store in Lakeland. Petitioner pled guilty to both offenses and was adjudicated guilty. For the felony conviction, she was placed on probation for 25 months, given credit for time served in jail, and ordered to pay various fines and costs. Petitioner was then 26 years old. Petitioner's account of her disqualifying offense differs in several respects from the account memorialized in the Lakeland Police Department reports and is inconsistent with her plea of guilty. In her Exemption Questionnaire, she stated that the criminal offense was actually committed by her younger sister and not her. She wrote that "I didn't tell on my sister because she was only 16 at the time so I took the charge for her." Resp. Ex. A, p. 3. This version of events was never presented to the court. At hearing, she also stated that she pled no contest to the crime, but court records indicate she pled guilty. In January 2004, while on probation for the Grand Theft charge, Petitioner violated her probation by committing a non- disqualifying offense and was sentenced to 60 days in jail. In November 2005, Petitioner violated her probation a second time by testing positive for cocaine during a probationary drug screening. The record is unclear if Petitioner served any jail time for this violation. In September 2012, or approximately three years ago, Petitioner committed the non-disqualifying offense of Use or Possession of Drug Paraphernalia, a first-degree misdemeanor. She pled nolo contendere, was adjudicated guilty, placed on probation for 12 months, and ordered to pay various fines and costs. At hearing, Petitioner blamed her cousin for the arrest and stated that she was unaware her purse contained drug paraphernalia (a straw and cocaine residue), as she had not used cocaine since 2005. In any event, she stated that her drug of choice was previously ecstasy and not cocaine, and admitted that she had used that drug while working at Success for All in Florida, Inc., from 2001 until around 2005. Between 2006 and 2014, Petitioner was employed as a warehouse worker by Publix. Along with five other workers, she was terminated by Publix in 2014 for improperly accepting damaged merchandise from a co-worker. There is no record of any employment since that time. Petitioner blamed her criminal arrests on stress in her life, mainly due to a lack of family support and raising two children as a single parent, and being just "plain stupid" while she was young. She expressed remorse for her mistakes and now wishes to help others as a direct service provider. Three witnesses testified on Petitioner's behalf. They described her as being a good worker, a caring individual, dependable, and very determined to improve her life. The Agency's rationale for denying the application is Petitioner's failure to take responsibility for her actions, that is, blaming her arrests on others, and a failure to provide a truthful and full account of the circumstances surrounding her disqualifying offense. The Agency also expressed concerns over Petitioner's lack of specificity regarding her criminal background, and the short period of time (three years) since her latest arrest, albeit for a non-disqualifying offense. Finally, the Agency noted that Petitioner has never had counseling, she lacks any specialized training, and there is no record of employment since being terminated by Publix more than a year ago.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order denying Petitioner's application for an exemption from disqualification. DONE AND ENTERED this 7th day of December, 2015, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 7th day of December, 2015. COPIES FURNISHED: David M. De La Paz, Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) LaShae Thomas 3217 Julia Court Lakeland, Florida 33810-5510 Michael Sauve, Esquire Agency for Persons with Disabilities 400 West Robinson Street, Suite 430 Orlando, Florida 32801-1764 (eServed) Richard D. Tritschler, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Barbara Palmer, Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed)
Findings Of Fact 1. On December 21, 2010, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued an Order of Penalty Assessment in Division of Workers’ Compensation Case No. 10-388-D4-OPA to DIABETES AND ENDOCRINE CENTER OF FLORIDA, P.A. for a total assessed penalty of $2,994.10. The Order of Penalty Assessment included a Notice of Rights wherein DIABETES AND ENDOCRINE CENTER OF FLORIDA, P.A. was advised. that any request for an administrative proceeding to challenge or contest the Order of Penalty Assessment must conform to Rule 28-106.2015, Florida Administrative Code. 2. On December 23, 2010, the Order of Penalty Assessment was served by certified mail on DIABETES AND ENDOCRINE CENTER OF FLORIDA, P.A. A copy of the Order of Penalty Assessment with Proof of Service is attached hereto as “Exhibit 1” and incorporated herein by reference. 3. On January 11,2011, DIABETES AND ENDOCRINE CENTER OF FLORIDA, P.A. filed a Petition for Administrative Review Hearing (“Petition”) with the Department. The petition for administrative review was forwarded to the Division of Administrative Hearings on January 20, 2011, and the matter was assigned DOAH Case No. 11-0345. A copy of the petition is attached hereto as “Exhibit 2” and incorporated herein by reference. 4. On February 18, 2011, the Respondent filed with DOAH a Notice of Voluntary Dismissal/Satisfaction of Penalty Assessment and also sent the Department a certified check for $2,994.10. The check was received by the Department’s investigator and deposited into the Workers’ Compensation Trust Fund on Monday, February 17, 2011. A copy of the Notice of Voluntary Dismissal/Satisfaction of Penalty Assessment is attached hereto as “Exhibit 3” and incorporated herein by reference. 5. On April 29, 2011, the Department received from DOAH a copy of an Order Relinquishing Jurisdiction and Closing File. A copy of the Order Relinquishing Jurisdiction and Closing File is attached hereto as “Exhibit 4” and incorporated herein by reference 6. The factual allegations contained in the Order of Penalty Assessment, issued on December 21, 2010, are fully incorporated herein by reference, and are adopted as the Department’s Findings of Fact in this matter.
Conclusions THIS PROCEEDING came on for final agency action and Jeff Atwater, Chief Financial Officer of the State of Florida, or his designee, having considered the record in this case, including the Petition received from DIABETES AND ENDOCRINE CENTER OF FLORIDA, P.A., as well as the Order of Penalty Assessment, and being otherwise fully advised in the premises, hereby finds that:
The Issue The issues are whether nine workers were employees of Respondent, during part of the audit period; whether Respondent failed to secure the payment of workers' compensation coverage in violation of Section 440.107, Florida Statutes (2003); and whether Petitioner should impose a penalty against Respondent in the amount of $123,960.23.
Findings Of Fact Petitioner is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers' compensation for the benefit of their employees. § 440.107, Fla. Stat. (2002). Respondent is a closely held corporation domiciled in Florida and engaged in the sale and installation of floor coverings. Mr. Dennis Davison and Mrs. Lynne Davison, a married couple, own all of the outstanding stock of Respondent (the owners). Respondent has five in-office employees, including the owners, and had a net worth of approximately $100,000 before paying the proposed penalty. On April 2, 2004, Petitioner's compliance officer conducted a random site inspection of a single-family residence at 213 Northwest 3rd Place, Cape Coral, Florida. Mr. John Walega and Mr. Mike Stephens were laying carpet in the residence (Walega and Stephens, respectively). Walega was a sole proprietor who employed Stephens. The compliance officer determined that Walega was an employee of Respondent because Walega had an expired exemption and no proof of workers' compensation insurance coverage. The compliance officer issued separate stop work orders against Walega and Respondent. The stop work order against Walega is not at issue in this proceeding. The compliance officer issued the stop work order against Respondent even though: she knew that Respondent had compensation coverage for Respondent's five employees through a leasing company; and she had no knowledge that Respondent had subcontractors other than Walega working for Respondent. The compliance officer requested Respondent's business records for the three years from April 2, 2001, through April 2, 2004 (the audit period). Respondent fully complied with the request in a timely manner. The stop work order issued against Respondent on April 2, 2004, also assessed a penalty stated as the greater of $1,000 or 1.5 times the premium Respondent would have paid in premium charges during the period Respondent allegedly failed to secure the payment of workers' compensation insurance. Sometime between April 2 and 16, 2004, Petitioner amended the penalty assessment to $137,820.72. On April 16, 2004, the owners mortgaged their personal residence to pay the amended penalty assessment. Petitioner released the stop work order, but the owners lost business in an unspecified dollar amount while the stop work order was in effect and continue to incur monthly interest expense in the amount of $500 to service the mortgage on their home. On June 28, 2004, Petitioner issued a Seconded Amended Order of Penalty Assessment No. 04-157-D7-2 that reduced the assessed penalty to $123,960.23 (the Seconded Amended Order). Respondent is entitled to a refund in the amount of $13,860.49, but Petitioner had not paid the refund as of the date of hearing. The Second Amended Order is the proposed agency action at issue in this proceeding. The compliance officer is the only employee for Petitioner who investigated and developed the substantive information that forms the basis of Petitioner's proposed agency action. Other employees calculated the actual amounts of the proposed penalties. Respondent does not challenge the mathematical accuracy of the penalty calculations by Petitioner, but challenges the legal and factual basis of Petitioner's determination that nine workers were Respondent's employees. The nine workers are identified in the record as Walega; Messrs. James Allan, Bertin Flores, Cliff Hill, David Lancaster, Earl Lancaster, Jeff Dozier, Anthony Gioe; and Ms. Patricia Lancaster. The statutory definition of an employee for that part of the audit period before January 1, 2004 (the relevant period), was different than the statutory definition that became effective on January 1, 2004. Factual findings concerning the nine workers at issue are driven by one statutory definition during the relevant period and another statutory definition thereafter. Any of the nine workers that satisfied the statutory definition in former Subsection 440.02(15)(d)1, Florida Statutes (2003), of an independent contractor should not have been included in that part of the proposed penalty attributable to the relevant period. Effective January 1, 2004, however, Subsection 440.02(15)(d)1, Florida Statutes (2003), no longer excludes independent contractors in the construction industry from the definition of an employee. Thus, a determination of whether a worker was an independent contractor is not relevant to that portion of the proposed penalty covering any part of the audit period after December 31, 2003. Effective January 1, 2004, Subsection 440.02(15)(c)2, Florida Statutes (2003), no longer excludes a subcontractor, including those that would have satisfied the former definition of an independent contractor, from the definition of an employee unless the subcontractor either executes a valid exemption election or otherwise secures payment of compensation coverage as a subcontractor. There is insufficient evidence to support a finding that any of the nine workers at issue in this proceeding either elected a valid exemption or otherwise secured payment for compensation coverage after December 31, 2003. The nine workers at issue in this proceeding are not excluded from the definition of an employee after December 31, 2004, even if they were independent contractors throughout the audit period. Except for constitutional arguments raised by Respondent over which DOAH has no jurisdiction, Respondent owes that part of the penalty attributable to any period after December 31, 2003. It is undisputed that the nine workers included in that part of the penalty assessment attributable to the relevant period were subcontractors throughout the audit period. Respondent's ledger clearly treated the workers as subcontractors and reported their earnings on Form 1099 for purposes of the federal income tax. Petitioner treated the workers as subcontractors in the penalty calculation. Customers of Respondent paid Respondent for installation of floor coverings they purchased from Respondent, and Respondent paid each of the nine workers to install the floor coverings. The Workers' Compensation Law in effect during the relevant period did not expressly exclude from the definition of an employee those subcontractors who executed a valid exemption election or otherwise secured payment of compensation coverage as a subcontractor. Findings concerning the existence of an exemption election or payment of compensation coverage are neither relevant nor material to the statutory definition of an employee during the relevant period. During the relevant period, the nine workers at issue were excluded from the definition of an employee only if they satisfied the definition of an independent contractor in former Subsection 440.02(15)(d)1, Florida Statutes (2003). Each of the nine workers were required to satisfy all of the following requirements: The independent contractor maintains a separate business with his or her own work facility, truck, equipment, materials, or similar accommodations; The independent contractor holds or has applied for a federal employer identification number, unless the independent contractor is a sole proprietor who is not required to obtain a federal employer identification number under state or federal requirements; The independent contractor performs or agrees to perform specific services or work for specific amounts of money and controls the means of performing the services or work; The independent contractor incurs the principal expenses related to the service or work that he or she performs or agrees to perform; The independent contractor is responsible for the satisfactory completion of work or services that he or she performs or agrees to perform and is or could be held liable for a failure to complete the work or services; The independent contractor receives compensation for work or services performed for a commission or on a per-job or competitive-bid basis and not on any other basis; The independent contractor may realize a profit or suffer a loss in connection with performing work or services; The independent contractor has continuing or recurring business liabilities or obligations; and The success or failure of the independent contractor's business depends on the relationship of business receipts to expenditures. The preponderance of evidence shows that each of the nine workers at issue was an independent contractor during the relevant period. Respondent conducted the ordinary course of its trade or business with each of the nine workers in substantially the identical manner. None of the workers shared office space with Respondent. Each worker used his or her own truck, equipment, and tools to transport the floor coverings sold by Respondent and to install them in a customer's premises. Petitioner admits that Walega was a sole proprietor. Each of the other workers either held a federal employer identification number or was a sole proprietor who was not required to obtain a federal employer identification number. Each worker agreed to perform specific services or work for specific amounts of money and controlled the means of performing the services or work. Each worker incurred his or her own expenses to install floor coverings. Each worker transported floor coverings and necessary materials to the work site in the worker's own truck and used his or her own tools to perform the work. Each worker exercised independent professional judgment to perform the work. Respondent did not perform any pre-installation site inspection and did not perform any site preparation. Respondent did not train workers, instruct workers on how to perform their work, did not supervise their work while it was being performed, and did not perform any post-installation site inspection unless Respondent received a customer complaint. Each worker was responsible for the satisfactory completion of work or services that he or she performed. Each worker was liable to Respondent and the customer for any failure to complete the work or services or for inferior workmanship. Each worker warranted his or her work to the customer's satisfaction and absorbed the costs of rework and any damage to the customer's premises. Respondent paid each worker for work or services performed on a per-job or competitive-bid basis rather than any other basis. Respondent negotiated the price paid to a worker on a square-foot basis. The price did not change regardless of the amount of time the job required or the number of helpers the worker paid to assist the worker on the job. Each worker realized a profit or suffered a loss in installing floor coverings sold by Respondent. Each worker performed work for other vendors and had continuing or recurring business liabilities or obligations apart from installing floor coverings for Respondent. Each worker depended on the relationship of business receipts of expenditures for the success or failure of the worker's business. Each worker maintained his or her own occupational and professional licenses. Each worker maintained his or her own liability insurance. Respondent required each worker to sign a written form stating that the worker was an independent contractor. The form acknowledged the workers' warranty obligations and his or her obligations for their own taxes and insurance. Each form disclosed the workers' social security number or federal employer identification number. Respondent did not withhold federal income taxes from the payments to workers. Petitioner did not explicate the basis for reducing the proposed assessment in the Second Amended Order. However, the evidence reveals that the penalty reduction resulted from the exclusion of corporate subcontractors from the penalty base. The business relationship between Respondent and its corporate subcontractors during the relevant period was substantially the same as that between Respondent and the nine workers at issue. Early in this administrative proceeding on April 8, 2004, the compliance officer advised the owners that she was unable to release the stop work order against Respondent unless she could verify in Petitioner's data base, in relevant part, that the nine workers at issue each had a valid exemption or had insurance. However, Petitioner's database would not have disclosed compensation coverage maintained by a subcontractor through a leasing company. The compliance officer's advice to the owners did not reflect the law in effect during the relevant period. The Workers' Compensation Law in effect during the relevant period did not expressly exclude from the definition of an employee those workers who executed a valid exemption election or otherwise secured payment of compensation coverage as a subcontractor. The law excluded subcontractors from the definition of an employee only if the subcontractors satisfied the statutory definition of an independent contractor. The compliance officer made no effort to determine whether any of the workers she included in the penalty base satisfied the definition of an independent contractor. The compliance officer never advised the owners that establishing a subcontractor as an independent contractor would avoid part of the assessment against Respondent during the relevant period. The compliance officer never advised the owners that Respondent was free to choose to be represented by counsel during the audit process. The compliance officer told the owners that the only thing Respondent could do to avoid the assessment was to provide a certificate of insurance or an exemption for each of the subcontractors included in the penalty base. The compliance officer admitted that she was unaware that a subcontractor who was an independent contractor during the relevant period was legally excluded from the penalty base. Counsel for Respondent advised the compliance officer of the correct legal standard on April 12, 2004, but the compliance officer refused to release the stop work order unless Respondent paid the assessed penalty. The compliance officer knew that Walega had held a valid exemption at various times in the past as a sole proprietor. She knew Walega had renewed the exemption on October 29, 2003, for five years. However, Petitioner's database showed the exemption had expired on January 1, 2004, by operation of new law. Walega provided Respondent with a copy of the exemption he renewed on October 29, 2003. The exemption stated on its face that it was effective for five years. The owners had no actual knowledge that the exemption expired on January 1, 2004, as a result of a change in the Workers' Compensation Law. Petitioner admits that it issued the exemption to Walega knowing that the exemption would expire on January 1, 2004. Petitioner issued the exemption so that Walega could use it until January 1, 2004.
Recommendation Based on the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order dismissing the disputed charges against Respondent for the relevant period, refunding any overpayment by Respondent, and sustaining the remaining allegations and penalties against Respondent. DONE AND ENTERED this 27th day of August, 2004, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 27th day of August, 2004. COPIES FURNISHED: David C. Hawkins, Esquire Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-4229 Susan McLaughlin, Esquire Law Offices of Michael F. Tew Building 800, Suite 2 6150 Diamond Center Court Fort Myers, Florida 33912 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Pete Dunbar, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
Findings Of Fact The Petitioner, Darryl James McGlamry, is an inmate under the supervision of the Respondent. The Petitioner is incarcerated at Dade Correctional Institution. The Respondent is the Department of Corrections, an agency of the State of Florida. The Petitioner has challenged Rule 33-5.006(8), Florida Administrative Code. The Challenged Rule governs the visitation privileges of unmarried inmates. The Petitioner has alleged that the Challenged Rule "impairs the Petitioner's substantial interest in that it restricts the Petitioner's First Amendment Right of Freedom of Association, as it substantially limits the number of female visitors that the Petitioner may have." The Petitioner has also alleged that the Challenged Rule is invalid because the restriction on visitation of the Challenged Rule is: . . . contrary to the Civil Rights Act of Florida, Chapter 760.01, Florida Statutes. 11. As such, it is an "invalid exercise of delegated legislative authority". The Respondent does not have the authority to pass rules that are contrary to other statutes. This amounts to vesting unbridled discretion to the agency in violation of Section 120.52(8)(d), Florida Statutes. The Amended Petition is devoid of any alleged facts which, if proven, would support a determination that the Challenged Rule is invalid under Section 120.56, Florida Statutes.
The Issue The issue in this case is whether Petitioner has, pursuant to section 435.07, Florida Statutes, demonstrated by clear and convincing evidence that she should not be disqualified from employment in a position involving direct contact with children or developmentally disabled persons and, thus, whether the intended action to deny an exemption from disqualification from employment is an abuse of the agency’s discretion.
Findings Of Fact The Agency Action Petitioner seeks an exemption from disqualification to allow her to serve as a direct care service provider for One Mainstream, a direct services provider for developmentally disabled clients. APD is the state agency responsible for licensing and regulating the employment of persons in positions of trust, and charged with serving and protecting children or adults with developmental disabilities. Vulnerable populations served by APD include individuals with developmental and intellectual disabilities, autism, cerebral palsy, spina bifida, Prader-Willi syndrome, and Down’s syndrome. Some of APD’s clients are incapable of expressing their needs, or unable to express whether something is wrong. As part of the application process for employment as a direct services provider with One Mainstream, Petitioner was subject to a routine pre-employment background screening pursuant to section 435.04. The screening revealed the existence of two disqualifying criminal incidents (resulting in three charged offenses) in Petitioner’s past. The offenses were described in the Joint Prehearing Stipulations as follows: In April 1998, Petitioner committed her first disqualifying offense, Domestic Violence Battery, a first degree misdemeanor. Petitioner failed to appear before the court and an arrest warrant was issued. Subsequently, Petitioner pled nolo contendere to the offense and adjudication was withheld. Petitioner was approximately thirty-four years old at the time of this offense. Petitioner was ordered to pay various court costs/fines. In January 2002, Petitioner contemporaneously committed her second and third disqualifying offenses, two counts of Domestic Violence Battery, first degree misdemeanors. Petitioner failed to appear before the court and an arrest warrant was issued. Petitioner contends there was no physical violence involved in these offenses. Petitioner pled guilty to the offenses and was adjudicated guilty. Petitioner was approximately thirty-seven and nine months old at the time of this offense. Petitioner was ordered to serve thirty days in the county jail and pay various court costs/fines. As a result of the background screening results, Respondent determined that Petitioner was disqualified from further employment in a position of special trust with children or the developmentally disabled. On February 16, 2015, Petitioner filed her Request for Exemption. All such requests are made to the Department of Children and Families, which conducts the initial background investigation. The file was assigned to Beatriz Blanco, DCF’s central region background screening coordinator. By July 10, 2015, the request for exemption had been assigned to Respondent. Daniella Jones, APD’s state office exemption background screening coordinator, requested additional information regarding Petitioner’s drug counseling and anger management courses. The record is not clear as to which items contained in Respondent’s Exemption Review file, if any, were submitted in response to Ms. Jones’ request. Among the items submitted by Petitioner in support of her Request for Exemption were a completed employment history record; information related to her having obtained a certified nursing assistant license; and six letters of recommendation. The Exemption Review file also included Petitioner’s written explanation of the disqualifying offenses and subsequent non- disqualifying incident1/; and copies of law enforcement, prosecution, and court documents related to the disqualifying offenses, a subsequent non-disqualifying incident, and three prior non-disqualifying incidents. Petitioner responded to the best of her ability to each request for information. Among the factors identified by Mr. Lewis as bases for the recommendation of denial of the exemption by staff was the perception that Petitioner’s answers to questions about her past conduct were “immature,” that she did not take responsibility for some of the past incidents, and that she did not show sufficient remorse for those incidents. The exemption request was ultimately provided by APD staff to the director of APD, who entered the notice of denial on August 27, 2015. Petitioner’s Background Petitioner grew up in a tough neighborhood in Brooklyn, New York. Her parents were hard drinkers, and she was raised in an environment in which the use of alcohol was accepted. By the time she was 17 years of age, Petitioner was a drinker and a “brawler.” Over the years, Petitioner’s issues with alcohol led her into drunken choices that resulted in the brushes with law enforcement and the criminal justice system described herein. Petitioner readily acknowledged that she had been an alcoholic during the times when she committed the disqualifying offenses. The Disqualifying Offenses 1998 Disqualifying Offense On or about April 18, 1998, Petitioner was told by a friend that her husband was staying with a girlfriend at an apartment in a nearby town. Petitioner “had some drinks” and went to the apartment to confront her husband. She burst in on the husband and his girlfriend unannounced and became embroiled in a brawl. The police were called. By the time the police officer arrived, Petitioner was gone. The police report,2/ which was based on the statements of the husband and his girlfriend, indicated that Petitioner threw a conch shell at the husband, striking him in the head, whereupon she left the apartment, returning to throw a boot at the husband which missed and broke a clock. Since Petitioner was not on the scene, and based on Petitioner’s testimony described herein, an inference is drawn that the husband and girlfriend painted as exculpatory a picture as possible, omitting anything that could cast any blame on the husband for the incident. Petitioner testified that the altercation was not nearly as one-sided as portrayed in the hearsay police report, with the husband holding her down and choking her at one point. She denied throwing the conch shell, but admitted throwing the boot and breaking the clock. Although the evidence suggests that Petitioner may indeed have thrown the shell, the evidence also supports that the husband was more than a passive victim. Petitioner was arrested for “domestic violence (simple).” She pled nolo contendere to Battery (Domestic Violence), a first-degree misdemeanor. Adjudication of guilt was withheld, and Petitioner was ordered to pay $620 in court costs. 2002 Disqualifying Offense On or about January 23, 2002, Petitioner was involved in an altercation with her boyfriend, in which her sister was involved. Petitioner was, according to the police report, “intoxicated and [ ] belligerent.” Petitioner had earlier received an inheritance from her mother, which she used to buy a house in Tampa, Florida. Her boyfriend moved in with her. The money soon ran out. Nonetheless, the boyfriend would not get a job, would not contribute to expenses, and would not move out. Petitioner and the boyfriend got into an altercation when she tried to evict him, during which Petitioner hit him with a frozen porterhouse steak. Petitioner indicated that she selected that as her weapon of choice, since he was eating all of her steaks but not paying for them. Petitioner was unclear as to the involvement of her sister, Geraldine Dreviak née Schubert, who also lived in Petitioner’s house, but denied that her sister was injured during the fracas. Petitioner introduced a letter from Ms. Dreviak in which Ms. Dreviak confirmed the boyfriend’s indolence, described her participation in requests that he leave, and substantiated Petitioner’s testimony that Ms. Dreviak was not injured. No objection was raised as to the authenticity of the letter, though it was noted that the letter was hearsay. The letter was admitted, and is used in this proceeding “for the purpose of supplementing or explaining other evidence.” § 120.57(1)(c), Fla. Stat. Thus, the evidence supports a finding that Ms. Dreviak suffered no physical injury in the altercation between Petitioner and her boyfriend. As a result of the altercation, Petitioner was arrested for “simple battery.” She pled guilty to Battery (Domestic Violence), a first-degree misdemeanor. Petitioner was sentenced to 30 days in jail, with credit for time served, and assessed $678 in court costs and liens. Petitioner completed or was lawfully released from all nonmonetary sanctions imposed by the courts, and all fees and costs related to the two disqualifying offenses were paid. Other Non-Disqualifying Offenses Properly Considered Offense In September 2002, Petitioner was arrested in New York with several other persons for Criminal Possession of a Controlled Substance in the Seventh Degree, a misdemeanor. The controlled substance was cocaine. Petitioner contended she was wrongfully accused, but pled guilty to the offense and was adjudicated guilty. She testified that she just wanted to be done with the incident, and failed to appreciate the effect it would have in her later life. Petitioner was sentenced to time served and her license was suspended for six months. The incident was not only a singular and isolated event of its kind, but was Petitioner’s last involvement with law enforcement. Improperly Considered Offenses As set forth in the Joint Prehearing Stipulations, Petitioner was involved in the following non-disqualifying offenses: In September 1983, Petitioner committed the offense of Disorderly Conduct. Petitioner was convicted for this offense and adjudicated guilty. Court records concerning this offense were destroyed in compliance with the Criminal Court of New York City’s records retention policy. Petitioner was approximately nineteen years and five months old at the time of this offense. In October 1988, Petitioner committed the offense of Criminal Possession of Stolen Property. Petitioner contends she was wrongfully accused, but pled guilty to the offense and was adjudicated guilty. Court records concerning this offense were destroyed in compliance with the Criminal Court of New York City’s records retention policy. Petitioner was approximately twenty-four years and six months old at the time of this offense. In December 1994, Petitioner committed the offense of Criminal Mischief with Reckless Property Damage. Petitioner pled guilty to the offense and was adjudicated guilty. Court records concerning this offense were destroyed in compliance with the Criminal Court of New York City’s records retention policy. Petitioner was approximately thirty years and eight months old at the time of this offense. Respondent considered it to be significant that Petitioner was unable to provide information regarding non- disqualifying incidents3/ despite the fact that she had no control over New York City’s records retention policy. Mr. Lewis noted that it would have been to the benefit of Petitioner to have provided records of those non-disqualifying offenses since, without those records, Respondent could not fully review that information. In denying the exemption, Respondent considered the information in totality, including the non-disqualifying offenses committed from 1983 through 1994. Petitioner’s failure to provide a “detailed explanation” of those offenses was a factor in Respondent’s decision. Section 435.07(3)(b) plainly provides that: The agency may consider as part of its deliberations of the employee’s rehabilitation the fact that the employee has, subsequent to the conviction for the disqualifying offense for which the exemption is being sought, been arrested for or convicted of another crime, even if that crime is not a disqualifying offense. (emphasis added). Considering evidence of non-disqualifying crimes committed prior to the disqualifying offenses exceeded the powers and duties granted by the Legislature. Thus, Respondent’s consideration of non-disqualifying offenses that occurred prior to the conviction for the disqualifying offenses was error. Evidence of Rehabilitation Petitioner’s last disqualifying offense occurred on January 23, 2002. Petitioner’s last involvement with law enforcement of any kind occurred in September 2002. Petitioner has no arrests or involvement with law enforcement of any kind since then. At some point, the passage of time itself is evidence of rehabilitation. While by no means dispositive, the passage of almost 14 years since the last disqualifying offense is substantial evidence of Petitioner’s rehabilitation. Petitioner showed contrition and remorse for the disqualifying offenses. Petitioner has been married since 2008 to a man that she describes as supportive. Thus, the stresses of the abusive relationships that led to her disqualifying offenses have been alleviated. Petitioner initially provided letters from six persons who were acquainted with Petitioner, two of whom testified at the final hearing. The letters were sincere, left the impression that they were written by persons with knowledge of Petitioner’s present character, and were consistent with and corroborated by the testimony of witnesses at the hearing. When Petitioner filed her Request for Administrative Hearing, she provided letters of support from four additional persons who knew Petitioner, one of whom testified at the final hearing. As with the previous letters, the letters were sincere, and fully consistent with the witness testimony taken during the hearing. Petitioner has been licensed as a certified nursing assistant, though the date of her licensure was not specified. She has not been able to practice under her license due to the issues that are the subject of this proceeding. Petitioner testified convincingly that she has turned her life around, and is not the same person that she was when she was a drinker. Petitioner’s Work History The Employment History Record form that is part of the Request for Exemption requests “employment history for the last three years.” Petitioner provided an employment history that indicated employment from May 11, 2011, to the date of the filing of the Request for Exemption. During that period, Petitioner was employed to perform custodial duties at the First Baptist Church of Weeki Wachee Acres, and worked as a cook for functions held at the church. Her work ethic and performance was, and is, exemplary. In addition to the foregoing, Petitioner has attended to the needs of Billy Bowling on a volunteer basis for the past five or six years. Mr. Bowling, who is 49 years of age, is significantly developmentally disabled. At the hearing, he displayed obvious affection for Petitioner. Mr. Bowling’s mother, Patsy Bowling Anderson, testified that, at one time, the family employed a licensed direct service provider who was unacceptably rude, and upset Mr. Bowling. Since then, Petitioner is the only person outside of her family that Mrs. Anderson allows to care for Mr. Bowling. Mrs. Anderson testified that she had complete trust that Petitioner would do nothing that would result in harm to her son. Her testimony was substantiated by that of Major Anderson. The testimony of the Bowling/Anderson family was credible and compelling, and is accepted as convincing evidence of Petitioner’s rehabilitation. In addition to her care for Billy Bowling, Major Anderson and Mrs. Anderson testified that Petitioner, on her own time and without compensation, provides care and assistance to elderly neighbors, and to children at their church, all without incident. Their testimony is credited, and is accepted as further evidence of Petitioner’s rehabilitation. Additional Clear and Convincing Evidence of Rehabilitation Mr. Lewis testified that when disqualifying offenses involve violence, Respondent looks for evidence of anger management counseling. The information provided to the APD director suggested that Petitioner had undergone no anger management courses that would mitigate the possibility of a recurrence of the incidents that occurred in 1998 and 2002. The lack of such evidence was, in this case, a significant factor in the recommendation of denial to the director. Although the evidence of counseling in the Exemption Review file was spotty, the evidence adduced at hearing from Petitioner and Mrs. Anderson was convincing that Petitioner is an active, and successful, participant in Alcoholics Anonymous. Petitioner acts as a sponsor for others and on occasion, has taken it on herself to conduct meetings when group leaders have failed to appear. She has been sober for more than ten years. Since both of Petitioner’s disqualifying offenses were largely fueled by alcohol, ongoing participation in Alcoholics Anonymous is a more appropriate and effective means of rehabilitation than a class in “anger management.” Petitioner has been fortunate to find herself in what, by all accounts, is an embracing and supportive community. The individuals testifying on her behalf expressed their firm conviction that Petitioner had turned her life around, with Mrs. Anderson, who has known Petitioner for 14 years, characterizing the change as “remarkable.” None of the witnesses could identify any reason to suggest that Petitioner would not be able to provide capable and safe services to children and developmentally disabled persons. Ultimate Findings of Fact Petitioner meets the objective criteria for an exemption from disqualification established in section 435.07(1). When the decision was made to deny the exemption, it appears that APD staff provided the director with information as to non-disqualifying offenses that occurred prior to the disqualifying offenses. It is not known how, or whether, that impermissible information may have colored the director’s decision. Nonetheless, an evaluation of Petitioner’s suitability for an exemption should be made without consideration of those earlier events. The credible testimony and evidence in this case established, clearly and convincingly, that Petitioner has been rehabilitated from her disqualifying offenses, and that she currently presents no danger to the vulnerable population served by Respondent if she is allowed to be employed as a direct service provider. The concerns expressed by Respondent in formulating its intended action, without the benefit of the hearing testimony, particularly those regarding her lack of “anger management” classes and her lack of remorse for her actions, were effectively refuted by the credible testimony at hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Agency for Persons with Disabilities approving Petitioner, Catherine Schubert Rivera’s, request for an exemption from disqualification. DONE AND ENTERED this 10th day of November, 2015, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 2015.
The Issue Whether the Respondent failed to make a reasonable accommodation in order to allow the Petitioner to perform his job functions and thereby committed an unlawful employment practice constituting discrimination that is prohibited by the Florida Civil Rights Act.
Findings Of Fact Miami-Dade County is a political subdivision of the State of Florida. The Respondent, Miami Dade County Consumer Service, is a department of Miami-Dade County. The Petitioner, Carlos A. Mangual, is an employee of Miami-Dade County, Florida (the County). He currently is employed as the security manager for the Port of Miami. The Petitioner has held his current position since April of 2001. Prior to his current position, the Petitioner was a Parks and Recreation Security Supervisor for the County. As a supervisor he was eligible to participate in seminars and training meetings that were geared toward making supervisors aware of personnel rules and regulations. During his employment with Parks and Recreation, the Petitioner attended a meeting regarding the Americans with Disabilities Act (ADA). Mr. Collins is the County's Employee Relations ADA specialist who was the guest instructor for the supervisor's certification program. Mr. Collins met the Petitioner at the ADA meeting and discussed with the Petitioner whether the Petitioner's weight (and size) would be considered a disability under the ADA provisions. Subsequently, while employed with the County, the Petitioner was involved in an automobile accident that resulted in a knee injury. The Petitioner has undergone two surgeries to correct the damaged knee. Because the knee has adversely affected the Petitioner's gait, he also suffers back pain from the incident. The knee injury, resultant back pain, and residual physical impairments have caused the Petitioner to receive a workers' compensation overall impairment rating of 8 percent. For purposes of this case, the Respondent does not challenge such impairment. Subsequent to the accident and knee injury, the Petitioner applied for a position with the Respondent. Such position, Consumer Protection Inspector/Officer, required the Petitioner to attend to office duties for approximately 1-2 hours per day and to "be on the road" the rest of the time. Consequently, while working as a Consumer Protection Inspector, the Petition logged anywhere from 100 to 200 miles per day in a County-owned vehicle. The Petitioner began his probationary status with the Respondent in January 2000. During the probationary period, the Petitioner received monthly job performance evaluations. After approximately 5 months and while still during his probationary status, the Petitioner was not retained as a Consumer Protection Inspector. Instead, he was returned to the Parks Department where he continued employment with the County until he began his current position with the Port. The Petitioner considered the return to Parks a "demotion" based upon his alleged disability. It is undisputed the Petitioner requested a larger vehicle during his tenure with the Respondent. The Petitioner maintained the mileage logged in small vehicles was damaging to his knee and uncomfortable. The Petitioner claims he was entitled to an accommodation under the ADA because of his alleged disability. During his time with the Respondent, the Petitioner did not make a formal request for an accommodation. In fact, the credible evidence supports a finding that the Petitioner obtained the form but did not file it with supporting medical documentation as advised by the County's ADA specialist. The Petitioner maintains that the small vehicle assigned for his use required him to frequently stop and stretch. Such stops were necessary because the interior of the vehicle did not allow for an extension of his leg. There is no evidence that the employer refused to allow the Petitioner to make such stops or that the Petitioner was adversely evaluated because of the stops. During the Petitioner's probationary period, the Respondent did not have a larger vehicle readily available to assign to the Petitioner. Vehicles that might have become available would have been assigned based upon seniority with the Respondent. The Petitioner went back to Parks prior to such vehicles becoming permanently available to the Respondent. The Petitioner's impairment rating has not affected his abilities to walk every day, to drive to and from his place of employment, to shop, to engage in leisure activities, or to go to a gym once a month for workouts. There is no evidence of any life activity that Petitioner cannot perform as a result of his knee impairment. The Petitioner was fully able to perform the functions of his job. The Petitioner performed his job with the Respondent even when using a small vehicle. The Respondent never refused a request for an accommodation from the Petitioner. The Petitioner's informal inquiry regarding how to seek an accommodation was never formally filed. The Petitioner's size as well as any knee impairment contributed to the uncomfortable nature of the small vehicle used by the Respondent. This was especially true when the Petitioner was required to share the vehicle with another employee.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the Petitioner's complaint. DONE AND ENTERED this 30th day of May, 2002, in Tallahassee, Leon County, Florida. ___________________________________ J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 2002. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Carlos A. Mangual 1290 Northeast 135th Street North Miami, Florida 33161 Consumer Services Miami Dade County 140 West Flagler Street, Suite 901 Miami, Florida 33128 Eric A. Rodriquez, Esquire 111 Northwest 1st Street, Suite 2810 Miami, Florida 33128-1993 Ana M. Urrechaga, Esquire Urrechaga, P. A. 8603 South Dixie Highway, Suite 209 Miami, Florida 33143
Findings Of Fact 6. The factual allegations in the Stop-Work Order and Order of Penalty Assessment, the Amended Order of Penalty Assessment, and the 2"4 Amended Order of Penalty Assessment, which are fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Alex Sink, Chief Financial Officer of the State of Florida, or her designee, having considered the record in this case, including the Stop-Work Order and Order of Penalty Assessment, the Amended Order of Penalty Assessment, and the 2°4 Amended Order of Penalty Assessment served in Division of Workers’ Compensation Case No. 09-283-1A, and being otherwise fully advised in the premises, hereby finds that: 1. On October 8, 2009, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued a Stop- Work Order and Order of Penalty Assessment in Division of Workers’ Compensation Case No. 09-283-1A to CHARLES M. EIDENS, JAMES A. HABAN , RITA ZARNIK, AND RICHARD E. EIDENS, d/b/a PAINT BUSTERS OF THE EMERALD COAST, INC., A DISSOLVED FLORIDA CORPORATION, AND PAIN T BUSTERS OF THE EMERALD COAST, INC. (“PAINTBUSTERS”). The Stop- Work Order and Order of Penalty Assessment is attached as “Exhibit 1” and fully incorporated by reference. The Stop-Work Order and Order of Penalty Assessment was personally served on October 8, 2009, on PAINTBUSTERS. The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein PAINTBUSTERS was advised that any request for an administrative proceeding to challenge or contest the Stop-Work Order and Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Stop-Work Order and Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. 2. On November 13, 2009, the Department served by certified mail an Amended Order of Penalty Assessment on PAINTBUSTERS. The Amended Order of Penalty Assessment is attached hereto as “Exhibit 2” and fully incorporated herein by reference. The penalty assessed on PAINTBUSTERS was $98,242.15. The Amended Order of Penalty Assessment included a i Notice of Rights wherein PAINTBUSTERS was advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. 3. On November 24, 2009, PAINTBUSTERS submitted a Request for F ormal Hearing (“Petition”). The Petition was forwarded to the Division of Administrative Hearings (“DOAH”) and assigned DOAH case number 09-6634. 4. On January 8, 2010, the Administrative Law Judge granted the Department’s Motion to Amend Order of Penalty Assessment. The 2°4 Amended Order of Penalty Assessment superseded the original Amended Order of Penalty Assessment and increased the penalty to $98,336.87. A copy of the 2"! Amended Order of Penalty Assessment is attached hereto as “Exhibit 3” and fully incorporated by reference. 5. On March 25, 2010, the Administrative Law Judge issued an Order Relinquishing Jurisdiction and Closing File in Case No. 09-6634 as a result of PAINTBUSTERS failing to comply with DOAH’s request for a Status Report. A copy of the Order Relinquishing Jurisdiction and Closing File is attached hereto as “Exhibit 4” and fully incorporated herein by reference.
Findings Of Fact 11. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on March 12, 2009, and the Amended Order of Penalty Assessment issued March 30, 2009, which are fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Alex Sink, Chief Financial Officer of the State of Florida, or her designee, having considered the record in this case, including the Stop-Work Order and Order of Penalty Assessment and the Amended Order of Penalty Assessment served in Division of Workers’ Compensation Case No. 09-075-1A, and being otherwise fully advised in the premises, hereby finds that: 1. On March 12, 2009, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued a Stop-Work Order and Order of Penalty Assessment in Division of Workers’ Compensation Case No. 09-075-1A to REGIONAL CONCRETE, INC. The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein REGIONAL CONCRETE, INC. was advised that any request for an administrative proceeding to challenge or contest the Stop-Work Order and Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Stop-Work Order and Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. 2. On March 12, 2009, the Stop-Work Order and Order of Penalty Assessment was served by personal service on REGIONAL CONCRETE, INC. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3. On March 30, 2009, the Department issued an Amended Order of Penalty Assessment to REGIONAL CONCRETE, IN C. in Case No. 09-075-1A. The Amended Order of Penalty Assessment assessed a total penalty of $122,034.51 against REGIONAL CONCRETE, INC. The Amended Order of Penalty Assessment included a Notice of Rights wherein REGIONAL CONCRETE, INC. was advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must be filed within twenty- one (21) days of receipt of the Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. 4. On April 1, 2009, the Amended Order of Penalty Assessment was served by certified mail on REGIONAL CONCRETE, INC. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. On April 20, 2009, REGIONAL CONCRETE, INC. filed a petition requesting a formal administrative hearing with the Department. The Department forwarded the petition to the Division of Administrative Hearings on June 8, 2009, and the matter was assigned DOAH Case No. 09-3046. 6. On July 24, 2009, the Department served its discovery requests on REGIONAL CONCRETE, INC., which included interrogatories, requests for admissions, and requests for production. Responses or objections to the discovery were required to be served on the Department within thirty days. REGIONAL CONCRETE, INC. failed to respond to the discovery requests within thirty days. 7. On August 28, 2009, the Department filed a Motion to Compel Discovery. The Honorable P. Michael Ruff, the Administrative Law Judge, entered an Order on Motion to Compel on September 15, 2009, which required REGIONAL CONCRETE, INC. to serve responses to the requests for admission, interrogatories, and requests for production no later than September 18, 2009. 8. On September 25, 2009, the parties filed a Joint Response to Order Granting Continuance wherein the parties agreed REGIONAL CONCRETE, INC. would submit to the Department responses to the discovery requests by October 23, 2009. Since conferring on the Joint Response to Order Granting Continuance, the Department has made several unsuccessful attempts to reach REGIONAL CONCRETE, INC. 9. On November 3, 2009, the Department filed a Motion to Deem Matters Admitted and to Relinquish Jurisdiction Pursuant to Section 120.57(1)(i), Florida Statutes, with the Division of Administrative Hearings after REGIONAL CONCRETE, INC. failed to respond to the discovery request by. October 23, 2009. A hearing on the motion was held on November 20, 2009, during which several’ unsuccessful attempts were made to contact REGIONAL CONCRETE, INC. The Department also attempted to contact REGIONAL CONCRETE, INC. by telephone after the hearing on the motion, but was unsuccessful. After the hearing on the motion, the Honorable James H. Peterson, III, the Administrative Law Judge, entered an Order to Show Cause which ordered REGIONAL CONCRETE, INC. to show good cause within seven days as to why the Motion to Deem Matters Admitted and to Relinquish Jurisdiction Pursuant to Section 120.57(1)(@, Florida Statutes, should not be granted. A copy of the Order to Show Cause is attached hereto as “Exhibit C” and incorporated herein by reference. 10. On December 3, 2009, the Honorable James H. Peterson, II, entered an Order Closing File deeming the admissions contained in the discovery requests admitted. The Order Closing File further concluded that there were no disputed issues of material fact and relinquished jurisdiction of the matter to the Department for final disposition. A copy of the Order Closing File is attached hereto as “Exhibit D” and incorporated herein by reference.
The Issue Whether Petitioner, Clarence Goosby, suffered racial discrimination when he was terminated from employment for fighting.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Petitioner, Clarence Goosby, is an African-American, who was employed by Respondent from October 13, 1999, until he was terminated on February 17, 2000. Respondent, Florida Extruders International, Inc., a manufacturing company located in Sanford, Florida, employs approximately 500 employees and is an "employer" as defined in Subsection 760.02(7), Florida Statutes. Some of the manufacturing activities at Respondent's plant are dangerous. One of these activities, melting aluminum scrap, takes place in the Cast House, which is noted as a "restricted area." Workers in the Cast House wear fire- protective clothing. On February 17, 2000, an African-American employee, Broderick Demps ("Demps"), was noticed in the Cast House where he had gone to use the restroom. A Caucasian supervisor, William Wilson ("Wilson"), questioned Demps regarding his presence in a restricted area and was advised by Demps that his supervisor had given him permission to use the restroom. Demps exited the Cast House and was followed by Wilson to another building, the Warehouse, Demps' workstation. Wilson met another supervisor, Frank Witherspoon ("Witherspoon"), as he entered the Warehouse. Wilson and Witherspoon located Demps' supervisor, Warren Lawrence ("Lawrence"), who advised that he had not given Demps permission to enter the Cast House. At this point, Demps began yelling at Wilson; his language was obscene and racial. The other supervisors tried, without success, to control Demps. Petitioner, hearing the altercation, left his work area in the same building, and recognized Demps (who he referred to as his "God-brother"), who continued yelling obscenities at Wilson. Petitioner's supervisor, Kenneth McKinney ("McKinney"), told Petitioner to return to his work area. Petitioner ignored McKinney's directive. Petitioner approached Wilson and the other supervisors and began yelling obscenities and racial slurs at Wilson. While standing in close proximity to Wilson and shouting at him, Petitioner made a quick move with his hand and arm. Wilson, believing that Petitioner was attempting to strike him, responded by striking Petitioner. Demps then struck Wilson in the head, knocking him to the floor. Both Petitioner and Demps jumped onto Wilson, striking and kicking him. Witherspoon, McKinney, and Lawrence physically pulled Petitioner and Demps off Wilson. Petitioner and Demps continued yelling obscenities and racial slurs at Wilson as they were being removed from the Warehouse. Petitioner officiously injected himself into a volatile situation involving Demps and his supervisors. By his confrontational conduct, Petitioner precipitated a physical altercation among himself, Wilson, and Demps. Witherspoon contacted Dana Lehman ("Lehman"), operations manager and highest-level executive at Respondent's plant, by radio and advised him of the altercation. Lehman immediately went to the Warehouse, where a crowd of employees had gathered in addition to the individuals mentioned hereinabove. Lehman inquired of several employees regarding the altercation but no one reported having seen it. Lehman attempted to speak to Petitioner and Demps about the incident. Petitioner and Demps were confrontational; Lehman obtained no relevant information from them. Lehman questioned McKinney, Lawrence, and Witherspoon and received their reports regarding the incident, which are detailed hereinabove. Wilson confirmed the descriptions and observations of the three supervisors/witnesses. McKinney, Petitioner's supervisor, recommended to Lehman that Petitioner be terminated for unauthorized leaving of his work area and instigating a fight with a supervisor. Respondent had in the past terminated several employees of different ethnicities for fighting. Respondent's employees' handbook (Policies and Procedures Handbook) reads, in pertinent part, as follows: Conduct Meriting Immediate Discharge Certain actions are such serious breaches of responsibilities to the company that no prior warnings or probation notices are required and may result in immediate discharge. For example: * * * Fighting or hitting another employee, or similar disorderly conduct, during work hours or on company premises. Willful disobedience (insubordination) Petitioner was aware of Respondent's prohibition against fighting and insubordination. Lehman discharged Petitioner on the day of the incident for fighting and insubordination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 9th day of July, 2003, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 9th day of July, 2003. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 David Glasser, Esquire Glasser and Handel Suite 100, Box N 150 South Palmetto Avenue Daytona Beach, Florida 32114 James W. Seegers, Esquire Valencia Percy Flakes, Esquire Akerman Senterfitt 255 South Orange Avenue Orlando, Florida 32801 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Respondent, Randolph Scott, began his employment with petitioner, Department of Health and Rehabilitative Services (HRS), on October 25, 1985. He held the position of detention child care worker 1 at the Dade Regional Juvenile Detention Center (Center) in Miami, Florida. When Scott began work, he was given a copy of HRS Pamphlet 60-1, the employee handbook which contained attendance and leave policies. According to the Center's superintendent, Dwight D. Coleman, Scott had attendance and punctuality problems from the onset of his employment. Scott was disciplined on several occasions in 1986 and 1987 for missing work without authorization and being late to work. This is confirmed in various memoranda introduced into evidence as petitioner's exhibits 1-3 and 7. To accommodate Scott and alleviate his attendance problems, Coleman reassigned Scott to a facility closer to his residence. This was because Scott had complained that the traffic congestion between his residence and the Center was responsible for him being late to work. However, the reassignment did not resolve the problems, and Scott eventually returned to the Center in March 1988. After returning to the Center, Scott's attendance was "sporadic" at first but, after April 23, Scott never returned to work except to pick up his paycheck. On those occasions, Coleman asked Scott for an explanation of his absences but received no satisfactory reply. At no time after April 23 did Scott give a reason for his absence in writing or prepare and submit a written leave request as required by HRS rules. Also, Scott was never authorized by a supervisor to be absent from work. At hearing, Coleman explained that he continued to allow Scott to remain on the payroll after April 23 because he was trying to help Scott work out his problems and Scott was a career service employee. According to Scott, he was paid through May 27, 1988. On May 27, 1988 Coleman sent Scott a letter by certified mail advising Scott that his absences since April 23 were not authorized, career service system rules provided that an employee was deemed to have abandoned his job after being absent three consecutive days without leave, and that he must "report to work immediately and provide an explanation for (his) absences." Scott denied receiving the letter since he maintained it was mailed to the wrong address. However, when Scott returned to the Center on June 8 to pick up a paycheck, he was given a copy of the letter. At that time, he declined to fill out a leave form as required by HRS rules and gave no valid reason for being absent. Although Scott made an oral request to take leave, no leave was authorized, and he did not return to work again. On June 13, 1988 Coleman sent Scott a second letter by certified mail advising him that he had been deemed to have abandoned his job effective June 8 by virtue of being absent for three consecutive workdays. Scott acknowledged that he received this letter. On July 21, 1988 Scott requested a hearing to contest the agency's decision. Prior to his termination, Scott had numerous conferences with Coleman and Ernestine W. Thurston, personnel manager for the Center. Despite these meetings, and instructions by them that he comply with HRS leave and attendance policies, Scott never submitted a formal written request for leave. At hearing Scott acknowledged that he did not attend work after April 23 and that he did not fill out a leave request. He declared he had verbally asked for time off but that his assistant supervisor did not "understand" his problems. These problems included being evicted from his apartment, a fear of being arrested at the job site for failing to make child support payments and a death in his fiance's immediate family. Finally, Scott admitted receiving a copy of the employee handbook when he began employment and conceded he was aware of the agency's leave and attendance policies.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered by the Department of Administration concluding that respondent has abandoned his job. DONE AND ORDERED this 18th day of November, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officers Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1988.
