Findings Of Fact Donn M. Patterson, Petitioner, was employed by the City of Lakeland, Florida as a Water Plant Operator I (WPO I) in 1982 and was promoted to Water Plant Operator II (WPO II) in 1985 or 1986 after obtaining his Class C WPO license. In July 1988 Petitioner was involved in a motorcycle accident in which he received serious head injuries and was unable to return to work for nearly one year. Because of his extended absence he was terminated on June 26, 1989. (Ex. 10). In 1990 Respondent had a vacancy for the position of WPO I and advertised for applicants for this position. Petitioner was one of those applicants. WPO I is an entry level position for which Petitioner met all the requirements. Petitioner has completed more than two years of college and, on the examination given to the 60-65 applicants for the WPO I position, Petitioner received a higher score than did the individual who was hired, Perry Cochran. Petitioner testified that he went to the water plant and went through the various tasks that water plant operators perform while on duty, and that he, with some minor adjustments, could perform all of those functions. No medical evidence was presented that Petitioner could or could not perform the duties required of a WPO I. However, the stipulation of the parties that the only issue for resolution is whether Respondent's stated reason for not employing Petitioner is pretextual, removes the requirement that Petitioner demonstrated that he is in the covered position of handicap. Petitioner's supervisor while he was employed by the City of Lakeland, John Sluski, is presently Superintendent of Production. Sluski has worked his way up in the Lakeland Water Department from WPO I, II, and III to Chief Operator, temporary superintendent and superintendent. Most of the time while Petitioner was employed by Lakeland Sluski was Chief Operator whose principle function was to supervise water plant operations and water plant operators. A municipal water plant is a 24 hour per day operation with three shifts each 24 hours. The day shift (from 6:45 a.m. to 2:45 p.m.) has a lead operator (WPO III) and 3 or 4 WPO IIs. The afternoon shift (2:45 - 10:45) has a lead operator, one or two WPO IIs and the midnight shift has a lead operator only part of the time and a WPO II in charge the balance of the time with another WPO II and a WPO I. Petitioner generally received satisfactory performance evaluations during the period from 1982 until 1985 as a WPO I. His evaluation as a WPO II in July 1986 was also satisfactory; however, his evaluation in August 1987 (Ex. 2) was decidedly below his previous evaluations and contained numerous adverse comments about Petitioner's performance and attitude. Similarly, Petitioner was recommended for merit pay increases each time he was eligible except in August 1987. (Ex. 3) Although Petitioner's evaluation in August 1987 showed only 8 days Petitioner was late for work, Mr. Sluski testified that Petitioner was frequently late reporting for his shift and that this was irritating to the person he was to relieve and destructive of morale at the plant. This lateness varied from a few minutes to an hour or more and the person to be relieved had to remain on duty until Petitioner relieved him. During the period between December 1983 through January 1987 the time cards (Ex 7) showed Petitioner late reporting for work some 166 times. When Sluski spoke to Petitioner about his tardiness Petitioner's attendance would improve for a short while but then revert. When Sluski received Petitioner's application for the WPO I position in 1990 he called Petitioner's latest employer, The City of Dundee, and was told Petitioner had been terminated. This factor plus the numerous times Petitioner had been late for work while employed by the Lakeland Water Department led Sluski not to interview Petitioner for the position and to employ Perry Cochran. Petitioner testified, without contradiction, that he was terminated by the City of Dundee because he lived too far away to be on call in an emergency situation which the job required.
Recommendation It is recommended that the Petition for relief from an unlawful employment practice, based on handicap, filed by Donn M. Patterson against the City of Lakeland, be dismissed. DONE and ORDERED this 6th day of January, 1993, in Tallahassee, Leon County, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1993. COPIES FURNISHED: Timothy J. McCausland Assistant City Attorney 228 S. Massachusetts Avenue Lakeland, Florida 33801-5086 Robert H. Grizzard, II, Esquire P.O. Box 992 Lakeland, Florida 33801-5006 City Clerk City of Lakeland 228 South Massachusetts Avenue Lakeland, Florida 33801-5086 Margaret Jones/Clerk Florida Human Relations Commission Bldg F, Suite 240 325 John Knox Road Tallahassee, Florida 32303 4149 Dana Baird, Esquire General Counsel Florida Human Relations Commission Bldg F, Suite 240 325 John Knox Road Tallahassee, Florida 32303 4149
Findings Of Fact Respondent, Lois Green, is a resident of Florida and owns the property known as the Nichols Post Office located on Highway 676 in Nichols, Polk County, Florida. There is one employee stationed at the post office and members of the public use the post office for U.S. mail purposes. On October 11, 1990, Petitioner advised Respondent that the source of water that she used to supply the post office building did not comply with the requirements of the Florida Administrative Code. Thereafter, on September 23, 1991, Petitioner issued an Administrative Complaint to Respondent, advising of Petitioner's notice of intent to assess a fine of $100.00 per day until the corrections were made or for 30 days, whichever occurred first. At the hearing, Petitioner orally amended paragraph 4 of the Administrative Complaint to change the reference "December 22, 1989" to "October 4, 1990." Following service of the Administrative Complaint on Respondent and for 30 days thereafter, the water source for the post office building was a well located behind the post office on Respondent's property. In approximately December of 1991, Respondent disconnected the well which was presently serving the post office and connected to another well located adjacent to the property which supplied a residential home. The well which provided water to the post office was originally drilled as an irrigation well. The well head was located approximately 50 ft. to the closest septic tank and restroom pipe outlets. That well had no raw sample taps or a pressure tank with an inlet or outlet. Additionally, there was no surface protection pad nor were quarterly bacteriological samples taken to measure the water quality samples. Finally, the well was not approved by Petitioner prior to placing it into use by Respondent. Sometime subsequent to 30 days after Petitioner issued the Administrative Complaint to Respondent, Respondent abandoned the well without notifying the Petitioner and connected to a residential well which also contravenes the setback requirements contained in Chapter 17, Florida Administrative Code. Specifically, that well is approximately 30 ft. from the on-site sewage disposal system (septic tank) and is in violation of Rule 17- 555.302, Florida Administrative Code, formerly Rule 17-22.615(2), Florida Administrative Code. Petitioner's agent, Mark Fallah, during times material, was employed in Petitioner's Code Enforcement Section and was charged with investigating the problems surrounding Respondent's supply of water to the Nichols Post Office. Throughout the course of employee Fallah's involvement with the investigation of this matter, there have been several proposals and counter-proposals which have been exchanged by and between Petitioner and Respondent. Petitioner's agent Fallah attempted to see if a variance could be obtained whereby Respondent could continue to use the then existing well despite the fact, however, that it was in violation of the setback requirements. Additionally, Fallah attempted to get Respondent to make certain minor changes and modifications to the existing well which were not successful. Throughout the course of the parties negotiations in an effort to resolve this matter, there has been certain concessions made by both sides; however, the well which supplies the post office is a water system which is noncompliant with applicable statutory and rule requirements. Petitioner, through its employee Fallah, checked with a local well drilling company, Dunham Well Drilling Company, to obtain an estimate for a well. That company gave an estimate of approximately $2,000.00 to $3,500.00 to install a water supply system to the post office which would comply with Petitioner's requirements.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a Final Order imposing an administrative fine against Respondent in the total amount of $3,000.00 of which amount $2,500.00 shall be suspended pending Respondent's initiation of a plan to construct and install a water well system to provide the Nichols Post Office which complies with Petitioner's requirements enunciated in Chapters 403 and 381, Florida Statutes and Rule Chapter 17, Florida Administrative Code. In the event that Respondent fails to initiate a plan of correction and complete the installation of the well within sixty (60) days of the date of Petitioner's entry of its Final Order, then Petitioner shall be authorized to impose the full administrative penalty of $3,000.00 without further administrative proceedings. Respondent shall submit to Petitioner the five hundred dollar ($500.00) administrative fine within thirty (30) days from the entry of Petitioner's Final Order. DONE and ENTERED this 22 day of April, 1992, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this day of April, 1992. COPIES FURNISHED: Raymond R. Deckert, Esquire Asst District Legal Counsel HRS District VI Legal Office 4000 W Dr Martin Luther King Jr Blvd Tampa, Fl 33614 Mygnon Evans, Esquire 5600 US Highway 98 N Lakeland, Fl 33809 Richard S. Power Agency Clerk Dept of Health and Rehabilitative Services 1323 Winewood Blvd Tallahassee, Fl 32399 0700 John Slye, Esquire General Counsel Dept of Health and Rehabilitative Services 1323 Winewood Blvd Tallahassee, Fl 32399 0700
Findings Of Fact In a case before the Seventh Judicial Circuit, St. Johns County, Florida, Case No. 2154, the 16 Mile Creek Water Control District, a drainage district, was incorporated pursuant to provisions in Chapter 298, Florida Statutes. Subsequently, in Special Act 87-502, the Florida legislature changed the name of 16 Mile Creek Water Control District to Flagler Estates Road and Water Control District. This special act became law without the governor's approval. On December 3, 1990, the District employed Ms. Underwood. From that date until September 1, 1994, Ms. Underwood was employed as a part-time administrative secretary and at times served as secretary to the District governing board. At various intervals Ms. Underwood's work performance was reviewed. The more recent evaluations were made on April 1, 1993 and October 20, 1993, in which the District through its supervisor found that Ms. Underwood met performance expectations in fulfilling her job. On April 7, 1994, Horace Freeman, Sr. was placed on the District's Board of Supervisors. The Board of Supervisors was ultimately responsible for Ms. Underwood's employment with the District. Freeman's principal concerns when taking office were related to procedures followed in the District's administrative office, accountability for equipment and proper utilization of manpower in the District. At that time, Messrs. Martin and Cox were the other Board members. Mr. Martin was the Board President. Mr. Freeman also believed that Chapter 298 required that the minutes be kept appropriately together with other important documents concerning the District's operations. On June 18, 1994, Bobby Stewart was elected to the Board of Supervisors. He took Mr. Martin's position on the Board. Immediately following those events Mr. Freeman was elected Board President. Mr. Stewart became Secretary to the Board. Mr. Cox's service on the Board included dates through September 15, 1994. He was replaced on an interim basis by Mr. Rousseau. In June, 1995, Mr. Rousseau was elected to fill the position that Mr. Cox had filled. Upon taking office as Board President, Mr. Freeman placed Mr. Stewart in charge of the Board's administrative functions. Mr. Freeman, as President was responsible for the overall District operations. In that capacity he instructed Mr. Stewart and Ms. Underwood to update the Board minutes. Mr. Freeman was interested in establishing definite policies and procedures to be followed by the District. He believed that the policies and procedures that existed when he took office were not adequate. When Mr. Freeman took office there was a personnel manual in effect that contained a limited number of instructions as to rights and opportunities for all citizens to be employed with the District; working hours; pay periods; holidays; paid leave; responsibilities of the foreman of the District, who is the day-to-day supervisor at the District; evaluation of employees, and the basis for modification of the personnel manual. The manual made the foreman of the District responsible for interviewing, hiring, and terminating employees with the consent and approval of the Board of Supervisors. The foreman was expected to evaluate each employee of the District once every six months. These evaluations were to be presented to the Board of Supervisors on October 1 and April 1 of each year. The expectation was that the evaluations would be discussed with the employee before presentation to the Board and would be used as a tool to improve employee performance. Before Mr. Freeman and Mr. Stewart took office as Board members, the April 1, 1994 evaluation for Ms. Underwood had not been conducted. In the personnel manual under the heading "Modification of Personnel Manual", the Board reserved the right to make changes to the personnel manual by additions, deletions, or other modifications and to set forth supplemental regulations related to personnel and personnel policy. Under the terms of the personnel manual in effect when Mr. Freeman and Mr. Stewart took office, the District working hours were 7 a.m. to 5:30 p.m., Monday through Thursday. District employees were given 1/2 hour for lunch period and a 15 minute break in the morning and a 15 minute break in the afternoon. Concerning paid leave, employees who were employed for a period of six months accrued 40 hours of annual leave and 20 hours of sick leave. Beyond that initial six months period the employee would earn leave at the rate of 80 hours per year annual and sick leave at 40 hours per year, with sick leave not to exceed a maximum of 200 hours. Ms. Underwood was an employee subject to the terms of the personnel manual that have been discussed. In addition to the personnel manual, the District had a set of statements referred to as the "standardized employee requirements and expectations." This document was modified by Mr. Freeman. In pertinent part this set of requirements and expectations indicates that "excessive tardiness will not be tolerated." That document intimated that prior approval from the Board of Supervisors would be necessary if the employee intended to be late for work. In March 1993 Ms. Underwood had been made aware of the provision concerning tardiness. On June 20, 1994, a meeting was held between Mr. Freeman, Mr. Stewart and Ms. Underwood. At that meeting Mr. Freeman told Ms. Underwood that Mr. Stewart was assuming administrative duties for the Board. At times in the past Ms. Underwood had performed those duties as Board secretary. Under those past arrangements Ms. Underwood as Board secretary reported directly to the Board of Supervisors. Under the arrangements imposed by Mr. Freeman, Ms. Underwood would report to Mr. Stewart who in turn reported to the full Board. In effect, Ms. Underwood was the secretary to Mr. Stewart who was the secretary to the Board. When Mr. Stewart assumed his duties as Board Secretary, Ms. Underwood was not working in that capacity. At that time Ms. Underwood was the administrative secretary in the District office. At the June 20, 1994 meeting Mr. Freeman offered the opportunity for Ms. Underwood to become a full-time employee working 40 hours a week. Mr. Freeman also offered the opportunity to go from the District office to the City of Hastings for her lunch period, assuming her willingness to accept a one hour lunch period, given that the trip to Hastings and back to the District could not be made in 30 minutes. Mr. Freeman specifically told Ms. Underwood that she could not go to Hastings, get her lunch and come back to the District and eat her lunch. Ms. Underwood was left to consider the options to become a full-time employee and expand her lunch period. Ms. Underwood was given a week to decide how much time she wished to work and what lunch hour she wished to use. At the time the discussion was made concerning hours of work, Ms. Underwood was working four days, 32 hours a week. By accepting the 40 hour work week she would be entitled to the benefits of a full time employee. When the question of her work hours was brought to Ms. Underwood's attention again one week beyond the June 20, 1994 conversation, Ms. Underwood was not interested in changing her hours of employment or lunch period. Ms. Underwood was reminded that she would not be allowed to go to Hastings to get lunch and then drive back and still operate under the 30-minute lunch period. In summary, Ms. Underwood continued in her work day of 8 a.m. to 4:30 p.m., Monday through Thursday with 30 minutes for lunch. On June 20, 1994, Mr. Freeman explained to Ms. Underwood that Mr. Stewart would be working and training in the District office on a daily basis. Ms. Underwood was told to show Mr. Stewart all the daily functions of the office, having in mind that Mr. Stewart would make a presentation to the full Board concerning any changes that were needed in the office operations. In the June 20, 1994 meeting Mr. Freeman mentioned the need to update the District Book of Records. Mr. Freeman also mentioned the need to replace the cover to the Book of Records in that the old Book of Records referred to 16 Mile Creek instead of Flagler Estates Road and Water Control District. It was Mr. Freeman's intention to purchase a new binder with a correct title. In particular, Mr. Freeman discussed the need to organize the documents necessary to compile the Book of Records for the District. Ms. Underwood never started this task. Mr. Freeman reminded Ms. Underwood once a week to accomplish the organization of documents for compiling the Book of Records. In the beginning, during the weekly discussions, Ms. Underwood would tell Mr. Freeman that the project to organize documents necessary for the book of records had begun. Then Ms. Underwood told Mr. Freeman that the work had been completed. These remarks to Mr. Freeman concerning the completion of that task were made at a Board meeting in August, 1994. In this conversation Mr. Stewart was there to observe and not comment. On the June 20, 1994 date, a written document was produced and discussed. It was directed to Ms. Underwood and read to her. Ms. Underwood protested that this arrangement in which Mr. Stewart sat there while Mr. Freeman read the document was in violation of her rights. Ms. Underwood stated that Mr. Freeman had no right talking to her as an employee with another supervisor in the office. Mr. Freeman stated that Mr. Stewart was not there to make comments, rather Mr. Stewart has been brought into the room so that he would be aware of what Mr. Freeman was presenting to Ms. Underwood. If Ms. Underwood questioned Mr. Freeman concerning the discussion, then Mr. Stewart would be aware of those topics. When the June 20, 1994 document was presented to Ms. Underwood she did not question its substance. In the June 20, 1994 document presented to Ms. Underwood, Ms. Underwood was told that she was to report directly to the Secretary of the Board, Mr. Stewart. She was told that she was responsible for the daily secretarial duties associated with the administrative affairs of the District Office and matters directed by the Board of Supervisors. Her working hours and lunch period were not filled in pending her decision. Those working hours and lunch period, once the decision was made, would be complied with unless the President or Secretary of the Board instructed Ms. Underwood otherwise. The written document told Ms. Underwood that Mr. Stewart would be working/training in the Office on a daily basis and that she should show Mr. Stewart all functions and daily procedures. Those procedures were to be recorded by Mr. Stewart and that information would be forwarded to the Board of Supervisors for review and establishment of new written procedures to be used by the District. Through discussion and through the document presented to Ms. Underwood, Ms. Underwood was made aware that accounts payable would be placed in chronological order. Ms. Underwood was told through the written document that all forms being used by the District would be reviewed for update and change by July 7, 1994. Moreover, the book of records would be updated and assembled to meet the guidelines in Chapter 298 and the Florida Administrative Code by July 7, 1994. On the week following June 20, 1994, Mr. Freeman reminded Ms. Underwood that the verbatim tapes of meetings and workshops conducted by the Board had not been removed from the floor and placed in the fireproof cabinet as he had told Ms. Underwood to do on June 20, 1994. When Mr. Freeman made his comments on the week following June 20, 1994, Ms. Underwood said that there was no room in the fireproof cabinet. She wanted to know what she was supposed to do to deal with the lack of space in the cabinet. Mr. Freeman told her to keep documents in the fireproof cabinet going back about 5 years and remove the documents older than 5 years and put them in regular cabinets that were not fireproof. Mr. Freeman explained that the tapes of the meetings were more important than some of the documents that were in the file cabinet. These tapes were official records of the District and needed to be protected against destruction. The tapes were in a box sitting on the floor. The dates of the tapes went back several years. In the discussion which Mr. Freeman had with Ms. Underwood about a week after the June 20, 1994 meeting, Mr. Freeman also told Ms. Underwood that she needed to take some of the old records out of the fireproof cabinet, because those records in the cabinet needed to be "straightened out", as well as providing space to protect the tapes. On July 7, 1994, at a Board meeting, Mr. Freeman discussed the employee work assignments for the District, to include Ms. Underwood. At that meeting the employees were presented with a memo concerning work assignments. In addition rules and directives were discussed and a document prepared and provided to the employees concerning rules and directives for employees. The document concerning rules and directives reminded the employees that the administrative office was the responsibility of Mr. Stewart as Board Secretary and Ms. Underwood as secretary to Mr. Stewart. The administrative office, in accordance with this memorandum, was responsible for, among other things, legal records, contracts, bids, materials requested, warrants, and the Book of Records. The rules and directives which pertain to Ms. Underwood and other employees, and about which Ms. Underwood was made aware, indicated that District employees would not leave the District grounds during work hours without the knowledge and approval of the Board or its designee. Employees were made aware that violation of rules and standards set forth by the District Board would result in disciplinary action, including the possibility of termination. The employees did not question the contents in the July 7, 1994 memorandum concerning rules and directives while in attendance at the July 7, 1994 meeting. Mr. Freeman gave verbal instructions to Ms. Underwood about compiling the minutes of the District commencing in 1971 and continuing into the future. Mr. Freeman told Ms. Underwood once a week for several weeks and at Board meetings that the minutes needed to be compiled. This work was not done until January 15, 1995, following Ms. Underwood's departure from the District. In particular, Ms. Underwood was expected to compile the original minutes and place them in a book that was already in existence. Ms. Underwood did not do this. The minutes were to have been copied between June 20 and July 7, 1994 and the originals placed in the fireproof cabinet. Copies were for purposes of public access. The minutes were not copied. Mr. Freeman told Ms. Underwood on a weekly basis, commencing June 20, 1994, to make copies of the original minutes and then place the originals in a fireproof cabinet. When Ms. Underwood would tell Mr. Freeman that there was not room in the cabinet to place the minutes, that is when Mr. Freeman told her to remove some of the older files and put them in another cabinet. Later when room was made to place the original minutes in the fireproof cabinet, it took approximately 5 to 10 minutes to remove other items to make room. Although Mr. Freeman told Ms. Underwood on June 20, 1994 and once a week beyond that date to make copies of the original minutes for public inspection, Ms. Underwood did not do this. The reasons which Ms. Underwood gave for not accomplishing this task that she did not have time or it would just take a little while. At one Board meeting Ms. Underwood told Mr. Freeman that the minutes had been copied and were up to date, when in fact they had not been. This occurred on the first Board meeting in August, 1994. Ms. Underwood did not update the overall office files as required by instructions given on June 20, 1994. Mr. Freeman recounts that Ms. Underwood had been told to update the District files concerning warrants, bills, and information about venders with whom the district did business. The District files had not been in order in the past. Ms. Underwood was instructed to get them in order and the Board allowed Ms. Underwood to use a previous color-code system for updating files, a numbering system or an alphabetical system. Mr. Freeman expected Ms. Underwood to update the files as to vender accounts, warrants and bills, within 30 days from June 20, 1994. Other files that needed to be updated, unassociated with vendor accounts, were to be concluded within a "short time" based upon a representation from Ms. Underwood to Mr. Freeman as to time needed to accomplish the task. Mr. Freeman told Ms. Underwood that in cleaning out the fireproof cabinet that she could make room by taking out vendor information prior to the 1990's. As described Mr. Freeman, commencing June 20, 1994, he instructed Ms. Underwood to put verbatim tapes of Board meetings in the fireproof cabinet. Mr. Freeman reminded Ms. Underwood to do this on a weekly basis. Ms. Underwood never moved the tapes from where they were located and into the fireproof cabinet. Mr. Freeman observed Ms. Underwood entering the Lil' Champ in Hastings, Florida, to get her lunch. He made this observation on two occasions. On one occasion the observation was made at 1:10 p.m. Mr. Freeman consulted with Mr. Stewart and was told that Mr. Stewart had not given permission for Ms. Underwood to go to Hastings at lunch. For the two occasions upon which Mr. Freeman saw Ms. Underwood in Hastings getting lunch, Ms. Underwood made no adjustment to her time records to reflect that she took longer than 30 minutes for her lunch period. Ms. Underwood was obligated to make that adjustment to the time records. Concerning the two occasions upon which Mr. Freeman had seen Ms. Underwood getting lunch at Hastings, this was subsequent to June 20, 1994, when Ms. Underwood had been told that she could not go to lunch and bring the lunch back and eat at the District. Ms. Underwood had not started the project of copying the original minutes for public inspection, replacing the original minutes in the fireproof cabinet, updating District files and making room in the fireproof cabinet for the verbatim tapes of Board meetings and workshops when Ms. Underwood was suspended on September 1, 1994. On June 21, 1994, Mr. Stewart met Ms. Underwood. He told Ms. Underwood to make copies of the minutes and place the originals in the fireproof cabinet. He also told Ms. Underwood to take the verbatim tapes of Board meetings from the floor and put them in the fireproof cabinet. At that point, Ms. Underwood made no comment about the instruction concerning placing the tapes in the fireproof cabinet. As Mr. Stewart clarified in his testimony the original minutes were in the fireproof cabinet and were to be returned to that cabinet once copies were made. The copies of the minutes were to be used to serve the public and need not be placed in the fireproof cabinet. On June 21, 1994, Mr. Stewart told Ms. Underwood to update District files for the last five years and put earlier files in storage by placing the earlier files in a box and putting them upstairs after labeling the earlier files. This referred to placing the earlier files in an upstairs area to the District offices. Later on, Ms. Underwood stated that there was not room in the fireproof cabinet. Mr. Stewart reminded Ms. Underwood that if the files for the work period earlier than the last five years were removed, then there would be room in the fireproof cabinet for the tapes. On June 21, 1994, Mr. Stewart told Ms. Underwood that he wanted Ms. Underwood to compile the records to be placed in the Book of Records and to make copies of those original documents for a duplicate book of records. In compiling the Book of Records, Ms. Underwood was to take into account the records of the supervisors who ran the District's daily operations. The Book of Records includes transactions of the Board of Supervisors, minutes, legal documents, publications, and the accountant's report, together with any other record of the official business of the Board. Following the June 21, 1994 conversation, Mr. Stewart came to the District office approximately every day. On these visits, Mr. Stewart would remind Ms. Underwood concerning the need to make the copies that were referred to on June 21, 1994. From July 19 through July 29, 1994, Ms. Underwood missed work due to illness. After Ms. Underwood's return to work from her illness, Mr. Stewart made mention about making the copies that were discussed with her on other occasions. Ms. Underwood never began the project for organizing the Book of Records and making copies for a duplicate Book of Records. This failure was discussed with Ms. Underwood on several occasions, to include the date upon which Mr. Stewart decided to recommend to the Board that Ms. Underwood be suspended. Ms. Underwood did not make any progress in updating the files, as required by Mr. Stewart. Mr. Stewart examined the files and could not ascertain that the files had even been moved following his instructions to Ms. Underwood. What Mr. Stewart had in mind was that Ms. Underwood should remove from the fireproof cabinet miscellaneous items that did not need to be kept in the fireproof cabinet further back than five years. Ms. Underwood did not remove the miscellaneous documents from the fireproof cabinet and put them in storage, as instructed. Mr. Stewart told Ms. Underwood many times that Ms. Underwood should update the files. On one occasion when Mr. Stewart discussed the need to update the files, Ms. Underwood commented that she had to start updating the files. From Mr. Stewart's observation, which is accepted, Ms. Underwood had adequate time to attend her other duties and perform the tasks that he had assigned. In April of 1994, the District made application to the Department of Environmental Protection (DEP) to replace culverts within the District's jurisdictional boundaries. In fact, what the District really intended was to take the culverts from one location and put them in another location without replacing them in the initial location. Contrary to requirements set forth by the DEP, the District failed to publish the proposed conditions for the permit issued by the DEP. Ms. Underwood was responsible to make the publication in accordance with requirements established by the DEP. Ms. Underwood failed to make the publication through oversight. The failure to publish was not reported to DEP. Consequently, DEP contacted the District around July 1, 1994. Someone employed by the DEP spoke to Mr. Stewart and instructed Mr. Stewart to publish the permit terms in a newspaper which was well circulated in Flagler County, Florida. After that publication was made, the DEP employee told Mr. Stewart to take a copy of that publication out of the newspaper and attach it to a letter and send it to the DEP employee. After receiving that information, the DEP would close its file, thus, avoiding a possible $500.00 fine for noncompliance with the publication requirement. The DEP employee did not request Mr. Stewart to provide an affidavit of proof of publication from the newspaper in concluding the matter, which was the ordinary manner in which publication was proven. In turn, Mr. Stewart had the permit notice published in the July 7, 1994 edition of a local newspaper. Mr. Stewart took the copy of that notice of publication and gave it to Ms. Underwood to put with a letter to be mailed to the DEP employee. Later Mr. Stewart observed the copy of the notice of publication on a pink pad located on Ms. Underwood's desk. Following his instructions to Ms. Underwood nothing had transpired for 26 days, when Mr. Stewart sent a copy of the publication of notice to the DEP on August 14, 1994. The newspaper publication which Mr. Stewart sent was a separate copy from the copy which he observed on Ms. Underwood's desk. Before mailing a copy of the newspaper publication on August 14, 1994, Mr. Stewart observed that the copy of the publication that had been on Ms. Underwood's desk still remained there. When Mr. Stewart initially discussed the newspaper publication with Ms. Underwood, Ms. Underwood remarked that it did not have an affidavit from the newspaper concerning proof of publication and that the affidavit would not be available until the publication notice had been paid for. Nonetheless, Mr. Stewart explained to Ms. Underwood that the arrangement was one in which a copy of the notice of publication would be forwarded without an affidavit from the newspaper concerning proof of publication. On August 22, 1994, in a conversation between Mr. Stewart and Ms. Underwood, Ms. Underwood stated that she had sent the notice of publication to the DEP. Ms. Underwood did not say when she had forwarded the proof of publication. On August 29, 1994, Mr. Stewart notified Ms. Underwood that she was suspended. The grounds for the proposed suspension that Mr. Stewart intended to present to the Board of Supervisors included: Failure to produce assigned work on time. Failure to maintain files and important records. Failure to respond to important agencies as requested. Failure to maintain paperwork. Failure to maintain accurate time records. Reporting for work late. Misleading information to Supervisors. Failure to comply with assigned duties from the Board. Negligence of duties. Ms. Underwood was not presented with this list of alleged misconduct until a Board meeting on September 1, 1994, without discussion. At the meeting of the Board of Supervisors held on September 1, 1994, Mr. Stewart moved and was seconded by Mr. Freeman to suspend Ms. Underwood until further discussion on September 15, 1994. At the meeting the Ms. Underwood asked that she be paid her vacation pay that had accrued. Mr. Stewart moved and Mr. Freeman seconded a motion to suspend Ms. Underwood without pay; however, a decision was made to pay Ms. Underwood one week of accrued vacation pay and that motion for vacation pay carried. Ms. Underwood had worked for the district until the morning of August 29, 1994, when Mr. Stewart informed Ms. Underwood that she was suspended. On September 9, 1994, Ms. Underwood's attorney, Geoffrey B. Dobson, wrote to Mr. Stewart asking that any hearing concerning the charges against the Ms. Underwood be postponed until the specifics of those charges against Ms. Underwood were provided in writing by the Board. The correspondence went on to specify the information which Ms. Underwood wished to obtain. The requests parallel the allegations that had been provided to Ms. Underwood on September 1, 1994. On September 14, 1994, Mr. Stewart responded to Mr. Dobson's request by correspondence in which it was stated: Pursuant to your request for specific written statement, I would like to respond as follows using numbers which correspond to your letter: On June 21, 1994, Mrs. Underwood was given five (5) tasks that pertained to her job duties and the safety and care of records of Flagler Estates Road and Water Control District. These duties were to commence immediately. These duties were: Make copies of all original minutes and file them in the fire proof cabinet. Make copies of copies for public information. As of August 22, 1994 this was never started. On June 21, 1994, Mrs. Underwood was to update files, since files dated back ten (10) years and there was not room for recent files. As of August 22, 1994 this was never started. Mrs. Underwood was to notify the Department of Environmental Regulations of an April publication oversight. On August 22, 1994, this was achieved twenty-six (26) days later. Mrs. Underwood was instructed to maintain the fire proof cabinet so room could be made for meeting tapes that are on the office floor. On August 22, 1994 this was never started. Mrs. Underwood was instructed to start organizing the documents and records needed to compile the Book of Records of the Supervisors for the Flagler Estates Road and Water Control District. On August 22, 1994 this was never started. See paragraph 1(b) above. See paragraph 1(c) above. See paragraph 1(a) above. Mrs. Underwood has often left her job early for lunch, which she gets ten miles away from her job or returns late from lunch. On a thirty minute lunch break she has often been late for work, but her time records show she has been on time. See paragraph 5 above. See paragraph 1(c) above. See paragraph 1(a), (b), (c), (d) and (e) above. See paragraph 1(a), (b), (c), (d) and (e) above. In response to Mr. Dobson's request, the September 14, 1994, correspondence from Mr. Stewart also indicated that any documents to be used in the Board's action against Ms. Underwood together with an employee handbook would be provided at the regular meeting to be conducted on September 15, 1994. In addition, the June 20, 1994, memorandum which had been provided to Ms. Underwood from Mr. Freeman was attached to the September 14, 1994, correspondence from Mr. Stewart. That letter from Mr. Stewart stated that the request by Ms. Underwood to postpone the hearing would be brought before the Board at the September 15, 1994, hearing. Finally, Mr. Stewart in his correspondence indicated in response to Mr. Dobson's request, that the Board of Supervisors who had any involvement with the allegations against Ms. Underwood be recused from considering the case on its merit, would be addressed at the September 15, 1994, meeting. Reference in the September 14, 1994, correspondence from Mr. Stewart to Ms. Underwood's failure to achieve certain tasks by August 22, 1994, is a mistake. The date should be August 29, 1994. Consequently, Mr. Stewart's position expressed in the September 14, 1994, correspondence wherein he described certain responsibilities by Ms. Underwood not being accomplished by August 22, 1994, should read August 29, 1994. With that correction Mr. Stewart's observation that the tasks had not been achieved is accepted. Mr. Stewart established that the reference in the charges concerning documents needed to compile the Book of Records for limited purpose of copying those records commenced with the year 1971 forward. There was no necessity to organize the preexisting Book of Records, the records before Freeman and Stewart took office. Mr. Stewart placed no time limit on Ms. Underwood concerning the making of copies, but no effort was made by Ms. Underwood to make the copies before August 29, 1994, when Ms. Underwood was suspended. Mr. Stewart observed that at times Ms. Underwood would leave for her lunch earlier than permissible or later than permissible and would not document those occasions. A reference by Mr. Stewart to Ms. Underwood taking forty-five (45) minutes of undocumented time is related to being late for work, not related to the lunch period. Instead the forty-five (45) minutes for being late was when Ms. Underwood registered her child for school and did not reflect that she was missing forty-five (45) minutes from her work. On one Thursday morning Mr. Stewart asked Ms. Underwood why she was late for work and she explained that she had been to pick up the payroll. It was not Ms. Underwood's obligation to pick up the payroll and Mr. Stewart had not been told that Ms. Underwood was picking up the payroll. Concerning Ms. Underwood being twenty-five (25) minutes late when she picked up the payroll, the problem was not that Ms. Underwood picked the payroll up. The problem was that Ms. Underwood did not make Mr. Stewart aware that she was going to be late that morning. Prior to this occasion Mr. Stewart had not mentioned Ms. Underwood's activity concerning picking up the payroll. After this occasion Mr. Stewart said that he would bring the payroll to the District office. Although Ms. Underwood was not obligated to pick up the payroll, before Mr. Freeman and Mr. Stewart took office as members of the Board of Supervisors, Ms. Underwood had customarily picked up the payroll and brought it to the District office. Prior to Mr. Freeman and Mr. Stewart becoming members of the Board of Supervisors it had been the policy for Ms. Underwood to make bank deposits during business hours. When Mr. Stewart discovered that Ms. Underwood had made a bank deposit during business hours, Mr. Stewart told Ms. Underwood that he would make the deposits from that point forward. Although Ms. Underwood had been told that Mr. Stewart would make the deposits beyond that point, Ms. Underwood continued to make bank deposits during business hours. By his remarks Mr. Stewart made it evident that he would make bank deposits and Ms. Underwood would not be allowed to make those deposits and there would be no necessity to determine the amounts of deposits as a means of deciding whether to spend the time to travel to Hastings to make the bank deposits. A one-way trip from the District office to the bank in Hastings takes a minimum of eighteen (18) minutes based on Mr. Stewart's observations. It is not clear whether the instances in which the Ms. Underwood would leave early for lunch or arrive late from lunch were occasions upon which she was making the bank deposits before Mr. Stewart had told Ms. Underwood that she was not responsible for making those deposits. On September 15, 1994, the Board considered Ms. Underwood's suspension. In that meeting the Board was represented by John Michael Traynor, Esquire. Ms. Underwood was represented by Ronald W. Brown, Esquire. At the September 15, 1994, meeting, arrangements were made to allow counsel for Ms. Underwood to inspect any documents that might be relied upon by the District in a future meeting that was convened to consider the allegations against Ms. Underwood. The meeting to consider those allegations would be convened upon thirty (30) days notice from the Board to Ms. Underwood. No further action was taken concerning the suspension. On October 31, 1994, attorney, Linda S. Calvert Hanson, who had become the District's counsel, wrote to Mr. Dobson, Ms. Underwood's attorney. In that correspondence Ms. Hanson makes reference to the September 9, 1994, letter from Mr. Dobson that has been discussed and disposition of Ms. Underwood's petition for hearing. That petition had requested that the hearing be conducted in accordance with Section 120.57, Florida Statutes. On November 3, 1994, Mr. Dobson replied to the Hanson correspondence dated October 31, 1994. Dobson's correspondence questioned the validity of the Board of Supervisors' action to suspend Ms. Underwood. It also referred to the belief that the statutory time limits for referring the Ms. Underwood's case to the Division of Administrative Hearings had expired. The correspondence referred to the belief that Ms. Underwood had been denied rights to procedural due process. The letter described the Ms. Underwood's status as being one of termination. The correspondence referred to perceived prejudice against Ms. Underwood by Messrs. Freeman and Stewart. Finally, the correspondence requested an amicable solution to Ms. Underwood's case before the Board. The November 3, 1994, correspondence for Mr. Dobson was responded to by Ms. Hanson on November 8, 1994; in that letter Ms. Hanson took issue with the characterization of Ms. Underwood's status as being terminated. Ms. Hanson was persuaded that Ms. Underwood's status was one of suspension. The letter refers to Ms. Hanson's belief that some informal negotiations had been pursued between the District and Ms. Underwood. Ms. Hanson referred to the impression that the suspension hearing would not proceed until Mr. Traynor, the former Board attorney, had instructed the Board to set the matter. The correspondence refers to the belief that Mr. Traynor had never given that instruction. In summary, Ms. Hanson expressed the belief that the time for affording a hearing consistent with Section 120.57, Florida Statutes had not expired, given the attempts at informal resolution. The November 8, 1994, correspondence also stated that the Board held the opinion that it could consider the case in lieu of appointment of a hearing officer from the Division of Administrative Hearings. Finally, the correspondence invited Mr. Dobson to consult with his client concerning the matters and to contact Ms. Hanson following that consultation. On January 5, 1995, a report by the District's attorney was made concerning Ms. Underwood's status. It stated: Inasmuch as there has been no response to my letter to Brown of November 8, regarding Ms. Underwood's suspension and the fact that she appears to be employed elsewhere, I recommend that the Board terminate her employment. Attached is a draft letter of termination to be sent to Mr. Brown, her attorney for your approval and signatures. Consistent with the attorney's report, Mr. Stewart, upon motion seconded by Mr. Rosseau, moved to terminate Ms. Underwood's employment with the District. The motion carried. Ms. Underwood was not notified of the meeting on January 5, 1995, in which the decision was made to terminate her employment with the District. On January 13, 1995, Ms. Hanson sent a charge letter to Mr. Brown setting forth the basis for the termination: Please be advised that at the January 5, 1995 meeting of the Board of Supervisors a resolution was passed to terminate Ms. Underwood's employment effective immediately for the following reasons: Failure to properly perform her duties of safety and care for the records of Flagler Estates Road and Water Control District including but not limited to: Failure to make copies of all original minutes and file them in a fire proof cabinet as required by instructions of June 21, 1994. Failure to make copies of the minutes for public inspection as required by instructions of June 21, 1994. Failure to update files as required by instructions of June 21, 1994. Failure to make room in the fireproof safe for tape recordings of district board meetings as instructed on June 21, 1994. Failure to organize the documents needed to compile the Book of Records as instructed on June 21, 1994. Repeated instances of leaving work early for lunch and returning late for work after lunch. There were other instances of her reporting late for work. This delinquency is compounded by her failure to correct her time records to properly reflect her compensable time. Failure to timely report to the Department of Environmental Regulation that there was an April publication oversight. In view of the above circumstances, it is the decision of the board that Ms. Underwood has failed to satisfactorily perform her duties and should be terminated from employment for the Flagler Estates Road and Water Control District. Pursuant to the District Rules of Procedure, Ms. Underwood has twenty-one (21) days in which to request a hearing on her termination before the Board of Supervisors for Flagler Estates Road and Water Control District. This letter is sent directly to you as her representative, based upon your letter dated September 9, 1994 giving notice of representation. Although you have not responded to my correspondence of November 9, 1994 concerning the status of Ms. Underwood, I have no notice that your representation has terminated. I trust you will convey the contents of this letter to Ms. Underwood. If you are no longer representing Ms. Underwood, please advise so that I may contact her directly. On January 18, 1995, Mr. Dobson responded to the charge letter by petitioning for a hearing. In that petition he claimed that Ms. Underwood's procedural and substantive due process rights had been violated by the District through a suspension without hearing, termination without hearing, and action taken by persons not disinterested and unbiased. Mr. Dobson asked that the Ms. Underwood be provided a Section 120.57, Florida Statutes hearing as a person affected by the District's proposed action. Further, Ms. Underwood asked that the case be held before a disinterested hearing officer assigned by the Division of Administrative Hearings, and that through this process Ms. Underwood be reinstated with back pay and granted reasonable attorney's fees. On January 27, 1995, Ms. Hanson requested the Director of the Division of Administrative Hearings assign a hearing officer to conduct a formal hearing. That request was granted. On September 9, 1994, Michele Henson was hired as a temporary secretary to fulfill the duties that Ms. Underwood had performed in the past. Ms. Henson's position as district secretary was made permanent on December 15, 1994. In the permanent position Ms. Henson is entitled to medical benefits and to retirement benefits after three (3) years of service. Ms. Henson presently works an eight (8) hour day, Monday through Thursday each week. Ms. Henson spent four (4) days copying the originals minutes. The minutes were copied from 1971 into 1995. Ms. Henson made copies of the documents in the Book of Records and placed them in a book separate from the book containing the originals. It took Ms. Henson four (4) days to copy the originals in the Book of Records. Ms. Henson's efforts produced copies from the Books of Records from 1971 into 1995. Ms. Underwood admits that she did not make room in the fireproof cabinet to place the verbatim tapes as Mr. Stewart requested. Ms. Underwood indicates that she sent a copy of the newspaper publication concerning the District's request for permit from the DEP, however, Ms. Underwood indicated the newspaper publication sat on her desk for probably around three weeks or so before she dispatched the newspaper publication. Ms. Underwood testified that she sent the newspaper publication with a letter. Her testimony concerning the letter and the newspaper publication is unrefuted and is accepted. Ms. Underwood was not aware that the District might be assessed a fine for failure to publish notice attending a permit request. Ms. Underwood admits that she did not make copies of the original minutes. Ms. Underwood states that she did not organize documents necessary to compile the Book of Records. Her reason was that no one told her what they wanted done. Ms. Underwood states that she had asked on several different occasions to discuss the matter with Mr. Stewart. Her claim that no one had explained the manner in which she was to address to the Book of Records is rejected. Ms. Underwood's assertion that she was never given guidance concerning what was to be removed from the fireproof filing cabinet to make room for the verbatim tapes is rejected. Ms. Underwood admits that she was asked to make copies of original documents so that the originals themselves would be protected. Ms. Underwood acknowledges that she did not start making copies of the Book of Records. The reason given for not doing so was because she was not sure what she was supposed to do. Ms. Underwood's claim that she had not been instructed concerning that issue is rejected. Ms. Underwood's assertion that she had been told to make copies of the minutes from June 1994 forward is rejected. In any event, Ms. Underwood had not made copies of the minutes from June, 1994 forward either. Ms. Underwood indicated that she would be late 10 to 15 minutes on Thursdays when she picked up checks for the District. Ms. Underwood's testimony that she had permission to be late for work when she registered her child is accepted. That permission was given by Mr. Stewart. Ms. Underwood recognized the necessity to advise the supervisor when she was going to be late. Her testimony that she would call a supervisor and get permission when she was late is accepted only as found in Paragraph 132, above. Ms. Underwood acknowledges that her lunch hour for the time period in question was one-half hour. In Ms. Underwood's experience, it took twenty to thirty minutes for a one-way trip to Hastings. Ms. Underwood acknowledged that she would go to lunch in Hastings after Mr. Stewart and Mr. Freeman came on the Board. Those lunch trips were when Ms. Underwood would make a bank deposit or would mail something that she felt needed to be mailed. These trips were normally made on Thursday following Board meetings. Ms. Underwood went to Hastings for lunch after Board meetings on Thursday twice a month. On Thursdays when Ms. Underwood would go and get lunch she would bring her lunch back to the District. As Ms. Underwood describes, at times she would go late to lunch when waiting on a District customer. In these instances, Ms. Underwood did not claim extra time for her employment. Ms. Underwood acknowledges that she participated in a meeting with Mr. Freeman on June 20, 1994. Moreover, she acknowledges that working hours were a matter of concern by the Board and that the employees had been instructed not to leave the District during working hours. Her response to those instructions as they would pertain to trips to Hastings to make bank deposits or for mailing, was that this was something she had always done and she just carried it over. Ms. Underwood also acknowledges the guidelines that were provided on July 7, 1994, concerning her employment. Nonetheless, Ms. Underwood believes that when she made a bank deposit or mailings she was right to do that on District time. Her perception concerning the opportunity to continue the practice of making bank deposits and mailings on District time is contrary to District policy and unacceptable. On October 20, 1994, Ms. Underwood began work with the Association for Retarded Citizens of Putnam County at the rate of $6.50 per hour. She worked 24 hours a week through May of 1995. After that time she has worked 32 hours a week. This is in contrast to the 30 hours per week with the District, where she had sick pay, vacation pay, and the right to voluntary participation in a retirement plan through an IRA. Her work with Association for Retarded Citizens of Putnam County allows sick pay and vacation pay but no retirement. Ms. Underwood received a gross salary of $190.80 a week for 30 hours, EIC and insurance when employed with the District. Other than in instances described Ms. Underwood had performed her duties with the District in an acceptable manner.
Recommendation The District has meet it's burden based upon the facts found as they relate to the allegations set forth in the charge letter, it is, therefore: RECOMMENDED: That a final order be entered terminating Ms. Underwood's employment with the District without further benefits. DONE and ENTERED this 19th day of September, 1995, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 1995. APPENDIX The following discussion is given concerning Ms. Underwood's proposed fact finding: Paragraphs 1 through 9 are subordinate to facts found. Paragraph 10 is contrary to facts found. Paragraphs 11 and 12 are not necessary to the resolution of the dispute. Paragraph 13 is rejected in the suggestion that the practice of picking up the payroll was condoned. Paragraph 14 is rejected in its suggestion that the practice of making bank deposits and mailing in Hastings was condoned. Paragraph 15 is subordinate to facts found. Paragraph 16 is subordinate to facts found in the first sentence and first phrase to the second sentence. Otherwise, it is not necessary to the resolution of the dispute. Paragraph 17 is subordinate to facts found in the first sentence. The second sentence is not necessary to the resolution of the dispute. Paragraphs 18 and 19 are subordinate to facts found. COPIES FURNISHED: Linda Calvert Hanson, Esquire Suite A 24 N.W. 33rd Court Gainesville, FL 32607 J. Michael Davis, Esquire Suite A 24 Northwest 33rd Court Gainesville, FL 32607 Geoffrey B. Dobson, Esquire Law Offices of Dobson and Brown, P.A. 66 Cuna Street St. Augustine, FL 32084 Horace A. Freeman, Sr. Board of Supervisors Flagler Estates Road and Water Control District c/o Linda Calvert Hanson, Esquire Suite A 24 N.W. 33rd Court Gainesville, FL 32607
The Issue Should Respondent be fined $500.00 for initiating repairs to an on-site sewage treatment and disposal system before obtaining a permit?
Findings Of Fact Respondent is engaged in the septic tank contracting business as a contractor licensed under Chapter 489, Part III, Florida Statutes. He does business as "Alpha." In association with his business Respondent provided services to residents at 224 North Orange Avenue, Orange City, Florida. This was related to a failed on-site sewage treatment and disposal system at that residence. To assist in providing repair service to the residence in Orange City, Florida, Respondent engaged Andy Trapp. Mr. Trapp's business is to assist septic tank contractors in obtaining necessary permits to perform septic tank contracting services. Mr. Trapp's occupation includes field work involving soil testing, measurements, and completion of necessary paperwork to assist the septic tank contractor in obtaining necessary permits. As permitting agency, usually Petitioner would accept applications submitted by Mr. Trapp in relation to the application for a permit to repair on-site sewage treatment and disposal systems, in that Mr. Trapp is recognized by Petitioner as being sufficiently qualified to submit information in support of an application for permit. On March 27, 1998, Mr. Trapp submitted an application for a permit to repair the on-site sewage treatment and disposal system at the Orange City, Florida, address, to include supporting information concerning the results of soil testing. That application was accompanied by the necessary fee to obtain a permit. The application was delivered to Petitioner's Daytona Beach, Florida, office as a matter of convenience to Mr. Trapp. Mr. Trapp realized that the actual processing of the permit application would be conducted by Petitioner's Deland, Florida, office. In that connection, Mr. Trapp realized that the application that he had submitted to the Daytona Beach office would be forwarded by interoffice transmittal to the Deland office, which would cause a delay in the processing of the application. In his experience Mr. Trapp has filed applications with the Daytona Beach office to be subsequently transmitted to the New Smyrna Beach office of the Petitioner, which ordinarily can be done late on the same day that the application was presented or by the next day. James McRae is an environmental supervisor for the Volusia Health Department, Environmental Health Office in Deland, Florida. It is his office that had ultimate responsibility for considering, and if appropriate, issuing a permit allowing Respondent to conduct necessary repairs of the failed on-site sewage treatment and disposal system at the Orange City, Florida address. Mr. McRae confirmed that the permit application, as submitted by Mr. Trapp for the repairs, had been received by the Deland office on March 30, 1998. In addition, the accompanying $57.00 fee had been transferred from the Daytona Beach office to the Deland office, as was customary, the custom being that the funds in support of an application would ultimately be received in the office from which the application would be processed and a permit number assigned, as applicable. Upon receipt of the application in the Deland office, a receipt was generated. Information concerning the permit application was placed in the computer. Assessment of the application was assigned to William Vander Lugt, Environmental Specialists II, who is part of the field staff for the Petitioner's Deland office. Beyond Mr. Vander Lugt's assignment to consider the application for the permit for the Orange City, Florida project, it was expected that he would do any necessary field work involving an inspection and any necessary soil analysis. If satisfied that the site was appropriate to effect repairs to the failed on-site sewage treatment and disposal system, Mr. Vander Lugt would issue a permit subject to approval by Mr. McRae. Mr. McRae identified that the usual turn around time for issuing permits is two to three days, assuming that the permit was applied for at Petitioner's office which would be responsible for assessing the application. In this instance the permit had been applied for at another office which delayed consideration of the permit application by the Deland office. The permit was approved on April 2, 1998, within three days of its receipt by the Deland office. Before the permit was issued, Respondent, through his employees, had commenced the repairs at the Orange City, Florida, address. The commencement of repairs was verified by an on-site inspection performed by Mr. Vander Lugt, on March 31, 1998. Although the supporting information presented by Mr. Trapp was in order and the fee had been paid, and there was no indication that any other problems existed which would prohibit the repairs from being conducted, Respondent was premature in commencing the work before the permit issued, and was unjustified in that choice.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be issued which imposes a $500.00 fine against Respondent for initiating a repair of an on-site sewage treatment and disposal system without first obtaining a permit to do the work. DONE AND ENTERED this 24th day of September, 1998, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 1998. COPIES FURNISHED: Charlene Petersen, Esquire Department of Health 420 Fentress Boulevard Daytona Beach, Florida 32114 Michael J. Jedware Post Office Box 390073 Deltona, Florida 32739-0073 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703
Findings Of Fact In approximately 1987, the Petitioner purchased land in Pinellas County, of which approximately 85 percent lies within jurisdictional wetlands. (The jurisdictional wetlands approximate the surface water mean high water line.) Some of the wetlands will have to be filled in order to construct a residential dwelling on the property. The nearest public sewer connection is over a mile away from the Petitioner's property. The only reasonable alternative for the treatment of residential sewerage is an onsite sewage treatment and disposal system. The only reasonable alternative for construction of an onsite sewage treatment and disposal system on the property would require a drainfield to be located well within 75 feet of the jurisdictional wetlands, which are surface waters of the State. In fact, the proposed drainfield would have to be as close as six to twelve feet from the jurisdictional wetlands in most places. In addition, there is a drainage ditch along the road on the western boundary of the Petitioner's property. The drainage ditch contains water for extended periods of time in the rainy summer months. The drainfield for the Petitioner's proposed onsite sewage treatment and disposal system would be approximately 21 feet from the drainage ditch. In other words, a 75 foot setback from the drainage ditch would overlap the 75 foot setback from the jurisdictional wetlands. Although the Petitioner's proposed onsite sewage treatment and disposal system is designed to function without failing during such conditions, parts of the drainfield can be expected to be inundated during the rainy season. In effect, as a result of rainfall and runoff during rainy weather, the water from the wetlands and the drainage ditch would be expected to overflow the jurisdictional line and the ditch banks and inundate parts of the drainfield. There would be a direct connection between the waters inundating the drainfield and the surface waters of the wetland and of the drainage ditch. The Petitioner proposes to have, and several neighbors have, potable water wells to supply drinking water. There are sinkholes all over the area of the Petitioner's property. It is not known whether there is a sinkhole on the Petitioner's property, but it is well known that sinkholes are common in cypress head swamps like the wetlands on the Petitioner's property. If there is a sinkhole, or if one develops, it could act as a direct conduit from the surface water to the aquifer from which the private drinking water wells in the area draw water. Contamination from the Petitioner's drainfield then would be able to contaminate the drinking water. Potential fecal coliform contamination of the surface waters adjacent to the Petitioner's proposed drainfield (both the wetlands and the drainage ditch) also could pose a public health threat. The County recently has disposed of digested sludge in the vicinity of the Petitioner's site (i.e., within approximately a mile away). (It is not clear from the evidence whether this still is taking place.) However, under applicable Department of Environmental Protection rules, the sludge was being applied to pasture at least 300 feet from cypress heads, and the County also was required to meet other environmental controls and regulations for that kind of disposal. The Petitioner's evidence did not prove that discharge from his proposed onsite sewage treatment and disposal system will not adversely affect the health of the Petitioner or the public or that it will not significantly degrade the groundwater or surface waters.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health and Rehabilitative Services (HRS) enter a final order denying the Petitioner's application for a variance. RECOMMENDED this 14th day of March, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of March, 1994. COPIES FURNISHED: R. Patrick Mirk, Esquire Post Office Box 10598 Tampa, Florida 33679-0598 David Jon Fischer, Esquire Assistant District Legal Counsel Department of Health and Rehabilitative Services 11351 Ulmerton Road Largo, Florida 34648 Robert L. Powell Agency Clerk Department of Health and Rehabiltiative Services 1323 Winewood Blvd. Tallahssee, Florida 32399-0700 Kim Tucker, Esquire General Counsel Department of Health and Rehabiltiative Services 1323 Winewood Blvd. Tallahssee, Florida 32399-0700
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: On or about August 1, 1978, respondent Pilot Properties, Inc. filed an application with the Department of Environmental Regulation for the issuance of a construction permit to expand and enlarge a wastewater treatment facility from 18,000 gallons per day to 150,000 gallons per day. The DER issued its notice of intent to issue the permit on November 13, 1978, and the Perdido Key Development Association, Inc. timely requested a hearing on said notice. Over the objection of respondent Pilot Properties, Southwest Escambia Improvement Association, Inc. was joined as a party petitioner. The Perdido Key Development Association, Inc. subsequently withdrew as a petitioner. The remaining petitioner, Southwest Escambia Improvement Association, Inc. is comprised of members who reside on, own property on or have a business interest in Perdido Key. Among its purpose are the improvement of the Perdido Key community and the protection of the environment. The members of the Association utilize Old River for recreational and commercial purposes. The proposed expanded facility is designed to serve cluster homes and condominium complexes on Perdido Key, for a total of approximately 428 units. It will utilize a contact stabilization process whereby raw sewage enters the plant from the individual units, receives treatment and then the effluent is discharged evenly through a spreader or equalizer into two percolation ponds continuing approximately 54,000 square feet. The facility is designed to remove 95 percent of B. O. D. and suspended solids. The plant is not designed to remove nutrients. The percolation ponds serve as a disposal device, and not a treatment device. The ponds are to be constructed at an elevation of six feet. Considering fluctuation, the percolation pond bottoms will be separated from the groundwater by three feet. It is an accepted DER guideline to require a three foot separation between the groundwater and a percolation pond. The conditions of the proposed permit require that a three foot buffer zone be maintained between the bottom of the ponds and the maximum groundwater elevation. The nearest edge of the percolation pond will be located approximately 105 to 110 feet from the water line of Old River. The effluent will be discharged from the plant to the percolation pond and then to the groundwater, which ultimately flows in the direction of Old River. Groundwater monitoring wells are provided to measure the level of nitrogen. The soil on Perdido Key is course-type sand, with little clay or silt. It has a very rapid vertical percolation rate. According to the respondent's witness who qualified as an expert in ecology and botany, the process of adsorption, precipitation and denitrification which occurs as groundwater moves horizontally will prevent the degradation of Old River. This witness observed no suspicious levels of phosphate in samples from Old River. This witness observed no suspicious levels of phosphate in samples from Old River. He found the phosphate nitrate and fecal chloroform level of Old River comparable to that found in other clean water bodies. The petitioner's witness who qualified as an expert in aquatic ecology took samples of groundwater and sand from various areas on Perdido Key to analyze their nitrate and phosphate content. It was his conclusion that phosphate was not attenuated by the sands and that nutrients, particularly phosphate, are being discharged into Old River from sewage treatment facilities existing on Perdido Key. He observed a shifting of the composition of flora in Old River near the site of another existing sewage treatment facility which was not designed to remove nitrates or phosphates. However, the other existing facility was not shown to be comparable in the size of its percolation ponds, the pond elevation from the groundwater or in the manner of discharge form the plant to the percolation pond. This witness did agree that the spreading or equalizing method of discharging effluent from the plant to the 54,000 square feet of percolation ponds could delay the entrance of nutrients to Old River by as much as five months. The petitioner produced a witness who was skilled in the operation and maintenance of wastewater treatment plants similar in design to that proposed by respondent Pilot Properties. This witness testified that this type of facility required greater operating time due to difficulties encountered by hydraulic imbalances on clarifiers and the upward flow of discharge. The witness had no knowledge as to the future operating plans of the respondent. The two respondents presented witnesses who were qualified as experts in the areas of design and construction of sewage treatment systems. Both witnesses had reviewed the subject permit application and were of the opinion that if the proposed plant is constructed as designed, it will meet the minimum treatment standards required by DER's statutes and rules. The application submitted by Pilot Properties was for the issuance of a construction permit. Among the conditions of the proposed issuance of such a construction permit is a requirement that the permitted obtain an operation permit sixty days prior to the expiration date of the construction permit. Prior to the issuance of an operating permit, the applicant must provide the Department of Environmental Regulation with four months of results of analysis and flow measurements. An operation permit is issued only to those facilities which are able to operate within the standards of DER's rules. If the plant does not properly operate, DER requires the necessary corrections and modifications to bring the plant into compliance. DER may also prohibit further hookups if the plant operates improperly.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the Department of Environmental Regulation issue to the Respondent Pilot Properties, Inc. the requested construction permit subject to the conditions contained in the Department's initial notice of intent to issue the permit. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 4th day March of 1980. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Honorable Jacob Varn Secretary, Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 T. Michael Patterson, Esquire 26 East Garden Street Pensacola, Florida 32501 Robert T. Fulton General Counsel Pilot Properties, Inc. 664 Cherry Street Winter Park, Florida 32789 William Hyde, Esquire Assistant General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact Respondent is registered with Petitioner for performing septic tank contracting services. In early 1991, Mr. Dennis Scott purchased a single family residence at 19169 Acorn Road in Ft. Myers. He purchased it as a rental property. About a year later, he began having problems with the septic tank system. He had the tank pumped out, but the problem returned a short time later. Mr. Scott told his maintenance man to contract with someone to fix the septic tank system. The maintenance man contacted Respondent. They agreed that Respondent would repair the system for $925. The record is silent as to specifically what the maintenance man told Respondent or what he told the maintenance man. In any event, Respondent and Mr. Scott did not converse. Respondent enlarged the existing drainfield, although the record does not indicate that he did so because he was asked to do so by the maintenance man or because Respondent thought that this repair would fix the problem. On May 28, 1992, Respondent and a team of employees appeared at the Acorn Road address to repair the septic tank system. Respondent left the site shortly after the men began work. Mr. Scott had nothing to do with the hiring of Respondent or even with paying him. Because Mr. Scott was unavailable, a friend wrote Respondent a check when the job was finished, and Mr. Scott later repaid the friend. On August 25, 1992, the system backed up again. Mr. Scott was not alarmed because of recent heavy rains. When the system backed up again a month later, Mr. Scott called Respondent, but could not get a call returned at first. Eventually, someone at Respondent's business said that he would come out and take a look at the system. In early December, 1992, the system backed up again and no one had come out to look at it from Respondent's business. At the request of Mr. Scott, another contractor visited the site and, on December 14, 1992, dug up the drainfield. The original drainfield had been installed improperly so as to run slightly uphill. This caused the system to operate inefficiently, although hydraulic pressure was evidently strong enough to draw the sewage through the drainfield. The record is unclear whether the extension installed by Respondent also ran uphill or whether Respondent improperly designed the extension. Mr. Scott and the second contractor testified that the extension ran uphill. However, one of Petitioner's inspectors inspected the drainfield addition before it was covered and certified that it was acceptable, which meant that it did not run uphill. The source of conflicting evidence, inasmuch as it comes from an employee of Petitioner, undermines Petitioner's case. The record is equally deficient to hold Respondent liable for poor design of the Acorn Road drainfield. There is no indication of what Mr. Scott wanted or, more importantly, what the maintenance man told Respondent. In any event, the evidence does not establish that Respondent installed an uphill drainfield. In early 1994, a house was listed for sale at 817 Gleason Parkway in Cape Coral. The listing agent informed the agent who had found a prospective buyer that there might be a problem with the septic tank system. The agent called Respondent's business and asked for a preclosing inspection of the septic tank system. The parties postponed the closing until the inspection could be completed and any necessary funds reserved to fix the system. The drainfield for the septic tank system at 817 Gleason Parkway was elevated due to the relatively high water table in the area. Even so, the system was poorly designed because the drainfield was too low and too small, based upon applicable requirements of law at the time of the original construction of the system and its renovation five years ago. Respondent was familiar with the system. He had reconstructed the system in 1990, although he did not redesign the new system, and had maintained the system since. He was aware that the tank had an automatic alarm that sounded when the fluid level became too high. In fact, Respondent conducted a cursory inspection due to his reliance on the automatic alarm in the tank, the imminent availability of centralized sewer service in the area, and possibly his unwillingness to disappoint a real estate agent by jeopardizing a pending sale. Among other omissions was his failure to probe the drainfield to determine its condition. Had Respondent conducted a competent inspection, he would have found that the stones in the drainfield were greasy, indicative of a failing system. Much of the time sewage water stagnated beside the drainfield mound. If pooled water were not present at the time of his inspection, the tall dollarweed growing on the mound should have alerted him to the prevailing damp conditions. Additionally, Respondent should have noticed lawnmower tracks through the typically soaked areas around the drainfield, as well as the thick grass that was uncut due to the soaked ground under it. Although water may not have been erupting from the drainfield mound at the time of Respondent's inspection, a reasonably close examination of the area would have revealed a small hole where sewage had erupted in the recent past from the mound. Instead, Respondent certified on April 4, 1994, that the "septic tank was in good working order." Respondent had been contacted to inspect the septic tank system, including the drainfield. Respondent was aware of the scope of his assignment, and his certification implied that the entire system was in good working order. Within two weeks after Respondent's certification, the system failed completely. Petitioner ordered the new owner to incur substantial expenses to repair the onsite system until he could tie into centralized sewer services.
Recommendation It is hereby RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order imposing against Respondent a $500 administrative fine and suspending his license for 90 days. ENTERED on March 30, 1995, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on March 30, 1995. APPENDIX Rulings on Petitioner's Proposed Findings 1-2: adopted or adopted in substance. 3: rejected as recitation of evidence and subordinate. 4-5: adopted or adopted in substance. 6-15: rejected as recitation of evidence and subordinate. 16: adopted or adopted in substance. 17-19: adopted or adopted in substance. 20: rejected as unsupported by the appropriate weight of the evidence. Rulings on Respondent's Proposed Findings 1-2: adopted or adopted in substance. 3-4: rejected as unsupported by the appropriate weight of the evidence, recitation of evidence, and subordinate. 5: rejected as irrelevant. 6: rejected as unsupported by the appropriate weight of the evidence, recitation of evidence, and subordinate. 7-9: rejected as subordinate and irrelevant. 10: rejected as irrelevant. The rule speaks of harm to any "person," not to a customer or other person in privity with the contractor. 11: rejected as unsupported by the appropriate weight of the evidence. 12: adopted or adopted in substance, but Petitioner's indirect responsibility does not excuse Respondent's grossly incompetent inspection of the system. 13-14: adopted or adopted in substance. 15: rejected as unnecessary. 16-17: rejected as subordinate. COPIES FURNISHED: Susan Mastin Scott, Senior Attorney Department of Health and Rehabilitative Services P.O. Box 60085 Ft. Myers, FL 33906 Thomas B. Hart Humphrey & Knott, P.A. P.O. Box 2449 Ft. Myers, FL 33902-2449 Kim Tucker, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Robert L. Powell Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
The Issue The issues for determination in this case are: Whether the City of Altamonte Springs (City) violated Sections 760.10(1)(a), F.S., by discriminating against Albert Robinson (Robinson) on the basis of his race (Black) or his national origin (Jamaican), with respect to compensation, terms, conditions, or privileges of employment; Whether the City violated Section 760.10(7), F.S., by discriminating against Robinson in retaliation for his opposition to a practice which is an unlawful employment practice under this section or because he assisted or participated in any manner in an investigation, proceeding, or hearing under this section; and If such violations did occur, what relief is appropriate pursuant to Section 760.10(13), F.S.
Findings Of Fact Petitioner, Albert H. Robinson is a black male, over 18 years of age, born in Jamaica, West Indies. Respondent, the City of Altamonte Springs, is a municipal corporation organized and existing under the Laws of the State of Florida, and admits that it is an "employer" for purposes of the Human Rights Act of 1977, as amended, sections 760.01-760.10 F.S. Robinson's account of how he arrived in the United States approximately seven years ago is bizarre, but uncontroverted, and for purposes of this proceeding is deemed true. In Jamaica, Robinson had been affiliated with the ruling People's National Party. He held the government post of Development Director in the "New Development Agency" and was in charge of approximately 300 underprivileged persons. He was also president of a youth organization within the party, and was involved in organizing youth activities and selecting members to visit Cuba as a party representative. At some point he was approached by an American embassy attache from the CIA who recruited him to provide under-cover information on the party. When that involvement became publicly exposed, he was forced to flee the country. Robinson and his family lived for awhile in Panama and other Latin American countries. When they decided to emigrate to the United States, the U.S. Government made arrangements for Mrs. Robinson and the children to enter through Miami and for Mr. Robinson to cross the border "illegally" at Brownsville, Texas. He was given authorization to work and temporary asylum. He is currently awaiting disposition of his petition for a more permanent status. Through other relatives in Florida, Robinson ended up in Altamonte Springs. At the time that he was hired by the City in September 1984, Robinson presented a letter from the INS permitting him to work during the pendency of his asylum petition. The City was thus aware of his national origin and non- citizen status. Robinson was hired as a laborer in the city water distribution division on September 24, 1984. He received two personnel evaluations during his probationary period, both "average," with every factor rated "average," and few comments. On February 7, 1985, he was promoted from laborer to utility serviceworker, a more responsible position. The serviceworker is generally assisted at a job site by the laborer, who does most of the digging. The Dixon Personnel Board hearing In April 1985, Robinson assisted a black coworker, Patrick Dixon, at his hearing before the City Personnel Board. Dixon and another black utilities worker, Carl Wilder, had been accused of making obscene and inappropriate gestures to two white women while the men were on city duty. Wilder was given a one-day suspension. Dixon, who already had a negative performance record, was given a two-day suspension. Dixon appealed the discipline to the Personnel Board. Robinson's involvement at the hearing on April 3rd was to sit behind Dixon and assist with the documents. Robinson, who had no firsthand knowledge of the incidents, did not testify. Carl Wilder did testify on behalf of Dixon. The Personnel Board, in a unanimous decision by all members present, upheld the disciplinary action. Robinson believed that Patrick Dixon had been the victim of a racial vendetta. Dixon testified in this proceeding that he, also, feels that the charge was racially motivated, yet nothing in the written documents related to his appeal supports that contention. The basis for his appeal was the insufficiency of the evidence against him and his contention that he was a bystander while Wilder, the actual perpetrator, received a lesser penalty. Shortly after the hearing Dixon was terminated for absenteeism. He did not file a discrimination complaint nor take any other action against the city. Wilder is still employed by the city, and in 1987, was promoted from laborer to serviceworker. The performance evaluation On May 3, 1985, Robinson received his first performance evaluation as a utility serviceman. His overall rating by his reporting supervisor, George Simpkins, was "average." However, he received "below average" in four categories: "ability to carry out instructions/orders"; "conduct"; "directs the work of subordinates effectively"; and "ability to make decisions within his authority." The comments in explanation of these ratings related to Robinson's failure to follow operating procedures, his temper and conflict with fellow employees, and his dictatorial manner in dealing with subordinates. Robinson was not pleased with the evaluation and wrote a letter to the Assistant Director of Public Works, Ronald Howse, asking to discuss it. Howse suggested that the discussion take place with Larry Alewine and George Simpkins, who were the supervisors responsible for the evaluation. Alewine was Simpkins' immediate supervisor. The discussion took place. Robinson now claims that Larry Alewine asked him why he followed Patrick Dixon to City Hall and claims that Alewine blamed the evaluation on his involvement with Dixon. Alewine denies this and cannot recall any notoriety with regard to Robinson's association with Dixon. Not following procedures and problems with fellow employees Robinson's difficulties in working with others and in following procedures are well-documented throughout his 1985 and 1986 employment with the city. In June 1985, he received a notice of remedial action after placing a water meter in a location where the customer wanted it, rather than where he had been directed to place it. The customer was happy, but under the city's procedures, the serviceman does not have the authority on his own to change the supervisor's direction. On November 4, 1985, Robinson had an altercation with his supervisor, Larry Alewine, regarding a meeting that Robinson wanted with Chris Hill, the recently-appointed director of the city's water distribution division. Alewine attempted to convey Hill's directive that Robinson put his request in writing, but Robinson became loud, yelled at Alewine and started to leave. When Alewine attempted to call Robinson back to discuss the matter, Robinson retorted that he (Alewine) wasn't his daddy. Right after the incident Robinson apologized for getting loud and Alewine explained that he would still have to "write him up," because he had refused to come back in the building and was hollering. Robinson claims that the incident occurred prior to 7:30 A.M., when he was still on his own time, but this claim is unsupported by Alewine or any of the other several witnesses. On November 26, 1985, Robinson and Carl Wilder were at a job site trying to locate a buried water meter. Wilder, as the laborer, was doing the digging. Robinson, his superior, insisted that Wilder keep digging in a place where Wilder did not believe the meter was located. Both men's tempers flared and Wilder called the supervisor to the site to prevent further argument. Because it was near the end of the day, Robinson was excused and Wilder was taken back to the city garage. Chris Hill spoke with both Robinson and Wilder and determined that no disciplinary action was warranted. He told Wilder that if he had any complaints or grievances about Robinson, he would have to put them in writing. Chris Hill asked other employees if they had problems working with Robinson; he did not, as alleged by Robinson, solicit written statements against Robinson from other employees in the division. Chris Hill Most of Robinson's claims of discrimination by the city are directed toward Chris Hill, who, in October 1985, was placed in charge of the city's water distribution division. The City Manager, Philip Penland, was concerned about the management of the division. The Dixon/Wilder incident was an example. Larry Alewine and George Simpkins, both white Americans, were considered to be weak leaders. Robinson and Carl Wilder were identified as employees with whom there had been problems. Chris Hill started working for the City of Altamonte Springs in 1977 as temporary summer help and laborer. He gradually worked his way up through various levels of management and was highly regarded by his supervisors and by Philip Penland as a competent and capable employee, with a positive, "can-do" attitude. He was regarded as a tough manager who could obtain top performance from his employees. In addition to his duties at Altamonte Springs, he also is in charge of water plant operations in the neighboring towns of Eatonville and Maitland. Lack of tact and finesse in dealing with people, including subordinates, have been considered Hill's weak points. Hard times in the Water Distribution Division These characteristics and Hill's direction to shape up the division led to some tense months in the division. Larry Alewine, whose management style was certainly more relaxed, openly referred to Hill as "God" and "asshole." Alewine's position had been downgraded as a result of the reorganization, and he eventually left the city in 1987 after his position was eliminated from the budget. George Simpkins left a bitter resignation notice when he resigned in October, shortly after Chris Hill's appointment. In February 1986, Larry Alewine prepared an evaluation of Robinson which was reviewed, consistent with procedures, by Chris Hill. Hill did not believe the evaluation was strong enough, in light of his knowledge of the incident with Wilder and other minor problems with fellow employees. Both Hill and Scott Gilbertson, the Assistant Director of Public Works, met with Alewine and suggested that the evaluation should be changed. When Alewine declined, Chris Hill changed the evaluation. The evaluation, dated 3/6/86, rates Robinson overall as "Employee needs improvement." The written comments are very similar to those made by George Simpkins on the May 1985 evaluation; that is, the quality of his work was deemed generally good, but his conduct, ability to follow instructions, and ability to get along with fellow employees was noted as the real problems. While it is not apparent from the evaluation itself and the testimony in this proceeding how much of the evaluation was completed by Larry Alewine, it is clear that at least some of the negative written comments were made by him. (Respondent's exhibit #2.) The meeting with management officials and its aftermath Robinson wrote a protest of his evaluation which precipitated a meeting with himself, Chris Hill, Scott Gilbertson, Philip Penland, and the City Personnel Director, Sam Frazee. The evaluation was discussed; Robinson was told that his signing the evaluation only acknowledged its receipt and that he could provide his written notations on the back of the evaluation regarding portions with which he disagreed. The group also discussed an appointment Robinson had made with the city's worker's compensation physician. He had attempted to arrange his own follow-up visit for treatment of a work-related injury. The city's policy required that the appointments with the city's physician be made after notification to the supervisor. While explaining his actions, Robinson gave contradictory versions of what he had been told by the nurse in the doctor's office regarding the procedures. His testimony at hearing was also confused and inconsistent on this point. On direct, he testified that he had been told that authorization from the city is not necessary for follow-up visits. On rebuttal, however, he stated that the nurse had told him that the city personnel department would have to be notified, but not his foreman. (TR, Vol I, p. 77, Vol IV, p. 324-325). In the course of the same meeting, Robinson made allegations of wrongdoing by Larry Alewine, stating that Alewine had a meeting with his employees and encouraged them to write grievances against Chris Hill and had called Hill an "asshole" and "God." The City Manager considered these allegations to be serious and promised Robinson that an investigation would be made. The meeting then broke up. Ed Haven, an officer with the Professional Standards Bureau of the City Police Department was assigned to investigate the allegations of misconduct. This bureau normally conducts personnel-related internal affairs investigations and considers them administrative, not criminal. The investigation was initially inhibited by Robinson's refusal to answer Officer Haven's questions unless the investigation was expanded to include Chris Hill as well. Robinson was then ordered by the City Manager to participate. The inquiry sustained the allegations that Alewine had called Hill "asshole" and "God." This investigation spawned a second investigation as to whether Robinson had ever told another employee that he lied about Alewine in order to get an investigation against Chris Hill. The issue was never resolved, but Officer Haven found that a "preponderance of evidence indicates Robinson was untruthful during this investigation...," that Robinson did have a conversation with an employee, Barry Beavers, but denied it. (Petitioner's composite exhibit #1, Memorandum of Internal Inquiry #86-9998-03, April 15, 1986). The lead Utility serviceworker positions In Spring 1986, the city created two supervisor positions in the Water Distribution Division, titled "lead utility serviceworker," to supervise and oversee the work of the utility workers and their laborers. All three utility serviceworkers applied for the jobs: Robinson, Ronnie Oliver (Black American) and Barry Beavers (White American). Robinson was never considered a viable candidate and was interviewed as a matter of courtesy. Oliver and Beavers were chosen. Robinson concedes that Beavers was qualified and properly promoted, but he disputes Ronnie Oliver's qualifications. Ronnie Oliver began work one month after Robinson, in October 1984. He worked under Robinson as a laborer for some time and he freely acknowledges that Robinson taught him a lot. Oliver also had considerable personal initiative and taught himself with the use of materials he acquired from Larry Alewine. Oliver's performance evaluations were substantially better than Robinson's; by May 1986, the time of the promotion, he was evaluated as an "Outstanding" employee. Robinson had, in fact, been on the job less than Oliver, as he had sustained a work-related injury in December 1985, and was out for weeks at a time. He had not been cleared for full-time duty when he was interviewed and was absent from work when the positions were filled. Light duty Robinson alleges that he was given "make-work" light duty when he was returned to work after his injury, and was later denied light duty. The city furnishes injured employees with light duty on a case-by-case basis, depending on the capabilities and physical condition of the individual and the needs of the employer. Robinson was first assigned floor sweeping duties in June after his recurring back problems. Later he was given the task of painting an area near Hill's office. An assistant was assigned to paint the high and low portions of the wall. He was also given a chair to sit on and rest his back. This was the lightest duty available at the city at time. Other employees including a black who had cancer, were also given routine maintenance chores. While painting, Robinson injured his neck, shoulder and hands. He never returned to work after this injury in June 1986. The city informed him in July and August that it did not have light duty available. In September 1987, the City agreed to pay Robinson $47,000.00 (including $7,000.00 to his attorney), to settle his worker's compensation claim of permanent back injury. He has since applied for reemployment. As of the hearing in this proceeding, the city was reviewing his request for reemployment. This request is not at issue here. Various grievances In Spring 1986, as the result of some publicity about the arrest of illegal aliens, the city reviewed the work authorization status of its employees. Since Robinson had initially given the city a letter from INS stating that he was eligible to work pending an application for political asylum, he was asked again for authorization. He refused at first, and claimed this was harassment. He also claimed that he was subject to derision for being a CIA spy. He had told some fellow employees about his past and the news circulated. The employees mostly did not take the matter seriously, but in an employee meeting, someone asked Chris Hill whether it was true that Albert was a CIA spy. He replied that this was what Robinson claimed. At the same employees' meeting, Hill also stated that he did not think that Robinson was going to be around much longer. He made this remark based on his knowledge of Robinson's disciplinary problems. Hill was strongly reprimanded for this remark. He did not have the authority to terminate Robinson, and management had not taken steps to terminate him. Robinson has attributed various derogatory statements and epithets to Chris Hill. He claims that Hill said that no one would take the word of a "nigger" against him and that he didn't want Americans to take orders from a Jamaican. Hill vigorously denies these statements and no credible evidence was produced to support Robinson's claims. Nor was credible evidence presented of Robinson's claim that on July 3, 1986, Hill lost his temper and spat in his face. At hearing on November 2, 1987, Robinson, through his attorney, withdrew his allegation that he was defrauded of sick leave through a forged signature. (TR Vol IV, p. 293-294.) Summary of Findings Beyond his own unsubstantiated claim that Alewine told him so, there is no evidence that Robinson's problems with the city were the result of his rather inconspicuous involvement at the Patrick Dixon hearing. His problems clearly began when he was promoted to a position of some authority over others and his temper, loud mannerisms and difficulty working with others became an issue. Beginning with his response to his first slightly negative personnel evaluation, Robinson's reaction to every event in his employment, major and minor, was lengthy, rambling, confused and confusing written grievances, memoranda and letters. Robinson also carried a tape recorder to memorialize his encounters and (in his words) "...to intimidate people from molesting me..." (TR, Vol I, p. 243). Robinson's inconsistent accounting and mixing of facts in his scenario of alleged discrimination fail to make sense. Pressure was applied to blacks and whites, alike; of the four employees targeted as "problems," the two whites are gone (Alewine and Simpkins) and one black (Wilder) has been promoted. Evidence is clear that there were serious management problems in the city's Water Distribution Division in 1985, and the atmosphere which prevailed with reorganization of the division and Hill's arrival could very well have fueled Robinson's paranoia. His vehement protestations and repetitious and rambling litany of wrongs are either a sincere confused perception, or a deliberate attempt to manipulate a situation, which because of justifiable criticism of his job performance, was becoming increasingly uncomfortable. Nevertheless, his myriad allegations of discriminatory harassment, retaliation and of unlawful failure to promote, are unsupported by competent evidence.
Recommendation Based on the foregoing, it is, hereby RECOMMENDED: That Albert Robinson's charges that the City of Altamonte Springs violated subsections 760.10(1)(a) and (7), F.S., by harassment failure to promote, and retaliation, be DISMISSED. DONE and RECOMMENDED this 16th day of February, 1988, in Tallahassee, Florida. MARY CLARK Hearing Officer 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 16th day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2482 The following constitute my specific rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings of Fact 1-5. Addressed in summary form in paragraph 3. Adopted in paragraphs 4. and 5. Addressed in paragraph 5. Adopted in part in paragraph 8. The account of discussion with Alewine is rejected as contrary to the weight of credible evidence. Adopted in part in paragraphs 6.-8., otherwise rejected as contrary to the weight of credible evidence. Adopted in paragraphs 6.-15. Addressed in paragraph 12. The characterization of Simpkins' motives and the mandate to fire the four employees are rejected as contrary to the weight of evidence. Addressed in paragraphs 15. and 16. Adopted in part in paragraph 18., otherwise rejected as unsupported by the weight of evidence or immaterial. 14-16. Rejected as contrary to the weight of evidence, except for the comment about Robinson being terminated. See paragraph 34. Rejected as cumulative, unnecessary and argumentative (rather than factual). Addressed in paragraph 14.; otherwise rejected as contrary to the weight of evidence. Rejected as unnecessary. Addressed in paragraph 13., otherwise rejected as contrary to the weight of evidence and unnecessary. Adopted in substance in paragraph 19. Addressed in paragraph 21. Rejected as contrary to the weight of evidence. Addressed in paragraph 21. Addressed in paragraph 22. Addressed in paragraph 25; otherwise rejected as unnecessary and unsupported by the competent evidence. Rejected as unnecessary. Addressed in paragraphs 33 and 34, otherwise rejected as contrary to the evidence. Addressed in paragraphs 26. through 28. Addressed in paragraphs 29. through 30. Rejected as contrary to the weight of evidence. Rejected as unnecessary. Addressed in paragraph 31. 34-35. Rejected as irrelevant. The "fraud" charge was withdrawn. See paragraph 36. 36-37. Rejected as irrelevant. Respondent's Proposed Findings of Fact Adopted in paragraph 1. Adopted in paragraph 2. Adopted in paragraph 3. Adopted in paragraph 4. Adopted in paragraph 5. 6-12. Adopted in paragraphs 6. through 8. 13-15. Rejected as cumulative. 16-22. Addressed in paragraphs 15. and 16., otherwise rejected as unnecessary. 23. Adopted in paragraph 13. 24-27. Addressed in paragraph 14. 28-34. Addressed in paragraph 19. 35-38. Adopted in substance in paragraph 20. 39-40. Adopted in paragraph 21. Rejected as unnecessary. Adopted in paragraph 22. Adopted in paragraph 23. 44-49. Adopted in paragraphs 24. and 25. in substance. 50-60. Rejected as cumulative and unnecessary. 61-66. Addressed in paragraph 32. 67-69. Addressed in paragraph 33. 70-72. Addressed in paragraph 34. 73-89. Addressed in paragraphs 26.-28.; otherwise rejected as unnecessary. Adopted in substance in paragraph 35. Adopted in paragraph 28. Adopted in paragraph 29. 93-94. Adopted in substance in paragraph 29. 95-96. Adopted in substance in paragraph 30. Rejected as cumulative. Adopted in paragraph 30. 99-102. Adopted in substance in paragraph 31. 103-110. Rejected as irrelevant. The "fraud" charge was withdrawn at hearing. See paragraph 36. COPIES FURNISHED: Tobe Lev, Esquire Egan, Lev & Siwica, P. A. Post Office Box 2231 Orlando, Florida 32802 David V. Kornreich, Esquire Muller, Mintz, Kornreich, Caldwell, Casey, Crossland, & Bramnick, P. A. Suite 1525, Firstate Tower 255 South Orange Avenue Orlando, Florida 32801 Donald A. Griffin Executive Director Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird, Esquire General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Sherry B. Rice, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
Findings Of Fact Description of Proposed Fill Project DER proposes to deny three alternative proposals to fill all or part of Petitioners' real property located in Key West, Florida. The property is rectangular, approximately three acres in size, with 300 feet bordering Roosevelt Boulevard (High-Way A1A) to the south and approximately 300 feet bordering Key West International Airport to the north. The easterly property line is 489.4 feet and the westerly line is 434.63 feet. The Straits of Florida (Atlantic Ocean) are immediately on the other side of Roosevelt Boulevard to the south. The property has a strip of approximately 90 feet of upland and transitional wetland adjacent to Roosevelt Boulevard, with the rest of the property being covered by a salt pond of approximately 40 acres in size (Jnt. Ex. 1). Petitioners initially submitted a permit application in July, 1983, to fill the entire property for construction of multifamily housing units. On May 4, 1984, after discussion with a DER permitting official, Petitioners submitted a second application containing two alternative, less extensive development proposals. The first alternative involves the placement of fill over a 300' x 230' area (approximately 9722 cubic yards) extending 230 feet from the property along Roosevelt Boulevard out into the water. This alternative would entail construction of 24 family housing units, consisting of six basic structures, each four-stories high. The second alternative involves subdividing the property into six separate lots connected by a central fill road with cul-de- sac. Each lot, approximately .4 acres in size, would contain a single family house on pilings and an associated fill pad for parking. The fill pads would be connected to a approximately 300' x 30' entrance road constructed on fill material. Presumably, this second alternative would contain the same amount of total fill as required in the first. As it presently exists, the salt pond (a part of which applicant would fill) serves several significant and beneficial environmental functions. In regard to water quality, the pond stores, filters, and purifies large quantities of storm water which drain from the airport and South Roosevelt Boulevard. The filling of any portion of this pond would diminish this capacity. (Jnt. Ex. 1) Because of their relatively isolated nature, the organic detrital material that is produced from the leaf litter of fringing mangroves is broken down into a very fine and readily usable form by bacteria. As a result, when there is an occasional exchange between the salt pond and tidal waters, the exported organics are in a very desirable form for higher trophic levels in the food web such as small fish, crustaceans, filter feeders, and various larval forms of marine life. (Jnt. Ex. 1) The salt pond proper provides valuable habitat for fish and wildlife, most notable of which are avifauna. The pond has apparently become established as a healthy, self-sustaining ecosystem providing permanent and temporary food, shelter and refuge for many faunal species which play significant and necessary ecological roles both in the salt ponds and other tidal and brackish water systems. (Jnt. Ex. 1) Through the placement of fill and the displacement of present salt pond habitat, water quality and the biological resources in the immediate and surrounding areas would be expected to undergo degradation. (Jnt. Ex. 1) Through the encroachment of development in this area, which presently lacks residential development, biological integrity standards would be expected to fall below acceptable levels. The proposed fill areas would reduce wind- driven circulation in the pond so as to stress levels of oxygen, salinity, temperature and turbidity. Runoff from the proposed fill would introduce nutrients and elevate turbidity during storm events. Finally, elevated turbidity levels could be expected during the actual filling process and the various species of fish and wildlife now located over the project site would be temporarily disturbed by construction activities and permanently displaced in the long term through the loss of habitat. (Jnt. Ex. 1) There is a 40' zoning setback and another 50' easement owned by the City of Key West, which together form a 90' strip on the property adjacent to Roosevelt Boulevard. This 90-foot strip is largely upland and some transitional wetland. There is no zoning impediment to any of the development alternatives proposed by Petitioners. The property is currently zoned R2H (multifamily residential) by the City of Key West. II. DER's Action on the Application After DER received and reviewed Petitioners initial application on July 22, 1983, a completeness summary was sent on August 17, 1983, requesting additional information. DER received the additional information on March 23, 1984, after which it notified Petitioners that additional information was needed. Petitioners met with DER officials on April 20, 1984, and submitted additional information on May 4, 1984, including the two alternative proposals. DER issued the "Intent to Deny" all three of the proposed projects on July 19, 1984 (Jnt. Ex. 1). On May 16, 1984, a DER Environmental Specialist visited the site of the proposed projects and conducted a biological and water quality assessment. This assessment was later submitted, in report form, as the Permit Application Appraisal, dated June 7, 1984. This appraisal, uncontested by Petitioners, indicates that each of the three fill proposals would take place in waters of the state and result in water quality violations under Rules 17-3.051(1), 17- 3.061(2)(c), (j) and (r); 17-3.121(7), (13) and (28); Chapter 17-4, Florida Administrative Code; and Chapter 403, Florida Statutes. Water quality problems associated with the project were identified as diminished storm water treatment, reduced beneficial deterital material, stress on oxygen levels, salinity, temperature, and turbidity, and an introduction of nutrients. (Jnt. Ex. 1) Although a DER dredge and fill permitting official testified that any filling of the salt pond would be detrimental to the birds and animals which feed there on a daily basis, and that, in his view, a "substantial amount" of filling would not be allowed by DER, there are development projects (other than the three presented by Petitioners) which, in his view, may qualify for a permit under DER rules. DER has, in the past, issued permits authorizing the construction of above-ground residences over wetland properties. Under DER's permitting standards, one or more single-family residences could be built on the property if the structures were built on stilts, did not violate water quality standards, had acceptable drainage, and did not result in adverse storm water discharges. In evaluating such an application, any mitigation an applicant could provide, such as enhancing flushing in the salt ponds by the installation of a culvert to open water, would be balanced against any adverse impacts expected from the filling activity. The three alternative filling proposals submitted by Petitioners (including drawings and designs) do not, however as yet, fall within or satisfy these general perimeters of permitting acceptability.
Recommendation Based on the foregoing, it is RECOMMENDED: That Petitioners' application to fill (containing three alternative proposals) be denied for failure to prove compliance with applicable permitting standards contained in Chapter 403, Florida Statutes, and Chapters 17-3 and 17- 4, Florida Administrative Code. DONE and ORDERED this 26th day of July, 1985, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 1985.
