The Issue Whether the Motions for Rule Challenge Proceedings (referred to as Petition(s)) filed in each of the above-cited cases meet the requirements both in form and substance, pursuant to Subsection 120.56(4)(a), Florida Statutes (2004).
The Issue Whether proposed rules of Respondent constitute invalid exercises of delegated legislative authority.
Findings Of Fact The Florida Highway Patrol (FHP), a division of Respondent, was accredited by the Commission On Accreditation For Law Enforcement Agencies, Inc. (CALEA) by notification received on November 16, 1996. For a period of five years prior to receipt of accredited status, FHP had been involved in that process. Among FHP actions taken in the process of accreditation was the revision of a policy manual for FHP members which took effect on February 1, 1996. The policy manual is issued to all FHP sworn officers and a copy is maintained at each FHP station. Chapter 3.03 of the policy manual contains the five policies challenged in this proceeding. FHP Policy 3.03.06 A 6 provides, as follows: Members will conduct themselves on and off- duty in such a manner so that their actions and behavior reflect favorably on the Division. Members will not engage in conduct which discredits the integrity of the Division or its employees, or which impairs the operations of the Department/Division. FHP policy 3.03.06 A 19 provides: Members will be courteous to the public. Members will be tactful in the performance of their duties, will control their tempers, and exercise the utmost patience and discretion and will not engage in argumentative discussions even in the face of extreme provocation. In the performance of their duties, members will not use coarse, violent, profane or insolent language or gestures, and will not express any prejudice concerning race, religion, politics, national origin, lifestyle or similar personal characteristics. FHP policy 3.03.03 A 33 provides: Involvement in political activities will not be permitted during members’ on-duty time. Political activities include soliciting or receiving any contribution for any political party or cause, or storing, posting, carrying or distributing political literature of any nature. Specifically, Florida Statutes provide that members shall not Hold or be a candidate for public or political office while in the employment of the State or take any active part in a political campaign while on-duty or within any period of time during which they are expected to perform services for which they receive compensation from the State. However, when authorized by the agency head and approved by the Department of Management Services, employees in the career service may be a candidate for or hold a local public office which involves no interest which conflicts or interferes with that state employment. Use authority of their position to secure for or oppose, any candidate, party or issue in a partisan election or affect the results thereof. Use any promise of reward or threat of loss to encourage or cause any employee to support or contribute to any political issue, candidate or party. Perform any police duty connected with the conduct of any election. Subsections (a)-(c) were taken from Section 110.233(4) and (5), Florida Statutes. FHP policy 3.03.03 A 50 provides: Members, while off-duty, will refrain from consuming intoxicating beverages to the extent that it results in impairment, intoxication, or obnoxious or offensive behavior which discredits them or the Division, or renders the members unfit to report for their next regular tour of duty. FHP policy 3.03.03 A 54 provides: Personal activities or associations of a member that knowingly create an apparent or real conflict of interest with the conduct of official duties are prohibited. A “conflict of interest” arises when a member’s private interest, whether of a financial nature or otherwise, conflicts with the member’s impartial conduct of official duties and responsibilities. Section 321.02, Florida Statutes, provides, in pertinent part, the following: [Respondent] shall set up and promulgate rules and regulations by which the personnel of the Florida Highway Patrol shall be examined, employed, trained, located, suspended, reduced in rank, discharged, recruited, paid and pensioned, subject to civil service provisions hereafter set out. Respondent provides citation to this statutory provision as the law implemented by the challenged regulations. This authority sufficiently supports adoption by reference, pursuant to 120.54 (l)(i), Florida Statutes, of the conduct regulations which form the subject of Petitioner’s challenge. Discipline for violation of the foregoing policies is applied to a member through application of Chapter 15-3, Florida Administrative Code, which contains Respondent’s disciplinary guidelines. Among those guidelines is listed the offense of violation of rules, regulations or policies. Following Petitioner’s filing on April 2, 1997, of the Petition To Determine The Invalidity Of Rules, Respondent published, on April 18, 1997, a Notice of Development of Proposed Rules in compliance with requirements of Chapter 120, Florida statutes. The text of the notice documented Respondent’s intent to adopt the FHP policy manual as an administrative rule.
Findings Of Fact At all times pertinent to the issues herein, Respondent, Lykes Brothers, Inc. operated a meat packing plant in Plant City, Florida. Hennis Washington, III was employed by Respondent at that plant as a utility worker. Petitioner, Hillsborough County, through its Human Resources and Equal Opportunity Department, had the authority to investigate and administratively enforce County Ordinances relative to unlawful discrimination in employment. Respondent is 5'1/2" tall and weighs about 114 pounds, much the same as at the time in issue. He is a power lifter and claims to be able to lift 405 pounds in a dead lift. He was employed at the Respondent's plant from July, 1991 to May, 1993, when he was terminated in the action which is the subject of this hearing. On May 24, 1993, while in the performance of his duties, Mr. Washington was carrying a stack of empty boxes from one place to another through the plant's bacon curing department. The stack of boxes he was carrying extended above his head and as a result he was unable to see in front of him. As he proceeded down the aisle, he ran into some resistance which prevented him from going further. He changed direction to the side where he could see, and which, he believed, was clear, and again ran into resistance which, this time, caused him to drop the boxes. After the boxes fell, and he could see in front of him, he observed Mr. Romero, a sanitation worker, in front of him, smiling. There is some question whether or not Mr. Romero took a step toward Mr. Washington. At hearing, Mr. Washington said he did and that he felt threatened by Mr. Romero's advance, though at his grievance hearing he did not indicate that. In response, howevever, Mr. Washington moved toward Mr. Romero, a man approximately 5'8" tall and weighing approximately 175 pounds, picked him up, and dropped him on the floor. As a result of that, Mr. Romero claimed to have injured his back and reported to the medical office by which he was released from duty for the evening. After this action, Mr. Washington was terminated from employment with the company. He is of the opinion it was because of his race, but admits he was advised by his supervisor, Mr. Freeman, it was because it was felt he had over- reacted to the situation with Mr. Romero. Nonetheless, an employee action request initiated by Mr. Freeman, dated May 24, 1993 reflected that Mr. Washington was administratively terminated. Administrative termination deals with unauthorized absences, according to the company's Employee Handbook. Mr. Freeman, himself African-American, was not present at the time of the incident, but was informed of it shortly thereafter, and called Mr. Washington to his office. Mr. Washington admitting picking up Mr. Romero, whom he did not previously know, and thereafter dropping him to the floor. Mr. Freeman, after finding out what happened, referred the matter to Mr. Harris, the employee relations manager, who is also African-American. Mr. Freeman did not interview Mr. Romero. He prepared the administrative termination notice upon direction of his supervisors. He claims the termination was based on Mr. Washington's fighting and not on the basis of his race. Mr. Harris, over a period of the next several days, conducted his independent investigation into the incident which investigation included speaking with Mr. Washington, Mr. Romero, and several other witnesses. During this period, both Mr. Washington and Mr. Romero were suspended. Mr. Harris' investigation confirmed there had been an incident, but he could find no evidence that Mr. Romero had pushed the boxes Mr. Washington was carrying. It was for that reason that Mr. Romero was not disciplined. The termination of Mr. Washington was predicated upon the fact that he had been engaged in a fight with another employee. The Respondent's personnel rules indicate that fighting, as opposed to mere horseplay, is a Class I infraction, the punishment for which can include dismissal. It includes the throwing of punches, the use of weapons, and the threat of injury. Horseplay, on the other hand, usually amounts to no more than pushing, tugging, and actions which are not likely to result in injury. In the instant case, Mr. Washington's actions constituted a direct battery of Mr. Romero which resulted in injury. It was, therefore, properly considered fighting. Mr. Harris concluded that Mr. Washington had reacted to the situation improperly. If, as he claimed, Mr. Washington felt he was being harrassed by Mr. Romero and Mr. Barbosa, who was with Mr. Romero at the time of the incident, he should have reported the matter to his supervisor rather than taking matters into his own hands. Employees are given an Employee Handbook when they begin employment with the company, and they are taught, in a four hour orientation course given to all employees, to back off from incidents of this nature - not to fight. Because he felt Mr. Washington had overreacted, Mr. Harris recommended termination, even though a check of both employees' personnel records indicated neither had any previous incidents. At the time of the incident, Lykes had approximtely 750 production maintenance employees, (Mr. Washington's category). Of this number, between 30 and 35 percent were African-American, 15 percent were Hispanic, 5 percent were other minorities, and between 45 and 50 percent white. Mr. Hampton, Lykes' Vice-President for Employee Relations, was made aware of the situation involving Mr. Washington by Mr. Harris, who recommended termination. Mr. Hampton agreed with this recommendation because Mr Washington had thrown Mr. Romero down and injured him. The recommendation for termination was not based on race and was consistent with discipline taken in prior incidents. Specifically, Mr. Hampton referred to a situation occuring not long before the instant case in which two white employees were initially terminated for an altercation they had. In that case, the investigation showed the employees had been fighting and both initially were fired. However, the union filed a grievance. A hearing was held and the decision to terminate was upheld. Thereupon, the union indicated its intent to take the matter to arbitration, and as a result of a meeting held on that issue, it was determined that the incident was more horseplay than fighting and there was little likelihood the company could prevail at arbitration. That conclusion was based on the fact there were no blows struck, there was no injury, and the incident stopped immediately upon the arrival of the supervisor. The employees thereafter were disciplined and reinstated. Mr. Washington also filed a grievance regarding his case. A hearing was held persuant to the union contract. Based on the information presented at the hearing, the grievance committee, made up of two African-American employees and one white employee, concluded there was insufficient evidence to take the issue to arbitration. This committee included the same individuals who heard the previously noted grievance, regarding the white employees. Mr. Washington asserts that because he had been assigned to a position previously held by Mr. Romero, who, he claimed, was demoted from utility to sanitation, Mr. Romero was angry with him and was looking for trouble. The evidence of record indicates that in March, 1993, Mr. Romero was transferred to another position on a different shift from that he was then occupying. The evidence also indicates the position to which Mr. Washington was assigned cannot be considered to be Mr. Romero's old position. Utility and sanitation jobs are, purportedly, on a par. Mr. Washington was assigned to a job identical to that which Mr. Romero had vacated, but on a different shift. Mr. Romero would have had no reason to think Mr. Washington took his job any more than any other utility employee. Further, there is no evidence, save the claim by Mr. Washington, that Mr. Romero acted in a threatening manner. Mr. Glisson, a witness to the incident, indicated the two "tangled". but there was no indication of aggressiveness by Mr. Romero. Taken together, while Washington may have believed Mr. Romero was threatening him, there was insufficient provocation for him to react in the way he did. Under the terms of the Employee Handbook, he should have retreated, and his actions constituted fighting which is grounds for discipline. It is impossible to conclude, from the evidence of record, that the termination of Mr. Washington resulted from anything other than a reaction to his demonstrated misconduct. Only one question remains unanswered. On June 1, 1993, an Employee Action Request was prepared, purporting to administratively terminate Mr. Washington because of fighting on the job and threats of violence. Counsel for the County claims this is an alteration of that action form prepared on May 24, 1993. Both exhibits were photo copies and it is impossible to tell, with certainty, that an alteration occurred. However, a close comparison of the copies leads to the conclusion that the latter dated form is, in reality, an alteration of the former with the dates changed, and an addition of fighting and threats with a direction to remove Mr. Washington from the payroll. No evidence was presented regarding a reason for the alteration, and nothing improper can be legitimately inferred therefrom. Counsel representing Mr. Washington makes reference to the opinion of an Appeals Referee of the Florida Department of Labor and Employment Security, dated July 30, 1993, which, in reversing the determination of the claims examiner in Mr. Washington's unemployment compensation claim, determines that he was not the aggressor in the incident that led to his discharge, and that his involvment was merely for self-protection. The Referee also finds that Mr. Washington's actions could not be viewed as misconduct connected with his work, and he is, therefore, not disqualified for unemployment compensation benefits. The Referee concludes, as a matter of law, that inefficiency, unsatisfactory conduct, and/or good faith errors in judgement or discretion are not to be deemed "misconduct" "within the meaning of the statute, (Chapter 443, Florida Statutes). The finding of the Appeals Referee is not binding on the undersigned in this action. Mr. Washington was deemed by his employers to have, by fighting, overreacted in the confrontation with Mr. Romero. Overreaction can be equated with poor judgement which, in an industry as hazardous as is meat packing, may well serve as appropriate grounds for discharge even if not classified as misconduct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Determination of No Cause be entered by the Hillsborough Human Relations Board concerning the termination from employment of Hennis Washington, III by the Respondent, Lykes Brothers, Inc. RECOMMENDED this 31st day of March, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 31st day of March, 1995. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Accepted and incorporated herein. - 5. Accepted and incorporated herein. & 7. Accepted and incorporated herein. Accepted and incorporated herein. First sentence accepted and incorported herein. Second sentence rejected as a being more a Conclusion of Law than a Finding of Fact. - 12. Accepted and incorporated herein. Irrelevant. Accepted. Accepted. - 17. Accepted. 18. Accepted. FOR THE RESPONDENT: 1. 2. & 3. 4. 5. & 6. Accepted Accepted Accepted Accepted and and and and incorporated incorporated incorporated incorporated herein. herein. herein. herein. 7. - 9. Accepted. 10. & 11. Accepted and incorporated herein. 12. Accepted and incorporated herein. 13. & 14. Accepted and incorporated herein. 15. Accepted and incorporated herein. COPIES FURNISHED: Catherine P. Teti, Esquire Office of the County Attorney Hillsborough County P.O. Box 1110 Tampa, Florida 33601 Michael D. Malfitano, Esquire Malfitano & Campbell, P.A. 101 E. Kennedy Boulevard Suite 1080 P.O. Box 1840 Tampa, Florida 33601-1840 Daniel A. Kleman County Administrator Post Office Box 1110 Tampa, Florida 33601
The Issue The issue in this case is whether the Petitioner timely filed a complaint of discrimination in accordance with the provisions of Chapter 760, Florida Statutes (2009).
Findings Of Fact Prior to November 28, 2007, the Petitioner was employed by the Respondent. On November 26, 2008, the Petitioner sent a Technical Assistance Questionnaire (TAQ) to the Florida Commission on Human Relations (FCHR). The TAQ was submitted via facsimile transmission and was not signed. The Petitioner believed she was complying with the directives of the FCHR website and that follow-up assistance (from the FCHR) would not be required. The Petitioner did not understand that a signature was required, notwithstanding the place for same (along with a date) on page 2 of the TAQ. The Petitioner maintains that the FCHR website instructions were unclear and that she erroneously relied on the directions that did not specify she was required to sign the TAQ. The Petitioner filed a signed Charge of Discrimination with the FCHR on January 14, 2009. On February 5, 2009, the Petitioner received a "Notice of Receipt of Complaint" from the FCHR. At the same time, a copy of the complaint was furnished to the Respondent, who was then, presumably, put on notice of the Petitioner's charge. The FCHR did not advise the Petitioner that the TAQ had to be signed. In the course of its review of the instant charge, the FCHR entered a determination of "untimely." Per the FCHR's assessment, the charge of discrimination was filed more than 365 days from the last incident or act of discrimination. Thereafter, the Petitioner elected to file a Petition for Relief to challenge the determination and to seek relief against the Respondent. The Commission then forwarded the matter to the Division of Administrative Hearings for formal proceedings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a Final Order dismissing the Petitioner's claim of discrimination. DONE AND ENTERED this 29th day of September, 2009, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 2009. COPIES FURNISHED: Mark Levitt, Esquire Allen, North & Blue 1477 West Fairbanks Avenue, Suite 100 Winter Park, Florida 32789 Marie C. Perez 517 29th Street West Palm Beach, Florida 33407 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether the Division of Administrative Hearings has jurisdiction to hear this cause alleging that Respondent Employer has committed an unlawful employment practice against Petitioner.
Findings Of Fact 1. Following a May 23, 2003, "Notice of Determination: No Jurisdiction," by the Florida Commission on Human Relations, Petitioner filed a Petition for Relief as more fully described below. On or about July 3, 2003, the matter was referred to the Division of Administrative Hearings and scheduled for a disputed-fact hearing on the merits for August 25, 2003. 2. On July 17, 2003, Respondent served by mail its Motion for a Summary Final Order. 3. On August 12, 2003, Respondent served by mail its Supplemental (Second) Motion for a Summary Final Order. 4. On August 14, 2003, Respondent filed and served its Notice of Filing Supplemental Materials In Support of its (Second) Motion for Summary Final Order. 5. The foregoing pleadings and the exhibits attached thereto, together with the "Determination: No Jurisdiction," which is part of the referral package from the Florida Commission on Human Relations, suggest on their face(s) that the Commission, and derivatively, the Division of Administrative Hearings, is without jurisdiction to determine this case. 6. Petitioner did not timely respond in opposition to the Motion for Summary Final Order as permitted by Rule 28-106.204, Florida Administrative Code, and in a telephonic conference call convened by the undersigned on August 19, 2003, Petitioner represented that she had never received that Motion. Petitioner offered to pick it up at Respondent's attorney's office later on August 19, 2003. 7. Petitioner had received the Supplemental (Second) Motion for Summary Final Order, but from her oral representations in the telephonic conference, it appeared that she did not open the envelope containing it. As of August 19, 2003, Petitioner still had, pursuant to rule, until August 26, 2003, to respond in writing. Also, if Respondent's supplemental materials were to be considered, Petitioner had until August 28, 2003, per rule, to respond. 8. The undersigned is without final order authority in this type of proceeding, and accordingly, the pending Motions have been treated as Motions for a Recommended Order of Dismissal. 9. On August 21, 2003, an Order Canceling Merits Hearing and Permitting Future Filings was entered. That Order provided, in pertinent part: The disputed-fact hearing is now scheduled for August 25, 2003, and all jurisdictional issues could be addressed at the commencement of that hearing, but that hearing is subject to cancellation due to Petitioner's failure to file a unilateral pre-hearing statement. Moreover, it is not cost-effective to require both parties to appear with all their witnesses, prepared for a disputed-fact hearing, when a short delay may obviate the need for such a hearing. If that hearing is cancelled, it will be possible to re-schedule this case for trial within the aspirational time frame established by the legislature, if such re- scheduling is necessary. Accordingly, it is ORDERED: 1. The disputed-fact hearing now scheduled for August 25, 2003, is hereby cancelled. 2. The pending motions will be treated as Motions for Recommended Order of Dismissal. 3. Petitioner is permitted to, and until, September 2, 2003, to file, in writing, any response in opposition to Respondent's Motion for a Summary Final Order, and Respondent's Supplemental (Second) Motion for a Summary Final Order, including the Supplemental Materials Filed August 14, 2003. 4. In her response, Petitioner should address all factual and legal arguments posed by Respondent. She may attach exhibits supporting her position. 5. In the event the undersigned requires any further oral argument or advice from the parties, another telephonic conference call will be scheduled for that purpose, and a formal notice of hearing will be issued. 6. In the event no further oral argument or advice is required, the issues presented in the motions and response will be disposed of, pursuant to Rule 28-106.204, Florida Administrative Code, without hearing; and a disputed-fact hearing on the merits will be re-scheduled only if necessary and appropriate. 10. Petitioner did not file any response to dispute any legal or factual issue raised by Respondent. Petitioner did not file any response attacking the validity of any of Respondent's exhibits. Petitioner did not file any response attacking any portion of the Commission's referral package. Therefore, the filed items may be presumed to be authentic, and the pending Motions may be addressed without an evidentiary hearing. 11. Petitioner filed with the Commission a charge of discrimination against Respondent Employer. That charge was assigned FCHR Case No. 2003342, and was dismissed by the Commission on or about December 6, 2002. 12. On October 18, 2002, Petitioner filed with the Commission a second charge of discrimination, the charge of discrimination underlying the instant case. The Commission assigned the instant charge FCHR Case No. 23-00222. 13. This instant charge of discrimination herein states that Petitioner was notified on October 14, 2001, that she would be terminated by the Employer on October 18, 2001. This charge of discrimination was signed by Petitioner on October 18, 2002. Therefore, it could not have been filed with the Commission before October 18, 2002. The date of October 18, 2002, is more than 365 days after October 14, 2001. See Section 760.11(1), Florida Statutes. 14. By a "Determination: No Jurisdiction" entered May 23, 2003, the Commission's Executive Director found and concluded that all jurisdictional requirements for coverage had not been met, to wit: : The Complainant was notified on October 12, 2001, that she would be terminated effective October 18, 2001, and she received a termination letter on October 14, 2001. Thus the 365-day period for filing a claim with the Commission commenced on October 12, 2001. Complainant, however, filed her complaint on October 18, 2002, which is 370 days from the date she first received notice. 6. The Commission does not have jurisdiction over the complaint because it was filed more than 365 days from the date the Complainant received notice that she would be terminated. 15. While the Director's foregoing findings/conclusions do not bind this forum's de novo proceeding, the Commission's acknowledgement that the instant charge of discrimination was not filed with it until October 18, 2002, constitutes competent evidence of that filing date and is relevant in this proceeding. 16. Attached to Respondent's first Motion for Summary Final Order is a copy of the instant charge of discrimination which shows the Commission's "October 18, 2002," date stamp. Also attached thereto is a Disciplinary Action Report dated October 12, 2001, which shows that Petitioner saw the report but refused to sign it on the same date of October 12, 2001. This report is, in effect, a notice of termination to take effect on October 18, 2001. Another exhibit to this pleading is Petitioner's October 12, 2001, written request to the Employer for a pre-termination hearing. All of these items indicate that Petitioner had notice on October 12, 2001, that she would be terminated, effective October 18, 2001. 17. No one has explained what effect a pre-termination hearing would have had on the planned termination date. No evidence that a pre-termination hearing was ever held has been presented. 18. Petitioner was effectively terminated by Respondent on October 18, 2001. 19. A "Notice of Determination: No Jurisdiction," entered by the Clerk of the Commission on May 23, 2003, provided: The parties are advised that the Complainant may request that a formal, post- investigative proceeding be conducted. The Request for Hearing/Petition for Relief must be filed within 35 days of the date of mailing of this Notice and should be in compliance with the provision of Rule 60Y- 5.008 and Chapter 60Y-4, Florida Administrative Code. A Petition for Relief form in enclosed. If you elect to file a Petition for Relief, it may be beneficial to seek legal counsel prior to filing the Petition. This action will not become final until time has expired for Complainant to file a Request for Petition for Relief. Failure of Complainant to timely file a petition for relief will result in dismissal of the complaint pursuant to Rule 60Y-5.006, Florida Administrative Code. 20. Accordingly, the last date for filing a Petiton for Relief on the instant charge was June 27, 2003, per Section 760.11(7), Florida Statutes, and 60Y-5.008, Florida Administrative Code. 21. Petitioner FAXED her Petition for Relief to the Commission. Petitioner's FAX cover sheet indicated that, Ms. Razavi, I am faxing this again, since I'm not aware that you have rec'd it yet. I first sent it on Thurs. 26th to a different fax #. The young lady sitting in for Barbar gave me this one. Thanks. 22. On July 1, 2003, the Commission date-stamped receipt of the foregoing cover letter and the Petition for Relief, which it transmitted to the Division of Administrative Hearings on the same date. 23. An Affidavit of Violet D. Crawford, Clerk of the Florida Commission on Human Relations, states that Petitioner's Petition for Relief was received by way of facsimile to the Commission on June 30, 2003, but that it was clocked-in on July 1, 2003.
Conclusions For Petitioner: Michelle Burt, pro se 2121 West Pensacola Street, PMB 538 Tallahassee, Florida 32304 For Respondent: William Haselden, Esquire City of Tallahassee 300 South Adams Street, Box A-5 Tallahassee, Florida 32301-1731
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing this cause for lack of jurisdiction. DONE AND ENTERED this 23rd day of September, 2003, in Tallahassee, Leon County, Florida. Lahn alan ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 2003. 12 COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Michelle Burt 2121 West Pensacola Street, PMB 538 Tallahassee, Florida 32304 William Haselden, Esquire City of Tallahassee 300 South Adams Street, Box A-5 Tallahassee, Florida 32301-1731
The Issue The issue is whether Respondent, Florida Commission on Human Relations (FCHR), should pay Petitioners' attorney's fees and costs under section 57.111, Florida Statutes (2013),1/ the Florida Equal Access to Justice Act, for initiating DOAH Case No. 12-2074.
Findings Of Fact On August 15, 2011, John and Kimberly Whitt (Whitts) filed a complaint of housing discrimination with the United States Department of Housing and Urban Development alleging disability discrimination. FCHR conducted an investigation of the complaint. During the investigation, the investigator obtained statements and documents from both parties. The investigator's final investigative report (Determination, found within Respondent's Exhibit 1) detailed the investigation. The Determination dated December 21, 2011, concluded that "there [was] reasonable cause to believe that a discriminatory housing practice occurred in violation of 804(f)(3)(A) of the Fair Housing Act, as amended." On March 2, 2012, FCHR issued a Legal Concurrence: Cause. The Legal Concurrence, drafted by FCHR's senior attorney, concluded that "there [was] reasonable cause to believe that Respondents [Association] discriminated against Complainants [the Whitts] in violation of 42 U.S.C. §§ 3604(b) and (f)(2)(A) and section 760.23(2) and (8)(a), Florida Statutes." On March 5, 2012, FCHR's executive director executed the Notice of Determination (Cause), charging that there was reasonable cause to believe that the Association had engaged in a discriminatory housing practice. The Whitts elected to have FCHR represent them to seek relief in an administrative proceeding against the Association. On June 14, 2012, FCHR filed a Petition for Relief (Relief Petition) with DOAH seeking an order prohibiting the Association from engaging in any unlawful housing practices, and granting damages. The final hearing in the underlying case was held before the undersigned on December 12, 2012. The undersigned entered a Recommended Order on February 15, 2013, recommending the dismissal of the Relief Petition filed on behalf of the Whitts. On May 2, 2013, FCHR entered a Final Order dismissing the petition for relief filed on behalf of the Whitts. The Association was the prevailing party in the underlying case. The Association is a not-for-profit corporation that does not have any employees. The Association relies solely on volunteers to run its operations. It has never had a net worth of two million dollars or more. The Association was represented by counsel and co- counsel in both proceedings. In the Fees Petition, the Association alleged it had incurred $75,657.00 in legal fees. At hearing, the Association provided a document which reflected that $5,945.00 in fees should not have been attributed to the instant case, thus setting the amount the Association was seeking at $69,712.00. However, the Association acknowledged that section 57.111(4)(d) 2., Florida Statutes, limited the recovery of attorney's fees and costs to $50,000. FCHR is a "state agency" for the purposes of this proceeding. See §§ 120.57(1) and 57.111(3)(f), Fla. Stat.
The Issue The issue is whether Respondent properly denied Petitioner's renewal application for an assisted living facility license.
Findings Of Fact On June 18, 2001, Petitioner filed a renewal application for an ALF license with limited mental health. On June 21, 2001, Respondent issued an Administrative Complaint in AHCA Case No. 04-01-0019-ALF. The complaint alleged that Respondent had cited Petitioner for one Class I deficiency and one unclassified deficiency during an appraisal visit on May 30, 2001. Specifically, the complaint alleged as follows: Petitioner had an interest in more than one facility and was providing personal services to residents within a facility that was not licensed in violation of Section 400.419(8), Florida Statutes (2000), resulting in an unclassified deficiency; and Petitioner was not in compliance with building construction codes and the documented evidence of violation put residents in immediate danger of death or serious physical harm in violation of Section 400.444(1), Florida Statutes (2000), resulting in a Class I deficiency. The complaint also stated that Section 400.419(8), Florida Statutes (2000), and Rule 58A-5, Florida Administrative Code, authorized the imposition of a $5,000 administrative fine for each of the alleged violations. By letter dated June 27, 2001, Respondent advised Petitioner that a conditional ALF license with limited mental health had been issued effective June 19, 2001, through September 18, 2001. The letter indicates that the conditional license was issued because of deficiencies cited during a survey of Petitioner's facility. On September 12, 2001, Respondent issued a Final Order in AHCA Case No. 04-01-0019-ALF. The Final Order was filed with Respondent's Clerk on September 20, 2001, and served on Petitioner by U.S. mail on September 21, 2001. The Final Order states that Petitioner had not requested an administrative hearing. Finding that Petitioner's failure to request a hearing constituted a waiver of the hearing rights and an admission of the alleged facts, the Final Order imposed an administrative fine in the amount of $10,000. On October 2, 2001, Respondent, through her attorney, filed a Motion to Reopen Record with Respondent. The motion asserted that, through no fault of her own, Petitioner failed to respond to the Administrative Complaint. Specifically, the motion claimed that Petitioner's attorney was in the process of winding down his then-existing law partnership and that in the course of packing, the file pertaining to the administrative proceeding and his instructions as to a response were apparently misplaced. By letter dated October 4, 2001, Respondent advised Petitioner that a conditional ALF license with limited mental health had been issued. The conditional license was effective September 19, 2001, through December 18, 2001. The letter advised Petitioner that all fines had to be paid before a standard license could be issued. On November 7, 2001, Respondent issued an Order Denying Motion to Reopen Record. On December 20, 2001, Respondent issued a Notice of Intent to Deny Petitioner's ALF license renewal application due to her failure to pay the administrative fines in AHCA Case No. 04-01-0019-ALF in the amount of $10,000. This instant administrative proceeding followed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter an order denying Petitioner's application to renew her ALF license. DONE AND ENTERED this 4th day of February, 2003, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 2003. COPIES FURNISHED: Michael O. Mathis, Esquire Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308-5403 Lamar Winegeart, III, Esquire Winegeart Law Firm, P.A. 2220 Riverplace Tower 1301 Riverplace Boulevard Jacksonville, Florida 32207 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
