The Issue Whether Respondent, John J. Fugate, Sheriff of DeSoto County, willfully violated Subsection 104.31(1)(a), Florida Statutes (2003), which prohibits an officer or employee of the state, or of any county or municipality, from using his or her official authority or influence for the purpose of interfering with an election or a nomination of office or coercing or influencing another person's vote or affecting the results thereof.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: At the time of hearing, Respondent, John J. Fugate, was the incumbent Sheriff of DeSoto County, Florida. He was first elected in November 2000 and took office in January 2001. At the times pertinent to this case, Sheriff Fugate was a candidate for re-election, having filed the initial paperwork appointing a campaign treasurer and naming a depository for campaign contributions on May 20, 2003. Also on May 20, 2003, Sheriff Fugate submitted his signed "Statement of Candidate," pursuant to Section 106.023, Florida Statutes (2003). This document attested that Sheriff Fugate had received, read, and understood "the requirements of Chapter 106, Florida Statutes (2003)." These statutory provisions were included in the "2000 Candidate Handbook On Campaign Financing," published by the state Division of Elections and given to Sheriff Fugate by the local Supervisor of Elections, when Sheriff Fugate filed his paperwork for the 2000 election. The "2004 Candidate and Campaign Treasurer Handbook" was given to Sheriff Fugate when he filed his re-election paperwork with the local Supervisor of Elections and also included the provisions of Chapter 106, Florida Statutes (2003). During the Commission's investigation, Sheriff Fugate admitted that he had also read Chapter 104, Florida Statutes (2003), and believed he understood its provisions. Though Sheriff Fugate had filed the papers establishing his candidacy for re-election, some Sheriff's Office employees openly questioned whether he really intended to stand for re-election. These questions stemmed from the fact that Sheriff Fugate's teenage son had been killed in an automobile accident in 2002. Sheriff Fugate was aware of these questions and was concerned that loyal employees were unsure of his intentions. For some time, Sheriff's Office employees had also been discussing the status of Major William Wise, the second-in- command to Sheriff Fugate. Major Wise had been the chief deputy under Sheriff's Fugate's predecessor, was kept in that position by Sheriff Fugate, and was very popular among the Sheriff's Office employees. Major Wise was a participant in the State of Florida's Deferred Retirement Option Program ("DROP"), which he believed would require him to separate from the Sheriff's Office for one year upon his official retirement in October 2004. However, in October 2003, Major Wise learned that there was a way for him to reduce his separation to 30 days and still retain his full retirement benefit. Sheriff Fugate decided to prepare a letter to all Sheriff's Office employees that would convey both his re-election intentions and the good news concerning the fact that Major Wise would not have to vacate his position. The letter was written on stationery with a header reading, "Re- Elect Fugate for Sheriff," along with Sheriff Fugate's mailing address and phone number. The text of the letter read as follows: It hardly seems possible that the second half of the third year of this term of office is upon us and I can only concur with the saying that "time stands still for no one." For those that have been here for a while, we have made giant strides for the DeSoto County Sheriff's Office in the past two and a half years and for the newer employees, with your help and our combined efforts, I look forward to more success in the future. Thank you for your help and I truly appreciate the service given to the citizens of DeSoto County. In anticipation of running for a second term of office and as legally required, I have opened my official campaign account. This is the first step in any campaign and this announcement is not to be construed as a request for a contribution to my campaign. I, like you, have been in an employment position when the incumbent was seeking another term of office and can personally relate to pressure applied to assist with the campaign. Please understand that I will, and do value your support in any way that you may be inclined to offer. I also encourage anyone that feels that I have not earned your support in any way in the performance of my duty to feel free to talk to me and you can be assured that it will remain professional and will not be made personal. On another note, I know that there has been some question as to what was going to happen to the position of Major due to Major Wise being in the Drop program and it coming to an end. It is with great pleasure that I announce that a way has been found for Major Wise to continue in his position and he has made the decision to do so. Major Wise has contributed a great deal to this office and I am very pleased that he will be staying with us. If anyone has any questions about this letter, I remind you of our "open door" policy and invite you to feel free to stop by and visit with me. Again, thank you and I look forward to our working together to build a better office for the employees and the community. Beneath Sheriff Fugate's signature was the following: "Pd. Pol. Adv. Paid For In-Kind By John J. Fugate. Approved by John J. Fugate (D)." Sheriff Fugate's review of the Candidate Handbooks led him to conclude that he should not use the Sheriff's Office or DeSoto County resources in preparing or distributing his letter and that none of the costs involved in preparing or distributing the letter should be borne by the Sheriff's Office or the County. Thus, Sheriff Fugate drafted the letter on his home computer. He printed approximately 120 copies of the letter on his home printer, using paper and ink that he purchased at Wal- Mart. On his campaign treasurer's report for the third quarter of 2003, Sheriff Fugate reported the cost of ink and paper associated with this letter as an in-kind contribution from himself to his campaign. Sheriff Fugate brought the copies of the letter to the Sheriff's Office and placed one copy in the pay envelope of each Sheriff's Office employee. At the DeSoto County Sheriff’s Office, it was common practice for items other than pay checks to be included in the pay envelopes. Such items had included advertising circulars and public service memoranda, but not political advertisements. The Sheriff's Office had no specific policy setting forth what may or may not be placed in the pay envelopes, nor was there any particular procedure for obtaining approval of what was to be placed in the pay envelopes. Neither Sheriff Fugate, Major Wise, nor payroll supervisor Kathy Willcutts could recall a request to place an item in the pay envelopes ever having been denied. The pay envelopes, including Sheriff Fugate's letter, were distributed to the Sheriff's Office employees in the usual manner, either at the front desk in the Records Division for pickup or in the employee's mail slot. The employees received Sheriff Fugate's letter upon retrieving their paychecks on or about October 2, 2003. Several Sheriff's Office employees testified at the hearing. None of these employees felt that Sheriff Fugate was attempting to influence their vote or pressuring them to make a monetary contribution to his campaign. Lieutenant Carol Williamson is a 28-year Sheriff's Office employee and has worked for five different sheriffs. Lt. Williamson testified that in the past, she has been essentially ordered to campaign for her bosses, but that she did not consider Sheriff Fugate's letter to be anything other than informational. Deputy Mark Lawrence testified that "I read it, said 'okay,' and threw it away." Sheriff Fugate disclaimed any intent to influence his employees' votes or pressure them for campaign contributions. During his career, he had been forced to campaign for his elected superiors. Because of this experience, Sheriff Fugate did not wish to place his own employees in the position of feeling coerced to support him. Sheriff Fugate testified that he used campaign letterhead and included the "paid political advertisement" disclaimer because his reading of the statutes led him to conclude that those items were legally required on any correspondence referencing his campaign. Nevertheless, Sheriff Fugate maintained that his letter was intended solely to convey information, not to coerce or influence anyone's vote. Sheriff Fugate's testimony is supported by the letter itself, which expressly stated that he was not seeking contributions to his campaign and that employees should feel no pressure to support his candidacy. Nonetheless, Sheriff Fugate's letter was clearly an attempt to favorably influence his employees, albeit a low-key one that did not demand support in the apparent manner of previous sheriffs. The letter solicited the support of Sheriff's Office employees, "in any way that you may be inclined to offer." The letter may not have been coercive, but it was disingenuous for Sheriff Fugate to suggest that the letter was not designed to influence his employees in the upcoming election. Sheriff Fugate was cognizant of Section 104.31, Florida Statutes (2003), and its prohibition on the use of "official authority or influence for the purpose of . . . coercing or influencing another person's vote . . . ." However, Sheriff Fugate believed, mistakenly but in all good faith, that his placement of the letters was allowed under another provision of Section 104.31, Florida Statutes (2003): The provisions of this section shall not be construed so as to prevent any person from becoming a candidate for and actively campaigning for any elective office in this state. All such persons shall retain the right to vote as they may choose and to express their opinions on all political subjects and candidates. For reasons expressed in the Conclusions of Law below, Sheriff Fugate's good faith belief that his actions were within the ambit of the statute negates any suggestion that he "willfully" violated Subsection 104.31(1)(a), Florida Statutes (2003). Sheriff Fugate did not seek advice from the local Supervisor of Elections or an advisory opinion from the state Division of Elections pursuant to Subsection 106.23(2), Florida Statutes (2003), because he believed that he understood the application of the relevant statutes to his situation, including Section 104.31, Florida Statutes (2003).
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Elections Commission enter a final order finding that Respondent, John J. Fugate, did not violate Subsection 104.31(1)(a), Florida Statutes (2003), as alleged, and dismissing the Order of Probable Cause. DONE AND ENTERED this 22nd day of December, 2004, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 22nd day of December, 2004.
The Issue The question presented in this case is whether Petitioner is entitled to an award of costs and attorneys’ fees pursuant to Section 112.317(8), Florida Statutes, and Florida Administrative Code Rule 34-5.0291.
Findings Of Fact Robert Burgess (Burgess) was the Santa Rosa County Property Appraiser from 1984 until December 31, 2000. He continues to reside in Santa Rosa County. Leon Cooper (Cooper) is a former employee of Robert Burgess, and qualified as a candidate for the Property Appraiser of Santa Rosa County on April 12, 2004, to run against the incumbent, Greg Brown (Brown), the Petitioner in this case. Brown was elected and took office on January 1, 2001, and in 2004 was running for re-election for the first time. Burgess supported Cooper's candidacy and opposed Brown's re-election bid in 2004. On April 12, 2004, the day Cooper qualified to run, Burgess signed an ethics complaint to the Florida Commission on Ethics alleging that Brown had reinstated a religious tax exemption for the Spiritual Life and Healing Waters church on November 14, 2003, and deleted taxes assessed against said church for the tax years 2000 through 2003. Burgess alleged that Brown did this corruptly in return for the political support of the owner of the church, Ms. Lovie Grimes in the 2004 election. He further alleged that Brown also did this to garner the support of Grimes to have Cooper terminated as an employee of the Florida Department of Revenue. Burgess filed his complaint in concert with that of Hilton Kelly, who is the subject of a companion case considered at the same time as this case, but the subject of a separate order, involving alleged favors regarding another property owner. Both complaints were motivated by the desire to impugn Brown's character and the performance of his elected duties, i.e., to injure Browns reputation. The Burgess complaint was fully investigated by the Commission. The investigation revealed that, prior to Burgess' leaving office, a determination to eliminate the tax exemption for the Spiritual Life and Healing Waters Church was made. The investigation revealed that notice that the exemption was eliminated was not provided to the property owner, Grimes. The lack of proper notice occurred during Burgess' tenure in office. Taxes were assessed as a result of this action by Burgess and Brown, and after Brown came into office, Grimes was notified of the pending tax sale of tax liens against her property. Grimes protested, stating that she had not received notice of the assessment of taxes. Brown caused this matter to be investigated by a member of his staff, Chief Deputy Property Appraiser Lorenzo Law Drinkard (Drinkard). Drinkard looked into the matter and determined that notice had not been given, and visited the church where he found pews, religious materials, and a piano. Although services were not being conducted at the time he was there, Drinkard concluded that it was obviously being used as a church. Drinkard determined on November 14, 2003, that the exemption should be re-instated because it was being used as a church and the taxes assessed be eliminated because notice had not been provided. Burgess, as the former Property Appraiser, was uniquely aware of the legal necessities and requirements in granting and removing exemptions. His office failed to provide the required notice to the owner of the elimination of the exemption for property used for religious purposes. During his tenure as Property Appraiser, Burgess had no direct contact with the Spiritual Life and Healing Waters Church regarding the factual basis for removal of the religious tax exemption. Burgess did not examine the public records of his former office to determine the basis for re-instating the exemption. The record reflects that Brown did not write the Department of Revenue about Cooper improperly engaging in campaign activities on state time until February 13, 2004. Burgess knew that determination to re-instate the exemption in question was made on November 14, 2003, and he knew that Brown's letter of complaint to the Department of Revenue regarding Cooper's alleged improper campaigning was on February 13, 2004. Therefore, Brown's alleged motivation in granting the exemption as it might have related to any support for Grimes' support with the Cooper complaint is sequentially impossible. Burgess did make this complaint in concert with the complaint by Kelly for which he provided copies of the records of the Property Appraiser's office. It is clear from the timing that Burgess' motivation was to impugn Brown's reputation. Burgess lacked a factual predicate to assert that Brown's re-instating the religious exemption was done corruptly, was done to improperly influence Grimes and in return for her political support, or to garner her support for Brown's complaint against Cooper. Affidavits were presented in support of attorney fees and costs, and their reasonableness. The Proposed Recommended Order restated those amounts as 94.4 hours at a rate of $175 per hour. The total provided in the Proposed Order was $17,079.50; however, 94.4 times $175 equals $16,250. If one considers that the difference is attributable to law clerks, if one subtracts $16,250 from $17,079, the balance of $559.46, which divided by 8.1 hours for clerks, equals $69.06 per hour for law clerks, which is a reasonable rate. The costs incurred by the attorneys in defending the action and presenting this case were $5,366.56, which are reasonable.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Commission enter its final order awarding the Petitioner the amount of $17,079.50 in attorneys' fees and $5,366.56 in costs. DONE AND ENTERED this 31st day of January, 2006, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN 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 31st day of January, 2006. COPIES FURNISHED: Albert T. Gimbel, Esquire Mark Herron, Esquire Messer, Caparello & Self, P.A. 215 South Monroe Street, Suite 701 Tallahassee, Florida 32301 Joseph Hammons, Esquire Hammons, Longoria & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501 Kaye Starling, Agency Clerk Commission of Ethics 3600 Macclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Philip C. Claypool, General Counsel Commission of Ethics 3600 Macclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue The issue is whether the four "unwritten policy statements" challenged by Petitioner are rules that have not been adopted through the formal rulemaking procedures.
Findings Of Fact Petitioner is an insurance salesperson licensed under Chapter 626, Florida Statutes. Petitioner is the subject of an Administrative Complaint filed by the Department charging him with violations of various provisions of Chapter 626, Florida Statutes, in connection with his sale of viatical settlement contracts (viaticals) in 2002 and 2003. A final hearing in that case, DOAH Case No. 07-4701PL, was held on February 20, 2008, before Administrative Law Judge Chad C. Adams. The petition in this case challenges four "agency statements relating to an administrative complaint filed against [Petitioner] (and in complaints against others similarly situated) as applied by the Department " The challenged statements are summarized in the petition as follows: An unwritten policy statement that ownership interests in viatical settlement contracts sold in 2002 and 2003 are securities. An unwritten policy statement that ownership interests in viatical settlement contracts sold in 2002 and 2003 are required to be registered pursuant to Section 517.07, Florida Statutes. An unwritten policy statement that the Department defers to the Office of Financial Regulation in making decisions regarding whether viatical ownership interests are securities under Chapter 517, Florida Statutes. An unwritten policy statement that the Department will defers [sic] to another State of Florida agency, the Office of Financial Regulation, in deciding issues regarding viatical interests as securities under Chapter 517, Florida Statutes. The first two challenged statements are materially indistinguishable from statements challenged by Petitioner in DOAH Case No. 07-4746RU. The only difference is the addition of the words "[a]n unwritten policy statement that." The other two challenged agency statements were not challenged in DOAH Case No. 07-4746RU. According to the petition in this case, Petitioner first learned of these statements during the deposition of Barry Lanier. That deposition was taken in DOAH Case No. 07-4746RU on January 9, 2008. On January 25, 2008, Judge Adams entered a Summary Final Order in DOAH Case No. 07-4746RU, concluding that the statements challenged in that case are not rules because they were "pleadings within the Administrative Complaint intended to explain the interpretation provided by the agency concerning the meaning of provisions within Chapters 517 and 626, Florida Statutes, in effect when the alleged misconduct took place as described in the Administrative Complaint." The Summary Final Order explained that Petitioner would have the opportunity in DOAH Case No. 07-4701PL to pursue claims concerning the agency statements under Section 120.57(1)(e), Florida Statutes. On the same date that the Summary Final Order was entered, Judge Adams entered an Order striking the Third Affirmative Defense raised by Petitioner in DOAH Case No. 07-4701PL. That defense alleged that "[t]he Department's complaint is based in whole or part, upon 'agency statements' in violation of section 120.56(4), Florida Statutes, which have not been lawfully adopted pursuant to Section 120.54, Florida Statutes." The Order stated that it was entered "[w]ithout reference to Section 120.57(1)(e), Florida Statutes," because that statute was not mentioned in the affirmative defense, and the Order only precluded Petitioner from presenting the Third Affirmative Defense "as stated." Petitioner appealed the Summary Final Order in DOAH Case No. 07-4746RU to the First District Court of Appeal. The appeal is pending as Case No. 1D08-0581. The Department does not make the determination as to whether something is a security on its own; it defers to OFR when making the determination because OFR is the state agency responsible for regulatory activities relating to the securities industry. OFR and the Department make the determination as to whether something is a security on a case-by-case basis.4/
Findings Of Fact On February 10, 1989, respondent, Department of Insurance and Treasurer (Department), issued Invitation To Bid No. DIT-88/89-112 (ITB) to prospective bidders inviting bids for the provision of the following service: The Florida Treasurer & Insurance Commissioner's Office, hereinafter referred to as "State," requires a wire service to ensure the timely distribution of the State's news releases. The State, therefore, invites all interested wire services to submit bids for a 2-year, fixed-rate contract. The ITB provided further that bids were due by 2:00 p.m. on February 21, 1989, they would be opened at that time, and the posting of bid tabulations would occur the following day. Also, the ITB provided that the bid award would "be made to the lowest responsive bidder using the fixed rate for the first 400 words of each press release." There was no provision for a prebid conference but the Department advised prospective bidders that questions would be answered by telephone up to the time the bids were due. Whether any prospective bidder availed itself of this opportunity is not of record. Petitioner, PR Newswire, and intervenor, Business Wire, are newswire services who, among other things, transmit client information by computer and printer to various media points (e.g., newspapers, television and radio stations) throughout the state. If the media point has the capability of receiving transmissions by computer, the newswire service utilizes a satellite, or computer link, to transmit the information to the media point. Some media points either do not have computer capability or choose not to use satellite service and thus receive a hard copy of the transmission via TELEX and other similar machines. PR Newswire has had a contract with the Department for the last two years to provide this service. It will continue to do so pending the outcome of this bid dispute. Bid proposals in response to the ITB were timely filed by petitioner and intervenor. Both firms submitted bids with a $40 charge for the first 400 words of each press release and a charge of $10 for each additional 100 words. This was not surprising since Business Wire offers a discounted government rate for its service and PR Newswire knew it had to submit a comparable rate to be competitive. Since the dollar amounts were identical, the Department relied upon advice from its legal counsel for a procedure to break the tie. Under this procedure, the two proposals were evaluated to determine which was the most "responsive." The evaluation process consisted of determining which firm had the greater capacity for "transmitting via computer links to the most Florida media markets listed in Exhibit A" of the ITB. Exhibit A is a three page listing of newspapers, wire services, and television and radio stations throughout the state. After this evaluation was made, the Department selected Business Wire as the lowest and most responsive bidder. This information was conveyed to PR Newswire by letter dated March 9, 1989. Upon receiving the letter, PR Newswire filed its formal protest alleging that the agency had misinterpreted certain information and relied on erroneous information in awarding the contract to Business Wire. The filing of the protest prompted this proceeding. The Department issues press releases approximately three times per month. It desires such releases to be in the hands of the editor or news director within thirty minutes after the wire service receives the Department's release for dissemination. To operate within this time constraint, the wire service must transmit the information to the media point via computer. At the same time, the Department considers a hard copy coming off a teleprinter to be "unsatisfactory" and less likely to be used by, an editor or news director. This is because a hard copy is more likely to be lost or misplaced while a release sent via computer is generally retained on the media point's computer for at least twenty-four hours. For these reasons, the Department placed the following provision in the Special Conditions of the ITB: b. The bidder must be capable of transmitting via computer links to the most Florida media markets listed in Exhibit A. Other distribution methods such as telecopiers (fascimile), telex messenger, etc., are unacceptable. (Emphasis in original) The General Conditions of the ITB also contained the following relevant provision: 7. As the best interest of the State may require, the right is reserved to make award(s) by individual service, group of services, all or none, or a combination thereof, to reject any and all bids or waive any minor irregularity or technicality in bids received. After the bids were opened and the tie was noted, the bids were sent to the Department's public information director, Kathleen Snoeblen, for further evaluation consistent with legal counsel's advice. Based upon two conversations with a Business Wire representative and one with a representative of PR Newswire, but without making an independent check to verify the accuracy of their responses, Snoeblen concluded that Business Wire served 33 media points via computer link while PR Newswire served only 29. Using this as the yardstick for breaking the tie, Snoeblen recommended that Business Wire be given the contract. This advice was conveyed to the Department's Division of Administration by memorandum dated March 7, 1989. A proposed award of the contract to Business Wire followed. After proposed agency action was issued, there was no informal conference with the bidders in an attempt to informally resolve the matter. After further review of the proposals, Snoeblen acknowledged at hearing that her original evaluation was incorrect and that Business Wire could only serve 31 media points via computer link rather than 33. However, this meant it still served two more points than PR Newswire. At hearing, PR Newswire established that the Department's evaluation of media points was flawed. This was because a press release might be sent via computer to a primary media point which in turn distributed the same release to other media points in the area. In evaluating the bid proposals for purposes of breaking the tie, the Department counted as computer link points not only the original media point but also any secondary points listed by the bidder that received the release from the original point. For example, a feed sent by Business Wire to the Stuart News was then conveyed by that newspaper to the Port St. Lucie News, Stuart Mirror, and Hobe Sound/Port Salerno Mirror, all being smaller newspapers or "shoppers" ostensibly owned or controlled by the primary media point. However, the secondary points (including "shoppers") were considered computer link points within the meaning of the ITB even though the wire service had sent only one release to a single media point. Neither bidder was aware of the procedure that would be used in the event of a tie. In addition, both petitioner and intervenor complained that there were definitional problems with the term "computer link" as used by the Department. Had petitioner known of these matters prior to its bid submission, it would have structured its proposal differently. More specifically, it would have concentrated on listing primary computer link points as well as secondary points so as to reflect a larger number of points that it served. In its proposal, PR Newswire did not list secondary points since it was under the impression that only primary points could be used. By not being given the opportunity to submit a responsive proposal, PR Newswire was placed at a competitive disadvantage in the bidding process.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered rejecting both bids and releting Invitation To Bid No. DIT-88/89-112. DONE AND ORDERED this 23rd day of May, 1989, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 23rd day of May, 1989.
Findings Of Fact Respondent, a/k/a Patricia Ann Horne, is the sole owner, director, and officer of Grass Roots of Southwest Florida, Inc. (Grass Roots). Respondent has lived in Lee County for 26 years. Her primary sources of earned income appear to be derived from giving palm readings while clad in gypsy clothing and working for Grass Roots. Grass Roots publishes a monthly newsletter by the same name, and Respondent is its sole employee. Incorporated on March 26, 1991, as a for- profit corporation, Grass Roots has proved to be an unreliable source of income for Respondent. From time to time, Respondent or her husband have had to contribute additional capital to the company, presumably in order to meet current operating expenses. Grass Roots has also received donations in the past. Publishing since shortly after its incorporation, Grass Roots charges about $15 for 12 issues of the newsletter. At the end of 1991, Respondent suffered a heart attack. Her recovery was delayed by subsequent problems. The newsletter ceased publication for several months, during which time many one-year renewals fell due. Believing that publication of the newsletter had been permanently discontinued, many subscribers did not resubscribe, and the newsletter circulation fell from around 200 to 130. Respondent slowly regained her strength during the spring of 1992. To regain subscribers, Respondent ordered the printing of 3000 brochures and made them available at a political functions during the spring and early summer of 1992. Respondent attended only one of these forums, which took place at Centennial Park. At the others, friends of hers distributed the brochures in some manner. At Centennial Park, Respondent did not actually distribute any brochures, but directed her friends to place them on a table with a multitude of political and campaign literature and pass them out directly to interested persons. Each of the 3000 newsletters consisted of a package with the newsletter folded in thirds over a subscription form and two simulated political brochures- -one for County Commissioner Ray Judah and one for County Commissioner John Manning. These county commissioners were incumbents who, at the time of the distribution of at least some of the newsletters, had declared their intent to run for reelection. The brochures were obvious parodies of actual brochures that each candidate was using during his campaign for reelection. The Judah brochure somewhat resembled the actual Judah brochure. However, the ironic nature of the Grass Roots brochure was apparent from the cover. The political party of Commissioner Judah was crossed out and replaced with the other major party, evidently to reflect an actual change of parties that had occurred earlier. Also, the drawing of the candidate was caricatured by a long, Pinocchio-like nose, intended to suggest that Commissioner Judah tells lies. The inside of the Judah brochure charges that Commissioner Judah and Commissioner Manning have wasted millions of tax dollars. The brochure attacks Commissioner Judah due to his approval of a waste incinerator. Other uncomplimentary caricatures of Commissioner Judah illustrate the inside of the brochure. The Manning brochure is similar in form and content, but concentrates on Commissioner Manning's reported unfitness for office. The issues include the waste incinerator. The newsletter itself was a special issue entitled, "Complimentary Election Edition." In the lead article on the front page of the eight-page 8 1/2" by 11" newsletter, Respondent writes of the events that led to her active involvement in politics. Complaining of a certain large land development project, Respondent traces the reported wrongs committed by County officials, whose lineage, she claims, presently extends to Commissioners Judah and Manning. She concludes the lead article by stating that a vote for Commissioners Judah and Manning, as well as two others, is a vote for two other former County officials. She asks if the reader can "afford that again" and asserts that she cannot. The next stories in the newsletter are profiles of Commissioners Judah and Manning. They are largely repetitive of the material in the brochures. Following these two articles is a much shorter article on another person, who also appears to be a candidate for public office. The fourth article is a longer one, again tracing the lineage of a candidate to persons whom the newsletter implies are disreputable. Following the fourth article is an eight-stanza poem critical of the incumbent sheriff for, among other things, prevarication and serial monogamy. Elsewhere in the newsletter are the lyrics of a popular song, altered to attack Commissioners Judah and Manning and urge that they be voted out of office. Other articles address other races. One article attacks Commissioners Judah and Manning for the sources of their campaign funds. After some more articles attacking other candidates, the final page contains a block stating: "Please get out and vote for the candidate of your choice, but please take the time to know who you are voting for." Other newsletters published by Grass Roots resemble the above- described material. Most of the articles are written by Respondent, who prepares the copy for each newsletter. However, one other person occasionally writes articles for the newsletter. A friend of Respondent does all of the artwork. The friend and her husband own a printing press and do the actual printing. Their printing company bills Grass Roots for the costs of printing. Many of the newsletter articles are detailed, such as with an inventory of vehicles owned by Lee County and an amortization schedule for nearly $200 million of bonds issued for a County solid waste system. In general, the newsletters focus on perceptions of excessive government spending and favoritism. The newsletters frequently criticize public officials, most frequently, but not exclusively, Commissioners Judah and Manning. Although the newsletters approve of certain public officials, they come well short of making political endorsements. In any case, the newsletters have never endorsed the opponents of Commissioners Judah or Manning. There is no evidence whatsoever that Grass Roots or Respondent has attempted to use the newsletter or simulated brochures as a means of indirectly promoting the candidacy of any individual, including opponents of Commissioners Judah and Manning, while circumventing the subject disclosure laws. No newsletter has ever stated that it is a paid political advertisement. Similarly, the Judah and Manning simulated brochures did not state that they were paid political advertising. Grass Roots accepts no advertising for the newsletter. Respondent has never sought elective office, nor has she ever served as a campaign treasurer. She has never held any responsible position for a political committee or committee of continuous existence. She is, by her own description, a political gadfly.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Elections Commission enter a final order dismissing the charges against Pat Horne. ENTERED on September 27, 1994, 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 September 27, 1994. APPENDIX Treatment of Petitioner's Proposed Rulings 1-3: Adopted or adopted in substance. 4: Rejected as irrelevant. 5 (first sentence): Adopted or adopted in substance. 5 (second sentence): Rejected as unsupported by the appropriate weight of the evidence. 6-9: Adopted or adopted in substance. 10-12: Rejected as irrelevant. Treatment of Respondent's Proposed Rulings 1: Rejected as not finding of fact. 2-7: Adopted or adopted in substance. 8-9: Rejected as irrelevant. 10: Rejected as not finding of fact. 11: Adopted or adopted in substance. 12: Rejected as not finding of fact. COPIES FURNISHED: David R. Westcott, Assistant General Counsel Florida Elections Commission Room 2002, The Capitol Tallahassee, FL 32399-0250 E. Bruce Strayhorn Strayhorn & Strayhorn P. O. Box 1288 Ft. Myers, FL 33902 Donald W. Rhodes, Chairman Florida Elections Commission Room 1802, The Capitol Tallahassee, FL 32399-0250
The Issue Whether Petitioner, Belinda Traylor, complied with the requirements of Florida Administrative Code Rule 28-106.201 in her request for hearing.
Findings Of Fact On or about March 30, 2013, Petitioner filed an employment complaint of discrimination with FCHR, alleging that Disney World/Walt Disney had discriminated against her on the basis of sex and religion. On September 13, 2013, FCHR entered a Notice of Determination: No Cause (Notice), concluding that there was no reasonable cause to believe that an unlawful employment practice had been committed against Petitioner. In the Notice Petitioner was informed of the following: A Petition for Relief form is enclosed with Complainant's notice. It may be beneficial for Complainant to seek legal counsel prior to filing the petition. In her October Petition, Petitioner provided her name, the FCHR case number, her address and phone number, a check mark indicating "Respondent has violated the Florida Civil Rights Act of 1992, as Amended," the date the form was signed, and her signature. Petitioner did not supply: Respondent's name, address, or telephone number; the "specifically described" manner in which Respondent violated the Florida Civil Rights Act of 1992; the disputed issues of material fact, if any; or the ultimate facts alleged and entitlement to relief. On November 1, 2013, Respondent filed a Motion to Dismiss (Motion). The Motion set forth that Petitioner had . . . failed to supply in her petition both a statement of all disputed issues of material fact and a concise statement of the ultimate facts alleged, including the specific facts that she contends warrant reversal or modification of the September 23, 2013 [sic] No Cause determination by the Florida Commission on Human Relations (FCHR). On November 5, 2013, an Order to Show Cause was entered by the undersigned. Therein Petitioner was afforded until 5:00 p.m., November 18, 2013, to file a written statement setting forth the facts surrounding her claim of discrimination. Petitioner was told to include the information required by Florida Administrative Code Rule 28-106.201. Additionally, Petitioner was advised that a failure to file a written statement by the deadline "or a failure to set forth facts which, if proven at the hearing would show discrimination, may result in the entry of a recommended order of dismissal." On November 12, 2013, Petitioner filed the following:4/ I Belinda Trayler, am in response to justify the cause for this petition. That I was Harassed, and Abused ,also about my religious background from fellow employers. I was fired without a just cause. The days I was out were due to my legal grandson emotion. I have the legal guardianship from the courts which I will bring with me also to court. He has adhd, bipolar, anger issues. Disney did not accept these paper words. As the results of all this we are currently on welfare and living day by day. I came down in 2006 for my internship. An they asked me to stay so I remained here. I am a 53 year old single woman trying to raised to kids. An for a 53 year old woman jobs are not easy to obtain.[5/] On November 13, 2013, Respondent's Renewed Motion to Dismiss was filed. Respondent set forth as its basis for dismissal that Petitioner's response fails to comply with rule 28-106.201 and the requirements of the FCHR's Petition for Relief. Petitioner's November 12, 2013, response fails to provide the following: rule 28-106.201(2)(d), a statement of all disputed issues of material fact; rule 28-106.201(2)(e), a concise statement of the ultimate facts alleged, including the specific facts the petitioner contends warrant reversal or modification of the agency's proposed action; rule 28- 106.201(2)(f), an explanation of how the alleged facts relate to the specific rules or statutes [alleged to be violated]; and rule 28-106.201(2)(g), a statement of the relief sought, stating precisely the action petitioner wishes the agency to take with respect to the agency's proposed action.
Recommendation Based on foregoing Findings of Fact and Conclusions of Law, it is recommended that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief. DONE AND ENTERED this 26th day of November, 2013, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of November, 2013.
The Issue The issue in this case is whether the Respondent, the Department of Insurance (the Department), has an unpromulgated agency rule not to reimburse routine defense fees at more than $85 per hour when providing for the defense of civil actions against state employees.
Findings Of Fact The Petitioner, Richard L. Windsor (Windsor), was an attorney employed by the Department of Environmental Regulation (DER, now called the Department of Environmental Protection, or DEP) when he and another DER employee were named along with the DER as defendants in a counterclaim filed in 1995 in a lawsuit (the Coxwell case) that had been brought by DER, through Windsor as its attorney of record, in state circuit court in Okaloosa County to remedy alleged intentional violations of state environmental laws and regulations. The "counterclaim" initially was not served on Windsor, and DER declined Windsor's request to defend him at that time. Instead, it was decided to ignore the "counterclaim" against Windsor until it was served on him. In 1996, after Windsor terminated his employment with DEP, the "counterclaim" was served on him. Windsor requested that DEP defend him, and DEP agreed to refer the matter to Risk Management. Risk Management agreed to defend Windsor and in September 1996 assigned the defense to an Okaloosa County attorney named Jim Barth, who agreed to an hourly rate of $75. Barth telephoned Windsor to discuss the case, and Windsor suggested that Barth investigate an out-of-state property rights organization Windsor said was sponsoring and financing the claim against him and the other DEP employee. Barth rejected Windsor's suggestion. Windsor was discomforted from Barth's decision but decided not to press the issue. In a subsequent meeting with Barth, Windsor suggested that Barth should assert the government employee defense of qualified immunity from suit. It seemed to Windsor that Barth accepted the idea. In May 1997, with trial set for July, Barth telephoned Windsor to tell him that trial was set for July 1997, and a court-ordered mediation conference was scheduled for June 1997. Windsor asked about the immunity defense and felt that Barth tried to avoid answering the question. At the mediation conference in June 1997, Barth and Risk Management made a nominal settlement offer, while DEP's lawyer refused to make any offer of settlement on the ground that the counterclaim was frivolous. Although Barth's settlement offer was rejected, Windsor became very concerned about the quality of Barth's representation. He also established through conversation during the course of the day that Barth had not asserted the immunity defense on his behalf. With trial set for July 1997, Windsor decided that he no longer could rely on Barth but would have to raise the defense on his own. Windsor consulted Davisson F. Dunlap, Jr., a Tallahassee attorney with the Carlton Fields law firm. Windsor knew Dunlap from Dunlap's representation of another DER employee who had been named along with DER as a defendant in a counterclaim filed in a previous lawsuit that had been brought by DER, through Windsor as its attorney of record (the Dockery case). Windsor was impressed with Dunlap's work on the Dockery case, including his filing of a motion for summary judgment on behalf of his client on the defense of qualified governmental immunity. Dunlap explained that his hourly rate at Carlton Fields was $175, and Windsor agreed to hire Dunlap at that rate to help get Windsor's defense where Windsor and Dunlap thought it should be. Based on this understanding, Dunlap immediately began preparing a motion for summary judgment. At Windsor's request, Dunlap presented his work product to Barth, who agreed to use it to file a motion for summary judgment. When Windsor learned that Barth missed the court's deadline for filing motions, Windsor became completely dissatisfied with Barth and eventually requested that Risk Management reassign his case from Barth to Dunlap. Risk Management agreed, contacted Dunlap, and entered into a Legal Services Contract with Dunlap's new law firm at the same $85 hourly rate in the Pennington law firm's contract. At some point (probably before Dunlap and the Carlton firm actually entered into the Legal Services Contract with Risk Management), Dunlap reported to Windsor that the contract would be for $85 an hour and that the Carlton firm would not allow Dunlap to undertake representation at that rate of pay. Windsor, who was happy just to have gotten Dunlap substituted for Barth, assured Dunlap that Dunlap would receive his full $175 an hour, as initially agreed between them, and that Windsor would pay Dunlap the difference of $90 an hour after payment of $85 an hour from Risk Management under the Legal Services Contract. Neither Dunlap nor Windsor advised Risk Management of the agreement for the payment of Dunlap's full $175-an-hour fee after Risk Management's Legal Services Contract with the Carlton firm at $85 an hour. However, Windsor had in mind that, at some point in the future, he would raise the issue and be able to persuade Risk Management to contribute more towards the payment of Dunlap's $175-an-hour fee. In October 1997, Windsor began an exchange of correspondence with Risk Management that went on for several months. While touching on a number of different topics, Windsor's primary initial concern in this correspondence was the payment of Dunlap's fees for work done on Windsor's case before Dunlap's Legal Services Contract with Risk Management. Risk Management agreed without much question (notwithstanding Windsor having retained Dunlap without notice to Risk Management), since Risk Management determined that Dunlap's work did not duplicate much of Barth's. When Risk Management indicated its intent to pay Dunlap for the work at the contract rate of $85 an hour, Windsor advised Risk Management for the first time that Windsor was obligated to pay Dunlap for the work at the rate of $175 an hour; Windsor requested that Risk Management "make him whole" by paying Dunlap's full fee of $175 an hour. However, Windsor did not make it clear to Risk Management in this correspondence that he also wanted Risk Management to pay Dunlap $175 an hour for work done after Dunlap's Legal Services Contract with Risk Management. Neither Windsor nor Dunlap made it clear to Risk Management either that Dunlap also had a contract with Windsor, in addition to the Legal Services Contract, for work done by Dunlap after Dunlap's Legal Services Contract with Risk Management, or that the additional contract was for $175 an hour, which obligated Windsor to pay Dunlap the difference of $90 an hour after payment of $85 an hour from Risk Management under the Legal Services Contract. By letter dated July 1, 1998, Risk Management's Director, R.J. Castellanos, advised Windsor that Risk Management would not pay Dunlap more than $85 an hour for the work done before the Legal Services Contract. The letter explained that review did not disclose support for Windsor's contention in correspondence that Risk Management was negligent, requiring Windsor to retain Dunlap at $175 an hour prior to the Legal Services Contract. It pointed out that Windsor retained Dunlap at the time without any notice to Risk Management and that Risk Management was "deprived of any opportunity to contract with a firm at a negotiated rate" for those services (as it was able to do for subsequent services when it entered into the Legal Services Contract with Dunlap's firm). For those reasons, the letter explained, Risk Management "reimbursed you at an $85.00 rate, which is the maximum amount we pay as routine defense fees." Windsor contends that the latter quotation is, or is evidence of, an unpromulgated Division rule. The intent of the statement in Castellanos' letter was to explain why, under the circumstances, Risk Management would not reimburse Windsor more than $85 an hour for the fees he incurred for work Dunlap did before the Legal Services Contract; it was not intended to even address Dunlap's fees after the Legal Services Contract. At the time the statement was made, Castellanos did not realize there was any issue as to payment of Dunlap's fees for work done after the Legal Services Contract. The statement in Castellanos' letter was not a statement of general applicability. Risk Management generally does not reimburse defense fees; rather, it negotiates contracts directly with lawyers to provide those services and pays the fees directly to the lawyer under contract. Rather, the statement in Castellanos' letter was intended to explain that, under the circumstances, Risk Management was not going to reimburse more than maximum amount it pays attorneys with whom Risk Management contracts directly. As a matter of fact, Risk Management has approximately 250 open-ended contracts for legal services with law firms all over Florida. (It is not clear from the evidence when these contracts were negotiated, or which are still in use.) The hourly rates for those contracts range from a low of $65 an hour to a high (in approximately five or six of the 250 contracts) of $85 an hour for routine defense cases. (Hourly rates for trademark and copyright specialties are $150 an hour.) These included the $85-an-hour legal services contracts with Dunlap, once as a member of the Pennington firm and again as a member of the Carlton Fields firm. The evidence also did not prove that Risk Management has an unpromulgated rule not to exceed a fee of $85 an hour in negotiating directly with attorneys for legal services contracts for routine defense cases. The evidence was that Risk Management considers itself to be bound by Section 287.059(7), Florida Statutes (1997), and Florida Administrative Code Rule Chapter 2- 37 when contracting with attorneys for legal services. The maximum fees allowed by the statute and those rules exceed $85 an hour for routine defense cases. In addition, the statute and rules allow agencies such as Risk Management to exceed the maximum standard fees under certain circumstances. See Conclusion of Law 21, infra. Risk Management interprets Section 287.059(7), Florida Statutes (1997), and Florida Administrative Code Rule Chapter 2- 37 to require it to negotiate fees below the maximum standard fees. Id. When negotiating with a lawyer or law firm, Risk Management attempts to utilize the leverage it enjoys from the ability to offer lawyers an open-ended contract with the possibility of volume business contract to negotiate for the lowest possible fee for quality services. To date, these legal services contracts have been for $85-an-hour or less for routine defense cases. But it was not proven that Risk Management has established an $85-an-hour maximum for routine defense in conflict with the maximum standard fees established in Rule Chapter 2-37. Windsor seems to make a vague argument that Section 111.07, Florida Statutes (1997), which requires an agency such as Risk Management to reimburse a prevailing employee a "reasonable" attorney fee when the agency declines to provide legal representation to defend the employee, and common law (which Windsor does not elaborate), requires Risk Management to reimburse him for Dunlap's services and that such reimbursement is not limited by Section 287.059(7), Florida Statutes (1997), and Florida Administrative Code Rule Chapter 2-37. Windsor seems to further argue that the statement in Castellanos' letter was generally applicable to establish the amount of reasonable attorney fees reimbursable under Windsor's legal arguments. But it was not apparent that Windsor was making these arguments until post-hearing submissions in this case. Clearly, Risk Management does not agree with Windsor's arguments (the merits of which are not subject to determination in this proceeding); more germane to this proceeding, Risk Management never understood or considered such arguments at the time of the statement in Castellanos' letter, and Castellanos clearly did not intend the statement in his letter to be generally applicable to establish the amount of reasonable attorney fees reimbursable under Windsor's legal arguments.
The Issue The issue is whether Respondent's claims are untimely under Section 760.11, Florida Statutes (1997), because they were filed more than 365 days after the alleged acts of discrimination and retaliation. (References to chapters and sections are to Florida Statutes (2000) unless otherwise stated.)
Findings Of Fact Petitioner is an adult African-American male with albinism. The parties agreed to limit the administrative hearing to the timeliness of Petitioner's claims of discrimination and retaliation. The Commission received Petitioner's Charge of Discrimination on August 11, 2003. The Charge of Discrimination alleges that Respondent discriminated against Petitioner on the basis of his race and alleged disability of albinism and that Respondent retaliated against Petitioner for an internal grievance of discrimination by terminating Petitioner's employment. The Commission lacks jurisdiction over Petitioner's claim of discrimination. It is undisputed that all of the alleged acts of discrimination occurred from sometime in 1987 through June 1999. Petitioner filed the Charge of Discrimination on August 11, 2000, more than 365 days after the date of the last act of alleged discrimination on June 30, 1999. Section 760.11(1) authorizes the Commission to act only on a charge of discrimination that is filed within 365 days of the alleged discrimination. Petitioner claims that Respondent terminated Petitioner's employment in retaliation for Petitioner's internal grievances concerning discrimination. The acts of discrimination alleged in the internal grievances occurred prior to July 25, 1999, when Petitioner began his vacation. Petitioner never returned to work at the Lakeland Ledger (the Ledger), a member of the New York Times Regional Group, after July 25, 1999. Prior to July 25, 1999, the Lakeland Police Department conducted an undercover drug investigation of alleged drug use and sales among Ledger employees. The investigators requested management at the Ledger to keep the investigation confidential. On July 26, 1999, investigators made the evidence of the investigation available to Ledger management. Management decided to terminate 14 Ledger employees, including Petitioner, for violation of the Ledger's drug policy. Investigators asked management not to notify the employees of their termination on July 26, 1999, because investigators expected a drug purchase to occur on that date. Investigators recommended that they be present the next day to issue trespass warnings to terminated employees prohibiting the terminated employees from returning to Ledger property. On July 26, 1999, the Ledger completed trespass warnings for each employee to be terminated the following day, including Petitioner. On July 27, 1999, the Ledger issued termination notices for each of the employees implicated in the investigation, including Petitioner. Management at the Ledger did not deliver Petitioner's termination notice to him on July 27, 1999, because Petitioner had begun his vacation on July 25, 1999. However, Petitioner was scheduled to return to work one week later on August 1, 1999. Petitioner's mother died while he was on vacation. On July 28, 1999, Petitioner telephoned Mr. Willie Baker, Petitioner's supervisor, and advised Mr. Baker that Petitioner was taking an additional week of vacation because of his mother's death. Mr. Baker told Petitioner that Mr. Baker would convey the information to Mr. Phil Finnigan, Mr. Baker's supervisor. Neither Mr. Baker nor Mr. Finnigan had authority to inform Petitioner of the termination of his employment. Neither Mr. Baker nor Mr. Finnigan subsequently spoke to Petitioner. Neither Mr. Baker nor Mr. Finnigan was involved in the decision to terminate Petitioner or any other employee that was the subject of the criminal investigation. Ms. Cindy Moates, Human Resource Director, and Mr. Don Whitworth, Publisher, were solely responsible for the decision to terminate employees and to notify them of their termination. Ms. Moates and Mr. Whitworth expected to notify Petitioner of the termination of his employment when Petitioner returned to the Ledger on August 8, 1999. The Ledger did not pay Petitioner for the additional week of vacation he requested from August 1 through August 7, 1999. On August 5, 1999, Charter Behavior Hospital admitted Petitioner and then transferred Petitioner to St. Joseph's Hospital for treatment of depression and abuse of marijuana, alcohol, and cocaine. Petitioner remained in St. Joseph's Hospital through August 11, 1999. On August 6, 1999, Petitioner telephoned Mr. Otis McCollum, Human Resources Director for the New York Times Regional Newspaper Group. Mr. McCollum refused to talk to Petitioner and told Petitioner that attorneys for the New York Times had instructed Mr. McCollum not to talk to Petitioner. Petitioner was concerned about his employment. On August 9, 1999, Petitioner asked Ms. Andrea Holmes, his counselor at the hospital, to telephone the Ledger. Ms. Holmes spoke by telephone with Ms. Moates and asked Ms. Moates if Petitioner was still employed at the Ledger. Ms. Moates declined to answer the question because it was contrary to Ledger policy to discuss the termination of an employee with anyone except the employee or to use the telephone to notify an employee of his or her termination from employment. Ms. Moates agreed to discuss Petitioner's employment status with Ms. Holmes if Ms. Holmes submitted a written authorization signed by Petitioner. On August 10, 1999, Petitioner signed a written medical release prepared for "the purpose of determining Mr. Bailey's employment status," and Ms. Holmes faxed the signed authorization to Ms. Moates on the same day at 10:44 a.m. Ms. Holmes also signed the written authorization that she faxed to Ms. Moates. Upon receipt of the signed written authorization on August 10, 1999, Ms. Moates telephoned Ms. Holmes and notified Ms. Holmes that the Ledger had terminated Petitioner's employment on July 27, 1999. Ms. Moates entered the date and time of the conversation with Mr. Holmes on the written termination notice to Petitioner. Ms. Holmes immediately conveyed the information to Petitioner. Petitioner denies that Ms. Holmes informed him of her conversation with Ms. Moates. The preponderance of credible and persuasive evidence supports a finding that Ms. Holmes conveyed the relevant information to Petitioner on August 10, 1999. Petitioner filed the Charge of Discrimination claiming that his termination was retaliatory more than 365 days after he received notice of the alleged retaliation. The Commission lacks jurisdiction over Petitioner's claim of retaliation in the Charge of Discrimination.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Commission enter a Final Order finding that the allegations of discrimination and retaliation are untimely and dismissing the Charge of Discrimination and Petition for Relief for lack of jurisdiction. DONE AND ENTERED this 29th day of August, 2003, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 2003. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Horace Bailey 1836 North Crystal Lakeland Drive Apartment Number 56 Lakeland, Florida 33801 Stephen X. Munger, Esquire Matthew Freeman, Esquire Jackson Lewis LLP 1900 Marquis One Tower 245 Peachtree Center Avenue, Northeast Atlanta, Georgia 30303-1226
