STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, DIVISION ) OF LICENSING, and MARILYN )

KELLEY, )

)

Petitioners, )

)

vs. ) CASE NO. 80-715

) SUN PERSONNEL SERVICES, INC., )

a Florida corporation, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause Was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on July 22, 1980, in Tampa, Florida.

The Petitioners were represented by James V. Antista, Esquire, Tallahassee, Florida; and Cary R. Singletary, Esquire, Tampa, Florida, appeared on behalf of the Respondent, Sun Personnel Services, Inc.

At the commencement of the hearing, Petitioner Department of State, Division of Licensing's Motion to Add Division of Licensing as an Indispensable Party was granted, and the style of this cause, as reflected above, was amended to properly reflect the status of the parties hereto.

By letter dated February 11, 1980, Petitioner Department of State, Division of Licensing, notified Respondent that it had committed a statutory violation and instructed Respondent to refund to Petitioner Marilyn Kelley the placement fee she had paid to Respondent. The notice of violation letter further threatened Respondent with possible disciplinary action if Respondent failed to refund Kelley's money. Respondent timely requested a hearing regarding the allegations contained in that letter. The issues to be determined are whether Respondent misrepresented a position of employment to Petitioner Kelley and whether the Division of Licensing has authority to order a refund of a placement fee.

Marilyn Kelley, Marion I. Chadwick, Dennis L. English, and Frank Calhoun testified on behalf of the Petitioners. The Respondent presented the testimony of Denise Verrez Farrow, Deborah Crawford Yates, and Charles E. DeCroes.

Additionally, Petitioners' Exhibits 1 through 10 were admitted into evidence, and Respondent's Exhibit numbered 1 was marked for identification.

FINDINGS OF FACT

1. At all times relevant hereto, Respondent Sun Personnel Services, Inc., was a licensed private employment agency, and Denise Farrow (formerly Denise Verrez) and Deborah Crawford Yates were licensed employees of that agency.

2. Farrow had a client whom she was trying to place in the motel or motel business. In conjunction with such a placement, on October 2, 1979, she telephoned Marion Chadwick, Director of Marketing at the Sheraton-Tampa Motor Inns, to inquire regarding possible employment positions at the Sheraton. Chadwick advised Farrow that she was looking for someone to act as a convention coordinator and that an applicant for that position would also be required to type. She further advised Farrow that she was willing to train the person she hired, that the position paid $3.50 per hour, and that advancement in the position was possible. The position was not immediately available since Chadwick did not wish her current employee occupying the position to know that she was interviewing a replacement. In this same telephone conversation, Farrow scheduled an appointment for her client with Chadwick. Later that same day Farrow called Chadwick to cancel the interview since her client required a higher salary than Chadwick could pay. Farrow recorded the information she had obtained from Chadwick on one of Respondent's Job Order forms, thereby making available to other employees of the Respondent the information she had obtained from Chadwick. The only information she placed on that form regarding specific job duties were the words "convention coordination" and the required typing speed of "50+" words per minute. Shortly thereafter, Farrow's employment with the Respondent was terminated.

   
   

3. As a result of an advertisement in the newspaper, Petitioner Marilyn Kelley went to Respondent's office on October 15, 1979, and was interviewed by Deborah Crawford Yates. Kelley entered into an employment agreement with Respondent, agreeing to pay a placement fee if she accepted a position of employment through the efforts of Respondent. Kelley indicated on the agreement that she was not being considered for employment at that time except for a position involving sales on the telephone of yellow pages. Kelley further advised that although she was a recent college graduate, her employment experience was that of a secretary and that her secretarial duties included supervising a typist and three part-time assistants, and coordinating activities in her boss's absence. She indicated she was seeking a position in the public relations field or as a travel coordinator. During the following weeks, Yates sent Kelley on interviews to Data Processing Services, National Cash Register, General Electric Credit Corporation, Southern Data, and Howard Johnson's. She also discussed with Kelley possible positions at Lanier and at Dobbs House.

   
   

4. On November 6, 1979, Yates called Chadwick to inquire whether the position as convention coordinator was still available, and upon finding that it was, she scheduled an interview for Kelley on that same date. Prior to her interview, Yates had Kelley come to her office at which time she explained to Kelley the information she had regarding the position and specifically told Kelley that the ability to type more than fifty words per minute was required. She sent Kelley to the interview with Chadwick with an interview card which indicated the position being applied for was that of convention coordinator. On the following morning, Yates called Chadwick to inquire as to the result of the interview. Chadwick advised Yates that she was impressed with Kelley and would make a decision regarding employment later that week. On November 9, Chadwick called Yates and advised that she wanted to schedule a second interview with Kelley on that day. Yates contacted Kelley and had her come to the office prior to her second interview to pick up another interview card. While there, Kelley asked Yates for specific information regarding the job, and Yates advised Kelley to ask Chadwick for any additional information which she wanted regarding the job or benefits. Yates waited at her office, and when Kelley returned, Kelley advised that she had accepted the position at the Sheraton. Yates called Chadwick to confirm that Kelley had been hired by Chadwick as a convention

   coordinator and thereafter filled in the placement Data portion of Respondent's employment agreement. Kelley advised Yates that she would not begin working until the following Tuesday since Chadwick was going to use Monday to fire the person occupying the position.

   
   

5. On the day of her first interview with Chadwick, Kelley completed the Sheraton's application for employment on which form she indicated that she was seeking a position as a convention coordinator. After her second interview, Chadwick completed the Sheraton's portion of that form, indicating that Kelley had been hired as a secretary in the sales department. Kelley did not see that portion of the employment application indicating she had been hired in a position with a title different than that which she sought, nor did any employee at Sun Personnel Services, Inc., see that portion of the form filled in by Chadwick.

   
   

6. By the time of the final hearing in this cause, Kelley had forgotten that she had two interviews with Chadwick, that one week had transpired between her first interview and the time she started employment, and had also forgotten most of the other interviews that Yates had set up for her. She did remember that she never discussed with Chadwick her specific job duties, her salary, or her possible salary advancement. She does remember that Yates discussed with her the convention coordinator job and its responsibilities although Yates seldom discusses job details with an applicant since the applicant and the prospective employer would have more information regarding that than she. Chadwick not only told Kelley that the actual position required typing, filing, and general office work, she in fact gave Kelley a typing test. Kelley did understand that she was being placed in a position wherein she would be an assistant to Chadwick and should eventually be able to cover some of Chadwick's duties, particularly when Chadwick was not in the office. Apparently, Chadwick assumed Kelley was applying for a primarily secretarial position, and Kelley assumed that she was applying for primarily a convention coordinator position, which confusion was both spawned and continued by Kelley's failure to ask her prospective employer any questions regarding the soon-to-be available employment position. In reality, Chadwick's position as Director of Marketing encompassed those duties typically performed by a convention coordinator, and Kelley's gradual coverage of Chadwick's duties would put her in a position where she functioned as both a convention coordinator and as a secretary in varying degrees. During the week between Kelley's first interview and her actual employment at the Sheraton, nothing was either said or done by either Chadwick or Kelley that would put the employees of Respondent on notice that there was a discrepancy between Chadwick's overly enthusiastic job title for the position and Kelley's total failure to understand the purpose of a job interview.

   
   

7. Kelley commenced her employment at the Sheraton on November 13, 1979, and spent the day typing, filing, and answering telephones. At the end of her first day, she asked a secretary at the Sheraton if her duties would change from what they were on that day and was advised that they would not. The following morning, she asked Chadwick what her job duties were and discovered, for the first time, that she was hired as a secretary. Kelley then called Yates to complain, and Yates advised her to come to Respondent's office so they could discuss the matter and attempt to find a solution. Kelley called Yates later that day and said that she had already quit her job at the Sheraton.

   
   

8. On the following day Kelley met with Yates and Charles E. DeCroes, the president of the Respondent. DeCroes explained to Kelley that the Respondent had fulfilled its contractual obligation by placing her in a position that she had accepted, that the Respondent owed Kelley no further assistance, that the

   Respondent was entitled to retain the placement fee of $761.63 which Kelley had paid for the position, but that if Yates felt an obligation to attempt to find other employment for Kelley, then Yates was free to do so. Accordingly, DeCroes and Kelley signed an agreement amending their employment agreement whereby Respondent agreed to replace Kelley in a position at no additional fee.

   Thereafter, Yates arranged an interview for Kelley at the Holiday Inn and scheduled three interviews for Kelley with Lanier. Kelley failed to keep any of the appointments arranged by Yates at Lanier. In the meantime, Kelley advised Yates that although she was in need of employment, she felt her chances of obtaining a suitable position would be increased if she first had the braces on her teeth removed. Yates then attempted to place Kelley in a part-time sales position until after Christmas so that Kelley could realize some income to help her through her financial problems, so that Kelley would have free time to interview for a position desirable to her, and so that Kelley would have time to have her braces removed. Kelley rejected the sales positions which she felt beneath her dignity as a college graduate and filed a formal complaint against the Respondent with the Division of Licensing on December 4, 1979, although Yates continued to attempt to place her subsequent to that date.

   
   

9. Upon receipt of Kelley's written complaint, the Division of Licensing assigned Frank Calhoun, Regional Supervisor for the Department of State, to conduct an investigation. As a result of his investigation, Dennis L. English, Chief of the Bureau of Regulation & Enforcement, directed a letter to DeCroes, Respondent's President, setting forth the Division's conclusion that the position at the Sheraton Inn was misrepresented to Kelley in violation of Chapter 449.02(1)(d), Florida Statutes, setting forth the Division's determination that a full refund of Kelley's placement fee of $761.63 should be made, and stating that if the refund was not made, the Division of Licensing might take further action in accordance with Chapter 449.02(1), Florida Statutes.

   
   

10. Chapter 449, Florida Statutes, which gave to the Department of State regulatory authority over private employment agencies was repealed by the Legislature effective July 1, 1980.

    
    

    CONCLUSIONS OF LAW

    
    

11. Although the Petitioner Department of State, Division of Licensing, no longer has any regulatory authority over private employment agencies, during the time that Kelley interviewed for and accepted the position at the Sheraton, Section 449.02(1), Florida Statutes (1979), conferred upon the Department of State the power, jurisdiction and authority to issue and revoke licenses to employment agencies, agents or agency employees, to deny such applicants a license, to suspend the license for a reasonable period, or assess a civil penalty against any licensee in an amount not to exceed the annual license fee. Such disciplinary action is authorized when the Department determines that a licensee has

    
    

    . . . [m]ade, printed, published, dis- tributed, or caused, authorized, or know- ingly permitted the making, printing, publication or distribution of false state- ments, descriptions, or promises of such

    a character as to reasonably induce any person to act to his damage or injury, where such statements, descriptions, or promises purport to be made or to be per-

    formed by the employment agent, if the agent then knew, or by the exercise of reasonable care and inquiry, could have known, of the falsity of said statements descriptions or promises . . .(e.s.) Section 449.02(1)(d), Florida Statutes (1979).

    
    

    Although the information obtained from Chadwick by Farrow and recorded by Farrow on the Job Order form for the use of other employees of the Respondent was far from informative, her negligence in obtaining full details from Chadwick falls far short of constituting a misrepresentation or false description which would reasonably induce a person to act to his own detriment. Although Farrow failed to obtain information, she did not convey false information. When Yates used the Job Order as a basis for making contact with Chadwick, she utilized in her conversations only that information obtained by Farrow, i.e., that the title of the position was convention coordinator and that an average typing speed was required. With the minimal information conveyed by Chadwick to Respondent and thereafter by Respondent's employees to Kelley, there were only two people in a position to determine the duties involved and the rate of pay of the position being sought by Kelley. Kelley could have easily determined that the title given to the position by Chadwick was false and/or misleading had she asked Chadwick in any of their discussions what it was that she would be doing and how much she would be paid to do it. Kelley herself is responsible for any misunderstanding regarding Chadwick's intentions or regarding the employment which she chose to accept. No agent of Respondent had knowledge of the misleading job title until after Kelley advised Yates that she had quit her job since the job was not that of convention coordinator. The Department's own witnesses testified that it is the responsibility of the employee to verify that the job is what the employer and the employment agency represent it to be.

    Accordingly, the petitioners herein have failed to sustain their burden of proof to show a statutory violation by the Respondent or any of its agents.

    
    

12. Although the above is dispositive of this matter, the relief sought herein by the Petitioners requires some discussion. Although Section 449.02, Florida Statutes (1979), authorized the Department to take disciplinary action against licensees for statutory violations, nowhere within Chapter 449, Florida Statutes (1979), is there any authorization by the Legislature for the Department to act as a collection agency for disappointed private employment agency clients. The Department is given no authority to order refunds of placement fees. Although it is given the authority to assess a civil penalty against a licensee, such civil penalty cannot exceed the annual license fee, which license fee is statutorily set at one hundred dollars for a general employment agency. Section 449.02(2)(a), Florida Statutes (1979). Further, Section 449.11, Florida Statutes (1979), requires that all moneys collected by the Department be deposited in the general revenue fund. No authority is given for the Department to collect money and give that money to a private citizen. Furthermore, no authority is contained within Chapter 449, Florida Statutes (1979), for the Department to threaten a licensee with disciplinary action if the licensee fails to voluntarily refund money if a legal dispute arises between a private employment agency and a client of that agency, as was done in the Department's notice of violation letter dated February 11, 1980. If the Department determines that disciplinary action is appropriate, then its responsibility is to take such action and not to threaten to take such action. However, as discussed above, the evidence in this cause clearly demonstrates that disciplinary action against the Respondent based upon Kelley's complaint is inappropriate.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is, therefore,

RECOMMENDED THAT:

A final order be entered denying the relief sought by the Petitioners herein, dismissing the complaint filed by Petitioner Marilyn Kelley, and authorizing Respondent, Sun Personnel Services, Inc., to retain the placement fee earned by it.

RECOMMENDED this 19th day of January, 1981, in Tallahassee, Florida.

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings Department of Administration

Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of January, 1981.

COPIES FURNISHED:

James V. Antista, Esquire Assistant General Counsel Department of State

The Capitol

Tallahassee, Florida 32301

Cary R. Singletary, Esquire Yanger and Singletary, P.A. Exchange National Bank Building Suite 1625, 610 Florida Avenue

Tampa, Florida 33602

The Honorable George Firestone Secretary of State

The Capitol

Tallahassee, Florida 32301

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, DIVISION OF LICENSING, and MARILYN KELLEY,

Petitioner,

vs. CASE NO. 80-715

SUN PERSONNEL SERVICES, INC.,

a Florida corporation,

Respondent.

/

RECOMMENDED ORDER

This cause was heard by a duly designated Hearing Officer of the Division of Administrative Hearings pursuant to Chapter 120, Florida Statutes. As a result of said hearing, the Hearing Officer submitted a Recommended Order which included Findings of Fact and Conclusions of Law. Furthermore, in accordance with Section 120.57(1)(b)(8), Florida Statutes, the Department of State has allowed each party at least ten days in which to submit written exceptions to the Recommended Order; Exceptions were filed by the Division of Licensing.

Therefore, after consideration of the Recommended Order and Exceptions thereto, the Findings of Fact of the Hearing Officer, as reflected in the Recommended Order, are hereby adopted as the Department's own. The Conclusions of Law, except for these noted below, are likewise adopted as the Department's own.

The first two Exceptions are addressed to the Conclusions of Law that the Division of Licensing had no authority to act as a collection agency for disappointed private employment agency clients and that the Department had no authority to order refunds of placement fees. The two may be considered together.

First, there is no finding of fact upon which the "collection" conclusion could be based; that is, that the Division ever attempted to collect money on behalf of the client. Chapter 449, Florida Statutes (1977), repealed July 1, 1980, in Section 449.05(9) thereof, stated that an applicant who failed to remain in a position for a period of fourteen calendar days, through no fault of his own, was entitled to have refunded to him by the licensee an amount equal to seventy-five percent of the total fee. There is no finding that the Division even suggested that the refund be paid to it. Secondly, the February 11, 1980 letter to the Respondent from the Division did not order a refund, but informed the licensee that the Division had determined that a refund should be made. As the statute was mandatory and failure of the licensee to make refund under appropriate circumstances would clearly be a violation of Chapter 449, the Division was acting well within its authority to advise the licensee that in the

opinion of the Division the applicant had failed to retain the position through no fault of her own and that the refund provision of Section 449.05(9), applied.

The Conclusions that the Division had no authority to act as a collection agency and that it had no authority to order a refund, being without basis in the Findings of Fact are, therefore, rejected.

The Division's third exception referred to the Hearing Officer's conclusion that the Division was without authority to impose a civil penalty in excess of the annual license fee for the licensee, which in this instance would have been

$100.00. The Division concurs that this was the maximum penalty that could be imposed for each separate violation of the statute or its implementing rules. However, as there was no Finding of Fact that the Division attempted to impose a civil penalty in this case, the conclusion is totally immaterial. It may be that the Hearing Officer construed the determination that a refund of the applicant's fee amounted to a civil penalty, but the statutory sections involved are not susceptible to such a construction.

Since the Hearing Officer's conclusion is a correct statement of law, it is not rejected. However, as it bears no relationship whatsoever to the disposition of this case, it is not a basis of the Department's decision.

The Division's fourth and final exception is to the effect that the Hearing Officer concluded that the Division was unable to take disciplinary action against a private employment agency that had violated Chapter 449. The conclusions contained in the Recommended Order do not appear to make that statement, but rather that the Department could not threaten a licensee with disciplinary action.

Section 449.02(b), provided for the revocation of a license for violation of any of the provisions of Chapter 449, and Section 449.05(9), directed that a refund of an application fee be made in certain circumstances. There could be no violation of the latter section until the licensee refused to make the refund, and the Division could take no specific action until that time.

Therefore, it was certainly within the authority of the Division, after an investigation, to advise the licensee of the results of the investigation; that certain actions were indicated; and that failure of the licensee to take such actions might result in the enforcement provisions of the statute being invoked.

For these reasons, the conclusion of the Hearing Officer that the Division was without authority to issue the letter of February 11, 1980 is rejected.

ORDER

Based upon the Findings of Fact and the Conclusions of Law adopted by the Department, it is ordered as follows:

1. The relief sought by Petitioner herein is denied.

   
   

2. The complaint filed by the Petitioner, Marilyn Kelley, is dismissed.

   
   

3. Respondent, Sun Personnel Services, Inc., shall retain the placement fee paid to it by the Petitioner, Marilyn Kelley.

DONE AND ORDERED this 1st day of March 1981 at Tallahassee, Florida.

GEORGE FIRESTONE, Secretary Department of State

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Final Order has been sent by

U.S. Mail to Cary R. Singletary, Esquire, Yanger and Singletary, P.A., Exchange National Bank Building, Suite 1625, 610 Florida Avenue, Tampa, Florida 33602 and hand delivered to James V. Antista, Assistant General Counsel, Department of State, Room 1801, The Capitol, Tallahassee, Florida 32301 this 4th day of March 1981.

Stephen Nall

cc: Marilyn Kelley

Linda Rigot, Hearing Officer

Docket for Case No: 80-000715

Orders for Case No: 80-000715