STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BIANCA KING,

Petitioner,

vs.

BLUE RIBBON CLEANERS,

Respondent.

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) Case No. 04-2285

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RECOMMENDED ORDER

Pursuant to notice, a hearing was held in the above-styled case on September 24, 2004, by Stephen F. Dean, assigned Administrative Law Judge of the Division of Administrative Hearings, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Bianca King, pro se

509 East Magnolia Drive Apartment 250-0 Tallahassee, Florida 32301

For Respondent: Mark S. Levine, Esquire

Levine, Stivers & Myers

245 East Virginia Street Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

Whether the Respondent is an employer within the meaning of Chapter 760, Florida Statutes?

PRELIMINARY STATEMENT

This case arose when the Petitioner filed a complaint with the Florida Commission on Human Relations (FCHR) alleging that the Respondent had terminated her for fighting with another employee, and had treated her differently from white employees. The FCHR investigated the complaint and determined that the Respondent did not employ enough employees to meet the statutory definition of an employer. Based upon this finding, it issued its determination of no cause based upon lack of jurisdiction.

Within the statutory time, the Petitioner requested a formal hearing and the FCHR forwarded the case to the Division of Administrative Hearings on June 30, 2004. An Initial Order was sent to the parties on July 1, 2004, and on July 14, 2004, the Respondent filed a response. On July 14, 2004, a Notice of Hearing was issued which set the case for hearing on

September 24, 2004, in accordance with the sole response received.

The notice stated that the issue was whether the Respondent was an employer, and, if so, did the Respondent engage in an unlawful employment practice. Thereafter, the Respondent requested a status conference and specifically questioned whether the issue encompassed whether the Respondent had engaged in an unlawful employment practice. After the status conference and an opportunity to consider the argument of the Respondent,

the issue was limited to whether the Respondent was an employer; however, because of the immediacy of the hearing an order was not issued reflecting this change although both parties were made aware of this limitation at the status conference.

The hearing was held as noticed. The Petitioner testified in her behalf. The Respondent called David Wallenfelsz, Timothy Weber, and Michael Wallenfelsz to testify and introduced Respondent's Exhibits 1 through 5 into the record. Neither party availed themselves of the opportunity to file a post- hearing brief.

FINDINGS OF FACT

1. Bianca King was an employee of a dry-cleaning store located at 1660 North Monroe Street and using the trade name Blue Ribbon Cleaners. It was managed by Timothy Weber, who discharged the Petitioner for a fight with a fellow employee. The store had eight to nine employees. The Petitioner had worked for another Blue Ribbon Cleaners store located on Capital Circle prior to her employment at the 1660 North Monroe location.

2. The Petitioner did not present any other evidence on how many employees the Respondent had.

3. The Respondent presented the testimony of David Wallenfelsz, who prepares the paychecks for the employees of the several Blue Ribbon Cleaner stores in the area. He identified a

   check used by the store located on North Monroe. This check (Respondent's Exhibit 1) was imprinted with the name, Wally of Tallahassee, Inc., and it is representative of the checks used to pay payroll and other expenses at that store. Wally of Tallahassee, Inc., is the separate corporation that owns the North Monroe store.

4. David Wallenfelsz also identified a check used by the Capital Circle store, which has 25 employees. This check (Respondent's Exhibit 2) was pink in color and was imprinted with Wallenfelsz, Inc. Wallenfelsz, Inc. is a separate corporation, although some of the shareholders of Wally of Tallahassee, Inc. are also shareholders of Wallenfelsz, Inc.

5. David Wallenfelsz also identified a check used by the East Lafayette store. This check (Respondent's Exhibit 3) was gray-green in color and is imprinted with the name Blue Ribbon Cleaners, Inc. This store has 25 employees. Some of the shareholders in Wally of Tallahassee, Inc. and Wallenfelsz, Inc. are shareholders in Blue Ribbon Cleaners, Inc.

6. Timothy Weber was called to testify. Weber was the manager of the North Monroe store who discharged the Petitioner. He has managed that store for twelve years, and there is no one above him. He is totally in charge of hiring and firing at that store. The store is its own cost center. He makes independent management decisions to include the purchase of equipment and

   supplies and earns bonuses for exceeding expectations in earnings. The number of its employees, about eight, are dictated by the amount of its business.

7. Weber was not present when the fight between the Petitioner and another employee occurred. He was told about it when he returned. He terminated both employees, the Petitioner, who is black, and the other employee, who was white. He did not clear his decision with the principal stockholders.

8. Michael Wallenfelsz was called to testify. He is a major stockholder in all three corporations, together with his brother, Greg. He identified documents (Respondent's Exhibit 4) which the stores must file confirming to the state the hiring of employees. Each store files a separate report and each store has a separate federal identification number. He confirmed Weber's testimony that each store was a separate profit center. Each store has its own plant; each store has its own lease; and each store has a separate manager, who is free to hire and fire without clearing their decisions with him or his brother. The books of account treat each store separately and funds from the three operations are not commingled.

9. Employees who want to transfer from one store to another must resign from one store and be accepted at another store, where they lose seniority and serve a new probation period.

10. Michael Wallenfelsz testified about the reasons for operating as separate corporations. He stated that this had nothing to do with avoiding jurisdiction of Chapter 760, Florida Statutes. He stated, as did his father, David, that two of the stores have about 25 employees, well within the jurisdictional limits. There was no evidence presented to show that the method of operation was a subterfuge to avoid jurisdiction by FCHR.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties and subject matter pursuant to Section 760.11, Florida Statutes.

12. The sole issue presented was whether the Respondent, the Blue Ribbon Cleaners located at 1660 North Monroe Street, Tallahassee, Florida, is an employer within the definition of Chapter 760, Florida Statutes.

13. As the FCHR's Determination recited, Section 760.02(7), Florida Statutes, defines an employer to be any person employing fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year and any agent of such person. The evidence presented at the hearing by the Petitioner did not establish that the store at 1660 North Monroe had more than 15 employees. The Petitioner testified that it had eight or nine employees. The Petitioner did not present any evidence to show

    that any of the other stores was "related" to the store at 1660 North Monroe or that the separate incorporation of the stores was a subterfuge to avoid the jurisdiction of Chapter 760, Florida Statutes.

14. The Respondent presented evidence that the stores were separate businesses and that they were not separated to avoid jurisdiction of the Commission. The Respondent admitted that its other two stores have sufficient employees to place them within the jurisdiction of the Commission. Weber testified that the North Monroe store had fewer employees because it had less business.

15. The Petitioner has the burden to show that the Respondent falls within the jurisdiction of the Commission. She failed to do this.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is

RECOMMENDED:

That the Commission enter its final order dismissing the Petitioner's Petition for Relief.

DONE AND ENTERED this 24th day of November, 2004, 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 24th day of November, 2004.

COPIES FURNISHED:

Bianca King

509 East Magnolia Drive Apartment 2050 Tallahassee, Florida 32301

Mark S. Levine, Esquire Levine, Stivers & Myers

245 East Virginia Street Tallahassee, Florida 32301

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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 04-002285

Orders for Case No: 04-002285