The Issue The issue is whether Respondent engaged in an unlawful employment practice by discharging Petitioner because of his age.
Findings Of Fact Respondent produces flexible packaging, develops technology to fill that packaging with liquids, and provides services to incorporate its flexible packaging systems into its customers' facilities. Respondent primarily produces "bag-in- box" products and manufacturing systems for customers such as Pepsi-Cola and Wendy's, as well as various customers in the milk, juice, and chemical business. Respondent operates two manufacturing facilities, one located at its headquarters in Romeville, Illinois, and another located in Union City, California. Petitioner was born on April 24, 1946. In 1996, Respondent hired Petitioner as a sales representative, and he served in that position until he was discharged on April 19, 2004. Petitioner initially was assigned to service the Upper Midwest Region and was based in Chicago, Illinois. In 1999, Respondent reassigned Petitioner to the Southeast Region. After his reassignment to the Southeast Region, Petitioner continued to live in the Chicago area for several years. However, in December 2002 or January 2003, Petitioner and Respondent mutually agreed that Petitioner would relocate to Florida. Because the move resulted from a mutual decision between Petitioner and one of Respondent's founders, Respondent paid $25,000 towards Petitioner's moving expenses. After the move, Petitioner continued to be responsible for the same geographical territory and the same customers as before the move. Joe Pranckus is Respondent's vice president of sales. At the time of Petitioner's discharge, the sales department consisted of a customer service department and four geographical sales territories: the Central, Western, Eastern and Mexico Regions. The Central and Western Regions (where Respondent's manufacturing facilities are located) each were overseen by a regional manager. The Eastern and Mexico Regions did not have regional managers. As Petitioner was located in the Eastern Region, Mr. Pranckus served as his direct supervisor. From 1999 until his dismissal, Petitioner was Respondent’s only sales representative in the Southeast. His primary responsibility was to maintain and increase Respondent’s business in that region of the country. The Rapak sales department as a whole is generally responsible for maintaining and increasing Respondent’s overall sales. This involves not only selling products and services, but also following up with customers to help them solve problems and otherwise to ensure their happiness. Because his primary responsibility was maintaining and increasing sales, Mr. Pranckus judged Petitioner almost exclusively by his year-to-date sales numbers as compared to the same period in the previous year. These numbers were calculated by Mr. Pranckus on a fiscal-year basis, from May 1st through April 30th. For the 2003-2004 fiscal year, Mr. Pranckus established a goal for Petitioner of 15 percent growth in sales. The minimum expectation was that Petitioner maintain at least the same amount of sales he had the previous year. During the 2003-2004 fiscal year, Mr. Pranckus e- mailed Petitioner his sales-versus-last-year figures on almost a monthly basis. By the end of June 2003, Petitioner had sold only 84 percent as much as he had sold through June 2002; by the end of July, only 87 percent as much as he had sold through July 2002; by the end of August, 91 percent; September, 81 percent; October, 90 percent; November, 85 percent; December, 87 percent; and by the end of March 2004 (eleven months into the fiscal year), he had sold only 88 percent as much as he had sold through the first eleven months of the 2002-2003 fiscal year. In short, as the fiscal year drew to a close, it was clear that Petitioner was going to suffer a net loss of business for the year. In late October 2003, Petitioner suffered a heart attack and underwent triple bypass surgery. Petitioner was unable to work for approximately two months while recovering from surgery. However, Petitioner returned to work in January 2004, initially working on a limited basis. Petitioner's sales numbers suffered because he lost some certain accounts owing to factors beyond his control (such as product quality and price issues). Nonetheless, Petitioner concedes that it was his job to replace his lost sales, no matter what caused his customers to switch suppliers. Mr. Pranckus typically holds one sales meeting each year for his entire staff. In February 2004, Mr. Pranckus held one of those meetings. At that meeting, Mr. Pranckus informed Petitioner that "changes would be made if [his] numbers didn't improve." In his application for unemployment compensation, Petitioner stated that Mr. Pranckus also warned him on March 10, 2004, that he needed to improve his sales numbers. Finally, Mr. Pranckus sent an e-mail to Petitioner on March 27, 2004. In that e-mail, Mr. Pranckus delivered the following written warning: Your territory is at a critical state. We can not continue along this path. Sales must be improved immediately or we will need to change. We agreed at our sales meeting to get this back on track. It is not showing up in the numbers and activity. Call me and let me know how we can help. On April 19, 2004, Mr. Pranckus discharged Petitioner because of his poor performance. His year-to-date sales figures were unacceptably low, as compared to the previous year, and Mr. Pranckus saw no evidence of plans or activity designed to improve matters. After Petitioner was discharged, he filed an application for unemployment compensation. On the application, Petitioner stated that he was discharged “for failure to achieve sales goals.” Later in that same application, in response to a request to “briefly summarize your reason for separation from this employer,” Petitioner wrote: “I did not achieve my sales goals.” Petitioner did not assert anywhere in his application for unemployment benefits that he was discharged because of his age. At the time of his discharge, Petitioner was 57 years old (almost 58). Mr. Pranckus did not know Petitioner’s exact age, but he would have guessed (based on physical appearance) that Petitioner was in his mid-50s at the time. Mr. Pranckus did not consider this to be “old.” In fact, Petitioner is not much older than Mr. Pranckus. Mr. Pranckus interviewed three individuals to fill Petitioner’s position. He ultimately selected Jim Wulff. Mr. Pranckus did not know their ages at the time of the interviews, but he would have guessed (again, by appearance) that Mr. Wulff was in his mid-50s and that the other two interviewees were in their mid- to late 40s and mid- to late 50s, respectively. In fact, Mr. Wulff was born on May 26, 1948, so he was 55 years old (nearly 56) when Mr. Pranckus hired him. Sales analysis from June 2003 showed that eight Rapak employees or representatives did not meet the 100 percent sales goal. Those listed were either Rapak non-supervising employees with direct responsibility for sales, supervising employees, or non-employee independent brokers. However, none of these employees, whether younger or older, was similarly situated to Petitioner at the time of his discharge. As an initial matter, there were four other non- supervisory employees with direct responsibility for sales: Dennis Hayes, Marvin Groom, Donald Young, and Keith Martinez. The other individuals responsible for sales were either supervisory employees or non-employee independent brokers. Because the two supervisors have management responsibilities and are responsible for their entire regions and the individuals who report to them, they are not judged primarily by whether they personally meet the 100 percent or 115 percent sales-versus- last-year objectives. Brokers, meanwhile, are not employees. Rather, they are independent contractors paid on a straight commission, so Respondent receives value from their services regardless of how much they sell. Mr. Hayes was the only other employee who performed the exact same job as Petitioner, but he reported to Regional Manager Dan Petriekis in the Central Region, not directly to Mr. Pranckus. Moreover, as of March 2004, Mr. Hayes had sold 127 percent as much as he had during the same period the previous year.1 Mr. Hayes is almost ten years older than Petitioner. Mr. Young was also responsible for sales, but he was semi-retired, serviced only one customer and received a base salary for his work. As of March 2004, however, Mr. Young had sold 115 percent as much as he had during the same period the previous year. Mr. Young is more than twelve years older than Petitioner. Finally, while Keith Martinez and Marvin Groom had some responsibility for sales, their positions were “radically different” from Petitioner’s. Whereas Petitioner could identify certain problems with Respondent’s machinery and products and would refer those problems to a service technician to assist his customers, Mr. Groom and Mr. Martinez were both originally hired as service technicians. Based on this experience, they could and did not only identify technical problems, but also performed the necessary maintenance and repair work on the spot, in addition to performing preventative maintenance. Petitioner, by contrast, has spent his entire working life as salesman. Accordingly, he was neither capable of, nor expected to, perform these additional maintenance and repair functions. As a result, Mr. Groom and Mr. Martinez received more leeway on their sales performance than Petitioner because they brought additional value to Respondent’s business that Petitioner could not offer. Nonetheless, as of March 2004, Mr. Groom was running at 100 percent versus the prior year and Mr. Martinez was running at 87 percent. Mr. Groom is roughly three years younger than Petitioner, and Mr. Martinez is 15 and one-half years younger than Petitioner. Respondent paid Petitioner $113,000 in salary and commissions during his last full calendar year of employment with Rapak. Petitioner was out of work for ten months after his dismissal. During that time, he received $8,000 in unemployment compensation from the State of Florida and $8,942.33 in severance pay from Respondent. In his new job, Petitioner projects that he will earn $100,000 in his first year but admits that he could make at least $113,000 because his compensation is once again dependent upon sales commissions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Respondent committed no unlawful employment practice and dismissing the Petition for Relief. DONE AND ENTERED this 26th day of July, 2006, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 26th day of July, 2006.
The Issue Whether or not on or about October 28, 1976, investigation revealed that the Zig Zag Bar, Inc., d/b/a Zig Zag Pub, failed to notify in writing, the Division of Beverages, of its change of name, 30 days in advance of such change, contrary to s. 561.33, F.S. Whether or not on or about November 4, 1976, investigation revealed that the Zig Zag Bar, Inc., d/b/a Zig Zag Pub, did fail to submit and certified copy of the minutes of the stockholders' meeting, changing corporate officers, to the Division of Beverages, in violation of Rule 7A-2.07, F.A.C. Whether or not on or about November 12, 1976, investigation revealed that the Zig Zag Bar, Inc., d/b/a Zig Zag Pub, had entered into an agreement with one Billy Gene McKinney, which agreement relinquished all or part of the management and control of the licensed premises contrary to Rule 7A-3.17, F.A.C.
Findings Of Fact The Zig Zag Bar, Inc. is the holder of license number 23-2702, series 2-COP, held with the State of Florida, Division of Alcoholic Beverages and Tobacco. This license is held to do business under the name Zig Zag Pub, located at 800 Alibaba Avenue, Opa-Locka, Florida. This case arises on the basis of an investigation conducted by Agent James P. Bates, State of Florida, Division of Alcoholic Beverages and Tobacco. On October 19, 1976 Agent Bates received information from an unidentified confidential informant that the Zig Zag Pub had been sold or leased to one Billy McKinney, a convicted felon. Having received that information, Bates took action to determine whether the Respondent, Zig Zag Bar, Inc. had entered into an agreement with Billy McKinney, which agreement possibly would have relinquished all or part of the management and control of the licensed premises contrary to Rule 7A-3.17, F.A.C. One aspect of the investigation, was the review of the records maintained by the Division of Alcoholic Beverages and Tobacco to determine if Bill McKinney was listed as one of the officers of the subject corporation. This record examination took place in October or November, 1976. This search did not show Bill McKinney being listed as a corporate officer. The corporate officers listed were Phyllis Charlene Henry, President, Sigride Kienle Sowell, also known as Sigride Kienle, Vice-President and Richard M. Knowles, Secretary- Treasurer. Agent Bates went to thee location of the Zig Zag Pub, at 800 Alibaba Avenue, Opa-Locka, Florida, on October 28, 1976. When he arrived he discovered an advertising sign in the front of the licensed premises reflecting the name "Bill's Place". On October 28, 1976 the records of the Petitioner indicated the official name of the licensed premises was Zig Zag Pub. This prompted Agent Bates to make a further inquiry into the true status of the licensed premises, on the subject of ownership and control. Agent Bates checked with the City of Opa-Locka, Florida and discovered that Bill McKinney had completed a questionnaire for an operating license to be held with the City of Opa-Locka, Florida. The license was issued to Zig Zag Pub in the name of Richard M. Knowles; however, the questionnaire application was completed by Bill McKinney who indicated that he was the owner-operator. This information is shown in Petitioner's Exhibits number 1 & number 2 admitted into evidence. Petitioner's Exhibit 1 is the questionnaire and Petitioner's Exhibit number 2 is the city license. Agent Bates also ascertained that Bill McKinney had obtained a water permit from the City of Opa-Locka for the benefit of the licensed premises. In the course of his investigation, Bates talked to Phyllis Charlene Henry, the named President of the Zig Zag Pub, Inc. Ms. Henry stated that the Zig Zag Pub, Inc. still maintained control of the licensed premises, even though the operating manager and Vice-President Sigride Kienle Sowell had left, leaving McKinney as the manager. Bates went to the licensed premises on November 12, 1976 and found Bill McKinney working behind the bar. McKinney explained that he was the manager of the licensed premises. In checking the business records of the licensed premises, a lease agreement was discovered which was signed between McKinney and Richard M. Knowles as an officer with the Zig Zag Pub, Inc. This lease agreement was a two year agreement with an option for McKinney to become a full partner in the corporation known as Zig Zag Pub, Inc. The agreement also authorized Bill McKinney to take full control to operate the business under the present licenses, one of those licenses being the license being held with the State of Florida, Division of Alcoholic Beverages and Tobacco. Petitioner's Exhibit number 3, admitted into evidence is the business contract spoken of. Agent Bates also discovered a number of checks written on an account of Bill McKinney which pertained to expenses of the Zig Zag Pub, Inc. Some of these checks are found in Petitioner's Composite Exhibits number 4 & number 5. Petitioner's Exhibit number 6 is a ledger showing expenditures of the business and reflects entries which correspond to the checks found in Petitioner's Composite Exhibit number 4. Petitioner's Exhibit number 7, admitted into evidence, is a composite exhibit containing invoices that are reflected in the ledger and shows that the invoices were made out to Bill's Place, and paid by the Zig Zag Pub or Bill McKinney. Petitioner's Exhibit number 8, admitted into evidence, is a receipt for a water bill charged to the licensed premises and paid by Bill McKinney. In following up the explanation of the sign found on the outside of the licensed premises, showing the name to be "Bill's Place," an invoice was located in the records. This invoice is Petitioner's Exhibit number 9, admitted into evidence, and shows that the sign had been delivered August 21, 1976. Another exhibit showing the connection of Bill Kinney to the licensed premises is a health inspection form made in the name of "Bill's Place" for the licensed premises and acknowledged by Bill McKinney. This is reflected in Petitioner's Exhibit number 10, admitted into evidence. Finally, there is a letter from the law firm of Bergstresser and DuVal, which indicates a request for payment of the November, 1976 rent due from the licensed premises under terms of a lease entered into by the principles of Zig Zag Bar, Inc. This letter is addressed to Bill McKinney, and is Petitioner's Exhibit number 11, admitted into evidence. While in the licensed premises on November 12, 1976, Agent Bates discussed McKinney's position with the Zig Zag Bar, Inc. McKinney indicated that he had been the manager since June, 1976. In an effort to determine McKinney's position in the corporation of Zig Zag Bar, Inc., Bates inquired of the Secretary of State, State of Florida. A teletype message was forward to Agent Bates indicating that the corporation had been cancelled for nonpayment of corporate fees. However, this message indicated that the last named officers were shown as Phyllis Charlene Henry, President, Sigride Kinele, Vice President and Richard M. Knowles as Secretary-Treasurer. This is reflected in Petitioner's Exhibit number 13, admitted into evidence. On November 19, 1976, the corporation was reinstated upon the payment of its fees. At the time the corporation was reinstated it listed Phyllis C. Henry, President, Kathlene McKinney as Vice-President and Richard M. Knowles as Secretary-Teasurer. Kathlene McKinney is the wife of Bill McKinney. Petitioner's Exhibit number 14, admitted into evidence are the documents showing the reinstatement of corporation and indicates the named officers. The Petitioner had not been made aware of the change of officers, nor received a certified copy of the stockholders' meeting held by the Zig Zag Bar, Inc., which changed the corporate officers. After discovering the change in the corporate officers, Agent Bates met with Richard Knowles and Knowles stated that Sigride Kienle Sowell had been removed as manager and McKinney had been brought in to salvage the Zig Zag Bar, Inc., from its financial difficulties in the licensed premises. Knowles was instructed that he could take action to rectify the problem that he was having and gain compliance with the laws and rules of the State of Florida, Division of Alcoholic Beverages and Tobacco. At the date of hearing, Bill McKinney was still acting as the operator of the licensed premises, and the Zig Zag Bar, Inc., had not filed a certified copy of the minutes of the stockholders' meeting changing the corporate officers, to those reflected in the November 19, 1976 reinstatement of the corporation with the Secretary of State of Florida. Furthermore, the name displayed on the sign in front of the licensed premises was "Bill's Place," and not Zig Zag Bar. After concluding his investigation, Agent Bates related his findings to his superiors and this led to the filing of the notice to show cause which is the subject of this hearing. The notice to show cause contains three counts. The first of those counts alleges that on October 28, 1976, it was shown that the Zig Zag Bar, Inc., d/b/a Zig Zag Pub had failed to notify in writing, the State of Florida, Division of Alcoholic Beverages and Tobacco of its change of name in 30 days in advance of such name change, contrary to s. 561.33, F.S. Specifically, s. 561.33(2) , F.S. states: "no licensee may change the name of his place of business without first giving the Division 30 days' notice in writing of such change." In fact, the name was effectively changed from Zig Zag Pub to "Bill's Place" as discovered on October 28, 1976 and the Petitioner had not been notified 30 days in advance of such change. The Petitioner still has not been notified of such change. The second count of the notice to show cayuse alleges that on or about November 4, 1976 it was discovered that Zig Zag Bar, Inc. d/b/a Zig Zag Pub failed to submit a certified copy of the minutes of the stockholders' meeting changing corporate officers, to the State of Florida, Division of Alcoholic Beverages and Tobacco in violation of Rule 7A-2.07, F.A.C. The pertinent provision of the Rule, is Rule 7A-2.07(2), F.A.C., which states the following: "If any corporation holding a beverage license shall change corporate officers, such corporation shall within 10 days of such change submit a certified copy of the minutes of the stockholders' meeting at which the change in officers was effected to the district office of the district of the Division of Beverage wherein the license held by such corporation is located." The Respondent had changed the Vice-President in its corporation from Sigride Kienle Sowell to Kathlene McKinney, sometime prior to November 19, 1976, as evidenced by their filing with the Secretary of State of Florida. After making this change they failed to submit a certified copy of the minutes of the stockholders' meeting changing the corporate officer to the State of Florida, Division of Alcoholic Beverages and Tobacco within the allotted 10 day requirement. This change still has not been submitted. The third count in the notice to show cause was an allegation that the investigation on November 12, 1976, revealed that the Zig Zag Bar, Inc., d/b/a Zig Zag Pub, entered into an agreement with Billy Gene McKinney which agreement relinquished all or part of the management and control of the licensed premises and alleged that this was contrary to Rule 7A-3.17, F.A.C. Rule 7A-3.17, F.A.C. contains this language: "All business conducted on the licensed premises under the beverage law shall be managed and controlled at all times by the licensee managed by or his authorized employee or employees. The term "employee," as used herein, shall mean a person who received a salary or wages for services performed, for and in behalf of a licensee, under the exclusive control and direction of the latter. It does not include a lessee, and independent contractor or any person employed by collateral agreement to independently manage and control the said business on the licensed premises. Indicia for determining whether a purported managerial contract conforms to this rule are as follows: The licensee must retain control of the operation of the business. Salary or wages must be paid by the licensee to the manager or employee for conduct of the business under the ultimate direction of the former. Social Security and workmen's compensation coverage must be paid and accounted for by the licensee. The licensee must be responsible for all debts of the business and legally entitled to all incomes therefrom. All alcoholic beverages for the business must be purchased in the licensee's behalf and under the license covering the premises. The licensed premises must be operated for all purposes in the name of the licensee or his legal trade name as distinguished from the name or names of any other person or persons. The licensee must be responsible for all conduct of the business and the license involved must be subject to suspension and revocation for any illegal acts committed on the premises or under the beverage law. Complete ultimate authority for the hiring and dismissal of all employees on the premises must rest with the licensee. The licensee must be primarily responsible for the rent, utilities and insurance covering the premises, and all other incidental expenses occasioned in the operation of the business. The licensee must remain at all times responsible for the maintenance and proper operation of equipment on the premises. The contract must contemplate the formation of the relationship of principal and agent between the licensee and the employee within the limits defined and implied by the contract. A contract wherein the so-called employee or manager pays a fixed sum to the licensee whether from net profits or not would not create the employer/employee relationship as contemplated by the rule. Any agreement woven in such language so as to clothe or disguise the true character of a contract either as a lease or a managerial contract will be shorn in order to effect the intent and purpose of the law and rule in this regard. The Pole Star which will guide the Division in determining whether or not a purported agreement is a bona fide managerial contract as distinguished from a lease will depend upon who has ultimate overall control and direction of the licensed premises under the terms of the agreement." In reflecting on the requirements contained in the Rule and comparing it to the facts shown in this case, it is clear that the Respondent has failed to comply with Rule 7A-3.17, F.A.C.
Recommendation It is recommended that the Director of the Division of Alcoholic Beverages and Tobacco suspend license number 23-2702, for a period of 20 days, but that such suspension be withheld for 15 days from the date of the recommended order to: (1) allow Bill McKinney to try to transfer the license number 23-2702 into his name and control; or allow the Respondent to make him an officer, stockholder, or employee entitled to operate the licensed premises; or allow the Respondent to remove him as the manager and operator of the licensed premises; allow application for change of name from Zig Zag Pub to "Bill's Place" or remove a sign indicating that the licensed premises is called "Bill's Place" and to allow the Zig Zag Bar, Inc., to file a certified copy of the corporate minutes of the stockholders' meeting which changed its corporate officers to the present named corporate officers. After the 15 days if the items (1) through (3) haven't been complied with the suspension shall take effect. This recommendation does not consider the acceptability of Bill McKinney as a transferee of the license held with the Division of Alcoholic Beverages and Tobacco or the propriety of the name change; nor does it address the question of possible future violations. DONE AND ENTERED this 29th day of August, 1977, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Denise LaRosa, Esquire 725 South Bronough Street Tallahassee, Florida 32304 Richard M. Knowles Secretary- Treasurer Zig Zag Pub 800 Alibaba Avenue Opa-Locka, Florida
Findings Of Fact At all times pertinent to the allegations herein, Respondent, Luke Range, d/b/a Flame Bar and Lounge, possessed a 4-COP alcoholic beverage License No. 15-96 for the Flame Bar and Lounge located at 355 Magnolia Street, Cocoa, Florida. Respondent Range purchased the Flame Bar several years ago. At that time, it was known as the Central Bar and, according to community representatives, at the time of purchase, was an extremely bad operation. Since his purchase of the bar, Respondent has upgraded it and gotten rid of many of the problems that plagued it when it was known as the Central Bar. At that time, there were numerous assaults, gambling violations and other offenses frequently conducted on the premises. Several members of the Cocoa Police Department have responded to the Flame Bar for various reasons as a result of disturbance calls and for other similar reasons over the months leading up to the summer of 1983. Many of these individuals, such as Nicholas Blankenship, were in the bar during the month of July, 1983, on several different occasions. Blankenship, for example, entered several times during that month and, each time he entered, he saw people smoking what appeared to be marijuana and smelled what appeared to be the odor of burning marijuana. Though he saw this drug activity, and though he was on duty, he did not make any arrests for drug violations because, in his own terms, it would be "suicidal" for an officer to attempt to make an arrest either by himself or with only one other officer in attendance. Blankenship reported what he had seen to Vice Squad Detectives Mike Blubaugh and Mike Brown. This same situation was described by another Cocoa police officer, John Willingham, who also was in the Flame Bar on several occasions during July, 1983, and clearly saw individuals smoking what appeared to be marijuana or smelled the heavy odor of marijuana. He did not make any arrests, but did report the information he observed regarding drug abuse to the vice squad detectives or the chief of police. Willingham has received anonymous phone calls concerning the sale of narcotics outside the bar. However, when he would arrive there in a marked police vehicle, he would normally not find anyone engaged in that activity. The two vice squad detectives, Blubaugh and Brown, also are familiar with the Flame Bar. In the course of their police work, on several occasions they have been notified of narcotics activity there and, when it was known as the Central Bar more than three years ago, it was known for its drug activity. In the summer of 1983, Blubaugh was given information that there were several drug dealers working both inside and outside the Flame Bar and, according to his information, it was known as a place where drug dealers hang out. He entered the Flame Bar several times during the summer of 1983 accompanied by different officers each time. To his knowledge, there is drug activity both outside the bar and in or around the apartments and pool hall across the street from it. He has on different occasions seen and smelled marijuana in the bar. He has monitored a police officer who was wired for sound and in that exercise heard a sale of narcotics being accomplished there. He has made no arrests for narcotics violations in the bar, nor has he ever seen the Respondent in the bar when drug transactions were taking place. Based on these complaints and others of a similar nature relating to other bars in the area, the chief of police for Cocoa, Florida, met with Jimmie E. Powell, the District Supervisor for District XII, Division of Alcoholic Beverages and Tobacco (which includes Brevard County, Florida) at the Cocoa Police Department and asked for help in investigating narcotics violations in the black community in Cocoa. The Flame Bar was not singled out for specific investigation during this conversation. Pursuant to this request, Maria L. Scruggs, a Division of Alcoholic Beverages and Tobacco agent, entered the Flame Bar at 10:45 p.m. on July 8, 1983. While she was there, she met an individual named Michael Jenkins, from whom she purchased $10 in drugs outside the bar. While inside, she saw what appeared to be widespread smoking of marijuana. She concluded this because of the smell and the method of cigarette rolling that she observed, and she also observed patrons snorting a white, powdered substance which they usually pulled out of tinfoil packets. In her estimation, there were on this occasion between 100 and 150 patrons in the building of whom the majority were engaged in some type of drug activity. On this occasion, she saw a maximum of three employees, two males, one female. She came back to the Flame Bar on July 9 at 9:00 p.m. On this occasion, she met a black female named Gloria Jean, whom she told she wanted to buy cocaine. Gloria Jean introduced Scruggs to a black male named Reagan, from whom she purchased a white, powdered substance, subsequently tested and identified as cocaine. Reagan was not an employee of the bar, but, instead, a patron. After that second buy, since her undercover identification was as a model, she asked Gloria Jean to meet the manager of the bar. This proved to be Willie Cooper, who identified himself to her as the manager and who introduced her to an individual named Sweet Jimmy. Scruggs asked this gentleman if he would sell her a 10-cent piece of cocaine (a 10-cent piece equates to $10, a 20- cent piece to $20, etc.). Sweet Jimmy indicated he did not have any 10-cent pieces, but would sell her a 25-cent piece. Scruggs had seen this individual make sales out of his sock, and she also bought $20 worth of the substance, which was subsequently identified as cocaine. While Scruggs was sitting there, several black males came up and talked with her. While doing so, they engaged in several sales of what appeared to her to be narcotics to other individuals right at the table where she was sitting with Sweet Jimmy. It was her impression that night (July 9) that besides dancing, the general activity of the people in the Flame Bar was either dealing in or using narcotics. On July 15, 1983, Scruggs again entered the bar in the company of Paul Blackmon at 9:30 P.M.. She introduced Blackmon to Cooper as her boyfriend. At this time, she engaged Cooper in a discussion regarding the fashion shows which she, as a "model," desired to bring into the bar. These discussions took place in what Cooper described as his office and, during the conversations, the issue came up regarding the use of narcotics. Scruggs told Cooper she was concerned about bringing a fashion show into the bar because she was afraid of a raid. Cooper told her at this time not to worry, that the police had a deaf ear to any narcotic activity there. She asked Cooper if cocaine was available, and he said it was. At this point, Blackmon and Scruggs went over to the bar and, shortly thereafter, Cooper came up to Blackmon and gave him a package for which Blackmon paid Cooper some money. Cooper put this money into his pocket and then went back to tending bar. The substance received from Cooper by Blackmon that night was subsequently tested by the laboratory at the Florida Department of Law Enforcement and determined to be cocaine. Scruggs and Blackmon came back again the following night, July 16, at approximately 8:55 P.M.. When they entered, they saw patrons snorting what appeared to be cocaine and smoking what appeared to be marijuana. Upon entering, they went directly to the bar, where Blackmon talked with a black male named Gillaman, who was the relief bartender. On this occasion, Cooper was not present when Scruggs and Blackmon entered, but did come in within a few minutes thereafter. Blackmon asked Cooper if he could get any coke like he had gotten the night before. Cooper immediately left the area and shortly thereafter came back with a tinfoil package for which he got money from Blackmon. This substance was also subsequently identified by the Florida Department of Law Enforcement as cocaine. Scruggs had met Respondent at another club during this period and states she had talked to him at the bar about the modeling shows mentioned previously. Respondent advised her she would have to talk to Mr. O. P. Smith about it, giving her Smith's phone number to contact him. The one call she made, however, did not get through. During the conversation she had with Respondent, she used her undercover name of Cynthia. Respondent denies that the conversation with Scruggs ever took place, further denying that he has ever met her. The equipoise of this situation is somewhat abated, however, when one considers the probability of the evidence. It is unlikely that Scruggs would make up a story as detailed and as complex as she has. On the other hand, it is quite likely that Respondent would not recall a particular conversation of several months previously regarding a subject as mundane as a modeling show with an individual he met only once. Therefore, weighing the evidence, it is more likely that Ms. Scruggs' version prevails and that, in fact, she and Respondent did meet. Blackmon returned to the bar one other time, on July 20, 1983. On this occasion, he talked with an obvious juvenile who identified himself as "Cookie" and who he asked if he could get cocaine. This juvenile went over to another man identified as Juan Cidbury, from whom he got a package and returned to Blackmon. Blackmon purchased this substance, which was subsequently identified upon laboratory analysis as cocaine, and during the entire time, Cooper was standing behind the bar and observing the transaction. Neither Blackmon nor Scruggs ever saw Respondent, Luke Range, on the premises of the Flame Bar when they were there. Willie Cooper, who is presently unemployed, worked for the Respondent at the Flame Bar for approximately a year and a half up to July of 1983, when he was fired by the Respondent, who found out about the investigation that was going on. Cooper was subsequently arrested on charges arising out of the alleged sales of cocaine described herein and was found guilty on at least one charge. The Flame Bar was open until 2:00 a.m. Cooper's immediate supervisor was O. P. Smith, who would come in three or four times a day. Respondent would come into the bar once or twice a day, mostly in the mornings. Cooper knew that some of the patrons smoked or used narcotics on the premises, but he never reported these problems or these incidents to the Respondent. His instructions were to stop any drug activity immediately, either by directing the offender to leave, or, in the event the offender failed to do so, by calling the police. Cooper has frequently called the Cocoa Police Department because of disturbances at the bar, but admittedly has never done so because of drug offenses. Respondent had indicated to Cooper that he did not want drugs in the bar. As a result, neither Cooper nor any of the other bartenders at the Flame Bar kept drugs on the premises or dealt in drugs there. In this case, he got the drugs for Scruggs and Blackmon because she, Scruggs, asked him to do so and he liked the way she looked. He got the cocaine that he sold on these occasions from outside the bar from individuals in the area. The cocaine, however, was not kept in the bar until he brought it in for the immediate sale. Oliver Smith works for Respondent as general manager of both the Flame Bar and the 20-Grand bar and has done so since 1980. His office is in the 20- Grand, which is located approximately a mile from the Flame Bar. During the normal business day, he starts at the Flame Bar, staying there for two or three hours, then goes to the 20-Grand. During the day, he goes back and forth between the bars several times. He did not have any knowledge of Cooper having drugs on the premises or of Cooper having any drug problems or in fact any problems with the law before this incident. He has never seen drugs used in the Flame Bar; he has smelled marijuana, but has never seen it smoked there; and he claims he is usually there during the busy times. He has not discussed the issue of drugs with the Respondent because he did not see that drugs in this bar were a problem. He has continued to instruct his bartenders to ask drug users to leave and, if they did not, to call the police. Since these incidents took place in July, 1983, management has hired several more people to work at the Flame Bar to keep out drugs. They have also added more lights to the place to brighten up the area. Numerous individuals personally testified for Respondent, including such responsible persons as Nathaniel Hooks, a Lieutenant in the Cocoa Police Department who has been with that department for 17 years. He recalls the Flame Bar when it was known as the Central Bar and, at that time, it was considered a bad place for drugs. However, since Respondent has taken over ownership, there has been a tremendous decrease in the number of police calls to the area and a marked increase in its beautification. Hooks himself has been in the Flame Bar at various times and has never seen drug activity in there. To his knowledge, there have been no drug arrests at the Flame Bar within the past year by people under his supervision and, according to his understanding, the police department has not complained to Respondent about his establishment. To the contrary, it is Hooks' understanding that Respondent came to the former chief of police back sometime prior to this investigation in an attempt to get more police coverage in the area for several reasons, one of which was not drugs. Both Willie Cooper and the Respondent have good records with the police department and have not been in any difficulty whatsoever. Of the 91 calls logged by the Cocoa Police Department from the period November 26, 1982, through June 30, 1983, there were no calls for alleged drug violations. Hooks admits to being a friend of the Respondent over a period of years. He owns and operates a security company in his off-duty time in Cocoa from which the Respondent contracts for security for the 20-Grand bar. He also provided security for a former club owned by the Respondent. He has contracts with eight other businesses to provide security. Leon Collins, a former city councilman in Cocoa from 1973 to 1983, has been a friend of the Respondent for 18 years or so and has known him through his. activities with several civic organizations. Respondent has an outstanding reputation in the area and has contributed greatly to city and civic organizations, as well as to churches and youth organizations. Collins goes into the Flame Bar about once a month to have a drink. He has never seen anyone in the Flame Bar smoking or using drugs. Robert Manning, the Principal of Poinsett Middle School in Cocoa, which is located about six to seven blocks from the Flame Bar, has known the Respondent for approximately 14 to 15 years. When he, Manning, was Vice Chairman of the Human Relations Commission in Titusville, Florida, on one occasion, Respondent came to speak to that organization in support of the Commission's position on Project 235 housing. At that time, Respondent was a builder building Project 235 housing in Central and South Brevard County. Respondent was also a participant with NASA and Brevard Community College in forums on minority business opportunities. Respondent is a big supporter of his school and has raised money for it. Respondent also contributes to civic and humanitarian causes in the community, and Mr. Manning is certain that Respondent would not condone any illegality in any of his businesses. He sees Respondent as a clean liver personally who has made a tremendous difference in cleaning up the old Central Bar. The Principal of Cocoa High School, Richard Blake, is also the Chairman of the Rockledge City Council, on which he has served for 10 years. He has known Respondent well for 12 to 13 years, after Respondent came to the Cocoa area from Detroit and lived with Blake's parents for a while. He knows Respondent to be very active in civic affairs. Respondent was the witness's campaign treasurer at one time and has a very high reputation in the business, lay and church communities. He always supports activities for underprivileged children and has an upright character and high principles. Respondent has a reputation as a builder, not a destroyer, and Mr. Blake has seen significant positive changes in both the 20-Grand club and the Flame Bar since Respondent has been involved with them. In his opinion, Blake feels Respondent would take immediate and direct corrective action if he knew drugs were being used in his club. This sentiment is also held by Barbara L. Jenkins of Cocoa, a teacher/counselor of adult education at Brevard Community College who knows the Respondent through his community activities. Ms. Jenkins feels the Respondent is unique in that he is interested in the total community and will do all he can for the community or get it done if he cannot do it himself. He supports programs both for children and the elderly, and his general reputation in Cocoa, as she knows it, is as an advisor to work hard to reach goals. In her opinion, Respondent would not condone drugs in his establishment. She feels that if Respondent is guilty of anything, it is of being too trusting. Ricardo Davis is a member of the executive board of the local NAACP chapter and was its president during 1983. 59 far as is his knowledge, neither the NAACP nor the City of Cocoa prompted an investigation of the Flame Bar in particular because of drug activity in that establishment. Mr. Davis has known Respondent for ten years and considers him as one of the leading black businessmen in the community whose character is above reproach. He does not believe Respondent would condone drugs in his premises. These sentiments and sentiments similar thereto are expressed in the 23 testimonial letters submitted by Respondent from diverse people, including business leaders, professional people, ministers, law enforcement officers, educators and the like. Without question, it is obvious that Respondent has an excellent reputation in the community for honesty, integrity, square dealing and high business and personal scruples. In his own testimony, Respondent indicated he was not aware that anything close to the type of activity described in the testimony here was going on. His manager, Smith, had told him there were drug problems in the general area, and he had asked the police department for help in policing the area, but he had no idea any of it was going on in his establishment. Cooper did not talk to him about drug activity, either. It was Respondent's continuing instruction to his employees that if anyone was illegally using narcotics, to put that individual out, and if the individual refused to go, to call the police. Neither the police nor the Division of Alcoholic Beverages and Tobacco ever contacted him about drug problems prior to the investigation, a fact which is admitted by representatives of both agencies. Respondent went to the Flame Bar three to four times a week at different times of the day, normally, however, before 8:00 P.M.. He never saw any drug activity of any kind at anytime that he went in there, nor did his bartenders ever tell him of any going on. In short, no agency, including the police, the Division of Alcoholic Beverages and Tobacco, the sheriff's office, and the city council (he knew and met with several councilmen on a repeated basis) , ever told him there was any problem with drugs in his establishment or interest in his area. His first knowledge of this investigation was when the beverage agents called him to their office and told him what had happened. He immediately thereafter fired Willie Cooper, who had never given any indication over the three years he had worked for Respondent that he used or had any connection with drugs. In efforts to reduce the potential for drug activity, as was previously referenced by Smith, Respondent has cut hours of operation for the Flame Bar to six hours per day, has increased lighting in the place and has employed security guards at the Flame Bar to work directly for him, a situation he has had in effect since 1979, when he first took the bar over.
Recommendation That Respondent's license be suspended for ninety (90) days and that he pay a fine of $1,000.
Findings Of Fact Forbes, Walsh & Kelly is a New York corporation licensed to deal in securities under the laws of New York. The company through its secretary, Mr. Robert E. Kelly, contacted the Division of Securities on March 2 and 21, 1979 concerning the procedure for registering to be a securities dealer in Florida. After receiving the appropriate application forms and a copy of the relevant Florida Statutes, Forbes, Walsh & Kelly filed its application on March 26, 1979, to be licensed in Florida as a securities dealer. On April 2, 1979, FWK was notified that its application as a dealer was being held in abeyance, pending receipt of the corporate by-laws, a branch office application, and other materials. Subsequently, on April 20, 1979, FWK applied for a branch office license with Respondent, Carl F. Bailey, Jr. to be the company's "principal" and branch manager in Florida. Between March 26, 1979 and June 26, 1979, while Mr. Carl F. Bailey was not licensed as a securities salesman and while FWK was not registered as a securities dealer, FWK through Bailey executed approximately 774 security sales transactions on behalf of their customers. On June 27, 1979, the Division told FWK that its registration as a security broker-dealer had been approved. At the same time notice was also given that the application for a branch office in Orlando was approved as was the transfer of Carl F. Bailey's registration as a salesman for FWK. Between March 26, 1979 and August 14, 1979, in the course of its business, FWK through Carl F. Bailey "introduced" approximately 263 security transactions on a fully disclosed basis to Robb, Peck, McCooey & company, Inc., which though registered as a securities dealer in New York was not at that time so registered in Florida. Aside from the instant order of suspension, neither Carl F. Bailey, Jr. nor FWK has ever been charged with previously violating the Florida Securities Act. FWK and Carl F. Bailey, Jr., have at least two very satisfied customers, Mr. A.J. Rusterholtz and Mr. Richard W. Baker. They testified in support of Respondents at the final hearing. No evidence was presented to show that either Carl F. Bailey or FWK ever made any inquiry with the Division about when they would be eligible to engage in securities transactions in Florida after submitting their applications for registration. FWK through its Orlando branch office serves approximately 500 securities customers, many of whom are in direct daily contact with the office.
Recommendation In light of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the registration of Forbes, Walsh, Kelly & Company, Inc., as a dealer and to operate a branch office and the registration of Carl F. Bailey, Jr., as an associated salesman, with Forbes, Walsh, Kelly & Company, Inc. be suspended for a period of 65 business days from the effective date of the Department's final order. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 5th day of October, 1980, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Philip J. Snyderburn, Esquire Director, Division of Securities Office of Comptroller The Capitol, Suite 1402 Tallahassee, Florida 32301 Patrick T. Christiansen, Esquire AKERMAN SENTERFITT & EIDSON 17th Floor, CNA Building Post Office Box 231 Orlando, Florida 32802
The Issue The issue is whether Respondent, Porky's Barbeque Restaurant, engaged in an unlawful employment practice by terminating Petitioner, Susan Coffy, from her position.
Findings Of Fact Petitioner is a female and, at all times relevant to this proceeding, was over the age of 40. From March 1, 2003, until October 28, 2003, Petitioner was employed as a waitress at Porky's, a barbecue restaurant. On October 28, 2003, Petitioner was terminated from her job as a waitress. Prior to March 1, 2003, Petitioner had worked as a waitress at another restaurant, Fat Boy's Restaurant (Fat Boy's), that had been operating at the same location as Porky's. Fat Boy's closed after the building in which that restaurant was located was purchased by Walter Milton. After Mr. Milton purchased the building, he opened his own business, Porky's, at that location. After Mr. Milton opened his restaurant, he employed many of the individuals who had been employed by Fat Boy's, but told them that their employment with Porky's was for a "trial period." Immediately after Porky's opened for business, Mr. Milton initiated operational directives that he believed were essential business needs for operating a barbecue business. He introduced these new directives to the employees of Porky's, many of whom had previously worked for Fat Boy's. While some of these employees were successful in making the transition to the new operation, there were employees, including Petitioner, who were resistant to the operational directives initiated by Mr. Milton. Even though Petitioner was resistant to the new operational directives that were implemented at Porky's, Mr. Milton continued to try to work with Petitioner. In fact, Petitioner worked as a waitress at Porky's the first eight months the restaurant was open. During the course of her employment, Mr. Milton found that Petitioner was an employee who failed to follow simple instructions. For example, Mr. Milton directed employees to knock on his office door when the door was closed. Notwithstanding this very simple directive, Petitioner refused to comply. One day Petitioner went to Mr. Milton's office and found the door to the office was closed. Instead of knocking as she had been previously directed, Petitioner simply barged into the office and stated that she needed a band-aid. After Petitioner barged into the office without knocking, Mr. Milton reminded her that she should knock on the door and wait for a response before coming into his office. About three minutes after this admonition, Petitioner returned to Mr. Milton's office. Although the office door was closed, Petitioner, again, did not knock on the door, but simply opened the door and went into the office. Mr. Milton was not pleased with Petitioner's failure to embrace the directives he initiated and implemented for Porky's. However, the "final straw" that resulted in Mr. Milton's terminating Petitioner's employment was an incident about a menu item. On October 28, 2003, Petitioner was very upset that Mr. Milton had included an item on the Porky's menu that also had been on the Fat Boy's menu. That menu item was referred to as "Jim's Special Burger." Mr. Milton included that item on Respondent's menu to honor Jim Kenaston, who had been the owner of Fat Boy's. On October 28, 2003, Petitioner "flew off the handle" and confronted Mr. Milton about his decision to include the item, "Jim's Special Burger," on the Porky's menu. Petitioner, who admits she was upset about this matter, confronted Mr. Milton and argued to him that he had no right to put the "Jim's Special Burger" on Respondent's menu. The confrontation started in the kitchen of the restaurant, but continued after Petitioner left the kitchen and proceeded into the restaurant's dining room. Although there were customers in the dining room, Petitioner continued to argue with Mr. Milton about the menu item. Petitioner's verbal criticism and objection to Mr. Milton's decision to include "Jim's Special Burger" on Respondent's menu created such a commotion in the restaurant that Respondent's bookkeeper heard Petitioner's outbursts from her office located behind the cashier's counter. After the bookkeeper heard Petitioner arguing with Mr. Milton, the bookkeeper left her office and in an effort to de-escalate the situation, escorted Petitioner out of the dining room to a back hall of the restaurant where there were no customers. On October 28, 2003, as a result of Petitioner's inappropriate and unprofessional conduct described in paragraphs 10 through 13, Mr. Milton terminated Petitioner's employment at Porky's. The same day that he terminated Petitioner's employment, Mr. Milton completed a "Separation Notice" on which he indicated that Petitioner was laid off due to lack of work. The reason Mr. Milton wrote this on the form was so that Petitioner could receive unemployment compensation. Petitioner presented no competent and substantial evidence that she was terminated from employment because of her age. Likewise, Petitioner presented no evidence that after she was terminated, she was replaced by a younger worker. At all times relevant to this proceeding, Respondent had four or five employees who were over 40 years of age. Petitioner presented several witnesses who testified that she was an excellent waitress when she was employed at Fat Boy's. However, Petitioner's job performance while working for her previous employer is not at issue or relevant in this proceeding. Even if that testimony is accepted as true, no inference can be drawn that Petitioner's performance remained the same or was viewed as such by her new employer. Notwithstanding the opinions expressed by her previous employers and co-workers, Petitioner was terminated from her employment at Porky's as a result of her unacceptable and unprofessional conduct on October 28, 2003.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Respondent, Porky's Barbeque Restaurant, did not commit any unlawful employment practice and dismissing the Petition for Relief. DONE AND ENTERED this 18th day of March, 2005, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 18th day of March, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Walter Milton Porky's Barbeque Restaurant 4280 South Washington Avenue Titusville, Florida 32780 Susan Coffy 2966 Temple Lane Mims, Florida 32754 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact After the motion for continuance was again denied, petitioners declined to offer any evidence and petitioners announced that they would be pursuing certain supposed federal remedies.
Findings Of Fact On or about September 21, 1981, Respondent, Ft. Myers Banana Boat, Inc., d/b/a Banana Boat, applied to enter the drawing for eight new quota liquor licenses for Lee County to be held on December 16, 1982. The application disclosed that Dykes J. Riggs and James G. Kincaid each owned fifty percent of the stock of the Respondent and served as president and secretary, respectively. On or about January 5, 1983, Respondent was notified that it had been selected in the drawing as one of the preliminary applicants. In late February or early March 1983, Respondent filed its application for licensure. The application again disclosed Dykes Riggs as president and James Kincaid as secretary. It added that Kincaid also served as treasurer. It omitted any reference to stock ownership. On or about July 22, 1983, Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division), issued Respondent license number 46-1146, Series 4-COP, for the address 9100 South Cleveland Avenue, Ft. Myers. Because the location was unsuitable, Respondent, by letter dated August 5, 1983, requested the Division to place its license in escrow, and the escrow was "finalized" on or about January 31, 1984. The license remained in escrow until on or about November 30, 1984. While the license was in escrow, Riggs began to have serious doubts about the trustworthiness of Kincaid. In addition to their interests in Respondent, Riggs and Kincaid also had interests in two other licensed businesses--Boca Banana Boat, Inc., and The Banana Boat of Pompano, Inc. (A third individual, Don Litzenberger, also had an interest in the Boca Banana Boat, Inc.) Kincaid was suffering from acute alcoholism and was in heavy debt. Riggs was concerned that Kincaid would transfer his interest in Respondent or one of their other licensed businesses in order to satisfy a portion of his debts. Riggs was concerned about having a substitute business associate with whom he would have to work. Although not his primary concern, Riggs also was concerned that, by transferring his interest in Respondent, Kincaid would be violating Section 561.32(4), Florida Statutes (1983), and that Respondent would lose its license. Riggs also was concerned because Kincaid had told him of the pendency of administrative proceedings against Kincaid in connection with two other licenses in which Kincaid had an interest. Subsequently, Riggs learned that Kincaid had given a creditor named Wagner a power of attorney over all Kincaid's interests. Riggs did not like Wagner and suspected that Wagner was of bad moral character and may not be qualified for licensure by the Division. If disqualified for licensure, Wagner's interests in Respondent and the other licensed businesses in which Riggs and Kincaid had interests would jeopardize the licenses. In addition, a transfer of interest in Respondent from Kincaid to Wagner would violate Section 561.32(4), Florida Statutes (1983). During this period, Riggs also suspected that Kincaid was stealing money from the operation of The Banana Boat of Pompano, Inc. To deal with all of these business problems with Kincaid, Riggs had Kincaid's name taken off all bank accounts of the three licensed businesses in which they shared interests and refused to allow Kincaid any further say in the operation or the businesses or to review the books and records of any of the corporations through which the businesses were operated. Kincaid sued Riggs, Respondent and Boca Banana Boat, Inc., for damages. Riggs consulted with his attorney, Ernest Alexas, and decided to enter into a Settlement Agreement with Kincaid on or about June 29, 1984. Under the Settlement Agreement, Riggs would pay Kincaid $10,000, and Kincaid would "execute all necessary stock transfers, releases and other documents necessary" to "assign [to Riggs] all of his right, title and interest" in the three corporations through which Riggs and Kincaid operated licensed businesses, including Respondent. The documents were to be held in escrow by Alexas pending payment of $106,000 to Kincaid. The agreement then provided that the documents in escrow would be "delivered" to Riggs or the three corporations. The agreement also provided that Kincaid would dismiss his damage suits against Riggs, Respondent and Boca Banana Boat, Inc., and that Kincaid would resign "from all offices and positions as director held by him" in the three corporations, including Respondent. By September 18, 1984, the parties had performed all of the obligations under the June 29, 1984, Settlement Agreement. Kincaid had dismissed the damage suits. Boca Banana Boat, Inc., had pledged assets to secure a loan of $106,000, which was paid to Kincaid and Wagner. However, acting upon the advice of his attorney, Alexas, Riggs decided to instruct Alexas to continue to hold the documents in escrow for the time being. No decision was made whether Kincaid's stock should be placed in Riggs' name individually, placed in Respondent's name as treasury stock, placed partially in the name of Boca Banana Boat, Inc., or retired. In any case, Alexas advised Riggs that no violation of Section 561.32(4), Florida Statutes (1983), would occur unless the stock were transferred within the statutory three-year time period which was due to expire in approximately August 1986, to someone other than Riggs or to a corporation or partnership in which someone other than Riggs held an interest. Riggs himself was unclear exactly what Kincaid's relationship to Respondent was after September 18, 1984. Riggs' purpose in settling with Kincaid was to eliminate any and all control Kincaid might have over Respondent and the other corporations involved in the settlement. At the same time, Riggs thought Kincaid still should be obligated personally for his share of the debts of the corporations. Riggs hoped that, by leaving the documents in escrow and by not changing officers and directors on the corporate books, this would be accomplished. In November 1984, Riggs began the process of applying to have Respondent's license taken out of escrow and issued to a location at 865 San Carlos Boulevard, Ft. Myers Beach. On the application which Riggs signed, Riggs was listed as fifty percent stock owner and president. James G. Kincaid still was listed as fifty percent stock owner and secretary/treasurer. The Division took the license out of escrow, placed it at the new address and changed it to a Series 3-PS license. However, the Division did not prove that Riggs intended to mislead personnel of the Division in the performance of their official duty by referencing Kincaid on the application. First, the evidence was that Riggs was following the advice of his lawyer, Alexas, which he trusted and believed, that the elimination of Kincaid did not violate Section 561.32(4), and Riggs did not think there was any reason to mislead the Division by not disclosing the Settlement Agreement. Second, the evidence was that Division personnel helped Riggs' wife complete the application using information on prior applications, including Kincaid's interest. Finally, the evidence was that Riggs himself did not really know or understand Kincaid's precise legal status in relation to Respondent as of November 30, 1984.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a Final Order dismissing the Notice to Show Cause against Respondent, Ft. Myers Banana Boat, Inc., d/b/a Banana Boat, in this case. RECOMMENDED this 20th day of January 1987 in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 20th day of January 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2307 To comply with Section 120.59(2), Florida Statutes (1985), rulings are made on the parties proposed findings of fact. Petitioner's Proposed Findings Of Fact. 1-10. Accepted and incorporated to the extent not subordinate or unnecessary. But as to the second paragraph of proposed finding 4, only the date the application was filled out was in error in all likelihood; the substance and rest of Mrs. Riggs' testimony is accepted as true. Respondent's Proposed Findings Of Fact. 1-7. Accepted and incorporated to the extent not subordinate or unnecessary, except that the first two-and-one-half lines of proposed finding 4, including the date "October of 1984," are rejected as contrary to the greater weight of the evidence and facts found. Subordinate. Rejected as contrary to the greater weight of the evidence and facts found. Accepted and incorporated to the extent not subordinate or unnecessary except the date probably was November 29, 1984. First two sentences rejected as contrary to the greater weight of the evidence and facts found. Sarnonski filled out part of the application and advised Mrs. Riggs how to fill out the rest, including the references to Kincaid, by reference to information in the prior application. Third sentence accepted but subordinate and unnecessary. 12.-14. Subordinate and unnecessary. 15. Accepted and incorporated. COPIES FURNISHED: Louisa E. Hargrett, Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927 Leslie T. Ahrenholz, Esquire Post Office Box 2656 Ft. Myers Beach, Florida 33931 James Kearney, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927 Thomas A. Bell, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927 =================================================================
The Issue The issue is whether Respondent discriminated against Petitioner on the basis of Petitioner's race in violation of the Florida Civil Rights Act, Chapter 760, Florida Statutes (2008).1
Findings Of Fact Petitioner is an "aggrieved person" within the meaning of Subsections 760.02(6) and (10). Petitioner is a 41-year-old African-American male, who was terminated from his employment with Respondent on September 9, 2008. Respondent is an "employer" within the meaning of Subsection 760.02(7). Respondent is a company engaged in the business, in relevant part, of distributing food from a warehouse in Fort Myers, Florida. Respondent employed Petitioner as a warehouse worker from some time in the fall of 2006 through September 9, 2008. On September 9, 2008, Respondent terminated Petitioner's employment. A preponderance of the evidence does not show that Respondent terminated Petitioner's employment because of Petitioner's race. Rather, a preponderance of the evidence shows that Respondent terminated Petitioner's employment for non-discriminatory reasons. Petitioner worked the evening shift from 3:00 p.m. until some time between 10:00 p.m. and 1:00 a.m., depending on the requirements for unloading trucks each day and manpower availability. Mr. Courtney Ward supervised the evening shift. All other supervisors left the warehouse by 6:00 p.m. each workday. In the fall of 2008, product shortages began to appear at the warehouse. Management investigated the shortages and focused the investigation on the evening shift because that shift was relatively under-supervised. During the investigation, corporate security officers interviewed all employees in the evening shift, including Petitioner; Mr. Ward; and warehouse workers, Mr. Don Kane and Mr. Mike Petersen. All of the named workers except Petitioner are Caucasian. On September 4, 2008, each warehouse worker submitted a written statement regarding the worker's knowledge or participation in product shortages. Petitioner admitted in his statement to taking product from the floor regularly and trading it once or twice for marijuana. Petitioner also admitted to drinking beer on the job. It is undisputed that Petitioner knew that taking product and drinking beer were offenses for which Petitioner could be terminated from his employment. The practice had been tolerated by a previous supervisor of Mr. Ward. However, the new supervisor had issued a memorandum advising employees to terminate the practice, but Petitioner continued the practice. On the same day that Respondent terminated Petitioner's employment, Respondent terminated the employment of Mr. Ward. Mr. Ward admitted in his statement to drinking beer on the job and to knowing that Petitioner consumed alcohol and used marijuana on the job. Even though Mr. Ward did not admit to taking product or using marijuana, Respondent held Mr. Ward to a "higher standard" because Mr. Ward was a supervisor. Respondent did not terminate either Mr. Kane or Mr. Petersen from employment. However, Respondent had valid, non-racial reasons for its action. Mr. Kane did not admit in his statement to taking product off the floor, and Respondent had no independent proof to dispute the denial. While Mr. Kane did admit to consuming alcohol on the job, there was no independent proof that Mr. Kane used marijuana on the job. Respondent placed Mr. Kane on "final warning" for one year. The final warning required Mr. Kane to submit to mandatory counseling in the company's Employee Assistance Program and to submit to random drug and alcohol testing. Mr. Petersen was "cleared from any involvement" in the product shortages during the investigation. He was also "cleared" of any allegations of drinking on the job.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding Respondent not guilty of the allegations against Respondent and dismissing the Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 13th day of July, 2010, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of July, 2010.
Findings Of Fact The name Zorba's Restaurant and Lounge has been continuously used by the Petitioner or its predecessors in business as the name of a restaurant and lounge located at 504-508-510 Athens Street, Tarpon Springs, Florida, for a period of over ten years. Kaliope Padides was at one time director of a corporation named Zorba Lounge, Inc. which originally owned and operated the aforementioned business. In 1975 this business was sold and the corporation, Zorba Lounge, Inc. was dissolved involuntarily on November 14, 1975. The purchaser was required to continue using the name Zorba Restaurant and Lounge. Two or three years thereafter, the brother-in-law of Kaliope Padides, Peter Padides, bought the business and operated it as a sole proprietorship until December, 1982. At that time, the business burned and Peter asked Kaliope and her husband, Nicholas, to assist him in operating the business. They elected to form a corporation and instructed their attorney to reserve the name Zorba's. On December 23, 1982, counsel for Anthanasios and Linda Maillis sent a letter to the Division of Corporations, State of Florida, reserving the name Zorba's Restaurant and Lounge, Inc. The Maillises had instructed their counsel to reserve the name Zorba's Restaurant and Lounge, Inc. although they were aware of the business operated by Peter Padides, because they thought the name Zorba's Restaurant and Lounge, Inc. was not protected. On December 27, 1982, counsel for Kaliope, Nicholas and Peter Padides sent a letter to the Division of Corporations, State of Florida, reserving the name Zorba, Inc. On December 27, 1982, the Division of Corporations, State of Florida, reserved the name Zorba's Restaurant and Lounge, Inc. and Zorba, Inc. and forwarded to the respective parties confirmation of said name reservations. On January 4, 1953, the Articles of Corporation for Zorba, Inc. were filed and sealed by the Secretary of State, State of Florida on January 13, 1983. On January 6, 1983, the Articles of Corporation for Zorba's Restaurant and Lounge, Inc. were filed and sealed by the Secretary of State, State of Florida on January 10, 1983. The Maillises reserved the name and incorporated in the name Zorba's Restaurant and Lounge, Inc. knowing the existence of the business operating in the name of Zorba's Restaurant and Lounge and with the intent to capitalize on the use of that name in operating a similar business located in the same geographic area. The reservation of this name was made in bad faith, and for the purpose of engaging in unfair competition.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is recommended that the Respondent's name of Zorba's Restaurant and Lounge, Inc. be rejected and its reservation of the name revoked. DONE and ORDERED this 28th day of April, 1983, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 1983. COPIES FURNISHED: John G. Fatolitis, Esq. One North Pinellas Avenue Tarpon Springs, Florida 33589 Edwardo R. Latour, Esq. Yanchuck, Thompson & Young, P.A. 1100 South Pinellas Avenue Tarpon Springs, Florida 33589 William G. Stevens, III, Esq. Office of General Counsel Department of State The Capitol Tallahassee, Florida 32301 Honorable George Firestone Department of State The Capitol Tallahassee, Florida 32301
