The Issue Whether the Respondent, Alfred Welch, violated Section 112.313(6), Florida Statutes, by using his official position to attempt to secure a special benefit for himself in terms of his own sexual gratification, and by misusing his official position to conceal a traffic ticket received by Suzanne Pridgeon?
Findings Of Fact GENERAL. The Respondent. The Respondent, Alfred Welch, is the Clerk of the Circuit Court (hereinafter referred to as the "Clerk") for Madison County, Florida. Mr. Welch has continuously served as the Clerk for the past eleven years. At all times relevant to this proceeding, Mr. Welch served as a public officer subject to Section 112.313(6), Florida Statutes. Clerk's Office Personnel. At the time that Mr. Welch took office as Clerk there were approximately six to seven employees employed in the Clerk's office. During the period of time since Mr. Welch took office as Clerk there have been as many as ten persons employed in the Clerk's office. Employees of the Clerk's office were hired by Mr. Welch, were subject to his supervision and could be fired by him. Mr. Welch's employees were all female because it was very rare that a male applied for a position in the Clerk's office. During the period of time at issue in this proceeding, the following individuals worked for Mr. Welch in the Clerk's office and were under his supervision and control: Cheri Williams Sims: Ms. Sims worked for Mr. Welch on three separate occasions: (1) She began work for Mr. Welch on a part-time basis while attending a community college; (2) She left to attend a four-year college and later returned to a full-time position; and (3) She left again, this time to join the Navy, and later returned full-time. Ms. Sims was known as Cheri Williams while she was employed in the Clerk's office. Madeline Ginn: Employed as a deputy clerk since 1973. Ramona Dickinson: Employed as a deputy clerk since 1979. Jeanette Carter: Employed as a deputy clerk for the past twenty years. Catherine Ann Reams: Employed from approximately March, 1986, until 1989. Rachel Bush: Employed as a deputy clerk from 1977 until June of 1986. Melinda Jan Mims: Employed in 1978 or 1979, left the Clerk's office and returned part-time in late 1982. She became a full-time employee of the Clerk's office from April, 1983, until approximately February or March, 1986. Ms. Mims was known as "Jan Rutherford" when she worked for the Clerk's office and as "Jan Oladell" after she left the Clerk's office until some time prior to the taking of her deposition testimony in this case. Judy James: Employed in the Clerk's office since February, 1984. She was formerly known as Judy Pride. Suzanne Pridgeon: Employed in the Clerk's office from 1983 until 1987. Barbara Hudson: Employed in the Clerk's office for approximately two to two and one-half years. She was employed part of the time that Ms. Mims worked for Mr. Welch. Mary Floyd: Employed in the Clerk's office for the past ten years. Joyce Wells: Employed in the Clerk's office since August, 1986. Prior to August, 1986, she worked for the County Commission in the courthouse where the Clerk's offices were located. Several other current employees of the Clerk's office testified: Donna Blair (began employment December, 1989); Vera Tombs; and Nancy Curl (began employment March, 1990). Their testimony, in large part, did not apply to the relevant period of time at issue in this proceeding. Several of the employees of the Clerk's office have been known by different names at different times relevant to this proceeding. Throughout this Recommended Order, references to individuals have been made using the individuals' name as of the date of the formal hearing. The Clerk's Offices. The Clerk's offices were, and still are, located in the Madison County courthouse in Madison, Madison County, Florida. The Clerk's offices consisted of two separate areas referred to generally as the north and south offices. A "vault" area was located in the south offices. Official records of the Clerk's office were kept in the vault area. There was a table in the middle of the vault and there were large sliding drawers around the walls of the vault where records were kept. The shelves would slide out into the room making the room even more cramped. The book in which traffic citations were indexed was kept in the vault. The entire area was very cramped. Downstairs from the Clerk's offices was a restroom which was used by all employees of the Clerk's office and others. It was not dedicated to any one sex; it was used at different times by males and females. Outside of the downstairs restroom there were file cabinets for Clerk's office records, a telephone and a County Commission office. Most areas of the Clerk's offices were very cramped. It was generally not possible for two persons to pass abreast of each other in most areas. It was also difficult in some areas for two people to turn sideways and pass each other without touching. Mr. Welch's Improper Treatment of Clerk's Office Employees. General. In making the findings of fact in this case, the undersigned has considered the fact that there was a tendency of many of the employees of the Clerk's office to gossip--to discuss matters concerning the activities of other employees of the Clerk's office, including rumors of romantic and sexual relationships. The length of time which has elapsed since the events described in this Recommended Order and the effect the passage of time has had on the witnesses has also been taken into account. In concluding that Mr. Welch was attempting through many of the actions described, infra, to obtain a special privilege or benefit for himself through his treatment of certain female employees of the Clerk's office, it has been recognized that the evidence failed to prove that Mr. Welch told employees that their jobs, pay, promotions or job duties would be affected in any specific way if they did not respond favorably to his actions. It has also been recognized that Mr. Welch did not specifically ask for sexual favors from his employees and, except for two instances, his inappropriate touching of employees was somewhat subtle. The conclusion that some of Mr. Welch's actions were taken to obtain a special privilege or benefit, however, is based upon the totality of the evidence, Mr. Welch's position of power over the employees involved in this matter and the inescapable conclusion that his ultimate reason for treating his employees in the inappropriate manner described in this Recommended Order was to obtain sexual gratification and favors. His actions were of a general sexual nature and constituted sexual harassment of female employees. Although Mr. Welch's employees, with one exception, did not respond favorably to Mr. Welch's inappropriate behavior, and although it was not reasonable to conclude that his efforts would be successful, his efforts were nonetheless intended to gain a special privilege or benefit: sexual gratification and favors. General Office Sexual Banter. As is probably common in many offices, some, but not all, of the employees of the Clerk's office would, at times, talk and joke about matters involving sex. Jokes that might be considered "off-color" or of a sexual nature would from time to time be told by some of the Clerk's office employees when Mr. Welch was present. There were also some employees who did not join in the talk about sexual matters or the telling of jokes with sexual overtones. There were also some employees who were not even aware of such talk or jokes. There were a number of cards and cartoons which were passed around the office at various times by employees. Of those that were offered into evidence, some, but not all, included curse words and direct or indirect sexual overtones. Mr. Welch's nickname is "Turkey." Many of his employees referred to Mr. Welch at times by his nickname. Most of the cards and cartoons offered into evidence were addressed to Mr. Welch as "Turkey." With one exception, the weight of the evidence failed to prove who actually gave the cards and cartoons offered into evidence to Mr. Welch or exactly when. Most were from the "office" and were given to him on or near various holidays. The one exception was Respondent's exhibit 5, a cartoon which Ms. Bush admitted she put on Mr. Welch's desk. Respondent's exhibit 5 was addressed "To Alfred" and was signed "From Rachel". The cartoon was a picture of a Peanuts comic strip character saying "Working here is like working in a whorehouse--the better you perform, the more you get screwed." The weight of the evidence failed to prove when Respondent's exhibit 5 was given to Mr. Welch. The weight of the evidence failed to prove that the cards and cartoons given to Mr. Welch or the sexual banter and joking which went on in the Clerk's office were in anyway a violation of the law. The weight of the evidence failed to prove that the cards and cartoons given to Mr. Welch or the sexual banter and joking was intended by Mr. Welch to secure a special privilege or benefit for himself or others: sexual gratification and favors. At various times since Mr. Welch has been Clerk, he has made comments of a sexual nature in the presence of employees of the Clerk's office. The evidence failed to prove that any of the comments were made to any one employee; more than one employee was always present. In particular, Mr. Welch made the following statements of a sexual nature: "I never get enough"; "I have not done it in so long, I do not remember how"; "I had a dream and when I woke up I had a hard on"; "It was stuck up like a tent" in discussing another dream; and "My wife is not giving me any". The foregoing statements were made in the presence of Cheri Sims, Ramona Dickinson and Catherine Reams. Mr. Welch's denial that he made these statements is rejected because several witnesses testified that such comments were made and their testimony on this point was credible. The fact that not every person who worked in the Clerk's office or who may have had contact with the Clerk's office or Mr. Welch ever heard any comments from Mr. Welch of a similar nature was not sufficient to prove that no such statement was ever made. Nor was such testimony sufficient to conclude that the witnesses who indicted that the comments were made by Mr. Welch were not credible. The weight of the evidence proved that the sexual comments made by Mr. Welch quoted in finding of fact 29 were intended by Mr. Welch to secure a special privilege or benefit for himself: sexual gratification and favors. The Fine Line Between a Compliment and a "Come-on". It was not uncommon for Mr. Welch to compliment Clerk's office employees concerning their appearance or the perfume or cologne they were wearing. Compliments of a similar nature were also paid to Mr. Welch by his employees. Ms. Bush indicated that Mr. Welch made comments to her almost daily that she "looked nice", had on "nice clothes" or that she "smelled nice". Mr. Welch's comments made Ms. Bush feel uncomfortable because of the "way he said it: he would look me up and down." Without more, it would be difficult to determine whether Mr. Welch's comments to Ms. Bush were simply the compliments of a considerate employer or were inappropriate come-ons or comments from a boss to an employee. As is discussed, infra, however, the evidence proved more: Mr. Welch's interest in Ms. Bush was not merely the interest of a considerate employer; Mr. Welch was interested in a romantic/sexual relationship with Ms. Bush. It is, therefore, concluded that Mr. Welch's comments to Ms. Bush concerning her appearance and her cologne/perfume were sexually motivated. Mr. Welch told Ms. Sims that she had "nice lungs". This comment was a reference to Ms. Sims' breast size. Mr. Welch's testimony concerning this comment was not credible. In a response dated April 9, 1990, to the Commission's investigative report, Mr. Welch denied making the comment. At the formal hearing Mr. Welch testified that he did not recall whether he made the comment. Mr. Welch then testified that Ms. Sims sang in a church choir and had a pretty voice. Therefore, Mr. Welch speculated that, if he did make such a comment, it might have been in reference to her singing ability. Mr. Welch's attempted explanation was, at best, naive. His comment was not a reference to Ms. Sims' ability to sing; it was a comment about her anatomy, which she recognized, and, consequently, felt uncomfortable about. The weight of the evidence proved that the comments made by Mr. Welch described in findings of fact 33 and 35 were intended Mr. Welch to secure a special privilege or benefit for himself: sexual gratification and favors. Invitations to "Have a Good Time". At some time during the 1980's Mr. Welch suggested to Ms. Dickinson that they "go off for the weekend." Mr. Welch told her "you need to go off with me and I'll show you a good time." On another occasion, Mr. Welch suggested that Ms. Bush needed to "go off" with him to a clerk's convention and that they would "have a good time." Mr. Welch suggested that if she did, she "would not want to go back to your husband." Mr. Welch travelled to conventions and seminars for the Clerks of Court in Florida on a regular basis. Some of the conventions and seminars included training which was beneficial to various employees in Mr. Welch's office. Consequently, Mr. Welch would take various employees to some of the conventions and seminars he attended so that they could participate in the training sessions. Although Mr. Welch admitted that he might have told employees when talking about going to conventions and seminars that they would "have a good time", nothing sexual was meant by such a comment. Mr. Welch indicated that such a comment was merely a statement of fact since the clerks did have a good time at the conventions and seminars they attended. Mr. Welch's suggestion that the comments to Ms. Dickinson and Ms. Bush described in findings of fact 37 and 38 were of the type of innocent comment described in finding of fact 40 is not credible and is rejected. During the early 1980's Ms. Bush had to take her daughter to Valdosta, Georgia, twice a week to receive allergy shots. Mr. Welch was aware of this fact. On at least two occasions, Mr. Welch, who traveled to Valdosta occasionally, suggested that they "meet for coffee" in Valdosta. Mr. Welch testified that he did some farming and that he often went to Valdosta to acquire materials needed for his farming. Mr. Welch also admitted that he probably had told Ms. Bush something like "if I see you in Valdosta, we'll stop for coffee." As was true of the compliments by Mr. Welch to Ms. Bush, it would be difficult to determine whether Mr. Welch's explanation of his comment to Ms. Bush about having coffee in Valdosta was simply an innocent invitation with no sexual overtone or was an inappropriate invitation with sexual innuendo from a boss to an employee. Based upon the fact, as is discussed, infra, that Mr. Welch's interest in Ms. Bush was in having a romantic/sexual relationship with her, it is concluded that his comment to Ms. Bush concerning having coffee was an invitation with sexual innuendo. That is how Ms. Bush interpreted the invitations and it made her feel uncomfortable. On another occasion, Mr. Welch requested that Ms. Sims give him a ride home because his pickup truck was in the shop and Ms. Sims' mother lived near Mr. Welch. Ms. Sims agreed to give Mr. Welch a ride. At some time during the ride, Mr. Welch asked Ms. Sims to come in for a drink when they got to his house and told her that they could "have a good time." Ms. Sims declined. Ms. Sims later told Ms. Ginn about this incident and Ms. Ginn told Mr. Welch that if it had happened it "was not right." Mr. Welch gave the following version of the ride home with Ms. Sims: Mr. Welch indeed needed a ride home and while talking to his wife about coming to get him, Ms. Sims walked by and he asked her if she would take him. She agreed. A discussion had taken place during the day about a drink which Mr. Welch described as a "shooter". On the way home that evening, Ms. Sims told Mr. Welch that she had never had a shooter and he offered to fix one for her when they arrived. There was nothing suggestive about the invitation because Ms. Welch was home. When Ms. Sims and Mr. Welch arrived at Mr. Welch's home, Ms. Welch was outside. Ms. Sims and Ms. Welch struck up a conversation while Mr. Welch went inside. Nothing more was said about the drink and Ms. Sims did not come inside. Mr. Welch's explanation of the incident is not credible. Although Ms. Welch verified some of Mr. Welch's explanation, Ms. Welch's recollection was in all likelihood based upon another incident. The weight of the evidence proved that the comments made by Mr. Welch described in findings of fact 46 were intended by Mr. Welch to secure a special privilege or benefit for himself: sexual gratification or favors. Personal Telephone Calls. On a number of occasions, Mr. Welch telephoned various employees of the Clerk's office at their homes after working hours. These telephone calls were made primarily for personal, as opposed to business, purposes. The calls were uninvited. During a two to three-month period Mr. Welch telephoned Ms. Reams a couple of times a week during the evening: The calls were uninvited and unwelcome by Ms. Reams. Mr. Welch and Ms. Reams discussed the office generally, and Suzanne Pridgeon and Ms. Bush. In particular, Mr. Welch told Ms. Reams that he was having a relationship with Ms. Pridgeon; that he "cared about Ms. Pridgeon but Ms. Bush was the one he loved." Mr. Welch told Ms. Reams that "he would have to stop calling because he was getting used to it." Ms. Reams quit answering her telephone because of Mr. Welch's calls. She worked out a code with a friend and her mother so that they could call her and she would know it was them and not Mr. Welch. Mr. Welch admitted telephoning Ms. Reams but indicated he was merely attempting to help her with a personal problem; she was trying to break off a relationship with a man she had been seeing and was not sure how to go about doing it. Mr. Welch indicted that he did not believe it would have been appropriate to discuss this problem at work and that is why he called her at home. This testimony was not credible when compared with Ms. Reams' testimony. Additionally, when explaining why he stopped to see Ms. Reams one evening, as discussed, infra, Mr. Welch indicated that he had been discussing her personal problems with her at work and stopped to see her because they had not finished their discussion that day. He obviously did not mind discussing her problems in or out of the office. Mr. Welch also telephoned Ms. James on at least one occasion and discussed Ms. Pridgeon. Mr. Welch telephoned Ms. Bush at least ten times, and maybe as many as twenty times, during the evening while she was employed at the Clerk's office. Mr. Welch's telephone calls were not requested by Ms. Bush and they made her feel uncomfortable. Mr. Welch telephoned Ms. Mims twice one night: During the first call, Mr. Welch told Ms. Mims, who had recently divorced, that his wife was out of town and he suggested that they meet for a drink. Ms. Mims declined. Mr. Welch also kept telling Ms. Mims that he could not come to her house because of her children and because her mother lived next door, and that she could not come to his house. Mr. Welch told Ms. Mims that he was lonely. During the second telephone call, Ms. Mims told Mr. Welch that she had tape recorded the first conversation and that he should not call her again. Ms. Mims did not, in fact, make such a recording. Mr. Welch admitted telephoning Ms. Mims but indicated that he did so because he had heard that she had told someone that he was having an affair with Ms. Pridgeon. Mr. Welch stated that he called Ms. Mims to request that she come over to discuss her comments. This testimony was not credible. In addition to other problems with Mr. Welch's testimony, it is unreasonable to believe that Mr. Welch would not deal with comments by one employee about her boss' alleged affair with another employee by speaking to the employee in the office. It was an office matter affecting office relationships and should have been dealt with as such in the office. It is not reasonable to believe that Mr. Welch would ask a recently divorced female employee over to his home at night to discuss such a matter. The day following Mr. Welch's telephone calls to Ms. Mims, Mr. Welch spoke to Ms. Mims in the office: Mr. Welch asked Ms. Mims not to say anything about the telephone calls. When Ms. Mims mentioned the alleged recording, Mr. Welch became angry and made statements which led Ms. Mims to be concerned about her job. Ms. Mims could not, however, remember exactly what Mr. Welch had said that caused her concern about her job. In Mr. Welch's April 9, 1990, response to the Commission, he indicated he did not recall any conversation with Ms. Mims after the telephone calls to her. During the formal hearing, Mr. Welch denied that the meeting took place. The weight of the evidence proved that the telephone calls Mr. Welch made to Ms. Reams, Ms. Bush and Ms. Mims described, supra, were intended by Mr. Welch to secure a special privilege or benefit for himself: sexual gratification and favors. Gifts. During the Christmas season, Mr. Welch gave gifts to his employees. These gifts were usually purchased and wrapped by Mr. Welch's wife. One Christmas Mr. Welch also gave small bottles of cologne, which he had been given during a Clerk's convention, to Ms. Bush and to Ms. Pridgeon. Mr. Welch also sent flowers to Ms. Bush both before and after she left employment with the Clerk's office. Mr. Welch sent flowers to Ms. Bush on her birthday and Secretaries' Day after she left the Clerk's office. Mr. Welch did not send flowers to any other current or former employees of the Clerk's office. The weight of the evidence proved that Mr. Welch's actions in giving Ms. Bush gifts as described, supra, were intended by Mr. Welch to secure a special privilege or benefit for himself: sexual gratification and favors. After-Hour Visit. On one occasion, Mr. Welch went to Ms. Reams' home at approximately 10:30 p.m. Mr. Welch blew the horn of his automobile and, when Ms. Reams came out, he asked her to turn off her porch light, which she did. Mr. Welch was on his way home from a club meeting when he stopped at Ms. Reams' house. Mr. Welch admitted that he stopped to see Ms. Reams and testified that he stopped to finish a conversation concerning her personal problem which they had started at the office, but had not had time to finish. Mr. Welch was apparently drunk, and was vulgar and rambling. At some point he got on the hood of his automobile. Mr. Welch did not make any advances to Ms. Reams or request anything from her during the visit to her house. Following this visit, which took place during the time that he was telephoning Ms. Reams at home at night, Mr. Welch quit calling Ms. Reams. The weight of the evidence proved that Mr. Welch's actions in visiting Ms. Reams as described, supra, was intended by Mr. Welch to secure a special privilege or benefit for himself: sexual gratification and favors. Mr. Welch's Pass at Ms. Bush. There was an office in the courthouse for a circuit court judge who came to Madison periodically. This office was empty, however, much of the time. The circuit judge's office was used by Mr. Welch for private meetings and conversations from time to time. Clerk's office employees met with Mr. Welch in the circuit judge's office at times. Some time during the later part of 1985 or early 1986, Mr. Welch asked to see Ms. Bush in the circuit judge's office and Ms. Bush complied with Mr. Welch's request. After Ms. Bush entered the office, Mr. Welch grabbed Ms. Bush, attempted to kiss her and hold her in his arms and expressed "his strong feelings for her". Ms. Bush pulled away from Mr. Welch told Mr. Welch that he was confusing his dependence on her as an employee with love, and left. As a result of Mr. Welch's actions toward Ms. Bush in the circuit judge's office, Ms. Bush decided she had to find employment elsewhere. Ms. Bush resigned her position with the Clerk's office approximately six months after the incident. When Ms. Bush left employment with the Clerk's office she had been with the Clerk's office for almost ten years, the minimum period of time necessary to have any vested retirement benefits. By leaving when she did, she did not accrue any vested retirement benefits for her service with the State of Florida. Mr. Welch's actions with Ms. Bush were sexually motivated and intended to benefit himself. I. Accidental or Intentional Inappropriate Touching? The City of Madison is a relatively rural community with a relatively small population. It is the type of community where most people were born and raised in the community and, consequently, everybody knows everybody else. As a consequence of the nature of the community, it is not uncommon for many people, when they meet, to greet each other with a hand shake, a pat of the back or shoulder, or a hug. Mr. Welch has lived in Madison essentially all of his life. Additionally, he has been a "public figure" for a number of years. Consequently, Mr. Welch knows most of the residents of Madison. As a lifelong resident of Madison, it is common practice for Mr. Welch to greet people with a hand shake, a pat on the back or shoulder, or a hug. It was also common for Mr. Welch to pat his employees on the back or shoulder or to occasionally give them a hug or put his arm around an employee. Mr. Welch would also greet the employee or comment on their good work. A number of employees of the Clerk's office and other residents of Madison indicated that Mr. Welch had touched them in the manner described in findings of fact 82 and 83. They all indicated that they were not offended by such behavior and that they believed that there was nothing improper in the manner in which Mr. Welch had acted toward them or toward other persons they observed Mr. Welch with. Other employees and persons who observed Mr. Welch from time to time in the Clerk's office and elsewhere indicated that Mr. Welch never touched them and that they had never observed any improper touching by Mr. Welch. The evidence also proved that due to the fact that the Clerk's offices were cramped, it was not unusual for Mr. Welch and other employees to touch each other when they passed. There were times when it was almost impossible for one person to pass another person in the Clerk's office and not touch. When this occurred, however, it was the usual practice for the person attempting to pass to say "excuse me" or to otherwise let the person being passed or touched know that the person attempting to pass was going to pass and/or touch them. It was also common for a person to ask another to move so that he or she could pass. There were also times when employees of the Clerk's office were so busy that they would bump against another employee or touch another employee accidentally, and nothing would be said. Despite the foregoing, the weight of the evidence proved that Mr. Welch inappropriately touched employees of the Clerk's office. Mr. Welch was described by one former employee of the Clerk's office as a "toucher." This characterization of Mr. Welch is attributable, in part, to the manner in which some people in Madison greet and react to each other. The characterization of Mr. Welch as a "toucher", however, is also attributable to Mr. Welch's tendency to brush against or touch some female employees in an inappropriate sexual manner. Mr. Welch would at times pass some female employees (Ms. Bush, Ms. Sims, Ms. Dickinson and Ms. Mims) and touch his body to theirs in an inappropriate manner. It is, of course, often difficult to distinguish between a greeting, an innocent bump or touch and one that is sexually motivated. All of the witnesses who felt Mr. Welch touched them inappropriately and for sexual gratification had difficulty articulating how they distinguished an inappropriate touch from an appropriate touch. It has been concluded that Mr. Welch, at times, touched female employees inappropriately for sexual gratification largely based upon the following: The incidents described as inappropriate touching usually occurred when others were not present. Mr. Welch would not say "excuse me" or otherwise acknowledge that he had touched the employee. There were several female employees who concluded that they had been inappropriately touched. The degree to which Mr. Welch sometimes touched an employee was more than just a "bump" or just brushing past the employee. There were times when Mr. Welch's body, from his lower chest to his upper thighs, would touch an employee's body from her lower chest to her upper thighs. Sometimes Mr. Welch would be facing the employee's back and sometimes Mr. Welch and the employee would be facing each other when he would pass them. Mr. Welch's hands would brush Ms. Sims' "backside" when he passed her. There were times when Mr. Welch could have passed without touching and there were times when he should have asked the employee he passed to move to let him pass. On at least one occasion, Mr. Welch put his arm around a female employee, Ms. Sims, when she came out of the downstairs restroom. Mr. Welch said nothing to Ms. Sims. This type of contact is not consistent with the custom of people in Madison and was inappropriate. On another occasion, Mr. Welch walked up behind Ms. Carter and "goosed" or poked her below both of her armpits. Ms. Carter told Mr. Welch to "get his mind out of the gutter" and "don't do that again." While riding to the airport in Tallahassee, Florida, in Ms. Sims' small pickup truck, Mr. Welch put his hand on Ms. Sims' thigh. The weight of the evidence proved that Mr. Welch's actions in touching Ms. Bush, Ms. Dickinson, Ms. Sims and Ms. Carter as described, supra, were intended by Mr. Welch to secure a special privilege or benefit for himself: sexual gratification and favors. III. Mr. Welch's Involvement with Ms. Pridgeon. The Nature of Mr. Welch's Relationship with Ms. Pridgeon. Ms. Pridgeon was physically abused by her husband during the time that she worked at the Clerk's office. Mr. Welch and the other employees of the Clerk's office were aware of this problem. Mr. Welch was considerate of Ms. Pridgeon's situation and attempted to help her. Additionally, Mr. Welch and Ms. Pridgeon were paramours. This finding is based upon statements that Mr. Welch made to Ms. Reams (finding of fact 53) and the following incident: Ms. Sims went downstairs to the area where the downstairs restroom was located one day during office hours. Ms. Sims saw Mr. Welch and Ms. Pridgeon kissing and embracing. The meaning of Mr. Welch's admissions to Ms. Reams about his relationship with Ms. Pridgeon and the incident witnessed by Ms. Sims were explained and supplemented, at least in part, by statements which, although hearsay, Ms. Pridgeon made to Ms. Williams, Ms. Dickinson, Ms. Bush and Ms. Mims. See Section 120.58(1)(a), Florida Statutes. Ms. Pridgeon's Traffic Citation. On June 14, 1985, at approximately 6:40 p.m., Ms. Pridgeon was stopped by Florida Highway Patrol Trooper Rick Hurst. Trooper Hurst issued a Florida Uniform Traffic Citation to Ms. Pridgeon for travelling 91 MPH in a 55 MPH speed zone. Mr. Welch's home may be reached by travelling on Highway 6 in Madison County or another route not relevant to this proceeding. When stopped for speeding on June 14, 1985, Ms. Pridgeon was travelling on Highway 6 toward Madison and away from Mr. Welch's home. When stopped, Ms. Pridgeon tried to talk Trooper Hurst out of issuing the citation. When this failed, Ms. Pridgeon attempted to get Trooper Hurst to issue the citation inside the Madison city limits and not where he had stopped her. Trooper Hurst refused. Later during the evening on June 14, 1985, Ms. Pridgeon telephoned Mr. Welch's house. Mr. Welch had just come into the house and was taking a shower. Ms. Welch answered the telephone and took a message. Mr. Welch later returned Ms. Pridgeon's call. Ms. Pridgeon informed Mr. Welch that she had been issued a traffic citation on Highway 6. Mr. Welch told Ms. Pridgeon that he would go see the county court judge about the ticket to see what could be done. Both Ms. Pridgeon and Mr. Welch were concerned that the fact that she had been issued a citation would be printed in the local newspaper and Ms. Pridgeon's husband would see it and physically abuse her. Because of Mr. Welch's personal relationship with Ms. Pridgeon, it is concluded that Mr. Welch was also concerned that people would speculate, as they ultimately did, that Ms. Pridgeon had been coming from his house when she was stopped. Mr. Welch also wanted to assist Ms. Pridgeon simply because people who have a personal relationship try to help each other out in times of need. Finally, Mr. Welch wished to assist Ms. Pridgeon, if for no other reason, than because she was one of his employees. Following his telephone conversation with Ms. Pridgeon, Mr. Welch telephoned Ms. James. Ms. James was the deputy clerk at that time that handled traffic citation cases filed with the Clerk's office. Mr. Welch told Ms. James that Ms. Pridgeon had been issued a traffic citation and instructed her to look for the citation to come into the office. Mr. Welch told Ms. James that she was to do nothing with the citation when it came in except to notify him. When Ms. Pridgeon's traffic citation was filed in the Clerk's office, within a week or possibly two weeks after it was issued, Ms. James telephoned Mr. Welch and informed him. Mr. Welch instructed Ms. James to pull Ms. Pridgeon's citation out of the batch of citations that had been filed; that he would come get it. Ms. James put it in a blank envelope, referred to as a "shuck", and did not process it. Normally, traffic citations issued by the Florida Highway Patrol in Madison County were periodically filed in batches with the Clerk's office. Each citation was placed in an envelope referred to as a "shuck", was identified with a number and was "indexed" or recorded in the Clerk's office records. A separate book was kept to index or record traffic citations. Traffic citations indexed in the Clerk's office were reported in the local newspaper, thus disclosing the name of any person who was issued a citation. If a traffic citation was not indexed, there was no public record of the ticket in the Clerk's office and no way to determine in the Clerk's office that a citation had been issued. Eventually, after a traffic citation of the type issued to Ms. Pridgeon had been indexed, the person who received the citation would be required to appear before the county court judge and enter a plea. The county court judge ultimately rendered a decision regarding the citation which was recorded on the shuck. Eventually, the ultimate disposition of the citation was also noted on the shuck. By instructing Ms. James not to index Ms. Pridgeon's citation, Mr. Welch failed to follow the established procedure for handling traffic citations in Madison County. Mr. Welch failed to follow the established procedures for the reasons set out in finding of fact 101. Therefore, his failure to follow established procedures was inappropriate for a public officer such as Mr. Welch. After Ms. Pridgeon's traffic citation was filed in the Clerk's office, Mr. Welch went to see County Court Judge Wetzel Blair, a cousin of Ms. Pridgeon. Mr. Welch informed Judge Blair of the citation and asked him how she could be "helped" or "assisted." Judge Blair told Mr. Welch that he would allow Ms. Pridgeon to plead nolo contendere, attend driver's school and pay court costs. He also told Mr. Welch that he would reduce the speed to 79 MPH to reduce the "points" against her driver's license, continue the case for 6 months and, if she did not receive any additional citations, withhold adjudication. Mr. Welch also asked Judge Blair what could be done to prevent the newspaper from disclosing that Ms. Pridgeon had been issued a citation. Judge Blair told Mr. Welch that any such attempt would only make things worse; that it would move the story from the back of the newspaper to the front page. Judge Blair told Mr. Welch not to jeopardize his position over an employee's personal problems. Mr. Welch went to see Judge Blair on behalf of Ms. Pridgeon for the reasons set out in finding of fact 101. Other persons issued a traffic citation in Madison did not have the benefit of the Clerk speaking in private with the county court judge about the disposition of their citations. Mr. Welch's action was, therefore, inappropriate for a public officer such as Mr. Welch. Ms. Pridgeon did not enter a plea on the traffic citation and she did not immediately sign up for driver's school. Nor was the citation indexed immediately after the meeting between Judge Blair and Mr. Welch. About a week after Ms. James told Mr. Welch that the citation had arrived, Mr. Welch told her how Judge Blair had indicated he would handle the citation. Ms. James wrote on the shuck that she had put the citation in: 6-24-85 - hold for 6 months (12-24-85) per Judge Blair. If no other ticket rec'd w/h adj. There was a great deal of testimony and evidence concerning the use of the term "hold" on the shuck. That evidence was essentially irrelevant. At some time after the citation had been issued, Trooper Hurst came to the Clerk's office and asked Ms. Bush whether the citation he had issued to Ms. Pridgeon had been indexed. Ms. Bush checked the index book and was unable to find any record of the citation. After Trooper Hurst informed Ms. Bush about the citation and she was unable to find any record of it, she informed Judge Blair. Ms. Bush took this action because she believed that Mr. Welch and Ms. Pridgeon were romantically involved and, therefore, she was concerned about whether the citation was being handled properly. Judge Blair told Ms. Bush to wait and see if the citation showed up. This meeting probably took place in July, 1985. Judge Blair also believed that Mr. Welch and Ms. Pridgeon were romantically involved and, in light of the fact that Mr. Welch had approached him about helping Ms. Pridgeon, he also checked to see if the citation had been indexed. When he failed to find any record of the citation, he asked his secretary to look for it. Judge Blair's secretary also did not find any record of the citation. Judge Blair took his concerns to a circuit court judge. Judge Blair decided to continue to wait and see what happened. On approximately September 26, 1985, Ms. Bush confronted Mr. Welch and asked him where Ms. Pridgeon's citation was. Mr. Welch initially asked "what citation." Eventually, Mr. Welch pulled the citation from his desk drawer. He did not tell Ms. Bush that the citation had not been indexed because he was attempting to protect Ms. Pridgeon from her husband. Following this incident, Mr. Welch gave the citation to Ms. James and told her to index it. Ms. James indexed Ms. Pridgeon's citation on or about September 26, 1985, more than three months after it had been issued and only after Ms. Bush confronted Mr. Welch about it. Until the citation was indexed, there was no record of the citation to Ms. Pridgeon in the Clerk's office, Ms. Pridgeon had not entered a plea and Ms. Pridgeon had taken no action to pay court costs or sign up for driver's school. At some time after confronting Mr. Welch, Ms. Bush informed Judge Blair about the incident. Judge Blair spoke to the State Attorney's office about the matter and recorded a statement of his recollection of the events in the presence of Ms. Bush and Ms. James. On November 9, 1985, Ms. Pridgeon attended driver's school. She had to wait until November because that was the next time that the course was offered in Madison after the citation was finally indexed. On November 22, 1985, Ms. Pridgeon paid court costs for the citation. The citation was ultimately disposed of on December 24, 1985, in conformance with Judge Blair's sentence. Based upon the foregoing findings of fact, it is concluded Mr. Welch's treatment of Ms. Pridgeon's traffic citation was intended to secure a special privilege or benefit for himself: sexual gratification and favors. III. The Respondent's Attempts to Discredit His Accusers. General. The Respondent presented evidence intended to discredit the testimony of many of the witnesses who testified on behalf of the Advocate. The following facts were proved and considered in making all of the findings of fact in this case. These findings were not, however, sufficient to discredit the testimony and evidence which supports the findings of fact made, supra, in this Recommended Order: Ms. Bush made a comment in August, 1989, to Ms. Welch about coming back to work at the Clerk's office. The comment was an "offhand" remark not intended as a serious request to return to the Clerk's office. Ms. Sims, despite the incidents described in this Recommended Order she was involved in, assisted Mr. Welch in his campaign for re-election as Clerk in 1988 and sent him a congratulatory card after his re-election. Ms. Sims has known the Welch family all her life. Just as Ms. Pridgeon stayed in an abusive relationship for seventeen years, it is not unusual for people to do things in life which do not always seem to make sense to someone "on the outside looking in". Ms. Sims probably put up with the incidents she described because of family, work and community ties, until after Mr. Welch fired her. Once Mr. Welch fired Ms. Sims, she lost her reason for avoiding causing hard feelings, however. Mr. Poppell, a Madison County Commissioner, was involved in the decision of Ms. Mims to file the complaint against Mr. Welch with the Commission. Mr. Poppell spoke to other employees of the Clerk's office and asked them if they would also file a complaint. The evidence failed to prove that the facts which have been found in this Recommended Order are not true due to any involvement in the filing of the complaint by Mr. Poppell. The motives for the filing of the complaint in this case were essentially irrelevant. At issue is whether Mr. Welch violated the law and the weight of the evidence proved that he did regardless of why Ms. Mims filed her complaint and regardless of Mr. Poppell's involvement. Evidence concerning the fact that many of the employees did not confront Mr. Welch about his actions or ask him to stop some of his offensive conduct was also presented: It is true that very few of the employees who testified about inappropriate conduct by Mr. Welch ever questioned him about it. A few of them, however, did say something to him: Ms. Carter, for instance. Ms. Mims lied about the tape recording, jeopardizing her job, to stop Mr. Welch from telephoning her. Others handled the situation by joking about it. The failure to confront Mr. Welch is understandable, in part, because he was the "boss." He had the authority to determine whether they continued to have a job, their means of supporting themselves and their families. If they had told Mr. Welch that his conduct was not acceptable or that he should stop, they were not sure how he would react. Although it may be easy to decide what the right course of action a person should take may be, it is not always easy to actually take that action. Additionally, Mr. Welch's conduct was often subtle enough that the employees involved were probably not sure whether their perception of Mr. Welch's actions was correct. Most of the employees had known Mr. Welch and his family for years. Again, Madison is a small, close community. There was, therefore, a reluctance on the part of some employees to create "hard feelings", which ultimately have resulted anyway. Ms. Bush did take action to find other employment. Mr. Welch's pass at her was not subtle. Therefore, she immediately began to look for other employment and left even though she was close to having ten years of employment with the State. That it took her six months to leave after the incident was very reasonable and understandable in light of the fact that Madison is a relatively small community and in light of her apparent need, like most people, to have an income. By leaving when she did, Ms. Bush lost an opportunity to vest some retirement benefits. She obviously wanted out. Employees Who Were Terminated. The third time that Ms. Sims worked for the Clerk's office, she was fired by Mr. Welch while she was on probation, not too long after she had been hired. The evidence was inconclusive as to whether Mr. Welch was justified in firing Ms. Sims. More importantly, the evidence failed to prove that Ms. Sims' testimony was not credible. At best, the evidence proved that after Mr. Welch fired her, Ms. Sims had less reason to be concerned about creating "hard feelings." Ms. Mims was also fired by Mr. Welch: During the end of 1985 or early 1986, Ms. Mims' one-year old daughter broke her leg. Ms. Mims could not leave her at day-care and, therefore, she had to stay home with her daughter. While Ms. Mims was out of the office, several checks which she had written and cashed in the Clerk's office were returned for insufficient funds. The first check returned was never found. The weight of the evidence failed to prove what happened to it, however. The first returned checks discovered by Clerk's office personnel were received in early February, 1986. Ms. Ginn and Mr. Welch made several attempts to reach Ms. Mims over a period of, at most, seven working days. Ms. Mims was staying with a boyfriend and, therefore, the efforts to reach her were unsuccessful. Therefore, Mr. Welch telephoned Ms. Mims' mother and told her it was important that Ms. Mims contact him. On or about February 10, 1986, Mr. Welch telephoned the State Attorney, informed him that Ms. Mims had cashed checks in the Clerk's office which had been returned for insufficient funds and made a complaint against Ms. Mims. On February 13, 1986, an investigator for the State Attorney's office, Mr. Fisher, went to meet with Mr. Welch about the checks. While Mr. Fisher was meeting with Mr. Welch, Ms. Mims came to the office to see Mr. Welch. She met with Mr. Fisher, Mr. Welch and Ms. Ginn. Ms. Mims admitted that she had cashed the checks and made restitution of the amount of the checks ($165.00) that had been returned as of that date, including the missing check. She also told Mr. Welch that there were two other checks that would be returned. Ms. Mims ultimately also paid those checks. During the meeting with Mr. Fisher, Mr. Welch and Ms. Ginn, Ms. Mims asked what would happen if she made restitution. Mr. Fisher or Mr. Welch telephoned the State Attorney, Mr. Jerry Blair, to determine what action would be taken. Mr. Blair, because of a prior incident in the Clerk's office involving public funds and because of the fact that public funds were involved, indicated that he would have to prosecute the matter even if she made restitution. Ms. Mims was informed of this conversation. During the February 13, 1986, meeting Mr. Welch informed Ms. Mims that she was suspended. It was apparent to Ms. Mims that Mr. Welch intended to terminate her because of the returned checks. Ms. Mims was very upset and threatened to get even with Mr. Welch. Ms. Mims was informed that she was terminated by letter dated March 14, 1986. Ms. Mims ultimately pled guilty to several counts of violating Section 832.05(4), Florida Statutes, as a result of cashing the checks and was sentenced to six months of unsupervised probation. Adjudication was withheld. Ms. Mims had deposited a check in payment of child support from a former husband which would have been enough to pay the checks she had cashed with Clerk's office funds. The check she deposited was returned for insufficient funds, however, and therefore the checks she cashed in the Clerk's office were also returned for insufficient funds. Although Ms. Mims had threatened Mr. Welch during the February 13, 1986, meeting, she admitted in her deposition testimony that he had the right to fire her because of the incident with the checks. Regardless of Ms. Mims' motives for filing the complaint which instituted this proceeding, the weight of the evidence failed to prove that the charges against Mr. Welch were not true.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics enter a Final Order and Public Report finding that the Respondent, Alfred Welch, violated Section 112.313(6), Florida Statutes, as alleged in Complaint No. 90-51. It is further RECOMMENDED that Mr. Welch be subjected to public censure and reprimand and that the Governor of the State of Florida suspend Mr. Welch from office as the Clerk of the Circuit Court of Madison County, Florida, for a period of at least sixty days. DONE and ENTERED this 10th day of December, 1991, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 1991. COPIES FURNISHED: Virlindia Doss Assistant Attorney General Department of Legal Affairs The Capitol, Suite 101 Tallahassee, Florida 32399-1050 Lorence Bielby, Esquire Post Office Box 1838 Tallahassee, Florida 32302 Bonnie J. Williams Executive Director Commission on Ethics The Capitol, Room 2105 Post Office Box 6 Tallahassee, Florida 32302-0006
The Issue Are the four notices of violation against Respondents valid, and if valid, may the Department of Transportation require that the allegedly offending signs be removed?
Findings Of Fact On or about September 21, 2000, DOT became aware that two trucks bearing written material were parked adjacent to DOT's right-of-way on the west side of Interstate 95 (I-95) in St. Johns County in such a manner that the written material was visible from the main-traveled way of I-95. DOT issued four Notices of Violation against the two trucks. Notice of Violation number 10B TS 2000 539 was issued to Café Erotica of Florida, Inc., d/b/a Café Erotica on September 21, 2000, against a truck located adjacent to I-95, 2.015 miles north of SR 207, at milepost 15.823. This violation notice became DOAH Case No. 00-4188T. Notice of Violation number 10B TS 2000 540 was issued to Café Erotica of Florida, Inc., d/b/a Café Erotica on September 21, 2000, against a truck located adjacent to I-95, 2.041 miles north of SR 207, at milepost 15.849. This violation notice became DOAH Case No. 00-4189T. Notice of Violation number 10B BB 2000 539 was issued to Café Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc., c/o Gary Edinger, the registered agent for the corporation, on October 10, 2000, against the truck located adjacent to I-95, 2.015 miles north of SR 207. This violation notice became DOAH Case No. 00-4423T. Notice of Violation number 10B BB 2000 540 was issued to Café Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc., c/o Gary Edinger, the registered agent for the corporation, on October 10, 2000, against the truck located adjacent to I-95, 2.041 miles north of SR 207. This violation notice became DOAH Case No. 00-4424T. All of the foregoing notices alleged that the trucks are in violation of Chapter 479, Florida Statutes, in that they are unpermitted signs. On October 24, 2000, DOT issued a letter to Café Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc., advising it that the trucks which were issued the above- referenced notices of violation had been moved temporarily out of view and then returned to visibility at each other's previous milepost location. The letter advised that notwithstanding the movement of the trucks within their general location, the trucks remained illegal signs pursuant to Chapter 479, Florida Statutes. I-95 is part of the Interstate Highway System. The two trucks are located at times within 660 feet of the nearest edge of the right-of-way of I-95. The trucks can be seen without visual aid by motorists of normal visual acuity traveling on I-95. Admitted Fact Four of the parties' prehearing stipulation was that at the time the notices of violation were issued, the trucks displayed the words "Café Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc." However, their Admitted Fact Five, incorporating photographs, and other photographs in evidence reveal that one truck had the foregoing display without the slashes and one truck juxtaposed the phrases "Great Food" and "Adult Toys," also without the slashes. The trucks were located within 15 feet of the right-of-way fence and were parked on raised mounds of dirt, elevating them above the surrounding terrain. Immediately adjacent to the trucks were light fixtures with halogen lights aimed at the sides of the trucks. If electricity had been available, the lights could have illuminated the vehicles. The trucks were intentionally placed at their locations. As of January 5, 2001, additional verbiage was added to the trucks which states, "Hunt & Fish Camp." As of the March 7, 2001, date of hearing, the trucks still contained this additional verbiage. On both trucks, the letters are all capitalized; the size of the letters and the paint colors used call the viewer's attention to the phrases, "CAFE? EROTICA," "WE DARE TO BARE," "ADULT TOYS," "GREAT FOOD," and "EXIT 94." The abbreviation "INC.," is the phrase smallest in size, located at the very bottom right, relatively inconspicuous, and the words, "hunt & fish camp," follow, vertical to the rest of the verbiage. There are no addresses, telephone numbers, arrows, or other identifying information. Respondent Cafe Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc., is a Florida corporation. At all times material, Café Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc., has been a corporation in good standing with the Florida Department of State, which has registered and approved its corporate name pursuant to Section 607.0401, Florida Statutes. Asher G. Sullivan, Jr., a/k/a Jerry Sullivan, is incorporator, President, shareholder, and Director of the corporation, which will hereafter be referred to as "Exit 94, Inc." Exit 94, Inc., owns, insures, and maintains the two trucks which are the subject of this proceeding. Exit 94, Inc., likewise owns the real property on which the trucks are located, which parcel consists of approximately 11 acres situated between I-95 exits 94 and 95. Exit 94, Inc., does not sell food or adult toys. It does not offer dancers for public viewing. The business of Exit 94, Inc., is developing a hunting and fishing camp at the property it owns, the property where its trucks were cited by DOT, between I-95 exits 94 and 95. Respondent Café Erotica of Florida, Inc., d/b/a Café Erotica, is a Florida corporation which holds the license and owns the assets of the Café Erotica restaurant. Jerry Sullivan also is president, shareholder, and owner of Café Erotica of Florida, Inc., which will hereafter be referred-to as "Café Erotica." The St. Johns Management Company manages the Café Erotica restaurant. Jerry Sullivan also is the President and shareholder of the St. Johns Management Company. The Café Erotica restaurant is a 24-hour per day, full-service restaurant which features dancers clad in bathing suits and which sells adult toys. The Café Erotica restaurant is located at 2620 State Road 207 (SR-207), at the intersection of SR 207 and the exit 94 off-ramps from I-95. The real property owned by Café Erotica is not contiguous to the subject real property owned by Exit 94, Inc. The real property owned by Exit 94, Inc., which is the subject of DOT's notices of violation is approximately seven miles from the Café Erotica restaurant. The Café Erotica restaurant currently advertises on its premises and on a billboard at exit 94 of I-95. In the past, Café Erotica has advertised "we dare to bare," "adult toys," and "exit 94" on other billboards located adjacent to I- 95 in St. Johns County. Café Erotica no longer rents billboards in these locations. The advertisements of Café Erotica currently at exit 94 of I-95 include the words, "private dances," and "great food/adult toys." The advertising is specifically directed at motorists, including truck drivers, on I-95. In addition to the real property where its trucks were cited by DOT, which real property Exit 94, Inc., holds by warranty deed, Exit 94, Inc., leases property at the southeast corner of I-95's exit 93, where SR-206 intersects with I-95. At that location, Exit 94, Inc., displays a 14-foot by 25-foot permanent billboard sign reading "Café Erotica/We Dare to Bare/Great Food/Adult Toys/Exit 94, Inc." (Note juxtaposition of part of the corporate name). Below this billboard, on the same leased property, is a smaller sign stating "Fish Camp" with a telephone number (P-11; TR 66-64, 73- 74, 183-184). Exit 94, Inc., claims to maintain an office and a telephone on this leased property. Mr. Sullivan's primary business is that of renting billboards for advertising purposes, which he owns. He has advertised on leased signs and has knowledge of DOT's sign permit requirements. At one time, Mr. Sullivan intended to place a billboard on the property owned by Exit 94, Inc. He has not done so. Neither Café Erotica nor Exit 94, Inc., has applied to DOT for sign permits for the subject trucks, nor paid any sign permit fees for them. No sign permits have been issued to any entity for the subject trucks. When the Notices of Violation were issued, DOT inspectors did not enter on the real property owned by Exit 94, Inc., or pull any business licenses for the property. They viewed the trucks from I-95. No improvements were visible from I-95. DOT did not undertake any investigation to determine the owner(s) of the subject trucks or subject real property. Café Erotica does not own any interest in the subject trucks or real property, and no citizen testified that the trucks had caused him/her to patronize the Café Erotica. DOT witnesses acknowledged that the Notices of Violation issued to Café Erotica were essentially issued in error because DOT did not know the identity of the owner of the subject trucks and real property. Upon discovering that Café Erotica did not own any interest in the subject trucks or real property, DOT made no effort to dismiss the violations against Café Erotica. Jerry Sullivan has decision-making authority for both Respondents as a corporate officer of both corporations. Jerry Sullivan makes management decisions concerning Café Erotica, including whether, and how, to advertise. Jerry Sullivan has directed all activity on the Exit 94, Inc., property. He anticipates creating, maintaining, and charging people for the privilege of using the subject property as a fishing and hunting camp. He also intends to reward employees and clients of his various enterprises with free privileges at the camp. Ninety percent of the time, the subject trucks are parked on the subject property. However, from time to time, the trucks, one of which was burned out and one of which has a "for sale" sign painted on its windshield, are driven off the Exit 94, Inc., property to haul equipment and corn to the subject property, for "truck maintenance," and for incidental uses in connection with Exit 94, Inc., and Mr. Sullivan's other business entities, including Café Erotica. On some of these occasions, the trucks are parked in the parking lot of the Café Erotica restaurant. The trucks are used off the Exit 94, Inc., property only two or three times per month. Except when under repair, they can be driven on the roads and highways. Exit 94, Inc., paid approximately $35,000 for the subject property on or about April 9, 1999, well before the notices of violation. Eight months prior to hearing (approximately three months before the notices of violation), Exit 94, Inc. dug a pond in a naturally low spot and/or a natural basin where Mr. Sullivan believed a pond originally had been on the subject property. A solar panel pump was installed to put water into the excavation because getting electricity run to the property was prohibitively expensive. Inspection of the subject property by DOT personnel only occurred about two-and-one-half weeks before the disputed- fact hearing. At that time, the solar pump used to fill the pond with water was not working well, so that the possibility of fish living in the rather shallow pond was highly unlikely. The pond was not stocked with fish. The property was not stocked with game animals. There was also one very ramshackle deer blind on the property and a permanent metal, utility pole had been erected to support another deer blind. There were no utilities, restrooms, offices, or facilities to clean game on the premises. No fishing equipment was available for purchase. This situation was memorialized by photographs in evidence. The Exit 94, Inc., property has only one entrance which is not directly accessible from a public roadway. To reach Exit 94, Inc.'s, only entrance, a car gets off I-95 at exit 94, where Café Erotica is located, and proceeds to a private dirt road created and owned by Georgia-Pacific timber company, and then drives approximately one mile along that dirt road over the timber company's land. Thousands of acres of scrub pine belonging to the timber company surround Exit 94, Inc.'s property. Entrance to the timber company land is through a fence/gate. The timber company gate is "posted," warning that hunting is not permitted on its land and that violators will be prosecuted. The Exit 94, Inc., property is also "posted," and therefore not open to the general public. There is a "Café Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc., Hunt & Fish Camp" sign at its entrance. It cannot be inferred, as urged by DOT, that if a real property owner "posts" its property so the owner may subsequently prosecute trespassers and poachers, the owner also cannot charge a fee to customers, invited guests, or business invitees who hunt or fish on its property with its permission. Travelling as described above, there are approximately nine and one-half miles between exit 94 of I-95 and the Exit 94, Inc., property. There are no signs advertising a "hunt and fish camp" on this stretch of land, but Exit 94, Inc., has its billboard and other sign at Exit 93. (See Finding of Fact 22.) Exit 94, Inc., presented accounts showing it spent over $7,003 maintaining its signs since 1999 and over $12,000 on the subject trucks. Exit 94, Inc., lists addresses and locations other than the subject property as its business address(es) for various purposes. It maintains no office or telephone on the subject property. The only building on the subject property is a very small storage shack, placed there by Exit 94, Inc. The shack is not habitable as overnight lodging. It was designed to hold repair equipment and corn for seeding the pond for waterfowl and seeding the woods for deer. There is no evidence whether this method of luring game from the surrounding area is legal or illegal, but it is certainly feasible, given the location of the subject property. (See Finding of Fact 38.) Russell Market is General Manager for the Café Erotica restaurant. He was directed by Mr. Sullivan to check on Exit 94, Inc.'s, subject property, and he did so once a week and scattered corn for nine months. He saw wild turkeys on the subject property. Bill King is affiliated with Mr. Sullivan's companies. He has not hunted the subject property, but he sighted one of the deer stands. No witness testified to having camped overnight on the subject property. Bill Harry, who is employed by Mr. Sullivan, has hunted the subject property three or four times without success, despite once seeing a deer. Jerry Sullivan killed a deer on the subject property. There is no parking lot on the subject property. Respondents' witnesses testified that the subject trucks are parked on raised mounds of earth because the subject property is swampy. Only several hundred-by-60 feet have been cleared of brush. There is no telephone service to the subject property. If someone dials the telephone number listed for Exit 94, Inc. on its application to be a fish farm (see Finding of Fact 55) which is the same number on its sign at I-95's exit number 93 (see Finding of Fact 22), a recorded message relays the caller to a telephone number for the cell phone Mr. Sullivan carries on his person. No utilities are currently available on the subject property, but the solar pump is in use at the pond. Bill Harry repaired the pond pump a few days after showing DOT personnel around the subject property. (See Finding of Fact 36.) At hearing, he testified that the pond is now filling well with water. When the pond is full, Mr. Sullivan intends to stock it with fish. Exit 94, Inc., holds an occupational license from St. Johns County as a "fish camp." In issuing this license, the County accepted Exit 94, Inc.'s, designation of its business without further inquiry. Exit 94, Inc., has applied for a "fish farm" license from the Florida Game and Freshwater Fish Commission. Exit 94, Inc., produced invoices sent to clients for hunting and fishing privileges on the subject property, corresponding checks in payment, and tax returns. Patricia Doorbar, bookkeeper for Exit 94, Inc. and all of Mr. Sullivan's other business entities, testified that she had drafted all of the invoices, and had prepared the tax returns. She further testified that she maintained Exit 94, Inc.'s corporate financial books in accord with generally accepted accounting principles. The invoices and payments reflect that other business entities controlled by Mr. Sullivan or his family members were billed and paid for use of the Exit 94, Inc., property. Exit 94, Inc., currently operates at a loss, made up as necessary by Mr. Sullivan. No legitimate reason was demonstrated to pierce the corporate veil of any of Mr. Sullivan's corporations. Approximately two weeks before the disputed-fact hearing, Exit 94, Inc., made improvements to the subject property. These included laying out feed corn on the ground, repairing a deer stand so it could support one or more hunters, and repairing the solar pump. See supra. These improvements were memorialized by photographs in evidence. Respondents asserted that DOT has selectively enforced the sign law against them on the basis of many photographs of trucks bearing written material which were admitted in evidence. The trucks typically carry a business name, address and telephone number. Some carried only a business name. DOT rarely issues notices of violations for trucks. Within the last three-and-one-half years, trucks constituted approximately five such notices out of 3500 sign violation notices of all kinds, not just off-premises signs. The notices to these two Respondents constitute four of the five notices. DOT has promulgated no rules or policies specifying the factors to be considered when evaluating whether an operational truck constitutes an "off-premises sign" worthy of a violation notice. In the normal course of business, DOT inspectors determine whether trucks constitute "on-premises signs" on a case-by-case analysis which weighs content of the sign, usage of the truck, location and length of time the truck is in a single location, and whether the sign content advertises the business at the location where the truck is parked, advertises another business, or advertises anything at all. Inspectors have wide discretion in issuing notices of violation. With respect to the majority of Respondents' photographs presented at hearing, DOT representatives gave reasonable explanations why the truck owners had not been notified of violations, usually because the truck was being operated on the highway, was not parked over-long away from the business premises which it named, or was parked on the property of the business to which it belonged or which it named. In one instance, a contractor's truck was not charged with a violation because it was parked at a construction site which also bore a sign proclaiming that the construction work was being done by that contractor. Sometimes the reason a truck had not been cited was because the truck had not been located. DOT does not research which corporations or persons own or operate trucks painted with business names, and apparently, precision in painting a business name on other operable trucks had no effect on DOT's decision to treat other operable trucks as "on-premises signs" so that no notices of violation were issued against them. Similar photographs of trucks which Mr. Sullivan had sent to DOT were personally evaluated by DOT's Assistant Right- of-Way Manager for Operations, but this measure was only in response to the Respondents' allegations of selective enforcement in the instant case. The Assistant Right-of-Way Manager directed DOT district personnel to take either further investigative or regulatory action as she instructed on a case- by-case basis. One truck for "Smiley's" was subsequently issued a violation notice.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is
Findings Of Fact At all times relevant to these proceedings, respondent was the holder of a Florida Teacher Certificate Number 517639. This certificate was issued on October 21, 1982 and had a validity period of July 1, 1982 through June 30, 1983. The Respondent by "Answer to Administrative Complaint" dated August 9, 1983, admitted be holds teaching certificate 517639. During the 1982-83 school year, the respondent was employed by the Washington County School District as a teacher at the Dozier School for Boys. Dozier School is a correctional school. On May 6, 1983, respondent's youngest son, Allen Trout, a fifth grade student, had a birthday slumber party at his home. Ricky Clarke, age eleven, Tim Knowles, age nine, Henry Knowles, age eleven, Hugh Knowles, age eight, Jonathan Griggs, age eleven, and Allen Shipes, age ten, attended the slumber party. That same evening respondent's oldest son had several boys his age over for a campout. Most of the boys attending the slumber party arrived at the Trout home in the late afternoon after school. While at the slumber party the boys played chase, had a bubble fight, watched movies on television and ate hamburgers and ice cream and cake. At some point during the evening, the specific time being unknown, the younger boys accompanied by Allen Trout and the respondent went into a shed located adjacent to the Trout home. Once inside the shed, the respondent obtained two German nudist colony magazines and gave it to the boys to look at. These two magazines contained nude pictures of men, women, boys and girls. One picture showed nude people on a beach. While in the shed the boys also obtained a Hustler magazine and began looking at the pictures it contained. The Hustler contained pictures of nude women kissing and touching other women and nude men kissing and touching other nude men. The Hustler also contained pictures of nude men and women engaging in sexual acts. Although the evidence was unclear as to who specifically gave the boys the Hustler magazine, the respondent was aware that the boys were looking at all three magazines. The older boys also observed the young boys looking at the magazines. One of the boys, Tim Knowles, had prior to this occasion been permitted by his father to look at Playboy magazines at home. These magazines contained pictures of nude women. The following day several of the boys told their parents about the magazines. Some of these parents filed complaints with the Washington County Sheriff and on Wednesday, May 11, 1983, Sheriff Fred Peel served a search warrant upon the respondent. Sheriff Peel searched the shed at respondent's home and found no magazines as described above. Respondent testified at the final hearing that he had burned the magazines on May 7, 1983, the day after the slumber party. Respondent was subsequently arrested and charged with a violation of Section 847.011, Florida Statutes. On December 21, 1983, respondent was convicted of this charge by a jury and on January 20, 1984, was adjudicated guilty. Respondent was placed on probation for six months and fined $391.50. Violation of Section 847.011 constitutes a third degree felony. The conviction of respondent as well as the events giving rise to the conviction have received a great deal of notoriety in the local community. Respondent's conduct and his conviction have substantially reduced his effectiveness and ability to perform as a teacher in Washington County. Upon being informed of the complaints against the respondent, the Superintendent of Schools for Washington County suspended respondent without pay and recommended his dismissal from employment with the Washington County School Board.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED That a final order be entered by the School Board of Washington County finding the respondent guilty of the violations as stated above and dismissing him from his employment with the School Board of Washington County and denying any claim he may have for back pay. That a final order be entered by the Education Practices Commission finding respondent guilty of the violations as stated above and revoking his teaching certificate No. 517639 for a period of one (1) year. DONE and ORDERED this 6th day of July, 1984, in Tallahassee, Florida. MARVIN E. CHAVIS Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of July, 1984. COPIES FURNISHED: J. David Holder, Esquire Berg and Holder Post Office Box 1694 Tallahassee, Florida 32301 Gerald Holley, Esquire Post Office Box 268 Chipley, Florida 32428 W. Paul Thompson, Esquire Post Office Drawer 608 DeFuniak Springs, Florida 32433 Donald L. Griesheimer, Director Education Practices Commission Knott Building Tallahassee, Florida 32301 Charles Adams, Superintendent Washington County School Board 206 North 3rd Street Chipley, Florida 32428 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 =================================================================
Findings Of Fact The Petitioner Barbara Jerrel, became employed by Metropolitan Life Insurance Company, the Respondent, in May, 1987. She worked as a sales trainee in the field of life and health insurance sales and servicing. She was interviewed and hired by Doreen Blake in the "Gator Branch" office located in Gainesville, Florida. The manager of that office was Jerry Cummings, who was the Petitioner's supervisor. Mr. Cummings initially worked with the Petitioner in training her to solicit life and health insurance business and in making and closing sales of insurance policies both over the telephone and in person. When she initially became employed he accompanied her and supervised her in making sales solicitation calls on potential clients. On one occasion, soon after she was initially hired, the Petitioner maintains that she was working at her computer station in the office when Mr. Cummings sat beside her and began rubbing her arm. She states that she remonstrated with him about this conduct and told him to stop, whereupon he became angry and thenceforth instructed her to call him "Mr. Cummings." Soon after this alleged incident she was sent to a training school for approximately a month to learn the skills and requirements necessary to be a sales representative of Metropolitan Life Insurance Company. She received above average scores on graded work during her school period of instruction and received favorable reports on her leadership and sales ability from her instructors. After her school training was completed, she returned to the Gainesville office to work. On approximately June 23, 1988, she testified that she and Mr. Cummings were riding in her car to an appointment with a client. He was traveling with her in order to assist with her training in meeting and discussing insurance matters with clients and in closing sales. She maintains he began talking about things other than insurance and said "I hope you don't tell your husband what we talk about . . . because it's really making me hot." She also contends that he made a statement to the effect that he "wondered how long it would take before she got him to a motel room." The Petitioner testified that she went home that day and tried to decide whether to quit her job or not. She decided to seek a transfer to the Ocala office, where Mr. Wine was the manager. She conferred with Mr. Wine by phone and he allegedly told her that she could come to his office as a new applicant. In reality, as revealed by Mr. Wine in his own testimony, he did not want her to come to work in his office and did not encourage her to do so. In the meantime, Ms. Jerrel was appointed as a Sales Representative of Metropolitan at the "Gator" branch office in Gainesville, effective June 8, 1987, following her "pre-appointment training." That pre-appointment training provides job applicants with an opportunity to get acquainted with the company's business, to obtain necessary licenses, and enables the management to determine the aptitude of the applicant for the sale of the company's product. She was provided the same training accorded all such individuals after initial hiring. Following her appointment as a Sales Representative in the Gainesville office she continued to receive training and assistance as was provided all those newly appointed. Ms. Jerrel met the initial production requirement so that she could be appointed Sales Representative. However, her performance began to deteriorate in July, 1987. She had written 11 applications for insurance (with Mr. Cummings' assistance) by the time of her appointment as a Sales Representative and wrote five by July 10, 1987. Thereafter, she wrote no business at all for two of the next four weeks. She wrote one application for insurance in the week of August 3, 1987 and none for the next three consecutive weeks. She wrote one application in the week of August 31, and had none thereafter during her employment with the company. The Petitioner alleges that on or about August 28, 1987, Mr. Cummings made a suggestion that the Petitioner and Cummings and another couple "play golf, smoke pot, and go to the beach and make love." Petitioner apparently took offense at that, as it was one of the bases for the subject action. Upon her commenting about it to another female employee however, that employee, who knew Cummings for a longer period of time than the Petitioner, advised her to disregard it because it was her belief that he was "just joking." The Petitioner also alleged that several days after this incident on or about August 31, 1987, that Cummings was engaged in a conversation with her while kneeling beside her chair where she was working at her computer terminal. She alleges that he put his arm around her shoulder while conversing with her, let his hand rest on her breast and massaged her breast whereupon she states that she stabbed him with her "ink pen." These allegations are of somewhat dubious credibility. The Petitioner herself testified that after the August 31 date, at which the last of the above incidents allegedly occurred, Mr. Cummings still praised her as an employee and predicted that she would get the "Eagle Award." It is also established, by Petitioner's own testimony, that during this period of time in August, 1987, she was undergoing treatment for depression. There is some indication that she was having marital discord with her husband and, indeed, an incident occurred shortly after, on September 10, 1987, which indicates that her relationship with her husband might have interfered somewhat with her job performance. On that date she met agent Michael Ray from the company's Jacksonville office, whom she had known in insurance school. They went to a local establishment where, according to her own testimony, they had a "couple of drinks" whereupon she got sick and went home. Her husband apparently became upset by this episode and shortly thereafter went to the company's Jacksonville office in an attempt to confront agent Ray about apparently interfering with his relationship with his wife, the Petitioner. Later that day, the Petitioner called her own office in Gainesville to warn them that her husband might be coming there armed with a gun. While this is commendable on the Petitioner's part, it does indicate that there was some marital discord which may have interfered with her job performance and together with the fact of her depression and treatment for it, may have influenced her thinking and her perception of what was actually occurring in her encounters with Mr. Cummings. He was described by another employee as a "touchy person" who frequently touched people in an innocent manner while engaged in a conversation with them. These factors, considered together, coupled with Cummings' denial that the incidents occurred, in the case of his allegedly touching the Petitioner's breast, and his testimony that if he touched someone, it was without any wrongful intent, lead the Hearing Officer to find that the incidents either did not occur, that they did not happen in the manner perceived by the Petitioner, or that the motive behind them was misconstrued by the Petitioner. On September 16, 1987, Mr. Cummings offered to try to obtain a transfer for Ms. Jerrel to another office if she would like and offered to give her two weeks in which to decide whether she wanted a transfer and to "tie up loose ends." The Petitioner later refused his offer of a transfer to another office. The offer of transfer, according to the Petitioner, was because of her husband's influence on her performance in her work place, as evidenced, in part, by the incident referenced above. On September 20, a Sunday evening, Ms. Jerrel called manager Cummings at his home. She asked him to meet her at the office. Manager Cummings declined to go to the office, suggesting that they discuss whatever her problem was over the telephone. Ms. Jerrel refused to do that so then Cummings suggested that she come to his home (where his wife would be present) to discuss the matter with him and she declined. Ms. Jerrel then hung up but called back a few minutes later and said that if Manager Cummings refused to meet her at the office then she would file a sexual harassment charge against him. He was taken aback by this statement but then advised her to do what she chose but he was still not going to meet her at the office that evening. Mr. Cummings met with Ms. Jerrel in the branch office the next morning and telephoned his Regional Manager, in Ms. Jerrel's presence, to relay to him the information regarding her claim of sexual harassment. Arrangements were then made, in accordance with established company procedures, in evidence, for Agency Vice President, James Higgins, to meet with Ms. Jerrel on September 24, regarding her claim of sexual harassment. When Mr. Higgins met with her and heard her allegations, he advised her of the company's policy against sexual harassment, and assured her that if the incidents had occurred as alleged, he would correct the situation and there would be no recurrence. He also took that opportunity to discuss with Ms. Jerrel her performance as a sales representative. He advised her that upon review of her performance, he had noted that she had been "blank"; that is, without any sales or production for several weeks. He informed her that that was not a satisfactory performance level. He told her that she would have to produce a satisfactory record of sales accomplishments or her employment would be terminated. As a result of this discussion she agreed to submit an "action plan", delineating in detail what steps she proposed to take to correct her unsatisfactory production level. That action plan included her assurance that she would participate in "telephone prospecting classes" with her supervisor. Mr. Higgins also interviewed Manager Cummings with respect to Ms. Jerrel's allegations of sexual harassment. Mr. Cummings denied them. Mr. Higgins then warned Manager Cummings that if he were found to have engaged in such conduct, his employment would be terminated. Respondent's exhibit 14 is a letter from Mr. Higgins to Manager Cummings delineating the problems with the Petitioner's lack of sales performance. The exhibit contains a detailed discussion of her action plan goals designed to try to correct her lack of production of insurance sales. The letter admonishes Manager Cummings to monitor her performance, particularly her telephone prospecting time and methods, as well as her other prospecting and sales efforts and methods. The letter emphasizes, on the second page, the monitoring and establishment of a schedule of in-office telephone prospecting time, to be monitored by Mr. Cummings. In that letter is a handwritten memorandum of a telephone conversation which Mr. Higgins later had with Mr. Cummings, on the same day the letter went out to Mr. Cummings. Mr. Cummings informed Mr. Higgins that Ms. Jerrel had already missed two scheduled telephone prospecting classes which she had agreed to attend in her "action plan", designed to correct poor sales performance. Since she did not report to the scheduled telephone prospecting class sessions on September 25th and September 28th, Mr. Higgins ordered Manager Cummings to terminate her effective October 1, 1988. The reason for her termination was established to be her low- performance record and her failure to comply with the action plan which she, herself, prepared and submitted, designed to correct her poor sales performance. The termination did not result from the altercation that the Petitioner was involved in with her husband and agent Michael Ray of the Jacksonville branch office. In fact, the Branch Manager, Mr. Cummings' superior, had a discussion of that issue with Mr. Cummings and informed him that the New York home office had indicated that the Petitioner's husband's interference with her job or office operations was not a sufficient reason to terminate her. The company's policies and procedures regarding sexual harassment claims, equal employment opportunity, affirmative action and prevention of unlawful discrimination are in evidence. The record does not reflect that those policies were departed from in the situation at bar.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED: That the petition of Barbara Jerrel be dismissed. DONE AND ENTERED this 27th day of March, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 1990. COPIES FURNISHED: Dana Baird, Esq. Florida Commission on Human Relations 325 John Knox Road, Suite 240 Building F Tallahassee, FL 32399-1925 Rodney W. Smith, Esq. P.O. Box 628 Alachua, FL 32615 Wi1liam G. Pappas, Esq. Metropolitan Life Insurance Company One Madison Avenue New York, NY 10010-3690
The Issue The central issue in this case is whether the Respondent is guilty of the violations alleged in the emergency order of suspension and notice to show cause dated November 25, 1991; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: Lunar Guppies, Inc. is the holder of an alcoholic beverage license, number 58-03679, series 2-COP, for a licensed premises known as Club Space Fish Cafe (Cafe) which is located at 536 West Church Street, Orlando, Florida. All activities described herein took place at the licensed premises. Michael Brown is the president and majority shareholder of Lunar Guppies, Inc. Michael Buchanan is the corporation's vice president and he owns fifteen percent of the shares issued by the entity. At all times material to the allegations of this case, both owners, Mr. Brown and Mr. Buchanan, were present on the licensed premises. Some time prior to November 18, 1991, Mr. Brown was contacted by an individual known to him only as "Merle." Apparently, Merle represented the band known as "G.G. Allin and the Murder Junkies" (hereinafter referred to as the group or the band) and was responsible for seeking work for the group. After some discussions, the parties reached a verbal agreement whereby the band would play the second set at the Cafe on November 18, 1991. Flyers for the performance billed the event as the group's only Florida show. All arrangements were verbal, and were conducted between Mr. Brown and Merle. Initially, Mr. Brown expected the band to perform at 11:00 p.m. on the designated date; however, after checking in and reviewing the equipment, the group announced that they would return to perform around 11:30 p.m. During the check in meeting with the band, Mr. Brown advised the group that he did not expect them to damage property belonging to the Cafe. Prior to the group's performance Cafe staff had covered speakers with plastic to protect them from moisture. Also, areas of the stage were lined with plastic. According to Mr. Brown, such precautions are standard when rowdy bands are booked for the Cafe. The speakers, which belong to the Cafe, are expensive and sensitive to moisture. Spills from beverages are not uncommon with certain types of bands. Also prior to the group's performance on November 18, 1991, Mr. Brown prepared a written warning which was posted on the Cafe's door. While there is some dispute as to the exact language of the warning, the purpose was to warn Cafe patrons that the performance (by the band) was expected to contain language and subject matter which might be considered offensive or obscene by some. The exact language of the warning is unknown because shortly after the police arrived on the scene someone removed the sign and its current whereabouts is unknown. That the sign existed is not disputed. Upon his arrival back at the Cafe, the lead singer of the band, G.G. Allin a/k/a Kevin Allin (Allin), appeared for the band's microphone check wearing only a hooded jacket, studded dog collar, and shoes. Shortly after the check, removed his jacket to reveal that he was nude but for the dog collar and shoes. Also at that time the drummer for the band appeared and played in the buff as well. Just prior to, and during the first song performed by the band: Allin broke glass and rubbed it into his head causing a flow of blood which continued to stream down his head throughout his performance; he smashed his microphone into his head to further damage the wounds; he constantly grabbed his penis; and he leaped off the stage, knocked a female patron to the floor, and rubbed his face into her groin area simulating oral sex. The female patron kicked Allin and resisted his advances. At the conclusion of the first song, Allin grabbed a male patron and rubbed his penis against the man's head. During the second song, Allin's acts prompted most of the Cafe's patrons to flee the interior of the licensed premises. Most fled after Allin defecated onto the Cafe floor, urinated into his own hand (so he could drink it), followed by his licking the floor (with the feces) and spitting and throwing it at patrons. When Allin returned to the stage, he stuck his finger into his rectum and rubbed the microphone in the anal area as well. During the remainder of the performance (three or four more songs), Allin continued to dance around the Cafe (encumbered only by the microphone cord), continued to fondle his penis, allowed at least one patron to fondle his penis, and poured himself a beer at the bar. At all times described above, Mr. Buchanan observed the performance and did nothing to deter Allin. During the performance there was a sound and/or light technician above the Cafe's main floor who watched the band and, presumably, assisted. The Cafe has flood lights above the main floor area where Allin performed. When the patrons from the Cafe fled into the street outside, officers in a patrolling police car observed the commotion. Two officers, Browning and Arnott, went to the Cafe to investigate. Upon entering the premises, Officer Browning observed Allin on the floor rubbing his head into glass. Obviously, Officer Browning noted that Allin was au naturale. At that point the band's performance ceased. The term "performance" has been used herein loosely to describe what occurred at the Cafe; such "acts" could hardly be described as entertainment. After taking statements from Cafe patrons, the police officers filed criminal charges against Allin in connection with the incidents described above. Incidental to the arrest, Mr. Brown and Mr. Buchanan voluntarily went to the police station and filed sworn statements regarding the night's activities. While Mr. Buchanan was present behind the bar during the entire performance (approximately twenty-six minutes, six songs) his sworn statement is replete with factual errors regarding what occurred. Additionally, Mr. Brown's sworn police statement incorrectly chronicled the acts which had occurred. Mr. Brown's explanation at the hearing has not been deemed credible nor were his comments regarding the disappearance of the written warning which had been posted on the Cafe's door. At the start of Allin's performance, Mr. Buchanan and Mr. Brown should have provided appropriate security for the Cafe patrons. At least one female patron was touched by Allin and demonstrated her displeasure at such conduct. Volunteer security help (which incidently fled with the others) is not sufficient when a band's performance might be considered to be, and anticipated to be, rowdy (as the plastic suggested). Once the band member Allin exhibited inappropriate conduct (as early as the first two songs), the Cafe owners should have taken measures to stop the performance. Given public sensitivity related to exposure to body fluids, the Cafe owners were negligent in not aborting Allin's act once it began, and in not previewing his proposed performance since they were made aware of the potentially objectionable nature of the show (as evidenced by the warning and Mr. Brown's prior conversations with band members and groupies). Even if Mr. Brown and Mr. Buchanan did not know the full extent of Allin's proposed performance, once he exhibited offensive and lewd conduct, they bore a burden to interrupt the act and take precautionary measures to insure the safety of the Cafe patrons. Mr. Brown's explanation that he was fearful for his own safety (and thus excused from action) has not been deemed credible. At the minimum, Mr. Brown or Mr. Buchanan could have sought assistance from 911 (which was not done). Had the police not arrived when they did, no telling how long the Cafe owners would have allowed Allin to reign. Presumably, until the set contracted for was finished. As it was, Mr. Brown paid the band for a partial performance. Subsequent to the Allin performance, the Cafe owners have drafted a written agreement to attempt to avoid any reoccurrence of an unlawful performance. The Cafe did not prior to, or subsequent to, November 18, 1991, allow an unlawful performance such as that which is described herein to be conducted on its licensed premises. The acts which occurred on November 18, 1991, are the sole basis for disciplinary action against this licensee.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco enter a final order suspending Respondent's alcoholic beverage license for a period of ninety (90) days retroactive to the date the emergency order was entered. DONE and ENTERED this 7th day of January, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this day of January, 1992. APPENDIX TO CASE NO. 91-7697 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: The Petitioner footnoted many of its proposed findings of fact. Such footnotes are not accepted as they contain argument, comment, or irrelevant matters. The proposed findings have been addressed without reference to footnotes as follows: Paragraphs 1 through 5 are accepted. With the deletion of the phrase "Once back on the stage" paragraph 6 is accepted. Paragraph 7 is accepted. With regard to paragraph 8 it is unknown if Merle was, in fact, the band's manager; otherwise, the paragraph is accepted. With the deletion of the second sentence which is rejected as hearsay, paragraph 9 is accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: NOTE: Respondent's proposed findings of fact begin with the numbered paragraph 4. Paragraphs 4 through 8 are accepted. Paragraph 9 is accepted but is irrelevant. Paragraph 10 is rejected as argument or comment. The weight of the credible evidence suggests that, utilizing ordinary care, the Cafe owners should have made inquiries to assure that the band would not perform lewd acts (they were on notice of the band's potential for offensive behavior). The first sentence of paragraph 11 is accepted; otherwise rejected as argument or comment. Paragraph 12 is rejected as contrary to the weight of the credible evidence. Respondent knew the band's performance might be offensive or obscene and failed to use ordinary care to assure it would not be unlawful. Paragraph 13 is accepted to the extent that it states most patrons fled; however, others remained and the Respondent allowed the performance to continue. COPIES TO: Janet E. Ferris, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Donald D. Conn General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Richard W. Scully Director, Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Thomas A. Klein Chief Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Howard S. Marks Graham, Clark, Pohl & Jones 369 North New York Avenue Post Office Drawer 1690 Winter Park, Florida 32790
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on December 8, 2003.
Findings Of Fact Petitioner is an African-American man who was employed by Respondent from July 16, 2003, until his termination on October 28, 2003. Respondent, North Florida Lubes, Inc., d/b/a/ Texaco Xpress Lube, is an employer within the meaning of the Florida Civil Rights Act of 1992. Respondent operates more than 25 Texaco Xpress Lube stores in Florida and is headquartered in Jacksonville, Florida. Brian Fowler is Respondent’s owner and president. In the summer of 2003, Respondent acquired two lube stores and a car wash in Ocala, Florida. Prior to their acquisition by Respondent, these Ocala stores were owned and operated by John Costa. One location included both the car wash and lube store and is located at 3680 East Silver Springs Boulevard. It was purchased in June 2003 and once acquired, Respondent designated it as Store No. 1018 (1018 Store). The other location, which is located at 1708 East Silver Springs Boulevard, was acquired by Respondent in July 2003, is a lube store and has been designated by Respondent as Store No. 1020 (1020 Store). Respondent leases the 1020 store from John Costa under a lease purchase agreement. At the time of their acquisition, both stores were in very poor condition, and Respondent made major repairs and improvements. The 1020 Store was in worse condition than the 1018 Store. Due to extensive renovations, the 1020 Store did not open for business until the beginning of August 2003. At the time Respondent acquired these two Ocala stores, neither store was earning a profit. The 1018 Store was barely breaking even and had monthly sales revenues dating back to June of 2002 of between $11,000 and $14,000 per month. These sales figures were based on a volume of about 350 cars per month and equated to a monthly ticket average of $28 per car. Prior to the acquisition by Respondent, the 1020 Store was doing even worse with a monthly sales revenue of between only $9,000 and $11,000. Since Respondent has taken over these stores, they have virtually doubled their total sales. Currently, Respondent's 1018 Store averages between $32,000 and $34,000 in monthly sales; whereas the 1020 Store has increased its monthly sales revenues by 30 percent. Respondent's normal and expected ticket average company-wide is between $47 and $50 per car. Immediately prior to Respondent’s acquisition of the two Ocala lube stores, Petitioner worked for Mr. Costa as the manager of what is now the 1020 Store. He was the manager of the store for three years and had several years of oil-changing experience. Another employee of Mr. Costa’s was a white male, Jason Yates, who managed what is now the 1018 Store. About the time of Respondent’s acquisition of the two stores, Petitioner went on vacation. When he returned, the 1020 Store was closed, so he went to the 1018 Store. As there had been a change in ownership, Petitioner applied to work for Respondent. He was offered and accepted a job as an oil changer and lube technician with Respondent and began work at the 1018 Store. Mr. Yates also was offered and accepted a position as an oil changer and lube technician with Respondent. Mr. Yates began employment with Respondent in June 2003 at the 1018 Store, several weeks before Petitioner began his employment with Respondent. Both Petitioner and Mr. Yates believed they were in training for a management position. However, there is not an official job title of "manager-in- training" within Respondent’s company. Hourly employees can receive on-the-job managerial training. In any event, there is no dispute that both Petitioner and Mr. Yates performed oil changing duties and that Respondent provided Petitioner with some managerial training during his employment. When Petitioner began working at the 1018 Store, Mark Shepherd was store manager and was responsible for training new staff with Respondent’s business practices and rules. Mr. Shepherd showed Petitioner how to run Respondent’s computer software programs, how to calculate money received, and how to open and close the store. Then Respondent transferred Richard Grant, an experienced store manager from Respondent’s Daytona Beach area, to manage the 1018 Store. Mr. Grant supervised Petitioner for a couple of months before Mr. Grant voluntarily resigned due to what he described as the pressure associated with running the 1018 Store. Petitioner was given on-the–job training with respect to making sales and greeting customers. According to Mr. Grant, Petitioner was not good at greeting customers or making sales because he was slow, quiet, and not out-going. Mr. Grant described Petitioner as having a poor attitude and always complained about the way Respondent did things and the operational changes since Respondent’s acquisition of the store. Respondent emphasized to Mr. Grant that it wanted its employees to be energetic, enthusiastic, and upbeat, and Mr. Grant felt that Petitioner did not have those characteristics. Mr. Grant repeatedly counseled Petitioner about wearing his safety glasses while at work, which was part of Respondent’s safety policy. Further, Mr. Grant counseled Petitioner on the importance Respondent placed on maintaining clean work areas. He described Petitioner’s work area as not clean and the worst "basement" (i.e., oil changing area) that he had ever seen. Larry Campbell is a regional or district manager for Respondent. This position is directly under the president of the company in the chain-of-command. Mr. Campbell oversees approximately a dozen lube stores and the car wash. He spent a great deal of time in the 1018 Store during Petitioner’s employment there. At one point, Mr. Campbell was asked by Mr. Grant if he should fire Petitioner. However, Mr. Campbell wanted to give Petitioner a chance to come around to Respondent’s way of doing business. Specifically, on a daily basis, he gave Petitioner the opportunity to greet customers, ring out tickets, work on the computer, work the clipboards, and conduct sales. However, Mr. Campbell also expressed similar concerns regarding Petitioner, to those of Mr. Grant. According to Mr. Campbell, Petitioner was quiet, slow, lacked energy and enthusiasm, was resistant to Respondent's ways of doing things, and would not smile or make eye contact with the customers. Although Petitioner received training on Respondent's procedures, he did not follow those procedures, even after being counseled by Mr. Campbell to do so. Petitioner also would not promote sales or specials that Respondent was offering to the customers despite being counseled to do so by Mr. Campbell. Mr. Campbell also described Petitioner as consistently displaying a bad attitude at work that got worse as the day progressed. As a regional manager, Mr. Campbell, along with Respondent's president and owner, Mr. Fowler, participates in the hiring of store managers. Respondent looks for positive, motivated, and enthusiastic individuals with leadership qualities; however, Mr. Campbell did not observe these qualities in Petitioner. Mr. Fowler also had occasion to observe Petitioner's attitude and work ethic at the 1018 Store. Like both Messrs. Grant and Campbell, Mr. Fowler found Petitioner to be quiet, stand-offish, and resistant to Respondent's way of doing things. Respondent's Business Philosophy and Practices Although both Mr. Costa and Respondent successively operated oil change businesses in the same two locations, the manner in which these two businesses were run was very different. Respondent has uniform standards to which all employees are required to adhere, regardless of whether they are responsible for sales, changing oil, greeting the customers, or ringing the customers out. Respondent has policies and procedures for how every position is to be performed. Respondent also has policies addressing how its employees will act, communicate, conduct themselves, and dress in the workplace. For example, employees are required to be well-groomed and wear clean uniforms with their shirt tails tucked in. Further, employees are specifically required to use certain commands and perform services in a certain order. By contrast, Mr. Costa's lube stores had no procedures or controls, no communications, no "echo system," and no standard methodology for servicing cars. In Respondent's business, efficiency is considered to be critical. As a result, Respondent strives to service each car in under ten minutes and places an emphasis upon its employees to "hustle" while on the job. In particular, Respondent has a "five second" rule, which mandates that its employees must greet a customer within five seconds of the customer's arrival. Respondent specifically trains its employees concerning not only how to work quickly, but also how to appear knowledgeable, friendly, and helpful to its customers. Unlike Respondent, the previous owner placed no such pressures on his employees. Similarly, Respondent has established a ticket average quota, which the previous owner did not. Respondent also has strict safety policies. These policies are reduced to writing and are reviewed with all of Respondent's employees. These safety policies have been approved by OSHA and all employees are expected to follow them. One such safety policy is the requirement that employees wear safety goggles or glasses at work. In Respondent's very competitive business, all employees, no matter what position they hold, are expected to exhibit an upbeat and enthusiastic attitude. Respondent’s philosophy is that a negative attitude can drain the efficiency of the work team at a store. Also, a positive attitude is considered important because each day, every employee of Respondent's has some customer interaction. Respondent believes that a positive attitude is so critical for its employees to have that it states on the first page of its Employee Handbook that: North Florida Lubes is committed to service excellence, quality control and employee personality. North Florida Lubes demands the highest standards from its employees, as the quick lube and car wash industries become more and more competitive every year. Over the years, North Florida Lubes has improved training methods, computer systems, equipment and service procedures to insure the highest level of employee and customer satisfaction. It is the philosophy of North Florida Lubes that well trained employees, with positive attitudes, will enjoy a long, fulfilling career with any company they choose to work for. At North Florida Lubes, we hope that you will enjoy your employment experience and that you will be involved with the growth of America's fastest growing Texaco Xpress Lube operator. Remember, a consistent positive attitude, dependability and personality will be your greatest assets in growing with North Florida Lubes. Respondent's Promotion of Other Employees to the Position of Store Manager. Respondent did not promise Petitioner that he would be promoted to a store manager position. Notably, Petitioner acknowledges that at the time he was hired by Respondent, that he had not yet learned Respondent's methods of operation. Petitioner also acknowledges at the time he was hired, the 1018 Store had both a store manager, Mark Shephard, and an area manager, Mike Dogherty, based there. Petitioner further concedes that Respondent never told him that he was not being considered for a managerial position because he was African- American. The determination of who is or is not qualified to be promoted to the position of manager of one of Respondent's lube stores is made by Messrs. Fowler and Campbell. Respondent's promotion policy states that if there are two or more employees whose qualifications are similar, seniority will be part of the selection decision, but the decision will not be made on that basis alone. It also clearly states that an employee must be qualified in order to receive a promotion and that if there are no qualified applicants within the company, the best qualified candidate will be chosen. In early August of 2003, Mr. Campbell transferred Mr. Yates to be the manager of the newly-opened 1020 Store. At the time, Mr. Yates had more seniority and experience working for Respondent than Petitioner did, as he had been working at the 1018 Store about a month-and-a-half longer than Petitioner. Mr. Campbell decided to place Mr. Yates in charge of the 1020 Store because he had achieved all of the goals Respondent was looking for. Specifically, Mr. Yates met Respondent's ticket average, he could operate the computer, and he followed Respondent's procedures. Mr. Campbell also described Mr. Yates as energetic and trying to apply himself. By contrast, Mr. Campbell found that Petitioner did not perform these same functions, despite being given numerous opportunities to do so and despite being given instruction as to what he was doing wrong. Mr. Campbell specifically counseled Petitioner while he was receiving on-the-job managerial training that he was not getting the job done. Ultimately, because of his poor attitude, lack of leadership skills, inability to meet Respondent's ticket average, and promote Respondent's products and services, Mr. Campbell, and ultimately Mr. Fowler, determined that Petitioner was not appropriately suited to be one of Respondent's store managers. Under Respondent's promotion policy, if there are no qualified applicants within the company to fill a vacancy, Respondent may look outside of the company to hire the best qualified applicant. This is what Respondent did with James Bailey when it determined Petitioner to be not qualified. After Mr. Grant resigned as manager of the 1018 Store in early October of 2003, Respondent hired James Bailey, a white male, to manage that facility. At the time Mr. Bailey was applying for this position, Messrs. Campbell and Fowler had already determined that Petitioner did not have the necessary qualifications to be one of Respondent's store managers. Upon making this determination, Mr. Campbell informed Petitioner that he was not suited to be one of Respondent's store managers. Mr. Bailey was interviewed by Mr. Campbell and then hired by Messrs. Campbell and Dougherty, with Mr. Fowler's approval. Prior to working for Respondent, Mr. Bailey had spent approximately eight years working for Denro Service Center as an automotive mechanic's helper. In that capacity, he performed oil changes, lube jobs, tune-ups and brake jobs in New York. Over the course of his employment with Denro Service Center, Mr. Bailey performed hundreds, if not thousands, of oil changes. Mr. Bailey also possessed approximately 15 years of managerial experience before coming to work for Respondent. In particular, he had managed a Subway Restaurant and a Kwik King Convenience Store, as well as the Denro Service Center. During the time he managed a Subway Shop, he doubled that store's sales and credits himself with driving the Miami Sub Shop across the street out of business. Since Mr. Bailey became the manager of the 1018 Store, the sales at that location have drastically increased. By following Respondent's system to the letter, the 1018 Store went from monthly sales of $13,000 in January of 2003 (i.e., when Costa owned it) to $35,000 in January of 2004. In addition to Messrs. Grant, Campbell, and Fowler, Mr. Bailey also had an opportunity to observe Petitioner while he worked at the 1018 Store. Mr. Bailey described Petitioner as being unmotivated, lackadaisical, stand-offish, unprofessional, and surly. According to Mr. Bailey, Petitioner spent more time at work on his personal cell phone than he did working on cars. Mr. Campbell insists that Petitioner's race played no role in the decision not to promote Petitioner. Mr. Campbell has promoted several African-American employees, including Michael Ghent and Marvin Freeman, to managerial positions in Respondent's operations. Mr. Campbell has also recommended another African-American for such a promotion, but that employee declined. Mr. Ghent has managed a store for Respondent for approximately nine years and asserts that he has never experienced anything which he considered to be racial discrimination from Mr. Campbell. Similarly, Mr. Freeman currently serves as a store manager for Respondent and has managed a total of four of Respondent's stores. Mr. Freeman is familiar with Messrs. Fowler, Campbell, and Dogherty and asserts that he has never been subjected to racial discrimination by any of these individuals. Further, Mr. Campbell recommended Mr. Freeman for a promotion which he received, and Mr. Freeman was hired back after he voluntarily left employment to work for another company. Respondent's Termination of Petitioner According to Mr. Campbell, Petitioner's attitude and work ethic declined further after Respondent hired Mr. Bailey. In particular, Mr. Campbell described Petitioner as always having a negative attitude and showed no interest in doing things the way Respondent wanted them done. Although Mr. Campbell spoke to Petitioner about his deteriorating attitude before he was terminated in an effort to allow him to change, Mr. Campbell did not observe improvement in Petitioner's work habits. On October 28, 2003, Respondent terminated Petitioner's employment. Although Messrs. Campbell, Dogherty, and Fowler were involved in the decision to terminate Petitioner, Mr. Fowler made the ultimate decision. The decision to terminate Petitioner was made because of Petitioner's: negative attitude, which was impacting Respondent's other staff; (b) unwillingness to learn Respondent's way of doing things; and (c) constant resistance to the changes Respondent implemented in the workplace. At the time of his termination, Petitioner had been given almost four months to turn his attitude and performance problems around, yet he had not done so to the satisfaction of Respondent. Petitioner's Allegations of Discrimination Petitioner initially claimed that three employees of Respondent, Messrs. Campbell and Dogherty, and Kathy Dogherty, are the individuals who discriminated against him on the basis of his race. Ms. Dogherty was the manager of the car wash facility which was also located at the 1018 Store. Petitioner alleges she made racially offensive comments to him. Petitioner acknowledges that store managers, Messrs. Shepherd and Grant, did not discriminate against him and now concedes that Mr. Dogherty did not make any racially derogatory remarks against him and did not articulate any other form of discrimination regarding Mr. Dogherty. Ms. Dogherty did not testify at the hearing. Accordingly, any alleged statements by her are hearsay and are not sufficient in itself to support a finding of fact as contemplated by Subsection 120.57(1)(c), Florida Statutes. Petitioner asserts that Mr. Campbell made two racially discriminatory remarks about him. On one occasion, Petitioner alleges that Mr. Campbell stated that he (Petitioner) made more money on his cell phone than he did working for Respondent. Petitioner never heard Mr. Campbell make this statement nor did he ever confront Mr. Campbell about the statement, after learning of it, to ascertain what Mr. Campbell may have meant by it, because he "didn't want to rock the boat." Instead, this statement was overheard by Mr. Yates, who perceived Mr. Campbell to mean that because Petitioner was African-American, he must be selling drugs on his cell phone. Mr. Yates admitted, however, that Mr. Campbell did not say anything about Petitioner's race when making this statement and that he did not know what Mr. Campbell's intent was in making this statement. Mr. Yates further conceded that he witnessed Petitioner on his cell phone at the time Mr. Campbell made this statement and that Petitioner, who was being paid an hourly wage, was talking on his personal cell phone while on company time. Mr. Yates also acknowledged that Respondent had a policy in its Employee Handbook restricting the receipt of personal calls while at work. Mr. Campbell acknowledges making the statement that Petitioner made more money on his cell phone than he did working for Respondent, but denies that he intended any racially derogatory connotation or that he was implying Petitioner was dealing drugs. According to Mr. Campbell, Petitioner spent an inordinate amount of time on his cell phone attending to personal business while on company time, instead of performing work; thus, what he meant to convey was that Petitioner was being paid by Respondent to be on the phone instead of performing his job. Petitioner's cell phone usage while at work was frustrating to Mr. Campbell because it was not productive, it caused a distraction in the workplace, and it was contrary to Respondent's personal phone call policy. Mr. Campbell was not the only one of Petitioner's supervisors to remark about Petitioner's excessive cell phone usage at work. Mr. Bailey asserted that Petitioner spent more time talking on his cell phone than he did working on cars and that Petitioner was on his cell phone while draining oil from the customer's cars. Similarly, Mr. Grant noted that Petitioner used his cell phone while on company time "quite a lot." Respondent's Quarterback Rating System is a percentage-based rating system for Respondent's managers similar to the system used in the National Football League (NFL) for rating quarterbacks and consists of four rating categories: meeting the monthly sales quota; (2) meeting the agreed-upon ticket average; (3) servicing a certain number of cars per month; and (4) not exceeding the labor cap. Petitioner alleges that once while explaining Respondent's Quarterback Rating System, Mr. Campbell instead talked to him about a basketball analogy so that Petitioner could understand it. Mr. Campbell, while acknowledging talking about basketball and other sports to Petitioner, denies ever making such a comment and further states that he cannot envision how to explain Respondent's Quarterback Rating System via a basketball analogy, because it is distinctly based upon the game of NFL football (which has a quarterback) and is not comparable to the game of basketball (which does not have a quarterback and does not use a similar rating system). After weighing the credibility of the witnesses, the undersigned finds Mr. Campbell's explanation of any basketball reference to be credible and such explanation is accepted. Petitioner acknowledges that he never complained to Mr. Fowler about any racial remarks or discrimination at any time during his employment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 14th day of January, 2005, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 14th day of January, 2005.
The Issue Whether or not on or about the 6th day of May, 1976, on the Respondent's licensed premises located at 5916 Phillips Highway, Jacksonville, Florida, the Respondent, its agent, servant or employee, one Patricia Stevenson Jordan, did unlawfully engage in open and gross lewd and lascivious behavior with a male customer, one Mark Thomas Finch, by dancing in a topless manner while rubbing her buttocks on his leg and groin area and allowing him to kiss her breasts, in violation of Section 798.02, F.S. thereby violating Section 561.29, F.S.
Findings Of Fact At all times material to the allegations found in the amended Notice to Show Cause, the Respondent, G and B of Jacksonville, Inc., trading as Climax, located 5916 Phillips Highway, Jacksonville, Florida, was licensed under License No. 26-780, Series 4-COP held with the State of Florida, Division of Beverage. On May 6, 1976, one Patricia Stevenson Jordan, was serving as an employee in the capacity of a dancer for the Respondent in its subject licensed premises. During a period of ten to fifteen minutes while dancing topless for a patron, Mark Thomas Finch, she did allow Finch to kiss her breasts and rub her buttocks against his leg from side to side while he was seated in a chair. No attempts were made by the other employees in the bar to stop the action between Jordan and Finch, and neither Jordon nor Finch made any attempts to cease their activities.
Recommendation It is recommended that the license of the Respondent, G and B of Jacksonville, Inc., trading as Climax, license no. 26-780 be suspended for a period of 75 days to run concurrently with the sentence in Division of Administrative Hearings' Case no. 76-1983. DONE AND ORDERED this 18th day of April, 1977, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Charles Tunnicliff, Esquire Division of Beverage Department of Business Regulation The Johns Building 725 Bronough Street Tallahassee, Florida 32304 Harry Katz, Jr., Esquire 337 E. Forsyth Street Jacksonville, Florida 32202
The Issue The issue is whether, in violation of section 760.08, Florida Statutes, Respondent deprived Petitioner of full and equal enjoyment of Respondent's bar and restaurant due to discrimination based on Petitioner's nation of origin, which is Brazil.
Findings Of Fact Petitioner is a native of Brazil. He is fluent in English and Portuguese, which is the national language of Brazil. Respondent owns and operates Duffy's Sports Grill in Coconut Creek, Florida (Duffy's). Duffy's is a place of public accommodation serving food and beverages, including alcoholic beverages, to customers who may be seated indoors or outdoors. There is no indication of any difference in the availability of food and beverages between the indoor and outdoor area, but the outdoor area offers customers the option of smoking. At all material times, Petitioner was a member of the Duffy's MVP Club, which awards points for purchases, evidently to be used for future purchases. Records of Petitioner's MVP Club activity reveal nearly 50 visits to Duffy's from June 2013 through the summer of 2016. Petitioner agreed that he had been to Duffy's many times, invariably sat outside so he could smoke, and was often served by bartender, Kevin Carr. Petitioner also testified that, on many of these visits, he was in the company of Brazilian friends, who had spoken Portuguese while being served by Mr. Carr, and there had never been any problems. It is thus clear that Petitioner enjoyed Duffy's outside bar, and the retail relationship between Petitioner and Mr. Carr was functional and met with the general satisfaction of the bartender and the customer. Late in the afternoon of Friday, September 15, 2017, Petitioner visited Duffy's with his cousin, who is from Brazil. During this visit, Petitioner and his cousin sat at the outside bar and generated a tab of about $60 consisting of three or four beers each and a shared appetizer. Petitioner denied that he and his cousin ever reached a state of crapulence, but they clearly consumed enough alcohol to lower their conversational inhibitions. At one point, the cousin tried to place an order with Mr. Carr, but felt that Mr. Carr had ignored him. The cousin and Petitioner had previously noticed a sewer smell, possibly emanating from a nearby waste line, which may have put the cousin in a foul mood about his Duffy's experience. In any event, feeling slighted by Mr. Carr, the cousin said to Petitioner in Portuguese that the service was "unprofessional." It is unclear what Petitioner said, but, in short order, the cousin added that Mr. Carr was a "piece of shit," and a female bartender was a "prostitute." These latter comments will be referred to as the September 15 Vulgarities. As luck would have it, seated beside Petitioner was Caluvio Ferreira, who is Brazilian and fluent in Portuguese and English; a friend of Mr. Carr, whom he has visited at his home; and a high-minded man who is unafraid to confront others who fail to meet his standards of conduct and speech. Having suffered in silence the loud speech of Petitioner and his cousin, upon hearing the September 15 Vulgarities, Mr. Ferreira immediately left the bar to go to the restroom. As he returned to his seat at the bar, he paused beside Petitioner and his cousin and advised them to be careful about what they said because someone could understand them, even speaking Portuguese. Mr. Ferreira added that he knew Mr. Carr, his wife, and their daughter and had been to their home, and he knew the female bartender. Mr. Ferreira declaimed that Petitioner and his cousin had no right to make the comments that they had made about Mr. Carr and the female bartender. Petitioner replied that they had had bad service. Mr. Ferreira answered that bad service did not excuse their crudities, but should be brought to the attention of the manager, who would address it. Obviously angry, Mr. Ferreira, who is a large man, warned the men, "I hope you don't do that again. Maybe I'll have a problem with you." At this point, Petitioner cashed out, and he and his cousin left the premises. Having seen his friend speaking angrily to Petitioner and his cousin, Mr. Carr approached Mr. Ferreira a few minutes later and asked him what that had been about. Mr. Ferreira told Mr. Carr that Petitioner had spoken the September 15 Vulgarities. Petitioner has credibly denied making the statements, and it would seem more likely that they would come from his cousin, who had felt slighted by Mr. Carr, than Petitioner, who was a regular customer of Mr. Carr. It is likely that Mr. Ferreira was mistaken as to which of the men seated next to him made the statements, but Mr. Carr reasonably believed, based on what his friend had told him, that Petitioner had insulted him and his coworker. Ten days later, Petitioner reappeared at Duffy's. He was in the company of two friends, one of whom lived in Brazil. They took seats at the outside bar, but no one served them. Having seen Petitioner approaching the outdoor bar, Mr. Carr had gone inside to speak to the manager. After recounting the September 15 Vulgarities, Mr. Carr asked for permission not to serve Petitioner, and the manager granted the request. Mr. Carr asked whether he or the manager should inform Petitioner, and the manager said Mr. Carr should. Authorized to deny Petitioner service at the outside bar, Mr. Carr approached the party and loudly denounced Petitioner for having spoken badly about him in his "shit language," meaning Portuguese. Mr. Carr identified the September 15 Vulgarities, which Petitioner denied having spoken. Mr. Carr demanded to know what exactly Petitioner had said, but Petitioner never admitted that he or his cousin had said anything of the sort. During this exchange, Mr. Carr angrily repeated the word "shit," although in other contexts not having anything to do with Petitioner's national origin. The initial vulgar reference to Portuguese will be referred to as the September 25 Vulgarity, and all of the vulgarities spoken by Mr. Carr will be referred to cumulatively as the September 25 Vulgarities. Realizing that Mr. Carr was adamant, Petitioner went inside and appealed to the manager, who backed his bartender, but offered to seat Petitioner and his friends inside. Petitioner declined and left the premises.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 5th day of February, 2019, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 5th day of February, 2019. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission of Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Cheyanne Costilla, General Counsel Florida Commission of Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Christopher Donnelly, Esquire C.J. Donnelly Law Offices PLLC 3020 Northeast 32nd Avenue, Unit 803 Fort Lauderdale, Florida 33308 (eServed) Jennifer A. Schwartz, Esquire Arielle S. Eisenberg, Esquire Brandon U. Campbell, Esquire Jackson Lewis PC One Biscayne Tower, Suite 3500 Two South Biscayne Boulevard Miami, Florida 33131 (eServed) Joao Fonseca 3020 Northeast 32nd Avenue, Unit 803 Fort Lauderdale, Florida 33308 Mark Rouleau Duffy’s Sports Grill 1926 10th Avenue North, Suite 300 Lake Worth, Florida 33461
