The Issue Whether the violations alleged in the Administrative Action, as amended, were committed? If so, should Respondent be held responsible for these violations? If so, what penalty should be imposed against Respondent?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is now, and has been at all times material to the instant case, the holder of alcoholic beverage license number 60-00602, Series 4-COP issued by the Department. The licensed premises is Club Diamonds (Club), an adult entertainment establishment located in West Palm Beach (at 1000 North Congress Avenue) that features scantily clad female dancers.1 Patrons of the Club are served in two main areas: at the bar and at tables that are located between the bar and the stage area where the dancers perform to recorded music played by a DJ stationed in an elevated booth. On the north and west ends of the Club are partitioned areas with couches (Partitioned Areas). After receiving an anonymous complaint concerning the Club, the Department began an undercover operation at the establishment in which Special Agent John Murray and others participated. In his undercover capacity, Special Agent Murray visited the Club on three occasions during its normal business hours when there were other patrons, as well as Club employees (including dancers, at least one bartender/barmaid, a waitress, and a DJ) present. These visits were made on May 27, 1998, June 2, 1998, and June 6, 1998. On each visit, Special Agent Murray was approached by a dancer at the Club ("Faith" on May 27, "Riley" on June 2, and "Memphis" on June 6), who, after ascertaining that he was interested in a "private dance" for $20.00, escorted him to a couch in one of the Partitioned Areas on the north and west ends of the Club, sat him down on the couch, and spread his legs apart. The dancer then positioned herself between Special Agent Murray's legs and took off her top. Wearing only a thong-style bikini (G-string) bottom (which left her buttocks exposed), the dancer proceeded to perform for a fully clothed Special Agent Murray what is commonly referred to as a "lap dance." During the course of the "dance," the dancer, to the rhythm of the music, provocatively rubbed her bare breasts against Special Agent Murray's face and (while on his lap) rhythmically grinded her (covered) crotch area against his in a manner designed to simulate sexual intercourse and to sexually arouse Special Agent Murray. The "lap dance" lasted approximately the length of a song being played by the DJ over the Club's sound system. Following the conclusion of the "lap dance," Special Agent Murray paid the dancer $20.00. While at the Club, Special Agent Murray witnessed other patrons receive "lap dances" from the Club's dancers. Although the "lap dances" that Special Agent Murray and other patrons of the Club received were given in an area of the Club with "subdued" lighting (in contrast to the stage area, which was brightly lit), there was sufficient lighting for others in the Club at the time, including other employees, to observe these "lap dances," which were performed in an open and notorious manner in plain view. At no time did any employee of the Club make an effort to stop these "lap dances." Indeed, the DJ made comments to the patrons over the sound system encouraging them to purchase "private dances" from the Club's dancers. Although Respondent's officers and shareholders may not have been present on the premises during the May 27, 1998, June 2, 1998, and June 6, 1998, undercover operations, given the persistent and repeated instances of "lap dancing" engaged in by the dancers working at the Club, the inference is made that Respondent either fostered, condoned, or negligently overlooked these flagrant acts of indecency, which were patently offensive, lacked any serious artistic value and that the average person, applying contemporary community standards, would find, taken as a whole, appealed to prurient interests. On June 9, 1998, Special Agent Murray returned to the Club. On this occasion, however, he identified himself as a Special Agent for the Division. After doing so, he provided the Club's management with a written notice of the Department's intention to file administrative charges against Respondent based upon the conduct he had observed during his previous three visits to the Club. At no time prior to this June 9, 1998, visit had Special Agent Murray informed the Club's management that the Department had any concerns regarding activities taking place at the Club. Administrative charges were filed against Respondent on June 16, 1998. In September of 1998, Respondent hired a new general manager, Jorge Courts, to run the Club. Mr. Courts has taken measures reasonably calculated to prevent the reoccurrence of the inappropriate conduct that Special Agent Murray observed on his May 27, 1998, June 2, 1998, and June 6, 1998, visits to the Club.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order finding Respondent liable for the violations alleged in the Administrative Action, as amended, and penalizing Respondent therefor by imposing an administrative fine in the amount of $1,000.00. DONE AND ORDERED this 16th day of March, 1999, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 16th day of March, 1999.
Findings Of Fact Respondent grew up in Havana, Cuba and was a university student there when Castro came into power. As did most university students, Respondent initially supported Castro but later became disenchanted with the regime. Respondent became interested in photography as a boy and became proficient to the point he sold photographs to the news media and helped defray the expense of his medical training through photography. Following the Bay of Pigs Invasion, Respondent smuggled out of Cuba photographs of the Russian missiles that had been delivered to Cuba. Respondent acknowledged that he took all of the photographs and videotapes entered into evidence in these proceedings. At all times relevant hereto, Respondent was licensed as a physician by the Florida Board of Medical Examiners. He graduated from medical school in Madrid, Spain in 1964, completed his internship at Johnson Willis Hospital, Richmond, Virginia, in 1965, and his residency in psychiatry at the Menninger School of Psychiatry, Topeka, Kansas in 1968. Respondent came to Naples, Florida in 1969 as Director of Collier County Mental Health Clinic which post he held for several years before devoting all of his time to his private practice. Respondent was married in 1962, and divorced in 1978. He is the father of three children. His two older daughters are working on advanced degrees while the younger son is entering high school. Following his divorce Respondent concluded that by marrying at a young age, he had perhaps missed out on much of life and decided to try a more libidinous life-style. In 1980, Respondent became attracted to a 19-year old licensed practical nurse who was working at Naples Community Hospital. Although he saw her several times in the hospital, they did not engage in conversation but made eye contact in passing each other. In October 1980, another doctor referred a patient who had suffered head injuries in a motorcycle accident to Respondent for treatment. This patient, Joseph DiVito, was seen in the hospital several times by Respondent and again after DiVito was released from the hospital. At the first hospital visit with DiVito, Respondent was surprised to see Laura Hodge, the LPN at Naples Community Hospital, whose eyes had attracted Respondent. She was the woman with whom DeVito was living at the time of his accident. The charges in the Administrative Complaint involving Laura Hodge are sustained only if a doctor-patient relationship existed between Respondent and Hodge. The doctor patient relationship, if it existed, was related solely to the treatment provided DiVito. Hodge testified that she was counseled by Respondent jointly with DiVito and also alone; that Respondent gave her the drug Artine to give DiVito in the event he suffered a reaction from the drug Haldol, which was given DiVito to aid in his memory loss; that after his release from the hospital DiVito was like a baby who had to be taught to feed himself, to walk, and to get around; that she had lunch with Respondent twice, once at Keewaydin Island, where they went by Respondent's boat, and once at a restaurant in North Naples; that following the lunch she felt dizzy and does not remember removing her clothes at her apartment when returned there by Respondent and having pictures taken of her; that after being shown nude photographs of herself, she was afraid of Respondent and feared he would show the pictures to DiVito; that she Accompanied Respondent on an overnight trip to Miami where they shared a motel room; that they went to dinner at a caberet where she drank some wine and began feeling strange; that when they returned to the motel that night, she does not remember anything until the following morning when she awoke upset and began crying; and that Respondent then drove her back to Naples. Shortly thereafter, Hodge left Naples with DiVito and went to Panama City where DiVito operated a boat leasing business during the summer of 1981. She returned to Naples that fall but had no further contact with Respondent. Respondent testified that he was surprised to see Hodge the first time he went to DiVito's room in the hospital; that Hodge told him that she didn't want to stay with DiVito; that the principal person who took care of DiVito when he was released from the hospital was his brother, William DiVito; that DiVito had been a very active man and was anxious to leave the hospital before he was physically ready to do so; that he was ambulatory, could feed himself and his principal problem was loss of memory; that Hodge was never his patient; that they had lunch twice, once at Keewaydin Island and again at a restaurant in North Naples; that both of these times Respondent took numerous photographs of Hodge and gave them to her; that following the lunch and picture-taking at Vanderbilt Beach (North Naples) he drove her to the apartment she had just moved into; that he visited her at this apartment at a later date and while she changed clothes, he took pictures of her in various stages of undressing; that he showed her these pictures after they had been developed; that she accompanied him to Miami where they shared a motel room and went out to dinner; and that they returned to Naples the following day because Hodge was upset. Photographs of Hodge which were admitted into evidence are of a person who appears fully aware that she is being photographed and in many of the pictures appears to be posing. Haldol, the drug given DiVito, can cause an epileptic type reaction; however, the treatment for this reaction is by injection and not orally because of the time it takes oral ingestion to work. The testimony of Hodge respecting Respondent entrusting to her the Artine tablets to place in DiVito's cheek if he had a reaction to the Haldol is less credible than is the testimony of Respondent. Although Respondent saw Hodge when he was treating DiVito and talked to the two of them, he did not thereby make Hodge his patient. Furthermore, no credible evidence was presented that Respondent surreptitiously gave Hodge any drug which could cause her to not remember the taking of the nude photographs. Her coordination and awareness shown in those photographs belie the contention that she was drugged. Diane Beck, R.N., arrived in Naples in 1981 and worked as a nurse at Naples Community Hospital where she met Respondent. After declining several dates with Respondent, Ms. Beck accepted an offer to go scuba diving from Respondent's boat. This involved a weekend trip to the Florida Keys on the boat and they had sex over this weekend. Respondent also took some nude photographs of Ms. Beck with her consent. Evidence presented to establish a doctor-patient relationship between Respondent and Beck included one instance where, following a D & C on Beck, the gynecologist asked Respondent if he had Tylenol #3 which Beck could take if needed for pain. When Respondent replied in the affirmative, the gynecologist did not write a prescription for medication for Beck. Although Beck testified that while they were living together, Respondent gave her Darvocet, Motrin and Tylenol #3 for dismenorreah from which she chronically suffered, Respondent denied prescribing these medications for her. The most likely scenario in this regard is that Respondent had such medication available in his home and Beck took them in accordance with instructions previously received from her gynecologist. This did not create a doctor-patient relationship between Respondent and Beck. Respondent prescribed benzodiasepines to many of his patients as a tranquilizer and sleeping pill. During the period December 1981 and October 1982 the Upjohn representative (detailer) whose territory included Respondent's office, gave Respondent 465 Xanax tablets as samples. Xanax is a benzodiasepine and the Xanax tablets were .25 mg and .5 mg in strength. The Upjohn company detailer who serviced the Naples area between October 1982 and June 1984 did not testify and no record of benzodiasepines left as samples with Respondent during this period was available at the hearing. Records of those drugs are maintained by Upjohn for the current year and two preceding years only. At the time of this hearing, the earliest record Upjohn had of drugs dispensed to physicians was January 1, 1985. Around November 1982, Upjohn came out with a benzodiasepine called Halcion. This drug was left with Respondent by detailers as samples. Halcion is packaged in sleeves with two tablets in a sleeve. Generally when Halcion is left as a sample, the box contains five sleeves with two tables per sleeve. Halcion has advantages over some other benzodiasepines that it works quickly, the effects wear off quickly and it leaves no hangover effect. Furthermore, the patient may have a memory lapse for the time sedated with Halcion. Use of Halcion is contraindicated by a woman of childbearing age because the drug can adversely affect and cause deformities in a fetus in the early stages of development. Halcion (as well as other drugs) may be obtained by a physician in a stockbottle which generally consists of 100 tablets in a square bottle with a round top. To obtain a stockbottle the physician places his order with the detailer, signs the appropriate FDA forms, the detailer sends the order to his area office and the stockbottle is mailed directly to the physician. No credible evidence was presented that Respondent ever obtained a stockbottle of Halcion from Upjohn. When benzodiasepines are taken in conjunction with the ingestion of ethyl alcohol, the effects of both are enhanced. Hence, there is a danger in taking sedatives while drinking alcoholic beverages. Alcohol alone is a sedative and it is quickly absorbed in the soft tissue such as the brain. When a benzodiasepine is taken at the same time ethanol is being ingested, the alcohol provides a vehicle which allows the benzodiasepine to be more quickly absorbed into the body. While Diane Beck was dating and living with Respondent, several videotapes were made of her and Respondent engaged in various sexual activities. Ms. Beck acknowledged that she voluntarily participated in some of these videotapes but that she was unaware that others were taken. She has no recollection that some of the tapes were being made, nor did she subsequently (before the charges here considered first arose) learn of these videotapes. In those tapes, Beck had been administered Halcion by Respondent without her knowledge or consent. This finding is based upon the following facts: Respondent told Beck he had given her a lot of Halcion. When Beck became pregnant by Respondent in mid-1983, Respondent told her of potential dangers caused by the use of Halcion and suggested she have an abortion. An appointment was made by Respondent with Dr. McCree, a gynecologist, to perform the abortion and on July 11, 1983, Dr. McCree performed a D & C on Beck, aborting the fetus. On one or more occasions Beck observed what appeared to be residue in her after dinner drink, and on at least one occasion asked Respondent about it. Respondent told her it was sugar from the old brandy she was drinking. Respondent acknowledged that he often performed sexual acts on Beck while she was "passed out" and unaware of what he was doing. However, he contended she enjoyed it and had given him permission. The videotapes of a comatose female being shifted around by Respondent to improve the angle for the pictures being taken. This does not appear to be a person merely intoxicated, certainly not one intoxicated with ethanol. This person is as limp as a rag with all muscles appearing to be totally relaxed who is certainly oblivious to what is going on. It is not believed a person merely intoxicated (unless dead drunk) could be moved and manipulated the way Beck was without some reaction. Had Beck been dead drunk, she would perhaps still be intoxicated when she awoke and/or be hung over. Neither of these events occurred. Respondent's steady relationship with Beck terminated in April 1984 after the date for a wedding could not be agreed upon. She moved out of his house but they remained on friendly terms until the existence of the videotapes became known. The third complaining witness, Sandi Karppi, met Respondent in June 1984 on the beach in Naples. At the time Ms. Karppi was an LPN on private duty with a patient where she had one hour off in the late afternoon which she used to walk on the beach. One day while walking along the beach, she was followed by Respondent who was attracted to the energy with which she walked. Respondent overtook her and engaged her in conversation. During the conversation Respondent disclosed his name and that he was a psychiatrist. Ms. Karppi disclosed to him that she had a pap smear taken which was suspicious, that a second test had been done, and she was anxious to obtain the results but her doctor did not return her calls. Respondent volunteered to obtain the results of the later test and inform her. Karppi told Respondent that she walked the beach almost every afternoon and Respondent began visiting the beach to meet her during her hour off from her nursing duties. A short time after the first meeting Respondent called Karppi to tell her that he had the results of her lab test and offered to take her to dinner to give her the results. She consented. Thereafter he continued to meet her on the beach and engage her in conversation. Respondent's version of the timing of the initial events of their relationship is a little different from the version testified to by Karppi; however, these differences are not material to the issue here presented. Respondent testified that Karppi told him of her problems with the pap smear test several days after their first meeting and that he agreed to get the results of the tests. Dr. King advised Respondent obtaining the results of the pap smear and passing them to Karppi. During the meetings on the beach and on boat trips Karppi took on Respondent's boat, Respondent took numerous photographs of Karppi. On one occasion, they went on an overnight trip to Keewaydin Island with Respondent's son Eric and a friend of Eric. The two boys slept in a tent on the beach leaving Karppi and Respondent on the boat. On another occasion they went alone on the boat to Captiva Island where they spent the night on board. Karppi testified that she went to sleep fully clothed while at Keewaydin Island in a bunk bed on one side of the cabin with Respondent in another bed and when she awoke, she was naked. Nude photographs of Karppi in a comatose state are contained in Exhibit 1. Karppi never consented to having her picture taken in the nude. Respondent's version of the nude photographs is that he frequently talked to Karppi about taking nude photographs but she never consented, saying only that maybe she would allow the photographs if out of town or if she was tipsy. Respondent contends these photographs were taken while they were at Captiva Island with only the two of them on the boat and that Karppi drank a lot of wine and passed out. He then disrobed her and took the photographs. Respondent contends he gave Karppi no drugs before she passed out. However, it is concluded that Karppi was given some sedative along with the wine she drank. This conclusion is based upon the following facts: Respondent had access to Halcion, Xanax, Tylenol #3, and other drugs that could induce coma. Respondent had used such drugs on Diane Beck and was aware of the potential for use of these drugs. In order to take some of the photographs in Exhibit 1, Karppi had to be moved around enough to awaken one who was just sleeping or only sleeping off ethanol induced sleep. Some of the actions of Respondent as depicted in these photographs would have awakened or aroused one who was not fully comatose. Karppi has no recollection such photographs were ever taken, though she was sober and had no hangover the next morning. Subsequent to the boat trips Respondent took a vacation during most of the month of July during which he travelled to Europe and the Caribbean. Upon his return to Naples, he renewed his courtship with Karppi and she moved into his home August 26, 1984, the day after Respondent's oldest daughter returned to college. Respondent's testimony that they first had sex that night which Karppi spent in his bedroom is not disputed by Karppi. If they engaged in sex before that time, Karppi was unconscious and unaware of it. During part of the time Karppi stayed at Respondent's home and shared his bedroom, her mother also visited and slept in another bedroom at Respondent's home. This relationship terminated around September when Karppi moved into her own apartment. She and Respondent remained friendly and saw each other occasionally. One night in late December 1984, Karppi called Respondent from the hospital to tell him she had a headache and to ask him to prescribe some medication for her. After learning that Karppi had tried without success to get her doctor on the telephone and that her doctor had prescribed Cafergot for her headaches, Respondent called in a prescription to the hospital pharmacy to give 4 Cafergot tablets to Karppi. The label from the bottle dated December 29, 1984 was admitted as Exhibit 16. In early January 1985, Respondent went to Vail, Colorado, with another woman and Karppi offered to stay at his house with Respondent's elderly mother while he was gone. He agreed and Karppi moved in. While looking for a book in Respondent's bedroom closet, Karppi discovered the nude photographs of her which were admitted into evidence as Exhibit 1. Having no recollection these pictures had been taken, she was quite shocked and called Respondent at his hotel in Vail. He told her to be calm and they would discuss the matter when he returned. Following a more extensive search, Karppi found numerous other photographs of naked women as well as several videotapes. Karppi contacted her doctor for advice, and he referred her to an attorney who in turn referred her to the State Attorney's Office. At the State Attorney's Office, she produced the photographs of herself she had removed from Respondent's residence and her affidavit was taken. On the basis of Karppi's affidavit and the photographs, a search warrant was obtained and on January 11, 1985, a search of Respondent's home was conducted. During this search, Exhibits 1 - 16 were seized. Subsequent to the conclusion of the hearing, those exhibits unrelated to any individual involved in these charges which were objected to at the hearing were not admitted into evidence as having no relevance to these charges. Following the search of Respondent's residence, criminal charges were brought against Respondent in the Circuit Court in and for Collier County alleging sexual battery and administering drugs to Karppi without her knowledge or consent. Respondent was acquitted of those charges.
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 Whether Elizabeth Stuglik ("Respondent" or "Stuglik") committed the violations alleged in the Amended Administrative Complaint dated August 9, 2010, and, if so, whether such violations are just cause for any discipline against her license.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Stuglik holds Florida Educator’s Certificate No. 1052905, covering the area of Foreign Language Spanish, which is valid through June 30, 2012. She graduated from college in May of 2007 with a Bachelor's of Science in secondary Spanish education from Indiana University. At all times material to this proceeding, Stuglik was employed as a Foreign Languages Spanish teacher at H.L. Watkins Middle School (Watkins) in the Palm Beach County School District. (School District). Her employment at Watkins was for the 2007-2008 and 2008-2009 school years. Stuglik started her teaching career during the 2007- 2008 year. Respondent taught seventh and eighth-grade Spanish. Her classroom was located in the chorus room in a stand-alone building apart from the main school building, across the courtyard area connected to the cafeteria. Stuglik's chorus room was adjacent to Heath Miller's ("Miller") classroom. He was the band teacher. An office divided the two classrooms, which both teachers shared. The shared office had two doors, and each was for entrance into the two classrooms. Each door had the capacity to be locked from the classroom side. The classroom doors could be opened from the office side, even though the classroom doors were locked from the classroom side. Miller and Stuglik saw each other on a daily basis. Stuglik felt that Miller started out their relationship by approaching her as a mentor, offering to assist her with anything she needed including discipline of the students. In the second or third week of school during August 2007, Miller told Stuglik that it was too bad she was married because it would be fun if they could get together. Stuglik failed to respond to the comment. She thought it was his way of being polite and giving her a compliment. Miller made other inappropriate unprofessional related comments to Stuglik afterwards and she never told him the comments were personally offensive or to stop. Miller also tried to grab Stuglik's buttocks quite of few times. The first time was in the shared office. Miller told Stuglik that he and his wife had an open marriage, and that his wife allowed him to have multiple sexual partners. As Respondent admitted in her deposition, Respondent had sex with Miller either three or four times at Watkins. Each time Miller took Stuglik by the hand without protest, took her to the storage room, undressed her by unfastening the top portion of her pants, lowered her pants and then she would cooperate with him by having providing sexual intercourse. Each sexual liaison Stuglik had with Miller was consensual.1 Neither Stuglik nor Miller used protection such as a condom, during sexual intercourse. Stuglik admitted that she wasn't concerned about getting pregnant because she was on birth control. The first sexual encounter took place one morning in September 2007. Miller went in Respondent's classroom before school while she was sitting at her desk, grabbed her hand, and led her "not in a hard manner" without protest to the storage room. Respondent also failed to resist when Miller undid her pants by undoing the buttons, took off her pants with her underwear, and she stepped out of her pants. Respondent, who was naked from the waist down, mounted Miller, who was sitting in a chair with his penis exposed, for the sexual act and hugged him as he instructed during sex intercourse.2 Respondent's response to Miller's actions while they engaged in sex were, "I'm married; I don't believe in this." And, "That's you; that's not me; I'm married; I don't do that." She never told him to stop what he was doing.3 Stuglik put on her clothes after sex with Miller and returned to her class and taught that day. Miller never threatened Stuglik or physically tried to harm or force her to have the sexual liaisons. At no time, did Stuglik refuse, fight, yell, or pull away forcefully during the encounters. Stuglik paused during a sexual liason but never said no or attempted to stop it. Stuglik also testified to a second sexual encounter with Miller. She admitted that several weeks later Miller got to school early again, grabbed Stuglik's hand, and led her back to the storage room where the two of them had sex again without any conversation. Respondent testified that she didn't say anything because she didn't know what was going to happen. At least a third sexual encounter occurred between Stuglik and Miller at either the end of October or the beginning of November. After the 2007 Thanksgiving break, Stuglik did not have sex with Miller again. Respondent never reported any of the sexual encounters with Miller to anyone until April 27, 2009. During the summer of 2008,, Respondent's husband divorced her. During Stuglik's 2008-2009 school year, Respondent taught sixth, seventh, and eighth-grade Spanish. She moved to a different classroom, the general music classroom, in the same music building. Stuglik was provided a key to the classroom that provided a lock for the door, which prevented anybody from entering the classroom without her allowing the individual inside. The principal informed Stuglik that Miller had asked for a key to her room, stating that he needed access to the storage room. The principal provided the option to Stuglik as to whether she provided Miller the key to Stuglik's classroom. Studlik requested that the principal provide Miller a key, which allowed Miller access to her classroom. Several times during the 2008-2009 school year, while Stuglik was working at her desk, Miller approached Respondent, sat on the desk in front of her, and put her hand on his penis. Each time he placed her hand there, he would say, "Let's do it again." During her second year teaching at Watkins, Stuglik volunteered to help with Miller's band activities on weekends and during the evenings, including going on field trips every couple of months or so. Respondent's social relationship continued with Miller and his wife. Stuglik had a discussion with Miller's wife regarding children. Miller's wife informed Respondent that she badly wanted to have a baby. Stuglik also initiated contact with Miller during the 2008-2009 school year and requested concert tickets from him after she heard he could get discounted tickets to see a show. Stuglik obtained the tickets by getting them from Miller's wife. Stuglik took her boyfriend to the concert for Valentines Day. She and her boyfriend sat next to Miller and his wife at the concert. Stuglik attended the Waterway Cafe, a restaurant bar, and socialized with a group of teachers including Miller and his wife. She went there several times. Stuglik had K.H. and T.B. in her second period class and, A.P. in her sixth-period class during the 2008-2009 school year. Miller would ask that K.H., the drum major, and T.B. come to his classroom from out of Stuglik's class. She would allow the female students to leave during her class core time and go with Miller. Other teachers also allowed Miller to remove female students from their classrooms during class and take them to his class. Approximately at the beginning of April 2009, Miller informed Respondent and several other teachers at lunch that there was a rumor that he was involved sexually with students. Respondent was shocked to hear the rumor and did not believe Miller would harm students. On or about April 16, 2009, district officials started an investigation into allegations that Miller had an inappropriate sexual relationship with a female student during the 2008-2009 school year. On Friday, April 17, 2009, K.H. came to Respondent's class crying and upset. Respondent had her step outside and wait while she took attendance. When Stuglik went in the hall to check on K.H., she was gone. When K.H. returned to Respondent's class, she didn't stay long before a person from the main office removed her. Stuglik never talked to K.H. about the crying incident. Friday was also the day Miller was removed from the school for allegedly having sex with female students. Stuglik was in Miller's classroom where he was about to update her on the rumor when the police arrived to remove him from the school. After Miller was removed from the school, he called Stulik on her cell phone at least one time at 4:16 p.m. on Friday; two times on Saturday at 10:11 a.m. and 3:53 p.m.; and one time on Sunday at 6:47 p.m. asking for information regarding the investigation. On April 21, 2009, during the investigative process, Respondent gave a sworn statement to the school detective, Vincent Mintus ("Mintus"), where he asked her, "did she date Miller" and "was she romantically involved with him." Stuglik responded no to both questions.4 Stuglik did not disclose that she had a sexual relationship with Miller during the interview. Subsequently, during the investigation, Mintus discovered that from September through November of 2007, Stuglik engaged in sex with Miller on the school campus during school hours. Stuglik admitted in her deposition that she didn't initially tell the investigator she provided about the sexual relationship with Miller because "I didn't want anybody to know." On April 27, 2009, Respondent provided a second sworn statement to Mintus where she was told by him that she was a victim, and she agreed. The Mintus interview included the following questions and answers: Q. And did it involve sexual intercourse? A. Yes. Q. Okay. Was it here at school? A. Yes. Q. Yes? Um . . . are you . . .when did that occur? Now let me ask you . . .you are a victim in that. A. Yes. Q. Do you understand that? A. Uh-huh (yes) Q. That was against your will? A. Yes. *** Q. Okay, you understand you are a victim? A. Yes. Q. Okay. Um . . . and your . . . our explanation to me is that it was absolutely non-consensual. A. Yes. Q. So you were a victim of sexual battery. A. It's . . . don't know what the terminology is, but . . . Q. Okay, um . . . okay. It was non- consensual though, right? A. Correct. After the interview, Mintus contacted the Victim's Advocate of Palm Beach County for Stuglik and started a criminal investigation into her rape allegations. Stuglik went to see the Victim's Advocate after Mintus called them. The rape investigation required a third interview of Stuglik. Respondent only agreed to provide the statement with the assurance that Miller would not be criminally prosecuted for her allegations. On July 29, 2009, Almarie Thompson ("Thompson"), a Victim's Advocate for Victim Services, and an attorney went with Stuglik to her third interview with Mintus. During that sworn interview, Mintus asked Studlik if she were taken advantage of [by Miller]. She answered, "A little bit, yeah." Thompson referred Stuglik to Norma Asencia ("Asencia"), a licensed mental health provider with Palm County Victim Services. Asencia had an intake visit with Stuglik on December 14, 2009. Asencia did not diagnose Stuglik but determined that she had common symptoms of a rape victim and structured her remaining four sessions to deal with the symptoms.5 The last session was on March 3, 2010.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner finding Stuglik did not violate Subsection 1012.795(1)(b), 1012.795(1)(g), Florida Statutes, and Florida Administrative Code Rules 6B-1.006(3)9a), 6B-1.006(4)(b), and 6B-1.006(5)(m); finding that Stuglik did violate Subsections 1012.795(1)(d), 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rule 6B-1.006(5)(a), and suspending her educator's certificate for one year followed by probation for one year. DONE AND ENTERED this 30th day of November, 2010, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 30th day of November, 2010.
Findings Of Fact With regard to Counts I and II of Division of Beverage Case No. 3-75- 43A, the Hearing Officer enters the following findings of fact: On the evening of April 16, 1975, Detective H. R. Hall, of the Jacksonville Vice Squad, was working the Out of Sight bar, which is the licensed premises of Respondent. Upon entering the bar, Hall sat down and ordered a beer. Sarah Jane Smith, dressed as a topless dancer, came over to Hall and asked if she could dance for him. She told him it was $2.00 a dance which Hall Paid before she began dancing. Hall had no conversation with Smith prior to, or during her dancing, concerning Smith exposing her vaginal area. While dancing for Hall, Smith rubbed up against Hall with her vagina and buttocks and repeatedly exposed her vagina for four or five seconds by pulling down her bikini pants. Shortly after Smith danced for Hall, Dorothy Pesnell Edwards, who was dressed as a topless dancer, came over to Hall and offered to dance for him for $2.00 a dance. Hall paid her $2.00 and she began dancing. As she danced she would straddle Hall's leg and rub her vaginal area and buttocks against him. Hall did not discuss with Edwards, her touching him before she began dancing. After Edwards danced for Hall, Hall arrested both Smith and Edwards. Upon their arrests the manager of the Out of Sight bar instructed them to get their clothes from a back room of the bar and to go with the officer. On April 16, 1975, Sarah Jane Smith and Doris Pesnell Edwards, were agents, servants or employees of the Respondent, working as topless dancers in the Out of Sight bar. With regard to Division of Beverage Case No. 3-75-41A, the Hearing Officer enters the following findings of fact: On May 23, 1974, Beverage Officer R.B. Bagget entered the licensed premises of Respondent at the Out of Sight bar. A female employee of Respondent, Rose Estelle Carter Gibson, required a cover charge from Bagget. Bagget told her he was a Beverage Officer and on official business and showed her his Beverage I.D. card. In a loud voice Gibson called Bagget a "Pig". In the ensuing confrontation, Bagget showed Gibson his badge and asked for her identification. Gibson stated that she had no identification and, when asked her name by Bagget, she replied, "Peanuts". Gibson took Bagget to her purse and after Gibson failed to heed two requests by Bagget to empty her purse, Bagget took the purse and emptied it. There was no identification in the purse. Bagget then tried to put the contents back in the purse, where upon Gibson grabbed his arm and told him to stay away and then threw the purse away from him. Bagget stated he was checking to see if Gibson was under age. The manager of the bar told Gibson to cooperate with Bagget. The Respondent is the holder of Beverage License No. 26-449, 4-COP. CONCLUSIONS OF LAW Proper notice, as required by law, was given of this hearing. With regard to Division of Beverage Case No. 3-75-43A, Counts I, II and III, the Hearing Officer enters, the following conclusions of law: Section 796.07, Florida Statutes, defines the term "lewdness" as including ". . any indecent or obscene act." In Chesebrough v. State of Florida 225 So.2d 675 (1971), the Supreme Court stated that "(l)ewdness may be defined as the unlawful indulgence of lust, signifying that form of immorality which has a relation to sexual impurity. It is generally used to indicate gross indecency with respect to the sexual relations." Subsection 796.07(3)(a), Florida Statutes, states that it shall be unlawful in the State of Florida to offer to commit, or to commit, or to engage in prostitution, lewdness, or assignation. Sarah Jane Smith and Doris Pesnell Edwards engaged in lewdness as defined by statute and the Supreme Court of Florida and Prohibited by Subsection 796.07(3)(a), Florida Statutes, when, on April 16, 1975, as found above, while topless, they danced for a male patron of the Respondent by rubbing their vaginas, buttocks and legs on the patron, which acts took place in a public bar. Section 800.03, Florida Statutes, makes it unlawful for any person to expose or exhibit his or her sexual organs in any public place in a vulgar or indecent manner or to expose or exhibit his or her person in such place or to go and be naked in such place. The exposure of her vagina by Sarah Jane Smith as set forth in the findings of fact above, constitutes a violation of Section 800.03, Florida Statutes. See Hoffman v. Carson, 257 So.2d 891 (1971). With regard to Division of Beverage Case No. 3-75-41A, the Hearing Officer enters the following conclusions of law: Officer Bagget was engaged in the lawful execution of his duty as required by Section 843.02, Florida Statutes, when the acts referred to in paragraph 2, above, occurred. However, it does not appear to the Hearing Officer that the acts committed by Rose Gibson constitute such obstruction or opposition of Officer Bagget as to be a violation of Section 843.02, Florida Statutes. While Gibson's acts were not those of a cooperative person, the direction of Gibson toward Bagget of the epithet Pig, does not, by itself, constitute obstruction or opposition of an officer. Further, when Bagget asked Gibson for identification, she stated that she had none and upon a questionable search of Gibson's purse, Bagget found her statement to be true. It is also noted that Gibson did not grab Bagget's arm and take the purse away from him until after he had searched her purse and was attempting to put the contents back in the purse so that he could return it to Gibson. The Respondent is the holder of Beverage License No. 26-449, 4-COP. All Motions not otherwise disposed of are hereby denied. Subsection 561.29, Florida Statutes, gives the Division of Beverage the power and authority to revoke or suspend the license of a licensee, or to impose a civil penalty against a licensee, not to exceed $1,000.00, for violations arising out of a single transaction, when it is determined that the licensee or its agents, officers, servants or employees have violated any of the laws of the State of Florida. The violations by Sarah Jane Smith on the night of April 16, 1975, arise out of a single transaction as that language is used in Subsection 561.29(4), Florida Statutes, with regard to the imposition of a civil penalty. On April 16, 1975, Sarah Jane Smith and Doris Pesnell Edwards were agents, servants or employees of the Respondent.
Findings Of Fact Based upon the evidence adduced at hearing, the factual stipulations of the parties, and the record as a whole, the following Findings of Fact are made: Respondent and the Mermaid Bar Respondent, whose sole corporate officer and shareholder is Robert Simone, holds alcoholic beverage license number 60-00429, Series 4-COP issued by the Department. The licensed premises is the Mermaid Bar (hereinafter referred to as the "Mermaid"), a bar located in Palm Beach County that, like a handful of others in the County, offers adult entertainment featuring female dancers wearing little or no clothing. Operation and Management of the Mermaid James Galbraith manages the Mermaid pursuant to a verbal agreement that he has with Simone. Simone nonetheless plays an active role in the day-to-day operation of the bar and pays regular visits to the establishment, usually in the daytime during the morning hours, to check on things. Among the managerial responsibilities that Simone has delegated to Galbraith is authority over personnel matters, including the hiring, disciplining and firing of the barmaids and dancers who work at the bar. Galbraith exercised such authority when, with input from Simone, he drafted the following written "[r]ules for conduct of dancers" (hereinafter referred to as the "Rules"): Anyone dancing on stage [is] not allowed to show any pubic area. Anyone doing so will be dismissed. Anyone dancing on floor must wear cover up at all times. All girls are to work a minimum of 4 days. No girls are to solicit for anything (drinks, etc.). No girls are to take phone numbers or give out phone numbers. Private dances are $5.00 or $10.00 contribution. 2/ No bumping or grinding, no letting customers grab breast or pubic area. No touching of customers. You will be called down one time. If you have to be called down twice, you will be dismissed. If you have a problem with a customer, stop dancing and get a bouncer. Do not try to handle it yourself. Each dancer receives a copy of the Rules upon being hired. In addition, a copy is posted in the dancers' dressing room. When he is present at the bar, Galbraith is responsible for monitoring the activities taking place on the premises and maintaining order. He relies on the barmaids to assist him in keeping an eye on the dancers. Prior Disciplinary Action In November of 1992, the Department's predecessor, the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (hereinafter referred to as "DBR"), served on Respondent a Notice to Show Cause that contained the following allegations: On or about August 20, 1992, you, MERMAID BAR, INC., a vendor licensed under the beverage laws of the State of Florida, through you, your agents, servants, employees or entertainers, to wit: LESSIE MAE STRANGE AKA LESSIE MAE COLLIGAN, while on your licensed premises, did unlawfully commit or engage in lewdness by dancing in a topless state for Special Agent Sgt. HOOPER, rubbing her breasts across the Agent's face and body and forcefully rubbing her crotch area against the Agent's groin, simulating sexual intercourse, in exchange for U.S. Currency, contrary to Section 796.07(3)(a), F.S., within Section 561.29., F.S. On or about August 20, 1992, you, MERMAID BAR, INC., a vendor licensed under the beverage laws of the State of Florida, through you, your agents, servants, employees or entertainers, to wit: DEBRAH BACON, while on your licensed premises, did unlawfully commit or engage in lewdness by dancing in a topless state for Special Agent Sgt. HOOPER, rubbing her breasts across the Agent's face and body and forcefully rubbing her crotch area against the Agent's groin, simulating sexual intercourse, in exchange for U.S. Currency, contrary to Section 796.07(3)(a), F.S., within Section 561.29., F.S. On or about August 20, 1992, you, MERMAID BAR, INC., a vendor licensed under the beverage laws of the State of Florida, through you, your agents, servants, employees or entertainers, to wit: DEBBIE ANN SEIWELL, while on your licensed premises, did unlawfully commit or engage in lewdness by dancing in a topless state for Special Agent STOOPS and Sgt. HOOPER, rubbing her breasts across the Agent's face and body and forcefully rubbing her crotch area against the Agent's groin, simulating sexual intercourse, in exchange for U.S. Currency, contrary to Section 796.07(3)(a), F.S., within Section 561.29., F.S. On or about August 20, 1992, you, MERMAID BAR, INC., a vendor licensed under the beverage laws of the State of Florida, through you, your agents, servants, employees or entertainers, to wit: BARBARA GENE PORTER, the Manager/Person in Charge, did maintain a place for lewdness, by allowing female dancers to rub their exposed breasts across the faces and bodies of Special Agents STOOPS and Sgt. HOOPER and by allowing the female dancers to forcefully rub their buttocks and crotch areas into the groin areas of Special Agents STOOPS and Sgt. HOOPER, simulating sexual intercourse, a violation of Section 796.07(2)(a), F.S., within Section 561.29, F.S. These activities in which the dancers allegedly engaged with Stoops and Hooper are commonly referred to, in adult entertainment establishments, as "lap dances." On May 28, 1993, Simone signed a consent agreement acknowledging the violations alleged in the Notice to Show Cause and agreeing to pay a fine of $2,000.00 to settle the matter. DBR accepted and signed the agreement on July 6, 1993. The April 7, 1993, Undercover Operation On April 7, 1993, the Department conducted an undercover operation at the Mermaid in which Special Agent Johnnie Wilson participated. While Wilson was at the bar, he observed from his vantage point a female dancer whose stage name was "Kellie," as well as five or six other female dancers, in exchange for money, perform "lap dances" with patrons of the establishment. 3/ Galbraith and a barmaid were on the premises at the time and neither took any action to try to stop "Kellie" and the other dancers from "lap dancing." No arrests were made as a result of this April 7, 1993, undercover operation. The May 6, 1993, Undercover Operation Special Agent Stoops went to the Mermaid the afternoon of May 6, 1993, as part a follow-up undercover operation conducted by the Department. After he had been there for approximately 15 to 20 minutes, he was approached by one of the dancers working at the establishment that afternoon, Lucia Maria Campos. Campos asked Stoops if he wanted a "lap dance." Stoops responded in the affirmative. Campos thereupon removed her top (but not her bottoms) and proceeded to "lap dance" with a fully clothed Stoops. During the "lap dance," Campos rubbed her breasts against Stoops' chest and grinded her groin and buttocks in the area of his crotch in a provocative manner. Stoops paid Campos for the "lap dance." Stoops observed Campos "lap dance" with another patron during his visit to the Mermaid that afternoon. Although Campos performed her "lap dances" openly, in plain view, neither the barmaid on duty nor anyone else on the premises expressed any disapproval of Campos' actions. The May 12, 1993, Undercover Operation On May 12, 1993, at around 10:00 or 11:00 p.m., three detectives from the Palm Beach County Sheriff's Office working undercover, Jeffrey Andrews, Kevin O'Brien and Ted Smith, entered the Mermaid. The purpose of their visit was to determine if any of the dancers working at the establishment were engaging in lewd behavior. After entering the Mermaid, Andrews and O'Brien sat down next to each other at a table in front of the stage on which the dancers performed. Smith took a seat near the bar. While Andrews was seated at the table, Kerren Flores, a dancer who was working at the Mermaid that evening, came up to him and asked him if he wanted a "lap dance" for $10.00. Flores was wearing a bikini top and G-string bottom. After Andrews accepted her offer, she took off her top. Standing approximately two feet in front of Andrews, she began fondling her breasts with her hands and manipulating, and then licking, her nipples. Next, she leaned over and rubbed her bare breasts against the lower portion of Andrews' face. She then turned around, sat down on Andrews' lap and started to simulate sexual intercourse by grinding her buttocks into his groin area. The "lap dance" lasted the length of one song that was being played by the DJ over the bar's sound system. After it was over, Andrews' paid Flores the $10.00 she had requested for the "dance." Another dancer working at the Mermaid that evening was Laura Chapman. While performing on stage, she removed all of her clothing, fondled and licked her bare breasts and suggestively stroked her vaginal area. After finishing her performance on stage and putting back on her bikini top and G-string bottom, Chapman approached Andrews and inquired if he was interested in a "lap dance." Andrews said he was and, at Chapman's request, the two moved to a different table. Chapman then proceeded to remove her bikini top and performed a "lap dance" with Andrews which was virtually identical to the one Flores had performed with him earlier that evening. Andrews paid Chapman the $10.00 she had asked for to perform the "lap dance." Andrews' colleague, O'Brien, was also propositioned during the undercover operation that evening by one of the bar's dancers. Maija Liisa Cardinaux was the dancer who propositioned him. She was also helping serve drinks that evening. Cardinaux walked up to O'Brien and asked him if he wanted to order a drink. At the same time, she inquired if he wanted a "lap dance." O'Brien expressed an interest in the latter. Cardinaux led O'Brien to another area of the bar and had him sit down on a bar stool. After O'Brien was seated, Cardinaux placed her hands on his shoulders and told him to relax. Cardinaux, who was wearing a bikini top and bottom, then took off her top and started to fondle her breasts and lick her nipples while standing in front of O'Brien. Next, she put her arms around O'Brien and pulled his head into her breasts. She then let go of O'Brien, turned around, sat down on his lap and began to vigorously rub her buttocks and groin area against his crotch. These bumping and grinding movements simulating sexual intercourse lasted approximately one to one and a half minutes. Two other dancers working at the Mermaid that evening during the undercover operation, Angela Ratliffe King and Lisa Berling, gave sexually suggestive performances that were patently offensive, that lacked any serious artistic value and that the average person, applying contemporary community 4/ standards, would find, taken as a whole, appealed to prurient interests. King was initially dressed in a black bra and panties. During the first song that she danced to on stage, she took off her top and started to fondle her breasts. She thereupon turned her back to the audience, slapped and rubbed her buttocks, and began to fondle and stroke her vaginal area. During the second song, she removed her panties and exposed her vaginal area to the audience. She then turned around and, with her back to the audience and her legs a little more than shoulder width apart, bent over, put her arms between her legs and started to pull her buttocks apart, further exposing her vaginal area to the audience. Still bent over with her back to the audience, she began to stroke her vaginal area with her fingers as if she was masturbating. Lisa Berling gave a similar performance, except that, unlike King, she was completely nude throughout her performance and, although she started out on the stage, she concluded her performance on the counter of the bar, within an arm's length of where one of the undercover detectives, Ted Smith, was seated, along with other patrons. Galbraith's wife, Ann Galbraith, was tending bar at the time of Berling's performance and she commented to Smith about the performance upon its conclusion. From her vantage point, Ms. Galbraith was able to see most of the public area of the establishment. Her husband was in the back of the establishment near the DJ booth during most of the approximately one and a half hours that Detectives Andrews, O'Brien and Smith were in the Mermaid. At no time during the detectives' undercover operation did Galbraith, his wife, or anyone else that had been hired to work at the Mermaid do anything to discourage or stop the frequent "lap dancing" or the performances of King and Berling, notwithstanding that these activities were in violation of the Rules that Galbraith had given to each dancer and posted in the dancers' dressing room. Arrests were made as a result of the detectives' May 12, 1993, undercover operation. The action taken by the Palm Beach County Sheriff's Office in the instant case is no different than what it has done in similar cases involving other adult entertainment establishments where there is "lap dancing" or similar activity taking place. Respondent's Liability Although Simone may not have been present on the premises during either the April 7, 1993, May 6, 1993, or May 12, 1993, undercover operations, given the persistent and repeated instances of "lap dancing" and other flagrant acts of indecency engaged in by the dancers working at the Mermaid, the inference is made that Simone either fostered, condoned, or negligently overlooked these acts.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Department enter a final order finding Respondent liable for the violations alleged in the amended Administrative Action and penalizing Respondent therefor by revoking its alcoholic beverage license, license number 60-00429, Series 4-COP. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of January, 1994. STUART M. LERNER 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 20th day of January, 1994.
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 Whether Respondent, C and C Enterprises, Inc. (“C and C Enterprises”), discriminated against Petitioner, Leslie D. Richardson, in violation of the Florida Human Rights Act and, if so, what relief should be granted.
Findings Of Fact Mrs. Richardson is a Caucasian female who at all times relevant to this proceeding was an employee of C and C Enterprises, Inc., and worked at the Restaurant. Mrs. Richardson primarily served as a bartender, with most of her shifts placing her at the bar located outside the Restaurant on a deck or patio adjacent to the Restaurant. Sandy Bottoms is a family oriented restaurant located in Fernandina Beach, Florida. It has normal restaurant seating, plus two bars. One bar is located inside the restaurant; the other is located outside. The outside bar has fairly tight quarters, allowing only one person comfortably behind the bar at a time. The outside bar is frequented by customers more than the inside bar, so working outside is more lucrative for the bartenders. Mrs. Richardson began working at Sandy Bottoms in January 2013. She was hired as a bartender and, by most accounts, was very proficient at her job. She quickly chose the outside bar as her preferred spot when working and had many regular customers. Mrs. Richardson was even featured in a local newspaper article in January 2015, wherein she was touted as a particularly well-liked bartender. When she began working at Sandy Bottoms, Mrs. Richardson formed good relationships with its owner, Claude Hartley, and her fellow workers. She also had a good relationship with the manager, Russell McNair, and with the Restaurant’s bookkeeper, Natalie Thelemann. Mrs. Thelemann is Claude Hartley’s daughter. According to Mrs. Richardson’s testimony at final hearing, she began to have “issues” with Mr. Hartley beginning about a year into her tenure at the Restaurant, i.e., around “early to mid 2014.” Conversely, in her Employment Charge of Discrimination, the first alleged incident she reported occurred in “late winter-early spring 2015.” Mrs. Richardson generally claims Mr. Hartley sexually harassed her and even perpetuated potentially criminal or tortious touching. In her complaints to FCHR, Mrs. Richardson reported incidents which allegedly occurred between August 2015 and November 2015. She maintains that Mr. Hartley continued to act inappropriately towards her until her employment ended on November 2, 2015, and even once after she left Sandy Bottoms. Mr. Hartley denies there was any sexual harassment or inappropriate touching at any time during Mrs. Richardson’s employment at Sandy Bottoms. Neither Mr. McNair nor Mrs. Thelemann saw any such things occurring while Mrs. Richardson was working at Sandy Bottoms. Mrs. Richardson’s employment ended abruptly on November 1 or 2, 2015. On Sunday, November 1, 2015, she had shown up at work for her regular shift. She clocked in a couple of minutes late that day, but she blames the Restaurant’s timeclock for that. The time on that clock (referred to by staff as “Aloha time”), was always, according to Mrs. Richardson, five or so minutes ahead of the “actual” time. Mrs. Richardson was late for her shifts approximately 67 percent of the time, but she says she would sometimes work a bit around the Restaurant before clocking in, even if she got there on time.1/ In light of credible testimony from the manager and bookkeeper that all personnel clocked in immediately upon arrival, Mrs. Richardson’s testimony is not persuasive. The only other non-manager employee who testified, Danielle Guidry, did not corroborate Mrs. Richardson’s testimony concerning how staff clocked in for work. After clocking in late on November 1, 2015, Mrs. Richardson took a telephone call from her mother, who was ill at the time. She walked around outside during the telephone call. When she came back to the outside bar area to begin her shift, she was told that she would be working the inside bar on this day. Apparently another bartender, who had prepared the outside bar for opening in Mrs. Richards’s absence, asked to staff the bar even though she had been scheduled to work the inside bar. The outside bar is generally busier and generates more tips than the inside bar. Mr. McNair granted the other bartender’s request because Mrs. Richardson was late for her shift. According to the Restaurant’s Server Operational Manual, a server/bartender should arrive at least 10 minutes prior to their shift. Otherwise, the shift would “go up for auction” to another employee. Upon hearing the news that she had to work the inside bar, Mrs. Richardson became irate. She stormed into the restaurant and angrily confronted Mr. McNair, but he stood by his decision. When Mr. McNair refused to budge, Mrs. Richardson cursed at him and exited the Restaurant loudly, all the while with customers sitting within hearing range. Mrs. Richardson went home, where she received a call from Mr. Hartley within half an hour or so. Mr. Hartley asked her to come back to the Restaurant and do her shift, but Mrs. Richardson refused. Mr. Hartley discussed the situation with his “management team” which included his wife, Rita Hartley, Mr. McNair, and Phil Thelemann, another manager (who is also Mr. Hartley’s son-in-law). The consensus was that Mrs. Richardson had abandoned her job by walking out without notice or cause. Mr. Hartley then called Mrs. Richardson again, this time leaving her a message wherein he told her not to come in the next day as scheduled. It was the decision of management that Mrs. Richardson’s employment with Sandy Bottoms was over. Mr. Hartley left the following message on Mrs. Richardson’s phone: “Leslie, this is Claude. There’s no sense in coming in tomorrow. My family is ‘bout to kill me. And, uh… I’m sorry. Call me and talk to me. I’ll help you out if I can. Goodbye.” Mrs. Richardson considers that message evidence that Mr. Hartley’s family was angry with him because of his infatuation with her. No competent or persuasive evidence was presented to support her theory. Mr. Hartley said the message reflected the fact that his family was upset with him for trying to preserve Mrs. Richardson’s job at Sandy Bottoms despite the team consensus that she had abandoned her position. His explanation seems more credible. Mr. Hartley and other Restaurant employees soon began hearing rumors that Mrs. Richardson was planning to file a lawsuit against Sandy Bottoms alleging wrongful termination. When she came in to pick up her final paycheck a week or so after being let go, Mr. Hartley asked Mrs. Richardson if she was planning to sue him or the Restaurant. Mrs. Richardson was friendly (or at least “not unpleasant”) and indicated she would not “do something like that.” It does not appear that anyone at the Restaurant knew Mrs. Richardson had actually hired a lawyer until she had filed her complaint with FCHR. Mrs. Richardson struggled to find good employment after leaving Sandy Bottoms. She worked for two other restaurants tending bars, but neither job was as lucrative as her bartender position at Sandy Bottoms. She believed some restaurants refused to hire her because she had been fired by Sandy Bottoms, but could identify only one potential employer who brought up her tenure at Sandy Bottoms. That person did not testify at final hearing to confirm or deny Mrs. Richardson’s contention. Mrs. Richardson is the sole breadwinner for her family. After losing her job at Sandy Bottoms she was evicted from her home and had to move to Yulee, a less attractive community off the island of Fernandina Beach. She is now working as a housekeeper. Her husband, who was a frequent customer at Sandy Bottoms while she was working there, is disabled and cannot work. Ultimately, Mrs. Richardson did hire legal counsel and file a complaint against Sandy Bottoms. In her “Employment Charge of Discrimination,” Mrs. Richardson alleged a number of instances wherein Mr. Hartley had acted improperly towards her. The majority of the allegations could not be substantiated or corroborated by any other witness. Those “he said - she said” allegations will only be referred to in passing and as necessary to elaborate on the two somewhat verifiable allegations. The two alleged incidents for which other eyewitness testimony exists are generally described as follows: On or about October 4, 2015, Mrs. Richardson was working behind the outside bar. Mr. Hartley, who kept a bottle of port wine in a cooler behind the bar for his personal consumption, came behind the bar. Mrs. Richardson felt a bottle being shoved between her legs, scaring her and making her very uncomfortable. Mr. Hartley supposedly laughed and asked a customer “wasn’t that funny?” or “isn’t that fun?” In the late winter or early spring of 2015, Mr. Hartley approached Mrs. Richardson as she was working at the bar and – staring at her breasts – said, “It’s not that cold in here.” A customer sitting at the bar overheard the statement. As to the first incident, Mrs. Richardson’s description in her diary of allegations said Mr. Hartley “shoved the neck of the bottle between my legs from behind.” Despite the egregiousness of the allegation, whether it occurred exactly as alleged is unclear from the evidence. Her testimony about the event at final hearing was wanting. Mrs. Richardson testified as follows, first in response to questions from her counsel, then from Respondent’s counsel: Q: Did Mr. Hartley shove a bottle of port into your genital area? A: Yes, the very top of my legs where my shorts were, yes. Q: Okay. A: My shorts were wet from it, and my shorts were not short shorts, but they were short enough to be to the upper part of my legs, not my calves. Transcript, page 59. Q: You stated on direct that you were –- you felt degraded [by the bottle incident]. A: Yes. Q: Can you explain what you mean by degraded? A: I felt like an idiot. I mean that I couldn’t believe that he had the nerve to come behind the bar and stick a bottle of port anywhere on me. It wouldn’t have been funny, let alone where it was. Transcript, pp. 100-101. Though it was suggested a number of times, Mrs. Richardson’s testimony never directly alleged that Mr. Hartley put the bottle against her vagina or anus, only that he poked her with the bottle in some fashion. In fact, Mrs. Richardson never specified exactly where the bottle had touched her body. Mr. Hartley testified he went behind the bar on the day of the incident to retrieve his bottle of port. When he reached down to pick up the bottle cap which he had dropped, he intentionally touched the cold bottle to Mrs. Richardson’s leg. It was meant to be playful, a joke, consistent with his normal behavior towards her – and like her playfulness with him. He touched the cold bottle to her bare leg, causing her to jump. There were many other people in the restaurant at the time. Mr. Hartley’s testimony seemed credible, even though there was some testimony from others that he generally asked the bartender to pour his port wine rather than getting it himself. He maintains that on the day in question the bar was quite busy and he did not want to distract Mrs. Richardson from her duties. The perceptions of the two other people in attendance must also be considered. First, a long-time friend of Mrs. Richardson, Deborah Botke, was sitting at the bar. She saw Mr. Hartley’s arm move toward Mrs. Richardson’s legs. From her vantage point, she could not actually see below Mrs. Richardson’s waist, but from the angle of Mr. Hartley’s arm-–and Mrs. Richardson’s reaction–-Ms. Botke presumed that the man had poked the bottle “in the direction of her private regions.” She said, “I saw him take it and shove it like this. I don’t know where it landed.” She did note that Mr. Hartley was approximately waist-high to Mrs. Richardson, i.e., he did not bend over so as as to touch her ankle or lower leg. Ms. Botke was a credible witness. She holds a very significant security clearance at her job managing all the navigational equipment for the U.S. Navy’s Ohio-class ballistic submarines. It is unlikely she would perjure herself in a proceeding such as this and put her clearance at risk. It is clear she saw something and was convinced that Mr. Hartley acted improperly, even if she could not actually see what he did. To the detriment of her believability, she is a close friend of Mrs. Richardson and obviously wants to support what her friend alleges. And, she has had some past trouble with Sandy Bottoms. She was once removed from the Restaurant by the police when she became extremely drunk after breaking up with a boyfriend. All in all, Ms. Botke’s belief that Mr. Hartley utilized the bottle in a sexual manner is not proven by a preponderance of the evidence. Ms. Botke also provided hearsay testimony concerning other allegations Mrs. Richardson had made concerning Mr. Hartley, but those allegations were not corroborated by other competent evidence. For example, she suggested that security cameras at the Restaurant were installed for the primary purpose of allowing Mr. Hartley to remotely look at Mrs. Richardson’s breasts. In fact, Ms. Botke says that Mrs. Richardson came home crying one night when she (Richardson) discovered that fact about the cameras. No persuasive evidence was presented, however, to establish the legitimacy of that allegation. Also, Ms. Botke said that Mr. Hartley appeared to “make contact with” Mrs. Richardson unnecessarily when he went behind the bar one time. Mrs. Richardson acknowledged the area behind the bar was very small and it was difficult for two people to be there at one time. From the totality of the evidence, it is certain that Mr. Hartley touched a cold bottle of port wine to Mrs. Richardson’s body. It cannot be confirmed where on her body the bottle touched Mrs. Richardson, i.e., whether it was her backside, her crotch, or on one of her legs. Nor can it be reasonably ascertained whether Mr. Hartley’s purpose was playful or sexually motivated. Regarding the comments Mrs. Richardson made about the security cameras, again there was no corroboration. Mr. Hartley and Mr. McNair say the cameras were installed for security purposes only. One reason the cameras were required was to make sure staff were not drinking on the job and/or drinking without paying for the drinks. In fact, in September 2015, the cameras recorded Mrs. Richardson taking alcohol “shots” at the bar during one of her shifts. She was reprimanded and written up for the infraction. As to the second incident, i.e., that Mr. Hartley allegedly made inappropriate comments while looking at Mrs. Richardson’s breasts, the evidence is even more scant. At final hearing, Mrs. Richardson’s attorney asked if Mr. Hartley had made a specific reference to her nipples in late winter- early spring 2015. She replied, “Yes sir.” In her written list of allegations given to FCHR, she said Mr. Hartley said, “It’s not that cold in here” in reference to her nipples while looking at her breasts. Mr. Hartley testified only that he did not make any such comment concerning Mrs. Richardson’s breasts or nipples. There was another person, Robert Pelletier, sitting at the bar at the time of the alleged incident. Mr. Pelletier, who is a managing broker for a real estate firm, is also a licensed attorney. At the time of the alleged incident, he had visited the bar on half a dozen occasions. He was sitting at the inside bar when an “older man” went behind the bar and said something to Mrs. Richardson about her nipples being hard. He found the comment to be very offensive. He was told by Mrs. Richardson that the man was the owner of Sandy Bottoms. At final hearing Mr. Pelletier could not say whether Mr. Hartley, who was sitting some six feet away from him, was the man he saw speaking to Mrs. Richardson that day in the bar. In an affidavit he prepared in May 2016, Mr. Pelletier did not mention that the man had commented specifically about Mrs. Richardson’s nipples. Nor did he mention that the man had gone behind the bar to talk to Mrs. Richardson. The only consistency between Mr. Pelletier’s testimony and his affidavit was that he heard something inappropriate said to Mrs. Richardson as he sat at the bar. By his own admission, Mr. Pelletier’s memory of the event was cloudy. No one else witnessed this encounter. It happened very quickly, according to Mr. Pelletier, and was not that memorable an event. While it is certainly possible that the event happened exactly as Mrs. Richardson remembers it, there is not a preponderance of evidence to that effect. Besides the two incidents discussed above, Mrs. Richardson also alleges a history of unwanted advances and comments from Mr. Hartley. She describes incidents where she felt like Mr. Hartley’s interactions with her or comments to her were sexual in nature. Both Ms. Botke and Ms. Guidry reported some other general comments allegedly made by Mr. Hartley that Mrs. Richardson had reported to them, but their testimony in that regard was not particularly persuasive. Mr. Hartley describes the same incidents as completely non-sexual in content or intent. Ms. Guidry had worked at, and been fired from, Sandy Bottoms several times. She once heard Mr. Hartley tell Mrs. Richardson that he wanted to buy her a red dress; that statement seemed to make Mrs. Richardson uncomfortable. Ms. Guidry thought Mr. Hartley hung around Mrs. Richardson too much. However, she never saw anything untoward happen between the two. Had she seen something improper happen, she would have reported it to someone. She never reported anything to anyone. Ms. Botke said that Mrs. Richardson would complain to her about Mr. Hartley as the two women sat on their decks enjoying a drink after work. None of those complaints, however, were substantiated by other evidence. Watching the demeanor and apparent sincerity of the two (Richardson and Hartley) at final hearing, it is quite possible each is telling the truth as he or she believes it to exist. That is, Mrs. Richardson sincerely believes that some of Mr. Hartley’s actions and words were provocative and meant to be sexual in nature. Mr. Hartley honestly believes that he was joking with Mrs. Richardson in a friendly and joking fashion, never crossing the line into inappropriate behavior. Mrs. Thelemann believed she and Mrs. Richardson got along quite well. They both had children and would talk about “kid things” with each other. Mrs. Thelemann saw her father (Hartley) and Mrs. Richardson talking quite frequently but never saw anything improper or questionable. Mrs. Richardson told Mrs. Thelemann once that Mr. Hartley was “an old flirt,” but not in a complaining way. Once, when Mrs. Richardson was distraught about being “written up” for drinking liquor while on duty, Mrs. Thelemann consoled Mrs. Richardson and let her know all was well. Mrs. Thelemann said Mrs. Richardson was, after all, a good employee. Another time, when Mrs. Richardson had to go visit her ailing mother, Mrs. Thelemann and her parents offered Mrs. Richardson money and the use of one of their cars. Mrs. Thelemann, an accountant, offered to help Mrs. Richardson with some IRS tax issues. And Mr. Hartley offered to loan Mrs. Richardson some money to buy Capri pants to replace short pants which had been deemed inappropriate. In short, there appears to have been a friendly relationship between Mrs. Richardson and the Hartley family. Speaking of inappropriate shorts, one of Mrs. Richardson’s unverified allegations had to do with Mr. Hartley allegedly telling her to turn around and bend over so he could inspect her shorts. Someone had complained that she and another waitress, Brittany, were wearing shorts that were too revealing. She says Mr. Hartley directed her to bend over so he could tell if the shorts were okay. At some point, Mrs. Thelemann told Mrs. Richardson that the shorts she was wearing on a particular day were too short. Later, Mrs. Richardson came to Mrs. Thelemann and said Mr. Hartley had inspected the shorts and overruled her, saying the shorts were okay. Mrs. Thelemann was angry that her father would undercut her authority, but there was no mention in the conversation that Mr. Hartley had acted inappropriately towards Mrs. Richardson. Mr. Hartley remembers visually inspecting Mrs. Richardson’s shorts, but not in a suggestive or inappropriate way. Again, there is no independent corroboration of either person’s testimony. Mrs. Richardson had a fairly clean record during her time at Sandy Bottoms. Besides the aforementioned write-up for drinking on the job, she was written up once for failing to timely enter drinks into the Point of Sale (“POS”) system. It is imperative that wait staff and bartenders timely enter drink orders into POS so that they do not forget to do so (and, apparently, to prevent them from giving away drinks). Mrs. Richardson had not timely entered some orders into the POS system and was written up for it. She signed the disciplinary action form, but wrote, “I did not do anything wrong on Sunday.” She maintains she entered the drinks as soon as practicable based on how busy she was with customers at the time. Mrs. Thelemann said that drinks actually were supposed to be entered into POS prior to being poured. Mrs. Richardson was also late for her shifts fairly frequently, roughly two thirds of the time. Otherwise, she was a model employee. Despite the numerous allegations in her written complaint, Mrs. Richardson noted only one time that she complained to management about specific harassment. She purportedly told Mr. McNair about the incident with the port wine bottle. She also said she complained to Mr. McNair at least ten other times about Mr. Hartley. Mr. McNair, however, does not remember her coming to him with that complaint (or any other, for that matter). Mrs. Richardson did express hesitation about going to management, as Mr. Hartley was the owner and ultimate authority at the Restaurant. Mrs. Richardson contends Mr. McNair is simply afraid of testifying against Mr. Hartley, but inasmuch as Mr. Hartley no longer owns the Restaurant, that contention loses credence. Besides, Mr. McNair appeared very credible while testifying at final hearing. Mrs. Richardson suggested that Mr. McNair lied on his affidavit, which had been sworn to while he was still an employee of Sandy Bottoms. Now, she reasons, he must maintain his lie in order to avoid perjuring himself. While there is logic to the reasoning, there is no evidence to support the contention. At best, the evidence at final hearing supports a finding that: 1) Mr. Hartley made an inappropriate comment about Mrs. Richardson’s breasts; and 2) Mr. Hartley touched Mrs. Richardson’s body with a wine bottle. Neither of these incidents rises to the level of sexual harassment. Mrs. Richardson also claimed retaliation by her employer, specifically that she was fired from her job because of the complaints she made against Mr. Hartley. There is no persuasive evidence in the record to support that claim. In fact, it is clear that Mrs. Richardson voluntarily walked away from her job–-at least for her November 1, 2015, shift--and was thus deemed to have abandoned her position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations Issue a Final Order finding that Respondent, C and C Enterprises, Inc., did not discriminate against Petitioner, Leslie Richardson. DONE AND ENTERED this 10th day of May, 2017, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 10th day of May, 2017.
Findings Of Fact Respondent is currently certified by Petitioner as a corrections officer and holds certificate number 68-86-502-01, which was issued on March 14, 1986. At the time of the events in question, Respondent was employed as a correctional officer by the Orange County Sheriff's Office. On April 4, 1987, Sergeant Frank Fink of the Orlando Police Department was working undercover in plainclothes in Langford Park, which is located at 1800 East Central Boulevard in Orlando. Langford Park is a known gathering place for homosexuals. It is located in a residential neighborhood and near a school. Sgt. Fink's assignment was to work as part of a homosexual detail and arrest anyone who offered to commit a lewd act, which by Orlando City Ordinance 43-18 is defined as anything contrary to acceptable public standards. At approximately 6:00 p.m., while it was still daylight, Sgt. Fink observed Respondent near the restrooms. Ten to twenty minutes later, Sgt. Fink saw Respondent elsewhere in the park, talking to another man. Shortly thereafter, Sgt. Fink saw Respondent seated in a gazebo in a densely vegetated portion of the park. Sgt. Fink seated himself beside Respondent, about five feet away, and commented that it was a beautiful day and nice park. The ensuing conversation, which proceeded in a normal tone and volume so as to be clearly understood by both men, was innocuous up to the point at which Respondent asked Sgt. Fink what kind of people came to the park and Sgt. Fink answered, mostly gays. Then Respondent asked what these people did in the park, and Sgt. Fink answered, oral sex. Respondent asked if these people ever got caught, and Sgt. Fink replied, sometimes. Respondent asked where such acts took place, and Sgt. Fink told him, on the trails behind the bushes. Respondent then informed Sgt. Fink that Respondent went to a local pornographic newsstand and watched films of homosexual acts. He told Sgt. Fink that men performed oral sex on each other in booths at the newsstand. At this point, Respondent told Sgt. Fink that Respondent was thinking about performing sex with another man and that he would like to perform oral sex on Sgt. Fink. After confirming his understanding of Respondent's offer, Sgt. Fink asked if Respondent wanted to pay him money for the act, but Respondent declined. Respondent indicated that he did not want to get caught, so Sgt. Fink led him down a trail to a safe place. After leading him about 100 yards, Sgt. Fink took Respondent to police waiting in a clearing within the park where Respondent was arrested for lewd behavior.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Respondent guilty of violating the requirement of good moral character and revoking his certificate as a corrections officer. DONE and RECOMMENDED this 8th day of August, 1988, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of August, 1988. COPIES FURNISHED: Joseph S. White, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jack J. Curcio, pro se 1931 Stanton Street Deltona, Florida 32738 Robert R. Dempsey Executive Director Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Janet E. Ferris General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rod Caswell Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302
