The Issue The issue in this case is whether the Petitioner, Geraldine Maguire, has demonstrated, pursuant to the Vested Rights Review Process of Clay County, Florida, that a vested rights certificate to develop certain real property located in Clay County should be issued by Clay County, notwithstanding the fact that such development will not be in accordance with the requirements of the Clay County 2001 Comprehensive Plan.
Findings Of Fact The Subject Property. The property at issue in this proceeding consists of approximately 28 acres of land located in Clay County, Florida. The subject property is known as “Elmwood Subdivision”. Elmwood was acquired in the early 1960s by Elliott Maguire and his spouse at that time. Elliott Maguire became sole owner of the Elmwood in 1964. Elmwood is bordered on the north by Shedd Road, on the east and part of the south by Brown’s Barn Road and on the west by Duval Avenue. All of the roads that surround Elmwood are unpaved Clay County roads. Clay County has maintained these roads before and after Mr. Maguire began to develop Elmwood. In 1978 Elliott Maguire and Geraldine Maguire deeded a sixty foot right of way on Barnes Barn Road to Clay County. Clay County accepted the right of way at a meeting of the County Commission on October 10,1978. The evidence failed to prove, however, that the right of way was given in reliance upon any promise or representation from Clay County concerning development of Elmwood. The easement was for right of way already used for Barnes Barn Road. The evidence failed to prove that the easement had anything to do with the development of Elmwood. Mr. Maguire decided to develop Elmwood during the 1970s. He created an unplotted subdivision with 23 lots, all over an acre in size. Mr. Maguire intended to sell the lots as single- family home sites. Mr. Maguire had the property cleared, swales and easements were graded and storm drainage structures were cleared and installed. Mr. Maguire hired a surveyor and an engineer for the project. Mr. Maguire, the surveyor and the engineer discussed the project with Mr. Bowles, Clay County Public Works Director at the time. The evidence failed to prove that John Bowles made any representations concerning the development of Elmwood. Easement and drainage work on Elmwood was completed in 1979. The first lots were sold in 1981. A total of 8 lots were sold between 1981 and 1984. A copy of the engineering plans for Elmwood were provided to Clay County in 1978. Government Action Relied Upon by Petitioner. Prior to September of 1985 Clay County did not require platting of subdivisions such as Elmwood. The only specific restriction on the development of Elmwood when Mr. Maguire began development was that the density was limited to one unit per acre. This restriction was part of the zoning category of the property. Detrimental Reliance. Mr. Maguire incurred costs in his development of Elmwood. Among other things, Mr. Maguire incurred expenses of approximately $20,000.00. Due to he adoption of the Clay County 2001 Comprehensive Plan in 1992, the remaining unsold 15 lots of Elmwood may be used for only 3 additional residences. The approximate fair market value of the 15 lots is approximately $12,000 to $15,000 per lot. The fair market value of the 3 allowable lots is $20,000 to $25,000. The evidence, however, failed to prove that any of the expenses incurred in developmenting Elmwood or the loss in value of the remaining lots is attributable to any representation of Clay County that Elmwood could be developed as an unplatted subdivision indefinitely into the future.
Findings Of Fact Three Palms Point is a residential subdivision located within the city limits of St. Petersburg Beach, Florida. Three Palms Point is situated on a landfill which extends into Boca Ciega Bay. The site of the subdivision was originally purchased as submerged land from the Board of Trustees of the Internal Improvement Trust Fund. The purchaser filled the submerged land to coincide precisely with his purchase. The original Three Palms Point landfill is depicted on an aerial photograph that was received in evidence as Petitioner's Exhibit 3. This photograph was taken in 1957, and the landfill is circled with yellow ink on the photograph. Petitioner's Exhibit 2 is an engineer's drawing which depicts the original landfill. In August, 1970 the Petitioner purchased a portion of Three Palms Point. The Petitioner has constructed homes on a portion of the Three Palms Point landfill including the end, or easternmost finger. The present dimensions of the easternmost finger are depicted in an aerial photograph that was received in evidence as Petitioner's Exhibit 1. This photograph was taken in February, 1977. Several lines have been drawn on the photograph. The outermost line shows the limits of the original landfill. Considerable erosion has taken place, and the present high water mark is clearly evident in the photograph. Through the instant application the Petitioner is seeking to fill the land within the second line shown on Petitioner's Exhibit 1. Petitioner intends to construct four new homes on the filled area. The easternmost finger of the Three Palms Point landfill has only been partially bulkheaded. In the approximately twenty years that the landfill has been in existence, approximately 200 feet of the fill has eroded away. The amount of erosion is clearly evident in the photograph that was received in evidence as Petitioner's Exhibit 1. Erosion is continuing at the present time. The uplands of the landfill meet the water at a steep embankment which is very unstable. Three of the homes that have been constructed on the easternmost finger are presently and immediately jeopardized by the continuing erosion. When the Petitioner acquired this property he immediately sought approval to dredge a channel around the original limits of the easternmost landfill, and to fill the entire area. Petitioner did not succeed in obtaining local government approval for this proposal. Petitioner was advised to eliminate his proposed dredging, and to limit the landfill as in his present application. The entire area that the Petitioner wishes to fill constitutes .55 acre. Petitioner proposes to use uplands landfill, and to place a bulkhead around the fill to prevent further erosion. The landfill proposed by the Petitioner is the least amount of fill that would permit the Petitioner to construct houses on the finger within local zoning ordinances. Approximately 4,000 cubic yards of material would be required to complete the landfill. At low tide nearly all of the proposed fill area, and a broader area extending to the east and the south of the proposed landfill site is out of water. At high tide nearly all of the site is submerged. This type of environment is known as a littoral, or transitional zone between the uplands and submerged lands. This particular littoral zone is not a natural transitional area as would occur along the unbulkheaded and undeveloped shorelines of Boca Ciega Bay. The zone has resulted from the erosion of a landfill. There is considerable debris, including deteriorated riprap, junk that has been dumped in the area, and spilled cement. Various types of algae exist within the area proposed to be filled. The only grass that grows in the area is Cuban Shoalweed. Cuban Shoalweed is the only vegetation other than algae which has been found to any degree at the site. Cuban Shoalweed dies back and disappears during winter months, and reestablishes itself during summer months. Nearly all of the Cuban Shoalweed visible at the time of the hearing was outside of the proposed fill area. During summer months it is probable that some Cuban Shoalweed would be present within the fill area. The Cuban Shoalweed exists in patches, and does not cover the area. A variety of marine animals have been identified at the proposed fill site. Many mollusks, including oysters, a variety of clams, and mussels are present at the site. Several varieties of crabs were identified. At high tide fish swim into the area. Shore and wading birds have been observed in the area. The most prevalent animal life in the area is clams. Several heavily populated clam beds are located within, and just outside of the proposed landfill site. None of the organisms observed at the site are endangered organisms. It is apparent that the site is not a particularly suitable natural habitat, except apparently for clams. Continuing erosion of the easternmost point of the Three Palms Point subdivision presents an immediate danger to homeowners. Erosion which has averaged approximately ten feet per year during the past twenty years, is continuing to occur at a rate of from two to three feet per year. A large storm is likely to prove disastrous. In order to protect present homeowners, it is essential that some sort of seawall be constructed at the point. The seawall proposed by Petitioner provides the most protection. A rounded seawall will disperse wave action along the seawall. A seawall constructed along the present high water line would provide considerably less protection. High winds coming from the prevailing wind direction during the stormiest seasons would hit the present shoreline at a severe angle. When a wave hits a shoreline at an angle part of the energy is dispersed. This is called long shore energy flux, and results in littoral drift. High winds would cause an extreme littoral drift along the present shoreline. Bottom sand would be loosened, and the seawall would be undermined. The waves would strike the seawall proposed by the Petitioner at a significantly lesser angle, and long shore energy flux would be approximately one-fourth as much as with a seawall constructed along the present shoreline. Littoral or transitional zones provide a significant function for maintaining the water quality of a water body. Runoff from the uplands is filtered through the vegetation of the littoral zone. The vegetation serves to filter the uplands runoff by assimilating nutrients in the runoff. Without such a filtering mechanism, the quality of a water body would rapidly deteriorate, especially in a heavily populated area. The littoral zone involved in this case provides an insignificant filtration system. The only vegetation is Cuban Shoalweed, which is sparce and totally non-existent during winter months. Construction of the proposed landfill could cause considerable turbidity if proper steps are not taken to prevent it. Turbidity would be very detrimental, at least on a temporary basis, to the waters of Boca Ciega Bay. Turbidity can be adequately controlled through the use of screening devices. If the Petitioner's permit application is approved, a .55 acre habitat for a variety of marine organisms would be lost. Crabs and clams would likely reestablish themselves in the areas just outside of the proposed landfill. Many of the creatures could be relocated to other more natural littoral zones in the area. Most of the residents of Three Palms Point appear to favor the proposed landfill. This opinion is not, however, unanimous. Residents who support the proposal testified of their concern with the continuing erosion in the area. Some witnesses were concerned that the area has become a dumping ground, and attracts recreational users for whom there are not adequate facilities. Persons who testified in opposition to the project expressed environmental concerns, and concerns with the disruption that construction in the area would inevitably cause. The testimony was not clear as to the present status of local government authorization of the project. It appears that the Petitioner has received local approval, but that during the two years that his application has been pending before the Respondent, the approval has lapsed.
The Issue Whether Respondent, Firehouse Subs/Wilson and Gettings Investment,1/ is liable to Petitioner, Bryan Siegel, for discrimination based on his religion, in violation of the Florida Civil Rights Act of 1992 (the Act), sections 760.01– and 509.092, Florida Statutes.
Findings Of Fact Petitioner is a 24-year-old male of the Jewish faith. He was employed as a sandwich maker at the Firehouse Subs franchise located at 2217 East Colonial Drive in Orlando, Florida, from January 20, 2011, until he was terminated on June 4, 2012. Petitioner claims he was subjected to a hostile work environment and unlawful termination based on his religion. Wilson and Gettings Investment (WGI) is the corporate entity under which Perry Wilson owned the subject Firehouse Subs franchise which employed Petitioner. WGI employed no more than 13 employees on any work day during the time Mr. Wilson owned the franchise. This particular Firehouse Subs was a busy location, particularly at lunchtime. Co-workers described the job as fast-paced at lunchtime, but more relaxed later in the day. Employees talked and socialized in the evenings. Some employees teased each other and made up nicknames for one another. For example, two employees, Ariel Wilkinson and Leticia Valentin, nicknamed Petitioner “Princess Brianna.” Petitioner described Ms. Wilkinson as a good friend. Mr. Wilson was aware that Ms. Wilkinson and Ms. Valentin used the nickname “Princess Brianna” for the Petitioner, but asked them to stop only if it offended Petitioner. There was no evidence either that Mr. Wilson inquired with Petitioner whether the nickname was offensive or that Petitioner complained of the nickname. Petitioner worked hard and put in a lot of hours at Firehouse Subs while attending school at the University of Central Florida. He is described by his co-workers as a hard worker during the hectic lunch-hour shifts. Petitioner excelled in some aspects of his job. For example, he was the fastest at accurately pre-portioning meats for each type of sandwich. On March 14, 2011, less than two months after he was first employed, Petitioner received a verbal warning. The Personnel Action Form states that although he had passed a test on menu knowledge, he was having problems reading the tickets. Petitioner was assigned a short training course in executing menu tickets. The general manager, Sophia Pernicano, noted that “once Bryan completes this course I see no further problems arising.” However, Petitioner developed additional problems at work, particularly displaying a poor attitude toward authority. On August 27, 2011, approximately seven months after Petitioner was hired, Ms. Pernicano gave Petitioner a written warning for cursing at her while he was working on the line. She described Petitioner as having a “mouthy attitude” which would not be tolerated. Approximately five months later, on January 20, 2012, Petitioner was written up for what is described as a “verbal altercation” with the store’s compliance director, Denise Miller. Following a meeting with Ms. Miller and Mr. Wilson, Ms. Pernicano presented Petitioner with two options: (1) take a one-week suspension, or (2) write a letter of apology to Ms. Miller. On the Personnel Action Form, Ms. Pernicano noted, Bryan is a great employee when he feels the need to be, I would like him to be a great employee at all times. The cursing, the bad attitudes, the flipping of the meat it has all got to stop. Otherwise I am left with no options but to end our Firehouse relationship. Petitioner chose to write the letter of apology and was allowed to return to work.2/ On June 4, 2012, Petitioner experienced an anxiety attack while driving to work. He testified that he remained in his car for some time after arriving at the restaurant in an attempt to collect himself, then entered the restaurant to work his shift. Petitioner testified that the panic attack continued while working his shift. He described the feeling of the walls closing in on him and decided he could not complete his shift. Petitioner reported to the shift supervisor, Ms. Wilkinson, that he was having a panic attack and needed to leave. Petitioner left without completing his shift. Ms. Wilkinson reported to Ms. Pernicano later that day that Petitioner had notified her he was not feeling well and needed to leave. After leaving the restaurant on June 4, 2012, Petitioner drove home, gathered some clothing and other belongings, then drove to his family home in Fort Lauderdale. Petitioner was seen by his family physician on June 7, 2012, and was diagnosed and treated for an anxiety disorder. Although the details are unclear, Petitioner was terminated by Mr. Wilson on June 4, 2012, after Mr. Wilson learned that Petitioner had left the restaurant during his shift. During his drive from Orlando to Fort Lauderdale, Petitioner contacted Mr. Wilson via text message. A series of text messages ensued which culminated in Mr. Wilson’s informing Petitioner he was terminated. Other than his communication to Ms. Wilkinson on June 4, 2012, Petitioner never reported to anyone at Firehouse Subs, prior to his termination, that he was experiencing anxiety or panic attacks. Petitioner returned to the restaurant several days later to turn in his uniform and pick up his final paycheck. At that time, Petitioner also signed and received a copy of the Personnel Action Form documenting his termination. Hostile Work Environment Petitioner alleges that he was subject to unlawful harassment by Mr. Wilson on the basis of Petitioner’s Jewish faith. Petitioner testified that Mr. Wilson introduced him as “the Jew” to his friends who would visit the restaurant, told Petitioner he was in “Jew heaven” in response to Petitioner’s skill at pre-portioning meats, and made anti-Semitic jokes on a regular basis. Petitioner further testified that on May 9, 2011, Mr. Wilson entered a sandwich order at the cash register and handed the receipt to Petitioner to make the sandwich he ordered. The receipt, which was received into evidence, notes the date the order was placed, the order number, and the description of a steamer sandwich with hot peppers, spicy mustard, and no dressing. In the space where the customer’s name would appear are the words “Now Ginger Jew.”3/ Petitioner testified he made the sandwich, put the receipt in his pocket, and moved on to another work station. He further testified he showed the receipt to another co-worker, Neal Faulkner. Mr. Wilson testified that he did not prepare the offensive receipt and could not testify with certainty whether he was present at the restaurant on the date in question. Further, Mr. Wilson testified that any employee would have had access to the cash register to ring up the order. The Employee Handbook for Firehouse Subs of Colonial (Handbook),4/ with which Petitioner was familiar, provides, with respect to harassment: If you believe that you have been subjected to harassment or if you believe you have witnessed any form of harassment, you should immediately contact your General Manager. An allegation against your own supervisor should be filed with the Director of Human Resources. Your complaint will be immediately and thoroughly investigated in a professional manner. There will be no retaliation against any employee who files a complaint in good faith or who assists in providing information relevant to a claim of harassment, even if the investigation produces insufficient evidence to support the complaint. Petitioner did not report to either his General Manager or Human Resources Director that that he was being harassed, demeaned, or otherwise discriminated against. In fact, Petitioner did not share with any co-worker, shift supervisor, or any other employee of WGI the fact that he was being harassed, demeaned, or otherwise discriminated against. Petitioner testified he did not report the harassment to Ms. Pernicano, the general manager, because she was in a personal relationship with Mr. Wilson. Petitioner stated he feared reporting it to Ms. Pernicano would jeopardize his job. Petitioner did not produce any witnesses to corroborate his hearsay testimony that Mr. Wilson referred to Petitioner as “the Jew,” stated he was in “Jew heaven,” or made anti-Semitic jokes during his tenure at Firehouse. At final hearing, Mr. Wilson denied having made any anti-Semitic jokes or otherwise harassing Petitioner on the job. Respondent introduced testimony of two of Petitioner’s co- workers who denied having heard any such statements by Mr. Wilson. The receipt for the sandwich order stating “Now Ginger Jew” is some evidence of a statement made by some employee of WGI in derogation of Petitioner’s Jewish faith. Unlawful Termination Petitioner alleges that his termination was unlawful, based solely on his religion and Mr. Wilson’s alleged prejudice against Jewish people. Respondent maintains Petitioner was terminated because he “abandoned his shift” on June 4, 2013, which, together with his previous disciplinary issues, constituted grounds for termination. According to the greater weight of the testimony, “abandoning a shift” means reporting for a scheduled shift but not completing the scheduled shift. The Handbook does not use the term “abandon shift.” With respect to attendance and punctuality, the Handbook states: It is important for you to report to work on time and to avoid unnecessary absences. Firehouse Subs of Colonial recognizes that illness or other circumstances beyond your control may cause you to be absent from work from time to time. However, frequent absenteeism or tardiness may result in disciplinary action up to and including discharge. Excessive absenteeism or frequent tardiness put an unnecessary strain on your coworkers and can have a negative impact on the success of Firehouse Subs of Colonial. You are expected to report to work when scheduled. Whenever you know in advance that you are going to be absent, you should notify your General Manager. If your absence is unexpected, you should attempt to reach your General Manager as soon as possible, but in no event later than one hour before you are due at work. In the event your General Manager is unavailable, you must speak with a shift manager/Shift Leader. If you must leave a message on voicemail, you must provide a number where your supervisor may reach you if need be. You are expected to be at your workstation at the beginning of scheduled shift. If you are delayed, you must call your General Manager to state the reason for the delay. As with absences, you must make every effort to speak directly to a manager. Regular delays in reporting to work will result in disciplinary action up to and including discharge. Further, the Handbook provides: If you become ill or get hurt while at work, you must notify your General Manager immediately. Failure to do so may result in a loss of benefits under the state workers’ compensation law. Firehouse Subs of Colonial is concerned about the physical well-being of its staff and encourages all employees to have periodic physical examinations. Check your Health Plan documents to determine coverage. Firehouse Subs of Colonial may also request that a physician examine you whenever conditions make this desirable for your protection or that of Firehouse Subs of Colonial. An additional section of the Handbook, which neither party addressed, is also relevant here. The section titled “Notification Procedures” provides as follows: When you are absent from work if your absence has not been previously scheduled, you must personally notify your General Manager as soon as you are aware that you will be late or unable to report to work. Leaving a voicemail, or a message with another staff member, does not qualify as notifying your supervisor –- you must personally speak with him or her. When absence is due to illness, Firehouse Subs of Colonial reserves the right to require appropriate medical documentation. Excessive absenteeism or tardiness can result in discipline, up to and including discharge. Petitioner maintains that he became ill at work on June 4, 2013, notified his shift supervisor, and was given permission to leave. He denies that he abandoned his shift. The evidence conflicted as to whether Petitioner failed to follow established procedure for leaving during a scheduled shift. Ms. Pernicano first testified that Petitioner did not comply with the company’s policy to notify the general manager so that the position could be filled for that shift.5/ On cross- examination, however, Ms. Pernicano testified Petitioner complied with the written policy to speak with the shift leader in the event the general manager was unavailable.6/ Petitioner’s absence on June 4, 2012, was not previously scheduled, Petitioner made no attempt to reach Ms. Pernicano, and Petitioner introduced no evidence that Ms. Pernicano was unavailable. Despite Ms. Pernicano’s equivocal testimony, the greater weight of the evidence supports a finding that Petitioner left his scheduled shift without following established procedure. In addition, Petitioner had been previously disciplined for insubordinate behavior on at least two occasions, a fact which he does not deny. Petitioner did not prove that he was terminated based upon his religion. Respondent did prove that Petitioner was terminated for a lawful reason.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner’s Discrimination Complaint and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 13th day of August, 2013, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 2013.
Findings Of Fact Prior to the acquisition of highway right-of-way for Interstate Highway 275, the Appellant operated a barbecue business on the 800 block of 22nd Street South in St. Petersburg, Florida. Appellant rented the premises on an annual lease basis. The rent included the building and the name of the business. It was a very good location for the barbecue business. A barbecue pit had been constructed on the premises. It was constructed of brick and stone, and was part of the building. The barbecue pit was included in the Appellant's lease of the premises. The Appellant's business was known as Geech's Barbecue. Appellant's rent was $200 per month. Geech's Barbecue was located within the right-of-way for a federal aid highway project, specifically Interstate Highway 275. The Respondent acquired the premises for the highway right-of-way. The Respondent gave the Appellant notice that he would have to vacate the premises. Appellant located a facility diagonally across the street. He arranged a seven-year lease, with an option to renew at a monthly rental of $150. The new premises did not include a barbecue pit. Appellant requested that the owner construct a barbecue pit, but the request was denied. In order to engage in the barbecue business at the new location, it was necessary for the Appellant to construct a new barbecue pit. The total cost of the pit was $4,350 of which $2,750 was for labor. It would not have been possible for the Appellant to engage in the barbecue business at the new location without constructing a barbecue pit. The method of construction of the barbecue pit was largely governed by provisions of local building codes. Appellant duly requested relocation assistance benefits. Among the requested benefits was the labor cost for the new barbecue pit. The Respondent paid the Appellant all relocation assistance benefits that he requested, except that the Respondent refused to compensate the Appellant for any expenses relating to the construction of the new barbecue pit. The owner of the old premises was compensated for the loss of the property and building. In appraising the former owner's property, due regard was given to the value of the barbecue pit that was located on the premises. The former owner was fully compensated for loss of the premises including the barbecue pit. The barbecue pit at the old facility was attached to the premises and was real property. Appellant's new barbecue pit is also real property. The Respondent's right-of-way agent who contacted the Appellant respecting the necessity for the Appellant to move and respecting potential relocation assistance benefits, advised the Appellant that he would be reimbursed for the labor cost of constructing a new barbecue pit, but not for materials. This advice is not consistent with the position that the Respondent is now taking, and is not consistent with the advice that the Respondent contends Appellant should have received. The erroneous advice resulted either from erroneous instructions given to the right-of-way agent by his supervisor, or from an erroneous interpretation of the instructions.
Findings Of Fact In March, 1982, the Petitioner, Eleanor R. Booth, and her husband, Fred E. Booth, owned and lived upon a tract of land located at 4721 State Road 84, Fort Lauderdale, Florida. The tract was taken by the Department of Transportation for road right- of-way, and the issue in this case is whether the Department of Transportation, pursuant to its policies, has properly calculated the amount to be paid to the Petitioner. Mr. Booth is now deceased. Mr. and Mrs. Booth lived on the property for thirty-four years. T. 48. The total tract was 19,593 square feet, which is somewhat less than one-half acre. T. 18, 21; P. Ex. 1. On or about October 15, 1982, which was the date of the appraisal of the property, there were seven trailers or mobile homes on the property. Two trailers were designated by the appraiser as storage and workshop, respectively. One trailer was designated by the appraiser as the mobile home of Mr. and Mrs. Booth. The others were not designated. The appraisal parcel sketch also showed a shed, a restroom, and a laundry. The shower and toilet (restroom) building was made of concrete and contained 58 square feet. A one story frame building of about 215 square feet was used as a laundry. The shed was a metal and frame shed measuring 8.5 by 8.0 feet. The appraiser considered the shower/toilet building and the laundry building to be real property improvements. The trailers were considered to be personal property. P. Ex. 1. The Department of Transportation selected as the comparable replacement dwelling a 1972 mobile home containing about 500 habitable square feet, 750 total square feet, and consisting of a total of 5 rooms, with 2 bedrooms and 1 bathroom. R. Ex. 2; T. 18, 23. The selling price was $29,500. R. Ex. 2. The primary issue in this case is whether the replacement dwelling described above is comparable. This in turn depends upon an analysis of the manner in which Mr. and Mrs. Booth used the various trailers and buildings located on their property. The mobile home which contained the kitchen, bedroom, and bathroom primarily used by Mr. and Mrs. Booth had about 322 habitable square feet and 390 total square feet. R. Ex. 2. It consisted of 4 rooms in total, 1 bedroom, 1 living room, 1 kitchen, and 1 bathroom. T. 71. The only evidence submitted by the Department of Transportation concerning the nature of the "dwelling" of Mr. and Mrs. Booth or the manner in which the additional trailers and other out buildings were used is the household survey, P. Ex. 1, which was signed on March 30, 1982, by Mr. Booth and B.A. Davis for the Department. This form was intended to identify the social and economic status of the family and to identify the number of rooms, number of baths, number of people, and similar data concerning the household, but the evidence shows that in part it was filled out incorrectly. P. Ex. 1 characterizes the "subject dwelling" as a mobile home consisting of 3 rooms, with 1 bedroom and 1 bathroom. Mr. Davis did not testify, and Mr. Booth is deceased. Tracy Graff, who was called by the Department as its only witness, made it clear that he did not personally know the status of uses of the out buildings and trailers, but simply concurred with what he thought was the conclusion drawn by Mr. Davis on P. Ex. 1 as to what was the "dwelling" of Mr. and Mrs. Booth. See T. 35, 39, 41, 42. Mr. Graff did not testify that the tract of land was or had been used as a commercial trailer park with trailers for rent to the public, and neither did any other witness. Mr. and Mrs. Booth routinely used the laundry building, the toilet and shower building, and the shed located on the property for their personal, domestic use. T. 50, 67, 68. Mr. Booth was rarely in the mobile home when visited by his daughter, but was elsewhere on the property working. T. 59. Mr. Booth primarily kept tools, lawn equipment, paint, and other maintenance materials in the shed. T. 62, 68, 75. Two other trailers were used by Mr. and Mrs. Booth for storage of personal belongings. T. 62, 68. This was necessary because there was not room enough in the one mobile home for storage of personal property. T. 64. 68. Mr. Booth "had a flea market." T. 62. Some of the "flea market" materials were stored in the trailers. T. 63, 64, 76. Some of the "flea market" materials may have been stored in the shed but most of the "flea market" materials were stored under canvas covers adjacent to the shed. T. 73-74. There is no evidence in the record to explain the nature of the "flea market" activities of Mr. and Mrs. Booth. It is uncertain where the flea market was. In 1982, Mr. and Mrs. Booth were living on the property. The niece of the daughter of Mr. and Mrs. Booth and her husband and two children, and the sister of the daughter of Mr. and Mrs. Booth were also residing on the property in 1982. T. 54. Additionally, a nephew of the daughter of Mr. and Mrs. Booth had a camper trailer parked on the property, and may have lived in it from time to time. T. 56, 61, 63. Finally, in 1982 Mr. and Mrs. Booth rented a space to a John Schneider to park his trailer, but apparently Mr. Schneider did not live on the property. T. 55. Thus, all of the persons residing on the property in 1982 were relatives of Mr. and Mrs. Booth. Id. Prior to 1982, one of the other trailers in which relatives lived in 1982 was used by Mr. and Mrs. Booth as a bedroom for their daughter, and as a place to live for their son and his two children. T. 64, 65. These family members were not restricted from using the laundry or toilet and shower buildings, T. 55, 56, and at times used these facilities. T. 71. When Mr. and Mrs. Booth moved from the property, they needed a three bedroom, two bath house and a shed measuring 54 by 25 feet (1350 square feet) to house all of the personal property moved to the new house and which they had had in storage and used in the trailers and shed on the original property. T. 65. Mr. and Mrs. Booth and their daughter considered the trailers to be part of their dwelling because they had pictures, books, and other personal item stored in them, T. 64, 65. The Respondent has adopted as policy the Right of Way Operating Procedures found in P. Ex. 2 and set forth in conclusions of law 4, 5, 6, and 8.
Recommendation For these reasons, it is recommended that the Department of Transportation enter its final order recalculating the replacement housing purchase additive due Eleanor Booth by reference to a comparable replacement dwelling the same as the comparable replacement dwelling initially identified by the Respondent, but having the major exterior attribute of another bathroom. WILLIAM C. SHERRILL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 1987. APPENDIX TO RECOMMENDED ORDER The following are rulings upon findings of fact proposed by the parties which have been rejected in this Recommended Order. The numbers correspond to the numbers of the proposed findings of fact as used by the parties. Findings of fact proposed by the Petitioner: None. Findings of fact proposed by the Respondent: 1. The second and third sentences are rejected because there is no competent evidence in the record that the trailers were rented to other parties or that the tract of land was operated as a "mobile home park." See finding of fact 8. COPIES FURNISHED: James M. Earls Arrow Consultants 3910 N. 65th Avenue Hollywood, Florida 23024 Vernon L. Whittier, Jr., Esquire Florida Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 Kaye H. Henderson, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thomas H. Bateman, III, Esquire General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0450 =================================================================
The Issue Whether Petitioner was unlawfully discriminated against and denied a reasonable accommodation for her child's disability by Respondent with regard to access to housing; and, if so, what is the appropriate remedy.
Findings Of Fact This matter involves a Complaint of housing discrimination filed by Petitioner against Respondent. Petitioner was a resident at the Goldenrod Pointe residential community from February 2017 until December 2018. The incidents at issue here occurred in connection with Petitioner’s tenancy at Goldenrod Pointe, an affordable residential apartment development located in Winter Park, Florida. This property is owned by Goldenrod Pointe Partners, Ltd., and managed by Concord Management, Ltd. Ms. Forbes is the Assistant Community Director for Goldenrod Pointe. Petitioner moved into the property with three minor children on February 18, 2017, pursuant to a one-year lease agreement with Respondent from February 18, 2017, through February 28, 2018. The lease was renewed for a second term for the period of March 1, 2018, to February 28, 2019. Petitioner alleges that Respondent engaged in discriminatory housing practices on the basis of familial status and her minor child's, Adrian, disability. More specifically, Petitioner alleges that Respondent: requested that Petitioner complete a form regarding her request for a service animal; improperly questioned Petitioner's minor son about an arrest that occurred on property; denied Petitioner's son full use and enjoyment to the premises after his arrest; made repeated unwanted phone calls to Petitioner outside of business hours; improperly denied Petitioner's request to transfer to a balcony unit to accommodate the needs of her son; improper entry into Petitioner's unit by Maintenance staff; and assessed Petitioner with unwarranted fines and fees at move-out. Service Animal In August 2018, Petitioner decided she wanted to provide a service animal for her son. Petitioner purchased a dog to be an "emotional companion" for Adrian. The dog was not approved for use at school or trained to provide any particular services for Adrian. The dog was left with its breeder at the time Petitioner initially inquired about allowing the dog in the apartment. Petitioner approached Ms. Forbes on August 27, 2018, about the need for the dog. Petitioner completed a form that was provided by Respondent and provided medical documentation from a healthcare provider showing Adrian's diagnosis of Attention-Deficit/Hyperactivity Disorder ("ADHD"). However nothing in the documentation referenced Adrian's need for an emotional support animal. Ms. Forbes forwarded the request form and additional materials to Respondent's Compliance Department, which determined additional information was needed. The Compliance Department instructed Ms. Forbes to have Petitioner complete another verification form which would confirm the need for an emotional support animal. This form was provided to Petitioner by Ms. Forbes. On September 25, 2018, Petitioner did not provide the requested verification form, but instead provided Ms. Forbes with additional documents from a medical professional indicating Adrian's qualification for a service animal. This in turn was provided to the Compliance Department on September 26, 2018. Petitioner's request for a reasonable accommodation, for a service animal to reside on the premises without a pet deposit was approved the next day, on September 27, 2018. Respondent immediately approved Petitioner's request for an emotional support pet as soon as it received the verification that the animal was needed as a reasonable accommodation. Accordingly, no discrimination occurred. Questioning the Details of Petitioner's Son's Arrest On April 28, 2018, Petitioner’s son Adrian was arrested for aggravated battery against Petitioner, which occurred in the Goldenrod Pointe apartment. Petitioner alleges that, following Adrian’s arrest for aggravated battery, Ms. Forbes “interrogated” Adrian about the incident. Ms. Forbes admits that she called Petitioner to the office to discuss the incident out of concern for the other residents of the complex. Ms. Forbes denies that she requested Adrian to attend or that she questioned him directly about the incident. Petitioner brought her son to the meeting. At or about the same time, Petitioner and Adrian claimed that other kids were ringing their bell or knocking on their door and running away. Ms. Forbes questioned Adrian regarding whether he could identify those other children. Goldenrod Pointe holds a Crime Free Multi-Housing Program certificate issued by the Orange County Sheriff’s Office for her participation in training on how to keep the apartment complex safe. A copy of this police report was automatically issued to Goldenrod Pointe—even without requesting it—by virtue of its participation in the Crime Free Multi-Housing Program. The police report showed that Adrian was arrested for aggravated assault with a deadly weapon and domestic battery against Petitioner, that he threw knives in the direction of his baby sister, and punched a hole in the wall in the apartment during the incident. After Ms. Forbes received the police report, Petitioner was asked to complete an incident report describing the events leading to the arrest. She completed this form on or about May 23, 2018. No evidence was presented suggesting that the information regarding what happened was solicited due to Adrian's disability. Rather, the information was requested because Respondent has a duty to ensure the safety of its other residents, and Adrian was arrested for very serious charges on Respondent's property. Use and Enjoyment of the Premises Petitioner's Complaint alleges that Respondent "denied her son access to the facilities at the apartment complex." The Complaint does not provide information regarding which son or what facilities. At final hearing, Petitioner alleged that after Adrian's arrest, she was told by Ms. Forbes that Adrian could not go outside on the apartment complex's property. Petitioner admitted she has nothing in writing memorializing this alleged directive, or evidence that Adrian refrained from using the premises. Ms. Forbes credibly and convincingly testified that she never provided such a directive to Petitioner or her son to preclude his access to the outdoor facilities or community amenities. Unwanted Telephone Calls Outside Business Hours Petitioner alleges that after her son's arrest, she received one or more phone calls from a restricted or unknown phone number after business hours. She assumed they were from Ms. Forbes. Petitioner failed to provide phone records, or any other documentation, evidencing the timing, frequency, or origination of these calls. Ms. Forbes denies calling Petitioner outside of business hours or for any reason other than apartment management related reasons. Ms. Forbes admitted she contacted Petitioner regarding Adrian's spray painting graffiti on the premises. This contact had no connection to Adrian's disability. Ms. Forbes explained that she would contact the parent of any child who was defacing the apartment community property. Request to Transfer to Balcony Unit At the time Petitioner considered leasing at Goldenrod Pointe, she visited a sister property that had three bedroom units with balconies. Petitioner claims she was promised a balcony unit at Goldenrod Pointe. None of the units at Goldenrod Pointe have a balcony. Several units have a decorative "balcony-like" railing under a window but there is no functional balcony in any of the units which would provide the unit with additional space. Petitioner did not view her apartment before her move-in date. Despite knowing once she moved in that the apartment had no balcony, Petitioner remained in the apartment throughout the initial lease term and renewed the lease for another year. At no time did Petitioner provide any written form or request to transfer to a balcony unit on property. Petitioner claims she submitted a transfer request to the Orlando Housing Authority (which provides a rent subsidy) for a larger unit with a balcony. This request was not put into evidence nor was it received by Respondent. Petitioner alleges that a larger unit with a balcony would somehow make it easier to accommodate her son's disability. However no evidence was presented to demonstrate that such a request was made, how it would assist with Adrian's ADHD, or how it would be "reasonable" in light of the fact that none of the units were built with a balcony. Entry Into Petitioner's Apartment by Maintenance Petitioner’s lease provides that entry may be made into an occupied unit by service personnel for the purpose of providing maintenance services during business hours. A maintenance work order was made for the air-conditioning system in the unit directly above Petitioner’s apartment on September 12, 2018. Maintenance needed to enter Petitioner's apartment to access the air handler for her neighbor's apartment. Given the extreme heat that day, Maintenance considered this repair a priority. Prior to entering any resident's apartment, Maintenance will knock three times. Petitioner alleges that she had just gotten out of the shower and was undressed at the time Maintenance knocked. She chose not to respond because she felt like she was being harassed and she had not made a maintenance request for her own apartment. She alleges that Maintenance entered without her permission and that the three knocks came in rapid succession, which did not give her adequate time to cover herself. After this entry occurred, Petitioner complained to Ms. Forbes. Ms. Forbes investigated, viewed the work order, talked to Maintenance personnel, and verified that Respondent's entry protocol was followed. Petitioner presented no evidence that the unwanted entry into her apartment was unwarranted or based upon her son's disability. Fines and Move-Out Fees Petitioner alleges that she was assessed trash fines for a discriminatory purpose after her son Adrian’s arrest. The Resident Handbook sets forth the community trash policy as follows: Disposal of Trash Improper disposal of trash anywhere on the community (including trash left outside of front doors, or by the dumpster or compactor areas) may result in a fine. All trash is to be placed in bags and all boxes are to be flattened before being placed in the dumpster or compactor. If a dumpster or compactor is full, please return after the container is emptied, and refrain from leaving trash outside the dumpster or compactor. In 2017, before Adrian's arrest, Petitioner was issued a written warning for violating the trash policy. On March 30, 2018, before Adrian's arrest, Petitioner received a fine of $25.00 for leaving one bag of trash outside of the dumpster or compactor. On October 30, 2018, Petitioner received a fine of $50.00 for leaving two bags of trash outside of the dumpster or compactor. Respondent alleges that the written warning and both subsequent fines were issued for violations of the community trash disposal policy. Petitioner admitted that the March 30, 2018, fine was valid, but alleges that the October 30, 2018, fine was discriminatory. Petitioner failed to provide any evidence that the latter fine was assessed for a discriminatory purpose. Petitioner also complains that at move-out she was improperly penalized for a gym access card. Petitioner believes that her oldest son accidently picked up someone else's gym access card while using the facility. Petitioner does not dispute that the card, which she returned at move-out, was not the card assigned upon her move-in. Petitioner was assessed a $50.00 fine at move-out for failing to return the card assigned to her household. No evidence was presented to show that this fine was related in any way to the disability of Petitioner's son or inconsistent with Respondent's policies. Petitioner also claims that when she broached the subject of early termination of her lease agreement, she was told by Ms. Forbes that she would incur an early termination penalty as defined in the lease. Petitioner opted for Option 2 in the lease agreement, which provides early termination may result in liability "for future rents as they become due under the lease." Petitioner claims that this threat of an early termination fee caused her to postpone moving. However, Petitioner, in fact, entered into a mutual rescission agreement with Goldenrod Pointe, approved by the Orlando Housing Authority, pursuant to which Petitioner was permitted to terminate her lease early for medical reasons, and which waived the early termination fee.
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 dismissing the Complaint. DONE AND ENTERED this 2nd day of September, 2020, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 2nd day of September, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Yocelin Barbarrosa 366 West 13th Street Hialeah, Florida 33010 (eServed) Elizabeth H. Howanitz, Esquire Wicker Smith O'Hara McCoy & Ford, P.A. 50 North Laura Street, Suite 2700 Jacksonville, Florida 32202 (eServed) Cheyenne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
Findings Of Fact The site of the proposed landfill is located near Seffner, Florida, and is northwest of and adjacent to two previously used landfill sites. The proposed site meets all zoning requirements, is not located in the vicinity of an airport so as to be subject to Federal Aviation Administration regulations, and no natural or artificial body of water is located within 200 feet of the site. Inasmuch as the operation of the earlier used landfills created much of the opposition presented at this hearing, a short history of Hillsborough County's landfill operation follows. Hillsborough County opened the old Taylor Road landfill, a tract containing 42 acres, in 1976 and closed it in 1980 when it became full. The old Taylor Road landfill site abuts to the southeast the site being applied for it these proceedings. In 1977, pursuant to a consent decree between the City of Tampa and the Federal Environmental Protection Agency (petitioners' Exhibit 14) , the City of Tampa's incinerator, at which most of the solid waste in Hillsborough County was disposed, was ordered closed by 1979. The City of Tampa engaged consultants to locate an acceptable site for use as a sanitary landfill. In 1978, Hillsborough County, pursuant to an agreement with the City of Tampa (Petitioners' Exhibit 15), assumed the responsibility for solid waste disposal throughout Hillsborough County. Thereafter, it was determined that the best site, from an ecological point of view, was adjacent to the old Taylor Road landfill. Prior to obtaining DER approval to expand this site, the selection of which the County Commission approved in April 1979, time for closing the incinerator was running out and the County was given permission to utilize a 10.6 acre borrow pit, adjacent to and west of the old Taylor Road site, which bad been given to the County by the State Department of Transportation. This approval was given by DER in January 1980. When Hillsborough County assumed the responsibility for waste disposal throughout the County, waste from Temple Terrace and Plant City was added which waste had not been disposed of by the City of Tampa incinerator. The County entered into a contract with Waste Management Inc., a large company specializing in developing and operating waste disposal facilities in many parts of the United States and abroad, to design and operate Hillsborough Heights Sanitary Landfill. The 10.6 acre site would quickly be filled so it was necessary for the County to `reapply to DER for a permit to operate a landfill capable of serving the County until 1984. At that time, modification to the incinerator to comply with clean air standards and operate as an energy recovery unit will be complete and it can be restored to operation. Before that hearing was held the 10.6 acre site filled, and it became necessary for the County to request an emergency permit from DER to operate a landfill on part of the proposed site. Following a hearing on this request, DER issued an order in July 1980, authorizing Hillsborough County to operate a sanitary landfill on 41.5 acres adjacent to the old Taylor Road landfill and the 10.6 acre borrow pit site. By the application here under consideration, as modified by Stipulation and Settlement Agreement, the Petitioners are seeking to expand this 41.5 acre site to 64 acres, thereby adding 22.5 acres to the already approved site. Two thousand tons of solid waste are deposited at this site daily, six days a week. The primary concern respecting a sanitary landfill in the proposed location is the potential for pollution of the Floridan aquifer which underlies this site and the fact that the site is located in a karst area. Unless an impervious surface lies naturally or is constructed between the base of the proposed landfill and the Floridan aquifer, pollution of the aquifer could occur should leachate from the site accumulate and percolate to the aquifer. All of Hillsborough County and much of Florida is underlain by limestone containing karst features. One unfortunate characteristic of the karst formation is the potential for the limestone to dissolve thereby creating cavities into which the surface overburden falls to create a sinkhole. Some liquids, including leachate, will dissolve limestone, thereby creating cavities into which the overburden can fall. This risk is reduced by the thickness of the clay layer over the limerock which inhibits the entry of surface water into the aquifer. The proposed site has a basal clay from five feet to twenty feet thick above the limerock. However, this base clay is not believed to be continuous throughout the site to this minimum thickness due to sand columns, pinnacles and other anomalies that have formed. Petitioners propose to remove some 35 to 45 feet of the overlying sand and intermediate clay down to the base clay to form the pit into which waste will be deposited. The thickness of this base clay over the limerock will then be tested. If at least five feet of clay is not over the limestone, Petitioners will install a minimum of five feet of recompacted clay liner with a density of at least 2.5 - X 10 (to the seventh power) cm/sec. over the bottom of the landfill. Impervious sidewalls around the edges of the landfill will be constructed of either a minimum of five feet of compacted lay or of Hypalon, a synthetic sidewall liner material, in accordance with the Stipulation Agreement. If Hypalon is used, it will be covered with at least two feet of soil before waste is put in the landfill. Petitioners will install a leachate collection system for monitoring and removing, if necessary, leachate that may collect in the bottom of this landfill. Perimeter ditches will be constructed around the bottom of the landfill with the floor of the landfill sloped toward the perimeter ditches. These ditches will contain perforated pipe to conduct leachate to sumps from which the leachate can be removed. Should leachate be generated before the landfill is closed, the leachate will be extracted by pumping; and discharged for absorption by solid waste at the landfill, or trucked to a treatment plant for processing. After each day's operations at this landfill, at least six inches of soil will be placed over the compacted solid waste accepted that day. This should provide reasonable protection for rodents and insects. Final soil coverage to be used as a top liner for this landfill will consist of at least eighteen inches of compacted clayey soil overlain by six inches of loosely compacted soil in order to provide a final cover to minimize infiltration of surface water runoff. The final surface of the landfill will be graded and sloped so rainfall will not puddle on the landfill but run off to the perimeter of the landfill. Thus, when completed, the deposited waste will be encased in a relatively impermeable container on all surfaces. Perimeter ditches will be installed to keep surface waters out of the landfill, and these ditches will be lined with 18 inches of clay to inhibit seepage of water to the landfill from these ditches. The ditches will discharge into holding ponds located south and southwest of the site. Surface waters in this vicinity flow south to southwesterly. Access to the landfill will be controlled by a perimeter fence and entry gate which will be manned during all hours of operation and locked when not manned. Disposal of hazardous or infectious waste will not be allowed. Spotters will be stationed at the dump site to inspect waste entering the site and to detect any hazardous or infectious waste that may reach the landfill. Household wastes will be accepted and these may include small quantities of paints, insecticides and other material that in large quantities would be considered hazardous. Litter will be controlled by temporary fencing or portable litter fences. Bare limestone exposed by excavation will be protected from flow of water from the active landfill area by berms until such time as the limestone is covered by the five feet of compacted base clay. During excavation of the landfill, a geologist or hydrologist will be stationed at the site by the operator of the landfill to determine the nature and extent of earth materials encountered. Anomalies found during excavation will be recorded and reported. This will serve to insure the impervious five feet clay base between the landfill and the limestone. Methane gas control will be provided by the base clay underlying the landfill, the liners to be constructed around the landfill perimeter, and the clay soil cover. Rising gas will vent through the soil cover. If odor problems occur, gas vents will be installed at the high point of the landfill to provide a controlled path for these gases which can then be flared. Groundwater monitoring wells will be installed around the perimeter of the site to detect any leachate which may escape. Wells upgrade of the site will be installed to determined whether metals or other impurities detected in the downgrade monitoring wells come from the landfill or are in the groundwater before it gets to the landfill. The geology of the site is complex. Numerous test borings have been taken in the 218.6 acre tract, sinkholes in the area have been studied, special photographs of the site have been taken to show where changes and moisture in soil occur as well as other geologic features. All available information shows the 64 acre parcel in the southern part of the 218.6 acre site to be the safest in the site from a catastrophic subsidence (sinkhole) Although the Intervenors contend that the site is subject to sinkholes, no credible evidence was presented that this site is more subject to a catastrophic subsidence than is the remainder of Hillsborough County. Competent evidence was presented that a sinkhole is less likely to develop at the proposed 64 acre site than in other areas of Hillsborough County. Intervenors' and the public witnesses' primary complaint and vehement opposition to the granting of the permit here requested stem largely from the manner in which the predecessor landfills in this area have been operated; and rightly so. Infectious waste has been dumped on the site on several occasions; inadequate daily cover has been provided; dogs have roamed the site; birds have been killed by insecticides dumped on the site; papers have blown over the site; surface waters from the site have been pumped outside the site in such a manner that well water could be contaminated; inadequate precautions have been taken to prevent rodent and insect infestation of the site; and unpleasant odors have emanated from the site. These complaints go to conditions that existed in the past; they are not necessarily harbingers of things to come. Hillsborough County's lease law should preclude dogs roaming the site. Strict adherence to the conditions of the permit will eliminate the vast majority of those complaints.
The Issue The issue in this case is whether Respondent, Dome Grill, Inc. (the Grill), discriminated against Petitioner, Jennifer Morehead, on the basis of her age.
Findings Of Fact Ms. Morehead is now a 51-year-old female, who, at the time of this incident had three years of experience as a cashier. On January 9, 2012, Ms. Morehead spoke with Michael Karamalakos (Mr. Karamalakos), the owner of the Grill, about any openings at the Grill. Mr. Karamalakos invited Ms. Morehead to come to the Grill the following day to discuss an open cashier position. The Grill is located at 561 Central Avenue, St. Petersburg, Pinellas County, Florida. On January 10, 2012, Ms. Morehead arrived at the Grill for her interview. She encountered Kostas Karamalakos (K.K.), a son of the owner. When K.K. heard that Ms. Morehead was there to interview for the cashier position, K.K. stated something to the effect: "We wouldn't be interested in you. We are looking for someone young and beautiful." K.K. admitted to making a statement to this effect, although he could not remember his exact words. Ms. Morehead was stunned by K.K.'s remarks. K.K. did not offer to get his father for the interview, nor did Ms. Morehead complete an interview for the cashier position. After K.K. repeated his statement to Ms. Morehead a second time, she left the Grill. Once Ms. Morehead left the Grill, she confided in a friend Jennifer Zoellner about K.K.'s statement. Not believing that anyone would verbalize that kind of discriminatory sentiment, Ms. Morehead and Ms. Zoellner returned to the Grill. Upon entering the Grill, Ms. Zoellner asked K.K. to repeat what he had said to Ms. Morehead. K.K. did so, informing Ms. Zoellner that the Grill was looking for a young and beautiful college-aged cashier. After a heated exchange between Ms. Zoellner and K.K., the two women left the Grill. Alex Karamalakos (A.K.), another son of the owner was also present when Ms. Morehead and Ms. Zoellner returned to the Grill. A.K. was standing in close proximity to K.K. when the two women entered the Grill. A.K.'s testimony that he did not hear K.K.'s discriminatory statement when K.K. repeated it to the two women is not credible. A.K. became visibly upset with K.K. when K.K. uttered his discriminatory statement to the women. A.K. neither apologized for his brother's statement nor stated that it was not the position or policy of the Grill. K.K. admitted to making the discriminatory statement to Ms. Morehead. K.K. is the youngest son of Mr. Karamalakos and is recognized by patrons as belonging to the owner's family. K.K. lives above the Grill (with other members of his family), spends time at the Grill, and attends college. K.K. prepares and eats his breakfast and lunch at the Grill. K.K. may not be on the payroll of the Grill, but he continues to perform minor tasks at the Grill. K.K. admitted that he has, in the past, held himself out as a manager of the Grill. The Grill has hired people who are over 40 years of age. Mr. Karamalakos maintained that he is the only person who has the authority to hire and/or terminate Grill employees. However, when he is away from the Grill, A.K. is in charge, and A.K. is considered the general manager of the Grill. A.K. and K.K. do not get along. Although there was testimony that other younger cashiers have been hired by the Grill, no testimony was received as to who was hired as the cashier at the time Ms. Morehead made her inquiry at the Grill. It is unknown whether a younger person was hired for the position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the claim for relief filed by Petitioner, Jennifer Morehead, should be denied. DONE AND ENTERED this 8th day of August, 2013, in Tallahassee, Leon County, Florida. S Lynne A. Quimby-Pennock 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 8th day of August, 2013.
