The Issue Whether or not on or about October 15, 1976, the Respondent, its agent, or employee did knowingly promote, permit a lewd, obscene or indecent show contrary to Section 847.011(4), F.S. Whether or not on or about October 15, 1976, the Respondent's agent, employee or servant Mary Ann Palek, did participate/perform in a lewd, obscene, or indecent show or act contrary to Section 847.011(4), F.S. Whether or not on or about October 15, 1976, the Respondent's agent, employee or servant Caroline Ann Ruegg did participate/perform in a lewd, obscene, or indecent show or act contrary to Section 847.011(4), F.S. Whether or not on or about October 15, 1976, the Respondent's agent, employee or servant Theresa Ann Caldwell did participate/perform in a lewd, obscene, or indecent show or act contrary to Section 847.011(4), F.S. Whether or not on or about October 15, 1976, the Respondent's agent, employee or servant Veleta Rose Shorter did participate/perform in a lewd, obscene, or indecent show or act contrary to Section 847.011(4), F.S. Whether or not on or about October 15, 1976, the Respondent's agent, employee or servant Nancy Lee Henry did participate/perform in a lewd, obscene, or indecent show or act contrary to Section 847.011(4), F.S. Whether or not on or about October 15, 1976, the Respondent's agent, employee or servant Joyce Gail Waechter did participate/perform in a lewd, obscene, or indecent show or act contrary to Section 847.011, F.S. Whether or not on or about October 15, 1976, the Respondent's agent, employee or servant Arbrenda D. Thomas did participate/perform in a lewd, obscene, or indecent show or act contrary to Section 847.011, F.S. Whether or not on or about October 15, 1976, the Respondent's agent, employee or servant Mary Hildegrade Szczebak did participate/perform in a lewd, obscene, or indecent show or act contrary to Section 847.011(4), F.S. Whether or not on or about October 15, 1976, the Respondent's agent, employee, or servant Gladys Amol did participate/perform in lewd, obscene, or indecent show or act contrary to Section 847.011(4), F.S. Whether or not on or about October 15, 1976, the Respondent's agent, employee or servant Ann M. Hall did participate/perform in lewd, obscene, or indecent show or act contrary to Section 847.011(4), F.S. Whether or not on or about October 15, 1976, the Respondent's agent, employee, or servant Emma Lou Weagraff did participate/perform in lewd, obscene, or indecent show or act contrary to Section 847.011(4), F.S. Whether or not on or about October 15, 1976, the Respondent's agent, employee, or servant Peggy Janet Scroggins did participate/perform in lewd, obscene, or indecent show or act contrary to Section 847.011(4), F.S.
Findings Of Fact At all times material to the proceedings Paul Vogelbacher was the holder of license no. 58-695, held with the State of Florida, Division of Beverage. This license was held to do business as the Gaslite, located at 2201 S. Orange Blossom Trail, Orlando, Florida. On one occasion in late September, 1976, dancers within the licensed premises were observed sitting astride male customers' laps with the customers' legs together and the dancers' legs spread apart. While seated in this posture the dancers were making bumping and grinding motions on the customers' laps, while the customers fondled the breasts of the dancers. One customer handed a beer bottle to one of the dancers who rubbed the bottle on her pubic area. The licensee, Paul Vogelbacher, entered the premises around 10:30 P.M. on that evening, and was present while the aforementioned activity by the dancers was taking place. Vogelbacher also looked around the area where the dancing was taking place. Vogelbacher then left the premises, after staying 15 or 20 minutes. The customers, dancers, and Vogelbacher had been observed in this incident by Deputy John C. Swanson, Orange County Sheriff's Office. Deputy Swanson and Deputy Wood of the same law enforcement agency, returned to the licensed premises on Saturday afternoon, about a week after the first occasion. On this visit, dancers were observed seated on the male patrons' laps as before, and these girls were allowing the customers to fondle their breasts. The licensee Paul Vogelbacher was not in attendance at that time. Deputy Swanson, other members of the Orange County Sheriff's Office and members of the State of Florida, Division of Beverage returned to the licensed premises on October 15, 1976. Officer Swanson entered the licensed premises between 9:15 and 9:30 P.M. and was in the premises from that time until 11:00 P.M., at which time a raid of the licensed premises was made and a number of arrests affected. Dancers in the licensed premises to wit: Mary Ann Palek, Caroline Ann Ruegg, Theresa Ann Caldwell, Veleta Rose Shorter, Nancy Lee Henry, Joyce Gail Waechter, Arbrenda D. Thomas, Mary Hildegrade Szczebak, Gladys Amol, Ann M. Hall, Emma Lou Weagraff, and Peggy Janet Schoggins were seen seated on individual male customer's laps rubbing the area of their crotch against the crotch of the customers. In addition, Theresa Ann Caldwell, while dancing on the stage allowed one male patron to pull down her g-string and put his nose up her rectum. The dancer Nancy Lee Henry spoke to officers Swanson and Wood and told them, "the dancing is against the law, but a gentleman is at the door to lookout, we're not supposed to sit astride the customers". One patron was also seen fondling the breasts of the dancer, Arbrenda D. Thomas. Mary Hildegrade Szczebak allowed three or four customers to touch and fondle her breasts. Finally, Gladys Amol allowed three or four customers to fondle her breasts. All the activities immediately mentioned occurred on October 15, 1976, the night of the raid and arrests. All these activities were occurring while a bartender was on duty in the licensed premises; however, Paul Vogelbacher was not in attendance. Vogelbacher had never instructed any of the girls to dance in the manner shown on October 15, 1976, and two and possibly more of the dancers indicated that Vogelbacher had told them on at least one occasion not to dance in the aforementioned manner. Prior to the time of the raid on October 15, 1976, Vogelbacher would come to the licensed premises for 1/2 hour to 2-1/2 hours, but not everyday. Since that time Vogelbacher has come to the bar at least once a work day and stayed 30 minutes up to an entire day, which is a 14 hour day in the licensed premises. Two weeks prior to the hearing before the Division of Administrative Hearings, Swanson returned to the bar and observed the same form of activity by the dancers in the licensed premises, meaning bumps and grinds while seated on the laps of the male patrons.
Recommendation Based upon the violations as established in this cause, it is recommended that the license no. 58-694, held by Paul Vogelbacher with the State of Florida, Division of Beverage, be suspended for a period of 30 days. DONE and ENTERED this 8th day of April, 1977, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Charles T. Collett, Esquire Russell Crawford, Esquire Department of Business Regulation 127 North Magnolia Avenue 725 Bronough Street Orlando, Florida 32801 Tallahassee, Florida 32304 J. Cheney Mason, Esquire 127 North Magnolia Avenue Orlando, Florida 32801
The Issue Pursuant to section 760.08, Florida Statutes (2015), the issue is whether, in the furnishing of public accommodations, Respondent is guilty of discrimination against Petitioner on the grounds of race, color, and national origin by prohibiting Petitioner from re-entering the business premises of Respondent due to Petitioner's sexual harassment of Respondent's employees.
Findings Of Fact Petitioner moved to the United States nine years ago from Maracaibo, Venezuela. Petitioner is Hispanic, speaks English with a Spanish accent, and is dark-complected. Pepito's Plaza is a small retail complex in Doral, Florida, comprising a gas station/convenience store and three small restaurants. Respondent owns and operates the gas station/convenience store. The business owners, employees, and customers of Pepito's Plaza are nearly entirely Hispanic. Like Petitioner, the business owners are also from Venezuela. For three years, Petitioner has delivered food for a restaurant located near Pepito's Plaza. Petitioner has sometimes purchased items for delivery from the convenience store or the three restaurants. Petitioner's initial contact with employees of the convenience store and restaurants was unremarkable. He impressed a clerk of the convenience store, Ms. Maria Gabriela Villarroel, as a kind and educated gentleman. During one visit to the convenience store, Petitioner noticed that Ms. Villarroel had displayed on the counter a set of her business cards, which announced an Herbalife® business that she operated on the side. Petitioner took a card and, using the personal phone number of Ms. Villarroel shown on the card, later purchased Herbalife® products from her. In February or March 2015, Petitioner used Ms. Villarroel's phone number to text and call her repeatedly to ask her out on a date and make advances. Ms. Villarroel never consented to go on a date with Petitioner, did nothing to encourage this behavior, and stated that she did not welcome his advances, culminating with a complaint in April 2015 that she felt stalked and harassed by Petitioner's obsessive behaviors. Nevertheless, Petitioner persisted in these behaviors. Not only did Petitioner persist in these behaviors with Ms. Villarroel, but, early in the summer of 2015, Petitioner began harassing Amalia Almedia, a female employee of Pepito's Arepas Bar, which was one of the restaurants in the complex. Visiting the restaurant several times daily, Petitioner rarely purchased anything, but instead talked to Amalia Almedia and other female employees. Soon, Petitioner was blowing kisses at Ms. Villarroel and Ms. Almedia, winking at them, and making sexual facial expressions at them. Petitioner loitered by the window of the restaurant, occasionally leaning in to stare at Ms. Almedia's body. Unable to deal with the problem themselves, Ms. Villarroel and Ms. Almedia complained to the manager of Pepito's Plaza, Luis Martinez, who did not immediately talk to Petitioner. However, in late June or early July, Petitioner visited Arepas Bar and offered a plastic shopping bag to Ms. Almedia, who declined the offer. Petitioner then left the bag on the counter and left. Ms. Almedia summoned Mr. Martinez, who inspected the bag and found that it contained two pair of new women's' colored panties. Mr. Martinez noticed that a police officer happened to be at the plaza, so he asked the officer to join Mr. Martinez in approaching Petitioner and ordering him not to return to Pepito's Plaza due to his harassment of female employees. Accompanied by the officer, Mr. Martinez found Petitioner on the plaza premises and told him that he had been harassing the female staff for some time, and he was no longer welcome anywhere at Pepito's Plaza. Petitioner attempts to provide context in two respects: first, he claims that he was the subject of dismissive comments from the female employees of Pepito's Plaza. Because Petitioner does not acknowledge that his coarse, repeated behaviors toward these employees constituted harassment, he is, of course, unable to frame the issue as dismissive comments from the female staff whom he was sexually harassing. There is no evidence that female staff initiated any disrespectful behavior toward him prior to the harassment, nor is there any evidence that the dismissive comments were indicative of anything more than an honest attempt by these beleaguered women to get Petitioner to stop harassing them as they attempted to perform their employment duties within fairly constrained areas that left them continuously vulnerable to Petitioner's stalking of them. Petitioner's second point is that he was entitled to a warning before being barred from Pepito's Plaza. To require a warning from a manager is to discredit the attempts by the female staff themselves to stop the harassment. Petitioner was fully aware that his sexual banter and advances produced feelings of annoyance, repulsion, and even safety concerns. On these facts, the absence of a prior warning from Mr. Martinez no more supports an inference of discrimination than does his order that Petitioner no longer enter the premises of Pepito's Plaza.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed on January 28, 2016. DONE AND ENTERED this 27th day of October, 2016, in Tallahassee, Leon County, Florida. S Robert E. Meale Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 2016. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed) Carlos E. Burgos Pepito's Plaza 10701 Northwest 58th Street Doral, Florida 33178 (eServed) Benjamin Korn, Esquire The Law Offices of Benjamin Korn, PLLC 444 Brickell Avenue, Suite 51-332 Miami, Florida 33131 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue Whether the Respondent, Darrell Timothy Roundtree (Respondent), committed the violations alleged in the Administrative Complaint dated May 30, 2006, and, if so, what penalty should be imposed. The Respondent has denied any and all wrongdoing.
Findings Of Fact At all times material to the allegations of this case, the Respondent was a teacher employed by the Broward County Public School District. He was assigned duties as a physical education teacher during the 2003/2004 school year at Walker Elementary School. The Respondent holds a Florida Educator’s Certificate and is subject to the provisions of law governing the conduct and discipline of teachers within the state. The Petitioner is responsible to investigate and prosecute complaints against persons who hold Florida Educator’s Certificates who have allegedly violated provisions of law. In this case, the Petitioner filed a six-count Administrative Complaint against the Respondent following an investigation of charges that came from the Broward County School District. Although the allegations in the instant case are not the first disciplinary concerns regarding the Respondent, the instant charges, if proved, are sufficient to warrant disciplinary action against the Respondent's teaching certificate. Prior allegations against the Respondent resulted in a Letter of Concern being placed in his file based upon a claim that he had tweaked the nipples of a seven-year-old student. A second charge was not prosecuted due to the lack of cooperation by the alleged victim and his parent. The Respondent resigned his employment with the Broward County School District on September 16, 2005. The resignation followed an investigation into the conduct that is the subject matter of the instant proceeding. Sometime in 2003 the Respondent started a business for the purpose of providing male escorts. As depicted in this record, males hired through the Respondent's company were dispatched to parties or events and asked to dance and provide male companionship for the attendees of the party. Although prostitution was not the stated goal of the enterprise, it was not without possibility given the nature of the information describing the males. Pictures of the males were posted to the Respondent's website with listings as to sexual preference, age, and dimension of the males' anatomy. Although he initially denied involvement in the website, the record is clear the Respondent took pictures of partially nude males for the purpose of posting them on the website, SouthFloridaThugz.com. One of the males was a student in the Broward County GED program. The student, J. M., heard about the Respondent's business through a friend. A partially nude picture of J. M.'s friend was posted on the Respondent's website. According to J. M., the Respondent would take pictures of the males, post them for review, and schedule "parties" for the "clients" to attend. J. M. was scheduled to attend one such party. Based upon his conversation with the Respondent, J. M. expected to attend a party, dance nude for the attendees, and receive $300.00 for compensation. From that $300.00 J. M. expected the Respondent to receive a portion of the compensation. J. M. believed that the party would have women as well as men in attendance. J. M.'s friend had suggested that sometimes "safe sex" might occur. When he got to the party, J. M. was stunned to find that only men attended. He did not expect to be watched by gay men. He did not agree to that and insisted on leaving. He returned the $300.00 and told the Respondent he would not "do business" with him. Later J. M. went to authorities to file a complaint against the Respondent. J. M.'s complaint led to an investigation by the Broward County School District. Thereafter, the Respondent's school-issued computer was examined. The school-issued computer was used to access adult websites, chat sites, and other inappropriate sites. Petitioner's Exhibits 6 and 8 show a complete listing of the sites. The Respondent claimed that the computer use was not his, but such denial has not been deemed credible. After the matter was fully investigated by the Broward School District, it was determined that the Respondent had lost his effectiveness with the school system. The instant case was investigated and prosecuted over a period of time within which the Respondent and others gave multiple statements. The Respondent gave inconsistent and contradictory statements on more than one occasion. The student, J. M., was deemed the more credible of the two. Further, it is determined that the computer history of the Respondent's school-issued computer clearly and unambiguously established that the Respondent accessed inappropriate websites and chat rooms. It is determined that the Respondent did not verify the age of J. M. before making the pictures of his nude torso and groin area. Further, the Respondent did not maintain records to verify that the other nude and partially nude males depicted on the website were adults. Finally, it is determined that the purpose of the website was not for "dancing." The depiction of the males' penises in a state of arousal would not suggest or relate to any dancing ability. The Respondent's claim that his privacy has been invaded is unfounded. Teachers in the State of Florida are held to a high standard of conduct. It is expected that a school- issued computer may be subject to inspection by school authorities. The Respondent has taught for approximately 21 years.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order permanently revoking the Respondent’s teaching certificate. DONE AND ENTERED this 5th day of March, 2009, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 5th day of March, 2009. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 224-E 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Charles T. Whitelock, Esquire Whitelock & Associates, P.A. 300 Southeast 13th Street Fort Lauderdale, Florida 33316 Darrell Timothy Roundtree 2388 South Oakland Park Drive, Apartment 202 Oakland Park, Florida 33309
The Issue Whether or not, on or about January 25, 1977, in the licensed premises located at 1600 North Dale Mabry Highway, Tampa, Hillsborough County, Florida, the licensed premises of the Respondent, the Respondent's employee, agent, servant, or entertainer, to wit: Linda Sue Richardson and/or Gayle Jeanette Landrum, allegedly employed at the licensed premises or employed on a contractual basis by the Respondent to entertain, perform, or work on the licensed premises known as, Tigers Den A Go Go, did commit or engage in a lewd and lascivious performance by a live person by committing obscene and indecent acts in violation of 847.011, F.S. and thereby subject the licensee to the penalty provisions of s. 561.29, F.S.
Findings Of Fact At present and at all times pertinent to this cause, to include January 25, 1977, the Respondent, Mardi Gras De Tampa, Inc., was the holder of license no. 39-0246, series 4-COP, held with the State of Florida, Division of Beverage. This license was held to trade as Tigers Den A Go Go in a premises located at 1600 North Dale Mabry Highway, Tampa, Hillsborough County, Florida. On January 25, 1977, officers of the Hillsborough County Sheriff's Office entered the licensed premises. The officers were Detectives Ridgeway and Coakley. While in the licensed premises the officers observed an entertainer Linda Sue Richardson dancing. In the course of the dancing Richardson inserted a plastic straw into the g-string costume which she was wearing, and simulated masturbation. The officers also observed Richardson, in the course of the dance, take a napkin and rub it on her vagina, and then roll the napkin up and place it in her mouth and simulate oral sexual activity. At the time the officers were in the licensed premises and on the same date, they observed the dancing of a second female entertainer, one Gayle Jeanette Landrum. They saw Landrum place her hand in her g-string costume and simulate masturbation. Landrum also fondled her breasts in a provocative manner. The exact location within the licensed premises where the above described dancing took place is not specifically known, beyond the fact that one dancer was dancing on a large stage behind the bar and the other dancer was dancing on a smaller stage which was placed in the area where patrons would be seated. The dancing took place at a time that customers were in the licensed premises. The two women were arrested and charged with lewd and lascivious conduct and both were convicted of a violation of s. 847.011, F.S. On the date of the arrest of the two dancers, Carol Alcorn was in charge of the licensed premises in the capacity of manager. Alcorn was also serving as bartender on that occasion. The two female entertainers were employed on January 25, 1977 for compensation by the Respondent, Mardi Gras De Tampa, Inc. The two women were operating under the specific instructions of the Respondent on the subject of their conduct while performing. These instructions were generally to not commit acts which would be considered lewd and lascivious within the meaning of the "Florida Law". In addition the dancers were not to touch themselves or fondle themselves or let customers touch them. The women had been told these basic rules in individual conferences. Another policy which the management had, was to call the performers attention to any improper conduct, and dismiss performer if the performer failed to abide by management rules on the subject of proper conduct. In fact, the Respondent's management employees had corrected dancers before. On the occasion when the officers observed the conduct of Richardson and Landrum, it is unclear what period of time was encompassed to achieve the acts described. In the normal course of events the women would have been dancing for the duration of three records, which would be approximately nine minutes. They would have been dancing as a part of a group of six to eight dancers. The bartender would have been able to see any dancer performing on the stage behind the bar or performing on the stage in the area where the patrons were seated. The view of the two stages from the location the bartender would have behind the bar would have been unobstructed. Whether or not the bartender, Carol Alcorn, actually saw the subject dancing of Richardson and Landrum can not be determined from the facts offered in the hearing. What was shown was that the bartender went to the restroom, which was away from the bar itself, and was confronted by the two officers when leaving the restroom area. This confrontation was for the purposes of complaining about the activities the officers had observed on the apart of Richardson and Landrum. The acts which took place in the course of the dancing, by Linda Sue Richardson and Gayle Jeanette Landrum, constitute lewd and lascivious conduct within the meaning of s. 847.011, F.S. From the facts presented in the course of the hearing, it has not been shown that the Respondent, Mardi Gras De Tampa, Inc., has violated s. 561.29, F.S., as a result of the acts of their employees Linda Sue Richardson and Gayle Jeanette Landrum. The facts do not show that the Respondent is responsible for those acts of the employees either through its own negligence, intentional wrongdoing, or lack of diligence.
Recommendation It is recommended that the charge filed by the Petitioner against the license of Mardi Gras De Tampa, Inc., t/a Tigers Den a Go Go, under license no. 39-0246, series 4-COP, as set forth above, be dismissed. DONE AND ENTERED this 28th day of July, 1977, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: William Hatch, Esquire Tom Whitaker, Esquire Division of Beverage 403 North Morgan Street 725 South Bronough Street Tampa, Florida 33602 Tallahassee, Florida 32304
The Issue Whether just cause exists for the proposed disciplinary action against the Respondent.
Findings Of Fact At all times material to this case, Respondent Keven Renken (Respondent) was employed under a professional services contract as a teacher at the Pinellas County Center for the Arts Program (PCCA) at Gibbs High School. On February 11, 1994, the Respondent arrived at about 7:30 a.m. to teach a first period acting class. Prior to the start of classes, another PCCA teacher approached the Respondent and requested permission to bring his class to the Respondent's to view a videotape made by one of the Respondent's students. Although the Respondent apparently was unaware of thee videotape or its content, he consented to permit the other class to view the film in his classroom. After the last bell and before the class began, a student, Marshall Bross, approached the Respondent and requested permission to play a videotape to the class. The student told the Respondent it was an anti-drinking tape. The Respondent granted the student's request. The Respondent did not preview the tape. On February 11, 1994, the Respondent's first period acting class contained not more than five students, each about 15- 16 years old. Many students were absent, apparently because they had participated in a performance on the previous evening. The Respondent asserts that he had intended for students to rehearse script lines during class but was not able to do so because of the low number of students present. During the time that Bross was cueing the tape in the machine, the television set was turned away from the Respondent's view. When the tape was ready for viewing, Bross turned the machine towards the classroom seats. At the time the tape began to be played to the class, the Respondent was present in the room. The television was visible from the Respondent's desk, where he sat doing paperwork. The volume on the television was audible in the classroom. The Respondent asserts that he did not hear the tape because he was concentrating on paperwork. The videotape shows an intoxicated male PCCA student (victim) being physically and verbally abused by other male students. The tape, about 23 minutes long, was produced by Bross on February 10, 1994. About five minutes into the tape, the other teacher and his students joined the Respondent's class to view the tape. The tape was rewound to the beginning of the relevant segments and the viewing began again. The tape shows the victim, intoxicated to the point of being unresponsive, lying in a puddle of (what appears to be presumably his own) vomit. He is dragged across a floor and out a door, where he is rolled off an elevated porch onto the ground. As the victim regains consciousness, he is repeatedly doused with buckets of water, with flour and with what is identified as urine from a cup. At one point, he stands barefooted on the wet concrete porch next to the electrical connection to the house. He is sprayed with water from a garden hose. During much of the victim's conscious moments, he shouts and screams at his tormentors to stop the abuse. Later on the tape, the victim, again unconscious, is shown lying in a filled bathtub as the other students put what appears to be shaving cream and cosmetics on him. Finally, the boys perch on the edge of the bathtub, the camera shot showing the victim lying between the legs of each boy, as each attempts, and some succeed, to urinate into the tub and on the unconscious victim. During the tape, the scenes are loudly narrated by Bross. The verbal abuse of the victim is clearly audible. The dialogue is often harsh and profane. It was possible for the Respondent to see and hear the television from his location. At some point during the showing of the tape, the Respondent left the room to copy some documents. The students remained in the supervision of the other teacher who was watching the tape. The Respondent was in the room for approximately ten minutes of the 23 minute video. The Respondent viewed portions of the tape. Although he claims he was unaware of what he was seeing, the Respondent saw the trail of green vomit across the floor where the student had been dragged. The Respondent saw the victim being hosed off. The Respondent saw the scenes where the boys stood on the edge of the bathtub. The Respondent saw the view of the victim lying between the legs of the boys as each attempted to urinate on the victim. Although he did not know the student's name, the Respondent saw enough of the tape to recognize the victim as a student at PCCA. The Respondent was sufficiently aware of the video's content to comment towards the end of the tape that it was "sad" and to inquire of Bross as to the victim's condition. The entire videotape was shown to the first period students present in the classroom. The Respondent heard students commenting about the film while it was being played. Subsequent to the showing in first period, the tape remained in the possession of the student who made and showed the video. At the break between first and second periods, the victim became aware that the tape had been shown and went to the Respondent's classroom. As he entered the classroom, no teachers were present and the tape was being played again. Shortly thereafter, the Respondent entered the classroom and asked the victim how he was feeling. Humiliated and embarrassed, the victim left the classroom. There is no credible evidence that the victim of the abuse consented to the abuse or to the taping of the activity. There is no credible evidence that the victim consented to the playing of the tape for other students inside or outside of the classroom. There is no evidence that the victim was aware of the images continued on the tape. Shortly after the victim left the room, a guidance counselor became aware of the situation and went to the classroom, where the tape was still being played. No teachers were present. The counselor saw enough of the tape to become aware of its contents and instructed the students to stop the tape and take it to his office. Just before the start of second period, the Respondent reentered the classroom and saw the tape still playing, at which point he instructed the student responsible to turn the tape off. Prior to the start of second period, the Respondent made no effort to stop the playing of the tape or to confiscate it from the students. By letter of March 17, 1994, the Respondent was notified that the superintendent would recommend to the school board that he be suspended without pay from a period of ten days. The grounds for the suspension are identified as follows; ...on February 11, 1994, during your first period class you allowed a student to show a tape unpreviewed by you to your class and another teacher and his class. The video contained denigrating and humiliating scenes of several students physically abusing the inebriated student. While viewing the tape yourself, you allowed your students to continue viewing it and failed to confiscate the tape. Your actions constitute just cause for this suspension pursuant to Section 231.36(6)(a), Florida Statutes. This matter was made aware to the public through an article in the April 8, 1994 issue of the St. Petersburg Times. At the beginning of the 1993-94 school year, the Respondent received a copy of Principles of Professional Conduct for the Education Profession in Florida. At a meeting with Gibbs/PCCA faculty, the principal of the school reviewed the document. The Respondent was present at the meeting. According to the Principles of Professional Conduct for the Education Profession in Florida, a teacher "shall make reasonable effort to protect the student from conditions harmful to learning or to health or safety" and "shall not intentionally expose a student to unnecessary embarrassment or disparagement." According to both the principal of Gibbs/PCCA and the superintendent of the Pinellas County School System, the Respondent's failure to monitor or stop the playing of the videotape, or to confiscate the tape from the students, is sufficiently serious so as to impair the Respondent's effectiveness in the school system.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Pinellas County School Board enter a Final Order terminating the employment of Keven Renken. DONE and RECOMMENDED this 13th day of January, 1995, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 13th day of January, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2010 The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 26. Rejected, unnecessary. Respondent The Respondent's proposed findings of fact are set forth in unnumbered paragraphs. The paragraphs in section II, "Proposed Statement of the Facts" have been consecutively numbered for purposes of these ruling. The proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: Reference to pornographic material on tape is rejected, irrelevant. It was not viewed by the students. Rejected, not supported by the greater weight of the evidence. The Respondent was in the room for a significant portion of the tape, as set forth in the findings. The evidence does not establish, as the proposed finding suggests, that the Respondent left the room immediately after the other teacher arrived. Rejected, not supported by the greater weight of the evidence. The Respondent was in the room for a significant portion of the tape, as set forth in the findings. He viewed and heard enough of the tape to remark that it was "sad" and to recognize the student being abused. Rejected, not supported by the greater weight of the evidence. The cited testimony related to the timing of the entry of the victim into the classroom is not credible. Rejected, not supported by the greater weight of the evidence. The cited testimony related to the timing of the entry of the guidance counselor into the classroom is not credible. DOAH CASE NO. 94-2010 COPIES FURNISHED: Dr. J. Howard Hinesley Superintendent School Board of Pinellas County P. O. Box 2942 Largo, Florida 34649 Keith B. Martin, Esquire Pinellas County School Board P.O. Box 2942 Largo, Florida 34649 Marguerite Robinson, Esquire Kelly & McKee Post Office Box 75638 Tampa, Florida 33675
The Issue Whether or not on or about the 21st day of November, 1975, on the Respondent's licensed premises, located at 5916 Phillips Highway, Jacksonville, Florida, the Respondent, its agent, servant or employee, to wit: Phyllis Jacobs Whidden, did engage in open and gross lewd and lascivious behavior with another person while dancing in a topless state for a patron; did rub her vagina and buttocks against the leg of the male patron, in violation of Section 798.02, thereby violating Section 561.29, F.S.
Findings Of Fact At all times material to the allegations found in the amended Notice to Show Cause, the Respondent, G and B of Jacksonville, Inc., trading as Climax, located 5916 Phillips Highway, Jacksonville, Florida, was licensed under License No. 26-780, Series 4-COP, held with the State of Florida, Division of Beverage. On November 21, 1975, one Phyllis Jacobs Whidden, was dancing as an employee of the licensee within the licensed premises. At that time and place, Whidden approached a male patron and rubbed her pubic area and buttocks on the one of the legs of that male patron.
Recommendation It is recommended that the license of the Respondent G and B of Jacksonville, Inc., trading as Climax, license no. 26-780 be suspended for a period of 30 days. DONE AND ORDERED this 18th day of April, 1977, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Charles Tunnicliff, Esquire Division of Beverage Department of Business Regulation The Johns Building 725 Bronough Street Tallahassee, Florida 32304 Harry Katz, Jr., Esquire 337 E. Forsyth Street Jacksonville, Florida 32202
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 At all times pertinent to the allegations herein, Respondent, Jacob Francis Miller, Jr., t/a Jake's Place, held 2-COP License No. 26-00705 for the consumption on the premises and package sales, located at 315 South McDuff Avenue, Jacksonville, Florida, of beer and wine. On January 27, 1983, John T. Lachman, an investigator with Petitioner, Division of Alcoholic Beverages and Tobacco, acting on a complaint of prostitution, lascivious conduct, and soliciting for drinks at Respondent's place of business, entered the premises in the evening, purchased a beer, and sat down at one of the tables. On this occasion, he was alone. Shortly thereafter, he was approached by a white female employee of the Respondent, Monica L. Todd, who was wearing a bikini bottom-and-top dancing outfit. She asked Lachman if she could dance for him and, when he agreed, she did so through four songs. Each dance lasted the length of one song. During each of the dances, which she accomplished while standing between his legs while he was seated on the chair, she would alternate between facing him and turning her back to him. When her back was toward him, she would rub her buttocks against his groin. After the four dances, he paid her her fee of $10. Lachman came back to this bar on February 17, 1983. This time, he was in the company of Beverage Agent Wilder and Deputy Sheriff Bennett. The three men purchased beers and went to sit at a table. Shortly, they were approached by Maudine Smith, a white female who was wearing a bikini bottom-and-top dancing costume. She offered to dance for them, and Lachman agreed for her to do two dances, for which she charged him $5. Again, she danced between Lachman's legs while he was seated; and while her back was toward him, she rubbed her buttocks in his groin area. When she faced him, she removed her top and rubbed her bare breasts in his face. Monica Todd also danced for Lachman on February 17, 1983. During her dance, which was accomplished between his legs while he sat on the chair, she rubbed her buttocks in his groin. There was no evidence to show that she removed her top and rubbed her breasts in his face. However, for her dance, she was paid $3. A third dancer entertained Mr. Lachman on February 17, 1983. Linda Jean Ford came over to him, sat on his lap, and asked him if she could do a $5 dance for him. When he asked her what that was, she replied she would have to show him. He paid her the $5, whereupon she took off her bikini top and danced for him, standing between his legs and alternately rubbing her breasts in his face and her buttocks against his groin. That same evening, Lachman also saw Ford and Smith dance for Mr. Bennett, who was sitting three to four seats (approximately 10 feet) away from him. Lachman observed Ford rub her naked breasts in Bennett's face and her buttocks against his groin while she was dancing for him. He also saw Smith rub her buttocks in Bennett's groin area during her dance. The lighting in the bar on this occasion was good enough for Lachman to see the farthest reaches of the establishment. There were six or seven patrons in there while all this was going one--some at the bar and some at the tables attended by a bartender who was identified as Santiago Santiago. It was obvious that the bartender could see what was going on, but neither he nor anyone else in the place made any effort to stop this dancing. Respondent was not in the bar while Lachman was there on either January 27 or February 17, 1983. Investigator Wilder, as was stated above was in Respondent's establishment with Lachman on February 17, 1983, and was treated to similar action by Ms. Smith, who did three dances for him. The first one Lachman paid for; and during her dance, she rubbed her naked breasts in his face. During the second and third dances that evening, for which Wilder himself paid her $5, she alternated rubbing her naked breasts in his face with rubbing her buttocks in his groin area. As a special added attraction during the third dance, she also put her foot up on the edge of his chair between his legs and rubbed the top of her foot against his groin. After the third dance, Smith went away and came back about five minutes later, again asking if she could dance for Wilder. When he declined this offer, she said, "Well at least you can buy me a drink." Wilder agreed to this and gave her $2. She immediately took it, went over to the bar with it, and then took her favors off to another customer. Respondent does not deny the occurrences alleged. He contends, however, he was not aware of it at the time or of the likelihood it would take place. He was not present in the bar on either occasion and generally works from noon to 7:00 p.m., coming in again at 2:00 a.m. to close up. Respondent opened the bar upon his separation from the Navy in 1982. It is a small neighborhood establishment that employs only one bartender. When he started his business and was approached by the girls who wanted to dance in his bar, he told them he was going to run a clean place. However, though he did no background investigation of many of the girls he hired, he was familiar enough with that type of person and their proclivities to have them sign a statement of house policies that included prohibitions against drugs, prostitution, soliciting drinks, touching of customers, and husbands or boyfriends in the bar during working hours. In light of that, it is hard to conclude he did not know the risks involved in allowing that type of person to work in the bar, especially considering his Navy service. Respondent maintains a personal friendship with Deputy Sheriff Bennett, who comes into the bar periodically. Respondent contends he has requested that Bennett arrest any of the girls working in the bar who are seen doing the kind of activity complained of here. Respondent also contends he is not familiar with the practices of Petitioner, and the former district supervisor's approach to him regarding these violations was foreign to him. He relates that Capt. Caplano suggested Miller "make an offer to keep [the] bar open." As a result, he signed a stipulation which called for a letter of warning and immediately terminated the dancers. When he did that, his business dropped immediately and he put the place up for sale. To facilitate the sale, his business broker advised him to start it again so that prospective buyers could see customers in the place. As soon as he did that, his proposed settlement was disapproved and a hearing was set up.
Recommendation Based on the foregoing, it is, therefore, RECOMMENDED THAT: Respondent pay an administrative fine of $500. RECOMMENDED this 9th day of May 1984, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 9th day of May 1984. COPIES FURNISHED: Louisa E. Hargrett, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Jacob F. Miller, Jr. 315 South McDuff Avenue Jacksonville, Florida 32205 Mr. Gary R. Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Howard M. Rasmussen Director, Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on December 8, 2003.
Findings Of Fact Petitioner is an African-American man who was employed by Respondent from July 16, 2003, until his termination on October 28, 2003. Respondent, North Florida Lubes, Inc., d/b/a/ Texaco Xpress Lube, is an employer within the meaning of the Florida Civil Rights Act of 1992. Respondent operates more than 25 Texaco Xpress Lube stores in Florida and is headquartered in Jacksonville, Florida. Brian Fowler is Respondent’s owner and president. In the summer of 2003, Respondent acquired two lube stores and a car wash in Ocala, Florida. Prior to their acquisition by Respondent, these Ocala stores were owned and operated by John Costa. One location included both the car wash and lube store and is located at 3680 East Silver Springs Boulevard. It was purchased in June 2003 and once acquired, Respondent designated it as Store No. 1018 (1018 Store). The other location, which is located at 1708 East Silver Springs Boulevard, was acquired by Respondent in July 2003, is a lube store and has been designated by Respondent as Store No. 1020 (1020 Store). Respondent leases the 1020 store from John Costa under a lease purchase agreement. At the time of their acquisition, both stores were in very poor condition, and Respondent made major repairs and improvements. The 1020 Store was in worse condition than the 1018 Store. Due to extensive renovations, the 1020 Store did not open for business until the beginning of August 2003. At the time Respondent acquired these two Ocala stores, neither store was earning a profit. The 1018 Store was barely breaking even and had monthly sales revenues dating back to June of 2002 of between $11,000 and $14,000 per month. These sales figures were based on a volume of about 350 cars per month and equated to a monthly ticket average of $28 per car. Prior to the acquisition by Respondent, the 1020 Store was doing even worse with a monthly sales revenue of between only $9,000 and $11,000. Since Respondent has taken over these stores, they have virtually doubled their total sales. Currently, Respondent's 1018 Store averages between $32,000 and $34,000 in monthly sales; whereas the 1020 Store has increased its monthly sales revenues by 30 percent. Respondent's normal and expected ticket average company-wide is between $47 and $50 per car. Immediately prior to Respondent’s acquisition of the two Ocala lube stores, Petitioner worked for Mr. Costa as the manager of what is now the 1020 Store. He was the manager of the store for three years and had several years of oil-changing experience. Another employee of Mr. Costa’s was a white male, Jason Yates, who managed what is now the 1018 Store. About the time of Respondent’s acquisition of the two stores, Petitioner went on vacation. When he returned, the 1020 Store was closed, so he went to the 1018 Store. As there had been a change in ownership, Petitioner applied to work for Respondent. He was offered and accepted a job as an oil changer and lube technician with Respondent and began work at the 1018 Store. Mr. Yates also was offered and accepted a position as an oil changer and lube technician with Respondent. Mr. Yates began employment with Respondent in June 2003 at the 1018 Store, several weeks before Petitioner began his employment with Respondent. Both Petitioner and Mr. Yates believed they were in training for a management position. However, there is not an official job title of "manager-in- training" within Respondent’s company. Hourly employees can receive on-the-job managerial training. In any event, there is no dispute that both Petitioner and Mr. Yates performed oil changing duties and that Respondent provided Petitioner with some managerial training during his employment. When Petitioner began working at the 1018 Store, Mark Shepherd was store manager and was responsible for training new staff with Respondent’s business practices and rules. Mr. Shepherd showed Petitioner how to run Respondent’s computer software programs, how to calculate money received, and how to open and close the store. Then Respondent transferred Richard Grant, an experienced store manager from Respondent’s Daytona Beach area, to manage the 1018 Store. Mr. Grant supervised Petitioner for a couple of months before Mr. Grant voluntarily resigned due to what he described as the pressure associated with running the 1018 Store. Petitioner was given on-the–job training with respect to making sales and greeting customers. According to Mr. Grant, Petitioner was not good at greeting customers or making sales because he was slow, quiet, and not out-going. Mr. Grant described Petitioner as having a poor attitude and always complained about the way Respondent did things and the operational changes since Respondent’s acquisition of the store. Respondent emphasized to Mr. Grant that it wanted its employees to be energetic, enthusiastic, and upbeat, and Mr. Grant felt that Petitioner did not have those characteristics. Mr. Grant repeatedly counseled Petitioner about wearing his safety glasses while at work, which was part of Respondent’s safety policy. Further, Mr. Grant counseled Petitioner on the importance Respondent placed on maintaining clean work areas. He described Petitioner’s work area as not clean and the worst "basement" (i.e., oil changing area) that he had ever seen. Larry Campbell is a regional or district manager for Respondent. This position is directly under the president of the company in the chain-of-command. Mr. Campbell oversees approximately a dozen lube stores and the car wash. He spent a great deal of time in the 1018 Store during Petitioner’s employment there. At one point, Mr. Campbell was asked by Mr. Grant if he should fire Petitioner. However, Mr. Campbell wanted to give Petitioner a chance to come around to Respondent’s way of doing business. Specifically, on a daily basis, he gave Petitioner the opportunity to greet customers, ring out tickets, work on the computer, work the clipboards, and conduct sales. However, Mr. Campbell also expressed similar concerns regarding Petitioner, to those of Mr. Grant. According to Mr. Campbell, Petitioner was quiet, slow, lacked energy and enthusiasm, was resistant to Respondent's ways of doing things, and would not smile or make eye contact with the customers. Although Petitioner received training on Respondent's procedures, he did not follow those procedures, even after being counseled by Mr. Campbell to do so. Petitioner also would not promote sales or specials that Respondent was offering to the customers despite being counseled to do so by Mr. Campbell. Mr. Campbell also described Petitioner as consistently displaying a bad attitude at work that got worse as the day progressed. As a regional manager, Mr. Campbell, along with Respondent's president and owner, Mr. Fowler, participates in the hiring of store managers. Respondent looks for positive, motivated, and enthusiastic individuals with leadership qualities; however, Mr. Campbell did not observe these qualities in Petitioner. Mr. Fowler also had occasion to observe Petitioner's attitude and work ethic at the 1018 Store. Like both Messrs. Grant and Campbell, Mr. Fowler found Petitioner to be quiet, stand-offish, and resistant to Respondent's way of doing things. Respondent's Business Philosophy and Practices Although both Mr. Costa and Respondent successively operated oil change businesses in the same two locations, the manner in which these two businesses were run was very different. Respondent has uniform standards to which all employees are required to adhere, regardless of whether they are responsible for sales, changing oil, greeting the customers, or ringing the customers out. Respondent has policies and procedures for how every position is to be performed. Respondent also has policies addressing how its employees will act, communicate, conduct themselves, and dress in the workplace. For example, employees are required to be well-groomed and wear clean uniforms with their shirt tails tucked in. Further, employees are specifically required to use certain commands and perform services in a certain order. By contrast, Mr. Costa's lube stores had no procedures or controls, no communications, no "echo system," and no standard methodology for servicing cars. In Respondent's business, efficiency is considered to be critical. As a result, Respondent strives to service each car in under ten minutes and places an emphasis upon its employees to "hustle" while on the job. In particular, Respondent has a "five second" rule, which mandates that its employees must greet a customer within five seconds of the customer's arrival. Respondent specifically trains its employees concerning not only how to work quickly, but also how to appear knowledgeable, friendly, and helpful to its customers. Unlike Respondent, the previous owner placed no such pressures on his employees. Similarly, Respondent has established a ticket average quota, which the previous owner did not. Respondent also has strict safety policies. These policies are reduced to writing and are reviewed with all of Respondent's employees. These safety policies have been approved by OSHA and all employees are expected to follow them. One such safety policy is the requirement that employees wear safety goggles or glasses at work. In Respondent's very competitive business, all employees, no matter what position they hold, are expected to exhibit an upbeat and enthusiastic attitude. Respondent’s philosophy is that a negative attitude can drain the efficiency of the work team at a store. Also, a positive attitude is considered important because each day, every employee of Respondent's has some customer interaction. Respondent believes that a positive attitude is so critical for its employees to have that it states on the first page of its Employee Handbook that: North Florida Lubes is committed to service excellence, quality control and employee personality. North Florida Lubes demands the highest standards from its employees, as the quick lube and car wash industries become more and more competitive every year. Over the years, North Florida Lubes has improved training methods, computer systems, equipment and service procedures to insure the highest level of employee and customer satisfaction. It is the philosophy of North Florida Lubes that well trained employees, with positive attitudes, will enjoy a long, fulfilling career with any company they choose to work for. At North Florida Lubes, we hope that you will enjoy your employment experience and that you will be involved with the growth of America's fastest growing Texaco Xpress Lube operator. Remember, a consistent positive attitude, dependability and personality will be your greatest assets in growing with North Florida Lubes. Respondent's Promotion of Other Employees to the Position of Store Manager. Respondent did not promise Petitioner that he would be promoted to a store manager position. Notably, Petitioner acknowledges that at the time he was hired by Respondent, that he had not yet learned Respondent's methods of operation. Petitioner also acknowledges at the time he was hired, the 1018 Store had both a store manager, Mark Shephard, and an area manager, Mike Dogherty, based there. Petitioner further concedes that Respondent never told him that he was not being considered for a managerial position because he was African- American. The determination of who is or is not qualified to be promoted to the position of manager of one of Respondent's lube stores is made by Messrs. Fowler and Campbell. Respondent's promotion policy states that if there are two or more employees whose qualifications are similar, seniority will be part of the selection decision, but the decision will not be made on that basis alone. It also clearly states that an employee must be qualified in order to receive a promotion and that if there are no qualified applicants within the company, the best qualified candidate will be chosen. In early August of 2003, Mr. Campbell transferred Mr. Yates to be the manager of the newly-opened 1020 Store. At the time, Mr. Yates had more seniority and experience working for Respondent than Petitioner did, as he had been working at the 1018 Store about a month-and-a-half longer than Petitioner. Mr. Campbell decided to place Mr. Yates in charge of the 1020 Store because he had achieved all of the goals Respondent was looking for. Specifically, Mr. Yates met Respondent's ticket average, he could operate the computer, and he followed Respondent's procedures. Mr. Campbell also described Mr. Yates as energetic and trying to apply himself. By contrast, Mr. Campbell found that Petitioner did not perform these same functions, despite being given numerous opportunities to do so and despite being given instruction as to what he was doing wrong. Mr. Campbell specifically counseled Petitioner while he was receiving on-the-job managerial training that he was not getting the job done. Ultimately, because of his poor attitude, lack of leadership skills, inability to meet Respondent's ticket average, and promote Respondent's products and services, Mr. Campbell, and ultimately Mr. Fowler, determined that Petitioner was not appropriately suited to be one of Respondent's store managers. Under Respondent's promotion policy, if there are no qualified applicants within the company to fill a vacancy, Respondent may look outside of the company to hire the best qualified applicant. This is what Respondent did with James Bailey when it determined Petitioner to be not qualified. After Mr. Grant resigned as manager of the 1018 Store in early October of 2003, Respondent hired James Bailey, a white male, to manage that facility. At the time Mr. Bailey was applying for this position, Messrs. Campbell and Fowler had already determined that Petitioner did not have the necessary qualifications to be one of Respondent's store managers. Upon making this determination, Mr. Campbell informed Petitioner that he was not suited to be one of Respondent's store managers. Mr. Bailey was interviewed by Mr. Campbell and then hired by Messrs. Campbell and Dougherty, with Mr. Fowler's approval. Prior to working for Respondent, Mr. Bailey had spent approximately eight years working for Denro Service Center as an automotive mechanic's helper. In that capacity, he performed oil changes, lube jobs, tune-ups and brake jobs in New York. Over the course of his employment with Denro Service Center, Mr. Bailey performed hundreds, if not thousands, of oil changes. Mr. Bailey also possessed approximately 15 years of managerial experience before coming to work for Respondent. In particular, he had managed a Subway Restaurant and a Kwik King Convenience Store, as well as the Denro Service Center. During the time he managed a Subway Shop, he doubled that store's sales and credits himself with driving the Miami Sub Shop across the street out of business. Since Mr. Bailey became the manager of the 1018 Store, the sales at that location have drastically increased. By following Respondent's system to the letter, the 1018 Store went from monthly sales of $13,000 in January of 2003 (i.e., when Costa owned it) to $35,000 in January of 2004. In addition to Messrs. Grant, Campbell, and Fowler, Mr. Bailey also had an opportunity to observe Petitioner while he worked at the 1018 Store. Mr. Bailey described Petitioner as being unmotivated, lackadaisical, stand-offish, unprofessional, and surly. According to Mr. Bailey, Petitioner spent more time at work on his personal cell phone than he did working on cars. Mr. Campbell insists that Petitioner's race played no role in the decision not to promote Petitioner. Mr. Campbell has promoted several African-American employees, including Michael Ghent and Marvin Freeman, to managerial positions in Respondent's operations. Mr. Campbell has also recommended another African-American for such a promotion, but that employee declined. Mr. Ghent has managed a store for Respondent for approximately nine years and asserts that he has never experienced anything which he considered to be racial discrimination from Mr. Campbell. Similarly, Mr. Freeman currently serves as a store manager for Respondent and has managed a total of four of Respondent's stores. Mr. Freeman is familiar with Messrs. Fowler, Campbell, and Dogherty and asserts that he has never been subjected to racial discrimination by any of these individuals. Further, Mr. Campbell recommended Mr. Freeman for a promotion which he received, and Mr. Freeman was hired back after he voluntarily left employment to work for another company. Respondent's Termination of Petitioner According to Mr. Campbell, Petitioner's attitude and work ethic declined further after Respondent hired Mr. Bailey. In particular, Mr. Campbell described Petitioner as always having a negative attitude and showed no interest in doing things the way Respondent wanted them done. Although Mr. Campbell spoke to Petitioner about his deteriorating attitude before he was terminated in an effort to allow him to change, Mr. Campbell did not observe improvement in Petitioner's work habits. On October 28, 2003, Respondent terminated Petitioner's employment. Although Messrs. Campbell, Dogherty, and Fowler were involved in the decision to terminate Petitioner, Mr. Fowler made the ultimate decision. The decision to terminate Petitioner was made because of Petitioner's: negative attitude, which was impacting Respondent's other staff; (b) unwillingness to learn Respondent's way of doing things; and (c) constant resistance to the changes Respondent implemented in the workplace. At the time of his termination, Petitioner had been given almost four months to turn his attitude and performance problems around, yet he had not done so to the satisfaction of Respondent. Petitioner's Allegations of Discrimination Petitioner initially claimed that three employees of Respondent, Messrs. Campbell and Dogherty, and Kathy Dogherty, are the individuals who discriminated against him on the basis of his race. Ms. Dogherty was the manager of the car wash facility which was also located at the 1018 Store. Petitioner alleges she made racially offensive comments to him. Petitioner acknowledges that store managers, Messrs. Shepherd and Grant, did not discriminate against him and now concedes that Mr. Dogherty did not make any racially derogatory remarks against him and did not articulate any other form of discrimination regarding Mr. Dogherty. Ms. Dogherty did not testify at the hearing. Accordingly, any alleged statements by her are hearsay and are not sufficient in itself to support a finding of fact as contemplated by Subsection 120.57(1)(c), Florida Statutes. Petitioner asserts that Mr. Campbell made two racially discriminatory remarks about him. On one occasion, Petitioner alleges that Mr. Campbell stated that he (Petitioner) made more money on his cell phone than he did working for Respondent. Petitioner never heard Mr. Campbell make this statement nor did he ever confront Mr. Campbell about the statement, after learning of it, to ascertain what Mr. Campbell may have meant by it, because he "didn't want to rock the boat." Instead, this statement was overheard by Mr. Yates, who perceived Mr. Campbell to mean that because Petitioner was African-American, he must be selling drugs on his cell phone. Mr. Yates admitted, however, that Mr. Campbell did not say anything about Petitioner's race when making this statement and that he did not know what Mr. Campbell's intent was in making this statement. Mr. Yates further conceded that he witnessed Petitioner on his cell phone at the time Mr. Campbell made this statement and that Petitioner, who was being paid an hourly wage, was talking on his personal cell phone while on company time. Mr. Yates also acknowledged that Respondent had a policy in its Employee Handbook restricting the receipt of personal calls while at work. Mr. Campbell acknowledges making the statement that Petitioner made more money on his cell phone than he did working for Respondent, but denies that he intended any racially derogatory connotation or that he was implying Petitioner was dealing drugs. According to Mr. Campbell, Petitioner spent an inordinate amount of time on his cell phone attending to personal business while on company time, instead of performing work; thus, what he meant to convey was that Petitioner was being paid by Respondent to be on the phone instead of performing his job. Petitioner's cell phone usage while at work was frustrating to Mr. Campbell because it was not productive, it caused a distraction in the workplace, and it was contrary to Respondent's personal phone call policy. Mr. Campbell was not the only one of Petitioner's supervisors to remark about Petitioner's excessive cell phone usage at work. Mr. Bailey asserted that Petitioner spent more time talking on his cell phone than he did working on cars and that Petitioner was on his cell phone while draining oil from the customer's cars. Similarly, Mr. Grant noted that Petitioner used his cell phone while on company time "quite a lot." Respondent's Quarterback Rating System is a percentage-based rating system for Respondent's managers similar to the system used in the National Football League (NFL) for rating quarterbacks and consists of four rating categories: meeting the monthly sales quota; (2) meeting the agreed-upon ticket average; (3) servicing a certain number of cars per month; and (4) not exceeding the labor cap. Petitioner alleges that once while explaining Respondent's Quarterback Rating System, Mr. Campbell instead talked to him about a basketball analogy so that Petitioner could understand it. Mr. Campbell, while acknowledging talking about basketball and other sports to Petitioner, denies ever making such a comment and further states that he cannot envision how to explain Respondent's Quarterback Rating System via a basketball analogy, because it is distinctly based upon the game of NFL football (which has a quarterback) and is not comparable to the game of basketball (which does not have a quarterback and does not use a similar rating system). After weighing the credibility of the witnesses, the undersigned finds Mr. Campbell's explanation of any basketball reference to be credible and such explanation is accepted. Petitioner acknowledges that he never complained to Mr. Fowler about any racial remarks or discrimination at any time during his employment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 14th day of January, 2005, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 2005.
The Issue Whether or not on or about the 6th day of May, 1976, on the Respondent's licensed premises located at 5916 Phillips Highway, Jacksonville, Florida, the Respondent, its agent, servant or employee, one Patricia Stevenson Jordan, did unlawfully engage in open and gross lewd and lascivious behavior with a male customer, one Mark Thomas Finch, by dancing in a topless manner while rubbing her buttocks on his leg and groin area and allowing him to kiss her breasts, in violation of Section 798.02, F.S. thereby violating Section 561.29, F.S.
Findings Of Fact At all times material to the allegations found in the amended Notice to Show Cause, the Respondent, G and B of Jacksonville, Inc., trading as Climax, located 5916 Phillips Highway, Jacksonville, Florida, was licensed under License No. 26-780, Series 4-COP held with the State of Florida, Division of Beverage. On May 6, 1976, one Patricia Stevenson Jordan, was serving as an employee in the capacity of a dancer for the Respondent in its subject licensed premises. During a period of ten to fifteen minutes while dancing topless for a patron, Mark Thomas Finch, she did allow Finch to kiss her breasts and rub her buttocks against his leg from side to side while he was seated in a chair. No attempts were made by the other employees in the bar to stop the action between Jordan and Finch, and neither Jordon nor Finch made any attempts to cease their activities.
Recommendation It is recommended that the license of the Respondent, G and B of Jacksonville, Inc., trading as Climax, license no. 26-780 be suspended for a period of 75 days to run concurrently with the sentence in Division of Administrative Hearings' Case no. 76-1983. DONE AND ORDERED this 18th day of April, 1977, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Charles Tunnicliff, Esquire Division of Beverage Department of Business Regulation The Johns Building 725 Bronough Street Tallahassee, Florida 32304 Harry Katz, Jr., Esquire 337 E. Forsyth Street Jacksonville, Florida 32202
