Findings Of Fact Respondent is a non-instructional employee of the School Board and has been employed by the School Board of Brevard County for approximately nine (9) years. Respondent is a small engine mechanic and is assigned to the Maintenance Division of the School Board. Respondent's duties are to repair and maintain lawnmowers, edgers and other equipment in the North and Central areas of the Brevard County School District. Respondent was assigned School Board Vehicle No. 271 for transportation during working hours. Vehicle No. 271 is a pickup truck with distinctive School Board markings and a county government license tag. No other person was assigned the use of Vehicle 271. Three (3) sets of keys were maintained for Respondent's vehicle. One set was assigned to Respondent, one set is kept by the Maintenance Division in a key locker and one set is kept by the School Board Vehicle Maintenance Shop on State Road 520 in Cocoa, Florida. On or about February 27, 1989, Leon Cowling, Assistant Superintendent for Facilities and Support Services received a telephone call from Assistant Superintendent, Jerry Copeland, concerning Vehicle 271. Mr. Copeland had been contacted by two civilian employees from Patrick Air Force Base who stated that on or about February 22, 1989, they had seen Vehicle No. 271 in the Cape Canaveral area being driven in an erratic manner by a person holding a pistol and a large amount of cash. Mr. Cowling telephoned the Maintenance Department and relayed this information to Johnny Romans, Maintenance Coordinator, who confirmed that Vehicle 271 was assigned to Respondent and was parked in the maintenance yard. Respondent was on sick leave that day and Cowling asked Romans to secure the truck. Romans checked Vehicle 271 and found it locked. He went to the key locker for the extra set of keys but found them missing. Romans then called the Vehicle Maintenance Shop for their set of keys but those keys were also missing. Romans decided to take the matter up with his supervisor, Henry Hartrich, the next day and left Hartrich a memo on the incident. On or about February 28, 1989, Henry Hartrich returned to work from a conference and read the memo. Hartrich looked in the locked vehicle and observed several key rings and keys hanging on knobs on the dash board and on the console. Hartrich asked the locksmith, Bob Dunkinson, to open the vehicle and bring him all keys found inside. Dunkinson unlocked the vehicle and delivered the keys to Hartrich. Hartrich then asked Dunkinson to identify the various keys found in the vehicle. Dunkinson identified the keys and determined that one ring contained keys to the truck, as well as, keys to Mr. Hartrich's office, Mr. Buckner's office, Bobby Young's office, the warehouse, and the big forklift in the maintenance yard. Respondent was not assigned any of these keys except the truck keys. On March 6, 1989, a meeting was scheduled by the Maintenance Division to discuss the reported sighting of Respondent with a handgun and money in the School Board vehicle. Present at the meeting were the two civilian employees from Patrick Air Force Base who reported the incident, Mr. Cowling, Mr. Hartrich, Mr. Romans, Mr. Buckner and Respondent. At the meeting, Respondent was identified by the Air Force employees as the person they observed in Vehicle 271. Respondent denied having a handgun or cash in the vehicle. The Air Force employees were dismissed from the meeting and Mr. Hartrich then confronted Respondent with the keys found in his School Board vehicle. At first Respondent denied the keys were his, but then admitted that they were. Mr. Cowling suspended Respondent for the remainder of March 6 and March 7 with pay. On March 8, 1989, Respondent was recommended for termination of employment for misconduct for having unauthorized keys in his possession and suspended without pay. The School Board's Maintenance Division is entrusted with millions of dollars of equipment, tools and other public property. Theft of School Board property from the Maintenance Division is a serious problem and access to the areas where the property is stored is strictly controlled. Keys to the equipment storage areas and offices in the Maintenance Division are assigned only to those employees who require access to these areas. Respondent was not assigned the keys to the offices in the Maintenance Division or the warehouse and forklift. He had no reason to have those keys in his truck. Respondent's possession of the unauthorized keys was a serious violation of School Board policy. There have been documents and property stolen from the Maintenance Division in the past several years. The area from which these items were taken were secured by lock and key. Keys to the offices of Mr. Buckner, Mr. Hartrich, and the warehouse were among those discovered in Respondent's vehicle. The unauthorized keys in question were in Respondent's locked vehicle. Respondent was not assigned these keys or authorized to have them in his possession. Respondent was the only person who drove Vehicle 271. There was no evidence presented that any other person had the opportunity or motive to place the keys in Respondent's truck. Respondent did not present any evidence that showed the existence of a conspiracy by his immediate supervisor, Ed Buckner, or others to place the keys in his truck or to cause his termination from employment. Neither the Respondent's testimony nor that of his witnesses showed bias against the Respondent nor motive on the part of any of his supervisors to conspire against him.
Recommendation Based on the findings of fact and conclusions of law set forth herein, it is recommended that Respondent's suspension, effective March 8, 1989, be upheld and that he be terminated from employment with the School Board of Brevard County. DONE AND ENTERED this 30th day of November, 1989, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 30th day of November, 1989. COPIES FURNISHED: Burton J. Green, Esquire Post Office Box 320087 Cocoa Beach, Florida 32932-0087 William C. Walker, Jr., Esquire 1260 S. Florida Avenue Rockledge, Florida 32955 Harold T. Bistline, Esquire Building I, Suite 10 1970 Michigan Avenue Cocoa, Florida 32922 Abraham L. Collinsworth Superintendent School Board of Brevard County 1260 S. Florida Avenue Rockledge, Florida 32955 Hon. Larry C. Williamson, Chair School Board of Brevard County 1260 S. Florida Avenue Rockledge, Florida 32955
The Issue The issue for consideration in this case is whether Petitioner should be licensed as an independent motor vehicle dealer in Florida.
Findings Of Fact By stipulation of fact, the parties agreed: Petitioner applied for a motor vehicle dealer's license for a dealership to be operated at 2401 Central Avenue in St. Petersburg, Florida. The application was denied by the Department because it appears the applicant has no experience in the motor vehicle business and, in fact, applied for the license to allow an individual by the name of Lloyd Blocker to operate and have continued involvement in the motor vehicle business. Petitioner was aware at the time of his application that Mr. Blocker had been denied a motor vehicle license in Florida in February 1994 and had been convicted of a felony in Alaska involving the unlawful rolling back of odometers in motor vehicles. In addition, Mr. Rinier was aware that the Department of Motor Vehicles would not allow Mr. Blocker to hold a license to deal in motor vehicles in Florida. Mr. Rinier and Mr. Blocker have an ongoing business dealing with the sale of motor vehicles. Mr. Rinier knows and knew at all times pertinent hereto that Mr. Blocker could not operate such a business on his own. The Department of Motor Vehicles contends that Mr. Blocker cannot operate or be involved in any facet of the motor vehicle business in any capacity. If Mr. Rinier were to provide written assurances that Mr. Blocker would not be involved in any way with a business operated under a license if issued, it would issue a license, assuming Mr. Rinier were otherwise qualified for licensure. Mr. Rinier is unwilling to provide that assurance in writing. However, Petitioner contends his sole desire is to make money from the operation of a dealership. If the license were issued, ownership of the business would be and remain in the Petitioner's name. He had already paid lease costs and all other costs relating to the business, and he will not operate it without Mr. Blocker's participation in some form. The present relationship with Mr. Blocker involves sale of the buildings where the dealership would operate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Highway Safety and Motor Vehicles enter a Final Order denying a motor vehicle dealer license to Petitioner, Harvey G. Rinier. DONE AND ENTERED this 10th day of September, 1997, in Tallahassee, Leon County, Florida. COPIES FURNISHED: John L. Waller, Esquire John L. Waller, P.A. 467 Second Avenue, North _ ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 1997. St. Petersburg, Florida 33701 Michael J. Alderman, Esquire Gabrielle L. A. Taylor, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432 Tallahassee, Florida 32399-0504 Charles J. Brantley, Director Division of Motor Vehicles Neil Kirkman Building Room B-439 Tallahassee, Florida 32399-0500 Enoch Jon Whitney General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500
Findings Of Fact Mr. Fitzsimmons was a service technician at Team Toyota (Toyota) in the summer of 1989. He was acquainted with the Petitioner, Charles Jackson, and suggested to Mr. McCray, the Service Manager, that he contact the Petitioner when he learned that Toyota had an opening in its service department for a service technician. Acting on Mr. Fitzsimmons' recommendation, Mr. McCray contacted the Petitioner whereupon the Petitioner filled out an application and was interviewed for the job. The Petitioner completed a written self-evaluation form as part of the application process for the position at Toyota. On the self-evaluation form, he rated himself in a number of areas of automotive mechanic subjects relating to both domestic and imported automobile repairs. In each area, the possible ratings were "well qualified" or "not qualified". The Petitioner rated himself "well qualified" in every area on the form on which he rated himself. In those areas in which he did not rate himself, he testified that he was qualified in each of them. During the interview process, the Petitioner informed Mr. McCray that he had significant experience in foreign car repair. On his application, he listed Williams Garage and Billy Sims Garage in Marianna, Florida, as his two most recent employers. No other employers were listed on his application. In fact, however, he had not worked in an automobile service department before and had no training and little experience in the repair of Toyota automobiles. Mr. Fraser, at times pertinent hereto, was the Parts and Service Director at Toyota. He has occupied that position since 1987. Mr. McCray was Service Manager at times pertinent hereto. Mr. Fraser oversees both the parts department and the service department and was Mr. McCray's supervisor when the Petitioner was hired. Mr. Fraser approved the hiring of the Petitioner based upon Mr. McCray's recommendation and the Petitioner's representation that he had significant foreign car repair experience. Mr. McCray acknowledged that he spoke with Mr. Fraser regarding hiring the Petitioner but he, McCray, alone, made the final decision to hire the Petitioner and that Mr. Fraser's approval was not actually necessary. Mr. McCray claimed in his testimony that Mr. Fraser did not agree with his decision to hire the Petitioner because Mr. Fraser did not want to hire a black mechanic in the service department. However, since Mr. McCray insisted that he, alone, made the decision to hire the Petitioner, Mr. McCray's testimony in this regard, if relevant, is not really material. Further, Mr. Fraser actually approved the decision to hire the Petitioner which stands to militate against Mr. Fraser being motivated by any racial prejudice which Mr. McCray seeks to attribute to him. It is clear from Mr. McCray's testimony that he did not get along with Mr. Fraser and did not believe that Mr. Fraser should have been his supervisor. In fact, in a meeting with the President of Team Toyota and Mr. Fraser, Mr. McCray referred to Mr. Fraser as "dead weight". The apparent animosity between Mr. Fraser and Mr. McCray actually resulted in Mr. McCray's termination in March of 1990, approximately one year before the Petitioner was terminated. Because of the circumstances surrounding Mr. McCray's termination and his relationship with Mr. Fraser, little credence is given to Mr. McCray's statement that Mr. Fraser did not want a black mechanic in the service department. This conclusion is supported by the fact that Mr. Fraser hired a black service technician prior to the Petitioner's employment and subsequent to the Petitioner's termination, hired three minority service technicians, a black, an Hispanic, and an American Indian. These technicians are currently still employed. While the Petitioner was employed at Toyota, the service technicians and department were organized into two teams. At the beginning of his employment, some of the service technicians on the Petitioner's team complained to Mr. Fraser regarding the Petitioner's work and being unable to get along with him. Mr. Fraser referred these complaints to Mr. McCray. In an effort to resolve the complaints, Mr. McCray admonished the complaining technicians and moved some team members from team to team to facilitate better working relationships. His efforts were apparently successful and the problems were alleviated. The Petitioner did not have the work experience in automotive mechanics that he professed to have during the application process. He admitted during his testimony that he had, in fact, been unemployed for approximately three (3) years before his employment at Toyota. He further admitted that he made a mistake when he listed Williams Garage and Billy Sims Garage on his application as his two most recent employers. His most recent employment, three or more years prior to Toyota, was as a tractor operator for a logging business in Blountstown, Florida. He was fired from that job and before that, he was an equipment operator for his brother's logging business for approximately eight (8) years. He also worked for Aamco Transmissions, although not as a transmission repair technician. He was fired from that job. He testified that he had done odd jobs for the Williams and Billy Sims Garages but was never on either payroll. Mr. Fitzsimmons was on the Petitioner's service team during the entire period of the Petitioner's employment and testified that the Petitioner did not have the skill level to perform certain jobs. Mr. Fitzsimmons also stated that the Petitioner complained to him concerning being given work which he did not have the skill level to perform. Roger Perry was also on the Petitioner's service team. He observed that the Petitioner was not capable of doing the more technical service jobs, such as transmission work or work on fuel injection systems. The Petitioner also complained to Mr. Poppell that he was getting major engine repair work, rather than the easier work, such as oil changes. Mr. Lobaugh replaced Mr. McCray as the Service Manager in March of 1990, when Mr. McCray was terminated. Mr. Lobaugh, in turn, resigned as Service Manager in August of 1991 to take the position of service manager of a Toyota dealership in the Dayton, Ohio area. He testified by deposition. On July 30, 1990, Mr. Lobaugh approved a pay raise for the Petitioner from $9.20 per hour to $9.30 per hour. This raise did not reflect any improvement of performance but, rather, was an automatic raise given to coincide with the Petitioner's anniversary date and was simply a length-of-service pay raise not related to performance evaluation. The 1990 Toyota Certified Technician Program (TCTP) was the training and certification program in effect at the Respondent's dealership while the Petitioner was employed there. The TCTP was established by Toyota USA and was in effect at Toyota dealerships throughout the country. That program has three levels of certification: Level I - Toyota Technician; Level II - Pro Technician; and Level III - Master Technician. At Levels I and II, there are four areas of possible certification. These areas involve engine, drive train, chassis, and electrical components of Toyota cars. A Level III - Master Technician is certified in all four areas. Level I certification, which the Petitioner would have had to earn first, required 12 months' experience with Toyota, successful completion of a training course in the area of certification (engine, drive train, chassis or electrical), and a passing grade on the certification test in the relevant area of certification, and also the viewing of certain training videos at the dealership in the area of certification involved. The TCTP training courses were offered in Jacksonville by Southeast Toyota Distributors, Inc. The certification tests were offered by ASE (automotive service excellence) and were given at Lively Area Vocational Technical School in Tallahassee. The purpose and effect of this program was to increase the skill level of service technicians. The goal of the Respondent was to have every service technician certified at some level under this program. Before a service technician attended a Toyota training course in Jacksonville, that technician would first have to be recommended for that course by the Service Manager and the Service Manager's recommendation would have to be approved by Mr. Fraser. Often, Mr. Fraser would not approve the recommendation when first given. Mr. Lobaugh recommended that the Petitioner take Toyota training course no. 840 in electronic fuel systems, offered in Jacksonville on October 4 and 5, 1990. This was the first time that the Petitioner was recommended. Mr. Fraser approved Mr. Lobaugh's recommendation for the Petitioner and he attended and completed the course. In conjunction with his recommendation, Mr. Lobaugh requested that the Petitioner register for three ASE certification tests. The first of the tests in manual drive train and axles was given on November 8, 1990. The second and third tests in engine repair and brakes, respectively, were given on November 13, 1990. The Petitioner registered for those tests. He did not pass the first or the second test and failed to take the third test. The Respondent was made aware of the test results in February of 1991. Because the Petitioner had completed 12 months' experience with Toyota and had completed training course no. 840, he would have been eligible for certification as a Level I technician in the area of engines had he passed the ASE certification test in engine repair. The Petitioner informed his supervisor, Mr. Lobaugh, after failing the examinations, that he was not interested in retaking them. Other service technicians had failed ASE tests in the past, but they would then retake the tests they did not pass. The Petitioner acknowledged in his testimony that he understood the training program and the reason for it and that his fellow service technicians were participating in it. He understood that continued training was necessary to increase skill levels and to keep up with the advance in technology in automobile repair. Since the Petitioner refused to retake the certification test which he did not pass, for which he had previously registered, he was not participating fully in the training program. When the Petitioner was first employed with the Respondent, he was given an employee handbook which set forth the personnel policies of the employer. He read this handbook on the day he was hired, according to his own testimony. That date was August 14, 1989. During his employment, he violated a number of those policies set forth in the handbook. One such personnel policy concerned the unauthorized use of customer vehicles. In the handbook, an example is given to employees involving unauthorized use of a customer's vehicle with the example of use of a customer vehicle to drive to a "7 Eleven". According to the handbook, this is grounds for termination. The Petitioner acknowledged in his testimony that he had violated the policy by going to a McDonald's or to other stores on at least five occasions in customer vehicles. He knew each violation constituted grounds for termination, according to his own testimony, although he was not immediately terminated. He did receive a warning about such violations, however. Another written policy in the handbook involved use of telephones during work hours. According to the handbook, employees were to make or receive telephone calls of an emergency nature only. Violation of this policy stated in the handbook is grounds for dismissal. The Petitioner received upward of 20 personal telephone calls per week. Mr. Lobaugh warned him a number of times about such personal telephone calls and on at least one occasion, also in the presence of Mr. Fraser. According to the Petitioner's testimony, many of these telephone calls were from people who wanted to buy automobile parts from him since the Petitioner could buy the parts at a discount from the dealership. Buying parts from the parts department for third parties also violated a policy in the employee handbook. Employees were permitted to buy parts at 10 percent over cost for their personal vehicles, which was described in the handbook as the employee's vehicle and the vehicle of the employee's spouse. The Petitioner violated this policy by purchasing parts at 10 percent over cost and selling them to third parties at a profit. Both Mr. Lobaugh and Mr. Fraser ultimately concluded that the Petitioner was apparently using company time and the privilege to buy parts at a discount to engage in a side business. This conclusion is somewhat supported by the Petitioner's testimony, as well as the testimony of Mr. Poppell, who stated that the Petitioner told him that he owned a small used car lot. Mr. Lobaugh testified that the Petitioner told him that he owned a large inventory of cars, and Mr. Lobaugh observed that the Petitioner worked on cars in the service department which were not customer cars and warned him about it. Whether or not the Petitioner was actually attempting to engage in a profitable side business through the purchase of discount parts from the employer, both Mr. Lobaugh and Mr. Fraser definitely believed that he was doing so. Mr. Lobaugh also warned him on several occasions concerning installing parts on customer cars which were not authorized by the customer or the service department. Mr. Lobaugh also observed that the Petitioner had a problem with "come backs", which meant that customers had returned cars complaining that the original problem had not been satisfactorily repaired so that the work had to be redone. Mr. Lobaugh also had to warn the Petitioner concerning a developing absentee problem. During March of 1991, the month he was terminated, he left work early on four different days. The Petitioner testified that he believed that he was treated fairly by Mr. McCray and Mr. Lobaugh during the period of his employment but simply did not understand why he was terminated. He was terminated by Mr. Lobaugh on March 22, 1991, and the Petitioner acknowledges that on the day of his termination, Mr. Lobaugh told him some of the reasons for the decision to terminate him which involved his unwillingness to participate in the training program and other problems concerning which he had been warned, including the continuation of excessive telephone calls and the absences of March, 1991. Other employees, in fact, had been warned about excessive telephone calls, as well, and both the Petitioner's and other employee telephone calls had been cut off with the receptionist in the office merely taking messages for those employees after the problem became severe. The Petitioner was not singled out by the employer for warnings and discipline concerning excessive telephone calls. In his typewritten termination report dated March 22, 1991, Mr. Lobaugh stated in the "additional comments" section that the Petitioner's technical skills were below Toyota standards. He stated that the Petitioner had failed two ASE tests and then refused to take the third test and that there were various customer complaints about his work. He also stated that the Petitioner spent too much time on the telephone during work hours and that he was soliciting personal repair work during work hours. Mr. Lobaugh also wrote that the Petitioner was found working on unauthorized vehicles during work hours and had excessive absences. Mr. Lobaugh decided to terminate the Petitioner and that decision was later approved by Mr. Fraser. Mr. Fraser stated that the reasons for the termination were those reasons contained in Mr. Lobaugh's typewritten termination report. He and Mr. Lobaugh also discussed additional problems which the Petitioner had with the unauthorized use of customer vehicles and unauthorized repair of customer vehicles. One day following his termination, the Petitioner asked Mr. Lobaugh for a written explanation of the termination so he could show it to other prospective employers. In response to this request, Mr. Lobaugh gave the Petitioner the original of the handwritten termination report on the company's form. The Respondent did not retain a copy of that handwritten report. Incompetence and unacceptable performance are listed under the "reason for separation" on the handwritten termination report. The "additional comments" section is not completed on that report. In the employee evaluation section of the company's termination report form, the possible ratings are unsatisfactory, fair, satisfactory, good and excellent. In the categories of job knowledge and quality of work, the Petitioner was rated fair on both the typewritten and handwritten termination reports. In the category of initiative, the Petitioner was rated fair on the handwritten termination report and unsatisfactory on the typewritten termination report. In the categories of attendance and cooperation, the Petitioner was rated satisfactory on the handwritten termination report and unsatisfactory on the typewritten termination report. Mr. Lobaugh was not asked to testify on the subject of the handwritten termination report at his deposition which was admitted into evidence. While the ratings in the three areas in the employee evaluation section of the handwritten termination report are somewhat more favorable than those on the typewritten version, the handwritten termination report does not truly contradict the typewritten report which contained additional information in the "additional comment" section concerning the reasons for the Petitioner's termination. These two reports are certainly not mutually exclusive. The Petitioner was replaced in late March of 1991 by Mr. Frank Barnes, a white male, who on date of hire was certified as a Level III - Master Technician. That is the highest certification possible under the TCTP. At the time of his termination, the Petitioner had no certification at all due to incompletion of the initial training program phase. Mr. Leroy Stinnet and technicians Perry, Fitzsimmons, and Poppell are all white. They were all employed as service technicians during the month of March, 1991, when the Petitioner was terminated. Mr. Stinnet was a Level III - Master Technician. He was terminated by Mr. Lobaugh on June 6, 1991, after the Petitioner's March, 1991 termination. He was terminated for failure to put a part on a customer's car. Mr. Perry, a Level II - Pro Technician, was terminated by Mr. Lobaugh on July 23, 1991 for verbal abuse. He was later rehired and terminated again for unauthorized use of a customer's vehicle. Mr. Fitzsimmons, a Level II - Pro Technician, was terminated for excessive absenteeism. Mr. Poppell, a Level I - Toyota Technician, was terminated for leaving work early and for a "bad attitude". Mr. Barnes, a Level III - Master Technician and the Petitioner's replacement, also was later terminated for absenteeism. Mr. McCray, the Petitioner's original supervisor, also testified that while he was Service Manager, he terminated numerous white service technicians for various reasons, including tardiness, quality of work, and personal problems. Mr. Poppell testified that he overheard Mr. Fraser make a comment to the effect that the Petitioner should only be used for cleaning up. He further testified that he did not know when or even in what year the comment was made but that it was made at a time when Mr. Fraser was upset over the Petitioner's work quality. Mr. Fraser denied making the comment. Because the comment made is not connected in point of time and subject matter to the employment decision and the stated reasons for it involving the Petitioner's termination, evidence of the comment is not material to the employment decision to terminate the Petitioner and, considered with other evidence concerning Mr. Fraser's and the Respondent's employment practices, it is not direct evidence of discriminatory intent. Mr. Fitzsimmons testified that he overheard Mr. Fraser make a comment to the effect that if he ever got rid of the Petitioner, he would not hire another black again. Mr. Fitzsimmons stated that this comment was made shortly after Mr. McCray was terminated; however, Mr. Fitzsimmons did not know anything about the context in which the comment was made, if it was made. Mr. Fraser denied making the comment. The evidence shows that Mr. McCray was terminated in March, 1990, one year prior to the termination of the Petitioner. Therefore, a comment, if made at all, was made at least one year prior to the Petitioner's termination. Further, the evidence establishes that the employment decision to terminate the Petitioner was initiated by Mr. Lobaugh and not by Mr. Fraser. Mr. Lobaugh, therefore, initially formed the intent that performance by the Petitioner was insufficient enough in the areas discussed and found above to justify termination, before the question of the Petitioner's termination had ever occurred or been put before Mr. Fraser. Because there is no demonstrated nexus between the alleged comment by Mr. Fraser and the employment decision, evidence of the comment is not material to the employment decision to terminate the Petitioner and, because of other preponderant evidence of Mr. Fraser's and the Respondent's nondiscriminatory employment and personnel practices is not evidence of direct discriminatory intent. The fact that subsequent to the Petitioner's termination, Mr. Fraser hired three minority service technicians, including one black technician, who are all still presently employed by the Respondent, as is Mr. Fraser, militates against the conclusion that the comment, even if it was made, had any bearing on the employment decision regarding the Petitioner. The fact that a number of white employees, both before and immediately after the Petitioner's termination, were terminated for similar reasons also militates against there being any direct or inferential discriminatory intent involving the discipline meted out to the Petitioner. The evidence simply does not support such discriminatory animus. The Petitioner earned $21,000.00 in 1990 from the Respondent. On March 22, 1991, the termination date, his gross wages were $4,914.07 for 1991. He received $11,180.00 in unemployment compensation benefits since the termination. Since the date of termination, he has not been regularly employed. He testified that three weeks prior to the hearing, however, he began doing odd jobs for the Proctor & Proctor dealership in Chattahoochee, Florida. He had been paid a total of $100.00 for that work. Since the date of termination, he has not submitted any written applications for employment to any employers. He testified that records of a work search, which may have been submitted to the Florida Department of Labor and Employment Security Division of Unemployment Compensation, were lost by that agency. He further testified as to his own work search, consisting of walking into various prospective employers' places of business, apparently generally without appointments, and asking for work. He was denied on each instance.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is RECOMMENDED that a Final Order be entered by the Florida Commission on Human Relations denying and dismissing the Petition for Relief filed by the Petitioner in this proceeding. DONE AND ENTERED this 3rd day of March, 1994, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-6334 Petitioner's Proposed Findings of Fact 1-7. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. Rejected, as contrary to the preponderant weight of the evidence and subordinate to the Hearing Officer's findings of fact on this subject matter. 11-12. Accepted. 13-18. Accepted, but not itself dispositive of material issues presented. 19. Rejected, as contrary to the preponderant weight of the evidence. The payroll status change or raise was not based upon a performance evaluation. 20-34. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 38-42. Accepted, but not itself materially dispositive to resolution of the issues presented. The fact that certification is not actually required does not render it irrelevant to judging the qualifications of an employee. Rejected, as irrelevant. Accepted. Accepted, but immaterial in part and subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. 47-48. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not based upon evidence that these employees were not disciplined for personal telephone calls. In fact, they were later terminated and it is not clear whether personal telephone calls were or were not included in the cause for termination. In any event, the Petitioner was not terminated merely for receiving personal telephone calls but for a number of reasons as found above. 49. Rejected, as immaterial and as not constituting a finding of fact based upon preponderant evidence. 50-51. Accepted. 52. Accepted, but not itself materially dispositive of the issues presented and subordinate to the Hearing Officer's findings of fact on this subject matter. 53-57. Rejected, as not supported by preponderant, credible evidence and as subordinate to the Hearing Officer's findings of fact on this subject matter. 58-61. Rejected, as not entirely supported by preponderant evidence of record, as partially immaterial and as subordinate to the Hearing Officer's findings of fact on the same subject matter. 62-65. Rejected, as not based upon credible testimony. All the witnesses supportive of these proposed findings of fact were terminated and all of them had had an unsatisfactory relationship with their employer before that termination, which is deemed to have likely colored their testimony, especially in view of the fact that Mr. Fraser had hired black service technicians both before and after the Petitioner's hiring and his termination. The fact that Mr. Fraser made those statements has not been proven and had he made the statements, they are not shown to be related to the employment decision which was made in the Petitioner's situation, as indicated in the above Findings of Fact and Conclusions of Law. 66-68. Accepted. Respondent's Proposed Findings of Fact 1-22. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter and to the extent that they differ from the Hearing Officer's findings of fact on the same subject matter, they are deemed immaterial, unnecessary, and subordinate to the findings of fact by the Hearing Officer. COPIES FURNISHED: Leslie Holland, Esquire 1405 Opalocka Boulevard Miami, FL 33167 Richard M. Powers, Esquire Richard M. Powers, P.A. 701 Barnett Bank Building Tallahassee, FL 32301 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Dana C. Baird, Esquire General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149
The Issue Whether Respondent is operating a motor vehicle repair shop without being registered with Petitioner, in violation of Section 559.904, Florida Statutes, and is subject to an administrative fine.
Findings Of Fact The Petitioner is the state agency charged with the enforcement and regulation of Sections 559.901-559.9221, Florida Statutes, cited as the "Florida Motor Vehicle Repair Act". On October 13, 1995, an Investigation Specialist with the Bureau of Motor Vehicles, went to 1604 C Waverly Place, Melbourne, Florida. At that location is a building that has signs on it which read "All Auto Repair, Acura and Honda Factory Trained". All Auto Repair occupied approximately two-thirds of the building. There were two bays and two vehicle lifts. In the building were located snap-on tools; and while inside, the Investigation Specialist observed two persons who appeared to be mechanics. One of the two was working on a vehicle in one of the two bays. Besides the vehicle being worked on, other vehicles were on the property. The person who was not working on a vehicle introduced himself as Rudy Garcia, Manager of the business. While conversing with Mr. Garcia, a telephone call was received at the business. A female voice on the telephone identified herself as Elizabeth Whitehead, owner of All Auto Repair. She was informed about the registration and why the inspector was there. Mr. Garcia would not sign for the registration package which the inspector had with him. The registration package was left at the place of business. The registration package had an application, a copy of the Florida Motor Vehicle Act, and an envelope to send the application in to the Department. On or about October 19, 1995, Respondent sent a letter to the inspector addressed to Petitioner in Tallahassee concerning his visit to her ". . . private place of labor". On October 25, 1995, the Petitioner sent to Respondent a Notice of Intent to Impose Administrative Fine for failure to register or file an affidavit of exemption. Respondent received the Notice. The response from Respondent was a letter dated November 17, 1995, which the Petitioner construed as a demand for a hearing. After the Notice of Intent was sent, an analyst with the Bureau of Motor Vehicle Repair called the telephone number for All Auto Repair to confirm that it was open and doing motor vehicle repair. It was open and doing motor vehicle repair. Subsequent to his visit on October 13, 1995, the inspector drove by All Auto Repair during November and December and observed that the repair shop was open for business. On January 30, 1995, 12 to 15 vehicles were observed behind a chain- link fence, which surrounded the grounds of All Auto Repair. In the northernmost bay, a Ford LTD was being worked on by a technician. Among the cars on the property were some Hondas, a Toyota, a Suzuki, and a Lincoln Town Car. Prior to the hearing on February 27, 1996, an inspector went by All Auto Repair and observed a technician working on a red Honda in one of the bays. He observed two Hondas and an Acura on the grounds. At some point in time, Rudy Garcia was seen on the grounds. Respondent has not registered with the Petitioner as a motor vehicle repair shop and has not submitted an affidavit of exemption to the Petitioner. Respondent is operating a motor vehicle repair shop.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of unlawfully engaging in repair work for compensation without first being registered with the Petitioner, in violation of Section 559.920(1), Florida Statutes; and pursuant to Section 559.921(4), Florida Statutes, the Department of Agriculture and Consumer Services enter a Final Order imposing an administrative fine against Respondent in the amount of $1,000.00, and it is further RECOMMENDED that Petitioner seek a temporary or permanent injunction in circuit court compelling Respondent to cease and desist in her violation of the law. DONE and ENTERED this 20th day of March, 1996, in Tallahassee, Florida. DANIEL M. KILBRIDE, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of March, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-0015 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact Accepted in substance: paragraphs 1-17. Respondent's Proposed Findings of Fact Respondent did not submit proposed findings of fact. COPIES FURNISHED: Lawrence J. Davis, Esquire Department of Agriculture and Consumer Services Room 515, Mayo Building Tallahassee, Florida 32399-0800 Ms. Elizabeth Whitehead 1604 C Waverly Place Melbourne, Florida 32901 Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810
The Issue Did the Respondents commit the offenses alleged in the Administrative Complaint, and, if so, what penalty should be imposed?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency of the State of Florida responsible for the enforcement of the Florida Motor Vehicle Repair Act (Sections 559.901-559.9221, Florida Statutes). At all times pertinent to this proceeding, Respondents were engaged in the business of motor vehicle repair. At all times pertinent to this proceeding, Allen J. Hobbs (Hobbs), was employed by the Department as a Law Enforcement Investigator. Hobbs became familiar with Respondents, Brian Waterman, John Waterman, and Transmission Mart, Inc., through complaints sent to the Department's office in Polk County, Florida, from the Department's office in Tallahassee, Florida Hobbs opened an investigation concerning Respondents on January 22, 1999. The investigation involved "preparing a vehicle" by taking the transmission apart to make sure the transmission was working properly and marking all parts of a transmission with an identifying number. The purpose of marking the parts was to determine if a part had in fact been replaced when such was indicated on Respondents' repair bills. On February 11, 1999, while working undercover, Joanne M. Taylor (Taylor), Law Enforcement Officer with the Department, presented a 1992 Buick Skylark, which had previously been prepared by having the transmission checked and the transmission parts marked with the number 04, to Transmission Mart at 3550 Recker Highway, Winter Haven, Florida. Taylor had a coupon for a transmission service. A man, with a name patch of "John" on his shirt, advised Taylor that he could service the transmission. Upon being advised that the transmission service had been completed, Taylor paid the bill and received an invoice for the service, which indicated that a new filter had been installed. Taylor left Transmission Mart and returned the 1992 Buick Skylark to Hobbs. On February 15, 1999, John Denny (Denny), the Department's mechanic who had originally marked the transmission parts, inspected the transmission along with Hobbs and found that the filter marked with the number 04 was still in place and had not been replaced by Transmission Mart as indicated on the invoice. Other than the time during which the vehicle was being serviced at Transmission Mart, the vehicle was under the control of the Department's employees. On February 25, 1999, while working undercover, M. E. (Cookie) Sikes (Sikes), Law Enforcement Officer with the Department, presented a white 1990 Oldsmobile Eighty-Eight, which had previously been prepared by having the transmission checked and the transmission parts marked with the letter T and the number 5 (T5), to Transmission Mart at 3550 Recker Highway, Winter Haven, Florida. Sikes had a discount coupon for a transmission service. The Service Manager named Brian, advised Sikes that it would take approximately one and one- half hours to service. Sikes had someone pick her up and later returned to pickup the vehicle. Sikes was given an invoice that indicated that she was being charged $15.00 for a new filter, with a total amount owed of $35.99. However, due to the unavailability of change, Sikes' bill was reduced to $30.00. Sikes returned the car to the Division of Plant Industry Office where it was secured. On March 1, 1999, the vehicle in question was transported to the Division of Forestry Vehicle Repair Shop in Brooksville, Florida. On March 16, 1999, Denny, with Hobbs observing, removed the transmission from the vehicle and inspected the filter to determine if Transmission Mart had in fact replaced the filter that was in the vehicle when presented to Transmission Mart on February 25, 1999. Upon examination, both Denny and Hobbs observed that the filter containing the identifying mark T5 was still in the transmission. Although Sikes paid for a new filter, Transmission Mart did not install a new filter in the vehicle presented by Sikes. Other than the time the Oldsmobile Eighty-Eight was being serviced by Transmission Mart, the vehicle was under the control of the Department's employees. On August 16, 1999, Hobbs drove a black 1991 Ford Taurus automobile to the Division of Forestry Motor Vehicle Repair Shop in Brooksville, Florida, for the purpose of having the transmission checked by John Denny, Forestry Mechanic, to assure that the vehicle's transmission was functioning properly. After determining that the vehicle's transmission was functioning properly, Denny, with Hobbs observing, removed the transmission fluid pan and the transmission filter. Denny installed a new fluid pan gasket and fluid filter. The fluid filter was marked with the letter O and the number 3 (O3), which was the code used by Denny to previously identify the other parts of the transmission. On August 19, 1999, Paula R. Wheeler (Wheeler), Law Enforcement Officer with the Department, while working undercover, presented the black 1991 Ford Taurus for servicing. Wheeler spoke with Brian Waterman. After a few minutes, Wheeler was advised by Brian Waterman that they were unable to service the transmission due some problem with the transmission. After some discussion, Wheeler authorized the expenditure of $225.00 for the repair of the transmission. On August 20, 1999, when Wheeler called to inquire about the transmission, she was informed that there were additional problems and that the estimate for repair was now $1,849.60. Wheeler agreed to this new estimate for repair. Although Wheeler was advised by Waterman that the vehicle would be ready on Monday, August 23, 1999, the vehicle was not ready until Wednesday, August 25, 1999. On Wednesday, August 25, 1999, Wheeler paid Transmission Mart $1,972.29 for the repair of the transmission and received an invoice for the repair. The invoice indicated that Wheeler was charged for the installation of a Transmission Mart remanufactured transmission with an exchange recondition torque converter using the following parts: (a) 1-OH Kit with steels; (b) 1- Bushing Kit; (c) 1- Reconditioned Valve Body; (d) 1- Reconditioned front Pump; (e) 1-Torque Converter; (f) 1- Set of Snap Rings; and (g) a filter. After picking the Ford Taurus up from Transmission Mart on August 25, 1999, Wheeler proceeded to the Department's office in Winter Haven, Florida, where the vehicle was loaded on a trailer and turned over to Hobbs. On August 31, 1999, Steve Merrick, Investigator for the Department, transported the vehicle by trailer to the Division of Forestry Repair Shop in Brooksville, Florida, so that Denny could disassemble the transmission for the purpose of determining if Transmission Mart had performed the work and replaced the parts indicated on the invoice presented to Wheeler. Hobbs videotaped the disassembling of the transmission on August 31, 1999, and September 1, 1999. Upon disassembling the transmission, it was determined that the front pump and both parts of the valve body had not been replaced in that they still had the code O3 on them, which had been placed there earlier by Denny. The forward, intermediate, and rear clutch was inspected, and it was determined that 11 steels and 7 friction plates had not been replaced by Transmission Mart as indicated on the invoice in that these parts still bore the code O3 which had been previously put there by Denny. The rear clutch was removed and upon inspection it was determined that four steels had not been replaced as indicated on the invoice in that they still bore the code O3, which had been placed there earlier by Denny. At all times pertinent herein, the Ford Taurus was in the possession of, or under the control of, Department employees. There is no evidence that Respondents, on May 10, 1999, knowingly and falsely charged Bob Bloomquist for the removal, rebuilding, and reinstallation of a transmission as alleged in paragraph 11 of the Administrative Complaint. Likewise, there is no evidence that Bob Bloomquist had any contact with Respondents until sometime in late April or early May 2000. The Administrative Complaint contains no allegation charging Respondents with having falsely stated that they were members of the Automatic Transmission Rebuilders Association and thereby an authorized warranty dealer. On November 10, 1999, Judi Sylvia (Sylvia) presented her 1995 Ford Windstar Van (Van) to Transmission Mart for a service check of her transmission. The purpose of the service check was preventive maintenance because the transmission had a slight hesitation in reverse. Brian Waterman initially inspected the Van and concluded that there was a problem. Brian Waterman advised Sylvia that he would need to remove and dismantle the transmission in order to make an internal inspection. The cost for this internal inspection would be $225.00. However, if major repairs were needed, the $225.00 would apply toward that bill. Sylvia gave her approval for the cost of the internal inspection. After the internal inspection, Brian Waterman advised Sylvia that it would cost $500.00 to repair but changed that estimate to $750.00, which Sylvia agreed to pay because she was not knowledgeable about transmission repair and did not understand what she was being told by Brian Waterman. Subsequently, the estimate went to $750.00 and then to $1,749.00. Not having any choice, Sylvia agreed to the repairs. The invoice given to Sylvia by Transmission Mart indicated that a Transmission Mart Reconditioned Transmission with a full Life Time Warranty had been installed in the Van. The invoice indicated that warranty did not cover towing. However, the newspaper ad, which included the coupon, indicated that there was free towing with internal repairs. Sylvia was charged for internal repairs. Transmission Mart falsely charged Sylvia for towing. The Van stayed in the shop at Transmission Mart for a large part of the time between November 10, 1999, and December 22, 1999. Sylvia continued to experience problems with the transmission during this period. Eventually, Sylvia paid Transmission Mart a total of $1,981.50, which included towing charges. During the time the Van was being allegedly repaired at Transmission Mart, Brian Waterman told Sylvia that the Van was at Rowan Lincoln Mercury being repaired. However, the van was never at Rowan Lincoln Mercury being repaired during the time it was at Transmission Mart. On December 22, 1999, Sylvia retrieved her van from Transmission Mart and transported the Van to Aamco for repairs. Sylvia paid $1,757.48 for the repairs made by Aamco to the Van's transmission. Transmission Mart falsely charged Judi Sylvia for the removal, rebuilding, and installation of a Transmission Mart Reconditioned Transmission. There is insufficient evidence to establish facts to show that Transmission Mart falsely charged Raymond D. Skipper for the removal, rebuilding, and reinstallation of a transmission in Skipper's 1994 Dodge Caravan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is, accordingly, Recommended that the Department of Agriculture and Consumer Services enter a final order finding Respondents guilty of: (a) violating Section 559.920(3), Florida Statutes, on four separate occasions as alleged in paragraphs 6, 7, 9, and 12 of the Administrative Complaint; (b) violating Section 559.920(4), Florida Statutes, on one occasion as alleged in Paragraph 8 of the Administrative Complaint; (c) violating Section 559.920(8), Florida Statutes, on one occasion as alleged in paragraph 14 of the Administrative Complaint; and (d) violating Section 559.920(9), Florida Statutes, on one occasion a alleged in paragraph 13 of the Administrative Complaint. It is further recommended that an administrative fine of $1,000.00 for each violation be imposed for a total administrative fine of $7,000.00. It is further recommended that the allegations contained in paragraphs 10, 11, and 15 through 18 be dismissed. DONE AND ENTERED this 18th day of September, 2001, in Tallahassee, Leon County, Florida. ___________________________________ WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 2001. COPIES FURNISHED: Honorable Terry L. Rhodes Commissioner of Agriculture The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard D. Trischler, General Counsel The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Brenda D. Hyatt, Bureau Chief Bureau of License and Bond Department of Agriculture 541 East Tennessee Street, India Building Tallahassee, Florida 32308 Suzanne V. Estrella, Esquire Department of Agriculture and Consumer Services 407 South Calhoun Street 515 Mayo Building, Fifth Floor Tallahassee, Florida 32399-0800 James R. Franklin, Esquire Post Office Box 2883 Lakeland, Florida 33806-2883
Findings Of Fact Patricia Pyle is the sole owner and proprietor of Automenders, located at 5655 Beaver Street in Jacksonville, Florida. A paint and body shop, Automenders was opened in 1991 by Petitioner. In addition to paint work, Automenders repairs car frames, does rust repair to car bodies, repairs dents in automobiles, and installs headliners and vinyl tops. George Pyle, Petitioner's husband, has 30 years of experience in the automobile repair industry. He owns 50 percent of the land on which the business is located. He receives no rent from the business for use of his interest in the property. Mr. Pyle also does 50 percent of the estimates for work to be done in the shop, and works there approximately 30 to 50 hours per week. He is not paid for any of his efforts by Automenders since he presently draws social security. He does, however, share in the profits of the business. Petitioner and her husband previously operated a paint and body shop business at the same location from 1970 until 1986 when the couple decided to sell the business and retire. In that business, Petitioner was in charge of hiring, firing, keeping the books, doing the payroll and other administrative aspects of the business. The sale of the business in 1986 included the property, the paint and body shop, and an adjacent car lot. The purchasers of the business were unsuccessful in their business endeavors and, in 1991, Petitioner regained control of the property after the purchasers defaulted on their payments. Petitioner provided the start up costs and reopened the present business. There is little difference between Petitioner's present duties and her duties with the business which she and her husband sold. Petitioner is still in charge of administrative aspects of the enterprise. Listed on Automenders' bank account signature card are the names of Petitioner, her husband, and their daughter. Only one signature is required to transact business on the account. Additionally, Petitioner's husband is listed on Automenders' checks, along with Petitioner. Petitioner does not do actual body repair and painting of vehicles herself. While she did occasionally perform some technical tasks in the previous business such as taping and paint mixing, she has no other technical experience and has never received technical training in automobile body repair or painting. Even though she does not know how to run a frame straightening machine or paint cars, Petitioner maintains that she hires qualified employees and relies upon them for the technical aspects of her business. Petitioner's employees, Robert Yonnetti and Jason Sikes, are experienced. Yonnetti has 20 years of experience in the automobile body repair industry and has received training in repair as well as use of frame machines. Sikes has over nine years experience in automobile painting and has received training in automobile painting. Petitioner graduated from high school and attended Montgomery College where she took courses in bookkeeping, accounting and management. Petitioner has failed to provide documentation of training or possession of an expertise in automobile body repair work and painting. Consequently, Petitioner has not demonstrated the technical knowledge and capability necessary to maintain control of the technical aspects of the enterprise.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered denying Automenders application for certification as an MBE. DONE and ENTERED in Tallahassee, Florida, this 22nd day of March, 1995. DON W. DAVIS 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 22nd day of March, 1995. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties. Petitioner's Proposed Findings Petitioner submitted a four page letter containing 10 unnumbered paragraphs. The letter has been reviewed and to the extent possible addressed by the foregoing findings of fact. Respondent's Proposed Findings 1.-20. Accepted, but not verbatim. COPIES FURNISHED: Patricia Pyle 5655 West Beaver Street Jacksonville, FL 32254 Ana Cristina Martinez Assistant Attorney General The Capitol - Suite PL - 01 Tallahassee, FL 32399-1050 Crandall Jones Executive Administrator Knight Building 2727 Centerview Drive Tallahassee, FL 32399-0950
The Issue At issue is whether Respondent committed the offenses set forth in the Administrative Complaints and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation (Department), is the state agency charged with the duty and responsibility of regulating the practice of contracting and electrical contracting pursuant to Chapters 20, 455 and 489, Florida Statutes. At all times material to the allegations of the Administrative Complaints, Antoney Manning was not licensed nor had he ever been licensed to engage in contracting as a State Registered or State Certified Contractor in the State of Florida and was not licensed, registered, or certified to practice electrical contracting. At all times material to the allegations of the Administrative Complaints, Manning Builders did not hold a Certificate of Authority as a Contractor Qualified Business in the State of Florida and was not licensed, registered, or certified to practice electrical contracting. Respondent, Antoney Manning, was at all times material to this proceeding, the owner/operator of Manning Builders. Respondent is in the business of framing which includes framing, drywall, tile, trim work, and painting. A document which is in evidence purports to be a contract dated September 5, 2004, between Manning Builders and Ms. Gwendolyn Parker, for the construction of a 14-foot by 14- foot addition in the rear corner of Ms. Parker's house located at 8496 Southern Park Drive in Tallahassee, Florida. The contract identifies Manning Builders as the "contractor." The contract price is $15,000. Unfortunately, only the first page of the contract is in evidence. However, Respondent acknowledges that he and Ms. Parker entered into a contract regarding the 14-foot by 14-foot addition to Ms. Parker's home. Respondent insists that he informed Ms. Parker that he was not a certified general contractor, but that he could find a general contractor for her. When that did not work out, Respondent told Ms. Parker that she would have to "pull" her own permits and that he could do the framing. He also told her that he would assist her in finding the appropriate contractors to do the electrical work, plumbing, and roofing. Ms. Parker did not testify at the hearing. On September 7, 2005, Respondent signed a receipt for $7,500 for a "deposit on addition (14 x 14)." The receipt identifies Ms. Gwendolyn Parker as the person from whom the money was received by Respondent. Respondent acknowledges finding an electrical contractor to perform the electrical work on the addition. However, he insists that he did not hire the electrical contractor but found one for Ms. Parker to hire. He gave the name to Ms. Parker but she apparently did not contact him. In any event, the electrical work was never done on the addition. Respondent completed the framework on the addition. Respondent did not build the roof, as he was aware that would require a roofing contractor. Work on the project ceased before the addition was finished. Ms. Parker's home suffered rain damage as a result of the roof not being completed. There is nothing in the record establishing the dollar amount of damage to her home. The total investigative costs to the Department, excluding costs associated with any attorney's time, was $360.59 regarding the allegations relating to Case No. 06- 0601, which charged Respondent with the unlicensed practice of contracting. The total investigative costs, excluding costs associated with any attorney's time, was $140.63 regarding the allegations relating to Case No. 06-0602, which charged Respondent with the unlicensed practice of electrical contracting.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department of Business and Professional Regulation enter a final order imposing a fine of $1,000 for a violation of Section 489.127(1); requiring Respondent to pay $360.59 in costs of investigation and prosecution of DOAH Case No. 06-0601, and dismissing DOAH Case No. 06-0602. DONE AND ENTERED this 28th day of June, 2006, 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 28th day of June, 2006. COPIES FURNISHED: Brian A. Higgins, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Antoney Manning 11865 Register Farm Road Tallahassee, Florida 32305 G. W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Josefina Tamayo, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact Respondent, Debra Ann Vallancourt, was issued a Class "EE" Recovery Agent Intern License on August 12, 1992. Respondent has never held a Class "R" Recovery Agency License or a Class "E" Recovery Agent License. June MacWithey, who holds a Class "R" Recovery Agency License and a Class "E" Recovery Agent License, sponsored Respondent's internship beginning in April, 1992. Prior to that time, Respondent was sponsored under the Class "E" License of Septhanie MacWithey, one of June MacWithey's employees. The name of June MacWithey's recovery agency is Collateral Collection Corporation. The name was changed in February, 1993. The former name of the corporation was Midnight Auto Adjusters. In November, 1992, June MacWithey formally terminated her sponsorship of Respondent. At approximately the same time, Steve MacWithey had a conversation with Respondent regarding complaints made against her for allegedly contracting to perform repossessions without her sponsor's knowledge or permission. However, it is not clear whether she was informed at that time that her internship was being terminated. Steve MacWithey, June's husband, is a Class "EE" Recovery Agent Intern, and one of June's employees. Charles Mason is the manager of Auto Sports Center, Inc., in Apopka, Florida. In late summer, 1992, Sharon Landis introduced Respondent to Mason as a licensed repossessor. He hired Respondent to perform repossessions as an independent contractor, and paid her by check made payable to Debbie Vallancourt. He eventually hired Respondent as an employee in March or April of 1993. Respondent repossessed approximately 30-35 cars for Mr. Mason between October, 1992 and January, 1993. Respondent never advised Mason that she was working for Midnight Auto Adjusters or Collateral Collection Corporation. However, she would on occasion perform repossessions with Steve MacWithey who would pick her up at Mason's car lot. Some of the repossessions Respondent performed for Mason, between October and December, 1992, were done without the knowledge of her sponsor June MacWithey, and on some of the repossessions performed for Mason, Respondent would cash her check and split the money with Steve MacWithey, bypassing her sponsor. George Namlik, Sr. owns a used car dealership in Apopka, Florida. In early November, 1992, Respondent solicited Namlik for the purpose of performing repossessions for his dealership. She indicated to him that she was licensed to perform repossessions. She showed him her Class "EE" Recovery Agent Intern License, which he made a copy of, and told him that another license was in the mail. Next to the photocopy of the Class "EE" license, Respondent wrote her office number, her digital beeper number, and her quoted price for each repossession. Respondent did not tell Mr. Namlik that she was working with anyone else, and led him to believe that she had the necessary licenses to work as an independent contractor. Namlik assigned her two repossessions which she never completed. She returned the car keys to Namlik following numerous requests and his threat to complain to the Department of State, Division of Licensing. June MacWithey did not properly supervise and direct the activities of Respondent. Between October and December, 1992, Respondent solicited and performed repossessions independent of, and without the knowledge of, her sponsor. Petitioner's explanation for this conduct is not credible.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found GUILTY of violating Sections 493.6118(1)(g) and receive a written reprimand and pay an administrative fine in the amount of One Thousand Dollars ($1,000). DONE and ENTERED this 13th day of October, 1993, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 October, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1885 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: paragraphs 1-19 Respondent's proposed findings of fact. Respondent did not submit proposed findings. COPIES FURNISHED: Henri C. Cawthon, Esquire Department of State Division of Licensing The Capitol, Mail Station #4 Tallahassee, Florida 32399-0250 Debra Ann Vallancourt (pro se) Post Office Box 269 Apopka, Florida 32712-0269 Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 Phyllis Slater General Counsel Department of State The Capitol, PL-02 Tallahassee, Florida 32399-0250
