Findings Of Fact Appellant, Nostimo, Inc. (Nostimo), owns lots 8, 9, 10 and 11, Block 8, revised plat, in a Clearwater Beach subdivision located at 32 Bay Esplanade, Clearwater, Florida. Appellant, Pick Kwik Food Stores, Inc. (Pick Kwik), operates a Pick Kwik convenience store at the location. The subject Pick Kwik store is located on the western side of the intersection of Bay Esplanade and Mandalay Avenue in Clearwater Beach, an elongated strip of land to the west of the mainland portion of the City of Clearwater and separated from the mainland by Clearwater Harbor. Mandalay Avenue runs north and south through the heart of Clearwater Beach and is a principal traffic artery in that part of the community. Mandalay narrows from four to two lanes just south of the subject location. From the point at which it narrows to two lanes, Mandalay furnishes the only access to the primarily residential neighborhoods to the north. Bay Esplanade is a much shorter street that runs in an east-west direction between the Gulf of Mexico and Clearwater Harbor. Before the Pick Kwik store began to do business at the location, the premises were once occupied by a hotel, apartments, hot dog shop and a small lounge that offered both on- and off-premises consumption of alcohol. The lounge did not generate substantial numbers of customers and associated traffic. It was very small, and a congregation of four or five customers at any one time was a large crowd. In general terms, the location is surrounded by mixed uses, including a 7 rental apartments, a restaurant, retail businesses and resort facilities, residences, public areas and a city fire station. In addition to a number of commercial establishments within the immediate area, there are tennis courts, a parking area, community boat ramp, soccer field, playground and public park. In the area, there are apartments, rental units and condominiums, including some directly behind the subject location. There is a church a block away, and there is a playground next to the church that is used by area young people, many of whom use bicycles as their means of transportation. On April 25, 1989, Nostimo and Pick Kwik applied for a conditional use permit to sell beer and wine, for off-premises consumption, at the location. The application was heard at a meeting of the City of Clearwater Planning and Zoning Board (the Board) on June 14, 1989. The Board denied the application, and Nostimo and Pick Kwik appealed under Section 137.013 of the Clearwater Land Development Code (the Code). The appeal was heard by a Division of Administrative Hearings Hearing Officer, who entered a Final Order on October 9, 1989, upholding the denial. The Hearing Officer found in his Final Order in part: At both the Board hearing and final hearing in this cause, the City Police Department offered testimony in opposition to the issuance of the requested permit. According to the uncontradicted testimony of Lt. Frank Palumbo, who is the Clearwater Beach police department district commander, additional noise, vandalism, traffic congestion and congregation of younger people are expected if the permit is issued. This opinion was based upon his law enforcement experience with other convenience stores on the Beach side that sell beer and wine, including another Pick Wick [sic] convenience store. Further, Mandalay Avenue is an important north-south traffic artery in Clearwater Beach, and there are no alternative streets for residents and visitors to use to avoid the traffic build-up that will occur around the store. Lieutenant Palumbo disputed the assertion that the lounge that once occupied a portion of the subject property generated substantial numbers of customers and associated traffic and that the new enterprise is actually a downgrade in use. He pointed out that the former lounge was very small, and a congregation of four or five customers at any one time was a "large crowd." In contrast, the police officer distinguished that situation from the proposed store where the sale of beer and wine around the clock is expected to generate larger volumes of traffic and customers, particularly during the evening hours. Finally, it has been Lt. Palumbo's experience that convenience stores that sell beer and wine attract the younger crowd, including minors, during the late hours of the night, and they create noise and sanitation problems for the adjacent property owners. The witness concluded that all of these factors collectively would have a negative impact on "community services" by placing a greater demand on police resources. This testimony was echoed by a city planner who gave deposition testimony in this cause. The nexus between the sale of alcoholic beverages and increased traffic and noise was corroborated by Daniel Baker, the manager of another Pick Wick [sic] store and a former employee of the 7 when beer sales stopped at that store at midnight, the noise and traffic also came to a halt. In this regard, it is noted the proposed store will operate twenty-four hours per day. To the above extent, then, the proposed use is incompatible with the requirements of section 137.011(d)(6). On November 7, 1989, Nostimo and Pick Kwik filed a two-count complaint in circuit court: Count I, a petition for common law certiorari review of the Hearing Officer's decision; and Count II, attacking the constitutionality of Section 137.011(d)(6) of the Code. On November 19, 1990, the circuit court entered orders (1) denying the petition for common law certiorari and (2) granting a motion to dismiss Count II. It was represented that a Final Judgment of Dismissal, addressed to Count II, was entered on March 22, 1991, and that Nostimo and Pick Kwik appealed the final judgment to the District Court of Appeal, Second District of Florida, where it remains pending. On April 16, 1991, Nostimo and Pick Kwik filed another application for a conditional use permit to sell beer and wine, for off-premises consumption, at the 32 Bay Esplanade location. The application is identical to the one filed on April 25, 1989, except in one respect: the second application provides that sales of alcoholic beverages at the location would not begin until 9:00 a.m., whereas the April 25, 1989, application was for a permit to begin sales of alcoholic beverages at the location at 8:00 a.m., as authorized by local ordinance. During the staff review of the April 16, 1991, application, the applicants also offered to agree to other conditions or restrictions in response to staff concerns: (1) the applicants would provide a security guard to patrol its three Clearwater Beach establishments between the hours of 8:00 p.m. and 2:00 a.m. on Friday and Saturday nights, with monitoring reports submitted to the City Planning and Development Department not less than quarterly; 2/ (2) the applicants would obtain the requisite alcoholic beverage separation distance variance from the City Commission; 3/ (3) the applicants would obtain the requisite occupational license within six months of the date of the public hearing on the application; and (4) the applicants would restrict the hours of operations for alcoholic beverage sales to 9:00 a.m. until 12:00 midnight Monday through Saturday and 1:00 p.m. until 12:00 midnight on Sunday. At the Board hearing, the human resources manager for Pick Kwik outlined Pick Kwik's procedures and guidelines for the sale of alcohol. There is a policy manual in each store as well as a handbook provided to each employee outlining the procedures to be followed regarding the sale of alcohol, including procedures to prevent sales to minors and disciplinary action if the procedures are not followed. All employees also attend an orientation which includes responsible vendor training. These policies are enforced by Pick Kwik through monthly inspections. There are 17 existing establishments fronting on Mandalay Avenue that sell alcoholic beverages. Just three are north of Bay Esplanade, including the 7 There are another three establishments selling alcoholic beverages south of Bay Esplanade fronting on streets other than Mandalay. There also is one fronting on Bay Esplanade. There is one restaurant on Mandalay north of Bay Esplanade that has a pending application for a permit to sell alcoholic beverages. At the Board hearing on the April 16, 1991, application, held on July 30, 1991, opponents of the application introduced in evidence the record of the hearing held on June 14, 1989, on the April 25, 1989, application filed by Nostimo and Pick Kwik. Included in the record of the prior hearing was the testimony of Lt. Palumbo, who expressed concerns about increased traffic, loitering and rowdy behavior if the conditional use permit were issued. Opponents of the application also introduced in evidence at the Board hearing the Final Order entered by the Hearing Officer in the prior proceeding. See Finding of Fact 6, above. The Board considered the record of the prior proceeding in evaluating the April 16, 1991, application. But the Final Order in the previous proceeding seemed to be based on a misapprehension that the Pick Kwik store would be open for the sale of beer and wine 24 hours a day. See Finding of Fact 6, above. In addition, given the existance of the 7 street, the evidence presented in the hearing on the April 16, 1991, application put in perspective Lt. Palumbo's testimony that allowing the sale of beer and wine at the Pick Kwik would "generate larger volumes of traffic and customers, particularly during the evening hours" and would "have a negative impact on 'community services' by placing a greater demand on police resources." At the Board hearing, the staff of the City Planning and Development Department recommended approval. 4/ The City's Planner, Scott Shuford, testified that traffic no longer was considered to be a substantial problem. The City Traffic Engineer did not anticipate a substantial increase in traffic as a result of granting the application. The traffic experts had difficulty differentiating between a convenience store selling beer and wine, and one that does not, primarily because they were unaware of any other convenience store that does not sell beer and wine. But the evidence was clear that, since the 7 and wine across the street from the Pick Kwik location, there would be only a slight increase in traffic resulting from selling beer and wine at the Pick Kwik location. Two convenience stores located across the street from one another generally share the available business in the market area. The addition of a store across the street from an existing store would be expected to generate perhaps 12 percent more aggregate revenue. (This approximates the new store's capture of the "leakage" that resulted when potential customers driving on the opposite side of the street chose to bypass the preexisting store.) Beer and wine sales make up approximately 7 to 8 percent of a convenience store's gross revenue. Assuming that two stores across the street from each other also would generate 12 percent more aggregate revenue from the sale of beer and wine than a single store, and also assuming that the percentage of additional gross revenue represents additional trips to one of the two stores, the impact of allowing the sale of beer and wine at the Pick Kwik location would be 7 to 8 percent (representing the beer and wine percentage of gross revenue) of 12 percent (representing the aggregate increase in gross revenue from adding a convenience store across the street from another one), or between 0.84 and 0.96 percent, at most. The staff's recommendation to grant the April 16, 1991, application was subject to the addition of a fifth condition or restriction prohibiting sales of single containers of alcoholic beverages (other than bottles of beer and wine containing less than 750 ml). The evidence was clear that this condition would present enforcement problems. In addition, imposition of this condition or restriction at Pick Kwik without imposing the same condition or restriction at the 7 contrary, it might increase traffic problems as a result of customers wanting to buy single containers at the Pick Kwik subsequently crossing the street to make the purchase at the 7 On the other hand, tying the duration of the conditional use benefitting the Pick Kwik location to the duration of the conditional use benefitting the 7 proceeding that implementation of Section 137.011 of the Code will result inexorably in an increase in the number of establishments selling beer and wine, for off-premises consumption, in Clearwater Beach and, particularly in the north end of the Beach. This would result, at an appropriate future date, in the simultaneous consideration of the compatibility of the sale of beer and wine at both the Pick Kwik and the 7 condition or restriction.
The Issue Did Respondent, Florida Fish and Wildlife Conservation Commission (Commission) correctly deny the application of Petitioner, James Hammonds, to renew his Game Farm License (Case No. 19-6307)? Did the Commission correctly deny Mr. Hammonds' application to renew his License to Possess Class III Wildlife for Exhibition or Public Sale (Case No. 19-6326)?
Findings Of Fact The Parties Article IV, Section 9 of the Florida Constitution creates the Commission. It charges the Commission to "exercise the regulatory and executive powers of the state with respect to wild animal life and fresh water aquatic life, and … exercise regulatory and executive powers of the state with respect to marine life, … ." Chapter 379, Florida Statutes (2019), implements the constitutional provision and did so in 2017. Mr. Hammonds owns and operates The Monkey Whisperer in Parrish, Florida. He breeds and sells exotic animals. Mr. Hammonds holds five separate licenses authorizing him to own, breed, sell, and transport wild life. They are a Class III license5 (with a Capuchin Monkey and Spider Monkey endorsement) that authorizes him to exhibit and sell wildlife, a game farm license, a deer herd management license, a United States Department of Agriculture (USDA) transport license, and a USDA license to trade in wildlife animals. The renewal of his Game Farm License and License for Exhibition and Public Sale of Wildlife are the subject of this matter. The Commission refused to renew both. Mr. Hammonds has held these two licenses since 2012. Since obtaining his licenses, Mr. Hammonds has passed all Commission inspections. In addition, the Commission has issued him a game farm license. The 2012 Conviction In 2012 Mr. Hammonds pleaded no contest to a charge of unlawfully selling wildlife to an unpermitted entity. The offense was sale of a marmoset at a flea market to an unlicensed purchaser. The record does not provide a citation to the statute violated. Mr. Hammonds was new to the exotic animal trade. He relied upon statements by the purchaser and a Commission representative that the Commission had issued the purchaser a license and that it was en route. The court adjudicated Mr. Hammonds guilty and ordered him to pay a fine and costs totaling $450.00. It also required Mr. Hammonds to pay an additional $50.00 for costs of prosecution. Mr. Hammonds paid the fine and 5 Section 379.3762(2), Florida Statutes (2019), creates three classifications of wildlife types. Class I is wildlife that because of its nature, habit, or status may not be possessed as a pet. Class II is wildlife presenting a real or potential threat to human safety. Class III is all wildlife not included in Classes I and II. costs. Aware of this conviction, the Commission nonetheless routinely approved Mr. Hammonds' license renewal applications and approved his application for a game farm license over the next six years. There is no evidence of or charge of any other violations by Mr. Hammonds until the charges involved in these cases. The Capuchin Monkey In October 2017, Mr. Hammonds sold a Capuchin monkey to Christina Brown. He verified her identity and Nevada residency by looking at her Nevada driver's license. Nevada does not require a license to own exotic animals, including Capuchin monkeys. The Commission did not prove that Ms. Brown did not hold a Florida permit to own wildlife.6 Mr. Hammonds had a few conversations with Ms. Brown and her assistant Manny Ortiz about the sale. On October 12, 2017, Mr. Hammonds completed the required USDA form, "Record of Acquisition, Disposition or Transport of Animals," for the Capuchin sale.7 Mr. Hammonds was advised that Jennifer and Michael Brister would pick up the monkey to transport it to Nevada. The Bristers are located in 6 Lack of proof is the hallmark of this case. The Commission relied solely upon the testimony of one witness. The testimony was almost entirely hearsay or descriptions of document contents. This is despite the Commission, according to its witness, having recordings, sworn statements, telephone records, and financial records to support its allegations. The Commission did not offer these into evidence. Hearsay alone cannot be the basis for a finding of fact unless it would be admissible over objection in a circuit court trial. § 120.57(1)(c), Fla. Stat. (2019). Document descriptions are subject to memory failings, incompleteness, inaccuracies, and other factors that make them less than persuasive. See § 90.952, Fla. Stat.; See Williams v. State, 386 So. 2d 538, 540 (Fla. 1980). 7 The form does not have a field calling for the buyer's telephone number, or any telephone number for that matter. This is noted because the Commission's witness and Notices emphasize, as proof of guilt, an unsupported claim that Mr. Hammonds put his telephone number on the form where the buyer's telephone number went. The unsupported testimony and insistence on its significance is one of the reasons that the witness' testimony is given little credence or weight. Also Mr. O'Horo testified that the form showed a Virginia address for Ms. Brown. It shows a Nevada address. Tennessee. The Bristers held a USDA Class T Carrier permit issued under the federal Animal Welfare Act. Mr. Hammonds obtained proof that the Bristers held this federal permit required for interstate transport of the monkey. He went so far as to obtain a copy of their USDA certification to provide this service. Mr. Hammonds was also aware that the Bristers frequently did business in Florida. Other breeders recommended them highly. The Commission did not prove that the Bristers did not hold a Florida permit to own wildlife. The Bristers picked up the monkey, on behalf of Ms. Brown, from Mr. Hammonds in Florida. Other than to receive a telephone call reporting that the monkey had been delivered, Mr. Hammonds had no further contact with or communications about the monkey or Ms. Brown until the Commission's investigator contacted him. There is no admissible, credible, persuasive evidence about what happened to the monkey from this point forward. The Commission offered only uncorroborated hearsay testimony from Mr. O'Horo on this subject. The Rhesus Macaque Monkey Mr. Hammonds also assists people in rescues of exotic animals whose owners have realized they cannot care for them. In 2017, Mr. Hammonds facilitated the transfer of a Rhesus Macaque monkey from one individual to another. A Macaque monkey is a Class II animal. The monkey owner came to Mr. Hammonds' business seeking assistance because he could not handle the monkey. The monkey was in a pet carrier. Mr. Hammonds recalled a woman in Orlando who had contacted him in the past seeking a Macaque. He put the two individuals in touch with each other. The two individuals agreed to the exchange of the monkey. The woman came the same day, met the Macaque owner, and accepted the monkey from him. The owner kept the monkey with him in the carrier until he gave it to the woman. Mr. Hammonds was paid for his services in facilitating the exchange. There is no competent, persuasive evidence that Mr. Hammonds ever had ownership, physical possession, control, or custody of the Macaque monkey in any form.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Florida Fish and Wildlife Conservation Commission, issue a final order renewing the Game Farm License and the License to Possess Class III Wildlife for Exhibition or Public Sale of Petitioner, James Hammonds. DONE AND ENTERED this 23rd day of June, 2020, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 23rd day of June, 2020. COPIES FURNISHED: Rhonda E. Parnell, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399 (eServed) David A. Fernandez, Esquire Florida Trial Counsel 4705 26th Street West, Suite A Bradenton, Florida 34207 (eServed) Sean P. Flynn, Esquire Flynn Law, P.A. 2200 Manatee Avenue West Bradenton, Florida 34025 (eServed) Eric Sutton, Executive Director Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Emily Norton, General Counsel Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed)
Findings Of Fact The sign located on US 41, 7.98 miles south of the Citrus County Line is owned by Lamar Citrus, and no permit has been issued for a sign at this location. Furthermore, the land on which this sign is erected is zoned Residential (R 1 A). US 41 is a federal-aid primary highway, and the sign in question is viewed from US 41. It is an outdoor advertising sign as defined by the Florida Statutes.
The Issue Respondent is charged with a single incident of selling beer to a minor. The issue is, therefore, if that incident occurred, what disciplinary action should be taken? The Division of Alcoholic Beverages and Tobacco Notice to Show Cause dated September 18, 1984, alleges: On or about the 19th day of August, 1984, you, JEFFREY NELSON ADKINS, a licensed vendor, and/or your agent, servant or employee, did sell, give, and/or serve alcoholic beverages, to wit: three (3) Michelob beers to a person, JOHN JOSEPH KELLAT, under the age of 19, contrary to F.S. 562.11(1). At the hearing, by stipulation, six exhibits were admitted: the Notice to Show Cause, the Request for Hearing, Petitioner's Request for Admissions, Respondent's Answer to the Request, Petitioner's First Set of Interrogatories and Respondent's Response to Interrogatories, and Affidavit of the minor, John Joseph Kellat. Petitioner called three witnesses: John Joseph Kellat; Rufus Blanton, beverage officer for the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco; and William Moore, a New Smyrna Beach police officer. Respondent also called three witnesses: Michael Block, an employee of Brew- thru during the summer of 1984; Troy Long, Market Manager at the Publix supermarket in New Smyrna Beach; and the Respondent, Jeffrey Nelson Adkins.
Findings Of Fact Both parties submitted Proposed Findings of Fact and Conclusions of Law. Those have been carefully reviewed and considered. Findings of fact which are supported by the evidence have been incorporated herein, unless those findings are subordinate, cumulative, immaterial or unnecessary. More specifically, Petitioner's Proposed Finding of Fact #2, regarding the employee's failure to deny that he sold the beer, is wholly immaterial in light of Petitioner's chief witness' description of the salesperson and his identification of the licensee as the individual who made the sale. As to Proposed Finding of Fact #3, the only evidence that John Kellat purchased beer on prior occasions was his bare, non-substantiated statement to that effect. Such evidence is neither competent nor substantial when viewed in the context of his testimony as a whole.
Recommendation On the basis of the foregoing, I recommend that the Director of the Division of Alcoholic Beverages and Tobacco enter a final order in this case dismissing the charge against the licensee. DONE and ORDERED this 10th day of October, 1985, in Tallahassee, Florida. MARY CLARK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 1985. COPIES FURNISHED: Thomas A. Klein, Esquire Staff Attorney Dept. of Business Regulation The Johns Bldg. 725 South Bronough Street Tallahassee, Florida 32301 William Clay Henderson, Esquire HENDERSON & HENDERSON, P.A. Post Office Box 1840 New Smyrna Beach, Florida 32070-1840 Richard B. Burroughs, Jr. Secretary Department of Business Regulation The Johns Building 725 S. Bronough Street Tallahassee, Florida 32301 Harold F. X. Purnell, General Counsel Department of Business Regulation The Johns Bldg. 725 S. Bronough Street Tallahassee, Florida 32301 Howard M. Rasmussen, Director Division of Alcoholic Beverages & Tobacco 725 S. Bronough Street Tallahassee, Florida 32301
The Issue The central issue in this case is whether Petitioner's wholesale dealer's license should be approved for renewal.
Findings Of Fact Based upon the testimony of the witness and the documentary evidence received at the hearing, I make the following findings of fact: Henry's Seafood, Inc. was established and began doing business in 1978. From its inception Henry Torres has served as president of the company. Petitioner ceased doing business in May of 1986 when its application to renew its whole sale license to sell salt water products was denied by Respondent. On November 25, 1985, Henry Torres entered a negotiated plea of guilty to knowingly transporting with the intent to sell, offering for sale, and knowingly selling in interstate commerce approximately 120 pounds of undersized spiny lobster tails with a market value in excess of $350.00, knowing that said spiny lobster tails were possessed in violation of law. As a result of the plea, a conviction was entered and Mr. Torres was required to pay a fine in the amount of $10,000. On November 25, 1985, Petitioner, Henry's Seafood, Inc., entered a negotiated plea of guilty to the same charge described in Finding of Fact, paragraph 2. Petitioner was then found guilty and was placed on probation for two years. The negotiated pleas entered by Petitioner were done in the interests of minimizing costs relating to the defense of the criminal actions. Moreover, said pleas were entered with the express understanding that Petitioner would be allowed to continue in business. Additionally, it was the intention of the trial judge in imposing sentence that Petitioner be allowed to continue in business. There was never a factual determination that Petitioner did possess undersized lobster tails. In fact, Petitioner received payment for some of the lobster tails which had been seized. Mr. Torres denied having violated either the Lacy Act or Florida Law. The lobster tails were not the product of Florida but had been caught in waters elsewhere. The lobster tails seized from Henri's were combined with all of the lobsters seized from other business. It was impossible to determine how many, if any, were undersized. When Petitioner applied for the renewal of its license, a disclosure was given as to the conviction described in Findings of Fact, paragraphs 1 and 2.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Natural Resources enter a Final Order approving Petitioner's renewal application and placing said license on probation for a period of two years. DONE AND ORDERED this 1st day of October, 1987, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 1st day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2394 Rulings of the Proposed Finding of Fact submitted by Respondent 1. Rejected, outside the scope of evidence Submitted at the final hearing. COPIES FURNISHED: Michael I. Rose, Esquire Suite 303, Roberts Building 28 West Flagler Street Miami, Florida 33130 Henri C. Cawthon, Esquire Assistant General Counsel 3900 Commonwealth Boulevard Douglas Building, Suite 1003 Tallahassee, Florida 32399 Mr. Tom Gardner Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Thomas G. Tomasello, Esquire General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue Whether Respondent, Xencom Facility Management, LLC (Xencom), terminated the employment of Petitioners solely because the contract under which they were working ended.
Findings Of Fact Xencom provides general maintenance, landscaping, housekeeping, and office cleaning services to retail facilities. In September of 2015, Xencom entered three contracts for services with CREFII Market Street Holdings, LLC (CREFII). The contracts were to provide maintenance, landscaping, and office cleaning services for a mall known as Market Street @ Heathbrook (Market Street) in Ocala, Florida. Michael Ponds, Xencom’s president, executed the contracts on behalf of Xencom. Two individuals executed the contracts on behalf of CREFII. One was Gar Herring, identified as manager for Herring Ocala, LLC. The other was Bernard E. McAuley, identified as manager of Tricom Market Street at Heathbrook, LLC. MG Herring was not a party or signatory to the contracts. MG Herring does not own or operate Market Street. A separate entity, The MG Herring Property Group, LLC (Property Group), operated Market Street. The contracts, in terms stated in an exhibit to them, established a fixed price for the year’s work, stated the scope of services, and detailed payment terms. They also identified labor and labor-related costs in detail that included identifying the Xencom employees involved, their compensation, and their weekly number of hours. The contract exhibits also identified operating costs, including equipment amortization, equipment repairs, fuel expenses, vacation costs, health insurance, and storage costs. The contracts ended December 31, 2016. The contracts specify that Xencom is an independent contractor. Each states: “Contractor is an independent contractor and not an employee or agent of the owner. Accordingly, neither Contractor nor any of Contractor’s Representatives shall hold themselves out as, or claim to be acting in the capacity of, an agent or employee of Owner.” The contracts also specify that the property manager may terminate the contract at any time without reason for its convenience. The contracts permit Xencom to engage subcontractors with advance approval of the property manager. They broadly describe the services that Xencom is to provide. Xencom has over 80 such contracts with different facilities. As the contracts contemplate, only Xencom exerted direct control of the Petitioners working at Market Street. Property Group could identify tasks and repairs to be done. Xencom decided who would do them and how. In 2013, Xencom hired Michael Harrison to work as its Operations Manager at Market Street. He was charged with providing services for which Property Group contracted. His immediate supervisor was Xencom’s Regional Manager. In 2016, that was David Snell. Mr. Snell was not located at Market Street. Property Group also did not have a representative on site. Before Xencom hired him, Mr. Harrison worked at Market Street for Property Group. Xencom hired the remaining Petitioners to work at Market Street under Mr. Harrison’s supervision. Each of the Petitioners completed an Application for Employment with Xencom. The application included a statement, initialed by each Petitioner, stating, “Further, I understand and agree that my employment is for no definite period and I may be terminated at any time without previous notice.” All of the Petitioners also received Xencom’s employee handbook. As Xencom’s Operations Manager and supervisor of the other Petitioners, Mr. Harrison was responsible for day-to-day management of Petitioners. He scheduled their work tasks, controlled shifts, established work hours, and assigned tasks. Mr. Harrison also decided when Petitioners took vacations and time off. His supervisor expected him to consult with Property Group to ensure it knew what support would be available and that he knew of any upcoming events or other considerations that should be taken into account in his decisions. As Operations Manager, Mr. Harrison was also responsible for facilitating payroll, procuring supplies, and managing Xencom’s equipment at the site. Xencom provided Petitioners work uniforms that bore Xencom’s name. Xencom required Petitioners to wear the uniforms at work. Xencom provided the supplies and equipment that Petitioners used at work. Only Xencom had authority to hire or fire the employees providing services to fulfill its contracts with the property manager. Only Xencom had authority to modify Petitioners’ conditions of employment. Neither MG Herring, Property Group, nor Xencom held out Petitioners as employees of MG Herring or Property Group. There is no evidence that MG Herring or Property Group employed 15 or more people. Property Group hired Tina Wilson as Market Street’s on- site General Manager on February 1, 2016. Until then there was no Property Group representative at the site. The absence of a Property Group representative on-site left Mr. Harrison with little oversight or accountability under the Xencom contracts for Market Street. His primary Property Group contact was General Manager Norine Bowen, who was not located at the property. Ms. Wilson’s duties included community relations, public relations, marketing, leasing, litigation, tenant coordination, lease management, construction management, and contract management. She managed approximately 40 contracts at Market Street, including Xencom’s three service agreements. Ms. Wilson was responsible for making sure the contracts were properly executed. Managing the Xencom contracts consumed less than 50 percent of Ms. Wilson’s time. During the last weeks of 2016, Mr. Harrison intended to reduce the hours of Kylie Smithers. Ms. Wilson requested that, since Ms. Smithers was to be paid under the contract for full- time work, Ms. Smithers assist her with office work such as filing and making calls. Mr. Harrison agreed and scheduled Ms. Smithers to do the work. This arrangement was limited and temporary. It does not indicate Property Group control over Xencom employees. Ms. Wilson was Xencom’s point of contact with Property Group. She and Mr. Harrison had to interact frequently. Ms. Wilson had limited contact with the other Xencom employees at Market Street. Friction and disagreements arose quickly between Mr. Harrison and Ms. Wilson. They may have been caused by having a property manager representative on-site after Mr. Harrison’s years as either the manager representative himself or as Xencom supervisor without a property manager on-site. They may have been caused by personality differences between the two. They may have been caused by the alleged sexual and crude comments that underlie the claims of discrimination in employment. They may have been caused by a combination of the three factors. On November 21, 2016, Norine Bowen received an email from the address xencomempoyees@gmail.com with the subject of “Open your eyes about Market Street.” It advised that some employees worked at night for an event. It said that Ms. Wilson gave the Xencom employees alcohol to drink while they were still on the clock. The email said that there was a fight among Xencom employees. The email also said that at another event at a restaurant where Xencom employees were drinking, Ms. Wilson gave Ms. Smithers margaritas to drink and that Ms. Smithers was underage. The email claimed that during a tree-lighting event Ms. Wilson started drinking around 3:30 p.m. It also stated that Ms. Wilson offered a Xencom employee a drink. The email went on to say that children from an elementary school and their parents were present and that Ms. Wilson was “three sheets to the wind.” The email concludes stating that Ms. Wilson had been the subject of three employee lawsuits. On December 14, 2016, Ms. Wilson, Ms. Bowen, and Mr. Snell met at Property Group’s office in Market Street for their regular monthly meeting to discuss operations at Market Street. Their discussion covered a number of management issues including a Xencom employee’s failure to show up before 8:00 to clean as arranged, security cameras, tenants who had not paid rent, lease questions, HVAC questions, and rats on the roof. They also discussed the email’s allegations. The participants also discussed a number of dissatisfactions with Mr. Harrison’s performance. Near the end of a discussion about the anonymous email, this exchange occurred:2/ Bowen: Okay, so I know that David [Snell], I think his next step is to conduct his own investigation with his [Xencom] people, and HR is still following up with John Garrett, and you’re meeting with Danny [intended new Xencom manager for Market Street] tonight? David Snell: Yes. Bowen: To finish up paperwork, and, based on his investigation, it will be up to Xencom to figure out what to do with people that are drinking on property, off the clock or on the clock, you know, whatever, what their policy is. * * * Bowen: So, I don’t know what to make of it. I’m just here to do an investigation like I’m supposed to do and David is here to pick up the pieces and meet with his folks one-on- one, and we’ll see where this takes us. This exchange and the remainder of the recording do not support a finding that Property Group controlled Xencom’s actions or attempted to control them. The participants were responsibly discussing a serious complaint they had received, their plan to investigate it, and pre-existing issues with Mr. Harrison. The exchange also makes clear that all agreed the issues involving Xencom employees were for Xencom to address, and the issues involving Property Group employees were for Property Group to address. At the time of the December 14, 2016, meeting, the participants were not aware of any complaints from Mr. Harrison or Mr. Smithers of sexual harassment or discrimination by Ms. Wilson. On December 15, 2016, Gar Herring and Norine Bowen received an email from Mr. Harrison with an attached letter to Xencom’s Human Resources Manager and others. Affidavits from Petitioners asserting various statements and questions by Ms. Wilson about Mr. Harrison’s and Mr. Smithers’ sex life and men’s genitalia and statements about her sex life and the genitalia of men involved were attached. Xencom President Michael Ponds received a similar email with attachments on the same day. On December 21, 2016, Mr. Ponds received a letter from Herring Ocala, LLC, and Tricom Market Street at Heathbrook, LLC, terminating the service agreements. Their agreements with Xencom were going to expire December 31, 2016. They had been negotiating successor agreements. However, they had not executed any. Xencom terminated Petitioners’ employment on December 21, 2016. Xencom no longer needed Petitioners’ services once MG Herring terminated the contract with Xencom. This was the sole reason it terminated Petitioners.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order denying the petitions of all Petitioners. DONE AND ENTERED this 15th day of May, 2018, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 15th day of May, 2018.
Recommendation Based on the above facts and conclusions of law, I recommend that the licensee be issued an oral reprimand. DONE and ENTERED this 20th day of September, 1976, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675
