The Issue Whether Respondent has committed an unlawful employment practice in violation of Chapter 760, Florida Statutes, and if so, what remedy should be ordered?
Findings Of Fact Bonita Sneiderman, a/k/a Bonita Mattingly (Ms. Mattingly), is a Caucasian female born March 17, 1953. At the time of the events complained about in this proceeding, Ms. Mattingly was 53 years old. Ms. Mattingly was then known as Ms. Sneiderman and was single. Ms. Mattingly married and changed her name shortly before the hearing in this case. Dillards, Inc., is a corporation that operates a chain of department stores, referred to as Dillards. In many of the Dillards stores, there are styling salons. The Dillards department store at the Orange Park Mall in Orange Park, Florida is referred to as Store #232. During the time period relevant to this case, Susan Konstantatos was the Salon Manager of the salon at Store #232. On July 26, 2005, Ms. Konstantatos attended a manager's meeting, in which she received and discussed new policies for the salons. One such policy dealt with the schedules for salon employees and stated that all new hires would work five-day, full-time schedules. This policy, however, did not necessarily apply to employees already employed at the salons. For example, employees that worked in the Iveys salon before Dillards took over what used to be the Iveys store were considered to be "grandfathered in." Dillards honored whatever scheduling terms the employees had negotiated when taking their positions with Iveys. George Craywick, Cynthia Anderson and Marie Cox were three such salon employees. In September 2005, Ms. Mattingly applied for and received a position as a hair stylist in Dillards Store #232. Her application for employment with the store indicates that she applied for a full-time position. The application also indicates that she was hired for a full-time position. On September 21, 2005, Petitioner attended a new employee orientation session and signed the new employee orientation sheet, acknowledging that she had received orientation on Respondent's Associate Work Rules and Attendance Policy. Petitioner also signed an Associate Acknowledgment Form indicating that she received and understood Respondent's Associate Work Rules and General Policies. The Associate Work Rules and General Policies for Dillards reiterated the importance of attendance and provided notice that a "no show" would not be tolerated and would result in termination of employment. Among the stylists' job duties was an activity called "instant eventing." Instant eventing was an activity designed to generate interest in using the salon's services. Stylists could choose the type of instant eventing they would perform, such as handing out business cards, setting up a paraffin wax table and offering demonstrations, or setting up a color table with hair color swatches. Petitioner's chosen method of instant eventing involved setting up the paraffin wax demonstration. Instant eventing not only created interest in the salon, but hopefully helped new stylists to establish a following for their services. Stylists were expected to participate in instant eventing when they had no appointments. As a consequence, the more customers a stylist had, the less time he or she had to devote to instant eventing and the less stylists were expected to participate in the activity. Petitioner complains that George Craywick was not required to instant event and claims that she never saw him participate in any instant eventing activity. Mr. Craywick had more customers than any other stylist working at the Dillards salon. As a result of the number of repeat customers he served, he did not have the need for or the opportunity to engage in the same amount of instant eventing that Petitioner had. There is evidence that Mr. Craywick participated in a color table as an instant event, but it is unclear whether his participation in this activity was during the time that Petitioner was employed. Petitioner admitted that while she never saw Mr. Craywick participate in instant eventing, she had no knowledge as to whether he participated at times when she was not working with him. During May 2006, all of the salon's stylists at Store #232 were scheduled to work five days per week and one Sunday per month. When an employee worked on Sunday, Ms. Konstantatos attempted to schedule another day off for the employee during that week. Often the day off would be Monday, but the coverage needs of the salon would control. Mr. Craywick often worked on his scheduled days off at Ms. Konstantatos' request to ensure overage for the salon. Others sometimes did the same. Petitioner was scheduled to work Sunday, May 7, 2006. On or about May 1, 2006, Ms. Konstantatos checked the posted schedule and saw that Petitioner's name had been crossed off the schedule for Monday, May 8, 2006. Ms. Konstantatos had not removed Petitioner from the schedule and assumed that Petitioner had crossed her name off because she was working Sunday. Ms. Konstantatos needed Petitioner to work Monday, May 8, 2006, in order to ensure that the salon was adequately staffed. Petitioner had not worked the previous Monday. Ms. Konstantatos left Petitioner a note stating that Petitioner needed to work on Monday, May 8, 2006. After receiving the note, Petitioner called Ms. Konstantatos on Wednesday, May 3, 2006, and told her she could not work on Monday because she had made arrangements to go out of town that day. Petitioner's regular day off is Tuesday. Ms. Konstantatos advised that she needed Petitioner to work Monday to make sure that there was proper coverage for the salon, but that she could give Petitioner Wednesday off so that her days off would be consecutive. Petitioner insisted that she could not work on Monday, May 8, 2006. Ms. Konstantatos informed her that if she did not work on Monday, she would be considered to have abandoned her job and her employment would be terminated. Whether or not she worked on Monday, May 8, 2006, remained Petitioner's choice. Petitioner worked Thursday through Saturday, May 4-6, 2006. On Saturday evening, Petitioner packed up her belongings and left a note indicating that she had arranged for someone else to cover her shift on Sunday and would not be at work on Monday. She never returned to work because she considered herself to have been fired. On May 11, 2007, Respondent terminated Respondent for job abandonment. Between September 2005 and May 2006, Respondent terminated several other salon employees for job abandonment or excessive absenteeism. Those employees were both male and female, married and single. Their ages ranged from 21 to 35. After Petitioner's termination, Ms. Konstantatos hired Debra Doss as a stylist. At the time she was hired, Ms. Doss was a 49-year-old single female.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing Petitioner's complaint of discrimination. DONE AND ENTERED this 10th day of October, 2007, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 10th day of October, 2007. COPIES FURNISHED: Bonita Y. Mattingly 2040 Wells Road, Apartment 2-E Orange Park, Florida 32073 Grant D. Petersen, Esquire Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 100 North Tampa Street, Suite 3600 Tampa, Florida 33602 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Petitioner meets the qualifications prescribed by Chapter 475, Florida Statutes for licensure as a real estate salesman?
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: Petitioner is a 1986 graduate of Florida State University. He has a degree in urban politics and real estate. In November, 1989, Petitioner entered a plea of guilty in Palm Beach County Circuit Court to two counts of burglary of a dwelling, one count of petty larceny, and one count of dealing in stolen property. Adjudication of guilt was withheld and Petitioner was placed on five years probation, which, the court specified, was not subject to "early termination." In addition, Petitioner was ordered to pay $360.00 in restitution and $265.00 in court costs. These crimes were all committed in June, 1989, after Petitioner had returned to Palm Beach County from a two or three-month vacation in Colorado. The two counts of burglary involved the same dwelling: the townhouse that Petitioner had lived in, with others, prior to his Colorado vacation. The lease to the townhouse, which was in the name of one of his roommates, had expired before his return from vacation. Contrary to the instructions of the landlord, Petitioner entered the dwelling on at least two separate occasions after coming back from Colorado in order to retrieve personal belongings that remained in the townhouse. The stolen property involved in the dealing in stolen property charge was a stereo that belonged to Petitioner's friend. Petitioner tried to pawn the stereo for $45.00. The petty theft charge involved the taking of ten CD's that were on top of a CD player located in a bar in the vicinity of the townhouse. Since these incidents, Petitioner has not run afoul of the law. Petitioner presently owns and operates the South Florida Adventure Club, a business which plans and organizes social activities for single professionals. In his spare time, he serves as an advisor to two youth groups. Petitioner is still on probation. He has paid in full the restitution ordered by the court. His court costs, however, have not yet been paid in full. He still owes $50.00.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Real Estate Commission enter a final order finding that Petitioner is not qualified for licensure as a real estate salesman because of his criminal record and denying his application for licensure based upon such a finding, without prejudice to Petitioner filing a subsequent application supported by a showing that, "because of the lapse of time and subsequent good conduct and reputation, or other reason deemed sufficient, it appears . . . that the interest of the public and investors will not likely be endangered by granting" the application. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 5th day of September, 1991. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 1991. APPENDIX TO RECOMMENDED ORDER The following are the Hearing Officer's specific rulings on the findings of fact proposed by Respondent: 1. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order. 2-4. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer. 5. First sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Remaining sentences: Accepted and incorporated in substance. 6-10. Rejected because they are more in the nature of summaries of testimony than findings of fact based upon such testimony. 11. Rejected because it is more in the nature of a statement of the case than a finding of fact. COPIES FURNISHED: Greg Allen Hinds 2016 Broward Avenue # 3 West Palm Beach, Florida 33407-6112 Joselyn M. Price, Esquire Assistant Attorney General 400 West Robinson Street Suite 107, South Orlando, Florida 32801 Darlene F. Keller, Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801
Findings Of Fact Petitioner operates a food and beverage concession on the beach at North Shore Open Space Park in Miami Beach, Florida. Pursuant to a Management Agreement between the City of Miami Beach and the State of Florida, the City pays to the Florida Department of Natural Resources 25 percent of all monies the City collects from private concessionaires operating on that beach. The City has issued a permit to Petitioner for the sale of beer and wine (in addition to food and other beverages) at this location contingent upon licensing by the State of Florida. Petitioner's concession is operated from trailers loaned to it by the Pepsi-Cola Bottling Company of Miami. Each trailer is approximately 14 feet by 6 feet in size and is mounted on four rubber tires. Each trailer is hauled to its location each morning by a 4 x 4 International truck and is disconnected from the truck at the location of a 4" x 4" post embedded in concrete in the sand. The post contains a socket which provides telephone service for the trailer upon insertion of a plug. The posts were installed for the sole purpose of allowing Petitioner's employees at the trailers to call Petitioner's commissary for additional supplies to be delivered. The City of Miami Beach requires each trailer to be located within 15 feet of its post when operating and further defines its hours of operation. The service area granted to Petitioner under its concession agreement with the City covers 888,300 square feet of beach. At the end of each day, the trailers are picked up by the tow vehicle and are hauled to Mr. Coney Island restaurant, approximately 1.5 miles from the beach site, where they are stored overnight and restocked each morning. On June 2, 1983, Beverage Officer Francisco R. Oliva inspected the proposed business premises. At the address shown on Petitioner's application, 7929 Atlantic Way, Officer Oliva found only beach-front property with no address numbers. He located two trailers bearing Pepsi-Cola Company markings between the 80th and 81st blocks of Atlantic Way. The poles from which the trailers obtain telephone service were not present on that date. The business address Petitioner provided on its application for licensure, 7929 Atlantic Way, Miami Beach, is the address the City uses for the building which houses the Beach Patrol and the Dade County sanitation equipment for sanitation of the beach.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's application for a Series 2-COP beverage license. DONE and RECOMMENDED this 25th day of April, 1984, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 25th day of April, 1984. COPIES FURNISHED: Richard W. Wasserman, Esquire 420 Lincoln Road Miami Beach, Florida 33139 Louisa E. Hargrett, Esquire. Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Gary Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Hronough Street Tallahassee, Florida 32301
The Issue Whether or not on or about August 9, 1978, Beach Park Motel, Inc., a vendor, licensed under the Beverage Law, its agent, servant, or employee, one Ruth Ira Holmes, did unlawfully offer to commit prostitution, lewdness or assignation, for the sum of $40.00 U.S. currency, with Beverage Sergeant R. A. Boyd, contrary to Subsection 796.07(3)(a), Florida Statutes, and Section 561.29, Florida Statutes. Whether or not on or about August 22, 1978, Beach Park Motel, Inc. , a vendor, licensed under the Beverage Law, its agent, servant, or employee, one Diana Alice Baumbach, did unlawfully offer to commit prostitution, lewdness or assignation for the sum of $40.00 U.S. currency, with Beverage Officer B. A. Watts, contrary to Subsection 796.07(3)(a), Florida Statutes, and Section 561.29, Florida Statutes. Whether or not on or about September 6, 1978, Beach Park Motel, Inc., a vendor, licensed under the Beverage Law, its agent, servant, or employee, one Diana Alice Baumbach, did unlawfully offer to commit prostitution, lewdness, or assignation for the sum of $50.00 U.S. currency, with Beverage Officer C. E. Lloyd, contrary to Subsection 796.07(3)(a), Florida Statutes, and Section 561.29, Florida Statutes. Whether or not on or about September 6, 1978, Beach Park Motel, Inc., a vendor, licensed under the Beverage Law, on its above-described licensed premises, by its agent, servant, or employee, or entertainer, one, Diana Alice Baumbach, did unlawfully beg or solicit a patron, customer, or visitor, Beverage Officer C. E. Lloyd to purchase a beverage, to-wit; "CHERRY DELIGHT", for such employee, servant, agent or entertainer, in violation of Section 562.131, Florida Statutes. (The charging document, i.e., Notice to Show Cause, originally contained other allegations found in its Counts 1 and 5; however, those counts were withdrawn by the Petitioner in the course of the hearing and are therefore removed from consideration through this Recommended Order.)
Findings Of Fact The Respondent in this cause is Beach Park Motel, Inc. , a closely held corporation. This corporation is a holder of Beverage License No. 15-002265, Series 4-COP, to trade as Beach Park Motel at a business premises located at 4290 Ocean Beach Boulevard, Coco Beach, Florida. This license is held with Petitioner, State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, which organization has responsibility for the licensure and regulation of those several business entities within the State that sell alcoholic beverages. This case is here presented for consideration on the basis of a Notice to Show Cause/Administrative Complaint which contains six counts, Counts 1 and 5 having been withdrawn. The details of the remaining counts are as set forth in the issues statement of this Recommended Order. On August 9, 1978, Officers Richard Boyd and Bethel Watts, Jr., of the Division of Alcoholic Beverages and Tobacco, went to the licensed premises at 4290 Ocean Beach Boulevard, Cocoa Beach, Florida, for purposes of investigating alleged prostitution activities at the licensed premises. They entered the premises and took a seat at the bar around 9:30 p.m. While seated there, they observed Ruth Ira Holmes performing as an entertainer in the bar by dancing. This person, Holmes, was also referred to by a stage name, "Nina". Holmes then left the stage and approached Officer Boyd, who was sitting in a separate location from Officer Watts. This contact between Holmes and Boyd occurred thirty or forty minutes after the officers had arrived at the licensed premises. There ensued a discussion between Boyd and Holmes on the subject of purchasing marijuana. (The allegation concerning the Respondent's participation in this alleged possession and sale of marijuana has been withdrawn.) Holmes then went around the service bar and picked up her purse from behind the bar. Boyd and Holmes then left the interior of the licensed premises. Once outside Holmes produced two envelopes with a substance which appeared to be marijuana and the officer also observed in her purse a larger bag which had a substance of similar appearance. Boyd asked how much the contents of the larger bag would cost and gave her $25.00, purchasing those contents. The witness then returned the small envelopes to her purse. Boyd asked Holmes what she was doing after work and she replied, "Are you asking for a 'date'?" Boyd responded, "Yes" and Holmes stated, "You mean 'that'?" and thrust her body at him. Boyd asked her what it was going to cost and she replied that for $40.00 she would do anything he wanted. He accepted her offer and she gave him the key to Room 224, which was a key to the motel part of the Respondent's establishment. Holmes checked to make sure that no one was observing them and they proceeded to the motel room. When they reached the room, he gave her two twenty dollar bills. She placed the money in her purse and took off her clothing with the exception of a "G" string and stated to him, "Let's get started." Boyd moved-toward the door of the motel room, after which he produced his law enforcement officer's identification badge and officers of the Brevard County Sheriff's Department took Holmes into custody. Howard Warren, President of the Respondent corporation, was seen at the licensed premises that night. Later, in connection with an investigation of her activities, a statement was given to Officers Boyd and Watts by Ruth Ira Holmes in which she indicated to the officers that she had been employed in the licensed premises known as the "Booby Trap" to work as a dancer and Howard Warren, then President of the Respondent corporation, had hired her. Her rate of pay was $2.50 per hour. She further stated that she had been employed for about seven months and was paid at the end of each week by check from Howard Warren. The Petitioner's Composite Exhibit 4 admitted into evidence is a series of checks written by Howard Warren and made payable to Ruth Ira Holmes beginning on July 7, 1978, with the last check being drawn on September 1, 1978, and one of the checks being drawn on August 1, 1978. The observation of Holmes' dancing on the licensed premises on the night in question, the statement that she was an employee paid by Howard Warren and the series of checks drawn by Howard Warren to Ruth Holmes, also known as Ruth Ira Holmes, are sufficient to show that Ruth Ira Holmes was employed as a dancer by the Respondent to work at the licensed premises in such capacity on August 9, 1978. This determination is further borne out by the Petitioner's Exhibits 3 and 5 admitted into evidence which are copies of the payroll accounts of the Respondent showing that Ruth Holmes was an employee and by part of Petitioner's Composite Exhibit 6, which is a motel registration card showing Ruth Holmes to be registered in the same room, 224, spoken to before and shows her occupation to be dancer. Officer Watts returned to the licensed premises on August 22, 1978, and again operating in an undercover capacity. While seated at the bar, he was approached by Diana Baumbach, also known as 'Misty'. Baumbach asked Watts if he were having a good time and he told her that things were rather slow and that he had been led to understand that the "Booby Trap" was a place where the action was. Baumbach responded by telling Watts that she could provide him some action for $40.00, either a "blow job"/fellatio or "screw"/intercourse. During this conversation Baumbach indicated that she worked in the licensed premises. She also stated in the course of the conversation that when a certain girl who was dancing had finished her performance it would be Baumbach's turn. Baumbach was wearing a long sleeved jacket and bikini panties and after this initial discussion with Watts went to the dance area and performed for the crowd. Baumbach returned to the location of the officer and stated she was ready to go. They walked through the rear of the bar and she took him to Room 206 in the motel part of the Respondent's complex. They entered Room 206 and Baumbach stated that she wanted her $40.00 and Watts gave her two twenty dollar bills. Baumbach took off her coat and Watts stated that he wanted to check to see if anyone was outside. He opened the door and allowed an officer of the Cocoa Beach Police Department to enter the room and Baumbach was arrested. On September 6, 1978, Officer C. E. Lloyd of the Division of Alcoholic Beverages and Tobacco went to the licensed premises in an undercover capacity to investigate alleged prostitution at that location. He entered the licensed premises and took a seat at the bar in the area of the dance floor. After being seated, he was approached by Diana Baumbach, who asked him if she could sit down. She inquired if Lloyd would buy her a drink and he complied with that request and bought the drink. She then asked Lloyd if he "messed around" and his answer was, "Sometimes." She stated that she would give him a "blow job"/fellatio for $30.00 or "all the way"/intercourse for $50.00. She then stated that she could not go right away because the master of ceremonies was going to call her up to dance. She danced two times in front of the audience. The dancing she did was a topless routine. She returned to Lloyd's location and asked if he knew his way around and stated that he should go up to Room 216 and that she would follow up. When he arrived at Room 216 in that part of the Respondent's establishment, Baumbach was already there. They went inside the room and Baumbach again advised Lloyd that the price was $50.00. She took her clothes off and he took off his shoes and then went to the door, at which point he advised Baumbach that she was being arrested and she was arrested. Lloyd later spoke with Howard Warren about the solicitation for prostitution that had occurred on the part of Baumbach as a follow up to his investigation and the arrest of Baumbach. Baumbach, on the occasions of August 22, 1978, and September 6, 1978, at which points she solicited Officers Watts and Lloyd, respectively, for the purposes of committing prostitution, was an employee, agent and entertainer of the Respondent in the sense of the dance performances she gave for the benefit of the patrons in the licensed premises. This determination of employment is supported by the testimony of Carol Sue Warren, daughter of Howard Warren and manager of the "Booby Trap" during August and September, 1978, who testified that Baumbach was an employee of the Respondent at time which corresponds to August 22, 1978, and September 6, 1978. Moreover, the rendezvous between Ruth Ira Holmes and Officer Boyd on August 9, 1978; the rendezvous between Diana Alice Baumbach and Officer Watts on August 22, 1978, and the rendezvous between Diana Alice Baumbach and Officer Lloyd which occurred on September 6, 1978; all these meetings for purposes of committing prostitution in the motel which is a part of the Respondent's establishment located at 4290 Ocean Beach Boulevard, Cocoa Beach, Florida, were types of activities known by the officials of the Respondent to be taking place. This knowledge on the part of the officials of the Respondent covered the period of August 9, 1978, through September 6, 1978, and pertained not only to the solicitation to commit prostitution, lewdness or assignation and the occurrence of such prostitution, lewdness and assignation on the part of Ruth Ira Holmes and Diana Alice Baumbach but also pertained to such activities by other employees or dancers who worked in the licensed premises during this period of time. This knowledge on the part of the Respondent's officials, and in particular its president, Howard Warren, was not part of a pattern of conduct which actively condoned activities of prostitution by the employees and/or dancers who worked at the licensed premises, in fact the owners had a stated policy of not allowing prostitution or soliciting drinks or activities involved with drugs on the part of their female employees or others who might be dancing in the licensed premises and the Respondent's representatives had fired certain of the female employees in the past when they had been discovered committing acts of prostitution. Nonetheless, the Respondent in the person of Howard Warren stated that he did not wish prostitution in the licensed premises but didn't feel he could really effectively stop it and went further by rehiring Ruth Ira Holmes as an employee of the Respondent after she had been discovered committing acts of prostitution. Holmes, after returning as an employee, then continued her activities as a prostitute. Diana Alice Baumbach had also been employed by the Respondent and had been fired several times during the course of her employment, one of those firings occurring after her arrest for the prostitution incident involving Officer Watts that occurred on August 22, 1978. She was then rehired and was an employee of the Respondent on September 6, 1978, when she committed a further act of soliciting for prostitution which occurred with Officer Lloyd. Baumbach was also represented by Howard Warren as attorney following an arrest. Both Holmes and Baumbach were allowed to remain as tenants in the Respondent's motel, the same motel where the prostitution had occurred, and were allowed to do so following their arrests in August of 1978, for prostitution offenses.
Recommendation In consideration of the facts found herein, the Conclusions of Law reached and those matters offered in mitigation, it is RECOMMENDED that the license of the Respondent, Beach Park Motel, Inc. d/b/a Beach Park Motel, be REVOKED. 4/ DONE AND ENTERED this 6th day of March, 1980, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of conduct alleged in an Administrative Complaint. The Respondent is charged with failure to maintain good moral character by trespassing on the premises of another and by being naked on such premises.
Findings Of Fact The Respondent was certified as a sworn law enforcement officer by the Criminal Justice Standards and Training Commission on May 13, 1983, and was issued Law Enforcement Certificate Number 4384. The Respondent held such certification at all times material to this proceeding. The Respondent began employment with the Metro-Dade Police Department in early 1983, and was so employed at all times material to this case. At all times material to this case, the Respondent resided at 1421 Cottonwood Circle, Weston, Florida 33326. The Respondent's residence was one of several units in a townhouse building. In December of 1991, Ms. Kimberly McDonald3 resided at 1419 Cottonwood Circle, Weston, Florida 33326. Her 11-year-old daughter resided with her at that address. Ms. McDonald's residence was next door to the Respondent's residence. Ms. McDonald's residence in December of 1991 had a yard and patio area at the rear of the residence. There were sliding glass doors and windows that faced the yard and patio area at the rear of the residence. That yard and patio area was enclosed by a wooden fence. The fence was slightly more than six feet high. As of December 1991, Ms. McDonald had lived next door to the Respondent for approximately six months. As of December 1991, Ms. McDonald and the Respondent were casual acquaintances; neighbors who occasionally spoke to each other. On the morning of December 4, 1991, Ms. McDonald left her residence and started driving towards her place of employment. Earlier that morning, Ms. McDonald's daughter had gone to school. The Respondent saw Ms. McDonald leave her residence that morning. The Respondent also knew that Ms. McDonald's daughter had gone to school and that their residence was unoccupied. For reasons that are not made clear by the record in this case,4 shortly after the Ms. McDonald drove away on the morning of December 4, 1991, the Respondent walked to the back of Ms. McDonald's residence, removed all of his clothes, and jumped or climbed over the wooden fence around the back yard and patio area of Ms. McDonald's residence. The Respondent then walked naked across Ms. McDonald's back yard and attempted to open one of the sliding glass doors of Ms. McDonald's residence. In the meantime, before she got to her office, Ms. McDonald remembered that she had forgotten something she would need later in the day. Accordingly, she turned around and drove back home. Ms. McDonald entered her residence through the front door and had taken only a few steps into the residence when she saw the Respondent standing in her back yard, completely naked, with one of his hands on the handle of one of the sliding glass doors. Ms. McDonald was frightened and upset by the unexpected and uninvited presence of a naked neighbor. Ms. McDonald had never invited the Respondent into her house or into her enclosed back yard, nor had she ever given the Respondent permission to climb the fence and enter her back yard and patio area. The Respondent saw Ms. McDonald at about the same time she saw him. The Respondent panicked, immediately turned away from Ms. McDonald, and ran naked towards the wooden fence. When the Respondent got to the fence, he stepped on a chair and jumped over the fence. Once over the fence, the Respondent retrieved his clothes, dressed, and returned home. Ms. McDonald was very upset about finding a neighbor in her yard who appeared to be trying to enter her residence. A few minutes later, after talking to a relative, Ms. McDonald called the Broward County Sheriff's Office and reported the incident. The Sheriff's office conducted an investigation and filed criminal charges against the Respondent. Following a jury trial, the Respondent was found guilty of the offenses described in Sections 800.03 and 810.08, Florida Statutes (1991). As a result of the Respondent's conduct on December 4, 1991, Ms. McDonald was concerned about the possibility that the Respondent might engage in future bizarre conduct. She also feared for the safety of herself and her daughter, because she did not know what purpose the Respondent had in mind when he came to her house naked. Because of these concerns and fears, Ms. McDonald and her daughter immediately moved to another residence.
Recommendation Based on all of the foregoing, it is RECOMMENDED that a final order be issued in this case finding that the Respondent committed the violations charged in the Administrative Complaint and imposing a penalty consisting of the revocation of the Respondent's law enforcement certification. DONE AND ENTERED this 27th day of May, 1999, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 1999.
Findings Of Fact Respondent is the state agency responsible for the licensure of community association managers. Petitioner, Anthony G. DiCarlo, submitted to Respondent an Application for Licensure as a Community Association Manager dated August 25, 1992. Respondent issued a Notice and Order of Rejection of the application on February 2, 1993. Licensure as a community association manager is required for a person performing in the State of Florida community association management services to one or more associations containing 50 units or having an annual budget or budgets in excess of $100,000. The purpose of the community association manager licensing and regulation statute is to protect the public in general, and community association members in particular. The statute is a consumer protection measure designed to provide some assurance to associations that a licensed manager will be trustworthy and have a certain level of competence. A community association manager performs duties which require specialized knowledge, judgment, and managerial skill. The community association manager typically manages the financial affairs of a community association, including the accounts receivable and the accounts payable. The manager usually writes checks, disburses association funds, invests the reserve funds, prepares the budget, and monitors the budget. Depending on the size of the association, a community association manager may have access to substantial sums of money in the form of cash, credit cards, and checking accounts. Some community association managers manage associations with a large number of absentee owners. Because of lessened oversight, those managers often have increased authority and responsibility. Pursuant to Section 468.433(4), Florida Statutes, an applicant must possess good moral character and pass an examination to be entitled to licensure as a community association manager. Rule 7D-55.004(3), Florida Administrative Code, has been duly adopted by Respondent and provides, in pertinent part, as follows: (3) Good Moral Character. (a) When the application has been determined to be in acceptable form, the division shall evaluate the application and make approp- riate inquiry to determine the applicant's moral character. For the purpose of this rule the division shall consider the follow- ing factors as bearing upon good moral character: The affirmation of at least three char- acter references furnished by the applicant for 3 years or longer . . . The completion of a criminal history check by the Florida Department of Law En- forcement that reveals no convictions of a felony or of a misdemeanor involving moral turpitude. . . . * * * Other relevant information generated in the course of the application process which bears upon the applicant's moral character. * * * (5) If upon completion of its evaluation of the moral character of an applicant, the division concludes that the applicant does not posses good moral character, the division shall proceed as provided in rule 7D-55.001 (1), Florida Administrative Code. Rule 7D-55.0011(1), Florida Administrative Code, provides as follows: The division, prior to taking final agency action which may adversely affect the substantial interests of a person, including but not limited to the denial of a license application, shall notify that person of the intended agency action and of his right to a formal hearing or an informal proceeding as provided by section 120.57, Florida Statutes, and chapter 7-4, Florida Admini- strative Code. Faye Mayberry, bureau chief of Respondent's Bureau of Condominiums, testified as to Respondent's policies. It is Respondent's policy to determine that an applicant has good moral character before permitting the applicant to sit for the licensure examination. Respondent has consistently denied licensure to applicants who have committed a theft-related felony or who have shown a pattern of disregard for the law. Respondent does not consider such facts to be a permanent bar to application, but it has adopted no policy as to the evidence of rehabilitation an applicant must establish following the conviction(s) before Respondent will determine that an applicant has been rehabilitated. Instead, Respondent makes a determination as to whether an applicant has established that he has good moral character on a case by case basis. Respondent considers all information that has been made available to it in making its determination. Item 14 on the form application for licensure requires the applicant to answer the following: "Have you ever been convicted of a crime, found guilty, or entered a plea of nolo contendre (no contest) even if adjudication was withheld?" Petitioner answered that question in the affirmative. Thereafter the form instructs an applicant who has answered the question in the affirmative to ". . . attach your complete signed statement of the charges and facts, together with the dates, name and location of the court in which the proceedings were held or are pending." In response to those instructions, Petitioner submitted the following: U.S. Federal Court - Newark, New Jersey 8/11/81 Transporting securities taken by fraud across state lines. Sentenced to five (5) years probation. Awarded early term- ination. County Court - Broward County, Florida 1/8/84 Grand Theft. Sentenced to eighteen (18) months probation. Awarded early term- ination. County Court - Broward County, Florida 3/23/89 Grand Theft. Sentenced to seven (7) years probation. Awarded early termination. On September 24, 1992, Sharon L. Guthrie, Supervisor of Education for Respondent's Bureau of Condominiums, wrote Petitioner about his application and stated, in part, as follows: As part of the application process, the Division is required to make appropriate inquiries to determine the applicant's moral character. Rule 7D-55.004(4), Florida Admini- strative Code, requires the Division to com- plete the moral character evaluation within 30 days after receiving the criminal history check. After reviewing the information on record with the Florida Department of Law Enforcement, it appears that your application was not complete with regard to your criminal history. Based on this information, we are unable to approve your application for licen- sure; however, if you notify us, in writing, that you would like to waive the requirement that the Division complete its evaluation within 30 days, we will continue our evalua- tion of your moral character. In addition, you must provide a complete, signed state- ment of the charges and facts, together with the dates, name and location of the court in which the proceedings were held, and copies of any pertinent court records. In response to the letter of September 24, 1992, Petitioner waived the 30 day requirement and enclosed a copy of the information he had submitted along with his application. He provided no additional information about his criminal history. Ms. Mayberry made the recommendation to Henry M. Solares, Director of the Division of Florida Land Sales, Condominium and Mobile Homes, that Petitioner's application be denied. Ms. Mayberry considered all the information Petitioner submitted in support of his application. There were three reasons for Ms. Mayberry's initial recommendation to deny the application. First, Petitioner had committed three felonies involving theft. Respondent considers theft to directly reflect on the ability of a community association manager to honestly fulfill his or her duties since the manager has the responsibility of managing the association's finances and has access to bank accounts and credit cards. Second, Ms. Mayberry considered that the last crime was committed relatively recently. Third, Ms. Mayberry considered that the multiple convictions indicated a pattern of disregard for the law by Petitioner. Mr. Solares accepted Ms. Mayberry's recommendation and entered on behalf of Respondent on February 2, 1993, a Notice and Order of Rejection, which notified Respondent that Respondent intended to reject his application and provided him with notices as to his rights to contest the intended action. The order found that Petitioner failed to demonstrate his eligibility for licensure as a community association manager. The order provided, in part, as follows: . . . Specifically, in violation of Rule 7D-55.004(3)(a), Florida Administrative Code, relevant information has been generated in the course of the application process which indicates that you have failed to demonstrate good moral character for the following reason: Your criminal history reveals that you have been convicted of a felony directly related to the ability to perform the duties of a community association manager, and you have failed to provide, or been unable to provide, sufficient information to establish your good moral character notwithstanding your conviction. Thereafter, Petitioner timely challenged the intended agency action and this proceeding followed. At the formal hearing, evidence was presented that was not available to Respondent when the initial decision was made to deny the application. This evidence elaborated on Petitioner's criminal history and pertained to efforts by Petitioner to rehabilitate himself. Between 1975 and 1980, Petitioner was employed in a position of trust as an administrator at a New Jersey rehabilitation hospital. During that period of employment, Petitioner embezzled money from his employer by falsifying the hospital's accounts to reflect overpayments and deposited the overpayment in his personal bank account in New Jersey. He then transported the embezzled funds across state lines to his personal bank account in New York. On August 11, 1981, Petitioner entered a plea of guilty in federal court in Newark, New Jersey, of the felony offense of the interstate transportation of securities taken by fraud. He was sentenced to 10 years imprisonment, but the sentence was suspended and he was placed on probation for a period of five years, which he successfully completed. Petitioner contends that his abuse of alcohol during these years contributed to his theft from his employer. The total sum he stole over this extended period of time was not established. On March 9, 1984, Petitioner entered a plea of guilty in Circuit Court in and for Broward County, Florida, to a felony charge of grand theft based on a shoplifting incident. He was adjudged guilty and placed on probation for a period of 18 months. Among the terms of probation was the requirement that he attend AA meetings three times per week. Petitioner successfully completed his probation which included the requirement that he attended AA meetings at Broward Alcoholic Rehabilitative Counseling. Petitioner thereafter resumed his prior abuse of alcohol and cocaine. On March 23, 1989, Petitioner entered a plea of guilty in Circuit Court in and for Broward County, Florida, to two felony counts of grand theft. These thefts occurred over a two year period while Petitioner was employed by Anesthesiology Associates between 1986 and 1988. Using tactics similar to those he used in New Jersey, Petitioner embezzled over $100,000 from his employer. Petitioner was sentenced to seven years probation. The terms of probation included a requirement for community service, payment of restitution, and treatment for drug and alcohol addiction. Petitioner made full restitution over a 21 month period to Anesthesiology Associates, performed 350 hours of community service, and successfully completed the court ordered treatment for alcohol and drug addiction. On January 8, 1991, Petitioner's probation was terminated. On September 19, 1991, the Florida Office of Executive Clemency restored Petitioner's civil rights, except for the right to possess or own a firearm, which were lost by the felony convictions. Petitioner asserts that his criminal activities were the product, in part, to his addiction to alcohol and to cocaine. These addictions resulted, according to Petitioner, because of stress associated with a congenital heart condition. Petitioner underwent open heart surgery in March 1987 to correct this defect. He nevertheless continued to abuse alcohol and cocaine after his surgery. His surgery occurred while he was employed by Anesthesiology Associates, and he continued to embezzle funds from his employer until he was caught. While Petitioner's addictions may have been a contributing factor to his criminal activity, the record in this proceeding fails to establish that his addictions caused his criminal activities. Petitioner was a long time abuser of alcohol and began abusing cocaine when he moved to Florida in 1981. Petitioner has received treatment for his addictions on at least two occasions. The first occasion was as a condition to his probation following the 1984 conviction of grand theft. The second was following the discovery of his thefts from Anesthesiology Associates. Petitioner began extensive alcohol and substance abuse counseling and treatment on an outpatient basis from Clinical Provider Organization, Inc., a private outpatient psychiatric/ psychological clinic in Broward County. He was admitted on November 11, 1988, and discharged on March 20, 1989. Dr. Christopher J. Fichera was the clinical director who supervised Petitioner's involvement in the program, supervised the staff counsellors dealing with him, and treated him on an individual basis. Carol L. Disher, a certified addictions specialist, was the staff person who led Petitioner's group therapy sessions at Clinical Provider Organization. Both Dr. Fichera and Ms. Disher were of the opinion that Petitioner had successfully completed their program. Petitioner was discharged because he had completed the program and because of the condition of probation following the 1989 conviction required that Petitioner participate in an inpatient program. Mr. Cipolla and Rabbi Gross continue to provide support for Petitioner. Although both of these witnesses see Petitioner on a periodic basis, neither has observed any indication that Petitioner has resumed abusing alcohol or cocaine. The greater weight of the evidence establishes that Petitioner is successfully recovering from his addiction to alcohol and cocaine and that he has been alcohol and cocaine free for approximately five and a half years. Petitioner asserts that the testimony of Dr. Fichera and Ms. Disher link the Petitioner's criminal conviction to his alcohol and/or substance abuse. While their testimony may be construed in generalities to support that contention, it is clear that Dr. Fichera was unaware of Petitioner's conviction in New Jersey or his 1984 conviction in Florida. Dr. Fichera learned of the first two convictions when his deposition was taken in connection with this proceeding. Dr. Fichera was of the opinion that the information was significant and may reflect underlying character problems in addition to the addictions. An applicant is required to submit with his or her application three character references on forms supplied by Respondent. Attached to Petitioner's application were completed character reference forms from Beverly Baran, Michael Cipolla, and Rabbi Milton J. Gross. Each of Petitioner's character references testified at the formal hearing and each was of the opinion that Petitioner was presently of good moral character. Beverly Baran and her husband, who is an anesthesiologist, were shareholders in Anesthesiology Associates and met Petitioner when he became employed as the business manager for that business. Ms. Baran and her husband became very friendly with Petitioner and his wife. Ms. Baran was aware of Petitioner's embezzlement from Anesthesiology Associates, but she was unaware of the first two felony convictions. She was told for the first time at the formal hearing of the two prior felony convictions. Ms. Baran testified that she considers Petitioner to presently be of good moral character, and based that opinion on his rehabilitation from alcohol and cocaine. Michael Cipolla was Petitioner's sponsor at AA. He had known Petitioner for approximately eight years as of the formal hearing, and was of the opinion that Petitioner had been alcohol and cocaine free for approximately five and a half years. Mr. Cipolla was of the opinion that Petitioner was presently of good moral character. Mr. Cipolla sees Petitioner on an irregular basis. He testified that he sees him sometimes once a month, sometimes three or four times a month, and sometimes every other month. Rabbi Milton Gross had known Petitioner for approximately 10 years at the time of the formal hearing. Rabbi Gross has provided spiritual counseling to Petitioner at different times. Rabbi Gross was aware of Petitioner's alcohol and cocaine addiction and his past criminal behavior. Rabbi Gross knew of Petitioner's rehabilitation efforts and considered Petitioner to presently be of good moral character. Rabbi Gross sees Petitioner approximately once every three weeks. There was minimal evidence as to Petitioner's employment since his discharge from Anesthesiology Associates.1 Petitioner's generalized testimony as to his employment does not establish the extent of his responsibilities or the extent to which he had access to his employer's financial records, bank accounts, and credit cards. Consequently, the testimony that there have been no allegations of embezzlement since 1988 is insufficient to establish that there has been a change in Petitioner's character. The character witnesses who testified on Petitioner's behalf established that Petitioner has made commendable efforts to rehabilitate himself from alcohol and cocaine addiction. While the sincerity of these witnesses cannot be doubted, their opinion testimony assumed that all of Petitioner's criminal activity was caused by his addiction to alcohol and/or his addiction to cocaine. There was no competent, persuasive evidence to support that assumption, and this testimony does not establish that Petitioner has the moral character to honestly perform the duties and responsibilities of a community association manager. Ms. Mayberry, who attended the formal hearing on behalf of Respondent, was still of the opinion that the application should be denied following the presentation of Petitioner's evidence at the formal hearing. Her initial reasons for rejecting the application had not changed. Ms. Mayberry gave as an additional reason for rejecting the application what she considered evidence of Petitioner's lack of candor during his application process. Respondent asserts that Petitioner was not candid about his cocaine addiction in response to questions posed by Respondent's counsel at his deposition, and that he did not submit evidence of his rehabilitation with his application because it would reveal his prior addiction to cocaine. While he was not as forthcoming as one might expect, Petitioner did not lie in response to questions about his addiction and rehabilitation. He indicated in several responses that there was an alcohol and substance abuse problem, but he was not directly asked during the deposition about the nature and extent of his addiction. The argument that Petitioner attempted to hide his cocaine addiction is weakened when one considers that the deposition of Dr. Fichera, during which Petitioner's addiction to cocaine was fully discussed, was taken at the instance of the Petitioner. While Petitioner's application made no reference to his addictions or to his rehabilitation therefrom the application form did not solicit that information. It is concluded that Petitioner did not demonstrate a lack of candor by his application or during his deposition that establishes a lack of good moral character.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order which denies Petitioner's application as a community association manager. DONE AND ORDERED this 10th day of August, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 10th day of August, 1993.
The Issue Whether Respondent, a place of public accommodation, violated Section 760.08, Florida Statutes (2006), by failing to accommodate Petitioner, an individual with a disability.
Findings Of Fact Based on the oral and documentary evidence presented at the formal hearing and on the entire record of this proceeding, the following Findings of Fact are made: Petitioner, Shawn Sutton, is physically disabled and entitled to the protection of the Florida Civil Rights Act. Respondent is the owner of Golden Corral Restaurant, which is a structure for public accommodation. On July 8, 2007, Petitioner, accompanied by his parents, grandmother and siblings, visited Respondent restaurant for the purpose of eating therein. The total number in the group that accompanied Petitioner was approximately 15. Prior to July 8, 2007, Petitioner's family was a frequent customer of Respondent restaurant and had eaten there on approximately 50 occasions. There had never been a request for special accommodations for Shawn Sutton on any previous occasion. Respondent has a sign on the front door of the restaurant that reads as follows: "Please remain with your party until seated. For guests with special needs, please see the manager. Golden Corral." Respondent is a buffet restaurant. Patrons pay for meals upon entry and prior to being seated. Respondent has a seating policy that requires all persons on the same receipt of payment to remain seated together until a waitress takes their beverage order, verifies that all persons in the party are included on the receipt, and delivers a plate to each person. The members of a party are then free to sit wherever they choose. On July 23, 2007, after a visit to the same restaurant on that day, Petitioner's mother emailed Golden Corral three times complaining about rudeness and lack of professionalism on the part of restaurant employees. In one email, she makes her only reference to the matter at issue in this case, indicating that when told that her son was disabled, a restaurant employee, "Tangie," "changed the entire tone and tried to accomidate [sic] us the best she could." While Petitioner's disability is such that he needs assistance carrying his plate (and food) from the buffet line to his seat, he is able to feed himself without assistance. On July 8, 2007, the entire family sat together and Petitioner was able to eat after his mother and grandmother assisted him in obtaining his food. The evidence revealed that Petitioner's mother's complaint was substantially directed to the "rudeness" she perceived from Respondent's employees.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing with prejudice the Petition for Relief for failure to establish an unlawful discriminatory act by Respondent. DONE AND ENTERED this 13th day of August, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 13th day of August, 2008. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Maureen M. Deskins, Esquire Butler, Pappas, Weihmuller Katz and Craig, LLP 777 South Harbor Island Boulevard Suite 500 Tampa, Florida 33602 Jerry Girley, Esquire The Girley Law Firm, P.A. 125 East Marks Street Orlando, Florida 32803
