The Issue Whether Respondent discriminated against Petitioner on the basis of sex in violation of Section 760.10, Florida Statutes, when it terminated his employment.
Findings Of Fact Respondent is a large corporate employer with corporate headquarters outside the State of Florida. Pertinent to this proceeding, Respondent has a large manufacturing facility located in Palm Beach County, Florida. Petitioner is a male who was employed by Respondent at its Palm Beach facility between August 1978 and February 1993. Petitioner is a college graduate who subsequently earned a Master's degree in Business Administration (MBA). Respondent first employed Petitioner as a Financial Trainee, which is designated as a Grade 41 on the system by which Respondent designated pay ranges and relative job responsibilities. Respondent promoted Petitioner to a position referred to as Financial Analyst in 1979, which is a Grade 43 position. Respondent promoted Petitioner in 1981 to a position referred to as Senior Analyst, which is a Grade 45 position. Respondent promoted Petitioner in 1984 and assigned him to its Saudi Arabia Program as the Continental U.S. International Administrator, which is a Grade 46 position. Respondent laterally transferred Petitioner in 1986 from the Financial Department into the Human Resources Department to a position designated as Personnel Representative, which is also a Grade 46 position. Respondent promoted Petitioner in January 1989 to a position designated as Senior Resources Representative, which is a Grade 48 position. Respondent informed Petitioner on February 12, 1993, that his employment would be terminated, effective February 28, 1993. Petitioner's base annual salary at the time his employment was terminated was $56,484.00. As of the formal hearing, Petitioner was working for his wife's appraisal company in a nonpaying job. Karen Roberts is a female who has been employed by Respondent at its Palm Beach County facility since June 1980. Ms. Roberts is also a college graduate who subsequently earned an MBA. In addition, Ms. Roberts has been designated as a Certified Compensation Professional by the American Compensation Association. Ms. Roberts first began her employment with the Respondent as a Financial Trainee, Grade 41. She was transferred out of the Finance Department into the Human Resources Department in July 1984 as a Human Resources Representative, which is a pay grade 45. She was promoted to Senior Human Resources Representative in October 1992, which is a pay grade 48. Respondent's upper management determined in 1992 that it was necessary to reduce the number of its employees as part of an overall restructuring of its operations. The reduction in force, which was to be the largest separation of employees that Respondent had ever experienced, was for valid business considerations which are not at issue in this proceeding. The management group set the target for the number of employees in each department of the Palm Beach facility whose employment would be terminated. The management group decided that the Human Resources Department of the Palm Beach facility, of which Petitioner was a part, would be reduced by between 20-25 employees in February 1993. That decision by the management committee is not being challenged in this proceeding. William Panetta was, at the times pertinent to this proceeding, the Respondent's Vice President of Human Resources for the West Palm Beach facility. The management group informed Mr. Panetta in the fall of 1992 of the upcoming reduction in force and gave to him the targets that had been set for the various departments for the West Palm Beach facility. Soon thereafter, Mr. Panetta began meeting with the heads of major departments to devise a procedure for making the reductions in force. Among the senior staff who met with Mr. Panetta was John Roberson, who was manager of Human Resources for non-engineering personnel. Petitioner worked in Mr. Roberson's department from the time he was transferred to its Human Relations Department in 1986 until the termination of his employment in 1993. Mr. Roberson was Petitioner's second line supervisor. At different times, Bob Vogel, Charles Wilson, and John Hopkins served as Petitioner's direct supervisor. Mr. Roberson was asked by Mr. Panetta to prepare a draft of a proposal for the procedure to be followed in carrying out the reduction in force. This draft was to include a method to identify those employees whose employment would be involuntary terminated. Pertinent to this proceeding, Mr. Roberson's draft included a provision for selecting among multiple incumbents when some job positions or functions were being eliminated. In that situation, Mr. Roberson proposed that seniority be the primary factor and that relative performance of the incumbents be considered only if the more senior employee was ranked as a low performer on his or her annual evaluation. Respondent annually evaluated employees such as Petitioner as being either a "T" (top), a "M" (middle), or an "L" (low). The employees were also given annual evaluations by their supervisors called Performance Management Reports, which rated the employees on a scale ranging between unsatisfactory to exceptional. During his entire tenure with Respondent, Petitioner was rated at least as being fully competent on his Performance Management Reports and, at different times, as being either in the "T" or the "M" category. The procedure drafted by Mr. Roberson was never intended to be the final procedure that would be followed in accomplishing the reduction in force. In late 1992, Mr. Panetta presented Mr. Roberson's draft to the senior staff for comment and revision. The senior staff determined that Mr. Roberson's draft overemphasized seniority and was too inflexible. It was determined that such emphasis on seniority would hamper management's efforts to retain the most qualified employees. The Human Resources Department assigned to each of Respondent's major departments a Personnel Support Representative to assist with employee relations and to provide administrative support in personnel matters. As part of the procedure followed for the 1993 layoffs, the Personnel Support Representative for each department reviewed the candidates for layoffs with the Department Head to determine whether the selection was fair and properly documented. The Personnel Support Representative was to provide support only. Each Department Head had the responsibility for determining the employees within a department to be laid off. During the same time period that senior staff was trying to develop the procedure that would be followed for layoffs, Mr. Roberson met with the Personnel Support Representatives and discussed with them the drafted procedure he had prepared. He informed them that the draft was not the final product and asked for discussion. Mr. Roberson discussed with the Personnel Support Representatives the final policies that senior staff adopted before final selections were made and informed them that rigid adherence would not be given to seniority. Respondent has never used seniority as the controlling factor in any previous layoff. The senior staff decided that it would consider the following criteria to determine which of its qualified employees to layoff: documented poor performance, the elimination or consolidation of different positions, relative performance among the candidates, and seniority. Mr. Panetta determined that those employees of the Human Resources department should be "generalists" who are capable of performing a wide range of responsibilities as opposed to specialists. Respondent's plan was to either eliminate functions that had been performed by specialists or to consolidate those functions with other specialized functions. The employees in Human Resources who would still be employed would be required to take on new responsibilities and to perform tasks that had previously been performed by specialists. In the Human Resources department, an employee would have to assume responsibilities in labor relations, employee relations, and compensation. Mr. Panetta decided after conferring with Mr. Roberson that the Management Training, Placement and Compensation section in the Human Resources department for non-engineering personnel would be eliminated. Senior Human Resource Representatives and Human Resource Representatives were candidates for layoffs and were put into a resource pool. The employees in the resource pool were thereafter considered for other positions by comparing their qualifications with those of employees whose positions were not being eliminated. If an employee in the resource pool was considered to be more qualified than an employee whose position was not being eliminated, the more qualified person in the resource pool would be retained to fill the existing job and the incumbent employee would have his employment terminated. Petitioner and Karen Roberts were assigned to the compensation function at the time of the layoffs, but their positions were eliminated as a result of the layoffs. Petitioner and Karen Roberts were placed in the resource pool. Dave Swanson was employed as a Personnel Support Representative in the Human Resources Department prior to the reduction in force. Mr. Swanson's position was not eliminated, but it was determined that there were employees in the resource pool, including Petitioner and Karen Roberts, who were more qualified than Mr. Swanson. Respondent selected Ms. Roberts to fill the position that had been filled by Mr. Swanson. Petitioner's employment with Respondent was terminated. Petitioner asserts that Respondent discriminated against him on the basis of his sex in deciding to retain the employment of Ms. Roberts and to terminate his employment. There is no assertion by Respondent that Petitioner was an incompetent employee. To the contrary, Respondent considered Petitioner to be a competent employee, which is why he was a candidate to fill Mr. Swanson's former position. At the time of the layoffs, John Hopkins was the Manager of Technical Development and Compensation and the direct supervisor of Petitioner and Ms. Roberts. While Mr. Panetta had the ultimate responsibility for deciding whether Petitioner or Ms. Roberts would be retained in Mr. Swanson's former position, he relied heavily on Mr. Roberson's recommendation in making that decision. Mr. Roberson in turn relied on his own knowledge of the respective performances of these two employees and on information that had been given him by Mr. Hopkins. Mr. Hopkins believed that Ms. Roberts was a more valuable employee than Petitioner. Mr. Hopkins testified that Petitioner failed to timely complete certain assignments, that certain aspects of his performance was not satisfactory, and that he had experienced problems working with others. Mr. Hopkins received separate complaints from Joe Bressin, who was in charge of Executive Compensation, and Henry Ugalde, who was in charge of the Equal Employment Opportunity function, that Petitioner had not rendered satisfactory assistance to them. Petitioner did not meet all of the interim deadlines for preparation of a negotiations book that was being complied for use in labor negotiations. Several of Petitioner's supervisors met with him during his tenure with Respondent to discuss his perceived deficiencies and to review his assignments. Mr. Roberson was aware of these deficiencies at the time he recommended to Mr. Panetta that Ms. Roberts be selected to fill Mr. Swanson's former position. Mr. Hopkins considered Ms. Roberts to be a "solid performer" who was enthusiastic, worked well with others, and was capable of performing a wide range of tasks. Ms. Roberts prepared a book for other employees in the compensation function that detailed the procedures involved in performing hourly compensation duties relative to collective bargaining agreements. In addition, Ms. Roberts was chosen by Mr. Panetta to assist Respondent's negotiating team during negotiations with the labor unions for the 1992-1993 labor contract. Ms. Robert's worked on a complex computer program that computed the costs to Respondent of various collective bargaining proposals. Ms. Roberts was chosen for this assignment because Mr. Hopkins believed her to be the best employee to assume this responsibility. Mr. Hopkins selected her because of her competence, her enthusiasm, her ability to maintain confidential information, and her willingness to work irregular hours. Gender was not a factor in selecting Ms. Roberts for this assignment. Ms. Roberts performed with distinction the duties that had been assigned to her as a member of the negotiating team, thereby favorably impressing Mr. Roberson and Mr. Panetta. Mr. Roberson was aware of Ms. Roberts' job performance at the time he recommended to Mr. Panetta that she be selected to fill Mr. Swanson's former position. Mr. Roberson and Mr. Panetta did not rely heavily on their most recent job evaluations, which were the only documents they reviewed, nor did they consider it significant that Petitioner was in a position that is designated as pay grade 48 when his last evaluation was written and that Ms. Roberts was in a position designated as pay grade 46 when her last evaluation was written. 1/ Mr. Roberson and Mr. Panetta considered the responsibilities and job duties of these two positions to be identical. The relative job performances of Petitioner and Ms. Roberts were evaluated by Mr. Roberson and Mr. Panetta taking into consideration the future demands of the job and were based, in large part, upon direct experience with the two employees. There was no written documentation of their rationale for selecting Ms. Roberts to fill Mr. Swanson's former position. Petitioner established that Mr. Roberson occasionally made comments about attractive female employees and that he seemed to prefer the company of certain female employees, one of whom was Ms. Roberts, at social events. While due consideration has been given this evidence, it is found that the greater weight of the evidence established that Respondent had legitimate, nondiscriminatory business considerations for the employment decision that was at issue in this proceeding. These considerations were not shown to be pretextual. Petitioner failed to establish that Respondent discriminated against him on the basis of his sex by its decision to replace Mr. Swanson with Ms. Roberts instead of with Petitioner. The petition Petitioner filed before the Florida Commission on Human Relations contains an allegation that Respondent discriminated against him on the basis of age. Petitioner abandoned that allegation at the beginning of the formal hearing. The petition Petitioner filed before the Florida Commission on Human Relations also contains an allegation that Respondent discriminated against him by failing to rehire him or recall him after his employment had been terminated. There was no evidence to support that allegation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order that adopts the findings of fact and conclusions of law contained herein and that dismisses the Petition for Relief filed by Petitioner. DONE AND ENTERED this 9th day of January, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 9th day of January, 1995.
Findings Of Fact In 1973 Petitioner was in the process of acquiring small construction companies in which it intended to subsequently sell stock at a public offering. In carrying out this project an agreement (Exhibit 4) was entered into whereby Petitioner paid the shareholders of Celebrity Homes Corporation $50,000 at closing for 9045 shares of Celebrity Homes, Inc. with the balance of $1,028,375 to be paid in two equal payments with $190,875 payable on September 30, 1974 and the final payment on December 31, 1975. By supplemental agreements dated October 18, 1973 (Exhibit 5) and December 3, 1973 (Exhibit 6) the purchase price was modified to $945,380 and the provisions of paragraph 9 which provided for repurchase of the stock by Celebrity was deleted. On its intangible property tax return dated January 1, 1974 Petitioner listed the Celebrity stock at a total just value of $310,786. Around mid-1974 Petitioner realized the economic conditions were unfavorable for a public offering of a new stock issue (the proceeds of which were to pay the balance owed on Celebrity stock) and entered into negotiations with Celebrity which led to the resale of the stock to Celebrity for $50,000, the amount initially paid by Petitioner as the down payment. An attempt by Petitioner to collect an additional $15,000 "interest" from Celebrity for reorganization work done by Petitioner apparently was not successful. As a result of the Petitioner not being able to carry out the public offering of the stock in Celebrity it filed an amended intangible tax return in which the value of Celebrity stock was reduced to $65,000. No testimony was presented regarding the book or other value of the Celebrity stock on January 1, 1974. During the same period Petitioner was in the process of acquiring other companies in the home construction industry which it intended to reorganize into a group and go public. After entering into agreements with several of these companies, the owner of one of these companies, W. Harrison Merrill, decided he would not go forward with the reorganization and wanted out of the deal with Rutenberg. To release Merrill from his agreement to sell his company to Rutenberg, Petitioner required Merrill to sign a note dated September 24, 1973 promising to pay Rutenberg $2,490,000 (Exhibit 7). This note purported to be in payment for 360.5 shares of Vanguard Properties, Inc. stock which were being sold back to Merrill. At the time Merrill had a net worth of approximately $130,000 and Petitioner knew the maker would be unable to pay the note. By modification agreement dated July 25, 1975 (Exhibit 8) Merrill and Rutenberg agreed to reduce the purchase price of this stock and the September 24, 1973 note to $145,000, $10,000 of which had been paid by Merrill on September 24, 1973. By endorsement to the note dated July 25, 1974 the note was made nonnegotiable and reduced to $135,000. This note was never paid by Merrill but was subsequently traded for property subject to a mortgage, and the mortgagee foreclosed on the mortgage. Similar deals had been made with other companies Rutenberg acquired to go public but which were "resold" back to their previous owners when economic conditions in 1974 militated against any public offering. These various notes for which Petitioner established high reserves are listed on Exhibit 9. By far the largest of these involves Merrill where some $2,355,000 was carried as a reserve.
The Issue Whether petitioner is disqualified to hold a real estate salesman's license in Florida on account of the alleged revocation of a Virginia real estate license?
Findings Of Fact Petitioner Eugene Frank Steffey was at one time licensed as a real estate broker in Virginia, Maryland and the District of Columbia. The seventy- year-old father of four, he has had significant experience in real estate transactions. Petitioner filed an application for licensure as a real estate salesman in Florida which respondent received on November 1, 1983. Joint Exhibit No. 2. By his answer to a question on the form, he advised respondent of a problem he had had in Virginia with the licensing authorities there. At hearing, he elaborated.*(See end) He was "a pivotal person" (T. 14) in syndicates holding land around Dulles Airport aggregating some $10,000,000 in value "as of 1970 prices," (T. 13) when somebody filed a complaint about him with the Virginia Real Estate Commission. [W]hen they investigated me, the only thing they could find was wrong was what's in this consent order. (T. 13) Petitioner signed the consent order without advice of counsel. He testified that "there is just no way I would have signed this if I had had an attorney (T. 13) but that he "couldn't get an attorney and at the same time protect the interests of these numerous other parties." (T.14) The consent order, No. 75-76-8, dated June 7, 1976, revokes Mr. Steffey's Virginia broker's license and denies him the "right to hold a license as a real estate broker or salesman in Virginia," and recites allegations, which are neither admitted nor denied in the document, that On or about March 16, 1970 Eugene F. Steffey, as Trustee and non-concurring beneficiary, entered into a "Land Trust Agreement" on the letterhead of "E. F. Steffey & Sons, Inc." with Gilbert F. Pascal arid other beneficiaries whereby the beneficiaries agreed to convey to Steffey two parcels of real property located in Loudoun County, Virginia; Parcel A containing approximately seventy five (75) acres, and Parcel B. containing approximately ninety nine (99) acres, all known as the "Route 15 Property." The purpose of the Trust was to acquire and hold the property for investment, including the incidental power to maintain and conserve the property and to collect and distribute any income therefrom. The agreement provided for Steffey to receive an annual management fee of $100. On Parcel A the Trust assumed a First Deed of Trust of $25,000 due and payable December 16, 1971. Without the knowledge of the other trustees, Steffey executed promissory notes in the aggregate amount of $25,000 secured by a Deed of Trust encumbering Parcel A, dated April 20, 1971, and with the proceeds from said notes satisfied the approximately $12,500 due on the Deed of Trust assumed on Parcel A and converted the remaining $12,500 to his own use. On or about April 1, 1975, without the knowledge of the other beneficiaries, Steffey leased Parcels A and B to Virginia Beef Corporation for an annual rent of $1,000. By check dated March 28, 1975 Virginia Beef Corporation paid to Steffey $1,000 which Steffey converted to his own use. Joint Exhibit No. 3. Mr. Steffey testified, without contradiction, that "nobody lost money and there was no other involvements." (T. 14)
Findings Of Fact Respondent has been employed in the securities industry since approximately 1957. He has worked for a number of broker/dealers over the years and is familiar with the procedures involved in transferring employment from one broker to another. It is the custom in the securities industry that when a securities salesperson changes employment, forms U-4 and U-5 are filed with the National Association of Securities Dealers. As registration is approved by that organization and by the various states involved, the states give that information to the National Association of Securities Dealers, which in turn gives that information to the securities firm which employs the associated person seeking registration, and that brokerage firm in turn notifies the applicant. Respondent began to work at Alison Baer Securities, Inc., in September, 1988, and remained employed there until February, 1989. When he associated himself with Alison Baer, Respondent applied for registration as an associated person with that company. As is the proper procedure, he submitted a U to the National Association of Securities Dealers. While waiting for his registration to be approved, Respondent maintained telephone and personal contact with his own clients. He did not, however, sell or offer to sell securities until after he was sure his registration was approved. Respondent's application for registration as an associated person with Alison Baer Securities, Inc., was approved by the National Association of Securities Dealers and was also approved by the states of New York, Texas, Georgia, Florida, and Oklahoma. In late October of 1988, Jeffrey Britz, the President and Chief Executive Officer of Alison Baer Securities, told Respondent that his registration as an associated person with Alison Baer Securities had been approved by the state of Florida. In fact, Respondent was not registered as an associated person by the state of Florida until December 7, 1988. Respondent did not attempt to directly confirm with the Department of Banking and Finance his registration as an associated person with Alison Baer Securities. Respondent has applied for registration with the Department as an associated person with Shamrock Partners, Ltd. The Department denied that application based solely on the allegations which are the subject matter of this proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent not guilty of the allegations contained in the Administrative Complaint, dismissing the Administrative Complaint filed against him in this cause, and granting his application for registration with the Department as an associated person with Shamrock Partners, Ltd. DONE and ENTERED this 14th day of February, 1992, at Tallahassee, Florida. LINDA M. RIGOT 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 14th day of February, 1992. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed finding of fact numbered 27 has been adopted in this Recommended Order. Petitioner's proposed findings of fact numbered 1-5, 11-14, 16-18, 23- 26, 28, 29, and 31-34 have been rejected as not constituting findings of fact but rather as constituting conclusions of law, argument of counsel, or recitation of the testimony. Petitioner's proposed findings of fact numbered 6-10, 15, 19, and 30 have been rejected as being subordinate to the issues involved in this proceeding. Petitioner's proposed findings of fact numbered 20-22 have been rejected as not being supported by any competent evidence. COPIES FURNISHED: Deborah Guller, Esquire Assistant General Counsel Office of the Comptroller Suite 211 111 Georgia Avenue West Palm Beach, Florida 33401 Richard Doggett, Esquire 808 Northeast 3rd Avenue Fort Lauderdale, Florida 33304 Honorable Gerald Lewis Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350 William G. Reeves, General Counsel Department of Banking and Finance Room 1302, The Capitol Tallahassee, Florida 32399-0350
Findings Of Fact Introduction Petitioners, Herman R. Staudt and L. Justin Jackman, are the owners of 1,900 and 5,600 shares of capital stock, respectively, in Intervenor-Respondent, Bank of Central Florida (Bank). This represents 9.1 percent of the outstanding shares of the Bank. The Bank is a state chartered commercial bank which began business in 1975. Its principal offices are located at 1401 Lee Road, Orlando, Florida. Petitioners were founders and original members of the board of directors of the Bank when it began operating in 1975. On September 9, 1981, the President of the Bank issued a notice of special meeting of shareholders to be held on September 21, 1981, for the purpose of "considering and determining by vote whether an agreement to merge said Bank with and into Second Bank of Central Florida...shall be approved, ratified and confirmed." Under the terms of the merger agreement, each shareholder was entitled to receive substitute shares of stock in the successor bank, or if that was unacceptable, he would receive $25 per share for each share of stock held by him, or he could dissent from the merger. The agreement was ultimately approved by a majority of the shareholders and applications were then filed with Respondent, Department of Banking and Finance, Division of Banking (Department), seeking formal state approval. The applications were approved by the Department on October 7, 1981, and the merger was actually consummated effective January 4, 1982. The Bank continues to operate under the corporate title "Bank of Central Florida". Petitioners initially objected to the plan of merger and requested that the Department conduct a hearing on the merger applications. The request was denied. Petitioners then availed themselves of their rights under Subsection 658.44(5), Florida Statutes, which provides that whenever a bank and its dissenting shareholders cannot agree on a value to be assigned the stock held by the dissenting shareholders, the Comptroller shall select an appraiser to make an "appraisal of such dissenting shares" which shall be final and binding on all parties. On September 7, 1982, the Comptroller selected Blackstock & Company, Inc., a Jacksonville, Florida registered broker-dealer and registered investment adviser, to appraise the value of the dissenting shares. In its letter selecting Blackstock, the director of the Division of Banking gave the following relevant instructions to Blackstock: Your appraisal should include the Bank of Central Florida's earnings history and the history of its stock sale prices. Characteristics of the Bank of Central Florida to be considered in your appraisal are, the stock is not widely traded, and the interest of the shareholders for whom this appraisal has been commissioned constitute a minority interest in Bank of Central Florida. Your appraisal shall include a determination expressed in dollars and cents per share of the-fair compensation to be paid for all outstanding minority shares. That final dollar and cent figure shall be based upon information readily available through public records and records of the bank, but shall not be based upon any con fidential records of the Department of Banking and Finance. According to the letter of engagement, Blackstock was to receive a maximum $2,000 fee for its services to be paid by the Bank. On September 9, 1982, Petitioners filed a complaint in circuit court for Leon County seeking a declaratory judgment concerning the constitutionality of the Department's actions. On November 2, 1982, the circuit court entered its order holding that, if any party was dissatisfied with the independent appraisal, it was entitled to a de novo hearing before the Division of Administrative Hearings pursuant to Subsection 120.57(1), Florida Statutes. On November 11, 1982, Blackstock submitted a report of appraisal to the Comptroller in which it expressed the opinion that the dissenters' stock should be valued at $27.63 per share. After certain communications with the Department, a revised report was prepared by Blackstock and forwarded to the Comptroller on December 30, 1982. On January 5, 1983, the Comptroller issued its notice of intent to adopt the report. That notice prompted the instant proceeding. The Bank's stock has not been traded publicly at any time. All stock exchanges prior to December 31, 1981, were between existing shareholders. Most involved the Bank's present majority shareholder and chairman of the board. The Bank is a closely held family corporation and its stock is not readily marketable. This was openly acknowledged in the plan of merger itself. The Bank paid no dividends from its inception through December 31, 1981. The Bank is considered to be well managed. It has produced excellent financial results, and is considered to be a "high-performing" bank. As of December 31, 1981, its return on equity and return on assets were 19.4 percent and 1.73 percent, respectively, which were higher than any publicly traded bank in the State of Florida. The Blackstock Report William C. Norton, vice-president of Blackstock and a registered securities dealer, assumed the initial responsibility for preparing the report on behalf of Blackstock. Without advising the Department, Norton contacted Terry A. Rodgers, a former co-worker in Orlando and a chartered financial analyst, and requested that Rodgers prepare the report. They agreed to split the $2,000 fee. Neither Norton or Rodgers had previously prepared an appraisal of dissenting shareholders' stock. Norton instructed Rodgers to "gather the financial information", prepare an "analysis" of that data, and then forward his results to Blackstock. Norton also "suggested the types of comparisons (he) felt would be appropriate in looking at it", the financial information Norton believed to be relevant, and "some of the valuation techniques (he) felt would be appropriate." However, it was not disclosed which of the four techniques used by Rodgers was recommended by Norton. Rodgers forwarded his report to Norton on October 18, 1982. After receiving Rodger's report, Norton reviewed the data, proofed the financial information, and rechecked Rodgers' calculations. The two also communicated by telephone on several occasions and once met briefly in Orlando. In all, Norton estimated he spent approximately six or seven days reviewing the data. He also requested that his partner review the data. Norton ultimately accepted the report almost verbatim, signed it, and sent it to the Department on November 11, 1982. After consultation with the Department, Norton made very slight revisions to the report and resubmitted it on December 30, 1982. Rodgers did not appear or testify at the final hearing in this cause. The report has been received in evidence as Respondent's Exhibit 1 and Intervenor's Exhibit 5. Data apparently relied upon by Rodgers, and in turn reviewed by Norton, included (a) all sales of stock of the Bank from its inception through December 31, 1981, (b) all purchases of bank stock by Donald Rogers (its current president) from 1975 through 1979, (c) the Bank's statement of condition as of December 31, 1981, (d) the Bank's Call Reports for the years 1977 through 1981, (e) the notice of special meeting of shareholders given on September 9, 1981, and (f) comparative data from the First Bankers' Corporation of Florida, Jefferson Bancorporation, Atlantic Bancorporation, and Great American Banks, Inc. The latter four banks are publicly traded Florida banks and were considered by Norton to be representative for comparative purposes because, like the Bank, two did not pay dividends one was controlled by a single family, and the remaining bank had undefined operating "characteristics" similar to that of Bank of Central Florida. However, because of the Bank's extremely small size in relation to the four, and the limited marketability of its shares, none were comparable in terms of size, market type or performance. Further, Norton conceded that a part of the 1901 earnings of one of the four (Jefferson) would normally be factored out for comparative purposes because they included extraordinary income. This in turn caused the composite price-earnings ratio to be substantially understated. By a subjective process, four valuation techniques were incorporated into the Blackstock report and were based upon data derived from a five year study period (1977-1981). These included (a) historical stock sale transactions, (b) industry price-earning ratio comparison, (c) industry price to book value ratio comparison, and (d) capitalization of expected future earnings. The four approaches produced the following valuations: $26.49, $30.38, $25.21 and 28.42. The sums were then divided by four to reach the recommended value of the stock, or $27.63 per share. Norton (and presumably Rodgers) did not attempt to assign a relative weight to each technique because such a process would require the use of subjective judgment, the four valuations arrived at were within a relatively narrow range ($25.21 to $30.38), and no single approach yielded a result substantially out of line with the others. Had the weighted average approach been used, Norton would have assigned a greater or lesser value or weight to the results of the various appraisal valuation techniques employed according to relevance. Despite his rejection of this methodology, Norton conceded that the weighted average method is the most applicable and best suited approach for valuing capital stock not having an active and continuous market, and that it is used by the U.S. Comptroller of the Currency in determining the value of dissenters' shares in federal bank merger cases. In this regard, he agreed that had the Bank been federally chartered, he would have used the same approach in valuing its stock. As noted earlier, Norton's industry price-earning ratio comparison was distorted because of the inclusion of a bank with extraordinary income due to the sale of a subsidiary and property. Had this non-recurring income been factored out, the value of the stock under this methodology would have exceeded $50 rather than the $30.38 reflected in the report. The historical sales approach, to which Norton gave equal weight, was also subject to criticism. This approach, which analyzed stock sales between 1977 and 1981, had the inherent weakness of failing to reflect the Bank as a going concern. The Goff Report A second valuation study was performed on behalf of Intervenor by Ronald W. Goff, a research analyst for Allen C. Ewing & Company, an investment banking firm in Tampa, Florida. That report has been received in evidence as Intervenor's Exhibit 9. Although Goff reviewed the Blackstock report and certain other financial information, he relied primarily upon previous stock exchanges as a basis for determining fair market value. In this regard, he used a major stock transaction between a former vice-chairman of the board (J.F. Cooper) and its present chairman of the board (J.E. Muroski) as the primary basis for arriving at his recommended valuation. The sale involved 12,525 shares, was negotiated in the fall of 1980 and consummated on January 6, 1981, and resulted in increasing Muroski's total stock outstanding in the Bank from 45.3 percent to 59.7 percent. The agreed upon price was $27.86 per share, and after "massaging" that number, Goff arrived at a recommended valuation of $27.34 per share. The circumstances underlying the sale included a falling out between Cooper and Muroski in the spring of 1980 and a request by Muroski that Cooper resign his position with the Bank in May of that year. Shortly afterwards, they began negotiations for Muroski to buy the stock, The deal was agreed upon in 1980 but was not consummated until January, 1981 for tax purposes. Although Goff did not consider the exchange to be an insider transaction, nonetheless it is found that it was because (a) no dividends had been paid from the inception of the Bank through 1981, and Cooper was accordingly receiving no return on his stock, (b) Cooper had terminated all involvement in the Bank's operations, (c) the exchange took place between current and former principal officers of the Bank, and (d) Muroski was an insider by definition of the Securities and Exchange Commission. Therefore, the transaction was not a reasonable basis to determine the fair market value of the stock. Goff himself acknowledged that it was an unusual valuation practice in preparing an appraisal of bank stock to determine market value on the basis of one or a very few transactions. The Perkins Report Marc I. Perkins, an investment banker with Raymond, James and Associates in St. Petersburg, Florida, prepared a valuation report for Petitioners. That report has been received in evidence as Petitioners' Exhibit Perkins had previously been engaged on a number of occasions to value bank stock where a dispute over its value had arisen in a proposed merger. Perkins utilized the weighted average methodology which generally employs, where applicable, five categories of analyses, and then requires that the appraiser assign a weight to each category. This method is identical to that used by the U.S. Comptroller of the Currency in valuing dissenting shareholders' stock and is endorsed in an authoritative text entitled "Security Analysis" by Graham and Dodd. The five approaches include (a) book value, (b) adjusted book value, (c) imputed market value, (d) market value, and (e) investment value. However, in the case at bar imputed market value was inapplicable since that method is used only where a subsidiary is merged into a larger holding company. By the same token, the market value criterion was excluded by Perkins since no stock exchanges occurred during the last eleven months of 1981 and those occurring prior to that date were more akin to insider exchanges. Accordingly, Perkins used the three remaining approaches, to wit, book value, adjusted book value and investment value from which he derived valuations of $35.51, $35.44 and $50.30, respectively. After assigning the appropriate relative weights to each sum, he arrived at a recommended valuation of $46.59 per share. Unlike the authors of the Blackstock report, Perkins found no publicly traded Florida banking companies to be comparable to the Bank, and because of this, used as broad a peer group as possible for comparative purposes in order to take in the maximum number of investor decisions. The comparative data was extracted from the Jerry Williams, Inc. report which is a compilation of financial data for twenty-one publicly traded banking institutions in Florida. The use of a broader base is more appropriate than the Blackstock peer group since it is virtually impossible to find other banking companies of the same size, market type and performance as the Bank of Central Florida. Perkins assigned the greatest weight (75 percent) to the results of the investment value approach since that approach is appropriate where market value does not exist or where the market is thin. Moreover, it provides an easy to understand and reasonable estimate of the value to investors of a share in the future earnings of the Bank. Then, too, that approach includes an analysis of price earnings ratios for the average publicly traded Florida bank, and takes into account a number of key factors that go into investors' perceptions about risk and estimated returns. The approach also considers historical earnings per share as a guide to earnings prospects. Perkins assigned only 25 percent weight to the results of the adjusted book value approach since it had less relevance than investment value. He gave no weight to book value since that approach is dependent on historical cost and fails to reflect the investors' perceptions of the value of the bank as a going concern. Perkins' study produces a more reliable and accurate result than the other suggested methodologies because of its well-accepted approaches, the use of relative weights, a broader and more representative peer group and its rejection of irrelevant and improper data. Miscellaneous From December 31, 1981 through July, 1983 the value of money left on deposit in commercial banks in 30-day certificates of deposit and reinvested was 18 percent. The Bank's average prime rate was 16 during 1982 and the average interest rate charged customers by the Bank was 12 percent.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioners L. Justin Jackman and Herman R. Staudt be paid $46.59 per share for each share of stock held in the Bank of Central Florida, said amount representing the fair market value of such stock as of December 31, 1981. It is further RECOMMENDED that Petitioners' request to receive interest from December 31, 1981 through July, 1983, post order interest, and costs incurred in this proceeding be DENIED. DONE and ENTERED this 23rd day of September, 1983, in Tallahassee, Florida. DONALD R. ALEXANDER 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 23rd day of September, 1983.
The Issue The issue is whether Respondent engaged in an unlawful employment practice because of Petitioner's race.
Findings Of Fact Ms. Gainey is an African-American and is currently unemployed. She has a tenth-grade education and at the time of the hearing was 31 years of age. Winn Dixie is a corporation engaged in the grocery business. It is headquartered in Jacksonville, Florida, and has stores throughout the southeastern United States. Winn Dixie is an employer as that term is used in Subsection 760.02(7), Florida Statutes. Beginning in 1996, Ms. Gainey began employment more or less continuously in Winn Dixie stores. In 2005, she was working in Winn Dixie's Port Orange Store. She began her Winn Dixie employment by working as an overnight stocking clerk and then worked in the bakery department. In time she became a general merchandise stocking clerk. Eventually she was promoted to cashier. Subsequently, she was promoted to front-end manager and her responsibilities increased. She was also asked to be an in-store trainer, and she accepted this additional duty. She trained newly hired cashiers and baggers. Ms. Gainey did an excellent job as front-end manager and was such a proficient in-store trainer, that she was asked on occasion to train personnel at other Winn Dixie stores. She was a popular manager. Both her peers and supervisors believed her to be a good employee. At least one Winn Dixie customer testified that at the Port Orange store she was, "Miss Winn Dixie." Training at Winn Dixie had been accomplished at individual stores prior to 2005. Accordingly, there was no standardization. Management at Winn Dixie determined that training should be accomplished regionally so that uniformity could be established. Winn Dixie thereafter established a pilot program in the Jacksonville region, which included Ms. Gainey's store, that would develop specialized district trainers who would be responsible for training all new hires. Winn Dixie issued a "job posting notice" dated March 23, 2005, through March 25, 2005, announcing the job title of "District Trainer 'New Hire Orientation & Cashier Training.'" The notice stated that the position would be responsible for conducting, "training sessions to support the delivery and dissemination of company-wide operational information, job-specific requirements, performance standards, human resource programs and policies, as well as pertinent safety program guidelines." The skills set for an in-store trainer were not transferable to the district trainer position. The district trainer position being contemplated was much more demanding and required intensive training. The position of district trainer would result in a promotion and an increase in salary for Ms. Gainey if she attained it. Consequently, she applied for it. Others did also. In the region in which Ms. Gainey was working, 50 people applied for 21 available positions. Ms. Gainey was selected for an interview. Winn Dixie managerial employees Catherine Cole, Gary Lloyd, and Mathew Toussaint interviewed Ms. Gainey and all of the other applicants. Sixteen applicants were chosen for training as district trainers. Five were black and 11 were white or Hispanic. One person was selected from each district. Ms. Gainey was not selected. Nevertheless, Ms. Cole recommended that Ms. Gainey attend training, and Ms. Cole and Mr. Toussaint overruled the recommendation of the interview board and determined she should attend training. This occurred because of the recommendation of her co-manager, who asserted that her presentation skills were "awesome" and because no one else from her district had applied. Ms. Gainey was informed that she was to participate in the training. Despite Ms. Gainey's belief to the contrary, she was never given a job as district trainer. Rather, she was informed that upon successful completion of training she might be placed in that position. Regrettably, and erroneously believing she had received a promotion, Ms. Gainey bade a tearful farewell to her fellow workers. They threw a going away party for her. The training commenced in Orlando, Florida, on Monday, May 9, 2005, and was scheduled for five days. During classes, Ms. Gainey did not absorb the information provided to her, gave inappropriate responses to questions, did not follow instructions, demonstrated that she could not follow along in the training book, and asked questions not related to the material. Her efforts were such as to evoke ridicule from her fellow students. Her demonstrated deficiencies resulted in a determination that she was unsuitable to be a district trainer. Of the six African-Americans that underwent training, all but Ms. Gainey, were successful. Of the ten whites, all were successful. The one Hispanic was successful. Ms. Gainey departed the training site convinced that she had successfully completed the course. However, a few days later she was informed by Ms. Cole, Mr. Toussaint, and John Koulouris that she had failed the course and would not be promoted. The decision not to promote her was solely based on her performance at the training and was not in any way based on her race. She was a valuable Winn Dixie employee and management wanted her to succeed. Winn Dixie was committed to working with her so that she could develop her skills and eventually advance. She was informed of this. Ms. Gainey, upon learning of her failure, became very emotional. She was offered an opportunity to return to her old job or, should she choose, a job anywhere in the district. Ms. Gainey refused to return to the Port Orange store because she did not want her co-workers to learn of her failure. Ms. Gainey asserted that she wanted to work in Gainesville, so she was assigned to Store 160 in Gainesville. Subsequently, she learned that Store 160 was slated to be closed, and she was allowed to return to her old store. However, she went on sick leave instead and never returned to work for Winn Dixie. She was terminated on May 13, 2006, due to her uncommunicative absence. The job to which Ms. Gainey aspired was never filled. Winn Dixie, within a matter of months, determined that the district trainer plan was not sound and terminated the entire program. Winn Dixie has a strong equal opportunity policy. No evidence was adduced during the course of the hearing that indicated that any action taken in regard to Ms. Gainey was based on discrimination. To the contrary, the evidence clearly demonstrated that Ms. Gainey was not placed in the position she desired because she was not qualified.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 4th day of June, 2007, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 4th day of June, 2007. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Princess Catrice Gainey Post Office Box 290264 Port Orange, Florida 32129 Tishia Green, Esquire Constangy, Brooks & Smith, LLC 100 North Tampa Street, Suite 3350 Post Office Box 1840 Tampa, Florida 33601 Princess C. Gainey 500 Southeast 18th Street Apartment 67 Gainesville, Florida 32641 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether the Respondent committed the violations set forth in the Administrative Complaint dated June 6, 2000, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Education Practices Commission is the entity responsible for imposing discipline against an educator's certificate, and the Commissioner is charged with the responsibility for filing and prosecuting a complaint against a person holding a Florida educator's certificate. Section 231.262, Florida Statutes. Ms. Tate holds Florida Educator's Certificate number 452586, covering the area of physical education; the certificate is valid through June 30, 2004. At all times material to this proceeding, Ms. Tate was employed as a Driver's Education teacher at Miami Jackson, where she had taught since the late 1970's. She is currently assigned as a teacher to Horace Mann Middle School ("Horace Mann"), where she has been teaching for four years. Ms. Tate enjoyed a good relationship with the staff, faculty, and students at Miami Jackson, and she has a reputation at Miami Jackson as a good teacher. Ms. Tate also enjoys an exceptionally good relationship with her students at Horace Mann and works well with parents. At the times material to this proceeding, Louis Robinson was 18 years old and a senior at Miami Jackson. Mr. Robinson had been a student in Ms. Tate's class two or three years prior to the incident leading to the filing of the Administrative Complaint at issue herein. On April 29, 1997, Ms. Tate led her class into the area of the school where the auto repair and auto body shops are located. At the time, two instructors, Mr. Joyner and Mr. Jackson supervised that area; Mr. Joyner supervised the actual shop areas, and Mr. Jackson supervised the students in the adjoining classroom. Mr. Jackson also coached the Miami Jackson track team, and, when he had to leave the classroom early to prepare for a track meet, Ms. Tate sometimes took her class to the classroom adjoining the shop area and supervised both her students and the shop students in the classroom. It was for this purpose that she took her class to the area of the auto shops on April 29, 1997. Mr. Robinson was sanding an automobile in the auto body shop with two classmates when Ms. Tate passed close to him as she led her class through the auto shops to the classroom. Mr. Robinson had smoked marijuana with two other students during the lunch hour, and he was high at the time. Ms. Tate left her class, walked a few feet to where Mr. Robinson was working, and said a few words to him. Apparently without provocation, Mr. Robinson spit in Ms. Tate's face, and she responded by kicking out at him.6 Ms. Tate then turned away, but Mr. Robinson grabbed her from behind and began choking her. Mr. Jackson, who saw the incident, rushed over and pulled Mr. Robinson off of Ms. Tate. Ms. Tate refused to report the incident and left the immediate area of the auto body shop. Mr. Robinson returned to sanding the automobile. Mr. Robinson attacked Ms. Tate a second time a few minutes later, as she was leaving the auto-shop area with her students. During the second attack, Mr. Robinson hit Ms. Tate at least once with his fist and knocked her down onto the floor. Mr. Jackson again pulled Mr. Robinson off of Ms. Tate, who was shocked and confused by the assault. At some point after the altercation, Ms. Tate was summoned to the principal's office. Mr. Allen, the principal of Miami Jackson, and Ms. Lewis, an assistant principal, testified at the final hearing that Ms. Tate was very distraught. They further testified that Ms. Tate admitted to them that she had had a sexual relationship with Mr. Robinson and that Ms. Tate told them she was five months pregnant. Both Mr. Allen and Ms. Lewis deny ever talking with Mr. Robinson about the altercation or the existence of a sexual relationship between him and Ms. Tate, although Mr. Robinson recalls being taken to the office immediately after the altercation and speaking with both of them. Mr. Robinson testified that Mr. Allen asked if there was "anything going on" between him and Ms. Tate, that he told them, "Yes," and that no details were discussed. According to Mr. Robinson, this was the extent of his conversation with Mr. Allen and Ms. Lewis that afternoon. The next morning, Mr. Allen met with Mr. Robinson's parents, and, after the conversation, Mr. Robinson was transferred to another high school for the remainder of his senior year. Mr. Robinson's parents did not make any mention to him of the alleged sexual relationship between him and Ms. Tate. Based on the report submitted by Mr. Allen, the Miami- Dade County School Board ("School Board") conducted an investigation to determine whether Ms. Tate and Mr. Robinson had been involved in a sexual relationship. During an interview with the School Board investigator on May 9, 1997, Mr. Robinson stated that he and Ms. Tate had been involved in a sexual relationship between August 1996 and March 1997 and had engaged in sexual intercourse four times. In or about March 2000, Mr. Robinson ran into a classmate, who told him that Ms. Tate was still in trouble with the school system as a result of his statement that they had been involved in a sexual relationship. Mr. Robinson telephoned Ms. Tate and apologized for lying about their relationship and getting her into trouble. During his testimony at the final hearing, Mr. Robinson recanted the statement he had made to the School Board investigator, and he testified that nothing he said in the statement was true and that he had never had a sexual relationship with Ms. Tate. Ms. Tate testified at the final hearing that she was accused by Mr. Allen and Ms. Lewis of being pregnant and of having a sexual relationship with Mr. Robinson, to which accusations she replied, "Whatever you say." Ms. Tate testified at the final hearing that she never had a sexual relationship with Mr. Robinson and that she would not have told Mr. Allen and Ms. Lewis that she was five months pregnant because she had a hysterectomy in 1981. The School Board took disciplinary action against Ms. Tate.7 She was transferred from Miami Jackson to Horace Mann; she was placed on prescription, which she successfully completed in four months; and her step pay increase was temporarily frozen. Summary The evidence presented by the Commissioner is not sufficient to establish that Ms. Tate committed any wrongdoing whatsoever with respect to the physical altercation involving Mr. Robinson that is referred to in the Administrative Complaint.8 It is undisputed that Mr. Robinson attacked Ms. Tate twice. Although Ms. Tate kicked out at Mr. Robinson after he spit in her face, she did not further strike out at Mr. Robinson even though he hit and choked her and knocked her to the ground. In the Administrative Complaint, the Commissioner has alleged that Ms. Tate engaged in an inappropriate romantic relationship with Mr. Robinson and that she and Mr. Robinson had sexual intercourse on several occasions. Having considered the totality of the evidence presented in this case and the permissible inferences that can be drawn from the evidence, and having assessed the credibility of the witnesses, it is not possible to make a finding of fact with any degree of certainty as to whether Ms. Tate and Mr. Robinson did or did not engage in a sexual relationship as alleged in the Administrative Complaint. The testimony of Mr. Allen and of Ms. Lewis has been carefully considered, as has the testimony of Ms. Tate and of Mr. Robinson; in the absence of any corroborating evidence of a sexual relationship between Ms. Tate and Mr. Robinson, there is nothing in either the testimony or in the demeanor of these witnesses which offers a cogent reason to accept the testimony of Mr. Allen and Ms. Lewis over that of Ms. Tate and Mr. Robinson. It is clear, however, that the evidence presented by the Commissioner is not sufficient to establish clearly and convincingly that Ms. Tate engaged in a sexual relationship with Mr. Robinson.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing all charges against Althea E. Tate. DONE AND ENTERED this 12th day of June, 2001, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 12th day of June, 2001.
Findings Of Fact From December 12, 1975, to June, 1976, Steiner was a registered real estate salesman in the employ of FAR, a registered corporate broker, located in Dade County, Florida. During that period of time, FAR was engaged in an enterprise whereby advanced fee listings were obtained from Florida property owners. Salesmen known as "fronters" or "qualifiers" were employed to place calls to Florida property owners where names and phone numbers had been provided to the salesmen by FAR. The prospects were asked if they cared to list their real estate with FAR in anticipation of resale. It was explained that there would be a refundable fee to be paid by the property owner for the listing. The refund was to occur upon sale of the property. If the prospect was interested, then certain literature was mailed out to them. Other salesmen were employed as "drivers" who would make the second contact of the prospect who indicated an interest in listing his property. The driver would secure a signed listing agreement along with a check for $375.00 which constituted the refundable listing fee. Steiner, although a salesman and not a broker, was the person responsible for running the operations of the FAR. A Mr. Lawrence Mann was employed as a figure-head broker for FAR and named as its president. Mann's only duties were to insure that all salesmen employed were properly licensed with the Real Estate Commission. Steiner hired and fired salesmen, sometimes took over difficult listing cases, provided the preplanned sales pitch for the salesmen and generally supervised the over-all operation. Steiner had a monitor in his office so that he could listen in on telephone calls being made to prospective clients. There was no evidence that any of the listings obtained by FAR were ever resold. There were, however, three parcels of land in negotiation for sale when the operations of FAR were terminated in June, 1976. There was to be a division separate and apart from the "fronters" and "drivers" to do the actual selling of the property. However, Steiner would set the listing price for the property after receiving a description of the property from the salesman. The listings were advertised in the Fort Lauderdale area but there was no evidence to establish whether or not other advertising occurred. There was a total absence of evidence and, hence, a failure of proof as to the allegations of misrepresentations by Steiner. FREC introduced no evidence to show that Steiner represented that the property could be sold for several times the purchase price, that it would be advertised nationwide and in foreign countries or that the company had foreign buyers wanting to purchase United States property listed with the company. There was no evidence introduced to show that Steiner either made the representations or knew them to be false. There was no evidence introduced to show that Steiner knew that no bona fide effort would be made to sell the property listed. There was no evidence of any nature introduced by FREC to show that Steiner was dishonest or untruthful.
The Issue The issue in this case is whether respondent's real estate license should be disciplined for the reasons given in the administrative complaint filed on March 9, 1994.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all times relevant hereto, respondent, Jennifer Dawn Jewels, held real estate salesperson license number 0380700 issued by petitioner, Department of Business and Professional Regulation, Division of Real Estate (Division). When the events herein occurred, respondent was employed as a salesperson at Jennifer Jewels Real Estate, Inc., 2865 Plummers Cove Road, Jacksonville, Florida. On September 30, 1993, respondent's license became involuntary inactive and invalid due to non-renewal. It remained in that status until February 22, 1994, when respondent late-renewed her license as voluntary inactive. On October 20, 1993, Sandra Bryant, a broker/salesperson with Prudential Network Realty in Jacksonville, Florida, prepared a deposit receipt and purchase and sale agreement on behalf of David and Kathryn Pierce for a residence located at 12085 Dividing Oaks Trail, East, Jacksonville, Florida. The contract was presented to respondent, who was the listing agent for the sellers, Robert and Janet Kreis. The contract was eventually accepted on October 25, 1993, after a counteroffer was prepared and submitted by respondent. Respondent admits that she handled the transaction on behalf of the sellers and received a commission for her services. This occurred when she did not have an active license. On September 17, 1993, respondent solicited and obtained a listing agreement for a residence located at 938 West Satsuma Circle, Jacksonville, Florida. The property was listed in the multiple listing service maintained by the local board of realtors. Based on that listing, Sandra Mannis, a real estate salesperson with Prudential Network Realty in Jacksonville, Florida made an appointment to show the property. When Mannis showed the property on January 20, 1994, she executed a rejection of subagency and sent it to respondent, who signed the document as an agent for the seller. At that time, respondent did not hold an active license. Paragraph 10.b. of the complaint also alleges that on November 19, 1993, respondent "solicited and obtained a listing agreement from Thomas A. and Judith Ann Boyles for the sale of property located at 12343 Silent Brook Trail, N., Jacksonville, Florida." There is, however, no evidence to support this charge. At hearing, respondent acknowledged that her license lapsed in September 1993, but said this was inadvertent and unintentional. Later, after learning her license had not been renewed, she took 14 hours of courses in order to reactivate her license. Respondent pointed out that during an eighteen month period, the firm had $23 million in closings, and contended these transactions are the only "bad" sales out of that total. On August 16, 1994, respondent was reprimanded, placed on one year probation, fined $500 and ordered to take a 45 hour post-licensure education course for "culpable negligence; improper use of Realtor identification or designation; operat(ing) as a salesperson without being holder of a valid and current license as a salesperson; (and) advertis(ing) property or services which is misleading in form or content." Other than that proceeding, there is no evidence that she has been the subject of any other disciplinary action during her fourteen year tenure as a licensee. Finally, it is noted that neither the consumers or the public suffered harm by virtue of respondent's conduct.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner enter a final order finding respondent guilty of violating Section 475.42(1)(a), Florida Statutes, on two occasions and that her license be suspended for one year. DONE AND ENTERED this 14th day of August, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER 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 14th day of August, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-3952 Petitioner: Petitioner's proposed findings have generally been accepted, with certain modifications. COPIES FURNISHED: Janine B. Myrick, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Ms. Jennifer D. Jewels 110 Coral Fish Lane East Jupiter, Florida 33477 Darlene F. Keller, Director Division of Real Estate P. O. Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
The Issue Are Petitioners entitled to repayment of funds paid to the State Treasury as intangible taxes in relation to accounts receivable generated by sales made in the state of Florida? See Section 215.26, Florida Statutes.
Findings Of Fact Specialty Products & Insulation Co. (Specialty Products or Petitioner), A C & S, Inc. (A C & S or Petitioner), and Centin Corporation (Centin or Petitioner) are sibling companies owned by a common corporate parent company. Each of the three Petitioner companies is domiciled in a state other than Florida, and each has its headquarters in Pennsylvania. The Department is an agency of the state of Florida charged with the duty of administering Chapter 199, Florida Statutes, involving intangible taxes. Specialty Products, A C & S, and Centin remitted intangible taxes to the state of Florida for tax years 1993, 1994, and 1995. By letter dated June 17, 1996, Special Products and A C & S sought refunds from the Department of intangible taxes in the amounts of $19,848.01 and $4,796.41, respectively. By letter dated July 23, 1996, Centin also sought a refund from the Department of intangible taxes in the amount of $4,924.34. The Petitioners' refund applications argued that a refund of intangible taxes was due because the account receivable on which the taxes had been paid did not have a taxable situs in the state of Florida. On August 28, 1996, the Department issued Notices of Decision of Refund Denial to Specialty Products and A C & S, denying their refund applications in their entirety. On January 21, 1997, the Department issued its Notice of Decision of Refund Denial to Centin, also denying in its entirety Centin's application for refund. All three of the Petitioners timely challenged the Department's notices of decision by filing petitions for administrative hearings. Each of the petitions was originally assigned a separate case number by the Division of Administrative Hearings. By order dated January 16, 1997, Specialty Products and Insulation Co., v. Department of Revenue, (Case No. 96-5098) and A C & S, Inc., v. Department of Revenue, (Case No. 96-5099) were consolidated. By order dated January 23, 1998, Centin Corporation v. Department of Revenue, (Case No. 97-1115) was consolidated with the other two cases, as well. Specialty Products and Insulation, Co. Specialty Products is a building construction company operating in the state of Florida both as a contractor and by making sales of building materials to other contractors at retail. At all times relevant to this matter, Specialty Products was registered to do business as a non-domiciliary with the Florida Department of State, Division of Corporations. At all times relevant to this matter, Specialty Products was registered as a dealer with the Department of Revenue for purposes of collecting and remitting sales taxes. Although it is headquartered in Pennsylvania, at all times relevant to this matter, Specialty Products maintained a number of branch offices in the state of Florida through which it conducted business, including in Pompano Beach, Medley, Orlando, Tampa, and Fort Myers. At its various Florida branch offices, Specialty Products employed branch managers, operation managers, sales representatives, inside sales people, sales service clerks, office coordinators, warehousers and truck drivers. During the period from 1993 through 1995, Specialty Products made retail sales of its products from its Florida branch offices to Florida customers. During the period from 1993 through 1995, Specialty Products remitted intangible taxes to the state of Florida on the accounts receivable that were generated by its retail sales to its Florida customers. Specialty Products does not employ any credit managers at any of its Florida branch offices. Specialty Products' credit service, credit, cash application, and accounting departments are all located in Pennsylvania. When a customer seeks credit from Petitioner in order to purchase materials or services, the customer executes a credit application and contract for purchase at Petitioner's Florida branch office. With the exception of those described in paragraph 20, below, all applications for credit submitted by its Florida customers are forwarded by Petitioner's Florida branch offices to Petitioner's credit department in Pennsylvania for review and approval. Limited authority for granting credit (in an amount up to $5,000) to a Florida customer in an emergency is delegated to the branch manager located at each Florida branch office. All corporate bank accounts are located in Pennsylvania. All payments relating to sales made in the state of Florida are received and recorded in Pennsylvania, and all deposits are made into Petitioner's bank account in Pennsylvania. If a Florida customer sends a payment to a Florida branch office, this payment is forwarded to the Pennsylvania offices of the Petitioner to be recorded, processed, and deposited. All control procedures related to Specialty Products' accounts receivable are performed by employees located in Pennsylvania. No cash payments or bank accounts are maintained by Specialty Products in the state of Florida. A C & S, Inc. A C & S, Inc., is an insulation contracting company specializing in the thermal insulation of mechanical systems, and it operates in the state of Florida. At all times relevant to this matter, A C & S, Inc., was registered to do business as a non-domiciliary with the Florida Department of State, Division of Corporations. At all times relevant to this matter, A C & S, Inc., was registered as a dealer with the Department of Revenue for purposes of collecting and remitting sales taxes. Although it is headquartered in Pennsylvania, at all times relevant to this matter, A C & S, Inc., maintained at least one branch office in the state of Florida through which it conducted business. This branch office is located in Jacksonville, Florida. A C & S, Inc., also had a branch office in Merritt Island, Florida, until August 1995. At its Florida branch office, A C & S, Inc., employed a district manager, contract manager, construction superintendent, secretary, more than one sales representative, and an estimator. During the period from 1993 through 1995, A C & S, Inc., remitted intangible taxes to the state of Florida on the accounts receivable that were generated by its contracting sales to its Florida customers. A C & S, Inc., does not employ any credit managers at any of its Florida branch offices. A C & S, Inc.'s credit service, credit, cash application, and accounting departments are all located in Pennsylvania. When a customer seeks credit from Petitioner in order to purchase materials or services, the customer executes a credit application and contract for purchase at Petitioner's Florida branch office. With the exception of those described in paragraph 35, below, all applications for credit submitted by its Florida customers are forwarded by Petitioner's Florida branch offices to Petitioner's credit department in Pennsylvania for review and approval. Limited authority for granting credit (in an amount up to $5,000) to a Florida customer in an emergency is delegated to the branch manager located at each Florida branch office. All corporate bank accounts are located in Pennsylvania. All payments relating to sales made in the state of Florida are received and recorded in Pennsylvania, and all deposits are made into Petitioner's bank account in Pennsylvania. If a Florida customer sends a payment to a Florida branch office, this payment is forwarded to the Pennsylvania offices of the Petitioner to be recorded, processed, and deposited. All control procedures related to A C & S, Inc.'s accounts receivable are performed by employees located in Pennsylvania. No cash payments or bank accounts are maintained by A C & S, Inc., in the state of Florida. Centin Corporation Centin Corporation is an insulation contracting company operating in the state of Florida. At all times relevant to this matter, Centin Corporation was registered to do business as a non-domiciliary with the Florida Department of State, Division of Corporations. At all times relevant to this matter, Centin was registered as a dealer with the Department of Revenue for purposes of collecting and remitting sales taxes. Although it is headquartered in Pennsylvania, at all times relevant to this matter, Centin Corporation maintained at least one branch office in the state of Florida through which it conducted business. This branch office is located in Pompano Beach, Florida. At its Florida branch office, Centin employed a branch manager, construction superintendent, secretary, and more than one sales representative. During the period from 1993 through 1995, Centin remitted intangible taxes to the state of Florida on the accounts receivable that were generated by its contracting sales to its Florida customers. Centin does not employ any credit managers at any of its Florida branch offices. Centin's credit service, credit, cash application, and accounting departments are all located in Pennsylvania. When a customer seeks credit from Petitioner in order to purchase materials or services, the customer executes a credit application and contract for purchase at Petitioner's Florida branch office. With the exception of those described in paragraph 50, below, all applications for credit submitted by its Florida customers are forwarded by Petitioner's Florida branch offices to Petitioner's credit department in Pennsylvania for review and approval. Limited authority for granting credit (in an amount up to $5,000) to a Florida customer in an emergency is delegated to the branch manager located in each Florida branch office. All corporate bank accounts are located in Pennsylvania. All payments relating to sales made in the state of Florida are received and recorded in Pennsylvania, and all deposits are made into Petitioner's bank account in Pennsylvania. If a Florida customer sends a payment to a Florida branch office, this payment is forwarded to the Pennsylvania offices of the Petitioner to be recorded, processed, and deposited. All control procedures related to Centin's accounts receivable are performed by employees located in Pennsylvania. No cash payments or bank accounts are maintained by Centin in the state of Florida.
Recommendation Based upon the facts found in the conclusions of law reached, it is RECOMMENDED: That the requests for repayment of funds paid to the State Treasury as intangible personal property taxes for all years in question be denied. DONE AND ENTERED this 23rd day of March, 1998, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March, 1998. COPIES FURNISHED: Elizabeth Bradshaw, Esquire Jarrell L. Murchison, Esquire Office of Attorney General The Capitol, Tax Section Tallahassee, Florida 32399-1050 Paul R. Vidas, CPA Director Zelenkofske, Axelrod and Company, Inc. 101 West Avenue, Suite 300 Jenkintown, Pennsylvania 19046 Tom Roche Specialty Products and Insulation Company A C & S, Inc. Post Office Box 1548 Lancaster, Pennsylvania 17608 Tom Roche IREX Corporation Post Office Box 1548 Lancaster, Pennsylvania 17608 Linda Lettera, Esquire Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 Larry Fuchs Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
