The Issue By this petition, American Foam Rubber Distributors, Inc. (AFRD) and Edward Rothbard seek to have the Department of Revenue's assessment for documentary stamp tax and penalties on a transfer of real property by quit claim deed from Edward Rothbard to AFRD set aside. Petitioners contend that the transfer was without consideration and therefore nontaxable under sec. 201.02, F.S. , while Respondent contends that consideration flowed to the grantor by virtue of the grantee making the mortgage payments; and therefore, documentary tax stamps were due on the deed of conveyance computed on the amount of the mortgage at the time of transfer. One witness testified in behalf of Petitioners and four exhibits were admitted into evidence. From the pleadings, interrogatories and evidence presented at the hearing, the facts are largely undisputed and are as follows:
Findings Of Fact Edward Rothbard owns 100 percent of the outstanding stock of AFRD and he has been the sole shareholder and chief executive officer of the company since the company s inception in 1962. On March 9, 1973 the Seaboard Coastline Railroad (SCL) entered into an agreement with AFRD to sell a tract of land in Miami to the latter at an agreed price of $116,978.00 with certain conditions. The principal condition was that the grantee erect a warehouse on the property within one year from the date of the transfer. By deed dated August 23, 1973 the property was conveyed by SCL to Edward Rothbard rather than as per the contract. This deed was apparently delivered in late October, 1973 and the proper documentary stamp tax was paid on this transaction. Mr. Rothbard's testimony that the sole reason for taking the property in his name was to expedite the transaction was not rebutted. In exhibits 1 and 2 copies of letters from SCL dated September 21 and 26, 1973, SCL referred to Rothbard as nominee of AFRD to be grantee of the property. Exhibit 4, the title page of an interim title insurance binder, indicates that the title insurance policy on the property purchased from SCL was intended to be in the name of AFRD. In August, 1974 the building erected on the site for the use and benefit of AFRD was completed and Edward Rothbard mortgaged the property to secure a note in the amount of $550,000.00. His wife also executed the note and mortgage. AFRD occupied the building in September, 1975 and made all mortgage payments to the mortgagee including the first payment. By quitclaim deed executed February 26, 1975 Edward Rothbard conveyed the property here involved to AFRD subject to the mortgage. Minimum documentary tax stamps were placed on this deed. On February 26, 1975 the outstanding balance due on the mortgage was $543,969.59.
Findings Of Fact Respondent David R. Hutto d/b/a Neighborhood Discount, signed a contract with the WIC Program administered by the Petitioner Department of Health and Rehabilitative Services on December 27, 1982, effective for the calendar year January 1 through December 31, 1983. One of the general conditions in the contract specifies that Neighborhood Discount, as a vendor, may be disqualified from participation in the WIC Program if it is disqualified from participation in any United States Department of Agriculture, Food and Nutrition Service Program. Respondent, operating as Neighborhood Discount, was disqualified from participation in the Food Stamp Program of the United States Department of Agriculture, Food and Nutrition Service Program, beginning July 16, 1983, for a period of six months. The basis for the disqualification was the sale of fourteen ineligible items including beer, cigarettes and a pocket knife.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered dismissing the proceedings to suspend the Respondent's WIC Program participation. DONE and ENTERED this 9th day of March, 1984, in Tallahassee, Florida. SHARYN L. SMITH 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 9 day of March, 1984. COPIES FURNISHED: Anthony W. DeLuccia, Jr., Esquire Department of Health and Rehabilitative Services Post Office Box 06085 Fort Myers, Florida 33906 David R. Hutto Neighborhood Discount 2130 Ford Street Fort Myers, Florida 33001 Alicia Jacobs, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 =================================================================
Findings Of Fact The Petitioners herein, Lorisna Pierre, Dieuala St. Hilaire and St. Helene Joimelus, are Cuban/Haitian refugees who possess Immigration and Naturalization Service (INS), cards 1-94 which contain the "Cuban Haitian Entrant" stamp thereon. At some time subsequent to their entrance into the United States, the Petitioners applied for food stamps for themselves and their families and were determined to be ineligible. Therefore, the Petitioners are, and it is so stipulated by Respondent, substantially affected by the challenged rule which formed the basis for the denial of their applications. By letter dated September 16, 1985, Marshall E. Kelly, Program Staff Director for Economic Services within DHRS, issued a letter memorandum, Number 85-131, in which he recites that information received from the U.S. Department of Agriculture indicates that the "Cuban/Haitian Entrant" stamp which appears on certain INS 1-94 cards may be questionable and thereafter outlines certain procedures to be followed when that particular card bearing the questioned stamp is presented by an alien applying for food stamps. Thereafter, DHRS, on April 1, 1986, promulgated a new Chapter 10 to its Manual Number 165-6U, dealing with Food Stamp Certification which at subparagraph 10-12 defines illegal aliens as persons who have entered the United States unlawfully and declares these individuals to be ineligible for food stamps, and at subparagraph 10-18, defines and describes the various types of 1- 94 cards which may be presented as identification by aliens applying for food stamps. It goes further to display samples of the various cards in question and indicate which are acceptable and which are not as well as what benefits are attached to each. This chapter in question is of general applicability as it applies to all potential applicants for food stamps within the State of Florida about whom there is or may be some question regarding eligibility based on citizenship or alien status. This new version of Chapter 10 was, upon promulgation, distributed to all food stamp offices statewide for immediate implementation and is used by food stamp eligibility workers in determining the eligibility of applicants for food stamps. The chapter as currently written interprets the INS rules displaying, as was stated previously- samples of specific 1-94 cards and the variations thereof that exist, implements, explains and otherwise gives guidelines for the application of the food stamp regulation, and goes further than the actual U.S. Department of Agriculture regulation by suggesting methods of resolution regarding questionable information when determining the eligibility of an applicant. In shorts substantial additional information not contained in the basic Department of Agriculture food stamp regulation is contained within the provisions of Chapter 10 of the DHRS manual which is the basic guideline for the implementation of the food stamp regulation as it pertains to aliens within the State of Florida. In the preparation and implementation of this paragraphs DHRS did not give any public notice of what it intended to do or what it was proposing. No explanation of the purpose and effect of the proposal was publicized or was the specific legal authority authorizing the adoption of the proposals or a summary of the economic impact of the proposal noticed. In facto no notice was given to anyone who would be impacted by the proposal prior to its implementation. No publication was made of the proposed promulgation in the Florida Administrative Weekly or any other public news dissemination source nor was the general public including Petitioners, offered an opportunity to present evidence and/or argument on the issues under consideration.
The Issue The issue is whether Respondent engaged in an unlawful employment practice.
Findings Of Fact Food Mart is a corporation owned by Mr. Wiggins and his wife Kimberly. Food Mart operated a convenience store located in Mary Esther, Florida. Exxon gasoline was sold there, along with food and other items found in convenience stores. At the time of the hearing, Food Mart was no longer in operation due to competition from a nearby Wal-Mart and a Tom Thumb Store. No evidence was adduced that the operation ever employed as many as 15 people for each working day in each of 20 or more calendar weeks in the current or preceding calendar year. Mr. Conte is a person who claims to be about 78 years of age. He was first employed at Food Mart in October 2005. He worked as a clerk and cashier. He was hired by the manager, Melissa Cupp. Mr. Wiggins knew Mr. Conte because he maintained an office in the store where Mr. Conte worked and saw him on almost a daily basis. Mr. Wiggins did not know Mr. Conte's age. Mr. Wiggins considered Mr. Conte to be an "elderly gentleman." Mr. Wiggins treated Mr. Conte "like family," and hosted him at his home on Thanksgiving one year. Mr. Conte had many activities that were important to him. Mr. Wiggins and Ms. Cupp arranged Mr. Conte's schedule so that he could attend activities that included Sons of Italy meetings. Mr. Conte has written a book and held book signings, and his schedule was arranged to allow for those events. Mr. Wiggins never made disparaging remarks about Mr. Conte's age. It was Mr. Wiggins' practice to put birthday messages about his employees on the sign board beneath his Exxon sign. Mr. Conte requested that his name not go on the board on the occasion of his birthday and that request was honored. Norman Perry worked at the store during times pertinent. Mr. Conte told him that he was going to file a complaint with the Commission regarding what he believed to be discrimination based on age. Mr. Perry told no one about Mr. Conte's plans until after a complaint was filed with the Commission. After Mr. Perry learned of the complaint filed with the Commission, he told Mr. Wiggins that Mr. Conte had told him of his plans. By that time, Mr. Conte had abandoned his job. Mr. Perry is 66 years of age. No one ever ridiculed him with regard to his age, and he never heard anyone make any age-related comments to Mr. Conte. Alan Shaw worked at the store for five and one-half years, and those years encompassed all times pertinent to this case. Mr. Shaw is 72 years of age. No one ever ridiculed him with regard to his age, and he never heard anyone make any age-related comments to Mr. Conte. He believed that Mr. Conte "had a chip on his shoulder." Mr. Conte was treated like all other employees. Like other employees, he was given a raise after his sixth month of employment. He was eventually given a key to the premises. He abandoned his job without locking up one night in January 2007, and Mr. Wiggins had to go to the store to secure it. Subsequently, Mr. Conte was not put on the work schedule. He was not put on the work scheduled because he never revealed his availability to the manager. He never contacted Mr. Wiggins subsequent to his departure from the store on the night he walked out without locking the premises. Mr. Wiggins was unaware that Mr. Conte had planned to make a complaint to the Commission and, therefore, could not have retaliated against him.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petition of Mark R. Conte be dismissed. DONE AND ENTERED this 21st day of December, 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 21st day of December, 2007. COPIES FURNISHED: John Dennis Wiggins C. J. Food Marts, Inc. 2200 West Highway 98 Mary Esther, Florida 32569 Mark R. Conte 21 Kathleen Drive Mary Esther, Florida 32569 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 Respondent's teacher's certificate should be revoked or Respondent otherwise disciplined for alleged violation of Section 238.28(1), F.S., as set forth in the Petition herein, dated July 24, 1978. This proceeding arises from a petition filed by the Professional Practices Council, Department of Education, on July 24, 1978, that seeks to revoke or suspend the teaching certificate of Respondent Doris J. Black, an elementary school teacher in the public schools of Gadsden County, Florida. The petition alleges that Respondent issued a number of worthless checks during the period 1974-1978, and an instance of shoplifting in 1977. Respondent requested an administrative hearing on the charges on August 21, 1978. The petition was amended on August 31, 1978, to allege two additional bad-check charges occurring in 1978. Petitioner seeks to take disciplinary action against Respondent under Section 238.28(1), Florida Statutes, on the basis that her conduct constitutes gross immorality and personal conduct which reduces her effectiveness as an employee of the Gadsden County School Board, and under Section 231.09(2), Florida Statutes, in that she has not set a proper example for students. The petition further asserts that Respondent's conduct is sufficiently notorious to bring her and the education profession into public disgrace and disrespect. At the commencement of the hearing, Respondent admitted the allegations contained in the petition, as amended, but reserved the right to present extenuating and mitigating circumstances. Nevertheless, the parties agreed that evidence would be presented by both parties in support of their respective positions.
Findings Of Fact Respondent holds Florida Teaching Certificate No. 264506, Post Graduate, Rank II, valid through June 30, 1981, covering the area of elementary education and junior college. She has been employed in the public schools of Gadsden County at George Munroe Elementary School as an elementary teacher for eight and one-half years. (Petition, testimony of Boyd, Respondent) In 1969, Respondent opened a checking account at the Quincy State Bank, Quincy, Florida, Account No. 0123237100, in the name of Doris Black. Respondent also maintained a checking account at the Citizens Bank and Trust Company, Quincy, Florida, Account No. 115027, in the name of Doris Black during the years 1977-1978. On June 3, 1975, Respondent opened Checking Account No. 700666 in the name of Doris B. Tucker in the Lewis State Bank, Tallahassee, Florida. The account was opened with a deposit of $1,000, but became overdrawn on June 18, 1975, and was closed on August 28, 1975 for being in an overdrawn status whereby service charges of $182.51 had accrued. During the period June-August, 1975, the bank returned 37 checks for insufficient funds. Respondent continued writing checks on the closed account for approximately two years after it had been closed. (Testimony of Smith, Dawson, Hutchinson, Respondent, Petitioner's Exhibits 2-5) Pursuant to stipulation of the parties, as supported by Petitioner's Composite Exhibit 1, the following facts are found as to certain checks issued by Respondent on the above-cited checking accounts: On or about July 15, 1974, Doris J. Black presented a check in the amount of $14.55 to A. L. Wilson Company in Gadsden County, Florida, which the Respondent knew or should have known at the time of uttering such check that the maker did not have sufficient funds on deposit or credit with the Quincy State Bank to pay same on presentation. Doris J. Black was arrested on or about September 9, 1974, and posted a bond in the amount of $40.00. The bond was estreated on October 15, 1974. Between the period November 25, 1974, to January 4, 1975, Doris J. Black presented six checks in the amount of $41.75 to Kelley Junior Store of Gadsden County, Florida, which the Respondent knew or should have known at the time of uttering such checks that the maker did not have sufficient funds on deposit or credit with the Quincy State Bank to pay same upon presentation. On September 20, 1975, Doris J. Black was arrested and charged with six counts of issuing worthless checks; she posted a $50.00 bond which was estreated on November 3, 1975. On or about March 15, 1975, Doris J. Black presented a check in the amount of $33.02 to Rose's Supermarket in Gadsden County, Florida, which the Respondent knew or should have known at the time of uttering such check that the maker did not have sufficient funds on deposit or credit with the Quincy State Bank to pay same upon presentation. The check (#2) was returned marked insufficient funds and notices requesting payment were ignored. On or about June 14, 1975, Doris J. Black presented a check in the amount of $35.00 to the Class of `65 in Gadsden County, Florida, which the Respondent knew or should have known at the time of uttering such check that the maker did not have sufficient funds on deposit or credit with the Lewis State Bank of Tallahassee to pay same upon presentation. The check was returned marked insufficient funds and notices requesting payment were ignored. On or about August 2, 1975, Doris J. Black was arrested and charged with two counts of uttering worthless checks. The Respondent posted a $25.00 bond on each count. The bonds were estreated on September 2, 1975. On or about January 26, 1976, Doris J. Black presented a check in the amount of $45.65 to the Top Dollar Store in Gadsden County, Florida, which the Respondent knew or should have known at the time of uttering such check that the maker did not have sufficient funds on deposit or credit with the Lewis State Bank of Tallahassee to pay same upon presentation. The check (#150) was returned marked closed and notices requesting payment were ignored. Doris J. Black was arrested on February 19, 1976, and posted a bond in the amount of $40.00. The bond was estreated on March 1, 1976. On or about January 18, 1976, Doris J. Black presented a check in the amount of $21.45 to Discount Grocery in Gadsden County, Florida, which the Respondent knew or should have known at the time of uttering such check that the maker did not have sufficient funds on deposit or credit with the Lewis State Bank of Tallahassee to pay same upon presentation. The check (#149) was returned marked closed and notices requesting payment were ignored. Doris J. Black was arrested on March 2, 1976, and charged with uttering a worthless check. She posted a $40.00 bond which was estreated on April 12, 1976. On or about December 23, 1977, Doris J. Black presented a check in the amount of $29.04 to Top Dollar Store in Gadsden County, Florida, which the Respondent knew or should have known at the time of uttering such check that the maker did not have sufficient funds on deposit or credit with the Citizens Bank and Trust Company to pay same upon presentation. The check (#116) was returned marked insufficient funds and notices requesting payment were ignored. On or about December 29, 1977, Doris J. Black presented a check in the amount of $32.84 to Auto Supply in Gadsden County, Florida, which the Respondent knew or should have known at the time of uttering such check that the maker did not have sufficient funds on deposit or credit with the Citizens Bank and Trust Company to pay same upon presentation. The check (#117) was returned marked insufficient funds and notices requesting payment were ignored. On or about February 12, 1978, Doris J. Black was arrested and charged with two counts of uttering worthless checks. The respondent plead guilty on March 8, 1978, to both counts for which she was sentenced to one year's probation, ordered to make restitution and pay $75.00 court costs. On or about January 19, 1978, Doris J. Black presented a check in the amount of $12.48 to the Yankee Peddlar in Leon County, Florida, which the Respondent knew or should have known at the time of uttering such check that the maker did not have sufficient funds on deposit or credit with the Quincy State Bank to pay same upon presentation. The charge was dismissed on April 18, 1974, on $40.00 court costs and restitution. On or about January 13, 1975, Doris J. Black presented a check in the amount of $23.81 to the National Shirt Shop of Tallahassee, Florida, which the Respondent knew or should have known at the time of uttering such check that the maker did not have sufficient funds on deposit or credit with the Quincy State Bank to pay same upon presentation. The charge was dismissed on March 12, 1975, on $40.00 court costs and restitution. On or about November 18, 1974, Doris J. Black presented a check in the amount of $13.28 to Millers of Tallahassee, Florida, which the Respondent knew or should have known at the time of uttering such check that the maker did not have sufficient funds on deposit or credit with the Quincy State Bank to pay same upon presentation. The charge was dismissed on $40.00 court costs and restitution on May 28, 1975. On or about August 1, 1975, Doris J. Black presented a check in the amount of $14.00 to Ford's Shoe Store, Tallahassee, Florida, which the Respondent knew or should have known at the time of uttering such check that the maker did not have sufficient funds on deposit or credit with the Lewis State Bank of Tallahassee to pay same upon presentation Doris J. Black entered a plea of Nolo Contendere on November 26, 1975, and was found guilty. She was fined $15.00. On or about June 21, 1975, Doris J. Black presented a check in the amount of $42.66 to K-Mart Store of Tallahassee, Florida, which the Respondent knew or should have known at the time of uttering such check the maker did not have sufficient funds on deposit or credit with the Lewis State Bank of Tallahassee to pay same upon presentation. Doris J. Black entered a Plea of Nolo Contendere on November 26, 1975, and was found guilty. She was fined $15.00. On or about February 24, 1978, Doris J. Black presented a check in the amount of $93.49 to Standard Sales of Tallahassee, Florida, which the Respondent knew or should have known at the time of uttering such check that she did not have sufficient funds on deposit or credit with Citizens Bank and Trust Company of Quincy to pay same upon presentation. On or about March 3, 1978, Doris J. Black presented a check in the amount of $109.24 to Standard Sales of Tallahassee, Florida, which the Respondent knew or should have known at the time of uttering such check that she did not have sufficient funds on deposit or credit with the Citizens Bank and Trust Company of Quincy to pay same upon presentation. On August 17, 1977, Respondent took unpurchased merchandise, to wit: three bottles of Charlie Cologne, one bottle of Musk, one bottle of Mink and Pearls, one bottle of British Sterling, one bottle of Old Spice Musk, one Moon Drops Body Oil, one Vigorol 8, one Afrosheen, from the premises of a mercantile establishment, Skaggs Albertsons, located at 1925 North Monroe Street, Tallahassee, Florida, with the intent to convert said merchandise to personal use without paying the purchase price. She was apprehended by the assistant store manager after placing the above-described articles in a straw bag and leaving the store with the articles which were valued at approximately $48.00. She was subsequently arrested and, on November 30, 1977, entered a plea of Nolo Contendere to the charge of petty theft. Adjudication of guilt was withheld and she was placed on thirty days probation by the County Court for Leon County, Florida. At the hearing, Respondent admitted taking the merchandise at the suggestion of a friend of hers whom she met while she was in the store. (Stipulation, Testimony of Giberson, Respondent, Petitioner's Exhibit 1) In the opinion of the Principal of George W. Monroe Elementary School, the Superintendent of Schools of Gadsden County, and the Chairman of the Gadsden County School Board, Respondent's effectiveness as an employee of the Gadsden County school system had been reduced as a result of her past conduct. They were further of the opinion that her actions failed to set a proper example for students and was in violation of ethical standards of the teaching profession. The school principal has received approximately fifty telephone calls at the school in the past five years from Respondent's creditors and, on several occasions, individuals had come on to school premises to discuss delinquent obligations with the Respondent. (Testimony of Boyd, Greene, Bishop) In her testimony at the hearing, Respondent attributed her financial difficulties primarily to her ex-husband Matthew Tucker, whom she met in May, 1974, and married in October, 1974. She testified that she had given her paycheck to Tucker on various occasions to deposit in her bank account, but he failed to do so, thereby providing an insufficient balance when she wrote checks on the account. She maintained that he would come to the elementary school on payday and induce her to turn over her check to him, and that he would intercept her mail so that she was unable to become aware of the status of her account by mailed bank statements. She further testified that her husband had been violent on occasion and had assaulted her at which times she had called the local police for assistance. Although records of the Gadsden County Sheriff's Office and the Quincy Department of Public Safety failed to reveal that any such incidents had been reported, Respondent's testimony was corroborated in part by the testimony of a friend, Catherine James, who saw the Respondent on an unspecified occasion with bruises on her face. Mrs. James had loaned money to Respondent on several occasions and had given as reasons for the loans the fact that her husband had not deposited money or had taken money from her. Respondent's mother, Fanny Black, had loaned money to her and her husband on several occasions in the past. She was further aware that Respondent's husband frequented dog and race tracks where he gambled with money earned by the Respondent. Although the Respondent divorced Tucker in August, 1977, she later learned that she was pregnant and continued to live with him until April, 1978. (Testimony of Respondent, F. Black, James, Woodham, Beach)
Recommendation That the teaching certificate of Respondent be suspended for a period of one year, pursuant to Section 231.28, Florida Statutes. DONE and ENTERED this 1st day of December, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: David Holder, Esquire 110 North Magnolia Drive Tallahassee, Florida 32301 Luther C. Smith, Esquire Hugh Ingram, Administrator 121 1/2 South Monroe Street Professional Practices Council Tallahassee, Florida 32301 Department of Education Room 3, 318 W. Madison Street Tallahassee, Florida 32304
Findings Of Fact The area of dispute involves an alleged insufficiency of payment of documentary stamp tax and documentary surtax, and associated penalties for the insufficiencies, in transactions which are reflected in the Exhibit "C" to the Petition. The parties did not dispute the accuracy of the computation found in the Exhibit "C" to the petition, which was prepared by an investigator of the Respondent. The Petitioner contends that he is only responsible for paying the amount of documentary stamp tax and documentary surtax on the value of the real estate which was conveyed to the several grantees shown in Exhibit "C", as opposed to paying documentary stamp tax and documentary surtax on the value of the real estate, together with the value of the home which was built on that real estate. The facts show that the Petitioner has only paid documentary stamp tax and documentary surtax on the value of the real estate which he conveyed to the several grantees in Exhibit "C". In describing the arrangement between the Petitioner and his wife with the several grantees, The Petitioner and Respondent stipulated that Petitioner's Exhibit #1 accurately represents the documents involved in the initial contact between the Petitioner and the grantee. The Petitioner's Exhibit #1 is a composite exhibit which shows a blank sales contract and installment contract prepared by the Petitioner, together with a copy of an executed sales contract and installment contract in behalf of one of the several grantees. This document has as its function providing a rough estimate in behalf of the parties on the question of the cost of a lot and home, together with the attendant tangible property items that go with the sale. This document is subject to the special conditions of the Farmers Home Administration of the United States Department of Agriculture and is not binding on the grantee. The parties stipulated that Petitioner's Exhibit #2, a composite exhibit, was utilized in the case of the several grantees in this matter. The Petitioner's Exhibit #2 is a construction contract in blank form and a form as executed in behalf of one of the grantees. This construction contract is prepared by the Farmers Home Administration, United States Department of Agriculture. This construction contract identifies the price and contains a general description of the lot which was sold by the Petitioner, and is executed after the grantee has met with the Farmers Home Administration and been approved for a loan. Prior to the execution of the construction contract, the grantees came to the place of business of the Petitioner, which is an office in the back of his home. This meeting was not pursuant to any advertising other than communication by other parties who had sought the services of Jerry W. Thomas, who is a general contractor, certified by the Farmers Home Administration to build homes which the Farmers Home Administration is financing. The grantee would come to Mr. Thomas's office and discuss the construction of a home, and, in the case of the grantees in Petitioner's Exhibit "C", it is contemplated that that home would be built on a lot which Mr. Thomas and his wife owned and would convey to the grantee. In fact, in every instance reflected in Exhibit "C" the home was constructed by Mr. Thomas and was constructed on a lot which Mr. Thomas and his wife sold to the grantee. Before the construction contract was signed, it was necessary for the grantee to be approved for financing by the Farmers Home Administration. It was also necessary under the system that was utilized in financing the matters set forth in the Exhibit "C", that the Petitioner sign an irrevocable option to purchase realty, which was executed in favor of the several grantees. A replica of this form is made a part of the record as Petitioner's Exhibit #4. The meaning of the option to purchase real property, was that the Petitioner stated a price for his real estate and he was bound by that price and must sell the real estate to the grantee, whether or not the Petitioner ever built a home on the real estate. This option to purchase real property was a precondition to the overall financing scheme which was utilized by the Farmers Home Administration. This particular method was identified as a contract method. Should the appraisal of the property as conducted by the Farmers Home Administration indicate that the asking price stated in the option to purchase real property was in excess of the appraised value, then the Petitioner could have refused to sell. In the case of all the grantees found in Exhibit "C", the price stated for the real property was acceptable and the contract was consummated. The technique for executing the contract conditions once the option to purchase real property had been completed and accepted was as follows: A closing was held at which point a warranty deed was executed by the Petitioner and his wife in favor of the several grantees. Payment for the real estate was made from a supervised account in behalf of the several grantees. The warranty deed, which form is shown in Petitioner's Exhibit #3 and is stipulated as being the form utilized in all conveyances alluded to in Petitioner's Exhibit "C" was then recorded. At the moment of recording, documentary stamp tax and documentary surtax was paid on the amount of the real property only. On the day that the warranty deed was recorded, a mortgage and note was also recorded in favor of the Farmers Home Administration for the amount financed by the grantees. Subsequent to the closing alluded to in paragraph one and two of this explanation, the grantee, at his option, had the home constructed. The option referred to, pertains to the ability to hire any contractor that he desired to construct the home on the property which had been conveyed to him. The Petitioner would not have had the right to oppose the grantees' choice of contractor. Had the several grantees desired to choose other contractors, then the Petitioner would have been required to sell his real estate at the option price and that would have concluded the contract. In all cases shown in the Exhibit "C" to the petition, Mr. Thomas not only conveyed the property but constructed the homes on the property as the chosen contractor and was paid out of the supervised account through scheduled payments and a final disbursement made at the 100 percent completion point. Subsequent to the time that the warranty deed conveying the lot, together with the mortgage and note, were recorded, an audit was performed by the Respondent and an assessment placed for the additional value reflected in the the cost of constructing the home. This assessment was for the unpaid documentary stamp tax, documentary surtax and penalties associated with those deficiency assessments.
Findings Of Fact At all times material hereto, Respondent Norrine W. Williams was employed by Petitioner as a teacher aide. She worked at Amelia Earhart Elementary School, a center for special education, for about eight years, including the 1986-1987 school year. While employed at Amelia Earhart, Respondent had continuing financial problems, which caused bill collectors to call and visit the school site on a daily basis. As a result, the work of the school's office staff was disrupted, many people became aware of Respondent's financial problems, and Respondent and her bill collectors were discussed throughout the school. On March 30, 1987, Respondent was arrested in the principal's office and taken into custody by United States Secret Service agents. She was charged with credit card offences. On April 14, 1987, Respondent appeared at a Piggly Wiggly store and attempted to cash a check in the name of Flora Linton. The store manager recognized her as the person who had cashed two previous checks in that name, which checks had been returned to the store because they had been written on a closed account. The store manager summoned a Miami Springs police officer, and Respondent went to the police station with the police officer at his request to discuss the matter. She was joined by a male and by her 76 year-old aunt Flora Linton. During the questioning at the police station, the police officer determined that Flora Linton did not know that her niece had stolen checks from her and had been forging her name to those checks and cashing them for her own personal gain. Respondent admitted to having issued the two previous worthless checks in the amounts of $125.75 and $84.90. She was not charged with a crime on the condition that she make full restitution to Piggly Wiggly. She did so approximately one week later. Several months later the Piggly Wiggly store owner was present in his new store on the other side of town when Respondent attempted to cash a check at that store. The check she was attempting to cash was another of the Flora Linton stolen checks, and she had again forged her aunt's name to that check written on a closed account. When approached by the store owner, she recognized him and turned in her check cashing card and walked away. While Respondent was at the Miami Springs police station on April 14, 1987, a routine background check was run regarding her. It was discovered that there was an outstanding bench warrant for her, and she was taken to the Dade County jail. On April 20, 1987, Respondent was arrested a second time at the school site and taken into custody by law enforcement officers. She admitted that she had in fact fraudulently obtained a Nieman-Marcus credit card by providing fictitious information on the credit card application. She had subsequently charged $972 worth of merchandise at the Nieman-Marcus store using the fraudulently-obtained credit card. She was charged with second degree grand theft, a felony offense, for fraudulently obtaining a Nieman-Marcus department store charge card. She advised the arresting officers that she had no intention of making restitution to Nieman-Marcus. As was the case with Respondent's first arrest at the school site on March 30, 1987, her second arrest on April 20, was observed by office personnel. In the process of being escorted out of the building her second arrest was evident to teachers and students in the areas outside of the principal's office. Respondent plead "no contest" to the criminal charges regarding the fraudulent credit card. She was sentenced to probation and was ordered by the Court to make restitution to Nieman-Marcus in the sum of $972. As of the time of the formal hearing in this cause, the deadline for making restitution had passed, and restitution had still not been made. Although Respondent appeared for the formal hearing in this cause, she left as the proceedings commenced and did not return. Had she remained she would have been arrested by the police officers who testified in this cause since there was still pending an open felony warrant for probation violation for previous worthless checks. While shopping at the Grand Union, formerly the Miami Springs Piggly Wiggly, the principal of Amelia Earhart saw Respondent's name scotch taped to the cash register with a notice advising the cashiers not to cash checks for that person. That Grand Union is located near Amelia Earhart Elementary School. The school board rules concerning employee conduct are contained in a staff handbook. Teacher and teacher aides have staff meetings with administrative teams to review the rules and policies of the school board. Respondent attended those meetings and was specifically advised of the school board rules. Respondent's conduct concerning the issuing of forged and worthless checks, fraudulently obtaining a credit card, having difficulties with bill collectors at the school site, having been adjudicated guilty of grand theft, and failing to pay court costs and make restitution as ordered by the court, constitutes conduct unbecoming a school board employee and misconduct in office in violation of school board rules 6Gx13-4A- 1.21 and 6Gx13-4C-1.01.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT: A final order be entered affirming the Respondent's suspension without pay and dismissing Respondent from her employment with the School Board of Dade County. DONE and RECOMMENDED this 17th day of March, 1989, in 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 17th day of March, 1989. COPIES FURNISHED: Jaime Claudio Bovell, Esquire 370 Minorca Avenue Coral Gables, Florida 33134 William DuFresne, Esquire 2929 S.W. Third Avenue Suite One Miami, Florida 33129 Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools Office of Professional Standards 1444 Biscayne Boulevard, Suite 215 Miami, Florida 33132 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399
The Issue The issues in this case are whether Respondent committed an unlawful employment practice in violation of section 70-53, Pinellas County Code, by terminating Petitioner's employment allegedly because of her disability; and, if so, what is the appropriate remedy.
Findings Of Fact Admitted Facts Per Joint Pre-hearing Stipulation Sure-Tek is an employer as defined by section 70-51, Pinellas County Code. Ms. Turner was employed by Sure-Tek on January 18, 2010. Her employment was terminated by Sure-Tek on February 22, 2010. Prior to her employment, Ms. Turner was diagnosed with diabetes insipidus. Ms. Turner's diabetes did not prevent her from performing the essential functions of her job, with reasonable accommodations. Lewis "Mitch" Currie is the owner of Sure-Tek, and he was Ms. Turner's direct supervisor. Mr. Currie made the decision to terminate Ms. Turner's employment. Additional Findings of Fact Based on the credibility and demeanor of the witnesses and the greater weight of the competent substantial evidence presented at the final hearing, the following additional facts are found. Diabetes Insipidus Ms. Turner developed diabetes insipidus four years ago as a result of brain surgery to remove a tumor on her pituitary gland. She described the condition as a very rare form of diabetes that is a sodium/electrolyte disorder, instead of the more common forms of diabetes that are insulin/blood sugar disorders. She testified that her understanding of her condition is that it is essentially permanent--the underlying cause of her condition will never go away, and she will eventually need brain surgery again. Ms. Turner's condition requires constant monitoring, but instead of measuring blood sugar via blood tests, Ms. Turner's condition involves monitoring and maintaining a balance of hydration, electrolytes, and output (urination), while taking prescription medication to protect against extreme imbalance that could result in her urinating herself to death. The line where the balance should be drawn at any given point is variable and difficult to predict, so the monitoring and adjustment process is a matter of trial and error, to some degree. The balance that Ms. Turner's condition requires is thrown off by temperature extremes, so she cannot work or spend much recreational time outside when it is hot or cold. She can work in an indoor office setting, provided that she takes extra steps to regulate the temperature, such as using space heaters to warm up a cool space. Ms. Turner must also be permitted to have ready access to plenty of drinking water at all times, and she has gotten used to bringing bottled water with her to ensure an appropriate supply. Her condition can cause her to urinate frequently, and so she also must have ready access to a restroom. Ms. Turner also testified that her condition requires her to maintain a strict diet, because many foods and drinks will throw off the balance she must maintain. For example, Ms. Turner must avoid sodium, butter and certain other fats, meats, and other ingredients. Since some of the ingredients she must avoid, such as sodium, are difficult to control and monitor when eating out, she does not often go out to eat in restaurants and no longer goes out to dinner with friends. Ms. Turner has gotten very sick when she has unknowingly ingested too much sodium or when the ingredients she must avoid have secretly been in her food. Ms. Turner has learned the hard way about some of the things she cannot tolerate. For example, she learned that she cannot drink alcohol when, after the onset of her diabetes insipidus, she collapsed after drinking a small amount of alcohol at a party and had to be hospitalized. By sticking to a careful regimen of monitoring and adjustment, by adhering to all of the hydration and dietary restrictions she has learned are necessary from her experience, limiting her social activities (rarely eating out, limiting outdoor activities), controlling the temperature of her settings and ensuring constant access to water and bathrooms, Ms. Turner has been able to deal with her condition. In a lay person's sense, Ms. Turner does not really consider herself to be disabled, although she tends to think in comparative terms, noting that there are persons with severe debilitating conditions that are much worse off than she is. Ms. Turner testified that her diabetes disorder also has impaired her immunity system, making her more prone to sickness. No medical testimony was offered to verify this opinion. Somewhat inconsistently, Ms. Turner later testified that when she got sick with a cold, which evolved into bronchitis, that episode of sickness was unrelated to her diabetes condition. Indeed, Ms. Turner's opinion that her sickness was not related to her diabetes condition was confirmed by her testimony that she has gotten colds that turned into bronchitis every winter for many years, pre-dating the onset of her diabetes insipidus. Employment at Sure-Tek Sure-Tek is in the business of powder coating, which is an anti-corrosive industrial coating applied to metal and other objects. The building in which Sure-Tek carries out its business has two main areas: administrative office space and warehouse space. The powder coating is done in the warehouse part of the building, in a room with two ovens that operate at 400+ degrees. The room with the ovens is very hot, often 120 degrees or more. Ms. Turner was hired as a bookkeeper/receptionist/ office assistant, beginning on January 18, 2010. She was the only administrative/office worker at Sure-Tek. The other approximately 10 employees worked in the warehouse, carrying out the powder-coating business. Mr. Currie, the owner/president, spent about half of his time in his office and the other half in the warehouse. Ms. Turner had an office with a door that she often kept closed because of her sensitivity to hot and cold temperatures; it was easier to regulate the temperature of her office space if the door was closed. Ms. Turner found her office to be very cold, so she kept two space heaters going. She brought her own space heater to use at the office to accommodate her need to modify the temperature of her space. Brandon Bean, another employee at Sure-Tek, did not like having to go into Ms. Turner's office, finding it unpleasantly warm--he described it as quite "toasty." When Ms. Turner was hired, Mr. Bean had been working at Sure-Tek for about five months. Mr. Bean had been in jail before he was hired by Sure-Tek, having served a sentence for a felony conviction related to firearms. During the time that Ms. Turner was an employee at Sure-Tek, Mr. Bean's position was referred to as floor supervisor or warehouse foreman. Mr. Bean testified that he was promoted to general manager one year ago, which would have been a few months after Ms. Turner was fired, while the Pinellas OHR was conducting its investigation of Ms. Turner's discrimination complaint. Ms. Turner was expected to work 40 hours per week, and she testified that she did so, not missing a day of work. No evidence was presented that Ms. Turner did not work the hours she was expected to work each day and week of her employment (with the exception of leaving sick two hours early on the last Friday of her employment, discussed below). She rarely took lunch. She was expected to be available during business hours to answer the phones and was expected to take a portable phone with her when she stepped away from her desk, even when she went to the bathroom. When she went to the bathroom with a portable phone, she was expected to answer the phone, even then, if a call came in. At her interview, Ms. Turner told Mr. Currie that she had substantial bookkeeping experience and knew how to use QuickBooks software. No credible evidence was presented to prove that her representations were not true. When Ms. Turner began working for Sure-Tek, she received no training or orientation from someone who knew the office systems, protocols, or electronic files. Mr. Currie told Ms. Turner verbally what her duties were and how things were done, but he did not actually train her. For him, it was good enough that she said she knew QuickBooks. Besides, as he admitted at the hearing, he really did not know the computer systems himself; he "doesn't use the computer much." Ms. Turner discovered that there were two QuickBook systems, which were password-protected. Ms. Turner said that it took two days for her to track down the passwords. Then, she had quite the time sorting out the accounts set up in the two different systems--she described the state of the computer accounting as "a mess" when she started. She asked Mr. Currie if she could merge the two systems, and he told her to go ahead. At the hearing, Mr. Currie acknowledged that there were two QuickBook systems, an older version and a new 2010 version. He testified that his only office help after getting the updated QuickBooks software consisted of a series of three different temporary employees sent over by a "temp" agency. He said that these temporary employees were awful; nonetheless, he tasked them with setting up the new system with information brought over from the old system. It should come as no surprise, then, that Ms. Turner found many problems and errors, such as entries of very recent information in the old system that should have been in the new system. Ms. Turner testified that she discovered quite a few late and unpaid bills when she started. She would bring these items to Mr. Currie's attention, and he would tell her whether the bills could be paid or not. Mr. Currie's permission was required before Ms. Turner could pay any bills, and sometimes Mr. Currie would refuse to authorize payment for bills that were due or past due. Mr. Currie confirmed this at hearing; he testified that he "absolutely" had to refuse permission to pay bills at times, because there was not always enough money to pay all of the bills. At other times, he would tell Ms. Turner to just pay part of a bill that was due. Mr. Currie testified that for the first two weeks of Ms. Turner's employment at Sure-Tek, she seemed to be on track and was trying very hard. Ms. Turner noted that Mr. Currie praised her work during those first two weeks, and he did not deny this. However, according to Mr. Currie, after about two weeks, Ms. Turner's performance went "downhill." Mr. Currie did not present any credible evidence to prove this demarcation point. However, the evidence did establish that the two-week point was significant for a different reason. Mr. Currie had lunch with Ms. Turner after her first two weeks. In their lunchtime conversation, Mr. Currie told Ms. Turner that his wife suffered from a thyroid problem, which he said sometimes made her off-balance. Ms. Turner responded by telling Mr. Currie that she had diabetes insipidus. Mr. Currie had no apparent immediate reaction to this disclosure. However, at some point thereafter, Mr. Currie told Ms. Turner that he never would have hired her if he had known she had diabetes.1/ When Ms. Turner had a cold throughout the week of February 15, 2010, the two had an awkward encounter on Friday afternoon, February 19, 2010. As Ms. Turner described it, by mid-afternoon on Friday, after sticking it out at work all week while not feeling well, she asked Mr. Currie if she could go home two hours early, because she had finished her Friday task of getting the information in to the payroll service and thought it would be all right if she left for the day. Mr. Currie got very angry and said that her diabetes was always making her sick. She tried to tell him that she had a cold and was on antibiotics (to stop the apparent evolution of her cold to bronchitis), and it was unrelated to her diabetes. But Mr. Currie just waved his hands and yelled at her to "just go!" She thought he meant that she should go home as she had asked, although she knew he was not happy about it. So she left. Mr. Currie told a very different version of Friday, February 19, 2010. Mr. Currie denied making any statements about Ms. Turner's diabetes, then or ever. Mr. Currie also denied having any conversation with Ms. Turner that afternoon about whether Ms. Turner could go home two hours early because she had a cold. However, Mr. Currie testified that he noticed that Ms. Turner was sub-par that day. As Mr. Currie put it, that day Ms. Turner "seemed a little sicker than she appeared to be normally." Mr. Currie then testified that Mr. Bean was looking for Ms. Turner in the middle of the afternoon that Friday, February 19, 2010. He asked Mr. Currie where she was, and Mr. Currie said he did not know. Then, according to Mr. Currie, after they spent about 45 minutes looking for Ms. Turner, Mr. Currie decided that Ms. Turner must have quit, leaving without telling anyone, never to return. At that point, Mr. Currie instructed Mr. Bean to place an ad on Craigslist for a replacement for Ms. Turner. Mr. Currie's version of the events on Friday, February 19, 2010, is not credible, particularly when coupled with Mr. Currie's inconsistent version of the events on Monday, February 22, 2010; Ms. Turner's version is accepted as the more credible account of events. On Monday, February 22, 2010, Ms. Turner went to work that morning, only to find a number of telephone messages from applicants for the Craigslist ad and resumes submitted by individuals requesting an interview for the bookkeeper position. By mid-morning, Mr. Currie called Ms. Turner into his office. According to Ms. Turner, Mr. Currie said that it was not working out with her diabetes. When Ms. Turner tried again to tell him that her two-hour break Friday afternoon was because of a cold, and not diabetes, Mr. Currie then added that that was not the only reason he was letting her go--that she had bankrupted his company.2/ Then, according to Ms. Turner, Mr. Currie asked her to stay to train her replacement, which she refused to do. Mr. Currie does not deny that he told Ms. Turner she was terminated, but he denies any reference to her diabetes, claiming it was all because of her performance. Mr. Currie did not attempt to reconcile this version in which he admittedly intended to fire Ms. Turner, with his inconsistent description of the previous Friday, when he claimed that the only reason he placed the Craigslist ad was because he believed that Ms. Turner had voluntarily quit, and he had no choice but to start looking for a replacement. In an effort to show that he was thoughtful and accommodating of Ms. Turner's health condition and needs, Mr. Currie testified that a few days before Ms. Turner was fired, she had told him that she would be needing another surgery. His response was that he would hire a temporary employee to cover for her so she could have the time off for her surgery. But this testimony tends to underscore that as of just a few days before Ms. Turner was fired, Mr. Currie gave no signs to Ms. Turner that there were any performance-related issues that would put her job in jeopardy. Twisting back toward the different version of events that suggested there were mounting problems with Ms. Turner's performance, Mr. Currie claimed to have talked with Ms. Turner on several different occasions throughout her employment about her performance problems. As noted above, Ms. Turner testified, credibly, that for the first few weeks, Mr. Currie said she was doing a good job. After that, Ms. Turner acknowledged a single comment by Mr. Currie that she did not know how to run reports right. Ms. Turner also acknowledged that Mr. Bean called one meeting with Mr. Currie and Ms. Turner to complain that Ms. Turner was unfriendly to him and did not respond quickly enough to a request he made for information. Ms. Turner explained her run-in with Mr. Bean, stating that she was on the phone when he walked into her office and started talking to her as if she was not on the phone. She said that he got quite huffy when she asked him to wait a minute while she finished the call. Mr. Currie claimed that after the first few weeks, he started noticing that bills were going unpaid, and he talked to Ms. Turner about it. Ms. Turner's version, as noted above, was that there were overdue bills when she started, and she called them to Mr. Currie's attention; however, as Mr. Currie admitted, he sometimes refused permission to pay those bills and sometimes told her to just pay part of the bills, because he did not have enough money. No credible evidence was presented that Ms. Turner was to blame for bills going unpaid, or only partially paid, during her time of employment. Instead, the evidence showed that before, during, and after Ms. Turner's employment, bills sometimes went unpaid or only partially paid, admittedly, at Mr. Currie's direction. While Mr. Currie denied that it made a difference to him when Ms. Turner told him about her diabetes at that two-week lunch, the more credible evidence is that Mr. Currie's attitude towards Ms. Turner as an employee changed at that two-week mark. The more credible evidence established that Mr. Currie had a knee-jerk reaction upon learning that Ms. Turner had "diabetes" to jump to the conclusion that she had a disability that rendered her substantially and significantly impaired in the major life activity of working. He decided, without any real basis, that she was incapable of working in the one type of job where she thought she would be able to function with the accommodations she herself supplied. The credible evidence establishes that Mr. Currie fired Ms. Turner because of his perception of her disability. Mr. Currie's testimony included the occasional revealing slips that were much more telling than his steadfast (but not credible) denial of any discrimination. As noted, Mr. Currie testified that he found Ms. Turner to be a good employee who was trying very hard for the first two weeks, but that her work slipped and went downhill after the first two weeks. Yet he presented no evidence to prove what he observed that showed such a downhill slip in her performance after two weeks. Instead, the evidence and testimony, considering the credibility and demeanor of the witnesses, painted the picture that it was Ms. Turner's disclosure of having diabetes, and that alone, caused Ms. Turner's downhill plummet in Mr. Currie's eyes. That Mr. Currie perceived Petitioner to be disabled and perceived Petitioner's disability to substantially affect her ability to do her job, was evident from Mr. Currie's slip that on her last Friday of work, Petitioner seemed "sub-par," which he characterized as "a little sicker than she appeared to be normally." Thus, Mr. Currie perceived Petitioner as "normally" sick. That perception came despite the unrebutted testimony by Petitioner that she did not miss any work time based on illness or complication from her diabetes until she asked to leave two hours early on Friday, February 19, 2010. Ms. Turner's testimony regarding Mr. Currie's discriminatory comments was corroborated by the testimony of Tanya Rodriguez, who was hired in response to the Craigslist ad to replace Ms. Turner. Ms. Rodriguez did not know Ms. Turner until she met her, when Ms. Turner came in to Sure-Tek to pick up her last paycheck after she had been fired. Ms. Rodriguez provided information to the Pinellas OHR in its investigation of Ms. Turner's complaint when Ms. Rodriguez was still employed by SureTek. Ms. Rodriguez was then fired, allegedly for performance problems.3/ Ms. Rodriguez convincingly testified at the final hearing that when she was interviewed by Mr. Currie to replace Ms. Turner, Mr. Currie asked her, point-blank, whether she had diabetes. He told her that the last person he hired with diabetes was a good for nothing S.O.B; that he never would have hired her if he knew she had diabetes, because she was always sick; and that he would never hire another person with diabetes. Ms. Rodriguez told Mr. Currie that she did not have diabetes, even though she actually was diabetic.4/ After Mr. Currie asked his question about diabetes, he proceeded to ask Ms. Rodriguez whether she had thyroid problems (like his wife, whom he told Ms. Turner was sometimes off-balance as a result). Ms. Rodriguez also confirmed Ms. Turner's testimony that there were deep-seated problems remaining in the dual QuickBook systems. Although Respondent attempted to characterize this testimony as evidence of Ms. Turner's poor performance, Ms. Rodriguez made it very clear that the problems imbedded in the dual systems were from a much longer time span--up to one year--and could not have been the result of errors made in the one month preceding Ms. Rodriguez' employment at Sure-Tek. Instead, Ms. Rodriguez saw signs of efforts to merge the two systems, but noted that there would not have been enough time in one month to completely merge the systems and fix all of the imbedded problems. She testified that she also tried her best to make progress, but she was only at Sure-Tek for a few short weeks. Ms. Rodriguez' testimony was credible and is accepted.5/ Her testimony strongly corroborates Ms. Turner's testimony of Mr. Currie's direct discriminatory statements, including the first words out of his mouth when he fired her--that it was not going to work out, with her diabetes. At hearing, Respondent presented evidence offered in an attempt to demonstrate that Ms. Turner's job performance was not good and was the legitimate reason for her termination. Mr. Currie testified that a Progress Energy bill due on February 18, 2010, went unpaid. Mr. Currie blamed this on Ms. Turner forgetting to pay the bill, but that was not established. Ms. Turner and her successor, Ms. Rodriguez, both testified that as bookkeepers for Respondent, they did not have the authority to pay bills. Instead, they were required to review the bills with Mr. Currie, and each week he would tell them which bills could be paid, which bills should be partially paid, and which bills should be ignored. Mr. Currie corroborated this testimony, admitting that he "absolutely" had to refuse permission to pay bills sometimes. The short billing history Respondent put in evidence for Progress Energy showed, for example, that the month's charges due on June 18, 2009, went unpaid until the following month and that was well before Petitioner began her employment. Regardless of whether the Progress Energy bill due on February 18, 2010, was unpaid because of Ms. Turner's fault or Mr. Currie's instruction, the notification of this unpaid bill was first mailed out to Mr. Currie on Thursday, February 18, 2010. Thus, this could not have been an example of one of the bills allegedly going unpaid that Mr. Currie claimed to have begun noticing after Ms. Turner had been working at Sure-Tek for two weeks. Indeed, there is no evidence that Mr. Currie was even aware of this late notice, mailed on Thursday, by the next afternoon when he had an ad placed for Ms. Turner's replacement or by the following Monday morning, when he fired Ms. Turner. Mr. Currie also testified that Ms. Turner was to blame for an increase in his Progress Energy utility deposit from $800 to $2,500.00, but no evidence was presented to prove that there was an increase in SureTek's required utility deposit at all, or, if so, when any such increase occurred. To the contrary, the Progress Energy statement for February 2010, covering the billing period of January 27, 2010, through February 24, 2010 (very close to the time span of Ms. Turner's employment), shows that the deposit amount already being held for that account at that time was $2,680. Further, the Progress Energy billing history summary shows that the prior month's bill, due on January 21, 2010, had been paid. Thus, the evidence refutes Mr. Currie's suggestion that there was an increase in the deposit requirement because of Ms. Turner's failure to pay the bills. Instead, it appears that if the deposit requirement had been increased, the increase occurred before January 2010, based on billing history that predated Ms. Turner's employment. A similar story was told with respect to the City of Pinellas Park water bills. Mr. Currie blamed Ms. Turner for not paying a bill from January 15, 2010, even though that bill was transmitted online before Ms. Turner was hired. Both before and after Ms. Turner was employed, there was a billing history for the water bills that showed occasional missed payments and occasional partial payments of the total amount due, as well as the imposition of a penalty charge for late payment. The January 15, 2010, bill that was not paid when due on February 10, 2010, resulted in a $34.10 penalty charge, which may have been Ms. Turner's fault. However, given Mr. Currie's admission that he controlled payment of bills and sometimes refused permission to pay bills when due, the evidence is insufficient to show that Ms. Turner was to blame for the bill not being paid while she was employed at Sure-Tek or for the late charge. Mr. Currie also presented evidence regarding PESCO gas bills. A summary of PESCO charges and payments was presented with a January charge highlighted. Next to the January charge was a handwritten note, "DID NOT PAY PESCO BILL." The only problem with this evidence is that the summary is for charges and payments in 2009, not 2010. Thus, whoever did not pay the PESCO bill in January 2009, it could not have been Ms. Turner. Mr. Currie also presented a separate PESCO invoice dated March 4, 2010, which showed that the balance due as of the prior month's bill, February 4, 2010, was $4,609.13. This balance was reduced by a $1,791.73 payment made February 10, 2010, presumably by Ms. Turner during her time of employment. Mr. Currie admitted at the final hearing that PESCO accepted partial payments at that time, and he admitted that he probably instructed Ms. Turner to pay only part of the February bill. It was not shown that there were any billing or payment problems with this account or that Ms. Turner's performance can be faulted at all. Next came the TECO People's Gas bill. On a statement dated February 12, 2010, a "previous balance" of $1,589.88 was carried forward from the prior month's bill. Sometime between the prior statement issued in mid-January 2010, and the February 12, 2010, statement, a partial payment was made and credited in the amount of $497.68, leaving $1,092.20 still due from the January bill. Because the remaining balance was considered "past due" on February 7, 2010, a late payment fee of $16.38 was added to the February statement. Mr. Currie acknowledged that the January 2010 bill was partially paid while Ms. Turner was employed at Sure-Tek. Once again, Mr. Currie admitted that it was "entirely possible" that he was the one who instructed Ms. Turner to pay what Respondent could afford to pay--the partial payment of $497.68--because he did not have the money to pay the entire bill. Mr. Currie's own testimony and the bill itself refute his claim that Ms. Turner overlooked or forgot to pay the January bill. In addition, Mr. Currie's testimony corroborated the testimony of Ms. Turner and Ms. Rodriguez regarding the tight control Mr. Currie kept on which bills were paid or partially paid. This evidence does not establish that Ms. Turner's performance can be faulted for the partial payment of the January TECO People's Gas bill or the late fee charged on the remainder that was not paid when due. TECO People's Gas also sent a "final notice" on February 11, 2010, informing Sure-Tek that it had to pay the remaining past due balance of $1,092.20 right away, or else its service would be terminated on February 19, 2010. A copy of the final notice in evidence has handwriting on it, indicating "pay" in one handwriting style and "paid" in a different handwriting style. Mr. Currie did not testify that his TECO People's Gas service was terminated. Thus, the reasonable inference is that Mr. Currie authorized Ms. Turner to pay the rest of the January balance upon receipt of the final notice, and she did so before February 19, 2010. Mr. Currie's final piece of documentary evidence to support his claim of mounting performance problems was a notice from the Florida Department of State, Division of Corporations, dated February 17, 2010 (the Wednesday of Ms. Turner's last week of employment). This notice informed Sure-Tek that its corporate annual report was due and should be filed with the filing fee by May 1, 2010, to avoid a late fee. A second notice dated June 16, 2010, imposed the late fee and notified Sure-Tek that the annual report, filing fee, and late fee had to be submitted by September 17, 2010, to avoid administrative dissolution. Despite the fact that Ms. Turner was fired a few days after the first notice and a late fee could have been avoided if the report and filing fee were submitted at any time in the approximately 70 days remaining after Ms. Turner was fired, Mr. Currie blamed the failure to meet the May 1, 2010, deadline on Ms. Turner. That attempted blame is not warranted and, instead, tends to suggest that Mr. Currie was looking to find things to blame on Ms. Turner after she was fired. Mr. Currie testified that he believed Ms. Turner did not know how to use QuickBooks, and, as a result, did not follow his instructions to enter bills into QuickBooks as soon as they were received. However, Mr. Currie offered no credible, competent evidence of this. Mr. Currie admitted that he had no personal knowledge regarding what was or was not entered into QuickBooks by Ms. Turner or how Ms. Turner performed using QuickBooks, and no other evidence was offered to prove Mr. Currie's unsubstantiated claim. Mr. Bean participated in the Pinellas OHR investigation and testified at the final hearing in support of Mr. Currie's position that Ms. Turner was fired because of her performance problems. Mr. Bean testified that Ms. Turner was fired because of a "lack of ability to do the job," and he referred to her not paying bills. Mr. Bean's testimony lacked credibility and probative value. He admitted that he had no personal knowledge of unpaid bills, no personal knowledge of Ms. Turner's interaction with vendors, and no personal knowledge of her QuickBooks work. Mr. Bean provided no competent, credible evidence of any problems with Ms. Turner's performance. The only testimony he provided that was based on personal knowledge was that he found her to be "unfriendly" to him. While Ms. Turner was employed at SureTek, Mr. Bean was not her supervisor; at the time, he supervised only the warehouse employees. Mr. Bean testified that he was promoted to general manager in early July 2010 (one year before the final hearing), having "worked [his] way up." This was a few months after Ms. Turner was fired, after Ms. Rodriguez was fired, and after Mr. Bean had provided support to Mr. Currie's position in the Pinellas OHR investigation. The credible evidence fails to support Mr. Currie's suggestion that Ms. Turner was not performing acceptably in her brief tenure and was fired for that legitimate reason. Instead, it appears that Mr. Currie went on an after-the-fact hunt for things he could blame on Ms. Turner that could not reasonably be blamed on her, nor were they shown to be reasons why Mr. Currie made the decision on February 19, 2011, to terminate Ms. Turner and advertise for her replacement. Indeed, Mr. Currie's own testimony shows the inconsistencies in his attempt to develop a legitimate rationale for letting Ms. Turner go. When Mr. Currie was explaining his recollection of the events of February 19, 2011, he testified that after just 45 minutes of looking for Ms. Turner, who he described as looking sub-par and sicker than she normally looked that day, he decided that she must have quit, and he instructed Mr. Bean to place an ad on Craigslist because Ms. Turner had apparently decided to quit. That is quite a bit different than coming to the studied view over a multi-week period of time and following several counseling sessions that Ms. Turner's job performance was unacceptable and that she should be fired for poor performance. Instead, the suggestion was that Mr. Currie would have been happy to keep Ms. Turner--even willing to get a temporary employee to accommodate Ms. Turner's need for another surgery in the future--but she was the one who chose to leave. Mr. Currie never attempted to reconcile these two very clearly different explanations of how Ms. Turner's employment at Sure-Tek ended. These inconsistencies undermine the credibility of his attempt to legitimize her termination. Appropriate Remedy Petitioner testified that she is seeking back pay only, through the date of the final hearing, as damages. Petitioner quantified her back pay damages as 71.5 weeks of unemployment since her termination. She testified that her income at Sure-Tek was $540.00 per week ($13.50 per hour, times 40 hours per week). This evidence was not challenged by Respondent. Therefore, the total amount of back pay damages claimed before offsetting reductions is $38,610.00 Petitioner testified to her substantial efforts to obtain a job after she was fired by Respondent, and her testimony was corroborated by a tremendous amount of electronic mail inquiries and applications she submitted to follow up on job postings on Craigslist and other online job listings. Petitioner was hired shortly after she was let go by Mr. Currie at a company called Clear Tech, Inc. That job did not last long, however, because Ms. Turner was hired to work for the part of the company that was in the business of new pool construction and that part of the business was shut down soon after she started, due to the economic slow-down. Petitioner proved the amount of wages earned at Clear Tech: $1,632.00. In addition, Petitioner proved that she earned an additional $1,612.00 in unemployment compensation after she was fired from Sure-Tek. These two categories reduce the total amount of damages sought to $35,366.00. Petitioner testified that since she stopped working for Clear Tech, she has not earned wages. However, she testified that she has been helping out at Apple Homes, the company owned by her grandfather and father and has worked about ten hours per week. She is not on the payroll, because business is not good enough for her to be paid. However, both her grandfather and father help her out financially, helping to pay her rent and her bills. Although Ms. Turner testified that she plans to eventually pay back her father and grandfather for their financial help, she did not produce any evidence to substantiate that claim, such as an accounting maintained by her to tally the amounts of their assistance so she would know how much to repay them. Thus, it is reasonable to assume that her ten hours per week of work to "help" the company is being compensated by this indirect "help" to assist with her rent and bills. The undersigned finds that Petitioner has mitigated her damages to the extent of having similar work for which she is compensated for ten hours per week. Petitioner testified that she began working at Clear Tech in March 2010 and that she worked there for approximately 30 days. Therefore, the undersigned will assume that Petitioner worked at Clear Tech for the month of March 2010, and, thereafter, she worked at Apple Homes for ten hours a week. That equates to approximately 66 weeks, or 660 hours. In the absence of any other evidence showing how much Petitioner received as indirect compensation, it is reasonable to assume that her compensation would have approximated the hourly rate she earned from Respondent. Therefore, the undersigned will deduct $8,910 from the total back pay damages, representing estimated compensation of the value of her services of ten hours per week at Apple Homes for 66 weeks. The undersigned finds that Petitioner has incurred actual damages due to lost wages from her date of termination by Respondent through the date of the final hearing, reduced/offset by the items described above, of $26,456.00. Petitioner established her reasonable efforts to mitigate her damages, and she, in fact, mitigated her actual damages which have been reduced/offset as described above by a total of $12,154.00. Petitioner has hired an attorney who has represented her at the final hearing, in pre-hearing preparation, and in post-hearing proceedings. Petitioner has also incurred costs in connection with this litigation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered: Finding that Respondent, Sure-Tek Powker Coating, Inc., violated section 70-53, Pinellas County Code; Ordering Respondent to pay Petitioner, Rebecca Turner, the sum of $26,456.00 and interest at the prevailing statutory rate; and Ordering Respondent to pay Ms. Turner reasonable costs and attorney's fees. Jurisdiction is retained to determine the amount of costs and attorney's fees, if the parties are unable to agree to the amount. DONE AND ENTERED this 22nd day of September, 2011, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of September, 2011.
