The Issue This is a proceeding pursuant to the Florida Equal Access to Justice Act, Section 57.111, Florida Statutes, in which the only disputed issues concern whether the Petitioner is a small business party and whether the Respondent was substantially justified in bringing the underlying proceeding.
Findings Of Fact The findings of fact which follow are based on “the pleadings and supporting documents, and the files and records of the Division of Administrative Hearings.” See Rule 60Q-2.035(7), Florida Administrative Code.1 In DOAH Case No. 96-4290, the Commissioner of Education filed an Administrative Complaint against Mr. Brown. By means of that Administrative Complaint, the Commissioner sought to take disciplinary action against Mr. Brown on the basis of allegations of misconduct by Mr. Brown in connection with his employment as a coach with the Dade County School System. An investigation was conducted prior to filing the Administrative Complaint and at the time the Administrative Complaint was filed, the agency had in its possession affidavits and other evidence which, if believed, were sufficient to establish the charges alleged in the Administrative Complaint. Prior to filing the Administrative Complaint, the evidence collected during the investigation was reviewed by agency legal counsel for the purpose of determining whether there was probable cause to file an Administrative Complaint. Upon review, the evidence appeared to be sufficient to warrant the issuance of an Administrative Complaint. Following discovery in the underlying case, the agency re-evaluated its position and, on the advice of counsel, decided to file a voluntary dismissal of the Administrative Complaint. The decision to dismiss the Administrative Complaint was based on the fact that, following discovery, the agency had serious doubts that it could prove its case by the required “clear and convincing” standard. At the time of the filing of the Administrative Complaint, Mr. Brown was the sole proprietor of an unincorporated business. His principal office was in this state. He was domiciled in this state. He had fewer than twenty-five employees and a new worth of less than two million dollars. At the time of the filing of the Administrative Complaint, Mr. Brown was not an employee of the Dade County Public School System. Rather, he was performing part-time coaching services essentially as an independent contractor.
The Issue The issues in this case concern the question of whether the Petitioners are entitled to certification as a Minority Business enterprise within the meaning of Chapter 288, Florida Statutes and Rule 13-8.005, Florida Administrative Code. The basic question is whether Bonnie M. Mobley, who is the minority person in Council Enterprises, Inc., and majority stockholder controls the management and daily operations of that corporation.
Findings Of Fact On July 1, 1984 council Enterprises, Inc. was incorporated as a Florida corporation. From that date until the Fall of 1985 the corporation was engaged in the business of plumbing and mechanical services in Florida. At the inception Luther E. Council, Jr., who is also known as "Snipes" Council, was the president, a director and stockholder within the corporation. His mother Bonnie M. Mobley, a minority person, was the majority stockholder and a director in the corporation. At the commencement of the corporation, Bonnie Mobley was secretary/treasurer. Her percentage of stock ownership was 51 percent and the other 49 percent was held by the son. The money which was used to capitalize the corporation in its inception was provided by the mother in the amount of $50,000. On June 14, 1985 by action of the Board of Directors, namely the mother and son, Luther E. Council, Jr. submitted his resignation as president. As the minutes of that meeting state, he did this having secured jobs for employees of Council Enterprises, Inc. with a firm known as Hays Heating and Plumbing Company. Council took a job with that company as manager. On the same date of the Board of Directors meeting, Bonnie M. Mobley was appointed as president, secretary and treasurer, in furtherance of a concern that each of these corporate officers be installed during the life of this corporation. When Luther E. Council, Jr. left Council Enterprises, Inc. to go and work with Hays he was no longer a director. It was further recommended by the son that his mother secure a Leon County Mechanical Contractor's License and serve as a qualifying agent and gain registration with the State of Florida. Other recommendations pursuant to Article II of the Articles of Incorporation were that she consider brokering mechanical equipment as a livelihood and secure a wholesaler's license as well. The events that took place by the corporation was in recognition of the fact that the corporation had concluded its business of offering plumbing and mechanical services. In fact, Bonnie Mobley had gone to work with Hays Heating and Plumbing Company on February 1, 1985 and would remain in her position as office manager at that company until January 9, 1987. During that time she was responsible for secretarial and bookkeeping responsibilities for Hays. During part of that time, as an aside, through Council Enterprises, Inc., she sold supplies to Hays for its use in projects. She tried to gain other contracts for supplies from companies other than Hays, without success. Luther E. Council, Jr., while working at Hays as a manager, was his mother's supervisor. He stayed with Hays from February 1, 1985 until June 19, 1987. As a consequence of leaving Council Enterprises, Inc. to go and work with Hays, Luther D. Council, Jr. transferred his stock in Council Enterprises, Inc. to his mother and she continues to hold all the stock in that company. In August, 1987 and to the present, Bonnie Mobley and her son Luther E. Council, Jr. reconstituted Council Enterprises, Inc. for purposes of offering services in plumbing, mechanical, fire protection, underground utilities, pollutant storage and as builders. They opened an office at 110 Perkins Street, Tallahassee, Florida, which continues to be their business location. Following the August, 1987 restructuring of the business Bonnie Mobley made her son vice-president and named him a director. This meant from that point forward, that there were two directors, Ms. Mobley and her son, Luther E. Council, Jr. In the past, Ms. Mobley had some familiarity with the heating, ventilation and air conditioning and plumbing business which her ex-husband, father of Luther E. Council, Jr. began in 1959. This business was Council Brothers, a company which her former husband and his brothers had started. Her awareness of that business corresponded to about an 11 year period in which at times she was involved to some extent in doing "take offs", cost estimating on jobs for her husband's company. Her principal occupation during the course of this period related to working in the Lewis State Bank as a secretary, receptionist and in the personnel department associated with payroll. She had also done some bookkeeping work for a small business which her ex-husband had relating to an air conditioning and heating service. Ms. Mobley has a license with Council Enterprises, Inc. related to Leon County in the mechanical field. As such, she is the qualifying agent for the corporation. Her son, by contrast, holds certified licenses with the State of Florida, Department of Professional Regulation, in the fields of plumbing contracting, mechanical contracting, building contracting, underground utility contracting, and pollutant storage contracting. In order to gain these licenses he had to have requisite experience in these fields and pass an examination. He also holds a First Class Fire Protection Contractor's License, and a Florida LP Underground Gas License issued by the State of Florida, Department of Insurance. Since the corporation returned to the active contracting business in August, 1987 Ms. Mobley's duties include giving instructions to an office secretary, Laverne Taylor, as needed, and generally keeping things running in the office. She is involved with final decisions about business choices to include an awareness of Dodge reports which advertise contract job opportunities and looking at the local newspaper to see about available work. She is involved in the purchase of equipment and has a say in those choices. She is involved with answering the phone at the office, paying bills, and taking care of the payroll. She sometimes goes to jobsites and stays a number of hours or even may stay all day. Luther E. Council, Jr. describes his position with the company as one of doing whatever needs to be done from running equipment, writing letters, raking and shoveling at jobs and doing job estimating. The mother and son and their field foreman, John W. Edwards, III, all involve themselves in bidding jobs which the company is interested in. The arrangement for hiring employees in the company is one in which a number of the employees who work for the company were associated with Hays and came to work at Council Enterprises, Inc. when Luther E. Council, Jr. returned from Hays to Council Enterprises, Inc. Mr. Edwards was an individual whom Luther E. Council, Jr. knew through their interest in law enforcement. Edwards as field manager is responsible for obtaining additional employees as needed in the field, subject to the approval of Ms. Mobley. Ms. Mobley has on occasion fired a couple of foremen with the company. This was against the recommendation of the field foreman Edwards. Another example of hiring relates to Laverne Taylor whom Ms. Mobley hired. The basic arrangement for hiring and firing in the company is premised upon consultation among Ms. Mobley, her son and the field foreman Edwards. Although 95 percent of the checks in the bank account by the company have been signed by Ms. Mobley, her son has signed the other 5 percent of the checks and has the authority to sign checks on the company's single signature accounts. In the bidding process which has been alluded to, all three persons, namely Ms. Mobley, Mr. Edwards and her son, Luther E. Council, Jr. are involved. Edwards is not as experienced as the son and neither is Ms. Mobley. Luther E. Council, Jr. has a better grounding in the business and in the more complicated issues that may arise in the bidding process. Ms. Mobley has been involved in the financial end of the corporation's activities and is well-grounded in that aspect of the business, to include major purchases, heavy equipment, the payment of routine items such as phone bills, and other account activities. Ms. Mobley, Luther E. Council, Jr. and Mr. Edwards are full-time employees for Council Enterprises, Inc. In obtaining recent loans in the amounts of $60,000 and $22,500, the initial amount being for cash flow on accounts receivable and the second amount having to do with a line of credit, it was necessary for Ms. Mobley and her son Luther E. Council, Jr. to guarantee the loans. In a related matter in the purchase of major pieces of equipment, both Ms. Mobley and her son signed the financial agreements involving the lease purchase of equipment. Bonding for the company in its projects include references to the resume's of both Ms. Mobley and her son. Approximately 80 percent of the work of Council Enterprises, Inc. involves underground utility installation and 20 percent is related to plumbing. In this process, Luther E. Council, Jr. is an indispensable person in deciding the direction which the company will pursue in its business activities, most especially related to understanding of the technical aspects of this company's business and the necessity to rely upon his licensing credentials in order to pursue its business functions. For thin's reason, Bonnie Mobley is not in a position to independently control the corporation's affairs and, in fact, has not controlled it, independent of her son a non-minority person. In this connection, Article II, Section 1 of the By Laws of the corporation, Council Enterprises, Inc., speaks in terms' of the business of that corporation being managed and its corporate powers being reposed in its Board of Directors. Further, Article II, Section 6 of those By Laws requires that the majority of the directors shall be necessary as participants at a meeting to constitute a quorum and that it is the act of the majority of those directors present at the meeting where there is a quorum that constitutes the actions of the Board of Directors. Given this circumstance, there are only two directors and Luther E. Council, Jr. has as much authority as Ms. Mobley in his capacity as director. As a result, he necessarily shares in the management of the company. Against this background information concerning Council Enterprises, Inc. it had sought to gain certification as a Minority Business Enterprise by the State of Florida, Department of General Services. It was denied that opportunity by action of the Department on April 8, 1988 and sought a formal hearing under Section 120.57(1), Florida Statutes, to resolve the question of its entitlement to such certification. The basis of denial was briefly described in the issue statement to this recommended order and will be more specifically referred to in the Conclusions of Law section of the recommended order which follows.
Recommendation Based upon consideration of the findings of fact and conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered which denies the application of Council Enterprises, Inc. to be certified as a Minority Business Enterprise. DONE and ENTERED this 6th day of March, 1989, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 1989. APPENDIX The following disposition is made of the proposed fact finding of the parties: Petitioner's Facts The Petitioner's facts are subordinate to the fact found in the recommended order. Respondent's Facts 1.-6. Subordinate to facts found. Subordinate to facts found with the exception of the next to the last sentence which is not necessary to resolution of the dispute. Subordinate to facts found with the exception of the first sentence which is contrary to facts found. First sentence is contrary to facts found. The balance of the sentences within that paragraph are subordinate to facts found with the exception of the discussion of use of Luther E. Council, Jr.'s licenses as qualifying to allow the company to conduct certain business in the contracting field. Although it may be customary to use someone else's license as a qualifier for the benefit of the company, under the present circumstances the person who is the qualifying agent is a director who must be appeased before the corporation can conduct its affairs and who by the facts of thin case, is the dominant figure in the pursuit of the business of the corporation. Contrary to facts found. COPIES FURNISHED: Donald S. Modesitt, Esquire 320 West Park Avenue Tallahassee, Florida 32301 Sandra E. Allen, Esquire Office of General Counsel Department of General Services Room 452 Larson Building 200 E. Gaines Street Tallahassee, Florida 32399-0955 Ronald W. Thomas Executive Director Department of General Services 133 Larson Building Tallahassee, Florida 32399-0955
The Issue Whether Respondent, Unity Groves Corporation (Unity Groves), owes Petitioner, Maria Rodriguez, $1,321.00 for peppers purchased from Petitioner in March 2013.
Findings Of Fact The Parties Petitioner owns property in the Miami, Florida, area on which she grows a variety of peppers which she sells to agricultural retailers. Unity Groves is a family-owned and operated agricultural dealer which purchases produce from growers and growing facilities and resells to vendors across the country. During March and May 2013, Petitioner sold peppers on 14 separate dates to Unity Groves. Unity Groves then resold the peppers to retail vendors. During the brief course of dealings between parties, Petitioner would either contact Unity Groves and indicate the type and quantity of peppers she had available to determine whether Unity Groves needed to fill an order for a vendor or she would be contacted by an employee of Unity Groves to determine whether Petitioner had peppers available. The price for Petitioner's peppers would be negotiated prior to, or at the time of, delivery of the peppers to Unity Groves. Petitioner primarily negotiated with the receiver for Unity Groves, Emilio (last name unknown), or another employee, Pete (last name unknown). On ten occasions, Petitioner received a receipt prepared by Unity Groves at the time of delivery indicating the quantity of half or full bushels of the particular types of peppers and the agreed upon rate per half or full bushel that she would be paid. As demonstrated by the receipts and "Grower Payout" sheets submitted into evidence by both parties, the course of dealings between the parties supports Petitioner's testimony that in all but two instances, she in fact received payment in the amount indicated as the purchase price on the delivery receipts received from Unity Groves. Unity Groves' contention that the price indicated on the receipts was merely a desired "target price" is rejected because it is contrary to the greater weight of the evidence. On the four occasions for which Petitioner received a receipt with no indication of price, Petitioner was paid in accordance with her agreement with a Unity Groves' employee, Pete, which was reached in a telephone conversation prior to her delivery of the peppers to Unity Groves. Petitioner did not submit formal invoices to Unity Groves because the receipts provided by Unity Groves at the time of delivery accurately reflected the quantities of peppers sold by type and price, and she received the indicated price for all transactions except for the two instances which are the subject of this dispute. Petitioner was never informed that her products supplied to Unity Groves were deteriorating or that the quantity delivered was rejected because it was more than requested or needed. The Grower Payout sheets reflect that Petitioner received one duplicate payment in the amount of $130.00 for peppers delivered to Unity Groves on March 13, 2013. The Dispute Giving Rise to This Proceeding In March 2013, Petitioner received a telephone call from a Unity Groves' employee, Dennis (last name unknown), who requested a pallet of Hungarian Wax peppers and a pallet of Anaheim peppers. A pallet for Unity Groves is approximately 120 half bushel boxes of peppers. Petitioner advised Dennis that she did not think she could fill such a large order and that her workers could not yet pick those peppers. Petitioner told Dennis she would call him back and let him know how much she had available after picking. After the peppers were picked, Petitioner contacted Emilio and advised that she could deliver 78 half bushels of Hungarian Wax peppers and 84 half bushels of Anaheim peppers. Emilio confirmed with Dennis that, although Petitioner could not supply a pallet of each, Unity Groves still wanted those peppers. Petitioner delivered them to Unity Groves on March 22, 2013. Petitioner received receipt 4055 indicating delivery of the peppers and an agreed upon price of $10.00 per half bushel for the Hungarian Wax peppers and $12.00 per half bushel for the Anaheim peppers for a total price of $1,788.00. On March 25, 2013, Petitioner delivered the following to Unity Groves: 13 half bushels of Finger Hot peppers at $8.00 per half bushel; 20 bushels of Long Hot at $14.00 per bushel; 5 half bushels of Banana peppers at $12.00 per half bushel; 10 half bushels of Anahie peppers at $12 per half bushel. Petitioner received receipt 4067 from Unity Groves, and the total price based upon the prices indicated on the receipt for this delivery was $564.00. When Petitioner went to Unity Groves on April 14, 2013, to pick up her check in payment for the March 22 and 25 deliveries, she was given check 11439 in the amount of $1,031.00. She was also provided a "Grower Payout" sheet number 3807 indicating the breakdown by pepper, quantity, and price paid by Unity Groves for receipt numbers 4055 and 4067. Respondent immediately noticed that the prices paid for the large delivery of Hungarian Wax and Anaheim peppers was significantly lower than the agreed upon price as reflected on receipt 4055. Unity Groves also paid less for four out of five types of peppers on receipt 4067 for the March 25 delivery. The total difference between the total based upon the agreed upon receipt prices and the amount actually paid by Unity Groves was $1,321.00. When Petitioner realized the magnitude of the discrepancy, she and her daughter, Susana Rodriguez, went to discuss the issue with Carricarte. She inquired why she was paid $3.00 per unit versus $10.00 for the Hungarian Wax peppers and $4.00 per unit versus $12.00 for the Anaheim peppers (the prices reflected on receipt 4055). Carricarte told Petitioner that she was paid the price he received from his customer. He did not believe that Dennis purchased such a large quantity of peppers and wanted to verify this with him. Emilio confirmed in the presence of Petitioner and her daughter that Unity Groves, through Dennis, had requested two pallets of peppers from Petitioner. Dennis was out of the country and Carricarte told Petitioner he would call her after speaking with Dennis upon his return. Dennis was terminated by Unity Groves upon his return. Petitioner met with Carricarte two additional times. Each time she had one of her daughters present and, at the third meeting, she brought a representative from the Department. During these meetings, Carricarte disputed that Unity Groves would order such an unusually large quantity of peppers and that the price reflected on the receipt was not an agreed upon price but rather the "target price" Unity Groves hoped to be able to secure for the grower. Unity Groves never notified Petitioner that any of the peppers received on March 22 and 25, 2013, were defective or non- conforming, nor did it seek to revoke acceptance of the peppers or return the peppers to Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order (1) finding that Unity Groves is indebted to Petitioner in the amount of $1,191.00 for the balance due for the peppers it purchased from Petitioner on March 22 and 25, 2013 ($1,321.00, minus $130.00 for the duplicate payment for the March 13 delivery); (2) directing Unity Groves to make payment to Petitioner in the amount of $1,241.00 ($1,191.00, plus $50.00 for reimbursement of the filing fee Petitioner paid) within 15 days following the issuance of the order; and (3) announcing that, if Unity Groves fails to make timely payment in full, the Department will seek recovery from FCCI, Unity Groves' surety. DONE AND ENTERED this 10th day of October, 2013, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 10th day of October, 2013.
The Issue The central issue in these cases is whether the Respondents are guilty of the violations alleged; and, if so, what penalty should be imposed.
Findings Of Fact This matter deals with three licensed premises all owned or controlled by the Respondent, Myriam Grau. Ms. Grau is either the sole proprietor or the sole corporate officer and shareholder for each of the named businesses. Feelings Restaurant located on Palm Avenue in Hialeah, Florida, holds series 2 COP license no. 23-15849. Hialeah Dolphin also located on Palm Avenue in Hialeah, holds series 2 COP license no. 23-02256. Feelings Restaurant II which is located on East 4th Avenue holds series 2 COP license no. 23-15990. It is undisputed that Ms. Grau, her husband, and her mother-in-law are responsible for the day-to-day operations of the three licensed premises. The Petitioner is the state agency charged with the responsibility of regulating licensed premises which sell or dispense alcoholic beverages. Special Agent Addy Mesa, formerly employed by the Division of Alcoholic Beverages and Tobacco, conducted an undercover investigation at the Feelings located on Palm Avenue. On or about January 13, 1995, while engaged in such investigation, Special Agent Mesa went to the Hialeah Dolphin along with Detective Barbara Rivera and spoke with the Respondent, Ms. Grau. At that time and in that place, Special Agent Mesa asked for cocaine but Ms. Grau advised her that she did not have any. Ms. Grau requested that she wait as she was expecting a delivery. Special Agent Mesa waited approximately ten minutes but was unable to purchase the cocaine. After confronting Respondent regarding the delay, Ms. Grau directed Special Agent Mesa to Feelings (also on Palm Avenue) and told her to ask for Carlos or Carmen. When Special Agent Mesa arrived at Feelings and found Carlos, he advised the women to wait as he, too, was waiting on someone to come. Eventually, Special Agent Mesa observed a Latin male enter the licensed premises and confer with Carlos. At that time Carlos was standing behind the bar but took the Latin man behind a door to an area presumed to be a back room. When Carlos returned to the bar area, Special Agent Mesa purchased illegal narcotics from him. During the sales transaction, Carlos was at the bar and, in exchange for $40.00, passed two clear plastic bags to Special Agent Mesa containing a white powder substance which was later tested and proved to be cocaine. This transaction took place in the licensed premises and could have been observed by the six or seven patrons then at the bar. On another occasion, Special Agent Mesa went to the Hialeah Dolphin Restaurant with Heidi Puig. Again, as indicated above, Special Agent Mesa was working undercover. On this occasion Special Agent Mesa met a man who introduced himself as "Ricardo" and who told her he was the manager for the business. Ricardo had access to a back room in which he apparently resided and gave Special Agent Mesa a business card, a copy of which has been admitted into evidence in this cause as DABT exhibit 2. Such card contains the handwritten words "Ricardo" above the printed line denoting manager and "ask for Miriam" along the bottom of the card. The remainder of the card contains the printed information for the business. After talking with Ricardo for a short time, Special Agent Mesa purchased two packets of cocaine for $40.00. Special Agent Mesa returned to the Dolphin on still another occasion with Detective Rivera. On this visit there were approximately six or seven patrons in the bar and Ricardo approached them when they entered. After engaging in conversation for a few moments, Special Agent Mesa asked to purchase cocaine and Ricardo accommodated the undercover agent. While Special Agent Mesa waited at the bar, Ricardo went to his back room and returned with two baggies of cocaine wrapped inside a napkin. In return for the twenty dollar bills from Special Agent Mesa and Detective Rivera, the two packets containing cocaine were delivered inside the bar. Thereafter, Special Agent Mesa did not return to the premises until the search warrant was executed on February 10, 1995. All of the foregoing transactions took place while Special Agent Mesa was working in an undercover capacity and utilizing language that is common to transactions of this nature. Given the successfulness of her efforts to purchase illegal narcotics it is found that Special Agent Mesa communicated her intent to Respondent Grau, Carlos, and Ricardo in such a manner that they knew she was attempting to purchase cocaine. Carlos and Ricardo conducted themselves in a manner which gave the appearance of being employees of the licensed premises. Both men had access to the area behind the bar. Both utilized areas presumed to be private from the public. On at least one of the occasions Ricardo advised Special Agent Mesa of jobs available. The conduct of the transactions was inside the licensed premises, repeated on several occasions, and open to the view of bar patrons. Elio Olivia is a detective with the Hialeah Police Department. During January, 1995, while working in an undercover capacity, Detective Olivia was investigating illegal narcotic activities at the Feelings located on Palm Avenue in Hialeah. On or about January 12, 1995, Detective Olivia entered the licensed premises and spoke with Carlos who was behind the counter. For twenty dollars Detective Olivia purchased, and the individual Carlos sold, one packet of a white powdered substance which was tested and proved to be cocaine. Later, on January 18, 1995, Detective Olivia returned to the Palm Avenue Feelings and, again, purchased cocaine from Carlos. On this occasion Carlos went from behind the bar to an office, returned to the bar, and delivered the packet. Detective Olivia went to Feelings on a third date and repeated the process. Again, Carlos was observed behind the counter at the time of the transaction and Detective Olivia presumed him to be an employee of the premises based upon the manner in which he conducted himself. On at least one of the occasions, Detective Olivia observed another patron at the bar purchase a packet from Carlos. While the contents of the observed packet are unknown, the manner of the transaction was consistent with Detective Olivia's experience with purchasing cocaine from Carlos. Detective Olivia did not observe Respondent Grau on the licensed premises during any of the times he was there. The transactions involving the purchase of illegal narcotics took place in the licensed premises and could have been viewed by the patrons of the facility. Given the fact that Detective Olivia observed at least one such transaction himself, it is found that the actions of Carlos were open and notorious to the public. Michael Barsky is a detective employed by the Hialeah Police Department. At all times material to this matter, Detective Barsky was working undercover investigating illegal narcotics. On or about June 15, 1994, Detective Barsky went to the Feelings located on 4th Avenue. While there, he conversed with a male later known to him as Ricardo. Detective Barsky presumed Ricardo to be an employee at the business as it appeared he had the "run of the place." That is to say, Ricardo went behind the bar, went throughout the premises, and paid winnings to patrons who prevailed on a gambling machine that was located within the business. Detective Barsky went to the 4th Avenue Feelings again on October 14, 1994. On this date he met Ricardo and in exchange for twenty dollars purchased a small packet of a white powder substance which was later tested and proved to be cocaine. Although the transaction was discussed in the bar area in front of approximately five patrons, Ricardo took Detective Barsky to the mens room to make the exchange. From October 14, 1994 through December 7, 1994, Detective Barsky returned to Feelings on six occasions. For each visit he purchased cocaine from Ricardo as described above except on the later occasions the exchange took place at the bar instead of in the mens room. From the time of his first visit through December 7, 1994, Detective Barsky observed Respondent Grau on the licensed premises only once or twice. While the date of the arrest is not certain, Ricardo was arrested for illegal drug possession sometime during Detective Barsky's investigation at Feelings (4th Avenue). There came a time after Ricardo was arrested when Detective Barsky no longer observed him at the Feelings on 4th. In fact, when Detective Barsky returned to the licensed premises on January 12, 1995 (he had had a tip sales were still being made at the location), he met with an individual known as Orlando who claimed to be the new manager who could help him. As with Ricardo, Detective Barsky observed that Orlando appeared to have the run of the place. He was behind the counter, went into the DJ's booth, and was never reproached by the servers who were assisting bar patrons. Additionally, Detective Barsky observed and heard Orlando giving directions to the females who "did everything" in the kitchen area. In doing so, Orlando entered areas of the premises not available to the general public. As had occurred with Ricardo on the first buy, Orlando took Detective Barsky into the mens room and in exchange for twenty dollars the cocaine was purchased. On the next visit, on or about January 18, 1995, Detective Barsky purchased cocaine from Orlando at the bar. Orlando took a packet from his pocket and slipped it to Detective Barsky in a secretive manner. Detective Barsky returned to Feelings on several occasions thereafter. On each visit he successfully purchased cocaine from Orlando. On one occasion Orlando went to the back room before he delivered the packet to Detective Barsky. On one of the later visits, on or about January 27, 1995, Detective Barsky observed the Respondent Grau with an unknown male enter the premises and exchange money for what appeared to be drugs packaged in small zip baggies. This transaction took place in the licensed premises in view of the detective. Detective Barsky purchased cocaine at the Feelings on 4th Avenue at least twelve times for the period October 14, 1994 through February 3, 1995. On January 18, 1995, Detective Barsky went to the Dolphin and observed the male he knew as Ricardo at that licensed premises. Ricardo was fixing lights at a pool table when the detective confronted him and sought to purchase cocaine. On this occasion as in the past, Detective Barsky purchased a twenty dollar amount of a substance which was later tested and proved to be cocaine. Subsequently, Detective Barsky returned to the Dolphin and purchased cocaine from Ricardo on four additional visits. On one such visit, February 2, 1995, Detective Barsky observed Ricardo and a bar patron "do" cocaine at the bar counter. This was in plain view of bar patrons and was open and notorious. Respondent Grau knew that Ricardo had been arrested for illegal drugs prior to allowing him to reside at the Dolphin premises. Respondent Grau did not ask Ricardo to vacate the premises or to stay away from the licensed premises. At least six of the cocaine purchases occurred after Respondent Grau knew Ricardo had been arrested for drugs. Cocaine is a controlled substance the sale of which is prohibited by law.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order revoking the licenses nos. 23-15849, 23-02256, and 23-15990. DONE AND RECOMMENDED this 30th day of June, 1995, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1995. APPENDIX TO DOAH CASE NOS. 95-0703, 95-0704, and 95-0705 Rulings on the proposed findings of fact submitted by the Petitioner: Paragraphs 1 through 19 are accepted. Paragraph 20 is clarified in the findings above as to the manner of the delivery of the cocaine (which in some instances did include a secretive manner), therefore, as drafted the paragraph is inconsistent with the total evidence presented in the case. Rulings on the proposed findings of fact submitted by the Respondent: Paragraphs 1 through 6 are rejected as comments or argument regarding Petitioner's proposed findings of fact. Paragraph 7 is rejected as not supported by the weight of the credible evidence. COPIES FURNISHED: Miquel Oxamendi Senior Attorney Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-1007 Louis J. Terminello TERMINELLO & TERMINELLO, P.A. 2700 S.W. 37th Avenue Miami, Florida 33133-2728 Howard Sohn 2534 Southwest Sixth Street Miami, Florida 33135-2926 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 John J. Harris, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
The Issue The issues in this case are: (1) Whether Respondent, Florida Housing Finance Corporation (Florida Housing), erred in its determination that Petitioner, Madison Reserve, Ltd.'s (Madison Reserve), application seeking an allocation of Housing Credits from the 2009 Universal Cycle failed to meet threshold and should not receive an Ability to Proceed Tie-Breaker Point with regard to zoning; and (2) Whether Florida Housing erred in its characterization of Madison Reserve's application as a Priority II application.
Findings Of Fact Madison Reserve is a Florida limited partnership made up of a general partner, Madison Reserve Apartments, LLC, and an "initial limited partner," Todd L. Borck. The members of the general partner are Todd L. Borck and Patrick E. Law. Borck and Law are experienced developers of real estate properties, especially those which qualify for Low Income Housing Tax Credits ("Housing Credits") from Florida Housing. Borck and Law are affiliated with two other entities which filed applications for Housing Credits in the 2009 Universal Cycle. Those two entities, Madison Heights and Madison Terrace, are also Florida limited partnerships in which Borck and Law are members of the general partners. As part of its application, Madison Reserve submitted a "Declaration of Priority I Related Applications" form, which identified the other two entities as part of the Pool of Related Applications for the Madison Reserve application. Florida Housing is a public corporation organized pursuant to Section 420.504, Florida Statutes (2009), to provide and promote the public welfare by administering the governmental function of financing and refinancing affordable housing and related facilities in Florida. The 2009 Universal Cycle was the first time that applicants were required to designate themselves as Priority I or Priority II applicants. Preference for funding was to be given to Priority I applicants. With certain exceptions, all Priority I applications for a given Set-Aside were to be funded before any Priority II applications were funded. In essence, the rules in effect for the 2009 Universal Cycle require that applications submitted by related applicants be considered a "Pool of Related Applications." While there is no limit to the number of related applications within a Pool of Related Applications that may be submitted, there can be no more than three related applications in order to file under Priority I. There is an exception to that rule if applicants have entered into joint ventures with a not-for-profit entity or a public housing authority. In those cases, applicants are permitted to up to three additional Priority I applications. The Priority I/Priority II designations were upheld as valid rules in Atlantic Housing Partners, LLP v Florida Housing Finance Corporation, Case No. 09-2276RP (DOAH July 14, 2009). On August 20, 2009, Madison Reserve submitted an application seeking an allocation of Housing Credits from the 2009 Universal Cycle. Madison Reserve's submission was assigned Application No. 2009-197C. Two-thousand and nine (2009) designates the year the application was filed; 197 indicates that Madison Reserve application was the 197th application processed in that cycle; and C indicates the application was seeking Housing Credits. The application was basically a "shell" application as is the general practice among entities seeking an allocation of Housing Credits. A shell application contains only minimal information about the applicant and the proposed project. The remaining portions of the application are filed during the "cure" period and, thereafter, pursuant to specific requests by Florida Housing. The shell application provides only the essential information needed by Florida Housing to make a preliminary assessment of the applicant's ability to proceed through the process. Application 2009-197C designated ARD MR, LLC, as the developer for the proposed project for which Madison Reserve was seeking Housing Credits. Exhibit 9 to the application designates the developer and sets forth the ownership of the applicant entity. In both cases, Borck and Law are the only natural persons listed with any interest in the project. Borck is experienced with the 2009 Universal Cycle and the application process. He has filed over 100 applications for various entities and acts as a consultant for other entities with which he has no ownership interest. One such entity is Madison Springs, LLC (Madison Springs). Borck assisted that entity with filing an application in the 2009 Universal Cycle. Madison Springs' application was assigned number 2009-195C. Related Application Issue For the 2009 Universal Cycle, Florida Housing, for the first time, limited applicants to only three related entity applications. That is to say, applicants, such as Borck and Law, could not be affiliated with more than three entities who had filed for Housing Credits in the 2009 Universal Cycle. In fact, Borck and Law were affiliated with Madison Reserve, Madison Heights and Madison Terrace. However, in Exhibit 9 of the application filed by Madison Springs, Borck and Law were listed as owners of TLB Madison Springs, LLC, and PEL Madison Springs, LLC, respectively. Those two entities are the members of Madison Springs Apartments, LLC, the managing member of Madison Springs, Borck and Law are also listed as owners of the two limited liability companies that comprise the members of ARD MT, LLC, the developer identified in Exhibit 9 of the Madison Springs application. However, Exhibits 11 and 53 of the Madison Springs application list CAS Orlando Development, Inc. (CAS Orlando), as the developer for the project. There are obvious errors in the Madison Springs application. Borck and Law had previously held ownership of the entities as set forth in the Madison Springs' Exhibit 9 to its application. However, Borck and Law's ownership interests had been rescinded prior to the filing of the Madison Springs application. The Exhibit 9, filed by Madison Springs, was in error as to Borck and Law's involvement with the project. The Exhibit 9 was also in error as to the developer. The correct developer for Madison Springs is CAS Orlando. In order to correct its error, Madison Springs filed a corrected Exhibit 9 during the cure period. That Exhibit 9 clarified that neither Borck, nor Law, had any ownership interest in or affiliation with Madison Springs or its developer. The cure document was filed with Florida Housing on November 3, 2009. Included within the cure documents were Articles of Amendment to Articles of Organization of Madison Springs. The Articles of Amendment were filed with the Secretary of State on April 13, 2009, some four months prior to filing of applications in the 2009 Universal Cycle. The Articles of Amendment clearly indicate the deletion of Borck and Law from the ownership of Madison Springs. Florida Housing did not accept the cure submitted by Madison Springs concerning Borck and Law's non-affiliation with Madison Springs. The reason stated by Florida Housing's executive director was that when Madison Springs initially filed its cure documents, it did so under the wrong application number. The documents came in under Application No. 2009-194C, instead of 2009-195C. That mistake was a typographical or clerical error. In fact, Application No. 2009-194C had already been withdrawn prior to the time Madison Springs submitted its cure documents intended for Application No. 2009-195C. Thus, there would have been no reason for cure documents to have been filed for Application No. 2009-194C. The cure documents submitted by Madison Springs included a revised Exhibit 9, as discussed above. Florida Housing at some point realized that the cure documents, including Exhibit 9, actually belonged to the Madison Springs Application (2009-195C), rather than the withdrawn application. However, the cure was still not accepted because it had been filed under the incorrect application number initially. Florida Housing's executive director opined that there was, in effect, no way to cure the error once it had been made. No credible rationale for that position was espoused. Nevertheless, the evidence is clear that the owners of Madison Reserve are not affiliated with Madison Springs and were not affiliated with Madison Springs at the time the applications were filed in the 2009 Universal Cycle. The fact that Madison Springs submitted an Exhibit 9 in its application that was in error, stating that Borck and Law were owners of Madison Springs, does not independently create a legal ownership interest. Clearly, Madison Springs did not intend to sabotage the application of Madison Reserve. The principals of those entities are friends and have done business together. But the action taken begs the question of whether Florida Housing would allow representations in competing applications to void or undermine another applicant's submission. Florida Housing's executive director spoke frankly at the final hearing and said that sabotage scenarios would have to be looked at, but he did not believe that the instant case was such a scenario. Project Designation Issue The Madison Reserve application designated its intended project as "Garden Apartments" at page 7 of the application. The site plan form (Exhibit 26 to the application) submitted along with the application refers to the project as a "Garden" development type. In the local government verification form (Exhibit 32) accompanying the application, the development type is listed as "Planned Development Project Multi-Family" (PDP MF). The parties stipulate that "[a]lthough undefined in the Rules, 'Garden Apartments' means multi-family developments, and is considered a term of art within the development and real estate community."1 The project type is an essential part of an application because it puts other applicants on notice as to what their competitors are planning. Further, the project type dictates the kind of zoning that must be available in order to pursue the project. Part and parcel of the designation of project type is the verification by local zoning authority that the proposed site of the project is properly zoned. Applicants must show that the proposed development is appropriately zoned and is consistent with local land use regulations regarding density and intended use or that the proposed development is legally non-conforming. Neither "Garden Apartments," nor "Garden," is a term defined by the rules of Florida Housing, nor is the term used in the Hernando County Zoning Code. When the Hernando County zoning authority submitted its verification of zoning-- Exhibit 32--Garden Apartments was not listed as the development type, because there was no zoning designation in the county for that phrase. Rather, the zoning authority used the term, PDP MF, because it encompasses all permitted uses in the R-3 zoning district for which Madison Reserve's project was to be located. Hernando County recognized Madison Reserve's Garden Apartments as an intended PDP MF, but could not verify it under the name Garden Apartments. Madison Reserve's proposed development is appropriately zoned and is consistent with local land-use regulations regarding density and intended use as required.2 Gary Fisher, Hernando County Zoning Authority, provided verification on Madison Reserve's zoning form that the proposed development was properly zoned and that for zoning purposes in Hernando County, the proper development type for Madison Reserve's proposed Garden Apartments would be "Planned Development Project, Multi-Family." In Hernando County, PDP MF would allow for the construction of multi-family developments, such as the Garden Apartments proposed by Madison Reserve. Florida Housing maintains that despite its stipulation to the facts stated above, the Madison Reserve application fails because the application was not properly completed. Specifically, the use of varying terms, such as Garden, Garden Apartments, and PDP-MF, although meant to be the same project by Madison Reserve, were not the exact same wording. There is no dispute as to what the project is meant to be, so the discrepancy is basically form over substance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Respondent, Florida Housing Finance Corporation, deeming Petitioner, Madison Reserve, Ltd.,'s, application to have met the zoning threshold; that the application be granted Priority I status; and that the application meets or exceeds all statutory and rule criteria. DONE AND ENTERED this 9th day of November, 2010, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 9th day of November, 2010.
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on December 8, 2003.
Findings Of Fact Petitioner is an African-American man who was employed by Respondent from July 16, 2003, until his termination on October 28, 2003. Respondent, North Florida Lubes, Inc., d/b/a/ Texaco Xpress Lube, is an employer within the meaning of the Florida Civil Rights Act of 1992. Respondent operates more than 25 Texaco Xpress Lube stores in Florida and is headquartered in Jacksonville, Florida. Brian Fowler is Respondent’s owner and president. In the summer of 2003, Respondent acquired two lube stores and a car wash in Ocala, Florida. Prior to their acquisition by Respondent, these Ocala stores were owned and operated by John Costa. One location included both the car wash and lube store and is located at 3680 East Silver Springs Boulevard. It was purchased in June 2003 and once acquired, Respondent designated it as Store No. 1018 (1018 Store). The other location, which is located at 1708 East Silver Springs Boulevard, was acquired by Respondent in July 2003, is a lube store and has been designated by Respondent as Store No. 1020 (1020 Store). Respondent leases the 1020 store from John Costa under a lease purchase agreement. At the time of their acquisition, both stores were in very poor condition, and Respondent made major repairs and improvements. The 1020 Store was in worse condition than the 1018 Store. Due to extensive renovations, the 1020 Store did not open for business until the beginning of August 2003. At the time Respondent acquired these two Ocala stores, neither store was earning a profit. The 1018 Store was barely breaking even and had monthly sales revenues dating back to June of 2002 of between $11,000 and $14,000 per month. These sales figures were based on a volume of about 350 cars per month and equated to a monthly ticket average of $28 per car. Prior to the acquisition by Respondent, the 1020 Store was doing even worse with a monthly sales revenue of between only $9,000 and $11,000. Since Respondent has taken over these stores, they have virtually doubled their total sales. Currently, Respondent's 1018 Store averages between $32,000 and $34,000 in monthly sales; whereas the 1020 Store has increased its monthly sales revenues by 30 percent. Respondent's normal and expected ticket average company-wide is between $47 and $50 per car. Immediately prior to Respondent’s acquisition of the two Ocala lube stores, Petitioner worked for Mr. Costa as the manager of what is now the 1020 Store. He was the manager of the store for three years and had several years of oil-changing experience. Another employee of Mr. Costa’s was a white male, Jason Yates, who managed what is now the 1018 Store. About the time of Respondent’s acquisition of the two stores, Petitioner went on vacation. When he returned, the 1020 Store was closed, so he went to the 1018 Store. As there had been a change in ownership, Petitioner applied to work for Respondent. He was offered and accepted a job as an oil changer and lube technician with Respondent and began work at the 1018 Store. Mr. Yates also was offered and accepted a position as an oil changer and lube technician with Respondent. Mr. Yates began employment with Respondent in June 2003 at the 1018 Store, several weeks before Petitioner began his employment with Respondent. Both Petitioner and Mr. Yates believed they were in training for a management position. However, there is not an official job title of "manager-in- training" within Respondent’s company. Hourly employees can receive on-the-job managerial training. In any event, there is no dispute that both Petitioner and Mr. Yates performed oil changing duties and that Respondent provided Petitioner with some managerial training during his employment. When Petitioner began working at the 1018 Store, Mark Shepherd was store manager and was responsible for training new staff with Respondent’s business practices and rules. Mr. Shepherd showed Petitioner how to run Respondent’s computer software programs, how to calculate money received, and how to open and close the store. Then Respondent transferred Richard Grant, an experienced store manager from Respondent’s Daytona Beach area, to manage the 1018 Store. Mr. Grant supervised Petitioner for a couple of months before Mr. Grant voluntarily resigned due to what he described as the pressure associated with running the 1018 Store. Petitioner was given on-the–job training with respect to making sales and greeting customers. According to Mr. Grant, Petitioner was not good at greeting customers or making sales because he was slow, quiet, and not out-going. Mr. Grant described Petitioner as having a poor attitude and always complained about the way Respondent did things and the operational changes since Respondent’s acquisition of the store. Respondent emphasized to Mr. Grant that it wanted its employees to be energetic, enthusiastic, and upbeat, and Mr. Grant felt that Petitioner did not have those characteristics. Mr. Grant repeatedly counseled Petitioner about wearing his safety glasses while at work, which was part of Respondent’s safety policy. Further, Mr. Grant counseled Petitioner on the importance Respondent placed on maintaining clean work areas. He described Petitioner’s work area as not clean and the worst "basement" (i.e., oil changing area) that he had ever seen. Larry Campbell is a regional or district manager for Respondent. This position is directly under the president of the company in the chain-of-command. Mr. Campbell oversees approximately a dozen lube stores and the car wash. He spent a great deal of time in the 1018 Store during Petitioner’s employment there. At one point, Mr. Campbell was asked by Mr. Grant if he should fire Petitioner. However, Mr. Campbell wanted to give Petitioner a chance to come around to Respondent’s way of doing business. Specifically, on a daily basis, he gave Petitioner the opportunity to greet customers, ring out tickets, work on the computer, work the clipboards, and conduct sales. However, Mr. Campbell also expressed similar concerns regarding Petitioner, to those of Mr. Grant. According to Mr. Campbell, Petitioner was quiet, slow, lacked energy and enthusiasm, was resistant to Respondent's ways of doing things, and would not smile or make eye contact with the customers. Although Petitioner received training on Respondent's procedures, he did not follow those procedures, even after being counseled by Mr. Campbell to do so. Petitioner also would not promote sales or specials that Respondent was offering to the customers despite being counseled to do so by Mr. Campbell. Mr. Campbell also described Petitioner as consistently displaying a bad attitude at work that got worse as the day progressed. As a regional manager, Mr. Campbell, along with Respondent's president and owner, Mr. Fowler, participates in the hiring of store managers. Respondent looks for positive, motivated, and enthusiastic individuals with leadership qualities; however, Mr. Campbell did not observe these qualities in Petitioner. Mr. Fowler also had occasion to observe Petitioner's attitude and work ethic at the 1018 Store. Like both Messrs. Grant and Campbell, Mr. Fowler found Petitioner to be quiet, stand-offish, and resistant to Respondent's way of doing things. Respondent's Business Philosophy and Practices Although both Mr. Costa and Respondent successively operated oil change businesses in the same two locations, the manner in which these two businesses were run was very different. Respondent has uniform standards to which all employees are required to adhere, regardless of whether they are responsible for sales, changing oil, greeting the customers, or ringing the customers out. Respondent has policies and procedures for how every position is to be performed. Respondent also has policies addressing how its employees will act, communicate, conduct themselves, and dress in the workplace. For example, employees are required to be well-groomed and wear clean uniforms with their shirt tails tucked in. Further, employees are specifically required to use certain commands and perform services in a certain order. By contrast, Mr. Costa's lube stores had no procedures or controls, no communications, no "echo system," and no standard methodology for servicing cars. In Respondent's business, efficiency is considered to be critical. As a result, Respondent strives to service each car in under ten minutes and places an emphasis upon its employees to "hustle" while on the job. In particular, Respondent has a "five second" rule, which mandates that its employees must greet a customer within five seconds of the customer's arrival. Respondent specifically trains its employees concerning not only how to work quickly, but also how to appear knowledgeable, friendly, and helpful to its customers. Unlike Respondent, the previous owner placed no such pressures on his employees. Similarly, Respondent has established a ticket average quota, which the previous owner did not. Respondent also has strict safety policies. These policies are reduced to writing and are reviewed with all of Respondent's employees. These safety policies have been approved by OSHA and all employees are expected to follow them. One such safety policy is the requirement that employees wear safety goggles or glasses at work. In Respondent's very competitive business, all employees, no matter what position they hold, are expected to exhibit an upbeat and enthusiastic attitude. Respondent’s philosophy is that a negative attitude can drain the efficiency of the work team at a store. Also, a positive attitude is considered important because each day, every employee of Respondent's has some customer interaction. Respondent believes that a positive attitude is so critical for its employees to have that it states on the first page of its Employee Handbook that: North Florida Lubes is committed to service excellence, quality control and employee personality. North Florida Lubes demands the highest standards from its employees, as the quick lube and car wash industries become more and more competitive every year. Over the years, North Florida Lubes has improved training methods, computer systems, equipment and service procedures to insure the highest level of employee and customer satisfaction. It is the philosophy of North Florida Lubes that well trained employees, with positive attitudes, will enjoy a long, fulfilling career with any company they choose to work for. At North Florida Lubes, we hope that you will enjoy your employment experience and that you will be involved with the growth of America's fastest growing Texaco Xpress Lube operator. Remember, a consistent positive attitude, dependability and personality will be your greatest assets in growing with North Florida Lubes. Respondent's Promotion of Other Employees to the Position of Store Manager. Respondent did not promise Petitioner that he would be promoted to a store manager position. Notably, Petitioner acknowledges that at the time he was hired by Respondent, that he had not yet learned Respondent's methods of operation. Petitioner also acknowledges at the time he was hired, the 1018 Store had both a store manager, Mark Shephard, and an area manager, Mike Dogherty, based there. Petitioner further concedes that Respondent never told him that he was not being considered for a managerial position because he was African- American. The determination of who is or is not qualified to be promoted to the position of manager of one of Respondent's lube stores is made by Messrs. Fowler and Campbell. Respondent's promotion policy states that if there are two or more employees whose qualifications are similar, seniority will be part of the selection decision, but the decision will not be made on that basis alone. It also clearly states that an employee must be qualified in order to receive a promotion and that if there are no qualified applicants within the company, the best qualified candidate will be chosen. In early August of 2003, Mr. Campbell transferred Mr. Yates to be the manager of the newly-opened 1020 Store. At the time, Mr. Yates had more seniority and experience working for Respondent than Petitioner did, as he had been working at the 1018 Store about a month-and-a-half longer than Petitioner. Mr. Campbell decided to place Mr. Yates in charge of the 1020 Store because he had achieved all of the goals Respondent was looking for. Specifically, Mr. Yates met Respondent's ticket average, he could operate the computer, and he followed Respondent's procedures. Mr. Campbell also described Mr. Yates as energetic and trying to apply himself. By contrast, Mr. Campbell found that Petitioner did not perform these same functions, despite being given numerous opportunities to do so and despite being given instruction as to what he was doing wrong. Mr. Campbell specifically counseled Petitioner while he was receiving on-the-job managerial training that he was not getting the job done. Ultimately, because of his poor attitude, lack of leadership skills, inability to meet Respondent's ticket average, and promote Respondent's products and services, Mr. Campbell, and ultimately Mr. Fowler, determined that Petitioner was not appropriately suited to be one of Respondent's store managers. Under Respondent's promotion policy, if there are no qualified applicants within the company to fill a vacancy, Respondent may look outside of the company to hire the best qualified applicant. This is what Respondent did with James Bailey when it determined Petitioner to be not qualified. After Mr. Grant resigned as manager of the 1018 Store in early October of 2003, Respondent hired James Bailey, a white male, to manage that facility. At the time Mr. Bailey was applying for this position, Messrs. Campbell and Fowler had already determined that Petitioner did not have the necessary qualifications to be one of Respondent's store managers. Upon making this determination, Mr. Campbell informed Petitioner that he was not suited to be one of Respondent's store managers. Mr. Bailey was interviewed by Mr. Campbell and then hired by Messrs. Campbell and Dougherty, with Mr. Fowler's approval. Prior to working for Respondent, Mr. Bailey had spent approximately eight years working for Denro Service Center as an automotive mechanic's helper. In that capacity, he performed oil changes, lube jobs, tune-ups and brake jobs in New York. Over the course of his employment with Denro Service Center, Mr. Bailey performed hundreds, if not thousands, of oil changes. Mr. Bailey also possessed approximately 15 years of managerial experience before coming to work for Respondent. In particular, he had managed a Subway Restaurant and a Kwik King Convenience Store, as well as the Denro Service Center. During the time he managed a Subway Shop, he doubled that store's sales and credits himself with driving the Miami Sub Shop across the street out of business. Since Mr. Bailey became the manager of the 1018 Store, the sales at that location have drastically increased. By following Respondent's system to the letter, the 1018 Store went from monthly sales of $13,000 in January of 2003 (i.e., when Costa owned it) to $35,000 in January of 2004. In addition to Messrs. Grant, Campbell, and Fowler, Mr. Bailey also had an opportunity to observe Petitioner while he worked at the 1018 Store. Mr. Bailey described Petitioner as being unmotivated, lackadaisical, stand-offish, unprofessional, and surly. According to Mr. Bailey, Petitioner spent more time at work on his personal cell phone than he did working on cars. Mr. Campbell insists that Petitioner's race played no role in the decision not to promote Petitioner. Mr. Campbell has promoted several African-American employees, including Michael Ghent and Marvin Freeman, to managerial positions in Respondent's operations. Mr. Campbell has also recommended another African-American for such a promotion, but that employee declined. Mr. Ghent has managed a store for Respondent for approximately nine years and asserts that he has never experienced anything which he considered to be racial discrimination from Mr. Campbell. Similarly, Mr. Freeman currently serves as a store manager for Respondent and has managed a total of four of Respondent's stores. Mr. Freeman is familiar with Messrs. Fowler, Campbell, and Dogherty and asserts that he has never been subjected to racial discrimination by any of these individuals. Further, Mr. Campbell recommended Mr. Freeman for a promotion which he received, and Mr. Freeman was hired back after he voluntarily left employment to work for another company. Respondent's Termination of Petitioner According to Mr. Campbell, Petitioner's attitude and work ethic declined further after Respondent hired Mr. Bailey. In particular, Mr. Campbell described Petitioner as always having a negative attitude and showed no interest in doing things the way Respondent wanted them done. Although Mr. Campbell spoke to Petitioner about his deteriorating attitude before he was terminated in an effort to allow him to change, Mr. Campbell did not observe improvement in Petitioner's work habits. On October 28, 2003, Respondent terminated Petitioner's employment. Although Messrs. Campbell, Dogherty, and Fowler were involved in the decision to terminate Petitioner, Mr. Fowler made the ultimate decision. The decision to terminate Petitioner was made because of Petitioner's: negative attitude, which was impacting Respondent's other staff; (b) unwillingness to learn Respondent's way of doing things; and (c) constant resistance to the changes Respondent implemented in the workplace. At the time of his termination, Petitioner had been given almost four months to turn his attitude and performance problems around, yet he had not done so to the satisfaction of Respondent. Petitioner's Allegations of Discrimination Petitioner initially claimed that three employees of Respondent, Messrs. Campbell and Dogherty, and Kathy Dogherty, are the individuals who discriminated against him on the basis of his race. Ms. Dogherty was the manager of the car wash facility which was also located at the 1018 Store. Petitioner alleges she made racially offensive comments to him. Petitioner acknowledges that store managers, Messrs. Shepherd and Grant, did not discriminate against him and now concedes that Mr. Dogherty did not make any racially derogatory remarks against him and did not articulate any other form of discrimination regarding Mr. Dogherty. Ms. Dogherty did not testify at the hearing. Accordingly, any alleged statements by her are hearsay and are not sufficient in itself to support a finding of fact as contemplated by Subsection 120.57(1)(c), Florida Statutes. Petitioner asserts that Mr. Campbell made two racially discriminatory remarks about him. On one occasion, Petitioner alleges that Mr. Campbell stated that he (Petitioner) made more money on his cell phone than he did working for Respondent. Petitioner never heard Mr. Campbell make this statement nor did he ever confront Mr. Campbell about the statement, after learning of it, to ascertain what Mr. Campbell may have meant by it, because he "didn't want to rock the boat." Instead, this statement was overheard by Mr. Yates, who perceived Mr. Campbell to mean that because Petitioner was African-American, he must be selling drugs on his cell phone. Mr. Yates admitted, however, that Mr. Campbell did not say anything about Petitioner's race when making this statement and that he did not know what Mr. Campbell's intent was in making this statement. Mr. Yates further conceded that he witnessed Petitioner on his cell phone at the time Mr. Campbell made this statement and that Petitioner, who was being paid an hourly wage, was talking on his personal cell phone while on company time. Mr. Yates also acknowledged that Respondent had a policy in its Employee Handbook restricting the receipt of personal calls while at work. Mr. Campbell acknowledges making the statement that Petitioner made more money on his cell phone than he did working for Respondent, but denies that he intended any racially derogatory connotation or that he was implying Petitioner was dealing drugs. According to Mr. Campbell, Petitioner spent an inordinate amount of time on his cell phone attending to personal business while on company time, instead of performing work; thus, what he meant to convey was that Petitioner was being paid by Respondent to be on the phone instead of performing his job. Petitioner's cell phone usage while at work was frustrating to Mr. Campbell because it was not productive, it caused a distraction in the workplace, and it was contrary to Respondent's personal phone call policy. Mr. Campbell was not the only one of Petitioner's supervisors to remark about Petitioner's excessive cell phone usage at work. Mr. Bailey asserted that Petitioner spent more time talking on his cell phone than he did working on cars and that Petitioner was on his cell phone while draining oil from the customer's cars. Similarly, Mr. Grant noted that Petitioner used his cell phone while on company time "quite a lot." Respondent's Quarterback Rating System is a percentage-based rating system for Respondent's managers similar to the system used in the National Football League (NFL) for rating quarterbacks and consists of four rating categories: meeting the monthly sales quota; (2) meeting the agreed-upon ticket average; (3) servicing a certain number of cars per month; and (4) not exceeding the labor cap. Petitioner alleges that once while explaining Respondent's Quarterback Rating System, Mr. Campbell instead talked to him about a basketball analogy so that Petitioner could understand it. Mr. Campbell, while acknowledging talking about basketball and other sports to Petitioner, denies ever making such a comment and further states that he cannot envision how to explain Respondent's Quarterback Rating System via a basketball analogy, because it is distinctly based upon the game of NFL football (which has a quarterback) and is not comparable to the game of basketball (which does not have a quarterback and does not use a similar rating system). After weighing the credibility of the witnesses, the undersigned finds Mr. Campbell's explanation of any basketball reference to be credible and such explanation is accepted. Petitioner acknowledges that he never complained to Mr. Fowler about any racial remarks or discrimination at any time during his employment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 14th day of January, 2005, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 2005.
The Issue Whether Respondent John A. Neilson is guilty of misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust in any business transaction, in violation of Subsection 475.25(1)(b), Florida Statutes. Whether Respondent John A. Neilson is guilty of failure to account or deliver funds, in violation of Section 475.25(1)(d)1, Florida Statutes. Whether John A. Neilson is guilty of failure to maintain trust funds in the real estate brokerage escrow account or some other proper depository until disbursement thereof was properly authorized, in violation of Section 475.25(1)(k), Florida Statutes. Whether Respondent John A. Neilson is guilty of failure to notify the Petitioner of an escrow deposit dispute or good faith doubt as required by Florida Administrative Code Rule 61J2-10.032, and therefore in violation of Section 475.25(1)(e), Florida Statutes.
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular, Section 20.30, Florida Statutes, Chapters 120, 455, and 475, Florida Statutes and the rules promulgated pursuant thereto. Respondent is and was at all times material hereto a licensed Florida real estate broker having been issued license number 0342188 in accordance with Chapter 475, Florida Statutes. The last license issued was as a broker-salesperson, percentHenry Gauthier, Jr. t/a/ Brevard Business Brokers, 1325 N. Atlantic Avenue, Cocoa Beach, Florida 32931. Between January 21, 1992 and April 9, 1993, Respondent John A. Neilson was the qualifying broker of Cocoa Beach Realty. Henry L. Gauthier became Respondent Neilson's employing broker about April 9, 1993. On February 6, 1993, Respondent Neilson solicited and obtained a contract between seller Ila M. Martin and buyers Charles F. and Belle L. Mosser for the purchase of the house at 465 Skylark Boulevard in Satellite Beach, Florida. According to the contract the buyers entrusted Respondent Neilson with a $3,000.00 earnest money deposit. The transaction was scheduled to close on April 7, 1993. A few days prior to closing the buyers discovered that there was a cluster of amyotrophic lateral sclerosis (ALS) cases in the area of the home as evidenced by newspaper articles. At no time material did Respondent Neilson disclose the cluster problem in the area to Mosser. The buyers told Respondent Neilson that they would not close because of the ALS cluster in the area. They also advised they were not ready to close for other reasons. On April 8, 1993, Respondent Neilson closed his brokerage and disbursed the $3,000.00 to Mr. Gauthier without the consent of the buyers. Respondent Neilson then became a broker salesperson with Mr. Gauthier as qualifying broker. On April 8, 1993, Gauthier disbursed the deposit, half to the seller and half to Respondent Neilson, without the knowledge or consent of the buyers, and without a written release. By letter dated April 17, 1993, the buyers made a demand upon Gauthier for the return of their deposit. At no time did the Respondents deliver the deposit to the buyers or notify the Petitioner of conflicting demands or good faith doubts about the disbursal of funds.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Respondent John A. Neilson be found guilty of having violated Sections 475.25(1)(d)1,(1)(k), and (1)(e), Florida Statutes as charged in the Administrative Complaint. It is further RECOMMENDED that Respondent John A. Neilson be found not guilty of having violated Section 475.25(1)(b), Florida Statutes. RECOMMENDED that Respondent John A. Neilson be reprimanded and fined $1,500.00. DONE and ENTERED this 14th day of August, 1995, in Tallahassee, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of August, 1995. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.57(1)(b)9., Florida Statutes. Proposed findings of fact submitted by Petitioner. Accepted in substance: paragraphs 1-15. Proposed findings of fact submitted by Respondent. None COPIES FURNISHED: Steven W. Johnson, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Orlando, Florida 32802 John A. Neilson Brevard Business Brokers 1325 N. Atlantic Avenue Cocoa Beach, Florida 32931 Henry L. Gauthier, Jr. Brevard Business Brokers 1325 N. Atlantic Avenue Cocoa Beach, Florida 32931 Darlene F. Keller Division Director 400 West Robinson Street Orlando, Florida 32802-1900 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32388-0792
The Issue The issues in this case are whether Respondent violated Subsections 1012.795(1)(c), 1012.795(1)(f)), and 1012.795(1)(i), Florida Statutes (2004-2007),1 and Florida Administrative Code Rule 6B-1.006(5)(d), and, if so, what discipline should be imposed.
Findings Of Fact Mr. Jefferson holds Florida Educator Certificate 922324, covering the areas of Educational Leadership and Social Science, which is valid through June 30, 2013. At all times pertinent to the allegations in the Administrative Complaint, Mr. Jefferson was employed as a social studies teacher at Tarpon Springs High School in the Pinellas County School District. In 2003, Mr. Jefferson became romantically involved with Elaine Navas (Ms. Navas), who was a teacher at Tarpon Springs High School. At the time that the relationship began, Ms. Navas was married and in the process of getting a divorce. It was agreed that the relationship would not become public while Ms. Navas was still married. The relationship lasted about a year and ended in January 2005, when Ms. Navas got her final divorce decree and settlement. The termination of their relationship was by mutual agreement. However, Mr. Jefferson continued to insinuate himself into Ms. Navas’ life. Mr. Jefferson would come to Ms. Navas’ classroom and ask her for sex or money. Ms. Navas started locking her classroom door in an attempt to prevent Mr. Jefferson from coming into her classroom uninvited. Mr. Jefferson started entering Ms. Navas’ classroom by going through the connecting classroom of another teacher. Mr. Jefferson would pressure Ms. Navas to have sex with him by twisting her arm behind her back and pushing her against a wall both at school and at her home. Mr. Jefferson injured Ms. Navas’ arm by twisting it to the extent that Ms. Navas consulted an orthopedic surgeon and had eight weeks of physical therapy. He would also grab her hair and wrap it around his hand so that she could not move. Sometimes he would put his hands around her throat and push her into a corner. At times, he would throw her on the bed and put a pillow over her face until she stopped moving. After the relationship ended, Mr. Jefferson would go to Ms. Navas’ home unannounced, and Ms. Navas would tell him not to come back to her home. Mr. Jefferson did not comply with Ms. Navas’ request and continued to go to her house. Mr. Jefferson would make comments to her such as, “you’ll never keep me out of your house.” Mr. Jefferson’s actions toward Ms. Navas affected her teaching. She became shaky, nervous, jumpy, and irritable with the students because she felt she was under constant pressure from Mr. Jefferson and was stressed by not knowing what he would do next. Ms. Navas continued to have sex with Mr. Jefferson after the relationship ended because he either wore her resistance down and she felt that having sex with him would stop his harassment or he forced her to have sex with him. Sometimes they had sex at her house and, on occasion, would spend a weekend at a hotel at the beach. Wayne McKnight (Mr. McKnight) has been the assistant principal at Tarpon Springs High School for the past eight years. Ms. Navas was a friend of Mr. McKnight through their mutual involvement in the band boosters. Ms. Navas shared her concerns with Mr. McKnight about Mr. Jefferson’s harassing behavior. Ms. Navas realized that she was in an abusive relationship with Mr. Jefferson. She taught a women’s study course for the 2006-2007 and 2007-2008 school years. In the course, she was teaching students the signs to look for in an abusive relationship. As a result of teaching the women’s study course, she finally worked up the courage to do something about her relationship with Mr. Jefferson. On March 31, 2008, Ms. Navas met with the principal of Tarpon Springs High School, Edward Vermere (Mr. Vermere), to discuss her situation with Mr. Jefferson. Mr. Vermere asked her to write a statement detailing her complaints against Mr. Jefferson. Ms. Navas complied and gave Mr. Vermere a written statement dated April 21, 2008. Prior to June 5, 2008, William Peters (Detective Peters), a detective with the Tarpon Springs Police Department, had been informed by the school resource officers at Tarpon Springs High School of Ms. Navas’ allegations against Mr. Jefferson. Detective Peters started an investigation of the allegations. At 7:52 a.m. on June 5, 2008, Ms. Navas was at home asleep in her bed. She received a telephone call from Mr. McKnight. While Ms. Navas was talking to Mr. McKnight, she looked up, and Mr. Jefferson entered her bedroom. She had not invited him to come to her home, but Mr. Jefferson had entered through an unlocked side door. While still on the telephone with Mr. McKnight, she asked Mr. Jefferson how he had gotten into her home and frantically told him several times to leave. Mr. Jefferson left her house. Mr. McKnight told Ms. Navas to call Mr. Vermere. Ms. Navas called Mr. Vermere, who told her to call Detective Peters. She placed a frantic call to Detective Peters, who called the school resource officers to go to her home to check on her. Detective Peters interviewed Mr. Jefferson in Mr. Vermere’s office at the high school. Before Detective Peters began to question Mr. Jefferson, he advised Mr. Jefferson of his Miranda rights. Mr. Jefferson told Detective Peters that he had entered Ms. Navas’ home without her permission and that in the past Ms. Navas had told him to leave her alone and stay away from her residence. Mr. Jefferson told Detective Peters that he gone to Ms. Navas’ home on that day to bring her a muffin and to tell her how sorry he was for the way things had gone on between them. Mr. Jefferson was arrested for stalking. An article appeared in the local newspaper about Mr. Jefferson’s arrest. At the final hearing, Mr. Jefferson testified that he had gone to Ms. Navas’ home to tell her good morning and to see what she was doing. He had on his mind that they might discuss why Ms. Navas had not been selected for the discipline committee. Mr. Jefferson’s testimony giving his reasons for his being at Ms. Navas’ home on June 5, 2008, is not credible. After interviewing Mr. Jefferson and approximately three hours after the incident at Ms. Navas’ home, Detective Peters interviewed Ms. Navas. She was still distraught and appeared to Detective Peters to be genuinely concerned about her safety and the safety of her family. Ms. Navas filed a Petition for Injunction for Protection Against Repeat Violence against Mr. Jefferson. A Temporary Injunction for Protection Against Repeat Violence was issued on June 9, 2008, prohibiting Mr. Jefferson from having contact with Ms. Navas and prohibiting Mr. Jefferson from committing acts of violence against Ms. Navas. Mr. Jefferson agreed not to contest the entry of permanent injunction prohibiting contact with and acts of a violence against Ms. Navas. In exchange, Ms. Navas agreed to drop the stalking charges for which Mr. Jefferson was arrested. A permanent injunction against Mr. Jefferson was entered on June 19, 2008, and the stalking charges were dropped. Michelle Deweerd (Ms. Deweerd) taught at Tarpon Springs High School during the 2006-2007 and 2007-2008 school years. In April 2007, Ms. Deweerd entered into a personal, non- sexual relationship with Mr. Jefferson. She told Mr. Jefferson at the beginning of the relationship that she did not want a sexual relationship, and, at first, he agreed to such an arrangement. The relationship lasted about a month and a half. While at the public library in Tarpon Springs, Mr. Jefferson touched Ms. Deweerd’s leg. She drew away from him, and he told her that she would have to get used to him touching her. On several occasions, Mr. Jefferson told Ms. Deweerd that he “gets what he wants.” Mr. Jefferson would make inappropriate remarks to Ms. Deweerd such as asking her bra size and whether she wore thong underwear. One time when they were talking on the telephone, Ms. Deweerd advised him that she was doing her laundry. Mr. Jefferson told her, “Be careful with your underwear, you never know what might take it.” Ms. Deweerd told Mr. Jefferson that she did not want any kind of physical contact at school. Several times, Mr. Jefferson asked Ms. Deweerd to kiss him at school, and each time she declined. On May 23, 2007, Mr. Jefferson was helping Ms. Deweerd pack up her classroom materials for the close of the school year. He touched Ms. Deweerd on her arm, and she shuddered. He said he thought it was cute that Ms. Deweerd was so nervous. Later that day, Mr. Jefferson returned to her classroom and moved to kiss Ms. Deweerd. She told him, “Don’t,” and Mr. Jefferson replied, “Don’t tell me what to do.” Mr. Jefferson grabbed Ms. Deweerd’s face and kissed despite her protests. She told Mr. Jefferson that she did not want to have any relationship at all with him. Ms. Deweerd had planned to go to Michigan to spend her summer break. She was so upset by Mr. Jefferson’s kiss, that she cancelled an outing with friends so that she could pack and leave for Michigan. After Ms. Deweerd informed Mr. Jefferson that she did not want to have relationship with him, Mr. Jefferson began to call Ms. Deweerd. He called her 15 times during a 12-hour period, but she would not return his calls. He came to her home uninvited and began yelling at her through the door. He was angry because she had not returned his telephone calls. The day after Mr. Jefferson came to her house uninvited, Ms. Deweerd took her car to the repair shop to be serviced for her trip to Michigan. She rode her bicycle home from the repair shop. As she was getting near her home, she spied a pair of her underwear in the middle of the street. The evidence does not establish that Mr. Jefferson had taken the underwear. While Ms. Deweerd was in Michigan, she received numerous telephone calls from an unknown caller. She contacted the Michigan police, who in turn contacted the Tarpon Springs police. The calls were never traced to Mr. Jefferson, and the evidence does not establish that he made the calls. After Ms. Deweerd returned to Tarpon Springs High School for the 2007-2008 school year, she felt uncomfortable working in the same school with Mr. Jefferson. She shared her concerns with Mr. McKnight, who told her to talk to Mr. Vermere. She did talk to Mr. Vermere early in the fall of 2007, but did not reveal Mr. Jefferson’s name. Ms. Deweerd felt so uncomfortable around Mr. Jefferson, that she sometimes was scared to go home and spent the night at the home of Stephanie Bennett (Ms. Bennett), another teacher at Tarpon Springs High School, and her husband. Ms. Deweerd told Ms. Bennett about her fears concerning Mr. Jefferson, and, to Ms. Bennett, Ms. Deweerd appeared visibly scared. Ms. Deweerd returned to Michigan for the Christmas break in 2007. When she returned home, she found the light in her bedroom on. She walked to church the day after she returned home from Michigan and found a black pair of her underwear on the side of the road in the dirt. There is no direct evidence that Mr. Jefferson took the underwear and placed it in the dirt. Ms. Deweerd went to talk to Mr. Vermere after the latest underwear incident. He asked her to give a written statement, which she did. Neither Ms. Navas nor Ms. Deweerd was aware that the other had been asked to give a statement. Neither was aware that Mr. Jefferson had been harassing the other. As a result of the incidents with Mr. Jefferson and Ms. Navas and Ms. Deweerd, the Pinellas County School District reprimanded Mr. Jefferson and transferred him to Carwise Middle School. Ms. Deweerd did not continue her employment with Pinellas County School District for the 2008-2009 school year, but returned to Michigan. Mr. Jefferson has had no disciplinary problems since being transferred to Carwise Middle School. His work performance at Carwise Middle School has been good. The principal and the seventh-grade administrator at Carwise Middle School are pleased with his work.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Mr. Jefferson violated Subsections 1012.795(1)(c), 1012.795(1)(f), and 1012.795(1)(i), Florida Statutes, and Florida Administrative Code Rule 6B-1.006(5)(d) and permanently revoking his educator certificate. DONE AND ENTERED this 12th day of July, 2010, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 12th day of July, 2010.
Findings Of Fact The Petitioner is an Hispanic male who was employed as a sales host in the pastry department of the Respondent, Les Chefs de France, a restaurant located in the French Pavilion of Epcot Center at Walt Disney World. On August 12, 1983, the Petitioner and another employee of the Respondent, Mr. Kenneth Day, a non-Hispanic, were involved in a fight in Respondent's cooler, a refrigerated room located on the Respondent's premises. Ms. Brenda Kennedy was working in the Respondent's salad department at the time and she and another employee, Charles Hammel, were present in the cooler and witnessed the fight. Mr. Day had entered the cooler to pick up some supplies and was in the process of taking a tray out of a tram or rack when the Petitioner walked into the cooler and peremptorily told Day to get out of his way. When Day requested that the Petitioner wait until he was finished, the Petitioner shoved the tray back into the tram and pushed Day towards the back of the cooler. The Petitioner then began hitting Day with his fists. Francois Fourreau, the executive chef for the Respondent, heard a noise in the cooler at that point, looked through the window and saw Day holding the Petitioner and the Petitioner throwing punches at Day. Fourreau entered the cooler, separated the two men and directed them to leave the place of employment immediately. The Petitioner reported to the Walt Disney World infirmary and told the nurse to examine him, that he had been assaulted by another employee. A medical record prepared by that nurse indicated that the Petitioner suffered a laceration on his right hand and abrasions on his left arm. (Petitioner's composite exhibit 1 in evidence). Walt Disney World security was notified of the incident. Written statements regarding their versions of the incident were prepared by the Petitioner, Kenneth Day, Brenda Kennedy, and Francois Fourreau. Copies of them were provided to Bernie Juban, the Respondent's general manager. (See Respondent's exhibits 1 and 3 in evidence). On August 13, 1983, John Thall, who was the -assistant manager of food and beverages for the Respondent, met with Juban to discuss the incident. After reviewing the written statements, the two men decided that both Petitioner and Mr. Day should be terminated from employment in accordance with the established, consistent company policy which prohibited fighting on the job. The Petitioner was notified of this decision by a letter signed by Juban dated August 15, 1983. Day received a similar termination letter. The Petitioner acknowledges the existence of the company policy which provides that fighting may result in termination of all parties involved. This policy is contained in the employee policy handbook, which was in existence at the time of the incident and was given to all employees, including the Petitioner, at the time of their hire (Respondent's exhibit 2 in evidence). No employee who instigated or actively participated in an altercation during restaurant hours has been allowed to continue in the employ of the Respondent according to this policy which was shown to be consistently enforced. A previous incident had occurred between Mr. Fourreau and Eduardo Davilla, in which Davilla began punching Fourreau, his supervisor, in a disagreement over a work assignment. This altercation resulted in Davilla's termination, although Fourreau was not disciplined. Petitioner references this as an instance of Hispanics being discriminated against by the Respondent in favor of French Nationals employed by the Respondent. In that instance, however, Fourreau did not instigate nor actively participate in the altercation and thus the policy was not applicable to him. He simply put his arm in front of his face to protect himself. Mr. Thall had witnessed this incident, intervened in it, and stopped it by restraining Mr. Davilla from behind. This incident is further explained in Respondent's exhibit 5 in evidence. Prior to August 12, 1983, Mr. Day had threatened or in some other manner had an altercation with a supervisor, Christine Grassiot. Mr. Day was not disciplined by the Respondent for that incident. After the Respondent received the notice regarding the alleged discrimination in the instant case, Ms. Grassiot prepared a statement indicating that Mr. Day was only trying to irritate her at the time and that the episode was a totally personal matter between the two of them. The Respondent had no prior knowledge of this incident until the Petitioner alleged it in this cause as a basis for trying to show selective enforcement of the above policy. Prior to August 12, 1983, Day also reportedly had a disagreement of some sort with another employee of the Respondent, Kiki Babalagua, apparently involving him bumping into her with a "sheet pan" in the restaurant. Ms. Babalagua informed Brenda Kennedy of the incident and Day explained to Kennedy that he had accidentally bumped into her and apologized for it. In any event, this was not a fight or altercation as contemplated by the above-mentioned policy. Both Kennedy and Fourreau established that Ms. Babalagua was a difficult employee in terms of her personal relations with others and was "hard to get along with." She was later transferred to another location at her own request because she wanted to broaden her knowledge of the restaurant business and learn to work with pastries. Prior to August 12, 1983, Jean Luc Nichols, an employee of the Respondent working in a test kitchen at Disney Central Foods, was transferred by the Respondent at the personal request of a Walt Disney World manager, Mr. John Cardone, apparently to avoid a personality conflict. There is no evidence to show that Ms. Nichols was transferred because of a fight or other altercation. Finally, Petitioner acknowledges that the phrase "les imigres" translates in English as "the immigrants" and is not a standard cultural slur in the French language. Additionally, the testimony of Mr. Fourreau refuted Petitioner's allegation that this phrase had assumed a particular derogatory or discriminatory meaning among employees and staff at the restaurant.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the arguments of the parties, it is, therefore RECOMMENDED that the petition for relief filed by the Petitioner, Leonardo A. Zapata, be DISMISSED. DONE and ORDERED, this 25th day of July, 1986 in Tallahassee, Florida. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 1986. APPENDIX Petitioner's Proposed Findings of Fact Paragraph I : accepted, but not material to resolution of the material issues presented. : rejected as irrelevant. : rejected as contrary to the preponderant evidence. (d): rejected as irrelevant. : accepted, but irrelevant. : rejected as contrary to the preponderant evidence. (a): rejected as constituting argument and not supported by the evidence. (b): rejected as constituting argument and discussion of evidence and testimony. (a): rejected as immaterial.- (b): accepted but immaterial in the full context of the witness's testimony. (c): (same as (b). : rejected as not supported by record evidence. (a): accepted, but not supportive of Petitioner's position. : rejected as contrary to the greater weight of the evidence. : (same as (b)) (a): rejected as not supported by the greater weight of the evidence. : accepted, but irrelevant to resolution of the material issues presented. : accepted, but immaterial. (d): accepted, but immaterial. (e): accepted but not dispositive in itself. (f): rejected as to its purported import; merely argument. : rejected as not supported by preponderant testimony and evidence. : accepted, but immaterial to resolution of the issues at bar. : (same as (g) above.) Respondent's Proposed Findings of Fact Paragraph 1. - accepted - accepted - accepted - accepted - accepted - accepted - accepted - accepted - accepted - accepted Copies furnished: Leonardo A. Zapata Post Office Box 1934 Kissimmee, Florida 32742 Susan K. McKenna, Esquire Post Office Box 60 Orlando, Florida 32802 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303
The Issue The Department adopts and incorporates in this Final Order the Statement of the Issue presented in the Recommended Order.
Findings Of Fact The Department adopts and incorporates in this Final Order the Findings of Fact set forth in the Recommended Order.
Conclusions This cause came before the Department of Revenue for the purpose of issuing a final order. The Administrative Law Judge assigned by the Division of Administrative Hearings issued a Recommended Order dated July 5, 2001, sustaining in full the Department’s assessment. Petitioner timely filed exceptions to the Recommended Order, but Petitioner subsequently withdrew its exceptions by way of letter dated September 7, 2001. The Department filed no exceptions to the Recommended Order and there are no proposed substituted orders to consider. A copy of the Recommended Order is attached to this Final Order and is specifically incorporated by reference. The Department has jurisdiction of this cause.
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the , Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the Agency Clerk of the Department of Revenue and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the appellate District where the party resides. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed.
