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 Whether Respondent violated Subsections 475.25(1)(b), (1)(d)1, and (1)(e), Florida Statutes, and, if so, what discipline should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made: Petitioner is a state government 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 20.165 and 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 salesperson, issued license number 0530788 in accordance with Chapter 475, Florida Statutes. The last license issued to Respondent was an involuntary inactive salesperson at 2156 Turnberry Drive, Oviedo, Florida 32764. On or about April 13, 2000, an Administrative Law Judge entered a Recommended Order finding Respondent guilty of violations of Subsections 721.11(4)(a), (h), (j), and (k), Florida Statutes (1995), by making oral misrepresentations in his sales pitch to timeshare purchasers. On or about June 15, 2000, the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes, issued a Final Order adopting the Findings of Fact and Conclusions of Law of the Administrative Law Judge and rejecting all of Respondent's exceptions. In the Final Order, the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes, ordered Respondent to cease and desist from any further violations of Chapter 721, Florida Statutes, and ordered Respondent to pay a penalty of $28,000. As of September 24, 2002, Respondent had failed to pay the penalty pursuant to the terms of the Final Order of the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes. On or about July 22, 2000, a uniform disciplinary citation was issued to Respondent for failing to notify the Florida Real Estate Commission of his current mailing address or any change of the current mailing address in violation of Rule 61J2-10.038, Florida Administrative Code. Pursuant to proper authority, the Florida Real Estate Commission penalized Respondent $100 for the violation. At the time he received the uniform disciplinary citation, Respondent was advised as follows: "You have a total of 60 days from the date this citation was served upon you to pay the fine and costs specified. This citation automatically becomes a Final Order of the board if you do not dispute this citation within 30 days of the date this citation was served upon you. As a Final Order, the fine and costs shall be due to the board within 30 days of the date of the Final Order. After this citation has become a Final Order, failure to pay the fines and costs specified constitutes a violation of a Final Order of the board and may subject you to further disciplinary action." On or about August 22, 2002, the citation became a Final Order. As of September 24, 2002, Respondent had failed to pay the penalty pursuant to the terms of the Final Order of the Florida Real Estate Commission. Respondent had more than 20 years' experience selling timeshare units as a salesman, sales manager or sales director; he had worked in sales at various Central Florida timeshare resorts since 1979. Between July 1995 and March 1997, Respondent was employed as a salesman and sales director by Vocational Corporation, the owner/developer of Club Sevilla, a timeshare resort property. On October 24, 1995, Respondent participated in a sales presentation to Raymond and Charlene Sindel at Club Sevilla, which resulted in their purchase of a timeshare. During the sales presentation, Respondent made the following false, deceptive and misleading statements which induced the Sindels to purchase the timeshare: (1) the Sindels would become members of Interval International, a timeshare exchange program, in which they could exchange their timeshare and/or utilize another timeshare for $79 or $99 a week 52 weeks per year; and (2) representatives of Tri Realty would sell their existing timeshare before the end of the year. On October 24, 1995, Respondent participated in a sales presentation to Clarence and Maxine Shelt at Club Sevilla, which resulted in their purchase of a timeshare. During the sales presentation, Respondent made the following false, deceptive and misleading statement which induced the Shelts to purchase the timeshare: the Shelts would become members of Interval International, a timeshare exchange program, in which they could exchange their timeshare and or utilize another timeshare for $79 a week 52 weeks per year. On June 26, 1996, Respondent participated in a sales presentation to Eugene and Mildred Plotkin and their son, Daniel, at Club Sevilla, which resulted in the purchase by Eugene and Mildred Plotkin of a timeshare. During the sales presentation, Respondent made the following false, deceptive and misleading statements which induced the Plotkins to purchase the timeshare: (1) a timeshare owned by the Plotkins in Las Vegas, Nevada, would be sold within two months; (2) the Plotkins would receive a low-interest credit card with which they would finance the purchase of the Club Sevilla timeshare and that their Las Vegas timeshare would be sold quickly enough that they would not have to pay any interest on the credit card; and (3) the Plotkins would become members of Interval International, a timeshare exchange program, in which they could utilize another timeshare anywhere for $149 a week. On July 26, 1996, Respondent participated in a sales presentation to Robert and Susan Bailey at Club Sevilla, which resulted in their purchase of a timeshare. During the sales presentation, Respondent made the following false, deceptive and misleading statements which induced the Baileys to purchase the timeshare: (1) they would receive a low-interest credit card within ten days with a $20,000 credit limit with which they could finance the timeshare purchase; and (2) the Baileys would receive a prepaid 52-week membership in Interval International, a timeshare exchange program. In September 1996, Respondent participated in a sales presentation to Thomas and Betty Prussak at Club Sevilla, which resulted in the purchase of a timeshare. During the sales presentation, Respondent made the following false, deceptive and misleading statements which induced the Prussaks to purchase the timeshare: (1) timeshares owned by the Prussaks in Westgate and Club Sevilla were valued at $12,000 each and that these timeshare units would be sold if the Prussaks purchased a new timeshare unit at Club Sevilla; (2) that the new Club Sevilla timeshare unit would be a "floating" unit (could be used anytime); and (3) that the new Club Sevilla timeshare would be rented and that the Prussaks or their daughter would be able to take "getaway" weeks and stay at any RCI timeshare for $149 per week. On December 11, 1996, Respondent participated in a sales presentation to Larry and Carla Eshleman at Club Sevilla, which resulted in their purchase of a timeshare. During the sales presentation, Respondent made the following false, deceptive and misleading statements which induced the Eshlemans to purchase the timeshare: (1) the Eshlemans would receive a low-interest credit card with which they could finance the timeshare purchase; (2) the Eshlemans would become members of Interval International, a timeshare exchange program, in which they could exchange their timeshare and utilize another timeshare for $149 a week; and (3) the timeshare the Eshlemans owned prior to their purchase of the Club Sevilla timeshare would be sold in three months or would be rented for $1,650 per week.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner enter a final order finding that Respondent violated Subsections 475.25(1)(b) and (e), Florida Statutes, and that Respondent's license as a real estate salesperson be revoked, that he be fined $2,000 and be required to pay the costs of the investigation and prosecution of the case. DONE AND ENTERED this 3rd day of December, 2002, in Tallahassee, Leon County, Florida. JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 2002. COPIES FURNISHED: Christopher J. Decosta, Esquire Department of Business and Professional Regulation 400 West Robinson Street, Suite N-308 Hurston Building, North Tower Orlando, Florida 32801 William S. Walsh 13079 South Taylor Creek Road Christmas, Florida 32709 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Buddy Johnson, Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Nancy P. Campiglia, Chief Attorney Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
The Issue Whether Respondent, Seven Lakes Association, Inc. (the Association), violated section 760.10, Florida Statutes (2018),1 by discriminating against 1 Unless otherwise indicated, all statutory and administrative rule references are to the 2018 codifications of the Florida Statutes and Florida Administrative Code. Petitioner, Donald Chew, based on his race (African American) when it terminated his employment; and, if so, what is the appropriate remedy.
Findings Of Fact Petitioner, Donald Chew, is an African American male who was employed by the Association from January 23, 2017, to September 19, 2018. During the time he was there, Mr. Chew was one of the Association's few non-white employees. Respondent, the Association, is a condominium association governed by chapter 718, Florida Statutes. According to Mr. Chew, a majority, if not all, of the condominium owners are white. The Association has approximately 50 employees. The Association is governed by a Board of Directors (Board), made up of five to seven members. All the Board members who testified at the hearing were white. The Board hires a General Manager, who oversees the day-to-day operations of the Association. This includes oversight over the condominium grounds, recreation, and financial aspects of the Association. The General Manager had check-writing authority for the Association. For the times relevant to Petitioner's claims, Timothy Day served as the General Manager.2 Prior to being hired Mr. Day was involved in an investigation related to his employment with a local government entity. 2 Mr. Chew was hired by the Association's General Manager Judy Grosvenor, but Mr. Day became General Manager in August 2017. Neither the reason for the investigation nor the outcome of that investigation was clear from the evidence. Regardless, Mr. Day was given the opportunity to explain the circumstances related to the investigation to the Board prior to being hired. Relevant to this case, the General Manager oversaw the Accounting Manager, who managed a staff of accountants. June Gibbs served as the Accounting Manager who oversaw Mr. Chew from the date of his hire to May 2018, while he was in the staff accountant role. MR. CHEW'S JOB HISTORY AND DUTIES The Association originally hired Mr. Chew for the position of staff accountant. The hiring process consisted of review of Mr. Chew's resume, an interview, and then a criminal background and reference check. The Association did not check Mr. Chew's litigation history at the time it hired him. In September 2017, Ms. Gibbs gave Mr. Chew a mixed written performance review. Although he was "Above Average" in initiative and working relationships, Ms. Gibbs indicated he was "Below Average" in his basic accounting skills and his tardiness. In her comments, she noted: Don, I really dislike writing a negative evaluation. But, your accounting skills really concern me. This is why I hired you and the core of your position. It's been great that you have done well with the insurance and working with Brown & Brown. Even though we have struggled with the accounting parts of the insurance UMS you have done well assisting everyone setting [ ] this software up. And I believe you are above average in computer technology. But, once again accounting is the core. At this point because I really need someone strong in accounting behind me. I am going to have you stay with what you are good at – working on the insurance and UMS. And I will appoint you some basic accounting jobs. Also work on any tardiness issues. In March 2018, the Association requested that Mr. Chew obtain a Community Association Manager License (CAM License) from the Florida Department of Business and Professional Regulation. Mr. Chew submitted an online application in which he was required to answer a number of questions, including the following: 2. Are you or have you ever been a defendant in civil litigation in this or any other state … in which the basis of the complaint against you was alleged negligence, fraudulent or dishonest dealing, foreclosure, bankruptcy, or breach of fiduciary duty related to the practice or profession for which you are applying, or is there any such case or investigation pending. Mr. Chew answered "No" to this question. On May 2, 2018, the Association promoted Mr. Chew to the Administrative Services Manager (ASM) position, which reported directly to the General Manager, Timothy Day. Along with this promotion, Mr. Chew received a salary increase. In the ASM position, Mr. Chew handled a variety of issues and considered himself the General Manager's "right hand man." Mr. Chew did very well in this position and was well liked by the Board, Mr. Day, and the Association staff. In August 2018, Mr. Day announced that he would be resigning from the Association and recommended Mr. Chew for General Manager position. On August 30, 2018, the Board voted unanimously to appoint Mr. Chew as the Interim General Manager. The credible testimony at the hearing established that at this point the Board believed a final decision would be made for the permanent General Manager position after more extensive background checks were conducted on Mr. Chew. Meanwhile, Mr. Chew would serve in an interim capacity. Later on August 30, Mr. Day informed Mr. Chew that he had received information that there was judgment for embezzlement against Mr. Chew in an action brought by the Attorney General for the State of Illinois. Mr. Chew explained that the suit was not against him personally, but against a corporation. On September 4, 2018, Mr. Day informed Mr. Chew that he was being placed on paid administrative leave pending an investigation into the Illinois litigation. On September 19, 2018, the Association's attorney sent Mr. Chew a letter of termination. DISCRIMINATORY ACTS Mr. Chew testified that his accounting co-workers made racial comments that made him feel uncomfortable while he was working as a staff accountant. As described by Mr. Chew, these remarks were made while he was working under Ms. Gibbs, prior to May 2018. Mr. Chew's co-worker, Joan Farus, confirmed that Ms. Gibbs (Ms. Farus's and Mr. Chew's supervisor) and other employees talked about "black people" in a derogatory way around Mr. Chew.3 The undersigned finds that Petitioner established that he was subject to discriminatory comments by staff prior to Mr. Chew becoming an ASM. Mr. Chew also asserts that he was treated less favorably by the Board than the white employees. Mr. Chew presented little, if any, evidence of how he was treated less favorably by the Board. To the contrary, based on the testimony at the hearing by the Board members and staff, it was clear that Mr. Chew was well liked; the Board promoted him and provided him with bonuses and pay raises. The fact that the Board unanimously approved him for the Interim General Manager position on August 30, 2018, leads to the conclusion that the Board did not have any racial animus toward Mr. Chew. Although the Association has an Equal Opportunity Employer and Non-Harassment Policy, there is nothing in its Employee Handbook 3 Ms. Farus was terminated by the Association in August 2018. specifically prohibiting discriminatory conduct based on race. The Handbook indicates employees "deserve to be treated with respect and courtesy." It also states it is company policy that the "workplace be free of tensions involving matters which do not relate to our business" such as "ethnic, religious, or sexual remarks," but stops short of explicitly prohibiting racism or racist comments. The Handbook does urge an employee who feels harassed to notify a supervisor or the Human Resources department. It also provides that any grievances regarding the job, working conditions, or problems with another employee be submitted to the employee's immediate supervisor in writing. There is no credible evidence Mr. Chew ever submitted a written complaint to his supervisor, Human Resources, or anyone else at the Association regarding the racist comments. MR. CHEW'S BACKGROUND HISTORY After the Board appointed Mr. Chew as the Interim General Manager, Kathy Miske, a white female who lived in an Association condominium, researched Mr. Chew's background.4 Ms. Miske previously performed background checks for a law firm in Chicago before she moved to a condominium in the Association. She researched Mr. Chew because she had a "habit of checking on people," and she had been approached by a condominium resident, Debbie Combs, also a white female, who was suspicious of Mr. Chew. The reason for Ms. Combs's suspicion was not disclosed at the hearing. Ms. Miske discovered that the Attorney General of Illinois had filed a "Verified Complaint for an Injunction, an Accounting, Surcharge, and Other Equitable Relief" (Complaint) against Mr. Chew personally in May 2013. The Complaint essentially described an embezzlement scheme, and specifically accused Mr. Chew of abusing a position of trust while employed at Marcy- 4 Although she later became a Board member, at the time she researched Mr. Chew she was not. Newbury Association, Inc. (MNA). It alleged Mr. Chew had misappropriated funds, in violation of the Illinois Charitable Trust Act. Although not a criminal prosecution, the Illinois Attorney General sought injunctive relief, civil damages, punitive damages, and civil penalties against Mr. Chew. Ms. Miske also discovered an Order of Final Judgment (Final Judgment) had been entered against Mr. Chew in the Illinois case on September 9, 2013. The Final Judgement seems to be a default judgment. As a result, Mr. Chew was enjoined from serving as a charitable trustee, was ordered to pay $205,372 in damages, and was also required to pay interest and investigative costs. Although Mr. Chew had a plausible explanation as to the circumstances surrounding the Illinois case, there was no evidence that the Final Judgment had been appealed, withdrawn, reversed, or nullified in any way. Mr. Chew admitted he did not notify the Association of the Final Judgment and that he did not list MNA on the resume he provided to the Association. Ms. Miske made copies of the Complaint and Final Judgment against Mr. Chew. She distributed the copies to three of the Board members that she knew personally. Eventually, copies were provided to the President of the Board, Mr. Day, and the Board's attorney. The Association was required by law to maintain a bond to cover its employees, including the General Manager.5 The Board members testified they were concerned that the Final Judgment would affect the Association's ability to obtain the proper bond if Mr. Chew became General Manager. The Board members relied on the Association's attorney's advice regarding the Association's ability to obtain a bond and the attorney's recommendation to terminate Petitioner based on the Complaint and Final Judgment. Mr. Chew claims that he was discriminated against because he was not given an opportunity to explain the Final Judgement or underlying facts to the Board. In comparison, he claims Mr. Day was given an opportunity to explain a criminal investigation against him and was hired despite the investigation. Mr. Day had previously been involved in the local government, but the nature of the investigation or the outcome of that investigation was not established at the hearing. Mr. Chew had a Final Judgment against him by the Illinois Attorney General for what essentially amounted to embezzlement. In contrast, Mr. Day was only under investigation; there was no evidence he was found guilty of anything. Moreover, Mr. Chew failed to disclose a former employer, MNA. There is no proof that Mr. Day tried to hide that he had been under investigation or that he hid his employment by a previous employer. 5 Section 718.111(11)(h), Florida Statues, states: (11) INSURANCE. * * * (h) The association shall maintain insurance or fidelity bonding of all persons who control or disburse funds of the association. The insurance policy or fidelity bond must cover the maximum funds that will be in the custody of the association or its management agent at any one time. As used in this paragraph, the term "persons who control or disburse funds of the association" includes, but is not limited to, those individuals authorized to sign checks on behalf of the association, and the president, secretary, and treasurer of the association.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Donald Chew's Petition for Relief. DONE AND ENTERED this 18th day of November, 2020, in Tallahassee, Leon County, Florida. S HETAL DESAI 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 COPIES FURNISHED: Tammy S. Barton, Agency Clerk Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 2020. Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Donald Chew 1262 Northeast 41st Terrace Avenue Cape Coral, Florida 33909 (eServed) Christina Harris Schwinn, Esquire Pavese Law Firm 1833 Hendry Street Post Office Drawer 1507 Fort Myers, Florida 33901 (eServed) Vanessa Fernandez, Esquire Pavese Law Firm 1833 Hendry Street Fort Myers, Florida 33901 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
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 Whether the Respondent committed the violations alleged in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is an agency of the State of Florida charged with the responsibility and duty of investigating and prosecuting complaints against real estate professionals in the State of Florida. Respondent is now and was at all times material hereto a licensed real estate broker in the State of Florida, having been duly issued license numbers 0263586, 0261820, 0260480, and 0300938. The last license issued to Respondent was as a broker with the following entities: Avatar Realty, Inc., 4550 Poinciana Boulevard, Kissimmee, Florida; Avatar Communities, Inc., 201 Alhambra Circle, Coral Gables, Florida 33134; Golden Gate Realty, Inc., 4736C Golden Gate Parkway, Naples, Florida; and Avatar Condominium Management, Inc., 201 Alhambra Circle, Coral Gables, Florida. Prior to February 20, 1987, Respondent was the owner of a convenience store known as Hemispheres Food Mart, which was located in the Hemispheres condominium and office complex in Hollywood, Florida. On or about February 20, 1987, Respondent, as owner, entered into a three month exclusive right of sale listing agreement with South Florida Business Negotiators, Inc., for the sale of the Hemispheres Food Mart, at an asking price of $100,000. In connection with the foregoing listing agreement, the Respondent represented and warranted as true that the: "Business doing $286,000 yearly net $55,000 ambitious owner can improve potential to $350,000 yearly." On or about April 1, 1987, the Respondent, as seller, entered into a "Contract for Purchase and Sale of Stock of Hemispheres Food Mart, Inc., D/B/A Hemispheres Mini Mart" with Kenny Mohammed and Annie Mohammed, his wife, as purchasers, to sell the corporate stock of Hemispheres Food Mart, Inc. to the Mohammeds. This contract was executed by the Mohammeds on April 2, 1987. The first line of the contract reflects an erroneous date for the contract of May 5, 1987. Paragraph 12 of the "Contract for Purchase and Sale of Stock of Hemispheres Food Mart, Inc., D/B/A Hemispheres Mini Mart", provided as follows: 12. PURCHASER'S RIGHT TO INSPECTION OF SELLER'S RECORDS. The Purchaser, within 72 hours after the con- tract has been signed and executed by both parties, shall have the right, either by himself or through his accountant, to inspect the financial records and receipts of the Seller to verify the amount of sales of the Seller on a weekly basis. The Purchaser shall verify that the average gross sales on a weekly basis for the Seller, during the time period from January 1 through April 1 (the season) exceed the sum of $8,400.00 per week. If the Purchaser by himself or through his accountant determines that the gross sales for the Seller are less than $8,400.00 per week, the Purchaser shall have the unilateral right to terminate its obligations under the terms of this Contract. Seller shall supply Purchaser with copies of 1985 and 1986 tax returns. The Seller agrees to allow the Purchaser to sit in the place of business for a period of one week to observe and verify that the stated daily gross sales of the business exceed $1,200.00. If during the one-week observation period the daily gross sales do not meet $1,200.00, the Purchaser reserves the right to cancel this Agreement and the deposit held in escrow shall be refunded to them. On May 7, 1987, Respondent and the Mohammeds executed an addendum to their contract. Paragraph 23 of the addendum provides as follows: 23. INSPECTION OF RECORDS It is hereby agreed that both parties shall have complied with paragraph 12, PURCHASERS' RIGHT TO INSPECTION OF SELLER'S RECORDS, and therefore same shall be considered null and void. The representation contained in the contract relating to the level of sales was for sales made during the "season" between January 1 and April 1. Mr. Mohammed exercised his right to observe the sales during the week that began April 6, 1987. During the week long observation period, the sales for two of the days did not equal $1,200. Mr. Raymond provided various records and cash register tapes for the period January 1 - April 1, 1987, for inspection by Mr. Mohammed and Mr. Mohammed's financial adviser. Following the inspection of these records and the one-week observation period, Mr. Mohammed, against the advice of his attorney, elected to close the transaction. The transaction closed in May 1987. (The closing statement signed by Respondent and the Mohammeds does not reflect the day in May the transaction closed.) Subsequent to the closing, the Mohammeds sued Respondent in a civil action brought in the Circuit Court of the 17th Judicial Circuit, in and for Broward County, Florida. The "Final Judgment for Plaintiffs" entered September 19, 1989, by Circuit Judge J. Cail Lee provides, in pertinent part, as follows: ... [T]he Court having heard the testimony of all witnesses and having examined the proofs offered by the respective parties, the court finds that he testimony of the two witnesses was to the effect the defendant, Warren Raymond, falsified sales during the sales verification period to induce the plaintiffs, Kenny Mohammed and Annie Mohammed, to complete the purchase of the Hemispheres Mini Mart, and that constituted fraud, and that constituted a basis not only for compensatory damages but punitive damages as well. It is therefore, ORDERED AND ADJUDGED that the plaintiffs have a judgment against the defendant for fraud in the sum of $750.00 compensatory damages and $15,000.00 punitive damages ... Respondent appealed the judgment entered against him by Judge Lee. While the case was on appeal, Respondent and the Mohammeds settled the civil suit. Respondent did not admit any wrongdoing in the Settlement Agreement. Thereafter, on March 26, 1990, Judge Lee entered a "Final Judgment of Settlement" in the civil action which vacated the "Final Judgment for Plaintiffs" that he had entered September 19, 1989, and which dismissed with prejudice the civil action the Mohammeds had brought against Respondent. There was no competent evidence presented at the formal administrative hearing that Respondent had (a) misrepresented the value of the premises or potential of the business, (b) generated false sales during the observation period, (c) falsified cash register receipts, (d) conspired with his friends to falsify sales, or (e) otherwise engaged in fraud during the course of his business dealings with the Mohammeds.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which dismisses the Administrative Complaint brought against Respondent in this proceeding. RECOMMENDED in Tallahassee, Leon County, Florida, this 28th day of January, 1991. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-5320 The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner. The proposed findings of fact in paragraphs 1-5, 7 and 11 (the first of the two paragraphs that are numbered 11) are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 6 are adopted in part by the Recommended Order. The proposed finding that the contract was dated May 5, 1987, is rejected as being contrary to the finding that the contract was dated April 1, 1987. The proposed findings of fact in paragraph 8 are adopted in part by the Recommended Order. The use of the term "induced" is rejected as being contrary to the findings made or to the conclusions reached. The proposed findings of fact in the first sentence of paragraph 9 are rejected as being unsubstantiated by the record. The last sentence is rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 10 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 11 (the second of the two paragraphs that are numbered 11) are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 12 are adopted in part by the Recommended Order, and are rejected in part as being unnecessary to the conclusions reached. The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent. The proposed findings of fact in paragraphs 1-5, 7-14 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 6 are adopted in part by the Recommended Order. The proposed finding that the contract was dated May 5, 1987, is rejected as being contrary to the finding that the contract was dated April 1, 1987. The proposed findings of fact in paragraphs 15 and 16 are rejected as being unnecessary to the conclusions reached. COPIES FURNISHED: James Gillis, Esquire Department of Professional Regulation Senior Attorney 400 West Robinson Street P. O. Box 1900 Orlando, Florida 32802-1900 Norman Segall, Esquire Bentata Hoet & Associates & Zamora, Segall, Lacasa & Schere 3191 Coral Way - Third Floor Miami, Florida 33145 Darlene F. Keller Division Director Department of Professional Regulation Division of Real Estate 400 West Robinson Street P. O. Box 1900 Orlando, Florida 32801 Kenneth Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
Findings Of Fact Peter P. Sedler, at all times material to the complaint, has been licensed as a real estate broker, holding license 0079017. He was last licensed as a broker c/o Marshall & Sedler, Inc., 7771 St. Andrews, Lake Worth, Florida 33467. Marshall & Sedler, Inc., at all times relevant to the complaint, had been registered as a Florida real estate broker, holding license 0250511, its last licensed address was 7771 St. Andrews, Lake Worth, Florida 33467. Peter P. Sedler was the qualifying broker and officer for Marshall & Sedler, Inc. On about July 3, 1987, Tom Teixeira was employed as a salesman by Cartier Realty, of 11852 42nd Road North, Royal Palm Beach, Florida. Cartier Realty had solicited, through a direct mailing, listings for property in the Royal Palm Beach area. Ms. Mary Myers, an older woman of about 70 years of age, responded to the advertisement, and gave Mr. Teixeira an open listing for real property which she owned. While Mr. Teixeira placed a Cartier Realty "For Sale" sign on the property, the sign was somehow removed shortly thereafter, and no party dealing with Ms. Myers during the months of July, August and September of 1987 would have been placed on notice that Cartier Realty had any listing on the property. Mr. Sedler had nothing to do with the disappearance of the sign. Ms. Myers had originally acquired the property from her daughter. Long before Ms. Myers gave a listing to Cartier Realty, William Kemp and his wife Gina DiPace Kemp had told Ms. Myers that they were interested in purchasing the property, which is adjacent to the home of Mr. and Mrs. Kemp. When Mr. and Mrs. Kemp first contacted Ms. Myers, she had wanted to keep the property, in the belief that she might eventually convey it back to her daughter. Mr. Teixeira brought to Ms. Myers an offer from David R. and Maureen C. Rose to purchase the land for $11,900. Ms. Myers did not accept that offer, but the Roses accepted Ms. Myers' counteroffer on July 24, 1987, to sell it for $12,300. The sale was contingent upon the buyers obtaining financing; they applied for a loan, and ordered both an appraisal and a survey. The closing was to be held by September 1, 1987. (Contract, paragraph VI.) The closing date passed, without the buyers obtaining the necessary financing, so the contract was no longer effective. On about September 8, 1987, Mr. Teixeira attempted to contact Ms. Myers. He had obtained no written extension of the contract but hoped the sale might yet close. Ms. Myers told Teixeira that she was still willing to sell the property to Mr. and Mrs. Rose. In the meantime, Mr. and Mrs. Kemp became aware that Ms. Myers wanted to sell the property, because they noticed Mr. and Mrs. Rose coming to look at the land, and had engaged them in conversation. Ms. Kemp then contacted Ms. Myers to remind her that they were still willing to purchase the property, and also to say that they would offer more than the current offer on the property. On about September 11, 1987, Ms. Kemp contacted Cartier Realty to say that she also wished to make an offer on the Myers' lot. For a reason which was never adequately explained at the hearing, Teixeira, who should have been working on behalf of the seller, refused to take the offer, even though it was for a higher price. After this rebuff by Teixeira, Ms. Kemp contacted Marshall & Sedler, Inc., in order to try to find a broker who would convey their offer to Ms. Myers and spoke with Patricia Marshall, Ms. Marshall referred her to her partner, Peter Sedler. The Kemps told Sedler that Ms. Myers had told them that she had received a $9,000 offer on the lot. Why Ms. Myers told the Kemps that the Rose offer was $9,000 is not clear, for the actual offer had been $12,300, but Sedler did not know this. There was no listing of the lot in the local board of realtors multiple listing service book, and Mr. Sedler found the address of Ms. Myers through the public records. Mr. Sedler knew from his conversations with Ms. Kemp that Cartier Realty had some involvement with an offer on the property. He called Cartier Realty and tried to speak with the broker handling the matter. He spoke with a man named Tom, who he thought was a brother of the owner of Cartier Realty, Pete Cartier. Mr. Sedler actually talked with Tom Teixeira. Sedler believed he was dealt with rudely by Teixeira, who had hung up on him. Sedler then called Pete Cartier directly to find out whether there was an outstanding contract on the property, and Cartier told Sedler that he would call Sedler back. When Cartier called Sedler, Cartier warned Sedler that he should stay out of the deal. Mr. Sedler became suspicious about Cartier Realty's failure to bring a higher offer to the attention of the seller, and on September 16, 1987, filed a complaint against Tom Cartier with the Lake Worth Board of Realtors. Mr. Sedler then traveled to Pompano Beach to meet with Ms. Myers at her home, and brought with him a contract for sale and purchase of the property, already signed by the Kemps and dated September 14, 1987. While at the door, Ms. Myers asked Peter Sedler if he was "Tom." Ms. Myers knew that she had been dealing with a "Tom" at Cartier Realty, but all her dealings were on the phone, and she did not know what Tom Teixeira looked like. Sedler replied "Yes, but you can call me Pete." Sedler merely intended the comment as humor. At that time Sedler gave Ms. Myers his pink business card and specifically identified himself as Pete Sedler of Marshall & Sedler, Inc. Mr. Sedler asked Ms. Myers if she had any paperwork, such as the prior contract for the sale of the lot which had expired on September 1, 1987, but she did not. While Sedler was with Ms. Myers, she agreed to sell the property to the Kemps for $12,500 and signed the Kemp contract. The Kemps had put the purchase price of $12,500 into the Marshall & Sedler escrow account. Three days later, on September 18, 1987, Mr. Sedler, in the company of his wife Bonnie, presented a post-dated check to Ms. Myers in the amount of $11,020, the net amount due to Ms. Myers for the lot, based on the purchase price of $12,500. When they met this second time he introduced himself again as Pete Sedler and offered Ms. Myers his card for a second time. The post-dated check was conditioned by an endorsement making it good upon a determination that the title to the lot was good. A quit claim deed to Mr. and Mrs. Kemp was executed by Ms. Myers and witnessed by Bonnie Sedler. The post-dated check was given to Ms. Myers because she was about to leave on vacation. The check was given as a sort of security for good title, in return for the quit claim deed which closed the transaction. Mr. Sedler had structured the transaction in this way because he was concerned that someone at Cartier Realty might also attempt to purchase the property from Ms. Myers on behalf of one of their clients. At that time, Mr. Sedler held the reasonable belief that no other party had a subsisting contract to purchase the property from Ms. Myers. Sedler had no reason to believe the Roses would or could pay more for the property than the Kemps offered. Ms. Myers knew that Tom Teixeira from the Cartier realty firm represented a distinct business entity from Marshall & Sedler or Pete Sedler. After a title search showed that Ms. Myers had clear title to the property, the check which Mr. Sedler had given to Ms. Myers on September 18, 1987, with the restrictive endorsement was replaced. Later Mr. and Mrs. Rose tried to close their purchase, but found they could not. Ms. Myers had failed to inform them of the sale she made to the Kemps through Mr. Sedler. Mr. Teixeira, in retribution, filed an ethics complaint about Mr. Sedler with the West Palm Beach Board of Realtors.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Administrative Complaint against Peter P. Sedler and Marshall & Sedler, Inc., be dismissed. RECOMMENDED this 14th day of March, 1991, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 March, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-6183 Rulings on findings proposed by the Department: 1. Rejected as unnecessary. 2 and 3. Adopted in Finding 1. 4 - 6. Adopted in Finding 2. Adopted in Finding 3. Adopted in Finding 3. Implicit in Finding 5. Adopted in Finding 5. Adopted in Finding 5. Adopted in Finding 5. Adopted in Finding 5. Adopted in Finding 6. Implicit in Finding 6. This does not mean that the contract subsisted, however. Rejected. Ms. Myers was willing to sell the property to Mr. and Mrs. Rose after the contract expired, but she was not under any obligation to do so. Adopted in Finding 7. Rejected, because there was no pending contract. Teixeira never obtained a written extension of the closing date and Ms. Myers was free to sell elsewhere. Rejected. No one could have truthfully told Sedler there was a pending contract. None existed. Rejected, because Mr. Sedler had no reason to believe that there was a subsisting contract for the sale of the property; there was none. Admission number 20 is not to the contrary. Adopted in Findings 10 and 11. Rejected. See, Findings 9 and 10. Rejected as unpersuasive. Rejected as cumulative to Finding 9. Adopted in Finding 14. Adopted in Finding 11. Rejected as unnecessary. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Frank W. Weathers, Esquire Frank W. Weathers, P.A. Post Office Box 3967 Lantana, Florida 33465-3967 Darlene F. Keller, Division Director Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32801 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
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.
Findings Of Fact The Petitioner is in the state agency charged with regulating the practice of cosmetology. As of March 19, 1990, the Respondent had completed 1,043.5 hours of instruction in cosmetology at the Daytona Beach Community College. On this date, the school certified that the Respondent was competent to sit for examination. She was scheduled to complete another 156.5 hours of instruction by April 23, 1990, and was to graduate on that date. The Respondent mailed her application for licensure by examination on March 19, 1990. The Respondent was advised by her instructor at the cosmetology school that her application to the Florida Board Cosmetology was a formal registration that would allow her to practice temporarily without a license. Based upon these representations of her instructor, she began cutting hair for salon customers on that date. The appointment calendar for Head to Toe Salon, 200 North Woodland Boulevard, Deland, Florida, clearly demonstrates that Respondent provided cosmetology services to customers of the Head to Toe Salon on the following dates in 1990: March 19, 24, and 31; April 4, 10, and 17. On April 17, 1990, a routine inspection of the Head to Toe Salon revealed that Respondent maintained a work station in the salon and had been providing unlicensed services to customers since March 19, 1990. On May 30, 1990, the Respondent was issued License CL 0180631 by the Florida Board of Cosmetology. Mitigation The Respondent did not have actual knowledge that she was violating Florida law when she practiced cosmetology without a license between March 19 and April 17, 1990. Once she was advised of the offense, the Respondent ceased the practice immediately. Prior to hearing, the Respondent purchased the salon. The expense of the purchase has placed a financial hardship upon Respondent. She does not anticipate a profit from the business for another two years. The Respondent is frustrated because she was misinformed during her schooling about when she could begin work. However, she is willing to accept responsibility for her actions. The Respondent is committed to making sure that nonlicensed activity does not occur in her salon in the future.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the Respondent be found guilty of having violated Section 477.029(1)(a), Florida Statutes. That a letter or reprimand be issued to the Respondent for this violation. That the administrative fine be reduced to a total fine of $100.00. This may be paid within one year of the entry of the Final Order. DONE and ENTERED this 10th day of December, 1990, in Tallahassee, Florida. VERONICA E. DONNELLY 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 10th day of December, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 90-4705 Petitioner's proposed findings of fact are addressed as follows: Accepted. See HO #6. Accepted. See HO #2,#3,#4,#5 and #8. Copies furnished to: Laura P. Gaffney, Senior Attorney Department of Professional Regulation Northwood Centre, Suite 60 1940 N. Monroe Street Tallahassee, Florida 32399-0792 Dianna K. Gentile 783 Gainsboro Street Deltona, Florida 32725 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Myrtle Aase, Executive Director Board of Cosmetology 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Petitioner is entitled to service credit in the Florida Retirement System (FRS) from June 1, 1995, through August 2001.
Findings Of Fact At all times material, Petitioner has been a school psychologist, certified by the Florida Department of Education. From June 1995 through August 2001, Petitioner performed duties as a psychologist under "purchase of services agreements" with SBAC to perform special needs assessments for gifted children. These formal contracts were executed between Petitioner and SBAC in and for each successive school year during that period. Although there was the expectation that a new contract would be negotiated/signed each year, there was no guarantee to that effect. The annual contracts for June 1995 through August 2001, between SBAC and Petitioner provided that Petitioner was to assume all risks, and that he was a "consultant." They further provided that he was to be paid at a rate of $150.00 for each assessment he completed. Either party to the contract could terminate it on 30 days' notice. In pertinent part, the annual contracts described Petitioner as an independent consultant and not an employee in the following terms: * * * The CONSULTANT is an Independent Consultant and will perform all services at the Consultant's risk, assuming full responsibility for completion of the services stipulated below: Psychoeducational evaluations of students referred for determination of eligibility to the Gifted Program as shall be requested by the Board through its Director of Exceptional Student Education or Lead School Psychologist. All psychoeducational evaluations shall be completed within 30 days of having been received by the CONSULTANT. All reports and billing for services rendered by the CONSULTANT shall be submitted in a timely manner. All reports are to be submitted in triplicate. * * * CONSULTANT also acknowledges that in rendering the services provided herein, the CONSULTANT will be acting as an Independent Consultant, and not as an employee of the School Board of Alachua County. (Emphasis added.) The contracts contained no specific provision for reimbursement of Petitioner's expenses. However, a calculated amount for travel expenses was built into the fee of $150.00 per child. SBAC did not consider Petitioner an "employee" during the period of his annual contracts, because he was not filling a regularly established position. Accordingly, SBAC did not report to FRS any retirement information/contributions on the amounts it paid Petitioner during this period. Likewise, during the specified period, Petitioner received no paid leave or other employee benefits from SBAC. Also, SBAC did not provide unemployment compensation coverage or workers' compensation coverage for Petitioner during the specified period. While under contract as an independent consultant, Petitioner did not report his time to SBAC via a timesheet or otherwise. Rather, he was paid for each completed assessment under the terms of his respective contracts. He was only required to file his test results within five business days of the date he assessed a student. Between 1995 and 2001, SBAC reported Petitioner's pay for federal income tax purposes by Form 1099, rather than by Form W-2. A 1099 form is traditionally used for occasional employees and for independent contractors. W-2 forms are used for regular employees. Petitioner reported his income from SBAC as "other income," i.e. self-employment income. In a similar vein, SBAC withheld no taxes, Social Security, or Medicare deductions for Petitioner during this period. SBAC made no matching contributions for Social Security or Medicare. During the specified period, Petitioner was hired solely for special needs assessments. The time frame for testing by SBAC was established by law. Other than special needs assessments, Petitioner had no duties for SBAC, but he was assigned cases by SBAC as necessary to meet its caseload and time frame. Petitioner was only called upon when SBAC's school psychologists, who filled regularly established positions, were not available or could not timely meet the demand for assessments in a school year of 10 months' duration. Petitioner was required to hold a professional license as a psychologist to perform his SBAC contracts, and he was expected to perform his services for SBAC within the standards of his profession. His contracts provided for him to render personal services, and he could not hire an assistant or subcontract out his duties to another psychologist. SBAC could not instruct Petitioner how to do his job as a professional psychologist or what decision or recommendation to reach on any child. However, SBAC told him which text to use, and he was initially trained by another school psychologist on the testing instrument required by SBAC. Petitioner also received initial training from SBAC on how to report his assessments, and SBAC provided him with test kits and word processing assistance for each child assessment. SBAC set the format for his reports and provided him with a template therefor. Petitioner was not regularly provided office space by SBAC. However, he was allotted a room on each school's premises for each test, as he traveled from school to school within the county, and he had to do his testing on a day the specified child was in school and that school was open. Each test had to be completed within 30 days of its assignment, per his contracts. Petitioner was free to schedule one or more of his assessments on the dates most efficient for him, provided he met his deadlines. Petitioner's efforts for SBAC during this period might be described as "frequently recurring, but not regular." Petitioner never worked for SBAC more than four consecutive months during the entire time period at issue. During that period, he was on his own for defending his test results. Petitioner was required to carry his own professional liability insurance during the time in question, whereas then and now, SBAC "covered" their employees' liability insurance. Between 1995 and 2001, Petitioner was free to offer his professional services to other clients besides SBAC, but he chose not to do so. There was no profit or loss involved for SBAC or Petitioner in Petitioner's 1995-2001 service. Petitioner had to invest none of his personal funds to do his assessments. In September 2001, Petitioner was hired by SBAC in a half-time, regularly established position with all benefits, including sick leave, personal leave, and FRS membership. Upon that event, his duties were altered to include rendering any psychological assistance required by any SBAC school in which he was working. He is now reimbursed for travel by submitting request forms. He has continued to meet that job description and has filled that regularly established position to date. SBAC requested, and in 2002, received a letter-opinion from the Internal Revenue Service (IRS) interpreting various federal statutes and regulations. That IRS letter-opinion concluded that during the period in question, the Petitioner was an "employee" of SBAC; that various federal forms might require filing or amending by SBAC; and that SBAC and Petitioner might need to pay yet-to-be determined amounts. That IRS opinion is based on facts submitted by SBAC and not necessarily in evidence; is based on federal laws which are not determinative of the Florida retirement issue before this forum, and was not necessarily final. Accordingly, it is not binding in the instant case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order denying Petitioner's request for membership and service credit in the FRS from June 1, 1995, through August 2001. DONE AND ENTERED this 10th day of February, 2005, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 2005. COPIES FURNISHED: Thomas E. Wright, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399 Leonard D. Jackson 2731-B Northwest 104th Court Gainesville, Florida 32606-7174 Alberto Dominguez, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way Tallahassee, Florida 32399-0950 Sarabeth Snuggs, Interim Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
