Appeal For This Case This order is final agency action. Any party who is adversely affected by this order has the right to seek judicial review pursuant to Section 120.68, Florida Statutes, by filing a notice of administrative appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the Clerk of the Florida Elections Commission at 107 West Gaines Street, Suite 224, Collins Building, Tallahassee, Florida 32399-1050 and by filing a copy of the notice of appeal with the appropriate district court of appeal. The party must attach to the notice of appeal a copy of this order and include with the notice of appeal filed with the district court of appeal the applicable filing fees. The notice of administrative appeal must be filed within 30 days of the date of this order is filed with the Commission. The date this order was filed appears in the upper right-hand corner of the first page of the order. ; Copies furnished to: Eric M. Lipman Assistant General Counsel Eric Ruiz, Respondent (certified mail) Division of Elections, Filing Officer
The Issue The issue in this case involves the administrative charge which has been placed by the Florida Real Estate Commission in the person of Harold T. Mooney, against one Claude Talmadge Bray who is registered with the Florida Real Estate Commission as a real estate broker. The charging document which is drawn in the form of an information, says in pertinent part: COUNT ONE "(1) That the defendant did, on or about May 21, 1974, file his sworn application for registration as a real estate broker with the Florida Real Estate Commission on a form provided by said Commission. Question 16(a) of the application read as follows: 16(a) Have you served an apprenticeship as a real estate salesman with a registered real estate broker in the State of Florida for the 12 consecutive months within 5 years next prior to the date of this application? If yes, who was the registered broker and what is his business adress? The defendant answered "yes" to the first part of the above question and "Tony Vaughan - Monteverde, Florida" to the second part of such question on his said application for registration. That thereafter the application of defendant, Claude Talmadge Bray, was approved and he subsequently received his registration as a real estate broker, being initially registered as1 such with the Commission on or about September 18, 1974. That, at the time of the execution of the application as aforesaid, the defendant knew or should have known that his answers to question numbered 16(a) thereof were false and untrue in that: From September 10, 1971, to June 30, 1974, inclusive, defendant Claude Talmadge Bray was a full-time employee of Hallmark Leisure Homes, Inc., a construction company with offices at 3744 North 40th Street, Tampa, Florida 33610. While the defendant did register with the Commission as a real estate salesman employed by Lester Tony Vaughan, a registered real estate broker whose last business address is registered with the Commission as Division Street, Monteverde, Florida, 32756, said registration was effected solely for the purpose of attempting to show to the Commission that the defendant wads in compliance with the apprenticeship requirements of Subsection 475.17(3), Florida Statutes; but that, in truth and fact, the defendant Claude Talmadge Bray had served no apprenticeship as required by, and within the intent and meaning of said Subsection 475.17(3), Florida Statutes, with the said Lester Tony Vaughan or any other registered real estate broker, and that the defendant, during said period of purported apprenticeship, had not handled any real estate transactions participated in any closings or received any instructions from, for or on behalf of the said Lester Tony Vaughan, Registered Broker. That by reason therof, it appears that the defendant1 Claude Talmadge Bray, does not possess the necessary qualifications of honesty, truthfulness, trust worthiness and good character as required by Subsection 475.17(1), Florida Statutes; has been guilty of fraud, misrepresentation, concealment, false pretenses, dishonest dealing and trick, scheme or device, in violation of Subsection 475.25(1)(a), Florida Statutes; and that the defendant obtained his registration as a real estate broker with the Florida Real Estate Commission by means of fraud, misrepresentation, or concealment, in violation Of Subsection 475.25(2), Florida Statutes. WHEREFORE, plaintiff prays that this Information be filed and notice of the filing thereof be given to the Defendant and that proceedings be had, all in accordance with the provisions of Chapter 475, Florida Statutes, and if the evidence warrants, the registration of Claude Talmadge Bray be revoked." The Respondent has denied the allegations set forth in the charging document, which is entitled an information, and proceeded to a hearing before the Division of Administrative Hearings in the person of the undersigned, under authority of Chapter 120, Florida Statutes.
Findings Of Fact The Petitioner presented its case on the basis of oral testimony presented at the hearing and through tangible items of evidence. The Respondent elected to present evidence in the course of the hearing, and did so through the medium of oral testimony in the course of the hearing and through tangible evidence, which was the subject of a stipulation with the Petitioner. The first witness presented by the Petitioner was Ralph J. Ramer, President of Hallmark Leisure Homes, Inc. Mr. Ramer was the former employer of the Respondent, and additionally was responsible for making a complaint which led to the investigation of this case by the Petitioner. This complaint was in the form of a letter from the witness, Ramer, addressed to the Petitioner and dated July 3, 1974. A copy of this letter has been received by the hearing officer as a Joint Exhibit of the Petitioner and Respondent and Is therefore made a part of the record in this cause. Mr. Ramer indicated that he had hired the Respondent on September 10, 1971, as a salesman with the witness's then existing company, and that the Respondent had been promoted to a vice president's position in 1971 or 1972 after the incorporation of the witness's company. It was further related that the Respondent was terminated from employment by the witness on June 30, 1974. During the course of the Respondent's employment with Hallmark Leisure Homes, Mr. Bray participated in a position which had as its major function the sale of construction contracts for the purpose of building homes on real estate which was held by the purchaser. In addition, when the Respondent became Vice President he made certain connections with the bank, in that he talked with the officers of the banks relative to financing. More specifically, Bray presented sales papers to banks, he followed up on proposed financing, he attended closings of loans if necessary, he took credit statements for potential purchasers, ordered surveys, ordered titles, ordered insurance, prepared deeds, prepared mortgage documents, worked with appraisers, conducted closings and he picked up certain bank draw disbursements from the lending institutions. At these closings, as aforementioned, mortgages were signed and funds were disbursed. In relation to the question of whether or not Mr. Ramer's company and, more particularly, Mr. Bray, were involved in the active sale of real estate, he said that salesman could assist a potential customer in finding land to build houses on. Ramer also indicated that the company, Hallmark Leisure Homes, Inc., had bought four lots in Ocala and had built three houses on these lots. The cause for dismissal of the Respondent, according to Mr. Ramer, was for the reasons set forth in the letter of July 3, 1974, by the witness. Ramer further elaborated that he didn't know that Lester L. Vaughan had made application for professional license to the Florida Construction Licensing Board, while Vaughan was working for Ramer. Therefore, when he found out that Bray was working full-time for the witness and at the same time helping other employees to obtain a contractor's license, which was felt to not be in the best interest of the company because it would promote competition against the company through the employee of the company, Ramer dismissed the Respondent. In response to questions concerning the existence of a certain civil suit filed by the Respondent against Mr. Ramer, the witness acknowledged such a suit, but stated that he had no sense of vendetta against the Respondent. While the Respondent was employed with Hallmark Leisure Homes, the Respondent was preparing for a real estate license exam and serving an apprenticeship according to Lester Vaughan, the younger At the same time there were negotiations with the officials at Hallmark Leisure Homes, in particular, Mr. Ramer, for the purpose of qualifying the real estate broker's license of Lester T. Vaughan in establishing a branch office at the Hallmark Leisure Homes office location on North 40th Street, Tampa, Florida. Moreover, Mr. Ramer was in favor of this arrangement and it didn't appear that these negotiations to establish such an office were in any way designed to defraud the public from Vaughan the younger's observation. When the witness, Lester Vaughan, was specifically asked questions about the nature of the sales in which the Respondent participated, he stated that the sales were not the sale of real estate per se. However, he did indicate that there was a similarity in his mind to the sale of real estate and the sale of "on your lot construction contracts", and he stated this opinion from his knowledge of the function of a real estate broker, being a real estate broker himself. As a matter of fact, the witness felt that the function performed by the Respondent, Bray, was much more detailed than the function of a real estate broker in carrying out the broker's duties. Another significant comment by the witness was his statement that the contract form used by Hallmark Leisure Homes was similar to the form utilized for real estate contracts, testifying from his knowledge. In closing, the witness testified that he and the Respondent had looked for lots to be purchased to build homes on for prospective customers, but that they were never successful in achieving such an arrangement. The Petitioner placed Lester T. Vaughan on the stand, who at the time of his testimony was also charged by the Florida Real Estate Commission in Progress Docket #2671 for Hillsborough County, with an offense relating to the apprenticeship of Claude Talmadge Bray. The witness, Lester T. Vaughan, indicated that he was not working at the time of his testimony, but he had been and office worker for a citrus company. He has been a licensed real estate broker since August of 1972; however, he has never transacted any real estate sales. The witness was shown Petitioner's Exhibits "B", "C", "D", and "E" and identified those documents. Exhibit "B" is a reference statement signed by the witness upon the request for application to be a real estate broker made by Claude Talmadge Bray before the Florida Real Estate Commission. Exhibit "C" by the Petitioner is an application for a branch office registration certificate. Petitioner's Exhibit "D" is a declaration of employment for apprenticeship purposes and Petitioner's Exhibit "E" is a statement of the. applicant's employment and apprenticeship by the witness, Lester Tony Vaughan. (All these documents are copies of the originals). Lester T. Vaughan indicated that the Respondent, Bray, had not made any real estate sales while in his employ and that the figures in the affidavit which is Petitioner's Exhibit "E", were transactions mad Respondent was working with Hallmark Leisure Homes. The witness then testified that the Respondent told him that these were sales while in the employ of Hallmark Leisure Homes and further that he, the Respondent, could use those sales as a basis for stating experience in applying for a Real Estate Broker's License, even though they were not sales of real estate. Lester T. Vaughan testified that he had not talked with Mr. Ramer about locating a branch office on North 40th Street, Tampa, Florida, at the business of Hallmark Leisure Homes, but to his knowledge Mr. Ramer had never voiced any objection to such a branch office at that location. Lester T. Vaughan stated that he had never examined the contract forms or the closing statements utilized by Hallmark Leisure Homes. He had however talked with the Respondent 4 or 5 times in Tampa and several times at his, the witness's home address, about real estate related matters. At the close of the Petitioner's case, the Petitioner offered into evidence Exhibits "A" - "E", all of which have been particularly described, in the course of the findings of fact, with the exception of Exhibit "A" for identification, which is the application for registration as a real estate broker which was filed with the Florida Real Estate Commission by the Respondent, Claude Talmadge Bray. These items of evidence were admitted as evidence after examination and legal argument as will be further described in the section of this Recommended Order entitled CONCLUSIONS OF LAW. The Respondent made certain motions at the Inception of the case directed to the sufficiency of the charging document and renewed these motions at the close of the Petitioner's case. These representations by the Respondent will be considered in the section entitled CONCLUSIONS OF LAW. The Respondent offered witnesses in support of his position in the form of a witness to the facts contained in the allegations placed against the Respondent and certain character witnesses in his behalf. The Respondent further elected to take the stand in his own behalf. (All matters offered by the Respondent were premised on the eventuality that the Hearing Officer and/or the Florida Real Estate Commission did not agree with the Respondent's contention that the Petitioner had failed to meet its burden of proof, either in the statement of its pleadings or through presentation of its case in chief). The presentation of testimony on the facts related in this matter was a brief recall of Lester T. Vaughn for purposes of testifying about the facts surrounding the apprenticeship. In this recall Lester T. Vaughan indicated that he felt that the Respondent was a smart young man, by way of responding to a question on the necessity for close supervision of the work by the Respondent. As a follow up he indicated that the broker apprentice did not need day to day supervision. Finally, the witness stated that he felt that bray would have called him if he had needed help from the witness. When the Respondent took the stand, he testified that he is now employed with Ruby V. Williamson, a real estate broker, and that he has been so employed for 6 months as a realtor associate. A brief statement of his background prior to his present employment indicated that he had received formal education to include a bachelors degree and some graduate work, although It was not clear from the testimony that he received a graduate degree. Additionally, it was net established if the formal education had any significance in real estate work. Some of the positions held by the Respondent included work in educational television, teaching, sales positions, and eventually work with Jim Walter Corporation in home sales. While with Jim Walter he served as a branch manager of the offices in Lake City, Florida, Orlando, Florida, and Fredricksburg, Virginia, in the home construction division of that corporation. After leaving Walter Corporation he worked briefly at Allstate Homes and then started with Hallmark Leisure Homes in 1971. At the beginning of his employment with Hallmark Leisure Homes they were a partnership and later became a corporation. The Respondent stated that he started as a salesman with Hallmark Leisure Homes and was elevated to the position of vice president in that corporation at a later date. In his employment with Hallmark Leisure Homes he said that the officials at Hallmark Leisure Homes thought that real estate expertise was an advantage aid, moreover, that to locate a real estate branch office at their business address on North 40th Street, Tampa, Florida would be advantageous. His involvement with real estate licensing started with the issuance of a real estate salesman's license from the Florida Regal Estate Commission in 1971. After that time he decided to qualify for a real estate broker's license before the Florida State Real Estate Commission, and selected Lester T. Vaughan as his apprenticing broker on the basis of a suggestion made by Lester Vaughan, his coworker. For the record, Lester Vaughan is the son of Lester T. Vaughan. Hue indicated that he spoke to other realtors about the apprenticeship, in addition to conversations with Lester T. Vaughan. Two of these persons, Pearl Elliston and Clay Cordington were asked about their interpretation of the form which is Petitioner's Exhibit "E", relating to the numbers of real estate sales and attendance at closings of real estate sales. The Respondent stated that Mr. Cordington felt that the Respondent's experience with selling "on your own lot homes" was sufficient experience to be counted in responding to the form which is Petitioner's Exhibit "E". The witness felt that the reason for this response was because of the familiarity of Mr. Cordington with the work the Respondent was doing, in that the Respondent had sold Mr. Cordington two houses. The Respondent stated that Mrs. Elliston did not give him a definite answer on his inquiry. Furthermore the witness Indicated that he called the Florida Real Estate Commission office, particularly the licensing department, about what the blanks meant on the form which is Petitioner's Exhibit "E" and the blanks Involved with numbers of real estate sales, closings attended, and hours of instruction, and ethics and office operations etc. The witness stated that he spoke with some lady in the department that didn't seem to know what to do about that particular form. Upon the undersigned's examination of the witness on the question of whether or not he referred this matter to the superior of the lady who answered his inquiry, the witness responded that he did not. By way of elaboration on the forms, the Respondent testified that he looked at the Land Book in order to comply with the matters set forth in the forms. The witness seemed to place emphasis on the fact that when he was provided with Petitioner's Exhibit "D", he was told that this was the only necessary form to be completed as part of the requirement for becoming a licensed real estate broker in the State of Florida, for that reason he seemed somewhat baffled by the form which is Petitioner's Exhibit "E". The witness went into some detail to explain how he arrived at the figures on the form which is Petitioner's Exhibit "E". Put concisely, the witness testified that the basis for the figures 56 and 24 upon Petitioner's Exhibit "E" were arrived at by examining "on your lot home sales" made while employed by Hallmark Leisure Homes and closings that he attended in connection with those sales. The figure 100 hours was arrived at by estimates in discussions with Lester T. Vaughan and lecture type course attendance. Bray stated that the figures on that form, Petitioner's Exhibit "E", had been discussed with Lester T. Vaughan, Ramer and Weisiger, another official at Hallmark Leisure Homes. There are other matters which constituted Involvement with real estate sales, but none of these listings were ever consummated through a real estate sale. Moreover, these figures involving listings for Hallmark Leisure Homes and Listings by the Respondent privately were not reflected in figures on Petitioner's Exhibit "E". The Respondent seemed to, under questioning of whether the sales reflected in Petitioner's Exhibit "E" were real estate sales, be convinced at the time of hearing that the sales were not real estate sales per se, although at the time he was making the representations on Petitioner's Exhibit "E" he did not seem as convinced of that fact. Nevertheless, because of the real estate related nature of the work done for Hallmark Leisure Homes, and because in many respects the witness felt that his function was more comprehensive than that of a real estate broker, he felt that the experience with Hallmark Leisure Homes was work which was a fulfillment of the requirement for apprenticeship. Finally, the witness indicated that at the time he filled out the various forms for the Real Estate Commission that he had no intent to defraud or mislead by offering the statistics that he had set forth. Testimony was offered by one Clifford Opp, Jr., Esquire, who has known the Respondent since he was 14 years old, to the extent of being in business with the Respondent, in a restaurant venture which was unsuccessful. He further stated that he, did not feel that the Respondent would provide false information to the Real Estate Commission. Although the witness had been in a confidential relationship with Hallmark Leisure Homes, as their attorney, and therefore unable to divulge any confidences; nevertheless, stated that he didn't recall any report of the company about the Respondent's conduct. In summary, the witness felt that the Respondent was trustworthy. Wilbur J. Wells was called on behalf of the Respondent. Mr. Wells had been a coworker at Hallmark Leisure Homes, in addition to being in the same fraternity in college with the Respondent and in the restaurant business with the Respondent. Mr. Wells is now a realtor associate and has a real estate salesman's license issued by the Florida Real Estate Commission. He says that the Respondent's character in terms of truth and veracity is outstanding and that the witness did not believe that the Respondent would lie to the Real Estate Commission. Ruby Williamson, the present employer of the Respondent was called. Ruby Williamson is a real estate broker, and she has known the Respondent for 6 or 7 years, and feels that the Respondent has an excellant reputation and would not lie to the Real Estate Commission. Assuming the application of the cited statutes in the complaint, from the testimony set forth in the hearing it would appear that the Respondent did not intend to defraud, misrepresent, conceal, act under false pretenses, deal dishonestly or trick, unlawfully scheme or device, in violation of Section 425.25(1)(a), Florida Statutes, nor did the applicant intend to defraud, misrepresent, or conceal in violation of ss.425.25(2), Florida Statutes. Moreover, there has been insufficient showing that the Respondent lacks the necessary qualifications of honesty, truthfulness, trustworthiness and good character as required by ss.425.17, Florida Statutes. The facts show that the Respondent sought advise from practicing real estate brokers in Florida and the Florida Real Estate Commission before filling out Petitioner's Exhibit "E", and these facts are unrefuted. He acted upon that information about the exhibit in good faith. Considering the testimony of the relationship of the Respondent to Lester Tony Vaughan, his apprenticing broker, the Respondent was legitimately receiving counsel and acting in the employ of Lester Tony Vaughan, notwithstanding, the fact that the pursuit failed to consummate any real estate sales. The facts also Indicate that the Respondent received adequate supervision from Lester Tony Vaughan, because Florida Statutes, Chapter 475 and its rules and regulations do not require full time supervision or employment in qualifying for a real estate broker's license in Florida. The six or seven visits and conferences between Lester Tony Vaughan and the Respondent were sufficient compliance for a man in the Respondent's position considering the relationship of the sales activity he was performing for Hallmark Leisure Homes to the sale of real estate proper. Finally, certain evidential items were offered in behalf of the Respondent. The first item was the letter dated January 3, 1974, written by R. J. Ramer, President of Hallmark Leisure Homes, Inc., addressed to the Florida Real Estate Commission. This letter has been received as a Joint Exhibit of the parties upon joint stipulation of the parties and has been marked as Joint Exhibit "1". A second document was offered by the Respondent in the form of a letter addressed to the Florida Construction Industry Licensing Beard on the subject of Lester Vaughn's application for license. This letter was written by R. J. Ramer, President, Hallmark Leisure Homes, Inc. This particular correspondence was not admitted far reasons set forth in the section entitled CONCLUSIONS OF LAW.
Recommendation Based upon the foregoing, it is recommended that the Respondent, Claude Talmadge Bray, be released from the charges brought under Progress Docket #2658, Hillsborough County, and that the Respondent go forth without penalty against his registration as a real estate broker in the State of Florida and that his certificate as broker-salesman remain in full force and effect. DONE and ENTERED this 2nd day of January, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: S. Ralph Fetner, Jr., Esquire (For the Commission) Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 David Luther Woodward, Esquire Rose and Woodward, Chartered 1211 The Madison Building Tampa, Florida 33602
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact Respondent Diane M. Klein, nee Diane Marie Ballantyne, has been licensed by petitioner as a real estate broker at all pertinent times, holding license No. 0314120. Petitioner's Exhibit No. 6. On September 22, 1983, Winfield F. Imel signed a contract for sale and purchase of Arrowhead County Club, which is in Broward County, Florida, on conditions including the following: New financing mortgage: this agreement is contingent upon the buyers being able to obtain a new first mortgage. Buyers agree to immediately apply for said mortgage and to pay mortgage loan costs in obtaining same. Broker to receive written mortgage commitment on or before 20 days after acceptance of contract or contract is null and void. Petitioner's Exhibit No. 1. In this transaction, Ms. Klein represented the owner of the property as a real estate broker. The total purchase price was $1,950,000.00. The seller accepted the offer and executed the contract on September 23, 1982. On September 27, 1982, Mr. Imel signed a check in favor of respondent Klein indicating "ESCROW" and "re golf-COURSE." Petitioner's Exhibit No. 2. He delivered the check to Ms. Klein as earnest money under the contract he had signed on September 22, 1982. Ms. Klein deposited the check to her escrow account, No. 0002502307 at Florida National Bank, on September 28, 1982. Petitioner's Exhibit No. 5. Mr. Imel tried to obtain money, to be secured by a new first mortgage, from more than one lender. He approached "a group in Atlanta, IVA," (T.8), Mr. Frank Porter in Phoenix, and Vicars and Associates in Maryland, as well as local banks, including First Fidelity Mortgage Corporation in Palm Beach. Dexter B. Wakefield of First Fidelity Mortgage Corporation advised Mr. Imel in November of 1982 that First Fidelity's efforts to "broker a loan on his behalf for Arrowhead Country Club" (T. 9) had not succeeded. Petitioner's Exhibit No. 4. Mr. Imel sought money from First Fidelity not only in order to purchase the property, but also for "refurbishing." Petitioned's Exhibit No. 4. Be never succeeded in obtaining financing for the acquisition and wrote respondent to that effect, requesting "a full and immediate refund of my deposit in the amount of $5,000.00," on December 7, 1982. Petitioner's Exhibit No. 3. Respondent expressly declined to refund the deposit and has never paid Mr. Imel any of the money. On October 19, 1982, respondent had written a check for $5,000.00 against her escrow account and in favor of "D.K. Operating Acc't." The check was paid October 20, 1982. Petitioner's Exhibit No. 5. The record does not reveal whether the seller ever asked for or received any money in connection with this transaction. The seller had "agree[d] to pay [respondent] as a fee, the sum of Ninety-Seven thousand and five hundred dollars ($97,500.00) or one-half of the deposits in case same is forfeited by the Buyer Petitioner's Exhibit No. 1.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner suspend respondent's license for ninety (90) days. DONE and ENTERED this 11th day of May, 1984, in Tallahassee, Florida. ROBERT T. BENTON II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 1984. COPIES FURNISHED: Fred Langford, Esquire Department of Professional Regulation Florida Real Estate Commission 400 West Robinson Street Orlando, Florida 32801 Diane M. Klein Post Office Box 7193 Ft. Lauderdale, Florida Harold Huff, Executive Director Department of Professional Regulation Florida Real Estate Commission 400 West Robinson Street Orlando, Florida 32801 =================================================================
The Issue Whether or not the corporate names Sarasota Yacht Club on Coon Key, Inc., and Sarasota Yacht Club, Inc., are deceptively similar to each other and, if so, whether or not pertinent rules and regulations of the Department of State require the latter chartered corporation to amend its Articles of Incorporation and registration to reflect a new name due to a "bad faith" name reservation by Respondent, Sarasota Yacht Club, Inc.
Findings Of Fact Based upon the testimony adduced at the hearing, the documentary evidence received and the entire record compiled herein, the following relevant facts are found. Documents on file in the Division of Corporations, Department of State, reveal that the Articles of Incorporation for the Sarasota Yacht Club, 1/ a Florida corporation not for profit, were granted by the Circuit Court of Sarasota County, Florida, on June 30, 1926. (See Exhibit A of the Stipulation received herein as the parties' Joint Exhibit 1.) Sarasota Yacht Club came under the jurisdiction of the Division of Corporations of the Department of State (Respondent) on April 18, 1963, with the filing of certain amendments to the Articles of Incorporation (Exhibit B of Joint Exhibit 1). The Sarasota Yacht Club was dissolved on September 3, 1976, for failure to file its Annual Report for 1974 and subsequent years. Notices mailed by Respondent, Division of Corporations, to the Sarasota Yacht Club were directed to 1100 Ringling Boulevard, an address which was erroneously given on the 1973 Annual Report of Sarasota Yacht Club, whose correct address is 1100 John Ringling Boulevard. (Exhibit C of Joint Exhibit 1.) The postmaster of Sarasota, Florida, upon inquiry by the Department, indicated that mail addressed to the Sarasota Yacht Club at 1100 Ringling Boulevard would not automatically be forwarded to 1100 John Ringling Boulevard, Sarasota, Florida. (Joint Exhibit 1 and testimony of John W. Arnold, the manager of Sarasota Yacht Club on Coon Key, Inc., during the calendar years 1975 through 1979.) On July 9, 1979, Martin J. McGuire, Ethel May McGuire and William Kecht filed Articles of Incorporation under the name Sarasota Yacht Club, Inc., which corporation was granted Charter No. 748001. (Exhibit D of Joint Exhibit 1.) Sarasota Yacht Club reinstated its Charter under the name of The Sarasota Yacht Club on Coon Key, Inc., on September 24, 1979, with the original Charter No. 705493. (Exhibit E of Joint Exhibit 1.) Sarasota Yacht Club, Inc., Charter No. 748001, failed to file its Annual Report prior to July 1, 1980, and was involuntarily dissolved December 8, 1980, and failing reinstatement of Charter No. 748001, pursuant to Chapter 10- 1.09, Florida Administrative Code, the name Sarasota Yacht Club will become available for reissuance on December 8, 1981. (Joint Exhibit 1.) Sarasota Yacht Club on Coon Key, Inc., Charter No. 705493, has attempted to reserve the name Sarasota Yacht Club so that it may be restored to the use of its name granted on June 30, 1926, however, the Respondent, Department of State, Division of Corporations, will not process said name reservation until December 8, 1981. (Exhibit F of Joint Exhibit 1.) During the years 1975 through 1979, when Messr. Arnold was manager of Sarasota Yacht Club, the Club continued to do business with various State agencies and regularly renewed various licenses with the Department of Natural Resources; gasoline dealers; special fuel certificates; Department of Business Regulation, Division of Hotels and Restaurants; Internal Revenue Service special tax stamps and licenses issued by the City of Sarasota, including the Health Department. Also, during this period, the Club received various letters which were not properly addressed, such as John Ringling Causeway, Ringling Causeway, etc. As stated herein, Sarasota Yacht Club, Inc., Charter No. 748001, was formed on July 3, 1979, for the express purpose of encouraging boating and yachting to provide entertainment food, refreshments and social activities for its members and guests. Accordingly, the purpose for which that club was formed is the identical purpose for which Petitioner was originally formed and continues to operate since 1926. Also, both corporations operate in the same locality, Sarasota, Florida. Respondent, Sarasota Yacht Club, Inc., however, has not conducted any business in furtherance of its corporate purpose other than the chartering of the corporation. Martin McGuire, one of the incorporators of Respondent, Sarasota Yacht Club, Inc., was a former member of Petitioner. His membership was terminated for reasons unknown to the Hearing Officer, during 1979. On July 12, 1979, Norman Jacobson, an attorney licensed to practice in Florida received a phone call from Martin McGuire. Attorney Jacobson has known attorney Martin McGuire for more than thirty-five (35) years. Attorney Jacobson attended law school with Martin J. McGuire at John Marshall Law School, Chicago, Illinois. During the July 12, 1979, conversation, attorney McGuire related to attorney Jacobson, certain alleged problems that Sarasota Yacht Club, Inc., was experiencing including personal, financial and tax liabilities which could affect the Club (Petitioner) if made known to the public. This conversation took place subsequent to the time when attorney McGuire had been expelled as a member of Petitioner. According to Jacobson, attorney McGuire agreed to dissolve Corporate Charter No. 748001 provided Petitioner do the following: l. Reinstate his membership in good standing; Guarantee his continued membership in good standing; and Agree to certain unspecified changes in Petitioner's by-laws. Attorney Jacobson advised attorney McGuire that those concessions could not and would not be made if his recommendation to the Club's membership were adopted. Attorney Jacobson considered McGuire's demands to be a form of blackmail. Attorney Jacobson reported to the Club (Petitioner) the details of the conversation and discussions that he had with attorney McGuire as outlined above and the Club unanimously agreed to maintain its original decision to cancel attorney McGuire's membership. Messr. Brady, a former practicing attorney and also an employee of the Department of Justice, Federal Bureau of Investigation, is familiar with Petitioner's history. Messr. Brady recounted that the Club was formed during 1926, and its stature has continuously grown. The Club presently boasts of a membership in excess of 500 and regularly sponsors regattas and other sailing events. The Club is sponsoring its third annual sailing regatta this month and one of its female members is a finalist in this year's Adams Cup Race.
Recommendation Upon consideration of the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the corporate name Sarasota Yacht Club, Inc., be found deceptively similar to Sarasota Yacht Club on Coon Key, Inc., and that approval for use of the name Sarasota Yacht Club, Inc., be withdrawn by the Secretary of State. 2/ RECOMMENDED this 16th day of November, 1981, in Tallahassee, Florida. JAMES E. BRADWELL, 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 16 day of November, 1981.
The Issue The issue presented herein is whether or not the names Miami Yacht Sales, Inc. and Miami Yacht Brokerage, Inc. are deceptively similar.
Findings Of Fact Based upon my observation of the witness and his demeanor while testifing, documentary evidence received, pleadings and responses, and the entire record compiled herein, I hereby make the following relevant factual findings. On 0ctober 7, 1977, Respondent, Division of Corporations, issued Charter number F40099 permitting the use of the corporate name Miami Yacht Sales, Inc. to the Petitioner in reliance on Chapter 607, Florida Statutes. On January 3, 1984, Respondent, Division of Corporations, issued Charter number 087231 permitting, the `use of the corporate name Miami Yacht Brokerage, Inc. to the Respondent in reliance on Chapter 607, Florida Statutes. Petitioner is engaged in the business of selling new and used boats and yachts. Petitioner conducts its business at 2122 N. River Drive, Miami, Florida. Petitioner, through its president, Larry Stevens, related one incidence of a telephone communique from Merrill Stevens Brokerage, a competitor which was seeking information respecting one of Respondent, Miami Yacht Brokerage, Inc., salesmen. Mr. Stevens also related at least one instance wherein a supplier misdelivered a package which was destined for the Respondent's business, end Petitioner rerouted that package to Respondent. Petitioner, through Mr. Stevens, generally alluded to "confusion, client-wise" which he believed would continue as soon as Respondent, Miami Yacht Brokerage, Inc., was able to get an advertisement in the Yellow Pages of the Miami telephone directory. Petitioner pointed to no specific acts of confusion or other deceptive practices by Respondent, Miami Yacht Brokerage, Inc.. example, Petitioner did not substantiate that any of its customers went to the Respondent's business and had to ultimately be directed to Petitioner's business. Likewise, Petitioner did not allege or otherwise claim that the name Miami Yacht Brokerage, Inc. was selected by Respondent based on an attempt to deceive or otherwise defraud the consuming public. As stated herein, Respondent, Miami Yacht Brokerage, Inc., did not appear at the hearing herein although it was properly noticed by copy of a notice of hearing filed May 28, 1984 scheduling this matter for hearing on June 28, 1984. However, the evidence reveals that Respondent, Miami Yacht Brokerage, Inc., is also engaged in the business of selling new and used boats and yachts and its business is situated approximately four miles from Petitioner's business site.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is therefore recommended that the petition of Miami Yacht Sales, Inc., seeking to forbid the use by the Respondent of the name Miami Yacht Brokerage, Inc., be DENIED. Recommencded this 13th day of November, 1984, in Tallahassee, Florida. JAMES E. BRADWELL 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 13th day of November, 1984.
The Issue Whether Respondent's employment as a bartender/waitress at the Tarpon Springs Golf Course was terminated by the City of Tarpon Springs in accordance with the City's Personnel Rules and Regulations?
Findings Of Fact An Employer-Employee Relationship From December 20, 1995 until her termination on November 14, 1996, Deborah Monley was employed by the City of Tarpon Springs as a part-time bartender/waitress at the City's municipal golf course. Her duties at the course's "inside" bar consisted of serving beer and wine and food such as hot dogs and packaged snacks. Prior to the initial date of her employment with the City, the golf course was privately owned with Ms. Monley as the employee in charge of the course's inside bar. The City kept Ms. Monley as an employee when it acquired the golf course on December 20, 1995, making that day her first as a City employee. Management and Staffing During the time covering the events pertinent to this case, the golf course was supervised by Mike Hoffman, the Golf Course Manager. He was assisted by Michael Houlis. As an assistant manager, Mr. Houlis was primarily responsible for the food and beverage operations of the golf course. Since Ms. Monley was a food and beverage employee, her supervision fell in the first instance to Mr. Houlis, although Mr. Hoffman had ultimate supervisory authority over her position. The bar operated seven days a week. In the fall of 1996, it was staffed in the main by three employees who were assigned regular shifts. Ms. Monley, normally on duty four days a week, worked the most hours of the three. A second employee, Tom Bowman, worked two to three days per week. Peggy Johnson, the last of the three regular employees, worked one day a week. From time-to-time, the City would call on Pearl Standahl to fill in for the three regular employees on an as-needed basis. But whether Ms. Standahl would provide assistance or not in any given instance was nothing upon which the City could rely with certitude. The City's arrangement with her allowed her to decline for whatever reason whenever requested to work. As obstacles arose on different occasions to the ability or convenience of any one of the three regular employees to be at work, another would cover for the absent employee. If, for example, an emergency came up for one, another employee would fill in or if one employee needed to switch a day, another would usually be willing to accommodate the switch. Management did not object to these informal arrangements among the employees so long as the snack bar was covered by any of the three regular employees or Ms. Standahl. Autumn of 1996 The events critical to the facts of this case occurred in the fall of 1996. The Tournament In late October, one of the major annual events for the golf course was under way: a tournament involving a group of golfers from North Carolina. A reciprocal event was held each year in North Carolina at another time of the year for members of the Tarpon Springs Golf Course. These reciprocal golf tournaments had been annual events for some 25 years. During the tournament in 1996, Ms. Monley met and became friendly with one of the seventy or so North Carolina golfers. He was identified at hearing only as "Terry." Ms. Monley attended some of the tournament's events in Terry's company over the several days the tournament lasted. A Request for Time Off On Monday, October 28, 1996, Ms. Monley asked Mr. Houlis if she could take off Friday, November 14, 1996 and Monday, November 17, 1996 as vacation days so that she would be able to enjoy a long weekend in North Carolina. Aside from her developing relationship with Terry, Ms. Monley felt that she deserved the time off. The only real time away from work she had had in the recent past was sick leave following surgery. Although she had wanted to use accrued vacation leave, she had been required to work the entire summer sometimes five or six days a week from 7 a.m. until 6 or 7 p.m., because, in her view, the bar was not then adequately staffed. In response to the request, Mr. Houlis advised Ms. Monley that there was "no problem" as long as there was someone to cover for her on the two days she would have otherwise worked. Mr. Houlis planned on asking Tom Bowman if he could cover for Ms. Monley. Domestic Violence On the evening of October 29, 1996, Ms. Monley and her two children were subjected to or present at home during acts of domestic violence committed by Ms. Monley's former boyfriend. Ms. Monley called the police. After responding, one of the officers advised Ms. Monley that she should obtain a "domestic violence" injunction against her ex-boyfriend as soon as possible the next day, October 30. October 30 The following day, October 30, 1996, was a Wednesday. Wednesday is a busy day of the week at the golf course. Typically, the course is crowded in the early morning. The snack bar is busy as golfers arrive and enjoy coffee or a breakfast snack while they wait for their tee time. At home early that morning, Ms. Monley faced a difficult decision. Her eight-year-old son was not feeling well and did not go to school. Ms. Monley feared that her ex- boyfriend might come to the house. He had been on prescription medication, drinking, and irate the night before when the domestic violence had occurred. She worried that he could pose a danger to her son. She also knew that she was expected at work on what promised to be a busy day. Furthermore, she had to obtain the "domestic violence" injunction as soon as possible. She decided she would go to work, ask to be allowed to leave after the morning rush (around 8 to 8:30 a.m.), obtain the injunction and return home well before noon, all the while hoping her ex-boyfriend would not have come by. She hoped, too, that arrangements to cover her position at the course could be made by Mr. Houlis during the time she handled the morning rush. To assist her son in case her former boyfriend showed up while she was at work or seeking the injunction, Ms. Monley instructed her twelve-year-old daughter, whom she regarded as unusually mature for her age, to remain at home with the eight-year-old. Ms. Monley reported to work as scheduled. She met with Mr. Houlis and advised him of the domestic violence the evening before. She also told him that her son was ill at home and that she needed to leave work to attend to him as well as obtain the injunction. Mr. Houlis told Ms. Monley that he would attempt to have another employee cover for her as soon as possible so that she could leave. Ms. Monley left to attend to her job, but she did not think Mr. Houlis appreciated the gravity of the situation or its exigent nature. Nonetheless, Mr. Houlis called Tom Bowman right away. He did not reach him but left a message on his answering machine. Mr. Bowman was good about returning calls so Mr. Houlis felt that he would hear from him in a reasonable amount of time. Mr. Houlis was fully aware that Ms. Monley needed time off during the day, but he was not aware of the direness of her predicament. He felt that Ms. Monley had informed him of the circumstances in a "casual" way rather than in a way that indicated that she needed to leave as soon as possible, if not immediately. While Mr. Houlis attempted to reach Mr. Bowman, Pearl Standahl arrived at the course, not for work, but to play golf. Ms. Monley asked her to fill in for her. Ms. Standahl refused. At approximately 10:30 a.m., Styllianous Splinis (known as "Stan") entered the bar area. Stan Splinis is a City employee who works at the golf course handling all the money that constitutes golf course revenue and manning the pro shop where most of the money is received. Mr. Splinis, however, is not under the supervision of golf course management. Instead, he is supervised by the City Clerk. Although he had occasionally filled in at the bar, bartending is not part of his regular duties. He has been informed by the Clerk's office that the City Clerk disapproves of his doing so. By the time of Mr. Splinis' entry into the bar area the morning of October 30, 1996, Ms. Monley had become agitated. Mr. Houlis did not appear to her to be making much of an effort to get a replacement. Ms. Standahl had preferred to play golf rather than help her out in a moment of real need. But most of all, she was worried about the safety of her children and the need to obtain the injunction. Ms. Monley believed, moreover, that Mr. Houlis was not making much of an effort because of a previous private encounter in which she had rebuffed what she interpreted as Mr. Houlis' romantic interest in her. What she saw as indifference stemming from resentment was exacerbated during the recent tournament for the North Carolina golfers. Mr. Houlis, at the time having trouble with his girlfriend, inquired about Ms. Monley's relationship with her boyfriend, who would soon be charged with domestic violence. Ms. Monley believed that Mr. Houlis stopped talking to her when he learned that she had met Terry during the tournament. (Mr. Houlis disputes Ms. Monley's interpretation and assumptions; he believes that their relationship outside of work had never been anything more than casual friends.) As soon as Mr. Splinis appeared, Ms. Monley's state of agitation turned to action. She locked up her cash drawer, handed Mr. Splinis the key, and left work without clearing her departure with Mr. Houlis. In Ms. Monley's absence, Mr. Splinis took over at the bar. He informed Mr. Houlis of Ms. Monley's departure and worked the rest of her shift. When Ms. Monley reached her home, her ex-boyfriend was present. As she feared, he was threatening her son. She called 911. By the time the police arrived, the ex-boyfriend was gone. One of the police officers who responded, John Ulrich, spoke to Ms. Monley after an unsuccessful search of the neighborhood. Officer Ulrich advised Ms. Monley to remain at home. Later in the afternoon, Mr. Houlis called Ms. Monley to check on her. He, too, told her to stay home and assured her that her position was covered for the afternoon. Ms. Monley did not attempt to obtain an injunction. She remained home for the rest of the day with her children. October 31 The following day, Ms. Monley, acting on the advice of the police, went to the State Attorney's office to swear out a warrant for her ex-boyfriend's arrest. The warrant was issued. Ms. Monley decided to abandon any attempt to obtain the injunction, thinking that the warrant was at least as effective at curbing her former boyfriend's threatening behavior as the injunction would be. October 31 was also a day Ms. Monley was scheduled to work. When she arrived at the golf course, Mr. Hoffman and Mr. Houlis asked her to meet with them. Still not appreciating the seriousness of Ms. Monley's situation the day before, they told her that while sympathetic to her situation, they believed she should not have left work without permission and without following proper procedure for closing out the cash drawer. They also advised her that she was subject to discipline. No discipline, however, was decided upon or meted out. Ms. Monley left the meeting upset. As she emerged from the room, she bumped into Officer Ulrich. Officer Ulrich had come to the golf course to check on Ms. Monley in follow-up of her case and to tell her that the State Attorney would be considering the filing of charges. She was informed of the time of the deliberations since her presence would be needed. Ms. Monley, in tears, said to Officer Ulrich something to the effect of, "See, I told you I would get in trouble for leaving work." Officer Ulrich entered Mr. Hoffman's office and undertook to explain to management the real danger in which he perceived Ms. Monley to be. He entered the room where the meeting had just taken place and said to both Mr. Hoffman and Mr. Houlis something like, "I wouldn't want to be the one who had prevented Ms. Monley from obtaining an injunction." Mr. Houlis paid the officer no real attention because, in his view, the officer did not understand the other side of the story, that being management's concerns about a departure with neither notice nor observance of proper procedure. Early November On November 1, 1996, or thereabouts, Tom Bowman gave management the required ten days notice of his resignation effective a few days before the commencement of Ms. Monley's planned vacation in North Carolina. This development, unforeseen when Ms. Monley had first requested time off, meant to Mr. Houlis that it would be difficult to schedule replacements for Ms. Monley on the two days she asked to be on leave. In the meantime, Ms. Monley, believing that there should be no difficulty in covering her vacation days, purchased discount non-refundable airline tickets for the planned trip. When Ms. Monley heard that Tom Bowman was quitting, she was not concerned that it would be a problem because she thought Peggy Johnson, Pearl Standahl or Stan Splinis could cover for her. On November 3, 1997, a few days after Mr. Bowman's announcement, Mr. Houlis told Ms. Monley that her request for vacation was denied. (The parties are in agreement about this fact. See Respondent's Proposed Order of Findings of Fact and Conclusions, pgs. 8 and 11.) Mr. Houlis needed Ms. Johnson to cover some of the time Mr. Bowman would have worked had he stayed. He thought it would be difficult for Ms. Johnson to cover both Mr. Bowman's normal working days and the two days Ms. Monley would be gone because it would be too much work for Ms. Johnson at her age. Ms. Standahl was never a sure replacement and Mr. Splinis stepping up as a replacement was frowned on by the City Clerk's office. November 7 On November 7, Peggy Johnson returned to work after leave she had taken. Ms. Monley asked her if she could cover for her on November 14 and 17. Ms. Johnson replied that she could as long as management approved. Since the vacation time request had been disapproved by Mr. Houlis, Ms. Monley went directly to Mr. Hoffman to ask him about the request for time off. Ms. Monley told Mr. Hoffman that Ms. Johnson could cover her shifts but she neglected to tell Mr. Hoffman that her request had already been denied by Mr. Houlis. Mr. Hoffman replied, "As long as the shifts are covered, no problem." Ms. Monley felt reassured. She now had Mr. Hoffman's conditional consent. She remained, moreover, convinced despite Mr. Houlis' misgivings that the two days could be covered among Peggy Johnson, Pearl Standahl and Stan Splinis. In the worst case, Ms. Monley felt that Mr. Houlis, himself, could cover the bar, if necessary. By now, Ms. Monley had formed the intent to go to North Carolina no matter what. Among other reasons for her determination were that she felt she had given appropriate notice, had made informal arrangements to have the shifts covered which management usually sanctioned, had purchased non-refundable airline tickets in reliance on the timely request, thought she had been denied a vacation in the past when she clearly deserved one, and had obtained the general manager's conditional consent. Finally, she could see no real reason when she examined all the circumstances why her position could not be covered on the two days she wanted to be off. Ms. Monley's determination did not take into account several factors. She had not been given unequivocal permission by the Golf Course Manager to take the time off. The agreement with Peggy Johnson was explicitly subject to management's approval, approval Mr. Houlis was not likely to give. And Mr. Houlis, Ms. Monley's immediate supervisor, had told her that the request was denied. When Mr. Houlis saw Peggy Johnson on November 7, after Ms. Monley had spoken to her, he approached her to ask her to cover for Bowman after November 11. Ms. Johnson told him about the arrangement she had just made with Ms. Monley. In the wake of this information, Mr. Houlis conferred with Mr. Hoffman about the dilemma. The two agreed that Ms. Monley would not be able to take the days off. The Eve of the Trip and Plans Carried Out Mr. Hoffman and Mr. Houlis heard from several golf course employees that Ms. Monley intended to take off the two days that she had requested for vacation, November 14 and 17, no matter what Mr. Houlis' position might be. On Thursday, November 13, 1997, the day before the trip was to commence, Mr. Hoffman called Ms. Monley into his office to make sure that she understood management's position. In the presence of Mr. Houlis, Golf Course Manager Mike Hoffman, the head of management at the course and Ms. Monley's ultimate on-site supervisor, informed her that she did not have permission to take the vacation days requested. He told her clearly that she was expected to be at work on both the fourteenth and the seventeenth of November. Ms. Monley went to North Carolina as planned. Return to Work On November 19, 1996, Ms. Monley reported to work. She was told her conduct on October 30 and November 14 and 17 was under review. On November 20, 1996, Ms. Monley was given notice of her termination in a letter signed by Golf Course Manager Mike Hoffman. The cited basis for termination was Rule 18, Section 5 of the City's Personnel Rules and Regulations. The notice stated: On October 30, 1996, you abandoned your station around 10:00 a.m. and did not return until your next scheduled work day. You left without notifying your supervisor of your departure, even though he was readily available and accessible. In addition, on October 30, 1996, you left your cash draw without properly accounting for it and closing it out. On November 14, 1996, and November 17, 1996, you failed to report for duty as scheduled. Your absences on these dates were with the full knowledge as communicated by your supervisor on November 13, 1996, that your presence was required on these scheduled dates. Petitioner's No. 1. After her termination, Ms. Monley looked for jobs in the food industry, mainly in positions dealing directly with the public. For example, she applied at Chili's for a job as a waitress. In March of 1997, however, Ms. Monley, then more than four months pregnant, abandoned her search for work serving food since it had become futile in her condition.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That the Civil Service Board for the City of Tarpon Springs dismiss the October 30, 1996, incident as a ground for discipline and, with regard to the November absences, discipline Ms. Monley short of dismissal: suspension without pay from November 20, 1996, until the Board's consideration of this recommended order, with reinstatement as a City employee in a position outside the City Golf Course. DONE AND ENTERED this 22nd day of October, 1997, in Tallahassee, Leon County, Florida. DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 1997. COPIES FURNISHED: Thomas M. Gonzalez, Esquire Kelly L. Soud, Esquire Thompson Sizemore & Gonzalez, P.A. Post Office Box 639 Tampa, Florida 33601-0639 William Newt Hudson, Esquire 23 West Tarpon Avenue Tarpon Springs, Florida 34689
The Issue The issues are whether Petitioner effectively elected to move her retirement account from the Florida Retirement System (“FRS”) Pension Plan to the FRS Investment Plan prior to her retirement from state employment or, if not, whether Respondent, State Board of Administration (“SBA”) is estopped from claiming that Petitioner did not successfully elect to move her retirement account into the FRS Investment Plan.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner, Adrian Wagner began her state employment on April 22, 1994, with the Department of Health and Rehabilitative Services, which was renamed the Department of Children and Family Services after a 1996 reorganization. Since 2012, the agency has been named the Department of Children and Families. Upon her hiring, Ms. Wagner was enrolled in the Pension Plan, which was the only retirement program available for eligible employees in 1994. In 2002, the Investment Plan was made available for employees participating in the FRS. Ms. Wagner was provided a three month window, from December 1, 2002, through February 28, 2003, to switch to the Investment Plan. The Plan Choice Administrator did not receive an election from Ms. Wagner during the three month period. Therefore, Ms. Wagner remained in the Pension Plan by statutory default. See § 121.4501(4)(a), Fla. Stat. Ms. Wagner changed employers but remained in the FRS system until her last day of employment on April 3, 2019. At the time of her retirement from FRS-eligible employment, Ms. Wagner was working for the Alachua County Sheriff’s Office. On March 4, 2019, Ms. Wagner logged onto the FRS website, MyFRS.com, from her home computer. Her intention was to use the second election opportunity afforded by section 121.4501(4)(f), Florida Statutes, to move from the Pension Plan to the Investment Plan. Ms. Wagner recalled clicking a green button to change her plan, which took her to a page that read, “ready to make a decision” to change from the Pension Plan to the Investment Plan. It set out the steps needed to make the change. Ms. Wagner testified that she clicked on a green arrow that said, “change your plan,” which took her to a page that set forth the amount of money she would have in the Investment Plan. She continued to a page showing the different plans available to participants in the Investment Plan. The website advised her to contact an Ernst and Young (“EY”) financial planner to discuss her plan options. Ms. Wagner testified that a few minutes later she used the phone number provided by the MyFRS.com website to contact the EY financial planners. She testified that the EY planner with whom she spoke was named “Josh.” The EY call summary log for Ms. Wagner was entered into evidence. The log is a record of every phone call between EY and Ms. Wagner. It includes the date and time of the call, the name of the EY employee who spoke to Ms. Wagner, and a brief summary of their discussion. The EY call summary log identified the EY planner who spoke with Ms. Wagner at 12:10 p.m., on March 4, 2019, as Joshua Kantrowitz. Ms. Wagner testified that Mr. Kantrowitz told her that he could not see in his computer that she had made the switch to the Investment Plan. While Mr. Kantrowitz waited, Ms. Wagner clicked several “back” buttons on the MyFRS.com website. She then went through the same page progression she had done previously to make her plan selection. Ms. Wagner recalled finalizing her decision by clicking a button that read “send,” or “submit,” or “continue.” Ms. Wagner testified that Mr. Kantrowitz told her that he could now see that she had elected to change her retirement from the Pension Plan to the Investment Plan. They discussed fund options, tax questions, and penalties for taking funds out of the Investment Plan. Mr. Kantrowitz verified Ms. Wagner’s email address so that he could send her an FRS Investment Beneficiary Form. Ms. Wagner understood Mr. Kantrowitz to say that she would not be able to see that she had changed to the Investment Plan on the website for about a month. The conversation was interrupted when the phone connection was lost. Ms. Wagner testified that it was her understanding that she had successfully changed her retirement from the Pension Plan to the Investment Plan, and that this change had been confirmed by Mr. Kantrowitz. A transcript of the conversation between Ms. Wagner and Mr. Kantrowitz was entered into evidence. The transcript does not confirm every aspect of Ms. Wagner’s recollection. The transcript records that Ms. Wagner told Mr. Kantrowitz that she “just switched over from the FRS Pension Plan to the Investment Plan.” Mr. Kantrowitz asked when she made the switch. Ms. Wagner responded, “I just hit it today. Did it today.” She added that she made the election “about ten minutes ago.” The transcript clarifies that Mr. Kantrowitz accepted, but did not confirm, Ms. Wagner’s statement that she made the switch to the Investment Plan. After Ms. Wagner told him that she made the switch only 10 minutes ago, Mr. Kantrowitz stated: Okay. And you did it by--basically, you know, if you do--you know, it’s still being processed at the moment. Basically, you know, in the next month, it’s going to make that conversion. In order to, you know, switch and make that choice, you know, the types of investments you’re putting into. Okay. So I do want to keep you aware of that if you did fill it out today, okay. Mr. Kantrowitz never confirmed that the second election had been completed nor did he state whether he could or could not see the change on his computer. Mr. Kantrowitz simply accepted Ms. Wagner’s word and went on to tell her what would happen next if she indeed made the change. Mr. Kantrowitz did state that the conversion would be made in the next month, confirming in part Ms. Wagner’s recollection that she was told that it would be a month before she could see the switch to the Investment Plan on the website. Again, however, this statement was contingent: if Ms. Wagner made the change, the conversion would take about a month. The EY call summary log entry for the March 4, 2019, conversation, presumably completed by Mr. Kantrowitz, records Ms. Wagner’s “Question or Problem” as “made a switch to the FRS IP. [D]oesn’t plan to work in the FRS anymore.” The log records the “Resolution” with a series of four bullet points: talked about IP. taxation, timelines, HIS. says she spoke with admin and they said she would hit NRA at April 1 for 25 YOS SR. she did the 2nd election online and was defaulted into the FRS RDF. needs to set up beneficiaries sending out beneficiary form It could be argued that the second bullet point confirms that Ms. Wagner successfully completed the second election into the Investment Plan. However, when read in tandem with the transcript, Mr. Kantrowitz’s notes clearly set forth his summary of the conversation as it occurred, not his independent conclusion that Ms. Wagner had completed the second election. After the call with Mr. Kantrowitz was dropped, Ms. Wagner called back to inquire as to her exact retirement date. She spoke briefly with another EY planner, Zach Brown, who told her that the Division of Retirement keeps the record of official years of service for employees. Mr. Brown transferred the call to the Division of Retirement. The transcript indicates that Ms. Wagner remained on hold for some time, then hung up before speaking with a Division of Retirement representative. Ms. Wagner testified that on March 18, 2019, she again contacted the EY financial planners. She spoke for roughly a half-hour with a woman whose name she did not recall. The woman verified Ms. Wagner’s personal account information. After being verified, Ms. Wagner asked tax and health care subsidy questions and stated that she planned eventually to move her Investment Plan account from EY to an outside investment firm. Ms. Wagner testified that the EY planner never stated that she was not enrolled in the Investment Plan. The EY call summary log does not show a phone call from Ms. Wagner on March 18, 2019. Ms. Wagner testified that on March 19, 2019, she met with Shawn Powers, the human resources manager for the Alachua County Sheriff’s Office, to discuss Ms. Wagner’s impending retirement. As Ms. Powers filled out a retiree insurance data sheet, Ms. Wagner told her that she had enrolled in the Investment Plan. Ms. Powers cautioned her about the risks involved in the Investment Plan. Ms. Wagner assured her that she understood the risks. Ms. Powers checked the “Investment Plan” box on the insurance form. Ms. Wagner signed the form, attesting to her understanding that she had made the election to move from the Pension Plan to the Investment Plan. Ms. Wagner testified that, after the March 4, 2019, conversation with Mr. Kantrowitz, she received several emails from EY financial planners. She understood these emails as indirect confirmation that she had successfully elected to move to the Investment Plan. During cross-examination, Ms. Wagner conceded that none of these communications affirmatively stated that she was now in the Investment Plan. The third-party Plan Choice Administrator for the Investment Plan is Alight Solutions. FRS members who wish to utilize their second election have multiple options: they may complete and mail in a hard copy form; they may submit a second election form on the MyFRS.com website; or they may log into their account on the MyFRS.com website and go through the process of submitting and confirming their second election online. Fla. Admin. Code R. 19-11.007(3). If an FRS member successfully utilizes the online MyFRS.com process for submitting a second election, an “election confirmation” page appears that informs the member that the election has been received by Alight Solutions. Ms. Wagner had no specific recollection of receiving an electronic confirmation that her election to move to the Investment Plan had been successfully submitted or that it had been received by Alight Solutions. If an FRS member successfully submits an election form to Alight Solutions, a hard copy letter is mailed to the member confirming receipt. Ms. Wagner had no specific recollection of receiving any type of correspondence confirming receipt of her Investment Plan election via conventional mail. Ms. Wagner retired from the Alachua County Sheriff’s Office on April 3, 2019. The parties stipulated that the SBA has no record of receiving a second election from Ms. Wagner during her term of employment with an FRS-participating employer. On April 8, 2019, Ms. Wagner logged onto the MyFRS.com website and saw that she was still enrolled in the Pension Plan. Ms. Wagner immediately phoned the number for the EY financial planners and was transferred to a “solutions person” named Nichole. Ms. Wagner explained to Nichole that on March 4, 2019, she had elected to move her retirement account from the Pension Plan to the Investment Plan via the MyFRS.com website. She provided Nichole with the chronology of events from March 2019 as she remembered them. Nichole told Ms. Wagner that she would research the matter and get back to her within two weeks. Ms. Wagner testified that on or about April 22, 2019, Nichole phoned her to say that she could find no record of anything Ms. Wagner claimed to have done on the MyFRS.com website. Nicole told Ms. Wagner that she would need more time, possibly another two weeks, to do further research on the matter. Ms. Wagner told Nichole how upset she was. Nichole assured Ms. Wagner that she would do her best to find out what happened. Nichole also stated that she would send Ms. Wagner a form to request that the SBA intervene. Ms. Wagner subsequently filed a Request for Intervention, which was received by the SBA on May 17, 2019. Ms. Wagner testified that after she filed her Request for Intervention, but before the SBA responded, she attempted to contact Nichole. Her call was answered by an unnamed EY planner who stated that he would remain on the line while putting her through to a solutions person. Ms. Wagner began speaking with the solutions person but was interrupted by the EY financial planner, who stated that he had found notes by Mr. Kantrowitz indicating that she had changed from the Pension Plan to the Investment Plan. It is highly likely that the unnamed EY financial planner was referencing the EY call summary log notes quoted at Finding of Fact 18. As found above, Mr. Kantrowitz’s contemporary notes reflected what he was told by Ms. Wagner. The notes do not constitute an independent confirmation that Ms. Wagner successfully completed her second election. The SBA submitted into evidence a spreadsheet titled “Participant Web Activity Detail.” SBA witness Allison Olson testified that this document was produced by Alight Solutions in response to her request for all records of Ms. Wagner’s March 4, 2019, activity on the MyFRS.com website. Ms. Olson is the Director of Policy, Risk Management, and Compliance in the Office of Defined Contribution Programs. She credibly testified that she is familiar with reading the Alight Solutions spreadsheets and that she saw nothing on Ms. Wagner’s page indicating that Alight Solutions received her Investment Plan election. Petitioner’s information technology expert, Philip Schwartz, testified that the document provided by Alight Solutions was a “program log,” a high level program that runs to handle a particular task such as an accounting function. Mr. Schwartz testified that he suggested to his client that she request the “server log” for the relevant date. The server log captures every keystroke and click made by a user such as Ms. Wagner, even in situations in which the server is too busy to complete the requested function. Mr. Schwartz believed the program log was insufficient because it showed only which page of the website Ms. Wagner was on at a given moment, not which buttons she clicked or whether she had hit the “send” button. Mr. Schwartz’s suggestion was that Ms. Wagner might have done everything necessary to complete the second election but that the MyFRS.com server may not have recorded her election. The server log would have provided a more accurate representation of Ms. Wagner’s intentions. Ms. Olson testified that, after an informal hearing attempting to resolve the case, she requested a server log from Alight Solutions. The company responded that it did not have the server log. Ms. Olson testified that the program log would indicate the second election had it been completed by Ms. Wagner. Ms. Olson stated that FRS members are always advised to follow through and make sure their election has been received. Mr. Schwartz testified that there is no industry standard as to the length of time a program log should be kept. He has known companies to hold them for as long as a year, but has also known companies to keep them for only 90 days. Mr. Schwartz testified that there is no legal requirement for a company such as Alight Solutions to maintain a program log at all. Mr. Schwartz testified that he did not have enough knowledge of Alight Solutions’ terminology to state whether the program log indicated that Ms. Wagner’s election had been received. Thus, there is no evidence to contradict Ms. Olson’s credible testimony that the Alight Solutions program log did not indicate receipt of Ms. Wagner’s Investment Plan election. The preponderance of the evidence establishes that Ms. Wagner intended to make her second election on March 4, 2019, and to move her retirement account from the Pension Plan to the Investment Plan. The preponderance of the evidence also establishes that Ms. Wagner failed to complete her second election and that Alight Solutions, the Plan Choice Administrator for the Investment Plan, did not receive her election.1/ The evidence was insufficient to show that the SBA or any entity or person acting on its behalf or as its agent made any representation to Ms. Wagner that her second election had been received by the Plan Choice Administrator.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the State Board of Administration enter a final order dismissing Petitioner’s Florida Retirement System Investment Plan Petition for Hearing. DONE AND ENTERED this 8th day of January, 2020, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 8th day of January, 2020.
The Issue Whether Respondent discriminated in its hiring and employment practices against Petitioner based upon his age.
Findings Of Fact Petitioner, Timothy Cahill, is a 1976 graduate of the University of Iowa with a degree in education. He spent ten years working as a manager for Hy-Vee Foods, Inc. (Hy-Vee), one of the larger privately held food and grocery chain stores in the country. Petitioner was also a skilled, competitive golfer. After working for Hy-Vee for ten years, Petitioner decided to change careers and pursue a career as a golf professional. In 1986, he began working as an assistant golf professional at a private golf club in Omaha, Nebraska. The following year, he was hired as an assistant golf pro at Tiger Point Golf and Country Club in Gulf Breeze, Florida, which was owned by Jerry Pate, a well-known playing professional and golf course architect. Petitioner worked at Tiger Point for two years completing the Professional Golf Association’s (PGA) Golf School Business School curriculum, the player’s ability test, oral comprehensives, and apprenticeship program. This certified him as a PGA “Class A” Professional (Class A Professional). Petitioner was employed as the Head Golf Professional at Musgrove Country Club an 18-hole facility in Jasper, Alabama, from 1989-1992. There was an average of 15,000 rounds of golf played at this club annually when he resigned to take a position at Oxmoor Valley. Petitioner was employed in 1992 as the property manager and director of golf at Oxmoor Valley, the first of the Robert Trent Jones Golf Trail courses in Alabama. In this position he coordinated and developed a $2.1 million budget for the facility in Birmingham, Alabama. This course was a 36-hole course that immediately drew 83,000 rounds of golf a year. In 1994, Petitioner was recruited to return to Tiger Point, which had been purchased by K.S.L. Fairways Group (KSL), as the “Director of Golf/Head Golf Professional.” He managed golf operations at Tiger Point. At this time, Petitioner was 39 years old. He reported directly to the property manager at Tiger Point, Lance Guidry. The property manager’s office was in the club’s clubhouse, and Guidry was primarily responsible for club operations including food and beverage, coordinating course maintenance, and golf operations. Petitioner was primarily involved with operations of the golf store, where his office was located, scheduling golfing events, and golfing operations. He eventually oversaw the golf operations at affiliated courses as head golf professional. This permitted young golf professionals to apprentice under him, and he was a resource person for managing their operations. During all times material to Petitioner’s complaint, KSL owned and operated Tiger Point and 27 other golf courses and clubs around the country. At the time Petitioner was hired, KSL owned two smaller, 18-hole courses in the panhandle of Florida: Scenic Hills in Pensacola and Shalimar Point in Shalimar/Ft. Walton Beach. Shortly after August 1995, KSL purchased a fourth 18-hole course named Hidden Creek in Navarre. KSL is subject to the Florida Civil Rights Act. Tiger Point was typical of KSL’s operation. It was a country club; however, it was open to public play. In this regard, it was a drawing card to visitors enjoying golfing junkets to the region. Tiger Point drew over twice as many package rounds as the other clubs owned by KSL in the region. It was the primary draw, and Petitioner, as mentioned above, functioned as the PGA golf professional for the other clubs. This meant that the golf professionals at the other facilities could apprentice under him as a Class A Professional, and earn credit towards becoming Class A Professionals. This was a drawing card for these professionals, who were mostly young, former college golfers attempting to make careers as touring or club professionals. Joey Garon was the District Manager for club operations in the panhandle. When Petitioner was hired, Garon was physically located at the Scenic Hills golf course where he was also the property manager. In January 1995, Garon moved to Tiger Point, transferred Guidry to Shalimar Point, and took over as the property manager at Tiger Point. On March 29, 1995, Garon performed an evaluation of Petitioner’s performance of his duties as Head Golf Pro. See Petitioner’s Exhibit 5. Garon rated him highly; the sales from his golf store were among the highest in KSL. He was well respected by members, young professionals who worked under him, and guests at the facility. Property managers averaged $45,000 per year, and the Tiger Point Property Manager made $50,000 a year. Garon had additional duties and made more. Petitioner was making $40,000 in the early fall of 1995. In the late summer of 1995, Hurricane Erin stuck the Florida panhandle and did serious damage to the area, including Tiger Point. Damage was done to the club, to the course, and to facilities in the area such as hotels and motels. Power was lost in many areas for two to three weeks. Traffic was restricted to Santa Rosa Island. Less than two months later, Hurricane Opal struck the same region causing greater damage. Because of the nature of Tiger Point’s business, these storms seriously impacted business. Various cost-cutting measures were instituted and some assets were sold to reduce losses. A review of all the positions in the panhandle was conducted. Personnel expense on hourly employees was reduced by sending non-essential personnel home early. Garon and the President of KSL, Eric Affeldt, decided to reduce Petitioner’s salary by 25 percent, from $40,000 to $30,000. Petitioner was told in November that his salary would be reduced in this manner, and if he did not like it, he could leave. At the same time, his assistant club professional, Sam Harrell, was discharged. Garon explained to Petitioner that Harrell was being fired because “new blood was needed,” “Harrell did not fit the image,” and “new faces” and “younger legs” were needed. Harrell was in his late 30’s. No evidence was received that other salaried employees at Tiger Point or the other clubs were discharged or had their salaries reduced although there were salaried employees at the other KSL facilities whose profits had been impacted adversely by the storms. Petitioner accepted the salary cut because the holidays were coming up; he had a family to feed; and there was no way he could quit so abruptly. Sam Harrell was permitted to stay on at the facility at give golf lessons, however, as an independent contractor. In December 1995, while on a golfing trip to a KSL course in South Florida, Garon advised Petitioner that Eric Affeldt had decided to restore his former salary. Petitioner was not offered his lost salary. Garon stated at hearing that the reason this was done was that it was the right thing to do; his testimony in this latter regard is not credible. Nothing was mentioned to Petitioner at this time or at any other time about plans to eliminate or consolidate positions within the company because of the bad earnings. Two weeks after Petitioner’s pay was cut, KSL transferred Patrick Barrett to Tiger Point as the property manager and increased his salary to $50,000 year. Garon stayed on as Regional Manager until June of 1996. His pay was charged to Tiger Point for 60 days after he departed and assumed duties at a new KSL facility. On the morning of March 26, 1996, there was a staff meeting at Tiger Point chaired by Barrett. Barrett mentioned that there might be personnel reductions; however, after the meeting, Petitioner specifically asked Barrett about him and his staff. Barrett stated that they had done well and had added to the facilities' bottom line. Petitioner had worked to increase dues-paying club memberships as a means to offset financial losses from the loss of tourists’ dollars. That afternoon, Garon announced to Petitioner that Petitioner was terminated immediately. KSL wrote a letter that indicates that Petitioner’s discharge was in no way performance related. Garon testified at hearing that Petitioner had indicated in early 1995, before the storms and before the financial problems, that he did not want a club management position based upon his experience with these positions in Alabama. This was Garon’s rationale for not offering the property manager’s position to Petitioner, and promoting Barrett. It is not credible that Garon held an honest belief that Petitioner would not accept the position of property manager at an increase of $10,000 a year in salary as an alternative to discharge. Petitioner stated that he did not want to be in management in two off-hand remarks to an abstract inquiry about his interest in a management position. Petitioner's comments were irrelevant to the post-storm situation facing Petitioner. It is not controverted that Barrett is younger than Petitioner. Garon testified that Barrett performed the duties of Director of Golf and Property Manager. This is not supported by the facts. The testimony of those who were in a position to observe golf operations before and after Petitioner’s discharge indicated that Barrett was seldom in the golf store and had nothing to do with the day-to-day duties of the Director of Golf. He did not run the store; he did not organize events; he did not supervise the employees directly. The budget for 1996 had been prepared by Petitioner before his discharge. The duties previously performed by Petitioner were performed by a succession of younger, less qualified employees all of whom were paid substantially less than Petitioner. From March 26 until June 3, 1996, John Fell performed the duties. Fell was 29 or 30 years old. He ran the golf shop, he conducted tournaments, and he supervised the other employees. When he resigned in June, John Ferrel was brought in. Ferrel was approximately the same age as Fell. Ferrel handled golfing play; and Gary James was retail coordinator, ordering and selling merchandize. These men did what Petitioner had done at Tiger Point. Leah Head transferred to Tiger Point in late 1996. She was in her late 20’s or early 30’s. She started at $25,000 as the head golf pro, but when she realized that she was to be responsible for all of the shop and golf, she demanded and got a salary of $30,000. Her performance evaluation indicates that she was performing the duties of Director of Golf to include improving sales and service, managing inventory, golf operations, tournaments, conducting employee/department meetings, setting goals for the department, and taking responsibility for poor staff performance. She was unaware that Barrett was calling himself “Director of Golf,” and considered him the general manager of the property. Head and others testified there was no essential difference between the titles Director of Golf and Head Golf Professional. The facts reveal that Petitioner’s duties were performed by younger persons, in some instances, transferred to Tiger Point for that purpose. Barrett did not really assume responsibility for the golf, and was Director of Golf in name only as reflected in Head’s designation of duties on her performance evaluation by Barrett. Tamara Bass testified regarding her experience at Tiger Point. Bass was in her 20’s. She had begun at Tiger Point a month before Petitioner’s discharge. His discharge adversely impacted her plans for obtaining her Class A Professional’s certification. She spoke with Barrett about this, and Barrett stated to her that he was interviewing to replace Petitioner with someone younger, cheaper and less experienced. Within several months, Head was hired. Following his discharge, Petitioner sought employment in the Panhandle area. He owned a house adjoining the Tiger Point course, his wife was employed at a local hospital, and his school age children were in local schools. It was not practical to uproot the family at this juncture. His job search was not helped by the fact that KSL owned several of the courses in the area; however, he did find employment, and eventually reached the salary he was making when discharged by KSL. However, he was without meaningful employment for several months; he was under-employed for several months, and it was several years before he reached the salary he was making when he was discharged, and, then, had to commute 86 miles to work. Petitioner received unemployment from April until October 12, 1996, in the amount of $11,141. He would have made $19,994 at Tiger Point during that period, his expenses were estimated (See Exhibit 16) and are disallowed. His economic loss was $8,853 for this period. From October 13, 1996 until December 1996, Petitioner made $7,296 at Ft. Walton Beach Golf Club. He worked 66 days, and commuted each working day 76 miles. At $.31/mile he had $1,555 in travel expenses. His meals were included in his compensation at Tiger Point, and he had to pay for his meals at Ft. Walton Beach Golf Club. His lunch was $3.00 each working day for a total of $198. He would have earned $9,228 at Tiger Point. Petitioner’s economic loss for this period was $3,685. From January until October 1997, Petitioner made $24,320 at Ft. Walton Beach Golf Club. He would have made $30,760 at Tiger Point. His economic loss for the period was $6,440. From November until December 1997, Petitioner made $7,668 at Ft. Walton Beach Golf Club. He would have made $9,228 at Tiger Point. His lost wages for November and December are $1,560. His expenses to commute to Ft. Walton Beach for the year were based upon a 50-week year, working six days a week, and commuting 76 miles each day at $.31/mile. This was a total of $7,068. His meals for 298 days at $3.00 a day were $894. His total economic loss for 1997 was $15,962. From January until April 25, 1998, Petitioner made $12,780 at Ft. Walton Beach Golf Club. He would have made $15,380 at Tiger Point. He commuted a total of 96 days, 76 miles each day at a cost of $.31/mile. This was a total of $2,261.61. His meals for 96 days at $3.00/ day were $288. His total economic loss for the period was $5,149.61. From May until December 1998, Petitioner made $29,536 at Glen Lakes Golf and Country Club. He would have made $24,608 at Tiger Point. He commuted a total of 192 days, 86 miles each day at a cost of $.31/mile. This is a total of $5,118.72. His total economic loss for the period was $190.72. For 1999, Petitioner made $48,000 at Glen Lakes Golf and Country Club. He would have made $40,000 at Tiger Point. He commuted a total of 275 days, 86 miles a day at $.31/mile. This was a total of $7,331.50. For the first time since his discharge, Petitioner exceeded his prior salary by $668.50.
Recommendation Based upon the foregoing findings of fact and conclusion of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter its final order finding that Respondent engaged in age discrimination, directing Respondent to pay Petitioner the amount of Petitioner's economic losses and directing Respondent to cease and desist from discriminatory employment practices in its businesses. DONE AND ENTERED this 30th day of April, 2002, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 30th day of April, 2002. COPIES FURNISHED: John C. Barrett, Esquire 5 Calle Traviesa Pensacola Beach, Florida 32561 David S. Shankman, Esquire Post Office Box 172907 Tampa, Florida 33672-0907 Denise Crawford, Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 240 Tallahassee, Florida 32303-4149 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 240 Tallahassee, Florida 32303-4149
