The Issue The issue is whether, in violation of section 760.08, Florida Statutes, Respondent deprived Petitioner of full and equal enjoyment of Respondent's bar and restaurant due to discrimination based on Petitioner's nation of origin, which is Brazil.
Findings Of Fact Petitioner is a native of Brazil. He is fluent in English and Portuguese, which is the national language of Brazil. Respondent owns and operates Duffy's Sports Grill in Coconut Creek, Florida (Duffy's). Duffy's is a place of public accommodation serving food and beverages, including alcoholic beverages, to customers who may be seated indoors or outdoors. There is no indication of any difference in the availability of food and beverages between the indoor and outdoor area, but the outdoor area offers customers the option of smoking. At all material times, Petitioner was a member of the Duffy's MVP Club, which awards points for purchases, evidently to be used for future purchases. Records of Petitioner's MVP Club activity reveal nearly 50 visits to Duffy's from June 2013 through the summer of 2016. Petitioner agreed that he had been to Duffy's many times, invariably sat outside so he could smoke, and was often served by bartender, Kevin Carr. Petitioner also testified that, on many of these visits, he was in the company of Brazilian friends, who had spoken Portuguese while being served by Mr. Carr, and there had never been any problems. It is thus clear that Petitioner enjoyed Duffy's outside bar, and the retail relationship between Petitioner and Mr. Carr was functional and met with the general satisfaction of the bartender and the customer. Late in the afternoon of Friday, September 15, 2017, Petitioner visited Duffy's with his cousin, who is from Brazil. During this visit, Petitioner and his cousin sat at the outside bar and generated a tab of about $60 consisting of three or four beers each and a shared appetizer. Petitioner denied that he and his cousin ever reached a state of crapulence, but they clearly consumed enough alcohol to lower their conversational inhibitions. At one point, the cousin tried to place an order with Mr. Carr, but felt that Mr. Carr had ignored him. The cousin and Petitioner had previously noticed a sewer smell, possibly emanating from a nearby waste line, which may have put the cousin in a foul mood about his Duffy's experience. In any event, feeling slighted by Mr. Carr, the cousin said to Petitioner in Portuguese that the service was "unprofessional." It is unclear what Petitioner said, but, in short order, the cousin added that Mr. Carr was a "piece of shit," and a female bartender was a "prostitute." These latter comments will be referred to as the September 15 Vulgarities. As luck would have it, seated beside Petitioner was Caluvio Ferreira, who is Brazilian and fluent in Portuguese and English; a friend of Mr. Carr, whom he has visited at his home; and a high-minded man who is unafraid to confront others who fail to meet his standards of conduct and speech. Having suffered in silence the loud speech of Petitioner and his cousin, upon hearing the September 15 Vulgarities, Mr. Ferreira immediately left the bar to go to the restroom. As he returned to his seat at the bar, he paused beside Petitioner and his cousin and advised them to be careful about what they said because someone could understand them, even speaking Portuguese. Mr. Ferreira added that he knew Mr. Carr, his wife, and their daughter and had been to their home, and he knew the female bartender. Mr. Ferreira declaimed that Petitioner and his cousin had no right to make the comments that they had made about Mr. Carr and the female bartender. Petitioner replied that they had had bad service. Mr. Ferreira answered that bad service did not excuse their crudities, but should be brought to the attention of the manager, who would address it. Obviously angry, Mr. Ferreira, who is a large man, warned the men, "I hope you don't do that again. Maybe I'll have a problem with you." At this point, Petitioner cashed out, and he and his cousin left the premises. Having seen his friend speaking angrily to Petitioner and his cousin, Mr. Carr approached Mr. Ferreira a few minutes later and asked him what that had been about. Mr. Ferreira told Mr. Carr that Petitioner had spoken the September 15 Vulgarities. Petitioner has credibly denied making the statements, and it would seem more likely that they would come from his cousin, who had felt slighted by Mr. Carr, than Petitioner, who was a regular customer of Mr. Carr. It is likely that Mr. Ferreira was mistaken as to which of the men seated next to him made the statements, but Mr. Carr reasonably believed, based on what his friend had told him, that Petitioner had insulted him and his coworker. Ten days later, Petitioner reappeared at Duffy's. He was in the company of two friends, one of whom lived in Brazil. They took seats at the outside bar, but no one served them. Having seen Petitioner approaching the outdoor bar, Mr. Carr had gone inside to speak to the manager. After recounting the September 15 Vulgarities, Mr. Carr asked for permission not to serve Petitioner, and the manager granted the request. Mr. Carr asked whether he or the manager should inform Petitioner, and the manager said Mr. Carr should. Authorized to deny Petitioner service at the outside bar, Mr. Carr approached the party and loudly denounced Petitioner for having spoken badly about him in his "shit language," meaning Portuguese. Mr. Carr identified the September 15 Vulgarities, which Petitioner denied having spoken. Mr. Carr demanded to know what exactly Petitioner had said, but Petitioner never admitted that he or his cousin had said anything of the sort. During this exchange, Mr. Carr angrily repeated the word "shit," although in other contexts not having anything to do with Petitioner's national origin. The initial vulgar reference to Portuguese will be referred to as the September 25 Vulgarity, and all of the vulgarities spoken by Mr. Carr will be referred to cumulatively as the September 25 Vulgarities. Realizing that Mr. Carr was adamant, Petitioner went inside and appealed to the manager, who backed his bartender, but offered to seat Petitioner and his friends inside. Petitioner declined and left the premises.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 5th day of February, 2019, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 5th day of February, 2019. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission of Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Cheyanne Costilla, General Counsel Florida Commission of Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Christopher Donnelly, Esquire C.J. Donnelly Law Offices PLLC 3020 Northeast 32nd Avenue, Unit 803 Fort Lauderdale, Florida 33308 (eServed) Jennifer A. Schwartz, Esquire Arielle S. Eisenberg, Esquire Brandon U. Campbell, Esquire Jackson Lewis PC One Biscayne Tower, Suite 3500 Two South Biscayne Boulevard Miami, Florida 33131 (eServed) Joao Fonseca 3020 Northeast 32nd Avenue, Unit 803 Fort Lauderdale, Florida 33308 Mark Rouleau Duffy’s Sports Grill 1926 10th Avenue North, Suite 300 Lake Worth, Florida 33461
The Issue The issue is whether Respondent denied Petitioner access to a public accommodation on the basis of her disability in violation of Pinellas County Code Chapter 70 (the Code).
Findings Of Fact The Department investigated the complaint of Petitioner and issued a determination on April 2, 2009, that reasonable cause exists to believe that Respondent denied Petitioner access to a public accommodation on the basis of her disability. Respondent requested a hearing, and the Department referred the matter to DOAH. Several facts are undisputed. Petitioner is a disabled female confined to a wheel chair. Mr. Chris Maganias is the owner and operator of the respondent company. The principal business of the company is the operation of a skating rink in Pinellas Park, Florida. Petitioner did not present a prima facie case of denial of access to a public accommodation. After the representative for Petitioner was placed under oath, the representative stated the issue that she was there to resolve, but testified to no substantive matters or other evidence. Her testimony lasted less than three minutes. There was no cross-examination. Petitioner did not testify. After excusing Petitioner's representative from her oath, the ALJ asked Petitioner if she wished to testify, and Petitioner stated that she did not want to testify. Petitioner's lone exhibit is a two-page affidavit that lists the allegations which make up the complaint against Respondent. However, the affidavit does not explain or supplement competent and substantial testimony, or other evidence, of the representative or Petitioner at the hearing. This is a de novo hearing and not an appellate review of a determination previously made by the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DOAH enter a final order no later than February 3, 2010, pursuant to Section 70-77(g)(13) of the Code, finding Respondent not guilty of the allegations in the complaint. DONE AND ENTERED this 31st day of December, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 31st day of December, 2009. COPIES FURNISHED: Leon W. Russell, Director/EEO Officer Pinellas County Office of Human Rights 400 South Fort Harrison Avenue, 5th Floor Clearwater, Florida 33756 William C. Falkner, Esquire Pinellas County Attorney's Office 315 Court Street Clearwater, Florida 33756 Melissa Cook c/o Eleanor Cook Johnson 15047 Georgey Boulevard Clearwater, Florida 33760 Peter Genova, Jr., EEO Coordinator Pinellas County Office of Human Rights 400 South Fort Harrison Avenue, 5th Floor Clearwater, Florida 33756 Chris Maganias Astro Skate Pinellas Park, LLC 10001 66th Street North Pinellas Park, Florida 33782
The Issue The issue for determination is whether Respondent discriminated against Petitioner on the basis of gender, marital status, and retaliation in violation of the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact On April 11, 2005, Ms. Jones filed a complaint of discrimination against AKAL Security with the FCHR alleging that AKAL Security discriminated against her on the basis of sex (gender--female),1 marital status (single), and retaliation in violation of the Florida Civil Rights Act of 1992, as amended. On August 8, 2005, the FCHR issued a DETERMINATION: NO JURISDICTION (FEDERAL ENCLAVE). In the Determination, the FCHR provides, in pertinent part, that AKAL Security contracts with the federal government and all of the services performed by AKAL Security are on a federal enclave subject to the exclusive jurisdiction of the U.S. Government. Further, the FCHR provided, in pertinent part, that the discrimination complained of occurred at Krome where state anti-discrimination laws are not applicable to employees of private contractors on federal enclaves. Also, on August 8, 2005, the FCHR issued a NOTICE OF DETERMINATION: NO JURISDICTION. The Notice reiterated that the FCHR lacked jurisdiction. Ms. Jones filed a Petition for Relief with the FCHR on September 2, 2005. On November 1 2005, AKAL Security filed a Motion to Dismiss the Petition for Lack of Subject Matter Jurisdiction or for Summary Final Order, together with three exhibits, which included one affidavit. The affidavit provided with the motion to dismiss was provided by Jonathan Rhodes, the Human Resources Office [sic] for AKAL Security. Mr. Rhodes states in his affidavit that AKAL Security contracts with the U.S. Department of Homeland Security Immigration and Customs Enforcement (ICE) to provide security services to the Krome Servicing Processing Center (Krome), located at 18201 Southwest 12th Street, Miami, Florida. Further, he states that ICE is an agency of the U.S. Department of Justice. As to Ms. Jones' position, Mr. Rhodes states that she was a Custody Officer for AKAL Security at Krome and all of her duties were performed on federal property. Nothing in the record, including AKAL Security's motion, indicates that Congress clearly authorized the Florida Civil Rights Act of 1992 to be applicable to Krome.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the complaint of discrimination filed by Charolette Jones against AKAL Security for lack of subject matter jurisdiction. DONE AND ENTERED this 2nd day of August, 2006, in Tallahassee, Leon County, Florida. S ERROL H. POWELL 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 2nd day of August, 2006.
The Issue Whether or not on or about August 9, 1978, Beach Park Motel, Inc., a vendor, licensed under the Beverage Law, its agent, servant, or employee, one Ruth Ira Holmes, did unlawfully offer to commit prostitution, lewdness or assignation, for the sum of $40.00 U.S. currency, with Beverage Sergeant R. A. Boyd, contrary to Subsection 796.07(3)(a), Florida Statutes, and Section 561.29, Florida Statutes. Whether or not on or about August 22, 1978, Beach Park Motel, Inc. , a vendor, licensed under the Beverage Law, its agent, servant, or employee, one Diana Alice Baumbach, did unlawfully offer to commit prostitution, lewdness or assignation for the sum of $40.00 U.S. currency, with Beverage Officer B. A. Watts, contrary to Subsection 796.07(3)(a), Florida Statutes, and Section 561.29, Florida Statutes. Whether or not on or about September 6, 1978, Beach Park Motel, Inc., a vendor, licensed under the Beverage Law, its agent, servant, or employee, one Diana Alice Baumbach, did unlawfully offer to commit prostitution, lewdness, or assignation for the sum of $50.00 U.S. currency, with Beverage Officer C. E. Lloyd, contrary to Subsection 796.07(3)(a), Florida Statutes, and Section 561.29, Florida Statutes. Whether or not on or about September 6, 1978, Beach Park Motel, Inc., a vendor, licensed under the Beverage Law, on its above-described licensed premises, by its agent, servant, or employee, or entertainer, one, Diana Alice Baumbach, did unlawfully beg or solicit a patron, customer, or visitor, Beverage Officer C. E. Lloyd to purchase a beverage, to-wit; "CHERRY DELIGHT", for such employee, servant, agent or entertainer, in violation of Section 562.131, Florida Statutes. (The charging document, i.e., Notice to Show Cause, originally contained other allegations found in its Counts 1 and 5; however, those counts were withdrawn by the Petitioner in the course of the hearing and are therefore removed from consideration through this Recommended Order.)
Findings Of Fact The Respondent in this cause is Beach Park Motel, Inc. , a closely held corporation. This corporation is a holder of Beverage License No. 15-002265, Series 4-COP, to trade as Beach Park Motel at a business premises located at 4290 Ocean Beach Boulevard, Coco Beach, Florida. This license is held with Petitioner, State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, which organization has responsibility for the licensure and regulation of those several business entities within the State that sell alcoholic beverages. This case is here presented for consideration on the basis of a Notice to Show Cause/Administrative Complaint which contains six counts, Counts 1 and 5 having been withdrawn. The details of the remaining counts are as set forth in the issues statement of this Recommended Order. On August 9, 1978, Officers Richard Boyd and Bethel Watts, Jr., of the Division of Alcoholic Beverages and Tobacco, went to the licensed premises at 4290 Ocean Beach Boulevard, Cocoa Beach, Florida, for purposes of investigating alleged prostitution activities at the licensed premises. They entered the premises and took a seat at the bar around 9:30 p.m. While seated there, they observed Ruth Ira Holmes performing as an entertainer in the bar by dancing. This person, Holmes, was also referred to by a stage name, "Nina". Holmes then left the stage and approached Officer Boyd, who was sitting in a separate location from Officer Watts. This contact between Holmes and Boyd occurred thirty or forty minutes after the officers had arrived at the licensed premises. There ensued a discussion between Boyd and Holmes on the subject of purchasing marijuana. (The allegation concerning the Respondent's participation in this alleged possession and sale of marijuana has been withdrawn.) Holmes then went around the service bar and picked up her purse from behind the bar. Boyd and Holmes then left the interior of the licensed premises. Once outside Holmes produced two envelopes with a substance which appeared to be marijuana and the officer also observed in her purse a larger bag which had a substance of similar appearance. Boyd asked how much the contents of the larger bag would cost and gave her $25.00, purchasing those contents. The witness then returned the small envelopes to her purse. Boyd asked Holmes what she was doing after work and she replied, "Are you asking for a 'date'?" Boyd responded, "Yes" and Holmes stated, "You mean 'that'?" and thrust her body at him. Boyd asked her what it was going to cost and she replied that for $40.00 she would do anything he wanted. He accepted her offer and she gave him the key to Room 224, which was a key to the motel part of the Respondent's establishment. Holmes checked to make sure that no one was observing them and they proceeded to the motel room. When they reached the room, he gave her two twenty dollar bills. She placed the money in her purse and took off her clothing with the exception of a "G" string and stated to him, "Let's get started." Boyd moved-toward the door of the motel room, after which he produced his law enforcement officer's identification badge and officers of the Brevard County Sheriff's Department took Holmes into custody. Howard Warren, President of the Respondent corporation, was seen at the licensed premises that night. Later, in connection with an investigation of her activities, a statement was given to Officers Boyd and Watts by Ruth Ira Holmes in which she indicated to the officers that she had been employed in the licensed premises known as the "Booby Trap" to work as a dancer and Howard Warren, then President of the Respondent corporation, had hired her. Her rate of pay was $2.50 per hour. She further stated that she had been employed for about seven months and was paid at the end of each week by check from Howard Warren. The Petitioner's Composite Exhibit 4 admitted into evidence is a series of checks written by Howard Warren and made payable to Ruth Ira Holmes beginning on July 7, 1978, with the last check being drawn on September 1, 1978, and one of the checks being drawn on August 1, 1978. The observation of Holmes' dancing on the licensed premises on the night in question, the statement that she was an employee paid by Howard Warren and the series of checks drawn by Howard Warren to Ruth Holmes, also known as Ruth Ira Holmes, are sufficient to show that Ruth Ira Holmes was employed as a dancer by the Respondent to work at the licensed premises in such capacity on August 9, 1978. This determination is further borne out by the Petitioner's Exhibits 3 and 5 admitted into evidence which are copies of the payroll accounts of the Respondent showing that Ruth Holmes was an employee and by part of Petitioner's Composite Exhibit 6, which is a motel registration card showing Ruth Holmes to be registered in the same room, 224, spoken to before and shows her occupation to be dancer. Officer Watts returned to the licensed premises on August 22, 1978, and again operating in an undercover capacity. While seated at the bar, he was approached by Diana Baumbach, also known as 'Misty'. Baumbach asked Watts if he were having a good time and he told her that things were rather slow and that he had been led to understand that the "Booby Trap" was a place where the action was. Baumbach responded by telling Watts that she could provide him some action for $40.00, either a "blow job"/fellatio or "screw"/intercourse. During this conversation Baumbach indicated that she worked in the licensed premises. She also stated in the course of the conversation that when a certain girl who was dancing had finished her performance it would be Baumbach's turn. Baumbach was wearing a long sleeved jacket and bikini panties and after this initial discussion with Watts went to the dance area and performed for the crowd. Baumbach returned to the location of the officer and stated she was ready to go. They walked through the rear of the bar and she took him to Room 206 in the motel part of the Respondent's complex. They entered Room 206 and Baumbach stated that she wanted her $40.00 and Watts gave her two twenty dollar bills. Baumbach took off her coat and Watts stated that he wanted to check to see if anyone was outside. He opened the door and allowed an officer of the Cocoa Beach Police Department to enter the room and Baumbach was arrested. On September 6, 1978, Officer C. E. Lloyd of the Division of Alcoholic Beverages and Tobacco went to the licensed premises in an undercover capacity to investigate alleged prostitution at that location. He entered the licensed premises and took a seat at the bar in the area of the dance floor. After being seated, he was approached by Diana Baumbach, who asked him if she could sit down. She inquired if Lloyd would buy her a drink and he complied with that request and bought the drink. She then asked Lloyd if he "messed around" and his answer was, "Sometimes." She stated that she would give him a "blow job"/fellatio for $30.00 or "all the way"/intercourse for $50.00. She then stated that she could not go right away because the master of ceremonies was going to call her up to dance. She danced two times in front of the audience. The dancing she did was a topless routine. She returned to Lloyd's location and asked if he knew his way around and stated that he should go up to Room 216 and that she would follow up. When he arrived at Room 216 in that part of the Respondent's establishment, Baumbach was already there. They went inside the room and Baumbach again advised Lloyd that the price was $50.00. She took her clothes off and he took off his shoes and then went to the door, at which point he advised Baumbach that she was being arrested and she was arrested. Lloyd later spoke with Howard Warren about the solicitation for prostitution that had occurred on the part of Baumbach as a follow up to his investigation and the arrest of Baumbach. Baumbach, on the occasions of August 22, 1978, and September 6, 1978, at which points she solicited Officers Watts and Lloyd, respectively, for the purposes of committing prostitution, was an employee, agent and entertainer of the Respondent in the sense of the dance performances she gave for the benefit of the patrons in the licensed premises. This determination of employment is supported by the testimony of Carol Sue Warren, daughter of Howard Warren and manager of the "Booby Trap" during August and September, 1978, who testified that Baumbach was an employee of the Respondent at time which corresponds to August 22, 1978, and September 6, 1978. Moreover, the rendezvous between Ruth Ira Holmes and Officer Boyd on August 9, 1978; the rendezvous between Diana Alice Baumbach and Officer Watts on August 22, 1978, and the rendezvous between Diana Alice Baumbach and Officer Lloyd which occurred on September 6, 1978; all these meetings for purposes of committing prostitution in the motel which is a part of the Respondent's establishment located at 4290 Ocean Beach Boulevard, Cocoa Beach, Florida, were types of activities known by the officials of the Respondent to be taking place. This knowledge on the part of the officials of the Respondent covered the period of August 9, 1978, through September 6, 1978, and pertained not only to the solicitation to commit prostitution, lewdness or assignation and the occurrence of such prostitution, lewdness and assignation on the part of Ruth Ira Holmes and Diana Alice Baumbach but also pertained to such activities by other employees or dancers who worked in the licensed premises during this period of time. This knowledge on the part of the Respondent's officials, and in particular its president, Howard Warren, was not part of a pattern of conduct which actively condoned activities of prostitution by the employees and/or dancers who worked at the licensed premises, in fact the owners had a stated policy of not allowing prostitution or soliciting drinks or activities involved with drugs on the part of their female employees or others who might be dancing in the licensed premises and the Respondent's representatives had fired certain of the female employees in the past when they had been discovered committing acts of prostitution. Nonetheless, the Respondent in the person of Howard Warren stated that he did not wish prostitution in the licensed premises but didn't feel he could really effectively stop it and went further by rehiring Ruth Ira Holmes as an employee of the Respondent after she had been discovered committing acts of prostitution. Holmes, after returning as an employee, then continued her activities as a prostitute. Diana Alice Baumbach had also been employed by the Respondent and had been fired several times during the course of her employment, one of those firings occurring after her arrest for the prostitution incident involving Officer Watts that occurred on August 22, 1978. She was then rehired and was an employee of the Respondent on September 6, 1978, when she committed a further act of soliciting for prostitution which occurred with Officer Lloyd. Baumbach was also represented by Howard Warren as attorney following an arrest. Both Holmes and Baumbach were allowed to remain as tenants in the Respondent's motel, the same motel where the prostitution had occurred, and were allowed to do so following their arrests in August of 1978, for prostitution offenses.
Recommendation In consideration of the facts found herein, the Conclusions of Law reached and those matters offered in mitigation, it is RECOMMENDED that the license of the Respondent, Beach Park Motel, Inc. d/b/a Beach Park Motel, be REVOKED. 4/ DONE AND ENTERED this 6th day of March, 1980, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
The Issue Did the Respondent, Paramount Hospitality Management (Paramount), discriminate against Petitioner, Nelson Ramos, Jr., on account of his race?
Findings Of Fact In 2010, Mr. Ramos applied for a job as a houseman with Paramount working at the Point Orlando in the housekeeping department. Mr. Ramos is an African-American male. Adriana Dos Santos, the head housekeeper interviewed him in person. During the interview, she saw Mr. Ramos in person and spoke to him. She also explained the position's duties. Ms. Dos Santos was impressed with Mr. Ramos. He had previous housekeeping experience and was polite and enthusiastic. She decided to hire him. Mr. Ramos maintains that Paramount hired him because Ms. Dos Santos did not know he was African-American and thought he was Hispanic because of his surname. The evidence does not support his theory. During the interview that resulted in Ms. Dos Santos hiring Mr. Ramos, she could determine that he was African-American. Also during the interview, according to Mr. Ramos's testimony, he told Ms. Dos Santos that he could not speak Spanish. Paramount's Employee Handbook describes the company's 90-day "Get Acquainted Period," traditionally referred to as a probationary period. It also reminds employees that throughout their employment they may terminate their employment at any time with or without cause and that Paramount may terminate the employment at any time with or without cause. Paramount provided Mr. Ramos a copy of the handbook when it hired him. Paramount terminated Mr. Ramos during the first 90 days of his employment Mr. Ramos began work with Paramount at Point Orlando on July 15, 2010, as a houseman. Vladimir Suarez trained Mr. Ramos. Mr. Suarez speaks English and Spanish. Although Mr. Ramos claims that Mr. Suarez could not speak English at all, he never complained during training of Mr. Suarez not speaking English. In addition, during his first days of employment, Mr. Ramos performed his duties well. This is an indication that they were adequately explained. The houseman has a cart with supplies on it. A houseman's duties include keeping the carts of the housecleaners stocked with linens and supplies, collecting linens from the carts and sending it down the laundry chute, and collecting trash from the carts and sending it down the garbage chute. The duties also include providing assistance with whatever tasks need to be accomplished. Point Orlando is a two-tower hotel with 12 floors, six rooms to a floor. Each day the housecleaners move through the hotel cleaning the rooms, changing linens, and emptying garbage. The housekeeping supervisors communicate with the housemen and housekeepers by walkie-talkie. Consequently, any guests or visitors near the houseman or housekeeper involved can hear both sides of a walkie-talkie conversation. Because of this, Paramount's policy required the employees to keep the walkie-talkie communications brief and use walkie-talkies to transmit and acknowledge instructions and provide information. The policy specifically prohibited employees from disputing instructions or arguing on the walkie-talkies. Disputes were to be discussed in person not within the hearing of the public, as walkie-talkie communications necessarily were. Mr. Ramos resented this policy. He viewed it as a rule that he could not disagree with his supervisor. He felt that it was disrespectful to him. Consequently, Mr. Ramos frequently did not comply with the rule. During his first days of employment, Mr. Ramos worked diligently and performed his duties well. Within weeks, this stopped. His supervisor, Ms. Diaz, verbally counseled him. She testified at the hearing. She speaks and understands English. On September 6, 2010, Paramount issued Mr. Ramos his first Employee Counseling Report. This discipline was for not clocking in or out on August 30, 2010. Mr. Ramos knew that he was supposed to clock in. He did not clock in as required. On October 4, 2010, Paramount issued Mr. Ramos another Employee Counseling Report. This report counseled Ramos for the following deficiencies on September 26, 2010: lateness, disobedience, attitude, and defective work. On September 26, 2010, Mr. Ramos came to work 30 minutes late. During that morning, he only took trash from the housekeepers' carts. He did not take the dirty linens. Mr. Ramos also did not bring his linen cart when called to restock a housekeeper cart. He had been previously warned to always have his cart with him when going to assist the housekeepers. On September 26, 2010, at 2:00 p.m., Ms. Diaz instructed Mr. Ramos to strip linen and trash from 21 rooms. By 2:30 p.m., he had not started the task. When Ms. Diaz, called him to the office to counsel him, he was very disrespectful to her. She sent him home and suspended him until September 29, 2010. Ms. Dos Santos issued another counseling report to Mr. Ramos for his conduct on September 30, 2010. On that day, she asked him to wait to speak to her privately when he was clocking out at the end of his shift. He told her he could not wait because he had to go to the bank and to his second job. He waited a few minutes then told her again he had to go. She insisted that she had to talk to him. Mr. Ramos left. He was not on the clock and his shift had ended. On October 4, 2010, Paramount terminated Mr. Ramos. Mr. Ramos maintains that Hispanic employees committed the same offenses as he did and were not disciplined. There is no persuasive competent evidence to support his assertions. Paramount keeps personnel records and actions for employees confidential. Mr. Ramos' testimony could only be based upon hearsay. Mr. Ramos also maintains that Paramount hired him because Ms. Dos Santos did not know that he was African-American and thought that he was Hispanic because of his surname. The evidence does not support his theory. During the interview that resulted in Ms. Dos Santos hiring Mr. Ramos, she could determine that he was African-American. During that interview, Mr. Ramos told Ms. Dos Santos that he could not speak Spanish.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations deny Mr. Ramos's Petition for Relief. DONE AND ENTERED this 14th day of June, 2012, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 14th day of June, 2012.
Findings Of Fact At all times material to the instant case, Respondent was the holder of beverage license No. 54-279-S, Series 6COPS. The license was obtained by the Respondent by transfer in September, 1977. The licensed premises is located at the Key Wester Inn, 975 South Roosevelt Boulevard, Key West, Florida. The Key Wester Inn and the licensed premises are owned and operated by Mr. Mel Heifetz, the Respondent herein. On September 10, 1983, Beverage Officers Frank Oliva and Leonard DelMonte went to the licensed premises to investigate a complaint of drug sales taking place inside the licensed premises. The officers entered the lounge at approximately 7:00 p.m. The licensed premises are called the Inner Circle Lounge and consists of three areas. The main portion of the lounge is a large room with a bar along the south wall and a bandstand and dance floor in the northwest corner. The remainder of this area is filled with tables and chairs. To the east of the main bar is a large room which opens onto the main bar area through two large openings. This area contains tables and chairs. To the west of the main bar area is a deck and patio area called the pool bar area. When the officers arrived at the licensed premises on September 10, they sat on two bar stools at the northwest end of the pool bar. The two officers engaged a white female waitress named Lori Hart in conversation. Eventually the conversation led to a discussion of drugs and Officer Oliva asked if she could sell him some quaaludes. She said that she could not but that she could sell them cocaine if they would return at 10:00 or 10:30 p.m. that evening. She also said that the price would be between $80 and $100 and that she would have to be turned on also. This meant she would inhale some of the cocaine she sold them. The officers agreed and then left. The officers had never met Lori Hart before and no one at the bar had vouched for them or introduced them to her. At approximately 10:00 p.m., the officers returned to the lounge and sat on two bar stools at the west end of the pool bar. Lori Hart walked up and asked if they still wanted the cocaine and the officers responded "yes." She said the price would be $80. She then asked a bartender named George to tend bar for her. She picked up her purse and walked into the interior bar area and then returned and walked to the area of the bathrooms near the pool. The two officers followed her to the bathroom area. When they reached the bathroom area, the door to the ladies' room was closed. About five to ten minutes later the manager of the lounge, George Font, came to the bathroom area and went into the men's room to wash his hands. He left and a few minutes later came back and knocked on the door to the ladies' room and said "Lori you have customers." After George Font left, Lori Hart came out of the bathroom, and exchanged a packet of cocaine for $80 cash from Officer Oliva. On this particular evening, Pedro Corpion, an off-duty police officer working as a security guard at the licensed premises, was seen in the pool bar area at various times. The location where the exchange took place is a hallway adjacent to the pool area restrooms and is not visible from anywhere in the bar. On September 16, 1983, Officers Oliva and DelMonte returned to the licensed premises. They were accompanied by Faye Francy of the Monroe County Sheriff's Department. They sat at a table next to the dance floor and adjacent to the north wall of the interior lounge. While seated at the table, a waitress named Linda Carteret took their order for drinks and Officer Oliva asked if she could sell them 2 grams of cocaine. She said she would see what she could do. She later returned to the table and stated she could only get 1 1/2 grams. About a half hour later, she returned to the table again and stated that she did not have quite 1 1/2 grams so the price would be $110 rather than $120 as originally stated. Officer Oliva said o.k. and told her that the money was under a napkin on the table. She crouched between his chair and the chair where Faye Francy, who was dancing, had been seated. She placed a small packet of cocaine wrapped in a one dollar bill under Officer Oliva's left leg. When Linda Carteret crouched at the table and transferred the cocaine, she had her back to the bar area. These actions were being watched by Whitney Russel Papy, an investigator for the state attorney's office, from a table nearer the bar and he could not tell that an exchange or buy had taken place until Officer Oliva, by prearranged signal, got up and left. Officers Oliva and DelMonte had never met Linda Carteret before and had not been introduced to her before asking to purchase cocaine. On the evening of September 15, 1983, Officers DelMonte and Oliva returned to the licensed premises. They sat at the west end of the interior bar and ordered drinks. Lori Hart was working behind the bar and at approximately 9:30 a.m., Officer DelMonte and Oliva returned to the licensed premises. They sat at the west end of the interior bar and ordered drinks. Lori Hart was working behind the bar and at approximately 9:30 a.m., Officer DelMonte asked Lori Hart to sell him a gram of cocaine. She said she could get it and a short while later, she returned to where the officers were seated and placed a bulging matchbook on the bar in front of Officer DelMonte. Inside the matchbook was a small plastic baggie containing cocaine. Approximately five minutes later, Officer DelMonte ordered a drink and gave Lori Hart $100. She walked to the register, rang up the drink, and returned and handed him $17.00 in change. The price of the cocaine was $80.00 and the drink cost $3.00. Officer DelMonte placed the matchbook and cocaine in his pocket. On the evening of September 16, Paul Carr, the manager of the Key Wester Inn, came into the lounge several times. He walked in, looked around the lounge, remained for a few minutes and then left. The band was playing in the lounge this particular evening. On September 17, 1983, Officers DelMonte and Oliva were again in the licensed premises for the purpose of attempting to purchase drugs. They sat at the east end of the interior bar. Officer DelMonte placed four (4) $20.00 bills in a matchbook and placed it on the bar in front of him. A few minutes later, Lori Hart, who was behind the bar, saw the matchbook and said she would get the stuff. Some of the numbers of one of the twenty dollar bills were showing. Lori Hart asked if there was $80.00 in the matchbook and Officer DelMonte responded "yes." She took the matchbook and a short while later placed a napkin in front of Officer DelMonte. Inside the folded napkin was a small plastic baggie containing cocaine. Officer DelMonte placed the cocaine and napkin in his pocket. On this particular evening, off-duty Police Officer Pedro Corbione was working inside the lounge and was out of uniform. He passed the bar area where the officers were seated while the matchbook containing the money was on the bar. However, there was no evidence that Officer Corbione saw the matchbook. The band was playing in the lounge this evening. Beverage Officers DelMonte and Oliva returned to the licensed premises on September 22, 1983, at approximately 9:15 p.m. They were joined a few minutes later by Deputy Francy of the Monroe County Sheriff's Department. The three officers sat at a table just inside the large sitting area to the east of the interior bar area. The table where they were seated was partially obscured from vision of the bar area by a short wall that extended to the edge of the large entrance way. While seated at the table, Officer Oliva asked Linda Carteret if they could purchase some cocaine. She was on duty as a waitress. A short time later, Lori Hart walked over and asked if they were still interested in a gram of cocaine. Officer Oliva said yes and she asked for $80.00. Officer Oliva told her he didn't think he should be so open and she agreed. She told him to give the $80.00 to Linda who came over a few minutes later and picked up a napkin with the $80.00 beneath it. After taking the money, Linda Carteret returned with a foil packet under a napkin and placed it on the table. The foil packet contained cocaine. Both women were on duty as cocktail waitresses when this transaction took place. There was nothing suspicious about the actions of the officers or Lori Hart and Linda Carteret during this transaction. The transfer took only a few seconds and the foil packet was not visible beneath the napkin. This was a very secretive transaction and the exchange itself was not observed by Deputy Faye Francy who was seated at the table with Officers Oliva and DelMonte. The area where the officers were seated was dimly lit. The band was playing in the lounge this evening. On September 28, 1983, Officers Oliva and DelMonte returned to the licensed premises. They entered the lounge at approximately 7:00 p.m. and sat at the same table they had sat at on the evening of September 22. They had first entered the interior bar area and sat at the bar, but after they were joined by Linda Carteret, they went to the table. Officer Oliva asked Linda Carteret to sell them some cocaine and she responded that she had heard rumors that they were police officers. Officer Oliva convinced her that they were not police officers and she then agreed to sell them 1 gram of cocaine for $80.00. She went to the bathroom area and when she returned she placed her hands over Officer Oliva's hands and dropped the plastic baggie containing cocaine into his hands. He then handed her the $80.00. The entire exchange took about 5 seconds. While this transaction took place, the bar manager, Don Crawford, was seated at the east end of the interior bar with his back to the table where the officers and Linda Carteret were seated. This particular evening, Linda Carteret was not working at the lounge. No indication of a transaction was observed by Harry Sawyer, an investigator with the state attorney's office. Harry Sawyer was in the lounge on September 28 as a backup to Officers Oliva and DelMonte. A band was playing in the lounge on this evening. Lori Hart had previously worked at the Inner Circle Lounge in 1982. She terminated when she went home to visit her family and was rehired in January, 1983. There were no problems with her work in 1982. However, in April, 1982, an administrative complaint was made against the Respondent's license charging that Lori Hart had failed to check the identification of a minor and had sold the minor a drink. She was not terminated at that time because she was needed as a witness in the administrative proceedings. Lori Hart resigned some time prior to September 28, 1983, because she was changed to a different shift and location in the lounge. Lori Hart was initially hired as a cocktail waitress and was transferred later to bartender. Prior to being hired she was interviewed by the bar manager and by the manager of the Key Wester Inn, who oversees the entire property where the Inner Lounge is located. She was required to obtain and provide the management with an ID card which is obtained from the Key West Police Department. This ID is required for persons working in Key West and in order to obtain an ID, an application with certain background information must be given and a photograph is taken and placed on the ID card. Lori Hart was also required to fill out an employment application for the lounge. On this application, she was required to give background information and references and these were checked by the manager. At the time she was hired in January, 1983, Lori Hart was required to sign a form which states: As an employee of the Key Wester Inn I understand that it is unlawful to drink alcohol or take any form of drugs that are not prescribed by a doctor during the performance of my shift of work. And further I realize this would be grounds for dismissal. Each employee hired was required to sign such a form. The Inner Circle Lounge and Key Wester Inn had a policy against any drugs on the premises and this policy was explained to all employees when they were hired and was repeated on a continual basis. Employees caught with drugs or alcohol while on duty were terminated under this policy. Linda Carteret was employed in September, 1983. She was hired the same day she applied because the lounge was short one cocktail waitress. She was interviewed by the bar manager who requested that the manager, Paul Carr, allow him to hire her immediately. Mr. Carr approved the hiring but did not interview her. Linda Carteret was also required to provide the lounge with the ID card obtained from the Key West Police Department and was informed of the policy of drugs and alcohol while on duty. The Key Wester Inn is owned by Respondent and is managed by Paul Carr, the resident manager. Mr. Carr has 2 years experience in the hotel, restaurant and lounge business. Prior to September 12, 1983, George Font was manager of the lounge. Mr. Font had been asked to resign because of poor performance and it was agreed that September 12, 1983, would be his last day. After Mr. Font left, Don Crawford, originally hired as a cook was promoted to bar manager. He was given no authority or real responsibility because he was considered to be in a training status. Paul Carr, the resident manager actually took over management of the lounge begining September 12. The evidence did not establish that Mr. Font or Mr. Crawford was aware of the drug transactions that occurred in September, 1983. Mr. Paul Carr, the resident manager, had no knowledge of any drug transactions or drug problems in the lounge. The bar manager was in the lounge each night full-time. Paul Carr was at the lounge when it opened and closed and visited the lounge several times each evening at random times. Prior to July or August, Mr. Pedro Carbione, an off-duty Key West Police Officer worked as security officer at the entrance to the lounge. He checked ID's and watched the outside area. In July or August, Officer Corbione, on Paul Carr's recommendation, moved inside the lounge to work security. When he moved inside the lounge, he no longer worked in uniform. The evidence failed to establish that Officer Carbione was aware of any drug transactions taking place in the licensed premises. The Respondent has held the beverage license in question since 1977. Since that time, there have been no prior charges involving drugs. The only prior charge against the license involved selling to minors. The Respondent and his staff have cooperated with local authorities in prior drug investigations and the licensed premises enjoy a reputation in the community as a nice, decent place to go and dance. The Inner Circle Lounge is frequented primarily by business people, military officers, and local residents including law enforcement officers. The patrons are primarily thirty to fifty years of age. The lounge does not have a reputation in the community as a place where drugs can be sold or used or as a place frequented by people who use drugs. At no time prior to service of the Emergency Suspension Order was Respondent or his staff informed of a drug problem in the Inner Circle Lounge by the Division or local authorities. Lori Hart and Linda Carteret made several statements during the sales and during interrogation after their arrest which indicated some knowledge of the drug sales on the part of George Font and Don Crawford. This evidence was considered by the hearing officer and considered to be of no probative value in light of the total lack of any direct evidence which would show knowledge on the part of those individuals and because of the contradictions between such statements and the very secretive manner in which all the sales were made.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED That the Respondent be found NOT GUILTY of the violations charged in the Notice to Show Cause and that the charges be dismissed and the license immediately restored. DONE and ENTERED this 15th day of November 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, 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 15th day of November, 1983. COPIES FURNISHED: Harold F. X. Purnell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida Charles L. Curtis, Esquire 1177 S.E. Third Avenue Ft. Lauderdale, Florida 33316 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301
The Issue The issue in this case is whether Respondent engaged in an unlawful employment practice against Petitioner on the basis of race and national origin in violation of the Civil Rights Act.
Findings Of Fact Respondent has a department General Services Administration (hereinafter “GSA”) responsible for providing security to County departments and facilities. GSA provides security services by contracting with private vendors. Two of the private security vendors are Delad Security (hereinafter “Delad”) and Forrestville Security (hereinafter “Forrestville”). In 2005, GSA, on behalf of Respondent, entered into a contract with Delad and Forrestville to assign security guards at County posts. The “General Terms and Conditions” of the contract provide in pertinent part: 1.16 Responsibility As Employer The employee(s) of the successful Bidder shall be considered at all times its employee(s) and not employee(s) or agent(s) of the County or any of its departments. . . . The County may require the successful bidder to remove any employee it deems unacceptable. . . Even though Delad and Forrestville as vendor companies provide security officers through a contract with Miami-Dade County, only the vendor companies have the authority to terminate one of its employees. Dangervil secured his security officer position by applying for employment through the vendor companies who set his schedule, administered his leave time, paid his salary and taxes, monitored his actions to ensure compliance with the terms and conditions of the contract, as well as provided his job duties and assignments. Dangervil is a black male whose national origin is Haitian. On June 27, 2007, Dangervil was working for Delad assigned to the 140 West Flagler Building for his security post. His job duties were patrolling the parking lot and checking the floors in the building. Joseph Wolfe (hereinafter “Wolfe”), a white male, is the GSA supervisor responsible for County facilities. On June 27, 2007, he reported to the 140 West Flagler Building location to look into a complaint about a possible disturbance on the 16th floor during a code compliance hearing. When he arrived on the 16th floor, Wolfe met Dangervil who was dressed in a uniform Wolfe determined had a sweat-stained shirt. Wolfe began to ask Dangervil a series of questions regarding his being assigned to the disturbance location, but was unable to ascertain why Dangervil was there. Dangervil did tell him "I don't work here." Wolfe determined that Dangervil was not properly prepared for the security detail and that Dangervil lacked the requisite ability to effectively communicate using the English language. After the incident, Wolfe contacted a Delad supervisor who confirmed that Dangervil had been instructed thru the chain of command to go to the hearing location for his post June 27, 2007. Section 3.41 of the security contract with Delad provides an English proficiency qualification for security personnel and states in relevant part: * * * C) Ability to Communicate in English . . . all Contractor Security personnel must be fully literate in the English language, (e.g., able to read, write, speak, understand, and be understood). Oral command of English must be sufficient to permit full communication. . . . The contract further allows a security guard to be removed from the contract if s/he has difficulty understanding or speaking English. Wolfe subsequently wrote a Guard Infraction Report against the security vendor directing that Dangervil be removed from the Delad contract with the County stating: I was dispatched to location ref a code compliance hearing and protesters carrying signs criti[c]izing Dade County. Upon arrival to the 16th floor I met with S/O Dangervil, Brunel. Dangervil was unable to tell me why he was there, stating, "I don't work here." Then he asked someone on their way to attend hearing to help me as if he thought they were a county employee. It was determined the officer was not pro[p]erly briefed prior to being sent to the detail. The officer was allowed to work with what appeared to be a sweat stained uniform shirt. Dangervil's removal from the Miami-Dade contract did not affect Dangervil's employment status with Delad. On October 26, 2007, GSA dispatched Wolfe to the Opa Locka Elderly Facility, a County public housing facility, to investigate a complaint that a Forestville security officer did not want to work his assigned post. David Thibaudeau (hereinafter “Thibaudeau”), Wolfe's supervisor and GSA Deputy Chief, and GSA Supervisor Sanchez also reported to the Opa Locka Elderly Facility after receiving a call from the dispatch center. There had been several reports from security vendors that officers were being assaulted and Thibaudeau and Sanchez went to the location to help resolve the problem regarding the security officer assigned to the post and the supervisor refusing to work at the post. On duty at the location was Dangervil, the assigned security officer. Upon arriving, Thibaudeau had a conversation with Dangervil, Wolfe, and two Forrestville supervisors. The Forrestville supervisor explained that Dangervil did not want to work the post and was going to leave. Dangervil explained to Thibaudeau that he didn't want to work the location because he heard bad things happened at the location.1 Subsequently, Thibaudeau instructed the Forrestville Supervisor to work the post since Dangervil was leaving. The supervisor also refused to work the facility but ultimately agreed when Thibaudeau explained that he would have to call their company to get the project manager to resolve the issue. Wolfe recognized that Dangervil was the same Delad security officer he had dealt with in June 2007 at the 140 West Flagler incident. Dangervil had been placed on a “do not hire” list by Wolfe because of the previous incident that took place at the 140 building. Wolfe wrote up a second Guard Infraction Report which directed that Dangervil be removed from the Forrestville contract. The report narrative stated: While conducting an inspection of the post during an afternoon to mid shift change I recogni[z]ed the on coming [sic] midnight shift officer as being previ[o]usly removed from the contract by me while he was employed by Delad security. Prior to being removed again S/O Dangervil refused to stay at post because of the previous incidents. Dangervil was not removed from the contract because he was Haitian or Black.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Respondent did not commit any unlawful employment practices and dismissing the Petition for Relief. DONE AND ENTERED this 20th day of July, 2009, in Tallahassee, Leon County, Florida. JUNE C. McKINNEY 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 20th day of July, 2009.
The Issue Whether Respondent committed the violation alleged in Petitioner's Public Accommodations Complaint of Discrimination and, if so, what relief should the Florida Commission on Human Relations grant Petitioner.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner is a black woman. On March 27, 2007, Petitioner went shopping at the Wal- Mart Supercenter located at 9300 Northwest 77th Avenue in Hialeah Gardens, Florida (Store). This was Petitioner's "favorite store." She had shopped there every other week for the previous four or five years and had had a positive "overall [shopping] experience." At no time had she ever had any problem making purchases at the Store. At around 5:00 p.m. on March 27, 2007, Petitioner entered the Store's electronics department to look for two black ink cartridges for her printer. In her cart were several items she had picked up elsewhere in the store (for which she had not yet paid). Because the cartridges she needed were located in a locked display cabinet, Petitioner went to the counter at the electronics department to ask for assistance. Maria Castillo was the cashier behind the counter. She was engaged in a "casual conversation," punctuated with laughter, with one of the Store's loss prevention officers, Jessy Fair, as she was taking care of a customer, Carlos Fojo, a non-black Hispanic off-duty lieutenant with the Hialeah Gardens Police Department. Lieutenant Fojo was paying for a DVD he intended to use as a "training video." The DVD had been in a locked display cabinet in the electronics department. A sales associate had taken the DVD out of the cabinet for Lieutenant Fojo. It was Store policy to require customers seeking to purchase items in locked display cabinets in the electronics department to immediately pay for these items at the electronics department register. Lieutenant Fojo was making his purchase in accordance with that policy. Two Store sales associates, Carlos Espino and Sigfredo Gomez, were near the counter in the electronics department when Petitioner requested assistance. In response to Petitioner's request for help, Mr. Espino and Mr. Gomez went to the locked display cabinet to get two black ink cartridges for Petitioner, with Petitioner following behind them. Ms. Castillo and Mr. Fair remained at the counter and continued their lighthearted conversation, as Ms. Castillo was finishing up with Lieutenant Fojo. Petitioner was offended by Ms. Castillo's and Mr. Fair's laughter. She thought that they were laughing at her because she was black (despite her not having any reasonable basis to support such a belief). She turned around and loudly and angrily asked Ms. Castillo and Mr. Fair what they were laughing at. After receiving no response to her inquiry, she continued on her way behind Mr. Espino and Mr. Gomez to the display cabinet containing the ink cartridges. When Mr. Espino arrived at the cabinet, he unlocked and opened the cabinet door and removed two black ink cartridges, which he handed to Mr. Gomez. Petitioner took the cartridges from Mr. Gomez and placed them in her shopping cart. Mr. Espino tried to explain to Petitioner that, in accordance with Store policy, before doing anything else, she needed to go the register in the electronics department and pay for the ink cartridges. Petitioner responded by yelling at Mr. Espino and Mr. Gomez. In a raised voice, she proclaimed that she was "no thief" and "not going to steal" the ink cartridges, and she "repeated[ly]" accused Mr. Espino and Mr. Gomez of being "racist." Instead of going directly to the register in the electronics department to pay for the cartridges (as she had been instructed to do by Mr. Espino), Petitioner took her shopping cart containing the ink cartridges and the other items she intended to purchase and "proceeded over to the CD aisle" in the electronics department. Mr. Espino "attempt[ed] to speak to her," but his efforts were thwarted by Petitioner's "screaming at [him and Mr. Gomez as to] how racist they were." Lieutenant Fojo, who had completed his DVD purchase, heard the commotion and walked over to the "CD aisle" to investigate. When he got there, he approached Petitioner and asked her, "What's the problem?" She responded, "Oh, I see you too are racist and I see where this is coming from." Lieutenant Fojo went on to tell Petitioner the same thing that Mr. Espino had: that the ink cartridges had to be taken to the register in the electronics department and paid for immediately ("just like he had paid for his [DVD]"). Petitioner was defiant. She told Lieutenant Fojo that she would eventually pay for the cartridges, but she was "still shopping." Moreover, she continued her rant that Lieutenant Fojo and the Store employees were "racist." "[C]ustomers in the area were gathering" to observe the disturbance. To avoid a further "disrupt[ion] [of] the normal business affairs of the [S]tore," Lieutenant Fojo directed Petitioner to leave and escorted her outside the Store. In taking such action, Lieutenant Fojo was acting solely in his capacity as a law enforcement officer with the Hialeah Gardens Police Department. Once outside the Store, Lieutenant Fojo left Petitioner to go to his vehicle. Petitioner telephoned the Hialeah Gardens Police Department to complain about the treatment she had just received and waited outside the Store for a police officer to arrive in response to her call. Officer Lawrence Perez of the Hialeah Gardens Police Department responded to the scene and met Petitioner outside the Store. After conducting an investigation of the matter, Officer Perez issued Petitioner a trespass warning, directing that she not return to the Store. At no time subsequent to the issuance of this trespass warning has Petitioner returned the Store (although she has shopped at other Wal-Mart stores in the area). While Petitioner has been deprived of the opportunity to shop at the Store, it has been because of action taken, not by any Store employee, but by Hialeah Gardens law enforcement personnel. Moreover, there has been no showing that Petitioner's race was a motivating factor in the taking of this action.3
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR issue a final order dismissing Petitioner's Public Accommodations Complaint of Discrimination. DONE AND ENTERED this 10th day of September, 2008, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 2006.
The Issue The issue in this case is whether Respondent, Just 1 More Bar and Grill (hereinafter the "Bar"), discriminated against Petitioner, Mildred R. Smith, by refusing her entry into the Bar due to her race, African-American.
Findings Of Fact Petitioner is an African-American woman. The Bar is a Florida sole proprietorship which operates as an establishment selling alcohol for consumption on the premises. Despite its name, there is no grill or food service at the Bar. The Bar is owned by Kerry Winkler, a Caucasian male. On or about May 8, 2011, Petitioner was going to meet a male friend at an establishment across the street from the Bar. Petitioner could not remember the exact date, but thought it was in April or May. Petitioner was accompanied by a female friend. Petitioner and her female friend had just left church, and it was approximately three or four o'clock on a Sunday afternoon. Upon arrival at the male friend's establishment, no one was there. Petitioner decided to go into the Bar to have a beer while she waited. Her companion did not join her. Petitioner recounts that as she started to enter the Bar, a man stood in the doorway, held out his hand, and said, "You can't come in here." Nothing more was said. The man was a large white man and wearing a "biker's jacket" with a rag on his head. He had a large mustache. Petitioner says that she could see into the Bar and that all the patrons in the Bar were white. She turned around and walked back to her car. As she crossed the parking lot, a man sitting on a motorcycle said, "Man, that was quick." Petitioner concluded that she had been discriminated against because of her race. She believed she had been denied admission to the Bar because she is African-American. She filed a complaint with the Florida Commission on Human Relations about the incident. In her verified complaint, Petitioner said that she "was met by a white female (Kerry Winkler) who told me I could not enter the building and that I was not welcome there." Under oath at the final hearing, Petitioner said that she could not explain her verified statement to the Commission, because she remembers being met by a large white male, not a woman. She did not know why the name Kerry Winkler was in her signed statement. Kerry Winkler, the owner of the Bar, is, in fact, a Caucasian male. At the final hearing, Petitioner was introduced to Kerry Winkler; she said he was not the man who met her at the door of the Bar. No one associated with the Bar knows who the man was that Petitioner met at the front door. There are no employees fitting his description and neither the owner, nor patrons at the Bar, recognized the person Petitioner described. Several regular patrons of the Bar testified at final hearing. Each of them was an African-American male. Each affirmed the Bar's open policy of allowing all people to come into the Bar. None of them had ever witnessed any discriminatory behavior at the Bar, especially by the owner who they all knew and respected. Neither the owner, nor his wife (who was likely operating the Bar on the day in question), could identify the person that Petitioner described. No one by that description is an employee or otherwise affiliated with the Bar. Neither the owner, nor his wife, was aware that Petitioner had allegedly been denied admission into the Bar until several months after the fact. They received notice of the allegation from the Commission well after the fact. Petitioner did not contact the Bar after the fact to make a complaint or report the alleged incident.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed by Mildred R. Smith in its entirety. DONE AND ENTERED this 8th day of August, 2011, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of August, 2011. COPIES FURNISHED: Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Mildred R. Smith Post Office Box 4158 Lake Wales, Florida 33859 Robert H. Grizzard, II, Esquire Robert H. Grizzard, II, P.A. Post Office Box 992 Lakeland, Florida 33802-0992
The Issue The issue in this cause is whether Respondent engaged in unlawful employment practices of discrimination against Petitioner, for the reason of her being a female, by denying her management training during her employment tenure and by subsequently terminating her employment, in violation of Florida Civil Rights Act of 1992, Chapter 760, Florida Statutes (2003).1
Findings Of Fact Based upon observation of the demeanor and candor of each witness while testifying; documentary materials received in evidence; evidentiary rulings made pursuant to Section 120.57, Florida Statutes; and stipulations of the parties, the following relevant and material facts, arrived at impartially based solely upon testimony and information presented at the final hearing, are objectively determined: Petitioner, Kelly McKean, is a Caucasian female and, at all times pertinent to this proceeding, was an employee at one of Respondent's, Econo Auto Painting, Inc., business locations, located at 1822 West Memorial Boulevard, Lakeland, Florida, from February 12, 2001, until she was terminated on June 23, 2003. Petitioner had approximately six years of non-continuous employment at several of Respondent's business locations before beginning her employment at the above Lakeland business site. Petitioner was employed by Respondent as a "taper," the person who is responsible for taping cars after body repairs and before painting. The taping of cars consisted of aligning strips of tape to specific areas of each automobile to prevent the taped area from being painted by the painter. Petitioner was an "aggrieved person" as defined by Section 760.10, Florida Statutes. The evidence of record establishes the fact that during all times pertinent, Respondent's Lakeland location employed nine employees comprised of: two females and seven males (five Caucasians/three Hispanics/one African American). Of the nine employees, one Caucasian female and one African American male were in managerial positions. Both were employed through contractual services of Selective HR Services (SHRS), an independent contractor and co-employer of Petitioner. Respondent is an automobile body shop business specializing in automobile body repairs and painting the exterior of cars and, at all times pertinent to this proceeding, was an "employer" as defined by Subsection 760.02(7), Florida Statutes. During all times pertinent to this proceeding, SHRS was responsible for providing human resources management services for Respondent's employees.4 At all time pertinent to this proceeding, Respondent hired the shop managers for its several auto body repair shops through SHRS. At no time pertinent to this proceeding did Respondent promote employees to management positions from within. At no time pertinent to this proceeding did Respondent permit, offer, or have in place a management training program for the training and promotions of employees from within the ranks of its shop employees to management positions within the company. At all times pertinent to this proceeding, and, on Monday, June 23, 2003, Marquez Green was the shop manager and Ron Link was the assistant manager of Respondent's Lakeland branch body shop during Petitioner's last term of employment at that location. Basis for Petitioner's Termination Several weeks preceding her termination, on June 23, 2003, the assistant shop manager, Mr. Link, noticed and personally discussed with Petitioner her repeated improper taping of some cars in the assembly line processes. Mr. Link spoke with Petitioner about this problem particularly stressing the fact that each car not properly taped required repainting which resulted in a slowdown of the repair, sanding, taping, and repainting process. It was made clear to Petitioner that repainting due to improper taping was causing the shop to lose profit. During the days following notice of the problem regarding incorrectly taped cars, Petitioner failed and/or refused to improve her work habits. The lack of improvement by Petitioner of her work habit of taping cars apparently became of some concern with management, in view of Petitioner's experience and over seven years of service as a taper with Respondent's business. Added to this disturbing trend, some time later, both the shop manager and assistant manager observed Petitioner in the manager's office reading business documents. Management confronted Petitioner with this violation of its policy that "none management" personnel were not allowed to read/review business documents. Petitioner gave an excuse for her conduct stating that the prior manager permitted her to review office documents when she was caught up with her work. Other than her statement, Petitioner failed to provide the identity or the testimony of the prior manager who allegedly granted her permission to review office documents when she had completed her work assignments before the end of the day. Petitioner presented no corroborating evidence in support of her assertion of prior managerial permission for her to review office documents. Petitioner's allegation of "prior permissive authority" was thus not credible. Mr. Green gave undisputed testimony that during a third occasion, he observed Petitioner and a non-employee male friend of Petitioner walking and talking in the work area restricted to employees only. Mr. Green approached the couple and immediately brought the rule infraction of no non-employees within the restricted work area to Petitioner's attention, ending by instructing Petitioner to tell her male friend to leave the restricted workshop area immediately. Under these circumstances, and in the presence of a non-employee, Petitioner said to her shop manager: "He'll leave when I want him to leave." Following Petitioner's refusal to obey the shop manager's direct order accompanied by her disrespectful comment, Mr. Green moved to call the local police, and only then did Petitioner's male friend leave the premises. Mr. Green subsequently discussed this matter, as well as the profit loss due to improper taping of cars, with Mr. Link, and they jointly decided not to take disciplinary action against Petitioner at that time. Notice of Termination On Monday, June 23, 2003, Petitioner reported to work at approximately 7:35 a.m. and five hours later, at approximately 12:35 p.m., she had completely taped all nine cars in the shop for repair and painting that day. Petitioner sought out Mr. Link, inquiring what he would have her do next; assist other employees in the shop or go to lunch? Mr. Link instructed Petitioner to go home for the remainder of the day. After her departure, Mr. Link and Mr. Green discussed Petitioner's continuing hurried work habits, her attitude toward management when given a direct order, and her unauthorized presence in the manager's office reviewing business documents. Management considered the following: (1) Petitioner's continued episodes of improper taping was causing an increase in cost and a decrease in profits, (2) Petitioner's negative attitude toward management, and (3) Petitioner's unauthorized presence in the manager's office looking at managerial business documents. Management determined that the above conduct was sufficient basis for her termination as an employee. In the afternoon of June 23, 2003, Mr. Link, with authorization from Mr. Green, telephoned Petitioner and informed her that she was terminated because of her repeated and costly taping errors and her failure to correct those errors. The telephonic notice of termination was followed by a written termination letter with check marks beside the boxes "refusal to perform job duties" and "unable to perform job."5 This document formed the factual basis for Petitioner's termination as an employee. Background and Employer's Policy On February 12, 2001, before she began working at Respondent's Lakeland job site, but while she was working for Respondent at another job site, Petitioner executed an Employment Acknowledgement packet containing the policy(s) and procedures she agreed to follow in the event there occurred any employment disputes, including any type of discrimination. Petitioner also agreed to resolve employment disputes through use of SHRS' Alternative Dispute Resolution (ADR) procedure. Prior Complaints Made by Petitioner While working at Respondent's Longwood, Florida, job site, but before working at the Lakeland job site, Petitioner made one verbal complaint of sexual harassment to Betty Branham, SHRS compliance supervisor, regarding sexual comments regarding her buttocks made by male co-workers. The record does not contain evidence whether this complaint was pursued or dismissed. Petitioner neither made complaints nor did she make any reports of sexual harassment or discrimination, gender or otherwise, at the Lakeland job site during her February 12, 2001, to June 23, 2003, employment tenure there. Petitioner did not file a report with SHRS claiming discrimination because of her gender and/or because she was denied management training opportunities and opportunities for promotion into management. Other Employees Terminated by Respondent During the early hours of June 24, 2003, one day after Petitioner's termination, Mr. Link terminated a male employee, Edward Burgess. Mr. Burgess was a "sander," and he was terminated for "refusal to perform job duties" and "unable to perform job." According to Mr. Link, Mr. Burgess was "taking two-to-three times longer than what he should to sand cars." During the evening hours of June 24, 2003, Mr. Green terminated another male employee, Mr. Link. Mr. Link was terminated, as he recalled, "because another male employee made accusations that while walking behind him Mr. Link bumped into his rear and made sexual gestures." Mr. Link admitted he could not recall, that is, he could not confirm, argue or deny, the other party's versions of what actually occurred and what was said at the time of his bumping into the other employee. The unnamed other employee did not testify. Petitioner, through the testimony of witnesses, of record, and exhibits admitted into evidence, failed to produce a scintilla of substantial and competent evidence to establish: that she was subjected to an adverse job action when, in fact, she was terminated for poor job performance and disrespectful conduct toward management on June 23, 2003; that because of her gender, female, she was treated differently than similarly situated male employees, who were not terminated after violation of work place policy(s); and (3) that she was qualified for the job as managerial trainee but was denied an opportunity for employee managerial training which was provided by her employer to other employees.
Recommendation Based upon the foregoing, it is RECOMMENDED that the Commission issue a final order dismissing the Petition for Relief and the Charge of Discrimination filed in this cause by Petitioner, Kelly McKean. DONE AND ENTERED this 18th day of February, 2005, in Tallahassee, Leon County, Florida. FRED L. BUCKINE 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 18th day of February, 2005.
