The Issue The issue is whether Respondent discriminated against Petitioner based on Petitioner's race.
Findings Of Fact Petitioner, Phillip McTaggart, is a white male who retired after more than 20 years in the United States Air Force (including the reserves), and 18 years with Delta Airlines. Respondent, Pensacola Bay Transportation Company, specializes in the transportation of people with special transportation needs, including the elderly, disabled, and economically disadvantaged. Respondent contracts with the Escambia Area Transit Service, the local coordination board of the Florida Commission for the Transportation Disadvantaged, to provide these services. Many of Respondent's customers are wheel-chair bound or otherwise need assistance with transportation. Respondent uses both automobiles and specially designed buses for the transportation of wheel-chair bound customers. Petitioner applied for a job with Respondent by filling out an application on January 20, 2009. His application did not specify for which position he was applying. Respondent had hired a white driver just days before Petitioner's application. Respondent hired three African- American drivers after Petitioner applied. Each of the hired drivers stated on their applications that they were applying for driver positions. The last driver hired by Respondent in 2009 was on April 13. All of the drivers hired after Petitioner applied had submitted their application before Petitioner applied. Each of the hired drivers' application reflected previous wages in line with wages paid to other drivers in the Pensacola area. Petitioner's application showed he had earned wages at his previous jobs that significantly exceeded the wages Respondent was paying its drivers. Petitioner testified that he either re-applied or updated his application for a driver position in May 2009, but Respondent has no record of the subsequent application. Petitioner contends, through the use of a vocational expert, that Respondent hires minority candidates for its driver workforce at a rate that far exceeds the demographics of the Pensacola area. Also, a large number of the drivers are minority women, who statistically receive lower wages than white male employees based upon national Department of Labor figures. Petitioner contends that he was discriminated against by being a white male with a history of receiving higher wages than the typical driver employed by Respondent. Some companies refuse to hire individuals they believe are overqualified for the position for which they apply. The reasons for this failure to hire the "overqualified" are that they command higher wages, as well as a general fear they will leave to seek higher-paying employment. Petitioner listed on his application his previous experience in the Air Force as an aircraft mechanic. He listed his previous experience with Delta Airlines as a customer service agent in public relations, baggage, and ticketing. Nowhere did Petitioner hint at previous experience as a driver. Petitioner's updated resume, which he testified he supplied to Respondent with his application failed to make mention of any professional driving experience. He testified at hearing, however, that when he went to update his application in May 2009, he told Respondent's personnel that he had driving experience from his time serving in the Air Force. Respondent is a unionized company that operates under a collective bargaining agreement (CBA). Its wages are set by the CBA. Petitioner's vocational expert was not aware of the company's union status when she performed her wage study for the Pensacola area. Respondent inherited many of its employees from a company it acquired in 2001. The company was required to keep these employees at the wages they were already receiving under the CBA. Respondent had never hired a driver with an employment background matching Petitioner's. Tammie Nelms, the human resources manager for Respondent, liked the fact that Petitioner had such a stable work history. She would have called him back had she known he was seeking a driver position. Although Respondent has a box full of driver applications (about 50 applied in 2009 alone), few whites apply for driver positions at Respondent's Pensacola location. The company has three white maintenance workers in the Pensacola location. White drivers more commonly apply at Respondent's Santa Rosa County location. Respondent has a policy of non-discrimination in the hiring of employees.
Recommendation it is Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 1st day of June, 2010, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 1st day of June, 2010. COPIES FURNISHED: Ryan M. Barnett, Esquire Whibbs & Stone, P.A. 801 West Romana Street, Unit C Pensacola, Florida 32501 Elizabeth Darby Rehm, Esquire The Kullman Firm Post Office Box 1287 Mobile, Alabama 36633 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2900 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2900 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: Respondent, Affiliated of Florida, Inc. is engaged in the wholesale distribution of food and non-food items for the supermarket industry. The Respondent's main warehouse and offices are located in Tampa, Florida. The Respondent currently employs approximately 54 drivers. The drivers are responsible for the daily delivery of merchandise to various locations in Florida and Georgia. The Petitioner, Willie Hudson (a black male), was hired by the company as a driver trainee on March 18, 1985. Ray Scott (black male) a dispatcher for Respondent, and Willie Robinson (black male), Director of Security, were acquainted with Petitioner prior to his employment with Respondent and both recommended that he be hired. Scott also performs personnel interviews, recommends the hiring of all drivers, and supervises new drivers during their training period. When hired, all drivers are required to complete an initial training period of approximately one to two weeks. During this training period, drivers are assigned to ride with a full time driver trainer in order to become familiar with Respondent's practices and procedures. During Petitioner's employment the driver trainers were Leroy Johnson (black male) and John Flipowitz (white male). The alternate driver trainers were Relford Cooper (black male) and Steve Smith (white male). One of the driver trainee's responsibilities is to learn the company's system of preparing and submitting Merchandise Adjustment Tickets (MATs). If a driver makes a delivery and there is a shortage or damage, a MAT is filled out. The MATs must be filled out by the driver at the delivery location and submitted to Respondent's transportation department. The preparation and submission of MATs are necessary for the company to maintain accurate delivery records and are critical to the orderly operation of Respondent's warehouse and merchandise delivery business. The driver trainees are initially instructed by their assigned driver trainer as to how to prepare and submit the MATs. At the end of the training period, driver trainees are given a brief test by the company to ascertain whether they are capable of adequately preparing the MATs. The test consists of hypothetical situations in which a MAT would need to be utilized. The trainees must respond by filling out the MAT correctly. Once the test is passed and the driver trainer is satisfied that all other procedures have been learned by the trainee, the training period is terminated. The new driver is then allowed to make deliveries by himself. Another responsibility of the drivers, covered in the training process, involves the Respondent's system of accounting for trucks and other equipment which leave and return to the premises. A log sheet is kept at the security office that indicates, among other things, when equipment is taken out and brought back in. It is the driver's responsibility to go to the security office and complete the log sheets at the appropriate times. Driver trainees are instructed as to the procedures which must be undertaken in this regard. The Respondent requires that its drivers be punctual and display a positive attitude. Drivers must report to work on time so that merchandise is delivered promptly and must maintain a positive attitude while representing the company during deliveries. The Petitioner was initially assigned to work with driver trainer Relford Cooper. Toward the end of Petitioner's two week training period, Relford Cooper spoke with Raymond Scott and informed him that Petitioner seemed unable to properly fill out the MATs and that Petitioner had a "bad attitude." During the same period Willie Robinson, director of security, spoke with Scott and complained that Petitioner repeatedly failed to properly fill out the equipment log sheets as he was required to do. Scott spoke directly with Petitioner and explained to him how to complete the MATs and instructed Petitioner that the log sheets needed to be properly filled out and that if he had any questions he was to speak with Willie Robinson. At the end of the two week training period, Petitioner took the MAT test and failed it. No other driver had ever failed this test. Scott talked to Petitioner about the situation, and Petitioner explained that he did not think he was given enough time to fill out the MATs, and that he was not properly trained on how to fill them out. Scott decided to give Petitioner another chance by re- assigning him to another driver trainer, Jack Flipowitz, (white male). For the next two weeks, the Petitioner worked with Flipowitz as driver trainer. During this two week training period, Flipowitz went to Scott and complained that the Petitioner seemed unable to complete the paperwork, appeared to have an "attitude problem," apparently resented being trained by Flipowitz and would not take any instruction from him. Scott spoke with Petitioner and Petitioner said that he knew how to complete the MATs, but could not do so with "someone standing over his shoulder." Scott then talked to Flipowitz and told him to make sure that Petitioner had ample time to complete the forms. Scott also told Flipowitz to "back off" while Petitioner completed the MATs and perhaps return to the truck so that Petitioner would not feel so pressured. Shortly after the meeting, the Petitioner and Flipowitz made a delivery to Store 192. The customer at Store 192 wanted to return two cases of merchandise which was scheduled for delivery. Flipowitz gave the MAT to Petitioner to complete. Flipowitz then went out to the truck to allow Petitioner the opportunity to complete the form on his own. When Flipowitz returned from the truck, approximately 45 minutes later, he found that the Petitioner had not made any entries on the MAT. Flipowitz informed Scott of the incident which occurred at Store 192. Scott confronted Petitioner and Petitioner told him that he had "his own way of doing things" and that he wanted to fill the forms out at home. Scott informed the Petitioner that the forms needed to be completed at the store. At that point, Scott recommended that Petitioner be discharged. Petitioner was thereafter terminated on April 18, 1985, approximately four weeks after being hired. The driver training process employed by Respondent is informal and individualized. However, Relford Cooper and John Filpowitz provided Petitioner with substantially the same training and instruction given to all other driver trainees assigned to them. Of the 54 drivers employed by Respondent, 15 are black.
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 and the petition for relief filed by Mr. Willie Hudson, Jr. In addition, it is RECOMMENDED that the Respondent's request for attorney's fees be denied. DONE and ORDERED this 10th day of June, 1986 in Tallahassee, Florida. W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 1986. COPIES FURNISHED: Wayne L. Helsby, Esguire 201 S. Orange Avenue Barnett Plaza, Suite 740 Orlando, Florida 3280 Willie Hudson, Jr. 11705 Park Orchard Circle Apartment #3 Tampa, Florida 33612 Affiliated of Florida, Inc. 1102 N. 28th Street Tampa, Florida 33605 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Rnox Road Building F, Suite 240 Tallahassee, Florida 32303 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303 Betsy Howard, Clerk of the Commission Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240, Tallahassee, Florida 32303 APPENDIX Rulings on Proposed Findings of Fact Submitted by the Petitioner (None submitted) Rulings on Proposed Findings of Fact Submitted by the Respondent The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed Findings of Fact submitted by the parties to this case. Adopted in Finding of Fact 1. Adopted in Findings of Fact 2 and 4. Adopted in Finding of Fact 4. Adopted in Finding of Fact 5. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Finding of Fact 8. Adopted in Finding of Fact 9. Adopted in Finding of Fact 3. Partially adopted in Finding of Fact 10. Matters not contained therein are rejected as a recitation of testimony. Partially adopted in Finding of Fact 19. Matters not contained therein are rejected as a recitation of testimony. Adopted in Finding of Fact 10 and 11. Adopted in Finding of Fact 11. Adopted in Findings of Fact 12, 13 and 14. Adopted in Findings of Fact 14, 15, 16 and 17. Adopted in Findings of Fact 17, and 18.
Conclusions _ This matter came before the Department for entry of a Final Order pursuant to an order closing the file at the Division of Administrative Hearings. The record reflects that the parties have settled their dispute and entered into a Settlement Stipulation. Having reviewed the stipulation and being otherwise fully advised in the premises, it is therefore ORDERED AND ADJUDGED that: 1. Respondent shall pay a civil fine of $5,000.00. Payment shall be made in the form of a certified cashier’s check payable to The Department of Highway Safety and Motor Vehicles and delivered to the Division of Motor Vehicles, Bureau of Field Operations, Region IV Office, at 1354 South Woodland Boulevard, Deland, Florida, 32720. Payment shall be delivered as set out herein within thirty (30) days of the entry of this final order by the Division of Motor Vehicles approving this settlement. Jan 2? 2010 11:57 DHSMY LEGAL TLH Fax: 850-617-5112 Jan 2? 2010 11:56am 002/009 2. Respondent agreed to voluntarily surrender its motor vehicle dealer license within thirty (30) days of the entry of this final order by the Division of Motor Vehicles approving the settlement. 3. Respondent expressly and affirmatively agreed that if it fails to timely pay the fine or to surrender its license as set forth herein the Petitioner will revoke its license without prior notice. Respondent further expressly and affirmatively waives its ability to challenge or appeal such revocation by any means in any forum whatsoever. 4. Florida Luxury Coach, LLC, may file an application for a motor vehicle dealer license pursuant to section 320.27, Florida Statutes. If Florida Luxury Coach, LLC, does apply, the: following conditions will apply: (a) The Petitioner will not rely on the violations alleged in the administrative complaint in this matter to deny the application or otherwise hold such violations against Florida Luxury Coach, LLC. (b) _—_- Victoria L. Scott will be the sole manager/member of Florida Luxury Coach, LLC. (c) Lon Neuville may be employed by Florida Luxury Coach, LLC, solely in a sales capacity. : (d) Victoria L. Scott and Florida Luxury Coach, LLC, expressly and affirmatively agree that no motor vehicle dealer license will be issued to it until the civil fine agreed to herein is paid and until the Respondent surrenders its motor vehicle dealer license. (e) Florida Luxury Coach, LLC, must meet the normal qualifications imposed by statute and administrative rule for issuance of a motor vehicle dealer license. (63) Failure to abide by the conditions of this agreement will be grounds for denial. or revocation of a motor vehicle dealer license to Florida Luxury Coach, LLC and Victoria L. Scott. 5. Victoria L. Scott signed the agreement individually, as a member of the Respondent and as a member of Florida Luxury Coach, LLC. 6. Each party shall bear its own costs and attomey fees in this matter. DHSMV LEGAL TLH Fax: 850-617-5112 Jan 2? 2010 11:56am P003/009 7. The undersigned warrant that they entered into this agreement freely and voluntarily and are doing so under advice of legal counsel. They further warrant that they have the full authority of their respective parties to enter into the agreement and to bind the parties to its terms. 8. Each party will bear its own costs and attorney fees. It is further ORDERED that the Settlement Stipulation of Petitioner and Respondent is adopted and incorporated into this Final Order f the Department in accordance with its terms. DONE AND.ORDERED this 2b ay of January, 2010, in Tallahassee, Leon County, Florida. Copies furnished: Michael J. Alderman, Esquire Senior Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kixkman Building, Rm. A-432 Tallahassee, Florida 32399-0504 Peter N. Hill, Esquire Wolff, Hill, McFarlin & Herron, P.A. 1851 West Colonial Drive Orlando, Florida 32804 A A. FORD, Directo Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkanan Building Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motor Vehicles this day of January, 2010. Jan 2? 2010 OHSMV LEGAL TLH Fax: 850-617-5112 J.D. Parish Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 William Camper Hearing Officer Division of Motor Vehicles Julie Gentry Chief, Bureau of Field Operations Nalint Vinayak Dealer License Administrator Florida Administrative Law Reports Post Office Box 385 Gainesville, Florida 32602 11:5? Jan 27 2010 11:57am 004/009
Findings Of Fact Respondent, Rolando Mirabet, was first licensed as a commercial driving instructor in 1981. His current license will expire February 1, 1983. On March 26, 1982, a cameraman for WTVJ, Channel 4, Miami, while posing as a driver's license applicant at the Central Driver License Office was approached by Respondent. The cameraman/applicant told Respondent he was looking for the answers to the driver's license examination. They entered an automobile, Respondent showed the cameraman/applicant papers which he represented to be test questions from the actual driver's license examination, and the cameraman/applicant told Respondent he needed to take the questions and answers home with him to study. Respondent sold the questionnaire to the cameraman/applicant for twenty-five dollars ($25). Other employees of WTVJ filmed the encounter between Respondent and the cameraman/applicant from inside a surveillance van. The document sold by the Respondent to the WTVJ cameraman/applicant contains fifty-three questions with multiple-choice, alternate answers provided for each question and with one of the alternate answers for each question being marked as the correct answer. The document is in Spanish. Applicants for a driver's license are required, among other things, to pass a written examination concerning rules and regulations for driving in the State of Florida. Petitioner uses four different written examinations for testing applicants. During the hearing, one of Petitioner's witnesses compared the questionnaire sold by the Respondent to the cameraman/applicant and one of the Spanish versions of Petitioner's examination. Although the witness identified five questions as being the same on both documents, he also recognized some of the questions on the document which Respondent sold as being questions from the other versions of Petitioner's Spanish examination. A close review of the actual examination admitted in evidence and the document sold by Respondent reveals, however, that all twenty questions on the actual examination are found verbatim in the document sold by Respondent, and the alternate, multiple-choice answers to each question are also verbatim. Respondent admits giving the questions and answers to driver's license applicants. Respondent denies any knowledge of the rules and regulations enacted by Petitioner. Petitioner publishes a driver's handbook. That handbook contains a number of questions that are general in nature. No answers to those questions are suggested, and a reader needs to understand the entire book in order to answer those questions. Only one sample question with multiple-choice answers is given in order to illustrate to applicants the type of question which the applicant will encounter on the licensing examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT: A final order be entered permanently revoking the commercial driving instructor's certificate card of Respondent, Rolando Mirabet. RECOMMENDED this 27th day of July, 1982, in Tallahassee, Florida. LINDA M. RIGOT, 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 27th day of July, 1982. COPIES FURNISHED: Judson M. Chapman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32301 Alan Goldfarb, Esquire 12th Floor, Roberts Building 28 West Flagler Street Miami, Florida 33130 Mr. Chester F. Blakemore Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32301
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by James H. Peterson, III, Administrative Law Judge of the Division of Administrative Hearings, pursuant to the Parties’ Settlement Stipulation and Motion to Relinquish Jurisdiction, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED. Filed May 29, 2013 9:29 AM Division of Administrative Hearings DONE AND ORDERED this ag day of May, 2013, in Tallahassee, Leon County, Florida. Buréau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motorist Services this at. day of May, 2013. Vows te Dealer Kicense Administra" ~ NOTICE OF APPEAL RIGHTS ).. 4-. > Nalini Vinzyak, Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. JB/jdc Copies furnished: Micahel Khanjahanbakhsh, President Car Store of Altamonte, Inc. 425 Devon Place Heathrow, Florida 32746 Michael J. Alderman, Esquire Department of Highway Safety 2900 Apalachee Parkway, MS61 Tallahassee, Florida 32399 William F. Quattlebaum Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS? Fr (™ fer Bf 0° MAY 20 2013 Daot. of Higitsay Sa: Orcs DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, Case No.: 13-1185 v. CAR STORE OF ALTAMONTE, INC., Respondent. / SETTLEMENT STIPULATION AND MOTION TO RELINQUISH JURISDICTION Petitioner, Department of Highway Safety and Motor Vehicles, and Respondent, Car Store of Altamonte, Inc., stipulate and agree to a settlement of this matter and move for relinquishment of jurisdiction for the purpose of entering a Final Order of the Department incorporating this Settlement Stipulation in the above-styled matter, as follows: 1. Respondent agrees to pay an administrative fine of five hundred dollars ($500). 2. If Respondent pays the amount specified in paragraph one above within the specified time, the Department will impose no further penalties or sanctions against Respondent. However, if Respondent fails to pay the amount specified in paragraph one above on or before the date provided in the Final Order, on the day following the payment date specified, Respondent’s motor vehicle dealer license will be automatically suspended and Respondent will cease to do business as a motor vehicle dealer. 3. If after suspension Respondent pays the amount specified in paragraph one above within 30 days following the date of suspension, its motor vehicle dealer license will : 3 a : : : a a aH ro 7 S ‘ : : : i “ & = . . : : x 7 . . . a “ immediately be reinstated without further penalties or sanctions. However, if Respondent fails to pay the amount due by the 30" day following the date of suspension, on the 31 day following the date of suspension Respondent’s motor vehicle dealer license shall be revoked by the Department without further notice. 4. If the Department suspends or revokes Respondent’s motor vehicle dealer license for non-payment as specified in paragraphs two and three above, said suspension or revocation shall be without recourse to the Respondent and Respondent hereby expressly waives any right to appeal or otherwise contest the suspension and revocation. 5. It is expressly understood that this Settlement Stipulation has no force and effect until the Department enters a Final Order adopting same. 6. Respondent and the Department fully understand that this Settlement Stipulation, and the subsequent Final Order incorporating same, will not in any way preclude additional proceedings by the Department against Respondent for acts or omissions not specifically detailed in the Administrative Complaint filed in this matter. 7. Respondent and the Department expressly waive all further procedural steps and Respondent expressly waives all rights to seek judicial review of or otherwise challenge or contest the validity of this Settlement Stipulation and the Final Order of the Department. 8. Respondent waives the right to seek any attorney’s fees or costs from the Department in connection with this administrative proceeding. WHEREFORE, the parties move the Administrative Law Judge for the entry of an order returning jurisdiction of this matter to the Department. NYS o Signed this 22 214. of, 2013 Signed this 16 day of Nan , 2013. Vudu BAELLLEAE Mehaal FT. levine Michael Khanjahanbakhsh, President AssistantGeneral Counsel Car Store of Altamonte, Inc. Department of Highway Safety 1380 East Altamonte Drive and Motor Vehicles Altamonte Springs, Florida 32701 2900 Apalachee Parkway Tallahassee, Florida, 32399 Attorney for Petitioner w ue. STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, DIVISION OF MOTORIST SERVICES, ) ) ) ) Petitioner, ) ) vs. ) Case No. 13-1185 ) CAR STORE OF ALTAMONTE, INC., ) ) Respondent. ) ) ORDER CLOSING FILE AND RELINQUISHING JURISDICTION This cause having come before the undersigned on the Settlement Stipulation and Motion to Relinquish Jurisdiction, and the undersigned being fully advised, it is, therefore, ORDERED that: 1. The final hearing scheduled for June 7, 2013, is canceled. 2. The file of the Division of Administrative Hearings is closed. Jurisdiction is relinquished to the Department of Highway Safety and Motor Vehicles. DONE AND ORDERED this 21st day of May, 2013, in Tallahassee, Leon County, Florida. Witton Fo Quatteban WILLIAM F. QUATTLEBAUM 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 21st day of May, 2013. COPIES FURNISHED: Jennifer Clark, Agency Clerk Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-430 2900 Apalachee Parkway, Mail Stop 61 Tallahassee, Florida 32399 Dennis S. Valente, Esquire Department of Highway Safety and Motor Vehicles 2900 Apalachee Parkway Tallahassee, Florida 32399 dennisvalente@flhsmv.gov Michael Khanjahanbakhsh Car Store of Altamonte, Inc. 425 Devon Place Heathrow, Florida 32746
Findings Of Fact The parties stipulated to the facts set forth in paragraphs 1-5, below. Stipulated Facts James Phillips is the president and sole shareholder of the Respondent, Sunshine Auto Sales, Inc. The Respondent's place of business is located at 2050 North West 36 Street, Miami, Florida 33142. The Respondent was issued motor vehicle dealer license number 7VI- 005928 on May 1, 1987. The Petitioner's order summarily suspending Respondent's license was dated September 17, 1987, and was served on Respondent on or about November 9, 1987. On December 22, 1987, the Circuit Court for the 11th Judicial Circuit, in and for Dade County, Florida, entered an emergency injunction against enforcement of Petitioner's Order of Summary Suspension, contingent upon the posting of a $2500 bond by Respondent. The bond was posted on March 31, 1988. Other Facts On November 17, 1976, Respondent's president and sole shareholder, James Phillips, executed a sworn affidavit as part of the application for a motor vehicle dealer license. In that affidavit, he stated that no partner or corporate officer of the Respondent had ever been arrested or convicted of a felony. In subsequent annual renewal applications for the years 1977-84, Phillips stated that all terms and conditions as set forth in the original application were correct. In actuality, Phillips was arrested for breaking and entering, theft and rape in 1956. In 1960, he was arrested for aggravated assault. In 1972, he was arrested for possession of a stolen motor vehicle. Grand larceny was the subject of his arrest in 1976. In 1982, he was arrested for aggravated battery. Phillips' statement that he interpreted this language on the application and renewal forms to be applicable only to the corporation itself is not credited due to his demeanor while testifying and the clarity of the statement on the application requiring such disclosure. The Petitioner's policy is not to deny or revoke licenses simply on the basis of an arrest record of the applicant or licensee. Instead, when the information is correctly provided by applicants or licensees, a further investigation is made by the Petitioner to determine if there has been a conviction of a crime meriting suspension or denial of a license. When Petitioner becomes aware that an applicant or licensee has falsely answered an application regarding previous arrests, the policy of Petitioner is to deny the application for licensure or institute revocation action against a licensee on the theory that such falsification shows a lack of honesty in the applicant or licensee. On February 24, 1986, and May 20, 1986, James Phillips received warning letters from the Department reminding him that failure to apply for title or to file for transfer of title within 20 days following delivery of a vehicle to a purchaser is a violation of Florida law. In June and July of 1987, an employee of Petitioner, Helen Wandell, made numerous attempts to obtain information from Respondent regarding a particular complaint against Respondent. Information was sought by Wandell regarding the identity of the vehicle which was the subject of the complaint. She telephoned Respondent's facilities on June 10, 11, 12, and 16, 1987, during regular business hours and received no answer. On June 17, 1987, Wandell went to the Respondent premises during regular business hours and found the facility closed. She left a note and James Phillips called her the following day. He gave her information concerning the subject vehicle which proved to be incorrect. Again, Wandell attempted to contact Respondent's establishment by telephone on June 22, and 23, 1987, but did not get an answer. She telephoned again on July 24, 1987, and spoke with Phillips. In the course of the conversation, he informed Wandell that he could not provide the vehicle identity information she sought. He further warned her not to call again, cursed her and threatened to kill her. Madeline Fils-Aime does not read or understand English very well. On April 8, 1987, she entered into a parol agreement to buy a 1981 Mercury automobile from Respondent. The agreed upon price, as established by testimony of Fils-Aime, was $750. This amount was to be paid in installments as the money became available to Fils-Aime. Until the total amount of $750 was paid, the car would continue to be owned by and remain in the Respondent's establishment. On April 8, 1987, Fils-Aime paid $160 to Robert Sayre, James Phillips' stepson, at Respondent's establishment toward the cost of the automobile. She received a receipt from Sayre. The receipt carried the notation "no refunds" and "sold as is." The receipt also carried a notation that the remainder of the funds would be due on April 15, 1987. Fils-Aime returned to Respondent's establishment on April 16, 1987, paid another $100, received another receipt signed by Sayre carrying a notation that the remainder would be due on April 26, 1987. This receipt also carried the notation "no refunds." Fils-Aime returned to the Respondent establishment again on April 21, 1987, and paid another $40 on the car. This time she received a receipt signed by Thomas Phillips, son of James Phillips, which carried the notation that the balance would be due on May 7, 1987. Another payment of $100 was made by Fils-Aime on May 4, 1987. Another receipt bearing the signature of Robert Sayre was received. A new balance due date of May 14, 1987, was shown on this receipt. Fils-Aime returned at a later date to make a subsequent payment, but the Respondent's establishment was closed. Approximately six weeks after the May 4, 1987, payment, Fils-Aime returned to Respondent's establishment to learn that the car for which she had been making payments was gone. Testimony of James Phillips establishes the sale of the vehicle to another person. Phillips also readily admitted knowledge of the payments made by Fils-Aime and the practice of granting extensions to her of the due date for the total balance at the time of each payment. Since his clientele is poor, he uses the "lay away" plan on occasion to sell vehicles to individuals like Fils-Aime. In spite of her demands, he did not return Fils- Aime's previous payments to her. At the time of the May 4, 1987, payment, Phillips gave Fils-Aime an envelope to use in the event the Respondent facility was closed on her return to make a future payment. He instructed her to leave the envelope with the body shop next to Respondent's establishment. A contractual document offered in evidence at hearing by Respondent to substantiate James Phillips version of the parol agreement with Fils-Aime is not credited with any probative value. The document appears unsigned by anyone and the portion of the page where Fils-Aime would have signed is conveniently torn off and missing. Additionally, Fils-Aime denied knowledge of the document. After receipt of a complaint by Fils-Aime, the Petitioner's employee was denied access to Respondent's premises to inspect Respondent's records on July 21, 1987. The request was made during reasonable business hours and within the business hours posted on the fence at Respondent's establishment. On August 31, 1987, Respondent sold a 1979 automobile to Gloria Little. Respondent did not apply for title for Ms. Little. She went to the tag agency herself because there was no one at Respondent's facility to go with her. She was unable to obtain the title transfer and contacted Petitioner's offices. A telephone call by Petitioner's employee resulted in an individual from Respondent's establishment being made available to assist and complete the title transaction on December 16, 1987. The Respondent did not apply for title transfer to a 1975 vehicle sold to Rafael Castillo on August 8, 1987. After being contacted by a Petitioner employee, Respondent applied for the title transfer on December 16, 1987. On December 29, 1987, Respondent sold a 1981 automobile to Kimberely DeNunzio. Title application to the vehicle was made in February, 1988, and issuance of the title to DeNunzio occurred February 24, 1988. The Petitioner's Order of Summary Suspension of Respondent's motor vehicle license was in effect at the time of this sale.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered revoking Respondent's license and denying the application for renewal of same. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 22nd day of July, 1988. DON W. DAVIS 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 22nd day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 87-5616, 88-2528 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. PETITIONER'S PROPOSED FINDINGS The Petitioner's proposed findings consisted of paragraphs erroneously numbered. Those paragraphs, 25 in number, have been properly numbered and are addressed as follows: 1-3. are included in findings 1-3, respectively. 4-7. are included in findings 12-18. 8-10. are included in finding 21. 11-13. included in finding 22. 14-16. included in finding 23. 17. included in finding 20. 18-19. included in finding 11. included in finding 6. included in finding 7. included in finding 8. 23-24. included in finding 9. 25. included in finding 10. RESPONDENT'S PROPOSED FINDINGS The Respondent's proposed findings were likewise erroneously numbered. Numbering has been corrected and the 36 paragraphs are addressed as follows. 1-3. included. 4-15. rejected, unnecessary to result reached. 16. included in finding 12. 17-18. included in finding 6. 19-27. rejected, unnecessary. 28-29. addressed in finding 5. rejected, on basis of credibility. included in finding 17. 32-36. rejected as unnecessary. COPIES FURNISHED: Michael J. Alderman, Esquire Assistant General Counsel State of Florida, Department of Highway Safety and Motor Vehicles Department of Legal Affairs Neil Kirkman Building Room A-432 Tallahassee, Florida 32399-0504 Seril L. Grossfeld, Esquire 408 South Andrews Avenue Suite 101 Fort Lauderdale, Florida 33301 Charles J. Brantley Director, Division of Motor Vehicles Room B439 Neil Kirkman Building Tallahassee, Florida 32399-0500 Enoch Jon Whitney, Esquire General Counsel Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by Todd P. Resavage, an Administrative Law Judge of the Division of Administrative Hearings, pursuant to the Parties’ Motion to Relinquish Jurisdiction based on a Settlement Stipulation entered into between the parties, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Accordingly it is FOUND and ORDERED as follows: 1. That Respondent shall pay an administrative fine in the amount of two hundred fifty dollars ($250.00) per count for a total of one thousand five hundred dollars ($1,500.00) to be paid on or before September 30, 2013. All payments are to be made by returning a copy of the order with payment to: Filed August 29, 2013 2:08 PM Division of Administrative Hearings Department of Highway Safety and Motor Vehicles Office of General Counsel 2900 Apalachee Parkway, Room A432, MS-61 Tallahassee, Florida 32399 2. If Respondent pays the amount specified in paragraph one above within the specified time the Department will impose no further penalties or sanctions against Respondent. However, if Respondent fails to pay the amount specified in paragraph one, on the day following the due date specified in paragraph one, Respondent’s motor vehicle dealer license will be automatically suspended and Respondent will cease to do business as a motor vehicle dealer. 3: If after suspension Respondent pays the amount specified in paragraph one above within 30 days following the date of suspension, its motor vehicle dealer license will immediately be reinstated without further penalties or sanctions. 4. If Respondent fails to pay the amount due by the 30" day following the date of suspension, on the 31" day following the date of suspension Respondent’s motor vehicle dealer license shall be revoked by the Department without further notice. If the Department suspends or revokes Respondent’s motor vehicle dealer license for non-payment as specified in paragraphs two and three above, said suspension or revocation shall be without recourse to the Respondent and Respondent hereby expressly waives any right to appeal or otherwise contest the suspension and revocation. DONE AND ORDERED this a | day of August, 2013, at Tallahassee. Leon County, Florida. Julie Baker, Chief Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 Tallahassee, Florida 32399 i) Filed in the official records of the Division of Motorist Services this 2” day of August, 2013. ane , t leisnd ta Nalini Vinayak, Dealer Yicens NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rule 9.110, Rules of Appellate Procedure. JB:jde Copies furnished: Cathy Coleman Regional Administrator Dealer License Section Teresa Williams, Esquire Williams and Trese 12 Southeast 7" Street, Suite 703 Ft. Lauderdale, Florida 33301
The Issue Whether Petitioner properly denied Respondent's application for the renewal of his Commercial Driving School License No. 1719, and Teaching Certificate No. 4531.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, Petitioner's proposed memorandum and the entire record compiled herein, the following relevant facts are found. 2/ Respondent, Joshua Logan, during times material, was the owner/operator of Logan's Streamline Driving School in West Palm Beach, Florida, beginning in 1970. (Tr. 52) Respondent's most recent Commercial Driving School License (No. 1719) and Teaching Certificate (No. 4531) both expired on June 1, 1981. (Tr. 6) On May 18, 1981, Respondent applied to the Department of Highway Safety and Motor Vehicles (herein Department) for renewal of the above referred license and Teaching Certificate. Prior thereto, on or about May 14, 1981, the Department, through its staff, had instructed Respondent that he should contact the Department's agent, J. F. Hayes, at the West Palm Beach Drivers' License office, to arrange for the inspection of his school facilities before his license and certificate could be renewed. On approximately June 1, 1981, Respondent, via a telephone communique with John F. Hayes, District Supervisor, Palm Beach District, Region IV, requested that his renewal applications be held in abeyance pending completion of remodeling of his school building. The Department, pursuant to that communique, held Respondent's renewal applications in abeyance and considered them to be incomplete. Respondent was not told by agents of Petitioner that he could continue to engage in the business of conducting a driving school when his license/certificate expired. The Department issued an order dated August 27, 1981, prohibiting the Respondent from operating as a commercial driving instructor since his school license and teaching certificate both expired on June 1, 1981. On September 29, 1981, Levi Dixon completed an application for a license to conduct a commercial driving school under the name Logan's Streamline Driving School. Attached to that application were receipts, lesson plan forms and other contractual agreements which had been previously utilized by the Respondent. Respondent never renewed his request for an inspection with Supervisor Hayes. Don H. Keirn, Chief, Driver Improvement Bureau for Petitioner, regulates programs related to problem drivers. Chief Keirn has been the bureau chief for driver improvement for approximately twelve (12) years and also is in charge of regulating driving schools. As part of his duties, he inspects vehicles, making certain that they are properly equipped with dual controls, pass safety inspections and bear signs legible to the driving public. Rule 15A- 2.07, Florida Administrative Code. Chief Keirn reviewed the application to change the ownership of the Respondent's driving school during October of 1981. Chief Keirn had received no advance notification from Respondent of any plans (of Respondent) to change the ownership of the school. John F. Hayes, District Supervisor of the Palm Beach District (Region IV) makes periodic checks of commercial driving schools in the Palm Beach district. During the summer of 1981, Respondent advised Supervisor Hayes that, on April 14, 1980, he gave a behind-the-wheel driving lesson to Alzora Washington, in her own vehicle, rather than in a dual-control vehicle approved by the Department, which lesson resulted in Ms. Washington's car crashing through a fence and into a neighbor's home. (Testimony of Respondent, Ms. Washington; Tr. 18, 19, 38 and Petitioner's Exhibit No. 1) Respondent caused to be placed, in a local weekly newspaper, an advertisement offering driving instructions during October and November, 1981. (Petitioner's Composite Exhibit 5) Also, on November 10, 1981, Respondent gave instructions to Geraldine Wilder White in preparation for her to take the written portion of the driver's license exam to obtain a restricted driver's license. Ms. White paid Respondent a $40.00 fee for the driving instruction. (See Petitioner's Exhibit 4; Tr. 20- 24, 40-48 and Composite Exhibit 5) Sometime during the period in which Respondent requested Petitioner to postpone the inspection of his school, Petitioner learned of Respondent's actions as relates to his giving a driving lesson to Ms. Washington on April 14, 1980. Respondent, Joshua A. Logan, is a 56-year-old male who has custody of his three (3) children. Respondent is employed full time as a professional teacher by the Office of Community Mental Health. Respondent has had no prior charges brought against him by the Petitioner. Nor has he been previously charged with violations of any of the Department's rules. 3/ Respondent was therefore of the opinion that by advising Supervisor Hayes of the accident in which he was involved with Ms. Washington, Petitioner would place him on probation for giving a driving lesson in an unapproved vehicle. Respondent executed an answer to a civil suit initiated by counsel for Ms. Washington as a result of the automobile accident referred to hereinabove. Respondent also filed a counter-claim to Ms. Washington's claim and admits to having made several mistakes in both the answer and the counter-claim respecting damages and claims for such damages. 4/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Department deny Respondent's application for renewal of his school license Number 1719 and Teaching Certificate Number 4531. RECOMMENDED this 25th day of May, 1982, 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 25th day of May, 1982.
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by June C. McKinney, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Respondent’s Notice of Withdrawal, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File and Relinquishing Jurisdiction as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED and no license will be issued to Polaris Sales, Inc., and Broward Motorsports of Palm Beach, LLC d/b/a Broward Motorsports to sell low-speed vehicles manufactured by Polaris Industries, Inc., (GEM) at 2300 Okeechobee Boulevard, West Palm Beach, (Palm Beach County), Florida 33409. Filed December 10, 2012 1:21 PM Division of Administrative Hearings DONE AND ORDERED this ( | day of December, 2012, in Tallahassee, Leon County, Florida. Buréati of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 Tallahassee, Florida 32399 Filed in the official records of the Division of Motorist Services i rf Hol prcembe, 2012 Naini Vinayak, Dealer Yicense Administre'" NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. JB/jdc Copies furnished: A. Edward Quinton, Esquire Adams, Quinton and Paretti, P.A. Brickell Bayview Center 80 Southwest 8" Street, Suite 2150 Miami, Florida 33130 equinton@adamsquinton.com Michael W. Malone Polaris Sales, Inc. 2100 Highway 55 Medina, Minnesota 55340-9770 Sam Nehme Broward Motorsports of Palm Beach, LLC 4760 Sunkist Way Cooper City, Florida 33330 Marc Osheroff Broward Motorsports of Palm Beach, LLC 13600 Stirling Road Southwest Ranches, Florida 33330 Jonathan Brennen Butler, Esquire Akerman Senterfitt 222 Lakeview Avenue, Suite 400 West Palm Beach, Florida 33401 Jonathan.butler@akerman.com June C. McKinney Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator
