The Issue The issue in this case is whether Respondent, Steak N Shake, discriminated against Petitioner, Western Ulysse, on the basis of his national origin (Haitian), or race (black), in violation of the Florida Civil Rights Act.
Findings Of Fact Petitioner is a black man, born in Haiti. He was hired by Steak N Shake on April 26, 1998, as a production worker and cook. He was later promoted to a manager position at Store No. 281 in Lake Buena Vista. He worked at that store for about eight years and then transferred to Store No. 280 on West Colonial Drive in Orlando (the "Store") on an unspecified date. The general manager at the Store was Judith Freeman, a white female. There was one other manager at the store, Ilia Velez, a Hispanic woman.1/ Petitioner's duties as manager at the Store included providing good service to customers, maintaining an appropriate number of employees each day, ordering food and other supplies for the Store, and ensuring cleanliness and orderliness at the Store. It was also the duty of managers to make bank deposits of daily receipts. Petitioner did not have an exact time for starting work each day, but said he normally started at about noon for the "day shift." Each and every day, managers at the Store would complete a Daily Cash to Account for Form (the "TAF Form"), reflecting the amount of money collected on each of the three daily shifts. The first shift was late night/early morning; the second shift was the day shift; and the third shift was evening. As day-shift manager, Petitioner would sign the TAF Form for receipts from the night shift. It was then incumbent upon him to deposit the collected monies at the bank. A TAF Form was to be signed by two individuals, one of whom (generally a manager) would indicate by his/her signature that they would be responsible for depositing the receipts. According to Steak N Shake policy, deposits had to be made at the bank by a manager "and one other Steak N Shake employee. NO ONE GOES TO THE BANK ALONE." That policy was in place at the Store when Petitioner served as manager. However, it was common practice at the Store for Petitioner or another manager to go to the bank alone. Petitioner knew the policy and knew that his employment could be terminated for violating the policy. He explained that sometimes on first shift there were only two people at the store in the morning, so he had to go to the bank alone. Steak N Shake policies allow for a police officer to substitute as one of the two required persons. Further, an employee who cannot comply with the policy is supposed to contact the district manager as soon as possible. Nonetheless, the policy was routinely ignored by managers at the Store during the 2011 time-frame. It was also policy for the bank deposit to be made before 11:00 a.m. for the previous night's receipts. Petitioner did not explain how he complied with that requirement when he normally arrived at work at noon. He apparently worked earlier shifts some days and day shifts other days, but there is insufficient evidence in the record to substantiate that presumption. On May 24, 2011, however, Petitioner testified that he arrived at work around 7:00 a.m. At approximately 10:41 a.m., Petitioner signed the TAF Form from the previous day, indicating a deposit amount of $770.47 (the "Deposit"). Petitioner signed the TAF Form on the line of the form designated "Witnessed By" when, in fact, he, as manager, should have signed on the line designated "Deposited By." On this particular form, it appears the manager and the other employee signed on the wrong lines. Regardless of that scrivener's error, Petitioner became responsible for taking the Deposit to the bank once he signed the TAF Form. Petitioner said there were only two people working that morning, but the work schedule for the Store indicates at least five other persons were on the schedule for that morning. None of the workers was called to testify at final hearing, but the general manager, Ms. Freeman, said she believed they were all working that day. Ms. Freeman was also scheduled to work that day, but was taking part in management training outside the store. Petitioner did not notify the district manager that he could not comply with the banking policy. The Deposit was never received by the bank. Petitioner said at final hearing that he did not go to the bank with the Deposit, even though he had signed for it. He believes he sent another manager with the Deposit because it was very busy that morning, and there were not enough employees available to handle the work. His testimony in that regard is not persuasive, because the bank deposit slip for May 24, 2011, was signed by Petitioner. On June 9, 2011, the general manager, Ms. Briel, was told that the Deposit had never been made at the bank. She contacted the Store's general manager, Ms. Freeman, and asked her to investigate. Ms. Freeman did so, but could not locate the missing money. The bank also tried, but failed to locate the missing money. Ms. Freeman then contacted Petitioner to let him know the Deposit he had signed for was missing. Petitioner was given the opportunity to replace the missing money from his own funds to prevent termination of his employment, but said he did not have sufficient money in his account to do so. After completing her investigation, Ms. Freeman met Ms. Briel at a site away from the Store and disclosed her findings. Per protocol, the police were called to investigate the missing funds. No arrest was ever made, however. Ms. Briel considered Ms. Freeman's findings, consulted with the division president, the human resources department, and legal counsel and decided to terminate Petitioner's employment with Steak N Shake. Ms. Briel also issued counseling statements to Ms. Freeman and Ms. Velez relating to their failure to strictly adhere to the banking policies. Ultimately, Ms. Freeman was demoted to restaurant manager and transferred to another store due, in large part, to the violation of company policies relating to bank deposits. Petitioner had been counseled several times for shortcomings, but none of the violations were related to banking policies. Nonetheless, Petitioner was made aware that further disciplinary action against him for any issue may result in the termination of his employment. Petitioner feels he was treated differently than Ms. Velez, who he maintains also lost a deposit. However, Ms. Velez's deposit was ultimately accounted for by the bank, which had made a mistake. Petitioner's deposit was never accounted for by the bank or by anyone else. Ms. Velez's employment with Steak N Shake was ultimately terminated for "performance issues." Other managers have lost deposits and/or stolen money from Steak N Shake. In every instance, the offending manager's employment was terminated. There is zero tolerance at Steak N Shake for misappropriation of money. Petitioner cannot recite any incident of discrimination against him by Steak N Shake on the basis of his race or national origin. Petitioner did not ever avail himself of the procedures for issuing a complaint based on discrimination while he was employed at Steak N Shake.
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 denying Western Ulysse's Petition for Relief. DONE AND ENTERED this 28th day of August, 2012, 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 28th day of August, 2012.
Findings Of Fact Petitioner, Allied Marine Group, Inc., d/b/a Stuart Hatteras, Ltd. (Allied), is the largest dealer in new and used yachts in Florida. Its Dealer Registration Number is 16-03-232. It has 175 employees and sells yachts that range in price from $100,000 to $9,000,000. In 1993 Allied sold in excess of 300 yachts and realized gross sales of $60,000,000. The yacht sales business is very competitive. Allied's sales and marketing departments target the well-to-do who can afford expensive yachts and enjoy fishing and pleasure cruising. The target group subscribes to yachting magazines, visits boat shows, attends cruising activities, and participates in fishing tournaments. To reach these individuals in these activities, Allied spent $585,000 advertising in magazines including publishing its own magazine, "Makin Wake," $166,000 participating in boat shows, and $155,000 participating in fishing tournaments and other promotions for the fiscal year ending October 31, 1993. Allied's Vice President of Sales and Operations, Tom Sanders, and salesman Chris Cunningham actively market the sale of Allied's yachts by participating in fishing tournaments and boat shows because that is where the buyers are. Fishing tournaments and boat shows are "selling events" to Allied. Neither Mr. Sanders nor Mr. Cunningham was of the opinion that Allied could remain competitive in the yacht sales business by simply displaying vessels at showrooms and waiting for customers to come. Most yacht sales are made to customers who have purchased yachts in the past. The selling of a yacht is a process that involves many contacts with a customer before the customer actually makes a purchase. Customers rarely buy million dollar vessels on the spot. Purchasers of fishing yachts like to purchase from dealers who are knowledgeable about fishing. Participation in fishing tournaments and outfitting inventory boats for fishing is a way of showing a vessel's capabilities to potential purchasers and Allied's knowledge of fishing vessels. Allied often enters fishing tournaments to demonstrate the capabilities and amenities of its yachts to prospective purchasers for the ultimate purpose of selling the yacht entered and increasing overall sales. It outfits the vessel with elaborate decor and fishing equipment to attract customers. The salespersons participate in the fishing portion of the tournament in order to get access to the tournament functions where they can meet prospective purchasers at the captains' meetings, at the fish weigh-ins and other gatherings before and after each day's fishing, and at the awards ceremony at the end of the tournament. In addition to promoting the sale of the vessel entered, Allied and other dealers enter and sponsor fishing tournaments to give their salespersons opportunities to meet with potential purchasers and to keep the name of their products, company and salespersons in the public eye. Salespersons sell yachts by networking, that is, developing and maintaining one-on-one contacts with prospective purchasers. Salespersons make and maintain contacts by referrals from other customers, by hosting parties and by frequenting boat shows, fishing tournaments and other events that boat enthusiasts attend. There are different sizes and types of fishing tournaments, and a dealer's participation may vary depending on the tournament. Allied sometimes participates in fishing tournaments by providing a crew to actually fish. When a dealer enters a vessel in a fishing tournament, the fishing element is secondary to the opportunity the tournament presents for the dealer's salespeople to make contact with potential purchasers. The main reason Allied enters its yachts in fishing tournaments is to sell the yachts entered in the tournaments and to promote Allied as a dealer in vessels made for fishing. Yacht owners that see new models at fishing tournaments often trade up to that model or newer or larger vessels. Allied promotes its yachts and its business at fishing tournaments in the same manner as it does at boat shows: by displaying its products and by sending its salespersons to mingle with the attendees, to pass out business cards, and to provide information about its products and services. Allied always stocks yachts participating in fishing tournaments with literature concerning the particular vessel and the dealership including brochures about its yachts, specification sheets for the particular yacht, and business cards of the salespersons. Allied does not have any yachts, in inventory or otherwise, that are designated as demonstrators. Vessels that are outfitted and decorated to participate in particular boat shows or fishing tournaments are always for sale to customers during or after the event. In October, 1992 Tiara Yachts delivered a 43 foot sport fishing vessel to Allied for resale. The yacht is described as a 4300 Tiara Convertible and was delivered to Allied's Fort Lauderdale marina. Between October, 1992 and May 27, 1993, Allied displayed the vessel (the Tiara) at its marina showrooms in Fort Lauderdale, Stuart, and West Palm Beach. The Tiara was held by Allied as part of inventory for resale to customers and was so reflected on Allied's accounting books and records. The Tiara was floor plan financed, meaning the manufacturer loaned Allied 95 percent of the cost of purchasing the vessel and maintained a security interest in the vessel until its resale to a customer. The manufacturer made periodic and unannounced checks of Allied's inventory to verify that the vessel was actually in Allied's possession at one of its facilities and held for resale. On May 14 and 15, 1993, the Arthur Smith, Kingfish, Wahoo and Dolphin Fishing Tournament (the Tournament) was held in Palm Beach County. It is a large tournament which draws about 600 participants. Allied paid the $300 Tournament entry fee, hired a crew, provided the Tiara, and paid for all supplies. These expenses were charged to Allied's "Tournament and Promotion" account on its general ledger. Allied listed the Tiara on the Tournament entry form as the vessel to be used in the Tournament. The participants listed were Edward Sweigart, Chris Cunningham, Monty Braune, Jim Neill, Bob Wimmer, and Kimberly Kern. Allied's address in West Palm Beach was listed as the address for each participant; however, Allied's name was not referenced on the entry form. Allied did not obtain advertising in any medium prior to, during, or after the Tournament to announce the vessel's participation in the Tournament. Allied was not a Tournament sponsor and did not donate any prizes to the Tournament. No banners, flags, or pennants with Allied's name were displayed either on land or on the Tiara during the Tournament. The transom of the Tiara was marked with the vessel's make-and-model number, which read, "4300 Tiara Convertible." All rods and reels used on the vessel during the Tournament were the personal property of Allied's salesman Chris Cunningham. At no time was there a known prospective buyer present, either on land or upon the vessel, during or after the vessel's participation in the Tournament. Participation in the Tournament included fishing from the vessel by various participants. The participants on May 14 included Allied employees: Chris Cunningham, salesman; Monty Braune, yard worker; Edward Sweigart, boat washer; as well as non-employees; Ed Steffes; and Sweigart's girlfriend, Kimberly Kern. The participants on May 15 included Allied employees, Sweigart, Braune, and David McGee, service manager; as well as non-employees Steffes, Michael McGee and Bobby Wimmer. The attire of the May 14 participants was, in part, as follows: Sweigart wore a polo shirt bearing the "Tiara" logo; Cunningham and Kern wore "Palm Beach Hatteras" t-shirts; Steffes and Braune wore t-shirts without logos. The attire of the May 15 participants was in part, as follows: Sweigart wore a polo shirt bearing the "Tiara" logo; Braune wore a "Stuart Hatteras" shirt; David McGee, Michael McGee and Steffes wore shirts with no logo and Wimmer wore a "Hatteras of Palm Beach" t-shirt. At the Tournament, the weigh-in location for the larger boats (including the Tiara) was at a park where there were no facilities to dock the Tiara for display either before or after the day's fishing. Tournament participants weighing their fish at the park were required to pull up to the dock, off-load their catches and depart so that other participants could come to weigh their fish. Mr. Cunningham got off the Tiara at the weigh-in location and remained there to mingle with prospective purchasers while the captain and crew returned the Tiara to Soveral Marina where it was available for boarding by prospective purchasers. Soveral Marina was located approximately ten minutes or five miles away from the weigh-in location. Allied would have preferred to dock the Tiara at the Tournament location for easier access by prospective purchasers. Because this was not possible, displaying the Tiara at nearby Soveral Marina was a good alternative for making the yacht available to potential customers. Mr. Cunningham knew that some of his customers would be attending the Tournament and might be interested in the Tiara. He attended the Tournament's captains' meetings, weigh-ins and other gatherings and the awards ceremony at the end of the Tournament. During the Tournament gatherings Mr. Cunningham handed out business cards and brochures describing the Tiara. For catching the largest dolphin, Edward Sweigart was awarded a prize which consisted of cash, a boat, an outboard motor, and a boat trailer. The following participants were on stage during the May 16 awards presentation after Mr. Sweigart caught the biggest dolphin of the tournament: Mr. Sweigart, wearing a "Tiara" logo shirt; Mr. Cunningham, wearing a "Palm Beach Hatteras" shirt; and Ms. Kern, wearing a "Palm Beach Hatteras" shirt. Immediately after the Tournament, Mr. Sweigart took the prize boat and a dispute arose between Allied and Mr. Sweigart over who was entitled to the prize which culminated in a lawsuit by Allied against Mr. Sweigart. A newspaper article was published criticizing Allied for trying to recover the prize from Mr. Sweigart. The negative publicity surrounding Allied's participation in the Tournament caused Allied to downplay its participation in the event. As a result of the newspaper article, Steve C. Brown, Senior Tax Specialist with the Department of Revenue's (Department) Boat Enforcement Unit, conducted an investigation into Allied's entry and participation in the Tournament. Twelve days after the Tournament, on May 27, 1993, the vessel was sold to Mr. Arthur Levitan for the sum of $506,727.80. Mr. Levitan was not at the Tournament nor did he know the vessel had been in the Tournament. Six percent sales tax of $26,727.30 along with a luxury tax of $34,504.50 was collected from Mr. Levitan. The sales tax was paid to the Department of Revenue. As a result of Mr. Brown's investigation, the Department issued a Notice of Final Assessment for Tax, Penalty, and Interest Due on a Boat, dated January 18, 1994, for use tax in the amount of $27,000, plus a late filing penalty of $13,500 and interest as of January 18, 1994 of $1,801.50, which totaled $42,301.50. Allied protested the Assessment in a Petition for Reconsideration, dated February 7, 1994, in which it alleged: that the vessel was operated on behalf of Allied as part of its promotional activities and to expose the vessel to potential buyers. Allied further alleged that no use tax was due because the vessel was at all times part of Allied's inventory for sale to customers; that such use is consistent with the vessel being offered for resale and being maintained in inventory and that entry of the vessel into the tournament was at all times solely for the purpose of promoting the sale of this vessel, Tiara Yachts, and Allied. It was also alleged that there are no rules or statutes that support the Department's assessment of use tax for vessels for resale. The Department rejected the facts and arguments in the Petition and upheld the Assessment in a Notice of Reconsideration, dated July 7, 1994, in which it concluded that the vessel was: removed from inventory and used in an activity inconsistent with it being offered for resale; that such "use" of the vessel fell within the statutory language of Section 212.02(20), Florida Statutes; that the use of a vessel held in inventory for resale and used in the manner set forth in the facts of this case constitute a taxable use, as there is no rule or statute that allows a dealer an exemption for such use. The Department's Special Programs Unit is charged with collection and enforcement of sales and use tax, especially with respect to boats. The Special Programs Unit was created by L. Lamar Gay in 1983 and was headed by Mr. Gay from its creation through June, 1989. Mr. Gay developed the policy for the unit and was responsible for hiring Steve Brown in November of 1980. From the inception of the Special Programs Unit through Mr. Gay's tenure as an assistant bureau chief and head of that unit, the Department's interpretation of the term "use" for use tax purposes was that it did not include participation of an inventory vessel in a fishing tournament. According to Brown, it is presently the policy of the Department that the promotion of vessels at boat shows by dealers is not a taxable use. The Department has not issued use tax assessments to dealers participating in boat shows.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered assesing Allied Marine Group, Inc., for payment of use tax in the amount of $27,000 plus interest incurred as a result of the participation of one of its inventoried vessels in the Arthur Smith, Kingfish, Dolphin and Wahoo Fishing Tournament of May 14-15, 1993. DONE AND ENTERED this 19th day of November, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 1996. COPIES FURNISHED: Albert J. Wollermann, Esquire Mark T. Aliff, Esquire Office of the Attorney General The Capitol - Tax Section Tallahassee, Florida 32399-1050 Craig D. Olmstead, Esquire Jane W. McMillan, Esquire Kelley, Drye and Warren 201 South Biscayne Boulevard, Suite 2400 Miami, Florida 33131 Linda Lettera, General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
The Issue Whether Respondent violated Section 370.142(2)(c), Florida Statutes, and, if so, what penalty should be imposed.
Findings Of Fact The terms of the settlement agreement between the parties are set forth in the following paragraphs. The parties stipulated to the factual basis alleged in Case No. 97-4209. As set forth in the citation dated August 7, 1997, Respondent Jorge Cabrera (Cabrera) was fishing 130 untagged crawfish traps. This was the second time within a 24-month period that Cabrera was in violation of Section 370.142(2)(c), Florida Statutes. Petitioner, Department of Environmental Protection (Department), agrees to abate the notices that form the basis for Case Nos. 97-4416, 97-4485, and 97-5005 on the following terms and conditions: Cabrera shall immediately pay a fine of $5,000 to the Department. Cabrera shall have his Saltwater Products License (SPL-44525) and all endorsements thereto, C-9049, X-1615, V-7859, ML-887 and RS (current RS expiring June 30, 1999), suspended for five years beginning July 1, 1998, and continuing through the end of the 2002/2003 license year. It is specifically recognized by the parties that the SPL and endorsements currently held by Cabrera remain active until and through the close of business hours (5:00 p.m.) June 30, 1998. The parties agree that the license is suspended for five years, but that at the end of the five-year period, Cabrera is otherwise eligible to reapply for an SPL and the endorsements currently held on the 1997/1998 SPL license, which are the Restricted Species (one-year eligibility remaining), Crawfish, Blue Crab, Stone Crab, and Marine Life endorsements. In this case only, as part of the parties' settlement agreement, the Department agrees that the statutory requirements for renewal of the Crawfish and Stone Crab endorsements and specifically the currently mandatory every September 30-renewal-application deadline for the Stone Crab renewal are tolled during the suspension period. The qualifying period for the RS endorsement is tolled only as to the time currently remaining for requalification on the existing license, which would be one year remaining eligibility. Upon renewal of the SPL with endorsements application for the 2002/2003 license year, eligibility and time remaining will resume from what Cabrera had at the time the suspension became effective. The time periods tolled begin to run again on July 1, 2002, whether the SPL holder has applied for reactivation of his SPL with endorsements or not. Specifically, if there is no application for an SPL with RS endorsement within one year of July 1, 2002, the one year's eligibility remaining from the 1997/1998 license expires. Any time that has expired after July 1, 2002, counts, and the time remaining to requalify for the RS will be whatever time remains from the one-year eligibility which begins to run on July 1, 2002, and expires on June 30, 2003. For example, if the application is received by the Department in September 2002, the applicant would have only nine months of RS eligibility remaining. Under current license application procedures, the earliest reapplication that may be submitted will be in April 2002 for the 2002/2003 license year. Cabrera shall have only until the close of the current year transfer-period to transfer his lobster-trap certificates. Any certificates not transferred are subject to forfeiture if they are not maintained pursuant to Section 370.142, Florida Statutes, during the license suspension period. All fines and fees must be paid to the Department before the transfers can be made. The Department will expedite the providing of forms, processing, and record activity, and Cabrera will expedite submittal of completed application(s) to allow reasonable time to accomplish any transfers or other record activity prior to the close of the transfer period. All traps (lobster and stone crab) must be removed from the water by the end of the fishing season. Any of Cabrera's traps that may become subject to disposition under the trap retrieval program (Section 370.143, Florida Statutes) must be handled as appropriate, even if the circumstances occur after the time the license suspension becomes effective. The parties agree to bear their own costs and attorney's fees associated with these proceedings. The parties agree that breach of the settlement agreement between the parties will revive all rights and remedies available to the non-breaching party that the party had against the other prior to entering into the settlement agreement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which incorporates the provisions of the Settlement Agreement between the parties. DONE AND ENTERED this 21st day of April, 1998, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 1998. COPIES FURNISHED: Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 M. B. Adelson, IV, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399 John A. Jabro, Esquire 90811 Overseas Highway, Suite B Tavernier, Florida 33070
Findings Of Fact Petitioner is the holder of Oyster Leases NO. 892 and 893. The annual rent for both leases was paid on December 16, 1988, and both leases are currently in full force and effect. No formal action has been brought by DNR to revoke these oyster leases. In July 1988, Petitioner filed a valid and adequate application for a special activity license to use mechanical harvesting implements on these leases. Petitioner furnished a bond payable to the Governor of the State of Florida and approved by DNR in the sum of $3,000.00 at the time he filed his special activity license application.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Natural Resources enter a Final Order and therein grant the application of Harley L. Vause for a special activity license to use mechanical harvesting implements on Oyster Leases NO. 892 and 893. DONE and ENTERED this 13th day of March, 1989, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1989. COPIES FURNISHED: Harold A. McLean Deputy General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Suite 1003 Tallahassee, FL 32399 Lynn C. Higby Attorney at Law Bryant, Higby & Williams Post Office Drawer 860 Panama City, FL 32402-0860 Tom Gardner Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000 APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 88-5988 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Harley L. Vause Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(3) and 2(4). Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Natural Resources The only finding of fact proposed by DNR is rejected as being irrelevant and unsupported by the competent evidence. COPIES FURNISHED: Harold A. McLean Deputy General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Suite 1003 Tallahassee, FL 32399 Lynn C. Higby Attorney at Law Bryant, Higby & Williams Post Office Drawer 860 Panama City, FL 32402-0860 Tom Gardner Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000
Findings Of Fact At all times pertinent to the issues herein, the Department of Environmental Protection was the state agency responsible for the regulation of certain activities conducted on and in the coastal waters of this state. Respondent was a commercial crab fisherman operating out of Tarpon Springs, Florida. In the operation of his business, Respondent, James Ikey House, places and maintains several thousand wooden crab traps in the waters off western- central Florida for the purpose of catching stone crabs. He, or someone in his employ, builds his traps on his premises. Late in the afternoon on September 2, 1993, Marine Patrol Officer Umberto Navarro, while on duty as a land patrol from Tarpon Springs to St. Petersburg Beach, on Roosevelt Boulevard in Tarpon Springs, saw a stack of greenish colored crab traps on a lot beside the street. The greenish color of the traps he saw that day made him wonder what they had been dipped into for preservation. Navarro's family has been in the commercial fishing business for years and some are competitors of the Respondent in the Tarpon Springs area. He contends this has nothing whatever to do with his investigation, however. He has worked with fishermen all his life and before becoming a Marine Patrol officer, he built thousands of crab traps similar to those he saw that day and dipped them in motor oil as a preservative. Navarro saw a young boy on Respondent's premises dipping bundles of slats into a vat containing a dark liquid. The slats were 2 to 3 feet long and were tied with string, and based on his experience in the business, and the fact that a lot of the prepared and stacked traps were the same color as the wood being dipped, Navarro concluded that they were going to be made into crab traps. He asked the lad to whom the traps belonged and subsequently found out they were owned by the Respondent. When Respondent came to the site where Navarro was talking to the boy and the boy's father, Respondent's grandson and son respectively, Navarro, after identifying himself as a Marine Patrol officer, asked Respondent if the traps were his. In response, Respondent asked, "What's it to you?" Navarro then asked Respondent what the substance being used was and explained why he asked. He advised Respondent that it was unlawful to dip crab traps, or the material to be made into traps, in any substance made from petroleum. Respondent asked to see where that was in the law and Navarro showed him the statutory provision included in a book of relevant laws and rules carried by all Marine Patrol officers. Even when this was shown to Respondent, he remained hostile and uncooperative, though he ultimately stated he was using mineral oil and copper as a dip. Only when Navarro said he would take a sample of the substance did Respondent admit the dip contained a petroleum product, and he said he guessed that he was in violation of the law along with the other million people who dipped traps. Officer Navarro went over to where the dip substance was being used and asked if Respondent had any cans from which it had come around for him to look at. Respondent refused to show Navarro any cans, so as a result, even though he did not have a search warrant to do so, Navarro started to take a sample for further identification. With that, Respondent told Navarro to get off his property. Nonetheless, Officer Navarro took two samples of the substance using a piece of what appeared to him to be abandoned water hose he saw lying on the ground. One was taken from the vat in which the slats were being dipped, and the other was taken from a 55 gallon drum of the substance nearby. He did so because he saw what he considered to be a crime being committed in front of him and he wanted to preserve a sample of the substance being used. Navarro gave Respondent a receipt for the samples and the hose. He did not take any of the traps. He also took photographs of the scene including the dip process, the stacked traps, and the surrounding locale. Respondent objected to the pictures being taken. The substance was subsequently released to Mr. Rossbach of the Department's Emergency Response office who had the samples analyzed by an independent accredited laboratory. In determining what tests to run on the substance, Mr. Rossbach and the laboratory official considered its appearance and its odor, and based on that, the laboratory personnel suggested what tests should be done. Mr. Rossbach got prices for those tests and, before approving their completion, took the samples back to his office, secured a purchase order for the tests, and then took the samples back to the lab for analysis. The report of the tests done on these samples indicated the substance contained a significant amount of copper and mineral spirits, a petroleum product. The total cost of the investigation into this incident by the Department, including the laboratory analysis which was priced at $855.00, came to $1156.26. This figure also includes the mileage for the patrol car, the cost of sample jars, a proration of the salaries of the Marine Patrol and Department personnel involved, photography costs, and clerical expenses. In addition, the Department proposes to assess a fine of $500.00. In this regard, the Department has authority to assess a fine of up to $10,000 per day for pollution violations proscribed by Chapter 376, Florida Statutes. In 1990, the Florida Legislature revised Chapter 376, Florida Statutes, to provide that after 1990, no traps may be impregnated with a petroleum based solution. After 1995, no traps which have been impregnated with a petroleum based solution may be used in the waters of this State. The statute was drafted this way to allow those fishermen who had traps already impregnated at the time the statute was passed to use them until they wore out or for a reasonable time prior to the effective date of the prohibition against their use. Captain House categorically denies having dipped any of the traps Navarro saw stacked, or any of the traps he has used since 1989, in mineral spirits though before the law was changed he used to do so. He has been a commercial fisherman for 50 years, and while he formerly dipped his traps to preserve the wood and keep worms out, he no longer does so because of the cost of the chemicals and the labor to do it. He now uses commercially treated lumber to fabricate the traps which, though more expensive to buy, is cheaper for his purposes than the cost of regular wood plus the treatment process. The vat which Mr. Navarro saw contains a green liquid which is made up of mineral spirits and a copper wood preservative. Respondent claims he uses the wood which is dipped into the vat for a variety of purposes and, on occasion, gives it to others. He also lets others use his vat to dip their wood. The dipping is done to protect the wood against rot and he uses it in boat building and in the construction and maintenance of two houses he owns in Tarpon Springs. He claims not to have used it for crab traps, however. Respondent claims Officer Navarro's inquiry into his operation is the result of commercial competition. There is no evidence of this however. Respondent also claims that from his inquiry of a Ms. Moegling of the same laboratory which conducted the analysis for the Department, he was advised that it would take between 5 and 7 days to test for suspected petroleum products, and that the test would cost $150.00. The report of analysis done by the lab reflects a comprehensive testing for numerous chemicals. Respondent took a sample of his dip to another laboratory, Personal Services Industries, Inc., in Clearwater on May 18, 1994, where he paid $115.00 for an analysis of the substance. There was no evidence as to what the result of this analysis was, however, or what tests were completed. In light of the fact that the statute and rule prohibit dipping in petroleum based products, a less comprehensive test than that run here would have sufficed. Though there is no direct evidence of the cost of such a test, other than theestimate by PSI, Inc. of $115.00, and the cite of a fee of $150.00 to Respondent by a representative of V.O.C. Analytical Laboratories, Inc., it would seem reasonable that such a test could be done for less than $855.00. Using the cited alternative costs as a guide, the sum of $150.00 appears reasonable. Respondent also presented several receipts for the purchase of lumber which he claims was pressure treated lumber to be used for the construction of his crab traps. Again, the documents do not indicate that the lumber is pressure treated, and as with the results of the independent analysis, the only evidence of Respondent's claims is his own testimony. Respondent also introduced three affidavits from individuals who claim to be aware of Respondent's activity from witnessing his conduct for anywhere from three to twelve years. Each of these individuals claims to have seen Respondent build many crab traps, but none has ever seen him dip the traps in or spray them with chemicals. The statements are hearsay and the similarity of the language of these affidavits leads to the conclusion they were prepared in advance by Respondent or his representative and submitted to the affiant for signature.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Petitioner pay a fine of $500.00 and reimbursement of expenses in the amount of $451.26. RECOMMENDED this 23rd day of August, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 1995. APPENDIX TO RECOMMENDED ORDER 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. FOR THE PETITIONER: Accepted but not relevant to any issue of fact. Accepted and incorporated herein. - 11. Accepted and incorporated herein. Accepted and incorporated herein. & 14. Accepted and incorporated herein. Accepted and incorporated herein. - 20. Accepted and incorporated herein. Accepted. Not proven. & 24. Accepted. FOR THE RESPONDENT: Respondent's post hearing submittal did not constitute Proposed Findings of Fact, but more an analysis of and argument on the evidence. COPIES FURNISHED: Maureen M. Malvern, Esquire Department of Environmental Protection 2600 Blair Stone Road, MS 35 Tallahassee, Florida 32308 Brad D. Hicks Qualified Personal Representative percent House 514 Island Avenue Tarpon Springs, Florida 34689 James Ikey house 514 Island Avenue Tarpon Springs, Florida 34689 Virginia B. Wetherell Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kenneth Plante General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact (Because the Respondent's Proposed Findings of Fact were in letter form and unnumbered, a number has been assigned to each paragraph in chronological order beginning with paragraph Salutory remarks and not a finding of fact. Preliminary information and not a finding of fact. Rejected as subordinate. Not included in R.O. because subordinate. Rejected as not supported by competent substantial evidence. Partially adopted in Findings of Fact 6 and 8. Matters not included therein are rejected as argumentative. The last sentence is rejected as speculation. Rejected as a recitation of testimony. Rejected as not supported by competent substantial evidence. Rejected as subordinate and unnecessary. Partially covered in Procedural Background section of R.O. Matters not contained therein are rejected as argument. ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS ARTENIA SANDERS, EEOC Case No. 046852145 Petitioner, FCHR Case No. 85-2149 DOAH Case NO. 85-3846 CHURCH'S FRIED CHICKEN, INC., FCHR Order No. 86-029 Respondent. /
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 Mrs. Artenia Sanders. DONE and ORDERED this 10th day of March, 1986 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON, 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 10th day of March, 1986. COPIES FURNISHED: Artenia Sanders 1619 Lake Avenue, Apt. C-3 Tallahassee, Florida 32304 Mr. Pat Avery Personnel Manager Church's Fried Chicken, Inc. 2036 Carroll Avenue Chamblee, Georgia 30341 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240I~ Tallahassee, Florida 32303 Dana Baird, Esquire General Counsel Florida Commission on Human Relations 325 John Knox Road Tallahassee, Florida 32303 APPENDIX 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.
Findings Of Fact The parties stipulated and agreed to the operative facts in their Pre- Hearing Stipulation and those agreed-on facts are adopted herein as Findings of Fact 1-26. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this dispute. Respondent denied Petitioner's requested permit in this case because the status of his leases was currently in question for possible failure to maintain the allegedly required level of cultivation. Respondent applied the provisions of Rule 46-27.0092 F.A.C. (1988) to Petitioner's request for a permit, which rule in fact was not adopted until October 1, 1986, and the pertinent provisions of which did not exist in fact until the rule was amended on July 7, 1988. Rule 46-27.0092 F.A.C. (1988) cites as its specific authority four provisions of Florida statute which did not exist when Petitioner's oyster leases were acquired by contract with the State of Florida. Rule 46-27.0092 F.A.C. (1988) implements laws which did not exist at the time Petitioner acquired his contract interest in these leases. The Department denied Petitioner's request for a permit in reliance on Section 370.06(4), Fla. Stat. (1987), a statute which did not exist at the time Petitioner acquired his interest in these oyster leases by contract. A report by Dr. Charles Rockwood and others commissioned by the Department of Natural Resources of F.S.U. found that "The local contention that dredging [for oysters in Apalachicola Bay] would be ecologically harmful to the Apalachicola oyster population given the relatively soft and muddy bottom, it would cause excess siltation and the oysters would smother and die, is a conclusion not supported by ecological information available to the project researchers." The Marine Fisheries Commission 15 years later arrived at the same conclusion stated in #7. "We do not believe there would be any environmental problem associated with the use of dredges." In Louisiana dredges are allowed to a maximum of 7 Ft. and up to 6 per vessel. Ron Ducas from Louisiana, one of the top shellfish biologist in the southeast, said that the use of dredges does not cause any environmental damage or [un]necessary [sic] damage to the oyster. The findings noted in #7, 8 and 9 were submitted by Mr. Nelson of the DNR and on behalf of Respondent to the governor and cabinet during the Marine Fisheries Commission agenda of the cabinet meeting on June 14, 1988. It was noted in a memorandum from the Office of the Governor to Sally Monroe from Billy Buzzett regarding Apalachicola Bay Oyster Dredging dated July 13, 1988, that the owner of lease numbers 525 and 609 appeared to be in compliance with the requirements of his leases and they were validly held leases from the State of Florida. Most of the currently leased [Apalachicola) bay bottom is not productive because of lack of oyster habitat. Annually, Apalachicola Bay is filled with oyster spawn (spat). The spat would naturally attach to oyster beds of oyster shell and culch if such beds were created where the bottom is now only mud. The owners of leases have the right to create oyster habitat on their leases and to hardest the oysters that may grow thereon. The cost of depositing oyster shell and culch materials on the mud bottom in adequate quantities to create a suitable habitat for spat is about $5,000.00 per acre. In recent years, approximately 90 percent of the oysters processed in Franklin County by shucking and canning have come from outside Florida, and only about 10 percent from Florida. The supply of oysters from outside of Florida is unstable largely due to water quality degradation in other states, as well as the loss of oyster habitat to development. The use of dredges could allow the holders of leases to harvest oysters from the leasehold more quickly and less expensively. The savings in money could then be used to create more oyster habitat. Except for potential illegal use of dredges [on public bars], misuse of dredges on lease holds (scooping of all oyster bar materials, without redeposit of the shell and culch), and fracture of thin shelled oysters on lease holds, there is no evidence that oyster dredges will cause biological or water quality problems in Apalachicola Bay. Those permitted to use dredges on private leases would have the economic incentive to use the dredges in a manner that does not destroy their financial investment in the leasehold. The foregoing facts represented by #l2 through 20, were all positions advanced by Respondent and the Florida Marine Fisheries Commission to defend the validity of Rule 46-27.0092 and were conclusively found by the State of Florida, Division of Administrative Hearings in Franklin County, Seafood Workers Association, Royce Watson and Leroy Hall, Petitioners v. Department of Natural Resources, and Florida Marine Fisheries Commission, Respondents, in the State of Florida, Division of Administrative Hearings, Case NO. 87-4438R, 10 FALR 2190 (March 31, 1988) An oyster lease is, among other things, an interest in land. Petitioner is the owner of Oyster Lease Nos. 525 and 609 which were issued pursuant to Chapter 370.16(16)(b), Fla. Stat. (1953). The terms of the leases in question are perpetual and convey interest in parcels located in Apalachicola Bay in Franklin County, Florida. Petitioner applied for a permit to use implements or appliances on his leases on June 30, 1988. Petitioner issued its final order of denial on September 28, 1988. Respondent has not commenced any proceeding to revoke Petitioner's oyster leases. Additionally, the parties stipulated to the facts set forth as Findings of Fact 27-29 in their Stipulation filed February 9, 1989. Petitioner is the lessee of Oyster Leases Nos. 525 and 609, which constitute leased bedding ground. Petitioner has agreed to furnish a bond payable to the Governor of the State of Florida, to be approved by the Division of Marine Resources, in the sum of $3,000.00, that any implements or appliances as he may desire to use on his leased bedding ground shall not be used on the natural oyster reefs contrary to law. The attached form of bond [attached to the Stipulation] is acceptable to and approved by the parties for the above-stated purpose. The only conditions precedent to the issuance of a permit to a lessee to use on leased bedding ground any implements or appliances as he may desire are: 1) that the applicant for the permit be a lessee of an oyster lease, and 2) that he furnish a bond payable to the Governor of the State of Florida, to be approved by the Division of Marine Resources, in the sum of $3,000.00, that any implements or appliances as the lessee may desire to use on his leased bedding ground shall not be used on the natural oyster reefs contrary to law.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Natural Resources enter a Final Order and therein grant the application of Olan B. Ward for a special activity license to use mechanical harvesting implements on Oyster Leases No. 525 and 609. DONE and ENTERED this 20th day of April, 1989, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 1989. COPIES FURNISHED: Harold A. McLean Deputy General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Suite 1003 Tallahassee, FL 32399 Frank J. Santry Attorney at Law Granger, Santry, Mitchell & Heath, P.A. Post Office Box 14129 (32317) Tallahassee, FL 32308 Tom Gardner Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000
The Issue Whether Respondent, The MG Herring Group, Inc. (MG Herring), was an employer of Petitioners.
Findings Of Fact Xencom provides general maintenance, landscaping, housekeeping, and office cleaning services to retail facilities. In September of 2015, Xencom entered three contracts for services with CREFII Market Street Holdings, LLC (CREFII). The contracts were to provide maintenance, landscaping, and office cleaning services for a mall known as Market Street @ Heathbrook (Market Street) in Ocala, Florida. Michael Ponds, Xencom’s president, executed the contracts on behalf of Xencom. Two individuals executed the contracts on behalf of CREFII. One was Gar Herring, identified as Manager for Herring Ocala, LLC. The other was Bernard E. McAuley, identified as Manager of Tricom Market Street at Heathbrook, LLC. MG Herring was not a party or signatory to the contracts. MG Herring does not own or operate Market Street. A separate entity, The MG Herring Property Group, LLC (Property Group) operated Market Street. The contracts, in terms stated in an exhibit to them, established a fixed price for the year’s work, stated the scope of services, and detailed payment terms. They also identified labor and labor-related costs in detail that included identifying the Xencom employees involved, their compensation, and their weekly number of hours. The contract exhibits also identified operating costs, including equipment amortization, equipment repairs, fuel expenses, vacation costs, health insurance, and storage costs. The contracts ended December 31, 2016. The contracts specify that Xencom is an independent contractor. Each states: “Contractor is an independent contractor and not an employee or agent of the owner. Accordingly, neither Contractor nor any of Contractor’s Representatives shall hold themselves out as, or claim to be acting in the capacity of, an agent or employee of Owner.” The contracts also specify that the property manager may terminate the contract at any time without reason for its convenience. The contracts permit Xencom to engage subcontractors with advance approval of the property manager. They broadly describe the services that Xencom is to provide. Xencom has over 80 such contracts with different facilities. As the contracts contemplate, only Xencom exerted direct control of the Petitioners working at Market Street. Property Group could identify tasks and repairs to be done. Xencom decided who would do them and how. In 2013, Xencom hired Michael Harrison to work as its Operations Manager at Market Street. He was charged with providing services for which Property Group contracted. His immediate supervisor was Xencom’s Regional Manager. In 2016, that was David Snell. Mr. Snell was not located at Market Street. Property Group also did not have a representative on site. Before Xencom hired him, Mr. Harrison worked at Market Street for Property Group. Xencom hired the remaining Petitioners to work at Market Street under Mr. Harrison’s supervision. Each of the Petitioners completed an Application for Employment with Xencom. The application included a statement, initialed by each Petitioner, stating, “Further, I understand and agree that my employment is for no definite period and I may be terminated at any time without previous notice.” All of the Petitioners also received Xencom’s employee handbook. As Xencom’s Operations Manager and supervisor of the other Petitioners, Mr. Harrison was responsible for day-to-day management of Petitioners. He scheduled their work tasks, controlled shifts, established work hours, and assigned tasks. Mr. Harrison also decided when Petitioners took vacations and time off. His supervisor expected him to consult with Property Group to ensure it knew what support would be available and that he knew of any upcoming events or other considerations that should be taken into account in his decisions. As Operations Manager, Mr. Harrison was also responsible for facilitating payroll, procuring supplies, and managing Xencom’s equipment at the site. Xencom provided Petitioners work uniforms that bore Xencom’s name. Xencom required Petitioners to wear the uniforms at work. Xencom provided the supplies and equipment that Petitioners used at work. Only Xencom had authority to hire or fire the employees providing services to fulfill its contracts with the property manager. Only Xencom had authority to modify Petitioners’ conditions of employment. Neither MG Herring, Property Group, nor Xencom held out Petitioners as employees of MG Herring or Property Group. There is no evidence that MG Herring or Property Group employed 15 or more people. Property Group hired Tina Wilson as Market Street’s on- site General Manager on February 1, 2016. Until then there was no Property Group representative at the site. The absence of a Property Group representative on-site left Mr. Harrison with little oversight or accountability under the Xencom contracts for Market Street. His primary Property Group contact was General Manager Norine Bowen, who was not located at the property. Ms. Wilson’s duties included community relations, public relations, marketing, leasing, litigation, tenant coordination, lease management, construction management, and contract management. She managed approximately 40 contracts at Market Street, including Xencom’s three service agreements. Ms. Wilson was responsible for making sure the contracts were properly executed. Managing the Xencom contracts consumed less than 50 percent of Ms. Wilson’s time. During the last weeks of 2016, Mr. Harrison intended to reduce the hours of Kylie Smithers. Ms. Wilson requested that, since Ms. Smithers was to be paid under the contract for full- time work, Ms. Smithers assist her with office work such as filing and making calls. Mr. Harrison agreed and scheduled Ms. Smithers to do the work. This arrangement was limited and temporary. It does not indicate Property Group control over Xencom employees. Ms. Wilson was Xencom’s point of contact with Property Group. She and Mr. Harrison had to interact frequently. Ms. Wilson had limited contact with the other Xencom employees at Market Street. Friction and disagreements arose quickly between Mr. Harrison and Ms. Wilson. They may have been caused by having a property manager representative on-site after Mr. Harrison’s years as either the manager representative himself or as Xencom supervisor without a property manager on-site. They may have been caused by personality differences between the two. They may have been caused by the alleged sexual and crude comments that underlie the claims of discrimination in employment. They may have been caused by a combination of the three factors. On November 21, 2016, Norine Bowen received an email from the address xencomempoyees@gmail.com with the subject of “Open your eyes about Market Street.” It advised that some employees worked at night for an event. It said that Ms. Wilson gave the Xencom employees alcohol to drink while they were still on the clock. The email said that there was a fight among Xencom employees. The email also said that at another event at a restaurant where Xencom employees were drinking, Ms. Wilson gave Ms. Smithers margaritas to drink and that Ms. Smithers was underage. The email claimed that during a tree-lighting event Ms. Wilson started drinking around 3:30 p.m. It also stated that Ms. Wilson offered a Xencom employee a drink. The email went on to say that children from an elementary school and their parents were present and that Ms. Wilson was “three sheets to the wind.” The email concludes stating that Ms. Wilson had been the subject of three employee lawsuits. On December 14, 2016, Ms. Wilson, Ms. Bowen, and Mr. Snell met at Property Group’s office in Market Street for their regular monthly meeting to discuss operations at Market Street. Their discussion covered a number of management issues including a Xencom employee’s failure to show up before 8:00 to clean as arranged, security cameras, tenants who had not paid rent, lease questions, HVAC questions, and rats on the roof. They also discussed the email’s allegations. The participants also discussed a number of dissatisfactions with Mr. Harrison’s performance. Near the end of a discussion about the anonymous email, this exchange occurred:2/ Bowen: Okay, so I know that David [Snell], I think his next step is to conduct his own investigation with his [Xencom] people, and HR is still following up with John Garrett, and you’re meeting with Danny [intended new Xencom manager for Market Street] tonight? David Snell: Yes. Bowen: To finish up paperwork, and, based on his investigation, it will be up to Xencom to figure out what to do with people that are drinking on property, off the clock or on the clock, you know, whatever, what their policy is. * * * Bowen: So, I don’t know what to make of it. I’m just here to do an investigation like I’m supposed to do and David is here to pick up the pieces and meet with his folks one-on- one, and we’ll see where this takes us. This exchange and the remainder of the recording do not support a finding that Property Group controlled Xencom’s actions or attempted to control them. The participants were responsibly discussing a serious complaint they had received, their plan to investigate it, and pre-existing issues with Mr. Harrison. The exchange also makes clear that all agreed the issues involving Xencom employees were for Xencom to address, and the issues involving Property Group employees were for Property Group to address. At the time of the December 14, 2016, meeting, the participants were not aware of any complaints from Mr. Harrison or Mr. Smithers of sexual harassment or discrimination by Ms. Wilson. On December 15, 2016, Gar Herring and Norine Bowen received an email from Mr. Harrison with an attached letter to Xencom’s Human Resources Manager, and others. Affidavits from Petitioners asserting various statements and questions by Ms. Wilson about Mr. Harrison’s and Mr. Smithers’ sex life and men’s genitalia and statements about her sex life and the genitalia of men involved were attached. Xencom President Michael Ponds received a similar email with attachments on the same day. On December 21, 2016, Mr. Ponds received a letter from Herring Ocala, LLC, and Tricom Market Street at Heathbrook, LLC, terminating the service agreements. Their agreements with Xencom were going to expire December 31, 2016. They had been negotiating successor agreements. However, they had not executed any. Xencom terminated Petitioners’ employment on December 21, 2016. Xencom no longer needed Petitioners’ services once MG Herring terminated the contract with Xencom. This was the sole reason it terminated Petitioners.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a final order denying the Petitions of all Petitioners. DONE AND ENTERED this 11th day of May, 2018, 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 11th day of May, 2018.
The Issue The issues are whether Respondent committed the violations alleged in Petitioner’s Second Amended Administrative Complaint; and, if so, what penalties should be imposed.
Findings Of Fact Based on the evidence adduced at the final hearing, the record as a whole, the stipulated facts, and matters subject to official recognition, the following Findings of Fact are made: The Parties and the Events of August 24, 2019 The Department is the state agency charged with encouraging the development of aquaculture3 in Florida. § 597.003(1), Fla. Stat. “When any qualified person desires to lease a part of the bottom, water column, or bed of any [state waters] for the purpose of growing oysters or clams . . . , he or she shall present to [the Department] a written application ” § 597.010(1), Fla. Stat. Mr. Lee and his father, Robert J. Lee, jointly hold Aquaculture Certificate of Registration No. AQ1529074. On January 5, 2016, they applied to the Department for a state owned submerged land aquaculture lease in the 2 Petitioner’s Exhibit G is a flash drive containing video footage of Officer Travis’s traffic stop and subsequent arrest of Mr. Lee. 3 Section 597.0015(1), defines “aquaculture” as “the cultivation of aquatic organisms.” Section 597.0015(3), defines “aquaculture products” as “aquatic organisms and any product derived from aquatic organisms that are owned and propagated, grown, or produced under controlled conditions.” vicinity of Alligator Harbor in Franklin County, Florida. The lease was to be used for the commercial cultivation of oysters and clams. The Department issued a ten-year lease, Sovereignty Submerged Land Aquaculture Lease No. 19-AQ-1465, to Mr. Lee and his father on February 3, 2016. One provision therein required the lessee to be bound by the current and future versions of the Florida Statutes and the Florida Administrative Code. Another provision stated that a violation of chapter 597 and/or chapter 5L-1 “may be cause for this lease to be terminated without further notice to the lessee and shall result in the forfeiture to lessor of the works, improvements, and shellfish in and upon the leased premises.” On June 15, 2017, Mr. Lee pled nolo contendere to several charges filed in Franklin County, Florida. Two of the aforementioned charges pertained to the criminal offenses of possessing untagged and undersized oysters, and Mr. Lee was adjudicated guilty of all charges. At approximately 3:00 a.m., on August 24, 2019, Officer David Travis of the Florida Fish and Wildlife Conservation Commission was on patrol in Carrabelle, Florida, and traveling west on US-98, 25 miles from Alligator Harbor. He observed a Chevrolet Tahoe pulling a boat4 that had no trailer lights. A Ford Fusion was closely following the Tahoe. Officer Travis then made a U-turn in order to initiate a traffic stop based on the lack of trailer lights and the failure of both vehicles to use their blinkers prior to making two turns. Mr. Lee was driving the Fusion, and a friend of Mr. Lee’s was driving the Tahoe. Upon inspecting the boat, Officer Travis saw four untagged baskets, one blue and three orange. The blue basket was completely full with at least 40 4 The boat was registered to Mr. Lee’s father. pounds of unculled5 oysters. The orange baskets were approximately the same size as the blue basket, and two of the orange baskets were at least 75 percent full with unculled oysters. The third orange basket contained 15 to 20 culled oysters. The boat and the contents therein were wet. Officer Travis found multiple pairs of wet gloves and one pair of wet socks inside a yellow oyster sack at the boat’s stern. At the bow, he found several casting nets that were soaking wet and containing fresh grass, mud, sand, and live crustaceans. Officer Travis also found a mullet in a cooler that appeared to have been recently caught. During an inspection of the Tahoe, Officer Travis found a large, white cooler with a large quantity of culled oysters in a bed of ice. According to Mr. Lee, those oysters were harvested from his Alligator Harbor lease on August 22, 2019, and were intended for personal consumption. Mr. Lee told Officer Travis during the traffic stop that he had taken the oysters described in paragraph 6 from his lease in Alligator Harbor on August 23, 2019, between 10:00 a.m. and 6:00 p.m. Mr. Lee further stated to Officer Travis that he had transported the oysters at issue to his girlfriend’s house in Carrabelle where he had begun to cull some of them. According to Mr. Lee, he and his girlfriend had gotten into an argument, and Mr. Lee decided to take the oysters to his father’s home in order to finish culling them. Mr. Lee and his friend were supposedly driving to Robert J. Lee’s home when Officer Travis pulled them over. Officer Travis arrested Mr. Lee and his friend. Ultimate Findings Count I of the Department’s Second Amended Administrative Complaint alleges that Mr. Lee violated rule 5L-1.007(2) on approximately 5 Wild oysters commonly grow together in clumps. “Culling” refers to the process by which wild oysters are separated from each other. The term can also encompass the cleaning, grading, and sorting of oysters. August 23, 2019, by failing to label containers holding oysters. Neither Officer Travis’s arrest report nor his testimony mentioned any tags on the baskets in the boat or the cooler in the Tahoe. Also, no tags are visible during the footage from Officer Travis’s body camera. While Mr. Lee testified that he had a bulk tag that applied to all of the containers at issue, the undersigned does not find Mr. Lee’s testimony to be credible. Accordingly, the Department proved Count I by clear and convincing evidence. Count II of the Department’s Second Amended Administrative Complaint alleges that Mr. Lee failed to timely deliver oysters to a certified processing facility on approximately August 23, 2019, as required by rule 5L- 1.008(7). The aforementioned rule requires that “shellfish shall be harvested between sunrise and sunset as established by the U.S. Weather Service.” As noted above, Officer Travis observed that the contents inside the boat were wet and fresh, and that evidence convincingly undermines Mr. Lee’s assertion that the oysters at issue were harvested on August 23, 2019, prior to 6:00 p.m. While Mr. Lee asserted that the oysters in question were intended for personal consumption rather than for sale, that assertion is undermined by the large number of oysters Officer Travis observed in the boat during the August 24, 2019, traffic stop. Therefore, the Department proved Count II by clear and convincing evidence. Count III of the Department’s Second Amended Administrative Complaint alleges that Mr. Lee violated rule 5L-3.004 on approximately August 23, 2019, by attempting to transport oysters to a private residence for sorting and washing rather than performing those activities over his lease. As noted above, Officer Travis observed a large quantity of unculled oysters during the traffic stop. Those oysters had not been sorted and washed over Mr. Lee’s lease. Also, the allegation in Count III is consistent with what Mr. Lee told Officer Travis during the traffic stop. Accordingly, the Department proved Count III by clear and convincing evidence. Count IV of the Department’s Second Amended Administrative Complaint alleges that Mr. Lee violated rules 5L-1.008(5)(a) and 5L- 3.007(8)(c) in December of 2018 by harvesting and replanting wild shellfish stock on the submerged lands of his lease. However, the Department presented no clear and convincing evidence that Mr. Lee violated rules 5L- 1.008(5)(a) and 5L-3.007(8)(c). Count V of the Department’s Second Amended Administrative Complaint alleges that Mr. Lee was convicted on June 15, 2017, of possessing untagged oysters in violation of section 597.0041(4). As noted above, Mr. Lee was adjudicated guilty on June 15, 2017, of possessing untagged and undersized oysters. The Department thus proved Count V by clear and convincing evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department impose a cumulative fine of $4,000.00 ($1,000.00 each) for Counts I through III and V. The undersigned also recommends that Aquaculture Certificate of Registration No. AQ1529074, jointly held by Mr. Lee and his father, be revoked. Finally, the undersigned recommends that Sovereignty Submerged Land Aquaculture Lease No. 19- AQ-1465 be terminated with Mr. Lee forfeiting all works, improvements, and shellfish in and upon the lease premises.6 6 Mr. Lee argued that his father’s interest in the Certificate of Registration and the lease at Alligator Harbor should not be extinguished because his father had no involvement with Mr. Lee’s violations. However, Mr. Lee offered no authority to support his argument, and the undersigned’s independent research did not find anything to support Mr. Lee’s position. DONE AND ENTERED this 20th day of November, 2020, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 November, 2020. COPIES FURNISHED: Robert Kevin Lee Post Office Box 28 Carrabelle, Florida 32322 Darby G. Shaw, Esquire Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399 (eServed) Allan J. Charles, Esquire Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399 (eServed) Stephen M. James, Esquire Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 531 Tallahassee, Florida 32399 (eServed) Steven Hall, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 (eServed) Honorable Nicole “Nikki” Fried Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 (eServed)
The Issue Whether Respondents are indebted to Petitioner for produce sold by Petitioner to Respondent, Mo-Bo Enterprises, Inc., and, if so, the amount of the indebtedness.
Findings Of Fact Respondent, Mo-Bo Enterprises, Inc. (Mo-Bo) is a dealer in agricultural products within the meaning of Section 605.15, Florida Statutes. 1/ Mo-Bo is licensed by the Florida Department of Agriculture as a dealer in agricultural products pursuant to Section 604.19, Florida Statutes. Section 604.20, Florida Statutes requires that as a condition of being licensed, an applicant for licensure as a dealer in agricultural products must post a surety bond in the amount of at least $3,000 or in such greater amount as the Department of Agriculture and Consumer Services may require. Respondent, Armor Insurance Company, is Mo-Bo's surety company. Petitioner, a producer of agricultural products, sold to Mo-Bo certain produce in December 1994 and January 1995. For each of the transactions set forth below, Mo-Bo has failed to pay to Petitioner the contract price, despite timely demand for payment. As evidenced by Invoice 56222, Petitioner sold to Mo-Bo on December 6, 1994, a quantity of cucumbers for the sum of $772.50. As evidenced by Invoice 56233, Petitioner sold to Mo-Bo on December 9, 1994, a quantity of produce for the contract price of $3,776.00. This total represents the following: a quantity of xlarge (sic) peppers for the sum of $2,240.00, a quantity of super select cucumbers for the sum of $1,440.00, a quantity of fancy eggplants for the sum of $96.00, and a quantity of snowpeas for the sum of $480.00. As evidenced by Invoice 56242, Petitioner sold to Mo-Bo on December 12, 1994, a quantity of fancy eggplants for the sum of $1,600.00. As evidenced by Invoice 56248, Petitioner sold to Mo-Bo on December 13, 1994, a quantity of produce for the contract price of $5,216.00. This total represents the following: a quantity of xlarge (sic) peppers for the sum of $2,560.00, a quantity of super select cucumbers for the sum of $2,560.00, and a quantity of fancy eggplants for the sum of $96.00. As evidenced by Invoice 56254 Petitioner sold to Mo-Bo on December 16, 1994, a quantity of produce for the contract price of $2,223.75. This total represents the following: a quantity of sun tan peppers for the sum of $723.75 and a quantity of select cucumbers for the sum of $1,500.00. As evidenced by Invoice 56262 Petitioner sold to Mo-Bo on December 20, 1994, a quantity of produce for the contract price of $2,800.00. This total represents the following: a quantity of super select cucumbers for the sum of $2,500.00 and a quantity of fancy zucchini for the sum of $300.00. As evidenced by Invoice 86530A Petitioner sold to Mo-Bo on January 6, 1995, a quantity of xtra (sic) fancy zucchini for the sum of $1,000.00. As evidenced by Invoice 56286 Petitioner sold to Mo-Bo on January 6, 1995, a quantity of xtra (sic) fancy zucchini for the sum of $1,000.00. As evidenced by Invoice 86540A Petitioner sold to Mo-Bo on January 6, 1995, a quantity of xtra (sic) fancy zucchini for the sum of $200.00. As evidenced by Invoice 56290 Petitioner sold to Mo-Bo on January 11, 1995, a quantity of xtra (sic) fancy zucchini for the sum of $2,400.00. Mo-Bo is indebted to Petitioner in the total amount of $20,988.25 for the transactions evidenced by Invoices 56222, 56233, 56242, 56248, 56254, 56262, 86530A, 56286, 86540A, and 56290.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Agriculture and Consumer Services that adopts the findings of fact and conclusions contained herein and orders Mo-Bo Enterprises, Inc., to pay to Petitioner the sum of $20,988.25. The final order should also order Armor Insurance Company to pay this amount, up to its maximum liability under its bond, if Mo-Bo Enterprises, Inc., does not pay this amount. DONE AND ENTERED this 4th day of December, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of December 1995.
