The Issue The primary issue in this case is whether Respondent committed a violation of Section 760.10, Florida Statutes, as alleged, by terminating Petitioner because of her race and age. Respondent claims that Petitioner was terminated for a legitimate business reason, her job performance, and that other employees similarly situated were treated the same way. Petitioner admits that her sales declined, but claims that her performance was sabotaged. She also claims that white, young employees were not fired for similar performance problems.
Findings Of Fact Margarette Dublin, a black female, was born on October 24, 1932. She has a 12th grade education and a high school diploma, but no other formal education. Her work experience has been solely in retail sales. In 1965, she was working as a salesperson at McCrory's in the Big Apple Shopping Center in Titusville, Florida. George Browne, the store manager at Belk Lindsey in Titusville, personally recruited and hired her to work as a sales clerk in the women's ready-to-wear department at his store. In 1972, Dublin was promoted to buyer for women's ready-to-wear when her supervisor, Donna Smith, a white female in her mid-thirties, was terminated for poor performance (failing to stay within her buying limits and declining sales) and alcoholism. In addition to purchasing stock for her department, as buyer, Dublin was responsible for supervising the sales clerks, keeping the department organized and presentable, taking markdowns on the merchandise, and assisting with sales. Over the years, Margarette Dublin built excellent relations with certain customers. She had a pleasing and helpful personality and went out of her way to select items she knew they would like. Some of these women depended on her to establish their wardrobe. They would call her before a trip or special occasion, and she would have a selection ready when they came in. Their husbands would shop in Dublin's department for their gifts, and some would spend several hundred dollars on the clothes and accessories she picked out for them. George Browne was proud of her sales work and would call her when he saw her special customers on the floor. She received Belks' sales club certificates in 1976, 1977, 1980, 1981, 1983, 1984 and 1985, for "outstanding customer service and sales achievement." Margarette Dublin was terminated on February 22, 1986, without notice. She was given 13 weeks severance pay and approximately $23,000.00 as her share in the Belk profit-sharing program. Belk Lindsey Company of Orlando, Inc., owns department stores located primarily throughout the central Florida area. There are Belk stores throughout the southeast, but they are separate corporations. All are served by another separate corporation, Belk Stores Services, Inc., in Charlotte, North Carolina. The Belk stores operate under a merchandising system known as the "retail system," used in various forms by major retail companies in the United States. The purpose of a retail merchant is to buy and sell merchandise at a profit. Under the retail system, appropriate inventory levels are planned. Based on anticipated sales for a period, an open-to-buy account is established to allow the buyer to know how much money is available for additional purchases. By maintaining appropriate inventory levels in relationship to sales, a retailer is able to achieve a turnover in inventory which maximizes his return on the investment in the inventory. As sales are made, the sales dollars are added to the open-to-buy account in order to replace merchandise sold. The retail system uses the phrase, "You buy back your sales." Merchandise that fails to sell freezes the investment; thus markdowns are a major tool to stimulate sales. The retail system has established optimum percentages and schedules for markdowns for different types of merchandise. George Browne, the Titusville Belk store manager, understands the retail system, and in that sense, is a "good" manager. He is white and was born on July 17, 1926. He has approximately 40 years experience with Belk Lindsey and has been manager of the Titusville store since January 1960. He is in charge of the overall operation of the store and supervises the buyers and department managers. The Titusvilie store, with 45-50 employees and approximately $3 million in annual sales, is moderately sized in comparison with other Belk Lindsey stores. Browne does a good job in planning, documentation and working with people, but he has serious problems with taking decisive disciplinary action against employees. He has never single-handedly fired a manager under his supervision. He has difficulty enforcing demands. He recognizes these deficiencies in himself and relies on the advice and assistance of John Land, the Belk Lindsey Vice-President for Personnel. John Land works out of the corporate office in Tampa and has 18 years experience with Belk Lindsey. He functions as an administrative assistant to the corporation's Senior Vice-President, A. J. "Del" Finieri. He oversees the performance of the store managers and is personally familiar with their personnel and with the stores' overall operations. His birthdate is 9/30/33. In the last two years, 1987 and 1988, the Titusville store has had excellent performance. In calendar year 1987, it had the highest percent increase in sales of any other store in its size class among all Belk stores in the southeast. It was among the top twelve of all stores, regardless of class. Prior to 1987, however, the Titusville store's performance was poor. The company was dissatisfied with its sluggish sales since the late 1970's. There were problems with lack of sales, lack of inventory turnover and lack of general profitability. Other stores in the Belk Lindsey group had problems as well, but the performance of the Titusville store was poor compared to the company as a whole. While sales generally increased annually, the increases were smaller than the increases company-wide. The Belk Lindsey store managers meet annually in Tampa in February at the end of the fiscal year. They take inventory and are given their bonuses, based on the performance of their individual store. The February 1985 annual meeting was a jolt to George Browne. His store had a 1.3% increase in sales in the past (1985) fiscal year, compared to the company's overall 6.7% increase. Del Finieri told him that he was tired of defending the Titusville store's poor performance to the Belk family. Browne was told that he would have to take control of his buyers and improve gross margins. Browne had some indication previously that problems existed, but the distinct impression that he got from the 1985 meeting was that his job was on the line. John Land participated in the meeting and confirmed this. A shaken George Browne met with his buyers in Titusville the following day for their annual inventory and bonus meeting. Buyers receive a weekly salary based on the sales volume in their department, but they, too, receive year-end bonuses based on the performance (profit) in their department. At their meeting, they are given a sheet ("P. and L.") with the prior fiscal year's breakout of sales, inventory, gross margin, operating cost, profit and bonus calculations. George Browne attempted to communicate the company's dissatisfaction to his managers. The general message was "my job is on the line, but before I go, some heads are going to roll here." The buyers were each given, orally, their gross margin goals for the 1986 fiscal year (February 1985 - January 1986) Gross margins are computed by subtracting the retail cost of goods sold from the total retail sales and dividing by the sales. The Titusville store did not improve in fiscal year 1986, but rather plummeted to a 12.9% decrease in sales. The company also decreased 2.4% that year. At the February 1986 meeting in Tampa, Del Finieri told George Browne that his store's performance was unacceptable and intolerable. They went through each of the departments, and after discussing the women's department decrease of 18.9%, Browne asked Finieri, "Should we fire her?" Land asked Browne, "Is that what you want?" In the absence of a clear answer, Land asked "Do you want to do it or do you want me to?" Browne responded in stumbling terms that he would like Land to come over to help. John Land came to Titusville on Saturday, February 22, 1986. He and George Browne discussed the possibility of moving Margarette Dublin to sales in a different department. Browne felt the store was too small and said a demotion would not be in the store's best interest. Dublin was at work on Saturday morning and was called in to George Browne's office. John Land did all the talking. He told her that he had bad news, that she was being terminated for a decline in sales. She was at first incredulous, but when Land said they were serious, she became upset and left. She returned later to clean out her desk. Prior to the termination, Margarette Dublin was never specifically told orally or in writing that her job was in jeopardy. Except for a brief period in the 1970's, Belk Lindsey did not have a policy of providing performance evaluations. The company expected its managerial level employees to track their performance through the sales records of their department. These figures were available to buyers in the form of computer printouts prepared monthly. Since the buyers' compensation was based in part on those figures, they were motivated to keep track regularly. Superficially, at least, George Browne and Margarette Dublin had a good relationship. She admits that no manager or official at Belks ever made statements to her regarding her race or age. She called him, "Mr. B"; he called her, "Mar-gar-ee-ta", with a sort of Spanish accent. She knew her sales were declining, but felt that it was a store problem and that if Browne had a problem with what she was doing, he would tell her. John Land spent a lot of time at the Titusville store in 1975. He never told Dublin about problems because he felt it was Browne's job. Whenever he asked her how things were going, she would say, "fine." From time to time, Browne would discuss Dublin's inventory and open-to-buy with her. She attended buyers' meetings out of town and visited other stores. Generally, Browne left purchases entirely up to the buyers so long as they had open-to-buy available. In retrospect, George Browne believes that Margarette Dublin was complacent about the performance of her department. She understood and enjoyed sales work, but did not spend enough time managing her department. She could have earned much higher bonuses if she had spent less time selling and more time with her managerial duties. On several occasions, Browne and women from the stockroom went to the floor to take markdowns on Dublin's merchandise. He did this with other departments as well, but not as much as with the women's department. George Browne was accessible to discuss problems with his buyers. Margarette Dublin claimed that she did not ask for help as he was always in the stockroom. She admitted not questioning practices because the "boss knew best." In retrospect, Margarette Dublin believes that George Browne deliberately sabotaged her performance by refusing to allow her to make purchases, by cancelling her orders and by not giving her the sales help she needed. She felt as long as she worked at Belk that Browne was a good manager, that the morale was good and that she was liked and appreciated. Her opinion has changed during the course of litigation. Given George Browne's concern about his own job and the fact that his own compensation is tied to the performance of his store, the sabotage theory is not credible. It is undisputed that after the memorable meeting in Tampa in February 1985, George Browne took a hard look at his inventory and made a concerted effort to cut back in divisions, such as the women's ready to wear, that were overbought. Browne did cancel Dublin's orders to reduce the inventory. Cancelled orders included statements such as "Dublin, let me know" or "Dublin, suggest you cancel. Let me know by return memo." She never questioned Browne about these nor suggested that the stock was vital to her operation. Although her monthly inventories were available on a twelve month merchandise plan, Dublin was unaware of her inventory and concentrated on her open-to-buy dollars. All buyers are told to stay within their open-to-buy dollars, although on occasion, with Browne's consent, they are allowed to exceed those. Dublin was also allowed to exceed her open-to-buy. At the hearing, Dublin was unable to interpret the twelve month merchandise plan. Although approximately 43% of Dublin's purchases were mandated by Belk's statewide buyers, all store buyers were required to take mandated stock. This allowed the company to take advantage of special prices based on large quantity purchases and to engage in statewide advertising campaigns. The store buyers, including Margarette Dublin, attended buyers' meetings where the purchases were discussed and voted on. The number of sales persons in each department is dictated by that department's volume of sales. Staff allocations are determined in the same manner in each store division, although the percentages vary. When sales declined, the staff hours were cut back. Pat Carr, the office manager, computed the staff hours available for each department. She was never told to deviate from the formula in order to cut back on Dublin's staff. In her direct testimony, Dublin claimed that Pat Carr never explained to her how the payroll worked or how she got her staff. She said she was never told that if she sold more dresses she would get more help. These admissions, as well as her testimony that she was not told when she was hired that her compensation was tied to her sales, and her failure to question Browne about her cancelled orders, confirm Respondent's claims regarding Dublin's lack of initiative, her complacency and her ignorance of the management of retail sales. In fiscal year 1985, Margarette Dublin's department sold $631,691.00; her gross margin was 41.18%, and her profit before year-end expenses was $76,914.00. In fiscal year 1986, her sales dropped 18.9% to $512.532.00; her gross margin was 40.82%, and her profit before year-end expenses was $53,902.00. Her drop in sales was the largest in any Belk Lindsey women's department in 1985 and 1986, with the exception of the Gainesville store, which had a fire in 1985, and was temporarily closed. Immediately after Dublin was terminated, her successor, Anne Gillard, was hired. She had been mentioned by John Land as a replacement when George Browne was in Tampa for the February 1986 annual-meeting. She was the only candidate interviewed for the position. Anne Gillard, a white female, was born on February 14, 1954. She began working for the company in September 1982. At the time that she was hired by George Browne, she was an assistant buyer for two stores in Melbourne. Under the Belk compensation plan, she was making $255.00 base salary per week, $55.00 more than the $200.00 per week that Dublin made. Because the move to Titusville was considered a promotion, her weekly salary was not cut, but she was told by John Land that the extra would come out of her bonus at the end of the year. When that time came, the company was so pleased with her turnaround in the women's department, she was allowed to keep her full bonus. In fiscal year 1987, the first year under Gillard, the Titusville's women's department sales increased 39.4% to $714.686.00. In 1988, they increased another 17.7%, to $848.193. Anne Gillard's gross margin in 1987 was 41.14%, and profit before year-end expenses was $88,193.00. ,The profit, therefore, increased 38.8% over fiscal year 1986. Her inventory increased substantially from a beginning $81,241.00 to $125.626.00 at the end of the fiscal year, but the volume of sales supported the increase, as her profit kept pace with her rate of increase in sales. Gillard's tenure in Titusville has not been entirely problem-free. She has failed to meet her gross margin goal of 44%, and understands that her job is in jeopardy if she does not meet the goal next year. Recently she made a large (over $30,000.00) purchase of stock without George Browne's permission when she had no open-to-buy. She received a written reprimand from John Land informing her that the next violation would result in her immediate termination. Margarette Dublin was not the only buyer in the Titusville store with a substantial sales decline in 1986. Jason New, a white male, over 40 years of age, had a 7.6% decline in his men's department in 1985 and a 12.7% decline in 1986. He, also, was the subject of discussion at the February 1986 company meeting. Finieri did not want to fire him at the same time as Dublin, as New's was the largest department in the store, and the women's and men's departments produced over half of the store's sales volume. Moreover, New had been in the department only about two years, and the company felt he should have a chance to improve. New resigned in 1987 and was replaced by Darrell Pulido, a young (under 35 years) Hispanic. Velda Knight's termination was not considered. She is white and was born September 11, 1927. She is the buyer for the children's department and has been with the store for 24 years. Her sales decline in 1986 was 25.7%, substantially higher than Dublin's. The children's department has a much smaller volume than any other department in the store and is considered a "follower" department. That is, most of the sales in that department are made to customers who are in the store for other purchases. In 1987, after Anne Gillard's 39.4% increase, the children's department increased 16.4%. Other Belk managerial employees have been terminated for poor performance over the years. Dublin's predecessor was, of course, terminated for poor performance and alcoholism. Georgianna Shaw, a buyer in the Ocala store, was terminated in 1986, for a decrease in sales. She is white and was approximately 30 years old at the time of termination. She had been with the company for five years and had been a buyer for about one year. P. Ball is a white male store manager in the Cocoa store and was fifty years old when he was terminated in 1981. He had been employed by the company in 1956. His store had a slightly higher volume than the Titusville store, but had a reputation for bad profits. John Land was informed when Ball had past-due invoices. The company investigated the situation for less than a week and fired the manager without warning. Ruby Secosh, a buyer in the Titusville store, was fired in 1979 for defiance and refusal to stay within her open-to-buy. She is white and was 49 years old at the time of her termination. In the past ten years, approximately 19 management employees, other than Dublin, have been terminated by the Belk Lindsey company for performance related problems. Of these, all 19 are white, and 16 were younger than Dublin. Since 1970, approximately 23 employees, at all levels, have been terminated from the Titusville store. Twenty-two are white and 19 were younger than Dublin. Although white buyers in other Belk Lindsey women's departments had substantial decreases in 1986 and were not fired, the company had valid reasons not to terminate these individuals. Carolyn Wilson, in the Bartow store, had a 13.8% decrease in 1986; Mary Jo Robinson in the Lake Wales store had an 11.1% decrease. Both stores are located in Polk County, an economically depressed area due to problems in the citrus industry and phosphate industry. Polk County's unemployment rate was over twice that of Brevard County in the immediate preceding years. Brevard County was also affected by the freezes and canker in the citrus industry, but at the same time the Brevard County area was enjoying the economic benefit of the space industry's preparation for the Challenger launch. Belk Lindsey has written policies and procedures for establishing employees' base compensation bonuses and staffing patterns. Margarette Dublin's $200.00 per week salary, the same level throughout her fourteen years as a buyer, was consistent with that policy. So also were her bonuses and the staffing patterns in her department. Belk Lindsey, at the time of Dublin's termination, did not have a clear policy with regard to disciplinary actions. Just as the buyers were given considerable autonomy in the operation of their departments, the store managers were given the authority to manage their stores. Some managers were tough and decisive; others, like George Browne, were easy-going. In the absence of gross misconduct or illegal activity, the test of effectiveness of buyers and managers is the bottom line each year: the sales, the profit and the gross margin. George Browne failed that test, but to a greater degree so did Margarette Dublin. The company's willingness to terminate her before further action in the Titusville store was a business decision unrelated to the race or age of this employee. The abruptness and insensitivity of the manner of termination obscures, but does not obviate, that fact.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That Petitioner's Petition for Relief be denied. DONE and RECOMMENDED this 7th day of July 1988, in Tallahassee, Florida. MARY CLARK 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 7th day of July 1988. APPENDIX The following constitute my rulings on the findings of fact proposed by the parties. Petitioner's Proposed Findings of Fact Adopted in paragraph #1. Adopted in part in paragraph's #2 and #6. The fact that she was able to perform to the reasonable satisfaction of her employer is rejected as inconsistent with the weight of evidence that, at the time she was terminated, she was not performing satisfactorily. 3-7. Rejected as contrary to the weight of evidence. 8. Rejected as irrelevant. 9-10. Rejected as unsupported by the evidence. Respondent's Proposed Findings of Fact 1-2. Adopted in paragraph #1. 3. Adopted in paragraph #2. 4-5. Adopted in paragraph #3. 6-7. Adopted in paragraph #6. Adopted in paragraph #19. Adopted in paragraph #21. Rejected as unnecessary. Adopted in paragraph #37. Adopted in paragraph #36. Rejected as cumulative and unnecessary. Adopted in paragraph #37. 15-19. Adopted in substance in paragraph #34. 20-21. Adopted in substance in paragraph #38. 22-25. Adopted in substance in paragraph #35. 26-27. Rejected as unnecessary. 28. Adopted in paragraph #35. 9-30. Adopted in substance in paragraph #20. 31. Adopted in paragraph #33. 32-33. Adopted in paragraph #39. 34-36. Adopted in paragraph #31. 37. Rejected as unnecessary. 38-41. Adopted in substance in paragraph #2&. 42-45. Rejected as unnecessary. 46-47. Adopted in paragraph #23. Adopted in paragraph #25 Rejected as unnecessary. 50-52. Adopted in paragraph #29. Adopted in paragraph #32. Rejected as unnecessary. Adopted in paragraph #12. 56-57. Adopted in paragraph #8. 58. Rejected as unnecessary. 59-60. Adopted in paragraph #22. 61-64. Rejected as unnecessary. 65. Adopted in paragraph #22. 66-75. Rejected as unnecessary. 76. Adopted in paragraph #26. 77-78. Rejected as unnecessary. 79. Rejected as inconsistent with the weight of evidence. The buyers could order as long as they had "open-to-buy". 80-81. Adopted in paragraph #25. 82-93. Rejected as unnecessary. 94-95. Adopted in paragraph #25. 96-97. Rejected as unnecessary 98. Adopted in paragraph #25. 99-103. Rejected as unnecessary. 104-106. Adopted in paragraph #25. 107-116. Rejected as unnecessary. 117-118. Adopted in paragraph #22. 119-122. Rejected as unnecessary. 123-124. Adopted in substances in paragraph #14. 125. Adopted in paragraph #15. 126-128. Adopted in paragraph #16. Rejected as unnecessary. Adopted in paragraph #16. Rejected as unnecessary. The evidence never established that these written goals were given to the buyers. Adopted in paragraph #8. Rejected as irrelevant. Adopted in paragraph #9. Adopted in paragraph #11. COPIES FURNISHED: Susan K. W. Erlenbach, Esquire 503 South Palm Avenue Titusville, Florida 32796 G. Thomas Harper, Esquire Suite 300 4905 West Laurel Street Tampa, Florida 33607 Margaret Agerton Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Donald A. Griffin Executive Director Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Dana Baird General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570
The Issue Whether Respondent committed the offenses set forth in the Administrative Actions in these consolidated cases, and, if so, what penalty should be imposed.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: At all times material hereto, Fowler Liquors was licensed by the Division, having been issued license number 46- 04643, Series 3-PS. The license permits Fowler Liquors to make packaged sales of beer, wine, and liquor at its convenience store located at 3450 Fowler Street in Fort Myers. In an Administrative Action dated July 11, 2002, the Division charged Samer Barghouthi, the majority owner and principal officer of Fowler Liquors, with selling alcoholic beverages to a person under the age of 21 on May 19, 2002. Fowler Liquors conceded there were no disputed issues of fact and requested that the matter be resolved in an informal hearing. In a Final Order dated October 25, 2002, the Division ordered Fowler Liquors to pay a fine of $1,000 and serve a seven-day license suspension. The Administrative Action regarding the May 19, 2002, sale arose from an incident in which 20-year-old Tony Cubello was beaten, robbed, and shot to death in the parking lot of Fowler Liquors after making a purchase in the liquor store. The murder of Mr. Cubello was the subject of articles in the Fort Myers newspaper. The Fort Myers Police Department investigated Mr. Cubello's murder and came to believe that Samer Barghouthi could identify the killers but was refusing to cooperate. The Fort Myers police requested the assistance of the Division in securing Mr. Barghouthi's cooperation. The Division commenced an investigation, interviewing young people who had known Mr. Cubello. During the course of these interviews, the Division became aware that Fowler Liquors was widely reputed as a place where underage people could buy alcoholic beverages. During its investigation, the Division also learned that the Department of Revenue had a tax warrant against Fowler Liquors, and that the City of Fort Myers had issued citations against Fowler Liquors for hours-of-sale violations. During its investigation, the Division sent an underage operative into Fowler Liquors to attempt to purchase alcoholic beverages. The operative was wearing a hidden microphone, allowing the Division's officers to hear what transpired in the liquor store. As the sale was about to be completed, a van full of construction workers pulled up outside the store. The person working behind the counter at Fowler Liquors said that there were "cops" in the van, and declined to complete the sale to the operative. On June 14, 2002, Captain Tania Pendarakis, district supervisor for the Division's Fort Myers office, met with Samer Barghouthi. She informed Mr. Barghouthi that the Division might consider filing administrative charges rather than criminal charges against Fowler Liquors, if Mr. Barghouthi would cooperate with the Fort Myers Police Department's murder investigation. During this conversation, Mr. Barghouthi assured Captain Pendarakis that he was going to start checking identifications and stop selling alcoholic beverages to underage children. The next day, June 15, 2002, David P. Green, then sixteen years old, entered Fowler Liquors early in the evening to buy beer. In the liquor store, Mr. Green recognized other people whom he knew from his high school. Mr. Green testified that it was widely known at his school that underage people could purchase alcohol at Fowler Liquors. Mr. Green purchased a twelve-pack of Budweiser Light beer. He tendered ten dollars cash to the cashier and asked if the store sold "dip," i.e., finely ground tobacco. The cashier told him no, but offered to sell Mr. Green cigarettes. The cashier did not ask Mr. Green his age, nor request any identification from Mr. Green to prove that he was at least 21 years of age. At the hearing in this matter, conducted nearly nine months after the fact, Mr. Green looked no older than sixteen. When he purchased the beer at Fowler Liquors, Mr. Green made no attempt to alter his appearance or otherwise disguise the fact that he was only sixteen years old. When Mr. Green exited Fowler Liquors, he saw a police officer parked in a police cruiser directly in front of him. Mr. Green put his twelve-pack of beer down next to a garbage can, then got into his car and drove away. Several of Mr. Green's friends were also in his car. The police officer who witnessed this scene, Officer Bradley J. Ades of the Fort Myers Police Department, testified at the hearing. Officer Ades testified that, because of the ongoing problems the police were having with Fowler Liquors, he stopped by there to check it out as part of his normal duties. As he pulled into the parking lot, he saw a "very young white male" walking out the front door of Fowler Liquors. The boy was carrying a twelve-pack of Budweiser Light beer. Officer Ades stated that he was surprised not to see the boy's father follow him out of the store, because the boy looked so young. The boy got into his car and drove away. Officer Ades followed him for a little more than one block, then pulled him over. Officer Ades interviewed Mr. Green and photographed him. Mr. Green admitted that he bought the beer in Fowler Liquors, and that he and the other boys in his car intended to drink it. Because the sale of alcohol to a minor is a misdemeanor, and he did not witness the sale, Officer Ades could not make an arrest. The next day, he forwarded to the Division the information concerning his stop of Mr. Green. Agent Brian D. Sauls of the Division contacted Mr. Green and asked him to come to the Division's offices for an interview. Mr. Green agreed. Agent Sauls conducted a photographic suspect lineup, and Mr. Green identified Samer Barghouthi as having been behind the counter at Fowler Liquors at the time he purchased the twelve-pack of Budweiser Light on June 15, 2002. The incident involving the sale to Mr. Green formed the basis of the Administrative Action that led to DOAH Case No. 03-0431. Fowler Liquors did not contest the evidence that a sale was made by Fowler Liquors to Mr. Green, an underage person, on June 15, 2002, or that Samer Barghouthi was present at the counter when the sale was made. On the evening of June 17, 2002, Justin C. Bender, then eighteen years of age, entered Fowler Liquors to buy beer. Mr. Bender testified that he had purchased alcohol at Fowler Liquors more than 40 times and had never been asked for any identification. Mr. Bender stated that he has seen friends and other people whom he knew from school inside Fowler Liquor Store. Mr. Bender also testified that he had discussions with other people about Fowler Liquors being a place where underage people could purchase alcoholic beverages. On June 17, 2002, Mr. Bender purchased a twelve-pack of Budweiser beer and a quart of Heineken beer, then left the store. Mr. Bender purchased the beer from Steve Barghouthi, the father of Samer Barghouthi. Steve Barghouthi did not ask Mr. Bender his age, nor request any identification to prove that he was at least 21 years of age. Mr. Bender had made no effort to alter his appearance or make himself look older than eighteen. On June 17, 2002, Anthony J. Smith, the chief of law enforcement for the Division, visited the Fort Myers office. He asked Captain Pendarakis to inform him of cases her office was involved in, and the subject of Fowler Liquors was discussed. After dinner that evening, Chief Smith drove by Fowler Liquors to take a look at the store. As he drove through the parking lot, Chief Smith saw Mr. Bender exiting the store with his beer. Chief Smith stopped him to determine how old he was. Mr. Bender produced a valid driver's license that showed he was eighteen years old. Chief Smith searched Mr. Bender for fake identification, but found none. Chief Smith asked Mr. Bender if he would be willing to return to Fowler Liquors and make another purchase that Chief Smith could observe. Mr. Bender agreed to do so. Chief Smith telephoned Captain Pendarakis and asked her to bring marked cash for Mr. Bender to purchase beer. Captain Pendarakis arrived with the cash. She went into Fowler Liquors to ascertain whether it would be safe for Mr. Bender to return to the store. After Captain Pendarakis determined the store was safe, Mr. Bender entered the store. Chief Smith and Captain Pendarakis watched the transaction from across the street. They had a clear view through the window of the liquor store. They observed Mr. Bender get a carton of beer, put it on the counter, pay for it, and walk out the door. After Chief Smith and Captain Pendarakis viewed the sale to Mr. Bender, they went into the store to arrest the person who had made the sale, Samer Barghouthi. Mr. Barghouthi was arrested and taken to the Lee County Jail. The incident involving the sale to Mr. Bender formed the basis of the Administrative Action that led to DOAH Case No. 03-0217. Fowler Liquors did not contest the evidence that a sale was made by Fowler Liquors to Mr. Bender, an underage person, on June 17, 2002, or that Samer Barghouthi, the licensee, had made the sale. In mitigation, counsel for Fowler Liquors argued that license revocation would be unfair because Samer Barghouthi is no longer involved in the operation of the business, having signed over his interest to his uncle, Shahir Daghara. Counsel contended that Mr. Daghara acted to remove Samer Barghouthi from the premises of Fowler Liquors as soon as he learned that Mr. Barghouthi was making sales to underage persons. This contention is not credible. The two sales that are the subject of these proceedings occurred nearly one month after the murder of Mr. Cubello, which was widely known to have occurred after Mr. Cubello purchased alcoholic beverages in Fowler Liquors. The two sales also occurred after Mr. Barghouthi had been interviewed by Captain Pendarakis about sales of alcoholic beverages to minors. Moreover, Officer Cecil Pendergrass of the Fort Myers Police Department testified that Samer Barghouthi was still working at Fowler Liquors on July 1, 2002, two weeks after his arrest for selling alcoholic beverages to Justin Bender. There is no record evidence that Mr. Barghouthi transferred his interest in the business to Mr. Daghara. At most, the Division's files indicate that at some point, Fowler Liquors represented to the Division that Mr. Daghara had taken a 49 percent interest in the business. The file also contains an undated "Current Licensee Update Data Sheet" on which Samer Barghouthi's name is crossed through, but Fowler Liquors offered no sworn testimony to explain the significance of this document. Further, even if Mr. Daghara did take over the business, there is no evidence that he took any steps to remove Mr. Barghouthi from the premises of Fowler Liquors, or did anything else to address the problem of selling alcoholic beverages to minors. Officer Pendergrass, who is the community coordinator for the area of Fort Myers that includes Fowler Liquors, also testified that he has been called to Fowler Liquors on a regular basis to deal with code enforcement problems, fights between family members, drug sales, robberies in the parking lot, and civil problems between the owners over refrigeration equipment. Officer Pendergrass testified that the police department's statistics establish that Fowler Liquors is the nucleus of criminal complaints in the area, and that in the last year, the Fort Myers Police Department has had over 300 calls for service to Fowler Liquors.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco enter a Final Order revoking the license of Barghouthi Enterprises, Inc., d/b/a Fowler Liquor Store. DONE AND ENTERED this 5th day of June, 2003, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 2003. COPIES FURNISHED: Michael Martinez, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Captain Tania Pendarkis 4100 Center Point Drive Suite 104 Fort Myers, Florida 33916 John Kyle Shoemaker, Esquire Post Office Box 1601 Fort Myers, Florida 33902 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Peter Williams, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether the Respondent engaged in a discriminatory employment practice contrary to Chapter 760, Florida Statutes, by paying the Petitioner less that other similarly situated employees and by discharging the Petitioner based upon the Petitioner's race, national origin age and disability?
Findings Of Fact The Petitioner is a black male of Haitian extraction. His date of birth as given in his personnel records (Exhibit 7) is June 16, 1977. The Respondent is an employer within the statutory definition that engages in the rental of trailers, trucks, and moving supplies and sales and installation of equipment used in towing trailers. The Petitioner did not present any evidence regarding disability or age. The Petitioner was initially employed by the Respondent in 2002 as a customer service representative making $6.50/hour. Several month later, he received a raise to $7.00/hour, and before the end of the year, he received another raise to $7.50/hour. In the first half of 2003, the Petitioner was moved to the position of Assistant Moving Center Manager and his salary increased to $8.50/hour. In the fall, he received a raise to $9.25/hour and was given another raise to $11.50/hour before year's end. Testimony was received from Arthur Williams, who was the store manager and familiar with the operations of the company, although at the time of Petitioner's termination, he was new to the position and "in training." The pay for personnel employed by the Respondent is established nationwide and is based upon cost of living factors for an area. The wages paid to the Petitioner were slightly above the average for an area like Tallahassee, and reflected the Petitioner's hard work. His pay was in line with others doing similar work. The Petitioner alleged Clint Barrineau was paid more than he was paid. The evidence indicted that Barrineau had held in his career with the company, every position in its stores, including area manager. Barrineau had left the company for personal reasons, and upon his return in July 2003, was hired at $9.00/hour. Subsequently, he was promoted to the position of Hitch Professional at $11.50/hour. Notwithstanding Barrineau's prior experience, generally, it take less time for a person to be promoted as a hitch professional than as an assistant moving center manager reflecting hitch-related sales as an income center in the business. Both Barrineau and the Petitioner were making the same salary when the Petitioner was terminated. The Petitioner testified that he was denied promotion to store manager on two occasions. The Petitioner did not establish his qualifications for this position; however, evidence was received that the first person employed in that position was Henry Barnes a white male, and the second was Arthur Williams, a black male. Williams was brought in from outside the company; however, he had significant experience in retail sales management. The Petitioner's primary claim related to his discharge. The evidence presented indicated that on May 4, 2004, the Petitioner closed the store as the general manager on duty. As the manager on duty, it was his job to prepare the daily receipts for deposit in the bank, and retain a fixed amount for business operations on the next day. The Petitioner did this, and the bank deposit was made. On the following day, Arthur Williams, the store manager, arrived with Chuck Newell, the Field Relief Manager, who was helping to train Williams. The two men opened the store, which was duly locked, and Williams disarmed the alarm system. Williams opened the store safe, and counted the money. There was supposed to be $1000 kept in the safe for store operations. The count revealed only $800. Williams and Newell recounted and then search the safe and cash registers to ensure it had not been left in one of these places; however, the money was not present. Having assured themselves by checking and rechecking that the money was not present, they proceeded to open the store for business with the money on hand, and then check with the bank. They physically drove to the bank and checked the nightly deposit, which was correct, the deposit receipt having tallied with the money deposited. Williams and Newell returned to the store and called the alarm system center. This center is operated by U-Haul, and each authorized employee has his or her own code for disarming the alarm upon entering the store. If the code is not entered, or if the premise is broken into, the alarm goes off. The alarm center reported that there were no entries into the building after it was locked the previous night until Williams opened it o that morning. There was no evidence of the building being burgled. When the Petitioner reported to work on May 5, 2004, Williams confronted him about the missing money. The Petitioner did not have an explanation. As the manager closing the store, the Petitioner was solely and personally responsible for the deposit and for securing the money left on the premises. Although personnel were permitted to make up cash drawer shortages, the money in question was "store" money, and the amount involved was more significant that typical cash drawer shortages. Having determined that there was in fact a cash shortage and that the Petitioner was the person responsible for the accountability and security of the funds, Williams made the determination to discharge the Petitioner. Williams, although in training, was the sole individual responsible for the decision to discharge the Petitioner. As mentioned above, Williams is a black male. Williams testified further regarding other persons whom he had discharged. Ms. B. Heaulskamp was discharged for refusal to work her assigned schedule. Mr. Zak White, a white male, was discharged for a shortage in his cash drawer. Heaulskamp was provided a letter of termination; however, this was Williams' first termination, and he was advised it was company policy not to provide termination paperwork. He did not provide the Petitioner or White with such paperwork. Williams hired the Petitioner's replacement, William Westry, who was a black male. Williams has hired two Haitians since the Petitioner's termination, both of whom were still employed at the store.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Florida Commission on Human Relations enter its final order dismissing the Petitioner's claims. DONE AND ENTERED this 26th day of May, 2005, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of May, 2005. COPIES FURNISHED: Gueslin Vincent Post Office Box 20123 Tallahassee, Florida 32316 Jeremy P. Hertz, Esquire For & Harrison LLP 300 South Orange Avenue, Suite 1300 Orlando, Florida 32801-3379 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Petitioner, James A. Wade, Jr., began employment with Respondent, Li'l General Stores, Inc. (Li'l General), on October 4, 1979. He had responded to an advertisement in the Orlando, Florida, newspaper for applicants for its management candidate program, one of the criteria for which was a college degree. There was no other training called for as a prerequisite, though an examination was required. Petitioner was a college graduate with a bachelor of science degree in Business Administration. The examination Petitioner took showed he lacked adequate retail experience, but he was kept in the program with the understanding he would be retested within one year. Though Petitioner requested retesting of his superior several times (he contends at least six), he was never retested, and whenever he requested retesting, he was told the prior failure to do so was an oversight and that someone would be up to test him in a few days. No one ever came to do so, however, even though Respondent's division manager over Petitioner, Val Draper, admits he recommended that Petitioner be retested. Petitioner worked for Respondent for two and one-half years as a store manager, even while awaiting retesting, having overall supervision of the stores in his charge. His immediate supervisor during the majority of this time was Ed Curtis, who, Petitioner contends, rated him on several occasions. All of these ratings, he contends, were good even though, for the most part, they were oral ratings not reduced to writing. There is, however, included in Respondent's Composite Exhibit A, a "Training Supervisor Orientation Program Training Report" dated January 20, 1981, and signed by Harry Economou, a training supervisor for Respondent, which bore "good" ratings (the highest available) in all four rated areas and the additional comment, "qualified for training supervisor." It is also noted that a payroll change form signed by Ed Curtis on December 17, 1980, when Petitioner was given a promotion and pay raise from $4.40 per hour to $4.80 per hour, bears the comment, "James has been doing a good job as manager at Store 1402-69 and is being transferred to Store 1402-44 (later properly identified as Store 1402-09), as the training store manager." During all this time, claims Petitioner, the position he wanted in the management candidate program was still open, as evidenced, he states, by the fact that the recruitment advertisements were still being run in the commercial paper and the position was listed in the internal newsletter received in the store. The management candidate program trains personnel for employment as district managers. The store manager positions he held do not come within the program. During the last two weeks of his employment with Respondent, Petitioner worked for a Ms. Porter, who replaced Mr. Curtis as District Manager, the position he had wanted. She came to his store several times during this period, at which times Petitioner asked her about his retesting. He finally told her if he was not retested, he would go to the "EEOC." It was at this point, he contends, his troubles began. Within a short while of his former comment to Ms. Porter, his store was audited on January 5, 1982, by Respondent's personnel, who found a shortage of in excess of $1,800.00. On the same day, Ms. Porter gave Petitioner a memorandum on the security of the cigarette cabinet, referring to a discussion they had had the week previous on the same subject. This memorandum also reflects two handwritten notations dated January 8, 1983, that the cabinet was found unlocked at 6:00 p.m. that date. Petitioner contends that in the oral discussion with Ms. Porter about the cigarette cabinet, she merely told him to keep it locked. He contends he was not told then that any disciplinary action would be taken against him for failing to do so. That argument is not persuasive, however, as the Respondent's Employee Rules of Conduct clearly reflect "automatic discharge" as the penalty for any "gross negligence which results in substantial cash loss," and permit suspension or termination for "failure to control inventory shortages." Though there is no direct evidence Petitioner was given a copy of this, presumably he was. As to the audit shortage, Petitioner contends that, based on the inventory methods utilized by Respondent, there is no way to show what items are missing--only a dollar amount and that the failure to control security of the cigarette cabinet could not have accounted for the $1,800.00 loss because his physical count of the cigarettes done when Ms. Porter talked with him the first time it was left open revealed the only cigarettes not in there were an off brand which had been sold. Mr. Draper, on the other hand, indicates that shortages can generally be identified through a comparison of section counts to the reports of previous audits. Cigarette and beverage cooler counts are done in the stores on a daily basis. Audits are conducted by a professional auditor who physically counts the store (inventory) and compares that count with the Division figure. While there was no showing by direct evidence that this was done here, again, presumably a regular procedure was followed here. Petitioner also attacks the accuracy of the shortage found in the audit through his testimony that approximately ten days before the audit, he had trouble with the cash register in the store, and for approximately four days, he had no working cash register. Petitioner contends he reported this to Ms. Porter and also called the supplier, who, he contends, called the Respondent corporation to get permission to put in a noncompany register while the broken one was being fixed. This offer was reportedly refused by Respondent. Again, there is no direct evidence that this happened with the recitation coming only from Petitioner, and Mr. Draper contests this. The ultimate responsibility for insuring a store has a cash register lies with the District Manager, and it is Draper's policy to either have the machine fixed on the spot or replaced with a loaner from Respondent's stocks. To the best of Draper's knowledge, this store was not left without a register for four days. He cannot, however, equivocally state what Petitioner contends is not true. Weighing the probabilities, however, the scale here tilts in favor of Respondent. It is not likely that a firm so large as Respondent, whose operation is so open to theft and pilferage as this is, would allow one of its stores, which evidence shows does from $15,000 to $30,000 per month in business, to go without a cash register for 4 1/2 days. Petitioner contends, as an additional basis for his complaint, that he did not receive a pay raise during the 2 1/2 years he was employed by the company and that all he received was a gas premium and pay for a management trainee. He further contends that all of the Caucasian store managers received higher pay raises than he. This latter contention is rebutted in documentation submitted by Respondent without objection by Petitioner which indicates that of 20 store managers listed, only four were earning more than Petitioner and one of those had prior convenience store experience. As to the former, it appears that on December 11, 1980, Petitioner was given an hourly pay raise from $4.40 to $4.80. The increase is identified as "salary" and "hourly," not to gas premium, and is justified by his transfer to another store and assignment as a training store manager. With the increase in responsibility goes the increase in pay. Petitioner contends that when he was discharged, he was given no reason for that action by Ms. Porter or Mr. Draper when he went to Draper's office to request one. He was terminated on January 12, 1982, by Ms. Porter, who on the Employee Action form listed as reasons therefor violations of company policy and continued poor performance, inter alia. It is not known whether these reasons were communicated to Petitioner, but from the state of the evidence, it may be concluded he was not. However, Ms. Porter's reasons for taking the termination action are clearly outlined in her memorandum relating to Petitioner found as the first attachment to Respondent's Composite Exhibit, admitted without objection of the Petitioner. This memo reflects a lack of leadership by Petitioner in correcting his employee attitude and performance and substandard performance in both store condition and the accomplishment of paperwork. The factor culminating in Petitioner's discharge is the repeated failure to control the cigarette cabinet, and Petitioner's contention that it was his assistant manager who was the culprit does not excuse him. As the manager, he was the responsible party and must bear the consequences of his failure to shoulder that responsibility. This situation is not offset by the fact that he had previously warned Ms. Porter that one of his employees had a record of dishonesty and was prevented from discharging this person, who, it must be added, was working in the store during the period of the inoperative register. 13,. Mr. Wade also contends that on one occasion, he was advised (by whom is unknown) that he must transfer to a different store located in a tough, black neighborhood because he is black. He refused the voluntary reassignment and states that while he was subsequently on vacation, he was involuntarily transferred there and told that if he wanted to stay with the company, he would have to accept the assignment.
Recommendation Based on the foregoing, it is, therefore, RECOMMENDED THAT the Petition of James A. Wade, Jr., be denied. RECOMMENDED this 29th day of May, 1984, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 29th day of May, 1984. COPIES FURNISHED: Diana Kilpatrick, Esquire Post Office Box 2009 Daytona Beach, Florida 32017 Mr. Phillip S. Youtz Personnel Manager Gold Coast Region Li'l General Stores, Inc. 4191 North State Road 7 Lauderdale Lakes, Florida 33319 John R. Ficarro, Esquire Post Office Box 13198 Tampa, Florida 33681 Aurelio Durana, Esquire General Counsel Florida Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, Florida 32303 Mr. Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, Florida 32303
The Issue The issue in this case is whether Respondent violated section 760.08, Florida Statutes, of the Florida Civil Rights Act of 1992 (“FCRA”), by denying Petitioner the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation on the basis of Petitioner’s handicap.
Findings Of Fact The Parties Petitioner Smith is an adult male who resides in Sunrise, Florida. Respondent 7-Eleven is a Texas corporation, with its headquarters located at 3200 Hackberry Road, Irving, Texas. Respondent owns, operates, and franchises convenience stores in Florida under the trademarked name “7-Eleven.” Procedural Background On or about March 28, 2018, Smith filed a Public Accommodation Complaint of Discrimination with FCHR, alleging that 7-Eleven, Inc., through its agent, violated section 760.80 by denying him full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation on the basis of handicap. After conducting an investigation, FCHR issued a Determination: Reasonable Cause on or about September 19, 2018, finding reasonable cause to believe that an unlawful practice occurred. Smith timely filed a Petition for Relief on October 16, 2018, asserting that 7-Eleven had discriminated against him in a place of public accommodation on the basis of handicap. This charge, as set forth in the Petition for Relief, is the subject of this de novo proceeding. Events Giving Rise to this Proceeding On September 16, 2017, Smith arrived at the Store to purchase gasoline. He was accompanied by Mrs. Smith and his daughter, Rochelle Smith. At that time, the Store was a franchised 7-Eleven convenience store and gas station. HA&A Enterprises, Inc. (“HA&A”), owned by Sumera Shahzadi (“Shahzadi”), was the franchisee. Immediately upon arriving at the Store, Smith went inside to use the restroom, while Mrs. Smith remained outside to pump gas. Smith testified, credibly, that he had a stroke and, as a result, walks slowly with a visible limp. He testified that he sometimes, but not always, uses a cane to assist him in walking. He was not using a cane when he entered the Store on September 16, 2017. Upon entering the Store, Smith discovered that the restroom was locked. Smith asked Shahzada Hussain (“Hussain”), who was working behind the counter, for the restroom key so that he could use the restroom. Hussain told him that the restroom was out of order and did not give him the key. The evidence does not establish that Hussain was aware of any disability or handicap that Smith may have.4/ Because Smith was unable to use the restroom, he was forced to urinate outside, in the front of the Store. Smith had difficulty pulling down his pants, and he urinated on himself. He testified, credibly, that other persons were present at the Store and saw him urinate on himself. Mrs. Smith assisted Smith in pulling up his pants, then went inside the Store and asked Hussain for the key to the restroom. Hussain gave her the key. She went into the restroom and found it to be in working order. She also noticed that no “out of order” sign was posted on the restroom door. Mrs. Smith then took numerous photographs of various documents on the wall of the Store. These documents included: a Broward County Local Business Tax Receipt for the period of October 1, 2016, to September 30, 2017, showing the business name as “7-Eleven #35031” and the business owner as “7-Eleven Inc. & HA&A Enterprises, Inc.”; the 2016 Florida Annual Resale Certificate for Sales Tax issued to 7-Eleven Store #35031, HA&A Enterprises, Inc.; a Florida Department of Environmental Protection Storage Tank Registration Placard, 2015-2016, issued to 7-Eleven, Inc., Store #35031; a National Registry of Food Safety Professionalism certificate issued to Shahzada Hussain; a Florida Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, Temporary License/Permit; a document titled “Notice,” with the name “7-Eleven” handwritten as the business authorized to engage in the money transmission business; a Department of Agriculture and Consumer Services Liquefied Petroleum Gas License issued to 7-Eleven Store #35031; and a ServSafe Certification issued to Sumera Shahzadi. The photographs, along with a written description of each document depicted in the photographs, were admitted into evidence at the final hearing. At that time, Mrs. Smith also photographed the Store’s restroom door, on which signs reading “MEN” and “WOMEN” were hung. Each of these signs depicted a wheelchair symbol, presumably indicating that the restroom was handicapped- accessible. The restroom door did not have a sign posted indicating that it was out of order. Mrs. Smith also photographed Shazhadi and Hussain as they were working behind the counter of the Store. Mrs. Smith referred to Shazhadi and Hussain as “the owners” of the Store in her testimony at the final hearing regarding the September 16, 2017, incident.5/ Shortly after the incident, the police arrived at the Store on an unrelated matter. At the direction of the police officer investigating the unrelated matter, the Smiths did not purchase gasoline at the Store that day, and went to another store to purchase gas. Mrs. Smith testified that she frequently patronized the Store, both before and after the September 16, 2017, incident. As noted above, Smith credibly testified that other persons present at the Store saw him urinate on himself. Smith is a member of the clergy of a local church and, thus, is a well-known person in his neighborhood, where the Store is located. The credible evidence establishes that Smith was extremely embarrassed and humiliated, and experienced emotional distress as a result of having urinated on himself in public view. He testified that this incident so embarrassed him that he may move from the community or from the state. No evidence regarding any quantified or quantifiable injury or damages that Smith may have incurred as a result of the incident was presented. On or about November 14, 2017, the Smiths filed a complaint regarding their September 16, 2017, experience at the Store through 7-Eleven’s complaint hotline. Mrs. Smith testified that in one of the telephone conversations with the 7-Eleven corporate office, they were given an incident claim number. On or about November 19, 2017, Mavis Steffan, the 7-Eleven corporate field consultant for the subgroup of 7-Eleven stores that includes the Store, contacted the Smiths and spoke to them regarding the September 16, 2017, incident at the Store. Mrs. Smith testified that when the Smiths spoke with Steffan on November 19, 2017, she (Steffan) told them that on the date of the incident, the Store was a private franchise, and that on October 23, 2017, the Store “became corporate”——meaning that 7- Eleven, Inc., began operating the Store. Steffan apologized for the incident, invited the Smiths to patronize the Store again, and told them that Smith was free to use the restroom at the Store. Relationship between the Store and 7-Eleven Steffan testified at the final hearing regarding the relationship between the Store and 7-Eleven, as it existed on September 19, 2017. 7-Eleven and HA&A entered into a 7-Eleven, Inc. Florida Individual Store Franchise Agreement (hereafter, “Franchise Agreement” or “Agreement”), effective March 23, 2016, regarding the Store. The Franchise Agreement terminated on October 23, 2017, and, as of that date, 7-Eleven, Inc., began operating the Store.6/ Therefore, the Store was a franchised store on September 19, 2017, the date of the incident. As discussed above, HA&A was the franchisee. Pursuant to the Franchise Agreement, HA&A was an independent contractor. The Agreement provided that the franchisee——here, HA&A——controlled the manner and means of the operation of the franchised store, and exercised complete control over and responsibility for the conduct of its agents and employees, including the day-to-day operations of the franchised store. The Agreement expressly provided that the franchisee’s agents and employees could not be considered or held out to be agents or employees of 7-Eleven, and could not incur any liability in the name of, or on behalf of, 7-Eleven. The Agreement further provided that all employees of the franchised store were solely those of the franchisee, and that no actions taken by the franchisee, its agents, or its employees would be attributable to 7-Eleven. As part of the Franchise Agreement, HA&A also agreed to comply with 7-Eleven’s Operations Manual (“Manual”). Provisions in the Manual stated that the franchisee was solely responsible for setting the policies and procedures to operate his or her store in accordance with the laws of the legal jurisdiction in which the store was located, and that the franchisee was solely responsible for the actions of its employees while on the job. Additionally, training materials provided by 7-Eleven to franchisees for use in training franchisee employees expressly informed those employees that they were not “in any way considered to be an employee, agent[,] or independent contractor of 7-Eleven, Inc.,” and that 7-Eleven did not “assume any liability for providing you these training materials.” Consistent with these provisions, Steffan testified that the franchisee——here, HA&A——was solely responsible for the overall operations of the Store, including supervising, hiring, firing, promoting, and disciplining Store employees. HA&A also was solely responsible for enforcing workplace rules, policies, and procedures for the Store. Based on this evidence, it is determined that HA&A was solely responsible for the actions of its employees and agents, including Hussain’s actions on September 16, 2017, toward Smith. Stated another way, the evidence establishes that 7-Eleven was not responsible for Hussain’s actions in the Store, including his actions on September 16, 2017, toward Smith while he (Smith) was in the Store.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief. DONE AND ENTERED this 12th day of March, 2019, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 2019.
Findings Of Fact Applicant, Ester Woods Vickery, applied for a beverage license for the premises known as "Vickery's Grocery" located one mile south of Bear Creek on U.S. Highway 231, Bay County, Florida. Said application was denied by the Petitioner for the following reason: "Husband of applicant who has a direct or indirect interest In the business has been convicted of felonies in the past 15 years." Respondent requested a hearing contending that she is the sole owner of the business and that her husband has no direct or indirect interest in the business and is merely one of her paid employees. The Petitioner contends that the business was bought using funds from an account of Mrs. Vickery, the money of which was obtained from the sale of property owned jointly by Mr. and Mrs. Vickery. The Petitioner further contends that it is a man's obligation to support his wife and that Mr. Vickery's sole support is his work with Vickery's Grocery; that the conviction of Mr. Vickery of felonies during the past 15 years which involved the sale of "moonshine liquors" makes it mandatory under Section 561.15 and Section 561.17, Florida Statutes, that the application for a beverage license be denied. It was admitted by the Respondent that Esther Woods Vickery is married to a person who has been convicted of felonies in the past 15 years. It was also admitted by the Respondent that Mr. and Mrs. Vickery owned jointly property from which timber was cut and sold and the profit was deposited in a savings account in the name of Mrs. Vickery. The savings account from which money was drawn to purchase Vickery's Grocery was in Mrs. Vickery's name alone. Said savings account was established at some time before the purchase of Vickery's Grocery. The business was purchased from Mr. Hickman, the owner of the premises, who testified that he had leased the premises to Mrs. Vickery; that he had made all negotiations concerning the lease and the selling of the business with Mrs. Vickery and that he had not dealt in any way with Mr. Vickery in regard to the sale of the property. Mr. Hickman lives near the grocery business and testified that Mrs. Vickery runs the business herself. Mr. Vickery, the husband of the Respondent, is shown on the payroll to be on the payroll of Mrs. Vickery and draws a specified salary payment for work in the business which involves the sale of gas and oil and well as groceries. The Hearing Officer further finds: That the Respondent, Esther Woods Vickery, is the sole owner of the establishment known as "Vickery's Grocery" and that the husband of Mrs. Vickery is an employee of the establishment and has no direct or indirect interest in the business.
Recommendation Approve the application for a beverage license of Esther Woods Vickery for the business premises "Vickery's Grocery", providing she meets all other requirements than those which are the subject of the disapproval of her application and of this hearing. DONE and ORDERED this 7th day of May, 1976. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Charles Tunnicliff, Esquire Staff Attorney Division of Beverage The Johns Building Tallahassee, Florida 32304 Franklin R. Harrison, Esquire 406 Magnolia Avenue Panama City, Florida 32401 Charles Nuzum, Director Division of Beverage Department of Business Regulation The Johns Building Tallahassee, Florida 32304
The Issue Whether Petitioner was discriminated against by reason of national origin.
Findings Of Fact From October 5, 1997, through October 4, 1998, Santiago was employed by Eckerd's as a Front End Associate and a Drug Clerk. During that time, Santiago worked in two of Eckerd's Miami stores under the supervision of store managers Paul Harris (Harris) and Susanna Peralta (Peralta). Santiago was a difficult employee to schedule in that she limited the hours during which she was available to work. For that reason it was necessary for her to work in two different stores; still Eckerd had trouble finding enough work hours for her at times when she was available. In a final effort to secure adequate hours for Santiago, in July 1998 Eckerd placed her in its store managed by Peralta. At that time, 17 of 29 store employees (approximately 59 percent) were Hispanic, including store manager Peralta. During the time Petitioner worked at the Eckerd from which she transferred, 18 of 44 associates (approximately 41 percent) were Hispanic. Santiago claims that Harris was hostile towards her because she is Hispanic. Harris and Peralta unequivocally denied any discriminatory actions or intent with respect to Santiago. Their demeanor under oath was serious and straightforward, and the undersigned credits their testimony. Santiago expressed her strong view that she was the victim of a vendetta by Harris rooted in discrimination, but there was no evidence or exhibits which would provide the type of corroborating detail one would expect to find if a retail manager in fact ran his store in a manner prohibited by law. Unrebutted testimony presented by Eckerd establishes that Santiago was terminated in good faith because she failed to report to work for three consecutive days. Her testimony suggests that Santiago may have been genuinely confused regarding whether she was in fact scheduled to work on those days. Assuming Santiago had made an honest error in not reporting for work, such a misunderstanding would not furnish a basis to conclude that she was terminated on account of her national origin.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order dismissing this case with prejudice. DONE AND ENTERED this 30th day of October, 2002, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 2002. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Danielle R. May, Esquire Eckerd Corporation, d/b/a Eckerd Drugs 8333 Bryan Dairy Road Largo, Florida 33777 Adda Santiago Carlton Bay Condo 2821 Northeast 163rd Street Apartment 2T, Sunny Isle Boulevard Miami Beach, Florida 33160 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue This matter concerns an allegation of unlawful discrimination which has been prosecuted in accordance with the Human Rights Act of 1977, as amended. In particular, the Petitioners contend that Respondent unlawfully discriminated against Petitioner Sterling because of his race, by actions on October 27, 1978, when Respondent allegedly demoted Sterling from the employment position, grocery manager, to the employment position, clerk, and transferred him from its Store No. 4305 to Store No. 4325, in the process reducing Sterling's salary from $375.00 to $265.00 per week. CASE HISTORY On November 7, 1978, Petitioner Sterling filed a Charge of Discrimination against Respondent before the Jacksonville Community Relations Commission, setting forth the allegations as contained in the Issues statement to this Recommended Order. Subsequent to that time, the matter was reviewed by the Equal Employment Opportunity Commission and on December 22, 1978, referred to the Florida Commission on Human Relations for further action. Following review, a Determination of Cause was made on September 29, 1981, and an Amended Notice of Determination of Cause was forwarded on October 5, 1981. On November 9, 1981, a Notice of Failure of Conciliation was filed by the Florida Commission. Petitioner Sterling filed a Petition for Relief with the Florida Commission on December 7, 1981. On December 17, 1981, the Florida Commission on Human Relations, through its Clerk, filed a Notice of Commissioners of Filing of Petition for Relief from Unlawful Employment Practice; Notice to Respondent of Filing of Petition for Relief from Unlawful Employment Practice and Notice of Transcription. On that same date, the matter was transmitted to the Division of Administrative Hearings for consideration of the dispute in the keeping with the provisions of Section 120.57, Florida Statutes, and Rules 90-9.08(5) and 90-8.16(2), Florida Administrative Code. Upon receipt of the case by the Division of Administrative Hearings, the matter was assigned to the undersigned Hearing Officer; answer was made to the Petition on January 7, 1982, and a formal hearing was conducted on March 2, 1982. All parties attended the hearing and were represented by those counsel set forth in the Appearances section to this Recommended Order. Petitioner Commission did not offer witnesses or items of evidence; however, counsel for the Commission did participate to the extent of examining witnesses. Petitioner Sterling testified and offered three items of evidence which were received. Respondent offered as witnesses Marlyn Bexley, Grocery Manager for Respondent in its Store No. 4307; William Emmons, District Manager for Respondent, and John Sheehan, President of Albertson's Southco and Senior Vice-President of Albertson's, Inc. (Respondent presented one item of evidence which was admitted and returned to the Respondent for Respondent to transmit to the Hearing Officer, post-hearing. That item has not been received by the Hearing Officer following the hearing.) Petitioner Commission, in the person of counsel, has submitted proposed findings of fact. Petitioner Sterling has submitted a post-hearing brief and proposed findings of fact and Respondent has submitted a post-hearing memorandum. In addition, Respondent has submitted a supplemental memorandum, which by its nature attempts to expand evidence presented in this cause and to do so without permission from the Hearing Officer. The Respondent's supplemental memorandum is therefore disregarded. The proposed findings of fact, Petitioner Sterling's brief and Respondent's original memorandum have been reviewed prior to the entry of this Recommended Order and to the extent that they are consistent with the Recommended Order they have been utilized. To the extent that those matters are inconsistent with this Recommended Order, they are hereby rejected.
Findings Of Fact Petitioner Sterling who is Black, was employed by the Respondent in March, 1975, in the position of stocker, at a rate of pay of $4.30 per hour. He had taken this job after being employed in the retail grocery business in the State of Texas for Buddies Super Market. He had worked for seven (7) years for the Texas grocery chain and at the end of his tenure with that organization, filled the position of store manager. Sterling's initial job with Albertson's was in Respondent's Store No. 4304 in Altamonte Springs, Florida. He continued his employment in that position until July, 1975, when he was promoted to the position of assistant grocery manager. (The position, assistant grocery manager, is the initial step in management level employment positions and these individuals and other managers share in any success of the retail enterprise by bonus awards. In a retail grocery store in the Respondent's chain, a person in Petitioner Sterling's position would be promoted from assistant grocery manager to grocery manager to unit director, also known as store manager, if that employee were to follow the normal management promotion cycle. In addition to the position of stocker, there are certain other non-management positions such as grocery clerk; and grocery, deli, bakery, produce and front-end department heads who are employed within an Albertson's grocery store. There are also an assistant drug manager and drug manager who are part of the management team in an Albertson's retail outlet who deal with merchandising other than grocery items.) After Petitioner Sterling had worked for a period of several months in the position of assistant grocery manager in the Altamonte Springs store, a decision was reached by officials within Albertson's to move Sterling to a new store that was being opened in the Orlando, Florida, area at Colonial Boulevard, Respondent's Store No. 4310. This decision was reached based upon the condition of the store in which Sterling had been serving as assistant grocery manager and specifically on the belief that his performance vis-a-vis the condition of that store was not in keeping with acceptable standards for performance on the part of management employees. Sterling was transferred to the new store in an effort to rectify his performance. After being involved in the process of opening a new store, shortly after the new store was opened the Respondent was terminated from his employment with Albertson's, based upon his job performance which was felt to be unacceptable. There was no indication in the course of the hearing that the lateral transfer from Altamonte Springs to Colonial Boulevard and the subsequent termination followed any series of written or oral reprimands. The termination occurred sometime in late October or early November, 1975. Approximately two weeks after his termination Sterling was rehired and began working as a grocery clerk in Respondent's store in Winter Park, Florida. The terms of his reemployment included an indication on the part of Albertson's that Sterling's opportunity for advancement into management position would be inhibited, based upon Sterling's past performance as assistant grocery manager with Respondent. Sterling worked several months in the Winter Park store and then moved to Jacksonville, Florida, and was employed in Albertson's Store No. 4307 at Merrill Road and Townsend Boulevard in Jacksonville, Duval County, Florida. Sterling was subsequently transferred to Respondent's Store No. 4305 in Jacksonville, Florida, where he was promoted to the position of assistant grocery manager in January, 1977. There ensued a series of raises and on March 17, 1978, Sterling was made grocery manager in that store. Sometime around the first part of October, 1978, John Sheehan, President of Albertson's Southco, was made aware through a statistical study, that Store No. 4305 was not operating at a level of performance which was acceptable to Respondent. To get a better understanding of the circumstance in that store, Sheehan dispatched David Schwartz, a company vice-president, to inspect the store, and this inspection occurred on October 4, 1978. The inspection took place shortly before a vacation taken by the Petitioner Sterling on October 9, 1978, for the purpose of attending the delivery of Sterling's second child which occurred on October 10, 1978, and which delivery required a cesarean section to be performed on Sterling's wife. Schwartz did not give testimony in the course of the hearing and it was not established by competent evidence what Schwartz' impression was on the subject of the store's condition; however, it was established in the hearing that the condition of the grocery store on October 4, 1978, and at other times in October, 19-78, related to cleanliness of the store was not one of filth as has been suggested by Petitioner's Exhibits Nos. 2 and 3, admitted into evidence; which are respectively, a memorandum of reprimand and a memorandum of demotion directed to Sterling, for events that took place in October, 1978. While Sterling was home on leave during the week October 10 through 16, 1978, he left in charge of the grocery department Marlyn Bexley, his assistant grocery manager. Bexley had started with Albertson's as a management trainee in Store No. 4305 at a time when Sterling was an assistant grocery manager in that store. Bexley has progressed in the Respondent's employ to the point now of being the grocery manager in Respondent's Store No. 4307. Bexley, during the week of Sterling's absence, was involved in preparing for a "reset" which is an adjustment of merchandise on the shelves of the store. Bexley allowed the shelves in the store to be reduced in inventory in anticipation of the "reset" and upon Sterling's return on October 16, 1978, the merchandise condition on the shelves in the subject store was not at an acceptable level in terms of availability. The events of October in Store No. 4305 also included the promotion of the store manager, David Jerry, by his lateral transfer to a larger store to fill the position of store manager in that new facility and the promotion of the drug manager in Store No. 4305 to the position of store manager. That individual was Chuck Smith. These matters related to the employees Jerry and Smith occurred subsequent to the October 4, 1978, inspection by Schwartz, within one or two days of that event. Moreover, during the period of time of Petitioner Sterling's absence from the store for purposes of attending the birth of his second child, several personnel changes were made at Store No. 4305, other than those involving Messrs. Jerry and Smith. This included changes of department level supervisors or their assistants within Store No. 4305; related to the deli, bakery, receiving and front-end sections within Store No. 4305. These individuals were transferred to the new store on Blanding Boulevard where David Jerry was to be the store manager. Sometime around October 17, 1978, the aforementioned "reset" took place and was expanded from a three aisle "reset" to an overall grocery section "reset." The expansion of the "reset" process was promoted to an extent by the fact that the grocery department at Store No. 4305 had "over bought" certain merchandise items. Sterling was aware of the problems that existed following his return to work concerning grocery inventory and related matters and had begun dealing with those difficulties, when the store was reinspected on October 19, 1978, by one William Emmons, District Supervisor for the Respondent, newly appointed at that time. Emmons had been promoted to that position in October, 1978. This inspection by Emmons took place around the time of the quarterly inventory conducted in Store No. 4305 and subsequent to the time of the "reset" which had occurred a couple of days before. As a result of the inspection, Petitioner Sterling was given a written reprimand, a copy of which is Petitioner's Exhibit No. 2, admitted into evidence. That document accurately depicts certain deficiencies in the grocery section for which Sterling had responsibility, to include inventory shortage, lack of supervision in the various departments within the grocery portion of the store and "buggies" which had been left in the back of the store following the "reset." Although there was some disarray in the store proper, it did not reach the magnitude of being filthy as contended in the reprimand. Sterling acknowledged the written reprimand and signed the reprimand document as reflected, this signature being made in October, 1978. Emmons also told Sterling that Sterling would have a week to rectify the deficiencies that had been noted. At the time of this disciplinary action, Emmons knew that the "reset" had occurred a couple of days before; however, he did not know that Bexley had deliberately allowed the inventory or stock to be depleted in contemplation of the "reset." Additionally, Emmons was aware of the company policy of Albertson's of not looking favorably on vacations around the time of taking inventory. Emmons did not know that the vacation had been taken due to the Petitioner's wife's physical condition. Emmons was unaware of the transfer of departmental personnel from Store No. 4305 to the new store at Blanding Boulevard. Finally, Sterling had indicated that he felt the reprimand was unfair and Emmons had indicated that, notwithstanding Petitioner Sterling's absence, the store should not have been allowed to reach its unsatisfactory condition. Emmons made known the disciplinary action of reprimand to Bob Miller, a managerial supervisor for Albertson's who in turn made Sheehan, the President of Albertson's Southco, aware of this reprimand. Sheehan then instructed Miller to inspect the store another time and on October 22, 1978, Miller made an inspection of Store No. 4305 with special emphasis on Sterling's performance. Afterward, Miller had conversations with Sheehan and Emmons, and Petitioner was demoted on October 22, 1978, from grocery manager to stock clerk. He took the position of stock clerk on October 26, 1978, at a store other than Store No. 4305 and continued to work as a stock clerk until his termination by the Respondent in December, 1980. The memorandum of demotion, a copy of which may be found as Petitioner's Exhibit No. 3, gave as reasons for the demotion, as tardiness, ineffective management of associated departments within the grocery portion of Store No. 4305, out-of-stock conditions and shelves and moldings being. dirty. All of these observations, with the exception of the matters pertaining to the shelves and moldings are factually accurate as borne out by the testimony in the course of this hearing. None of the management employees, with the exception of Sterling, who were employed in Respondent's Store No. 4305 during October, 1978, were disciplined by Respondent for their actions in that period. All of those management employees were Caucasian. The management responsibility in retail grocery stores of the Respondent, to include Store No. 4305, as required in October, 1978, made the unit or store manager responsible for personnel matters and the statistical performance of the individual store in terms of sales. This unit manager was akin to a personnel director. The grocery manager in the store was responsible for the "day-to-day" operations of the grocery section of the Albertson's grocery store, which has an affiliated drug section, which is not the responsibility of the grocery manager. The assistant grocery manager had subordinate responsibility for the grocery operations within the store. The Respondent did not discipline Chuck Smith, the unit manager in charge at the time of Sterling's demotion, based upon supervisor Emmons' perception that Smith had not been in his position as store manager for a sufficient period of time to be held responsible for the shortcomings within the grocery section at Store No. 4305. Bexley was not disciplined based upon Emmons' belief that he had not been properly trained by Sterling and for that reason could not be held responsible for the aforementioned problems that occurred in the grocery section at Store No. 4305 which contributed to Sterling's demotion. These decisions regarding the employees Smith and Bexley, as well as the decision to demote Sterling, were made in the face of Respondent's express policy of promoting and demoting employees on the basis of favorable results in terms of economic success in the market place. There have been other demotions which occurred related to Albertson's employees which were reported in the hearing. These demotions involved, primarily Caucasians and one oriental. The demotion of Sterling from grocery manager to stock clerk involved a sufficient number of steps to be considered outside the norm; however, there were indications of other demotions involving more than one step or grade. Testimony in this case indicated that Sterling's demotion was in the nature of a three or four step demotion. In addition, demotions of the other employees discussed in the course of the hearing came about following numerous reprimands. In the instances of the other employees and in Sterling's demotion of October, 1978, the employees were disciplined based upon the employer's perception that the worker had not performed at a satisfactory level. At the time of Sterling's demotion in October, 1978, there were five or six Blacks out of 95 to 100 total employees in management positions within Albertson's Southco grocery stores in October, 1978, none of which were in the position of store manager. During this period, Respondent had an Affirmative Action Plan. Other than the findings of fact found herein related to Sterling's salary levels while employed with Respondent, and as those levels may be reflected in Petitioner Sterling's Exhibit No. 1, admitted into evidence; no proof was offered on the subject of possible damages incurred by Sterling due to the action of the Respondent in his demotion. The damages were neither plead for in the Petition for Hearing, presented in the course of the hearing nor argued through written argument and suggested facts offered by Petitioner Sterling. Moreover, Sterling has not requested reinstatement. Therefore, no determination will be made on the subject of damages in the provision to this Recommended Order dealing with conclusions of law.
The Issue Whether Respondent violated Section 561.42(5), Florida Statutes.
Findings Of Fact At all times relevant and material to this proceeding, the Respondent, J. J. Taylor Companies, Inc. (Taylor), held license number 23-07951, series JDBW, authorizing it do to business as a distributor of alcoholic beverages. Taylor's place of business is located at 3505 North West 107th Street, Miami, Florida. On August 21, 1996, the Petitioner, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (Division), placed Miami Supermarket, a vendor holding alcoholic beverage license number 23-02486, on the cash on delivery list. The Division mailed written notice to Taylor and to Miami Supermarket. On August 28, 1996, the Division placed Miami Supermarket on the no sale list, barring all distributors from making sales of alcoholic beverages to Miami Supermarket. Miami Supermarket remained in this status until January 2, 1997. At the time Miami Supermarket was placed on the no sale list, the Division mailed notice of Miami Supermarket's status to Taylor. Each week for the four months following the placement of Miami Supermarket on the no sale list, the Division mailed written notice to Taylor that Miami Supermarket was on the no sale list. Written notice was also mailed to Miami Supermarket. Omar F. Revelo, the owner of Miami Supermarket, had no knowledge that his business was on the no sale list. Mr. Revelo does not recall receiving the notices from the Department. He speaks very little English, and it is very unlikely that if he did receive the notices in English that he could read them. Unaware that Miami Supermarket was on the no sale list, Mr. Revelo continued to buy alcoholic beverages from Taylor and other liquor distributors from August 28, 1996, to December 31, 1996, when he was advised by a special agent of the Division that Miami Supermarket was on the no sale list. When Taylor received the notice that Miami Supermarket was placed on the cash only list on August 21, 1996, the information was conveyed to the employee responsible for entering the data into the company's computer system. The next week when Taylor received the notice that Miami Supermarket was on the no sale list, the data entry employee failed to change the cash only entry to a no sale entry. Although Taylor received additional notices that Miami Supermarket remained on the no sale list, the data entry employee continued to fail to change the cash only entry to a no sale entry. According to Alfonso Cueto, the President and General Manager of Taylor, the Division sends out deletion notices when it changes the status of a vendor; therefore, when Miami Supermarket was changed from cash only to no sale Taylor would have received a notice deleting Miami Supermarket from the cash only list. According to Mr. Cueto, the data entry employee did not change the cash only entry when Taylor received other notices that Miami Supermarket was on the no sale list because the employee keyed the August 28th deletion notice improperly; therefore, he did not receive another deletion notice from the Division because the status of Miami Supermarket remained the same. Mr. Cueto's testimony concerning how the computer error occurred is unrebutted. Taylor uses a preorder system which requires that a salesperson be responsible for taking orders for alcoholic beverages from the vendor the day prior to the delivery, rather than have the delivery truck drivers take the orders and make the deliveries. The salesperson must check the computer to determine the status of the vendors before they process an order. Additionally, the salespersons are told to look at the premises of the vendor to determine if other brands of alcoholic beverages are being sold. During the period August 30, 1996, through December 27, 1996, Taylor made at least 36 cash only sales of alcoholic beverages to Miami Supermarket. The computer system at Taylor listed the status of Miami Supermarket as cash only during this time period, and the salespersons observed other brands of alcoholic beverages being sold at Miami Supermarket during this time period. Thus, the salespersons had no reason to know that Miami Supermarket was on the no sale list. As a safeguard against the salespersons violating the Division's rules, Taylor requires the salespersons to pay any fines against Taylor which are attributable to their actions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the administrative action against Respondent, J. J. Taylor Companies, Inc., d/b/a J. J. Taylor Distributing. DONE AND ENTERED this 11th day of July, 1997, 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 11th day of July, 1997. COPIES FURNISHED: Miguel Oxamendi, Senior Attorney Department of Business and Professional Regulation 1940 North Monroe Street, Northwood Centre Tallahassee, Florida 32399-1007 Louis J. Terminello, Esquire 2700 Southwest 37th Avenue Miami, Florida 33133 Major Jorge R. Herrera 8685 Northwest 53rd Terrace, Suite 100 Miami, Florida 33166 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Richard Boyd, Director Department of Business and Professional Regulation Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399
