The Issue Whether Respondent violated Section 112.3148(3), Florida Statutes, by committing the acts alleged in the Order Finding Probable Cause and, if so, what penalty is appropriate.
Findings Of Fact Respondent, John Pollet (Pollet), served continuously as Mayor of Kissimmee from November 1, 1991, until he was suspended in 1995. As Mayor, Pollet was a voting member of the City Commission and signed contracts the city entered. At all times relevant to the instant case, George Geletko was employed as the Municipal Marketing Manager with Waste Management, Inc. Mr. Geletko's primary responsibility was to make sure that contracts between Waste Management, Inc., and its municipal customers were properly administered. Waste Management, Inc., had a contract with the City of Kissimmee to provide waste disposal services that was scheduled to expire in 1994. However, on September 6, 1994, the City of Kissimmee renewed its contract with Waste Management, Inc. Mr. Geletko was responsible for administering Waste Management's contract with the City of Kissimmee and was the contact person between Waste Management, Inc., and the City of Kissimmee. As the Municipal Marketing Manager for Waste Management, Inc., Mr. Geletko sought to influence or encourage the Kissimmee City Commission and Pollet to do business with his company. In order to accomplish this, Mr. Geletko, in his position with Waste Management, Inc., took actions that directly or indirectly furthered or communicated his intention to influence or encourage the Kissimmee City Commission and Pollet to do business with Waste Management, Inc. In the spring of 1994, during a telephone conversation, Pollet asked Mr. Geletko if Waste Management, Inc., had any tickets to an Orlando Magic basketball game. Mr. Geletko did not respond directly to Pollet's inquiry, but stated that "whatever we did, we would have to be in compliance with all ordinances and the State Code of Ethics." Pollet told Mr. Geletko that he would get back with him. However, no further inquiry regarding Orlando Magic tickets was made by Pollet to Mr. Geletko. At the time Pollet asked about Orlando Magic basketball tickets, he believed Mr. Geletko had taken former City Commissioner Richard Herring to a Magic game at some point prior to his inquiry. Pollet testified that the inquiry regarding Orlando Magic basketball tickets was made based on personal political considerations involving former City Commissioner Herring, who was sometimes an ally and sometimes a foe of Respondent in matters relating to City politics. However, Pollet gave no such explanation to Mr. Geletko during their conversation involving Orlando Magic basketball tickets. Based on Pollet's inquiry, Mr. Geletko felt that Pollet was asking him for tickets to the Orlando Magic game. Mr. Geletko, as a representative of Waste Management, Inc., gave gifts, including golf games and meals, to Pollet both before and after Respondent asked him about the Orlando Magic Tickets. Pollet's approach to Mr. Geletko was a solicitation for tickets. At all times relevant to the instant case, Charles Voss was a vice president with Camp, Dresser, and McKee, an environmental engineering firm. Camp, Dresser, and McKee had two contracts with the City of Kissimmee to provide engineering services. The City of Kissimmee and Camp, Dresser, and McKee entered into one such contract on November 2, 1993. Mr. Voss was responsible for marketing Camp, Dresser, and McKee's services to the City of Kissimmee. Mr. Voss sought to influence or encourage the Kissimmee City Commission and Pollet to do business with Camp, Dresser and McKee. To this end, Mr. Voss took actions that directly or indirectly furthered or communicated his intentions to influence or encourage the Kissimmee City Commission and Pollet to do business with Camp, Dresser, and McKee. In March 1993, Pollet called Mr. Voss and asked him if Camp, Dresser, and McKee had any tickets to the Nestle Invitational Golf Tournament. Mr. Voss told Pollet that his firm did not have tickets to the 1993 Nestle Invitational Golf Tournament. Based on Respondent's question, Mr. Voss thought Respondent was asking him for tickets to the golf tournament. Pollet testified that he asked about the passes because he wanted to know if Mr. Voss was going to attend the tournament. According to his testimony, Pollet thought that if Mr. Voss were going to the golf tournament, they could meet there. Notwithstanding his testimony, Pollet never asked Mr. Voss whether he was going to the tournament. In both 1994 and 1995, Pollet accepted passes to the Nestle Invitational Golf Tournament as gifts from Mr. Voss and Camp, Dresser, and McKee. Mr. Voss gave these golf tournament passes to Pollet because Pollet expressed an interest in the tournament in 1993. Pollet did not pay for the golf tournament passes he received from Mr. Voss in 1994 and 1995. Mr. Voss, as a representative of Camp, Dresser, and McKee, had given Pollet various gifts in the past. Except for partial payment for certain tickets, Pollet has never paid for any of these gifts. Respondent's approach to Mr. Voss was a solicitation for tickets to the 1993 Nestle Invitational Golf Tournament. Respondent admits he has accepted gifts from both Waste Management, Inc., and Camp, Dresser, and McKee.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order and Public Report be entered finding that Respondent, John Pollet, violated Section 112.3148(3), Florida Statutes; imposing a civil penalty of $1,000.00 per violation; and issuing a public censure and reprimand. DONE and ENTERED this 1st day of November, 1996, in Tallahassee, Florida. CARLOYN S. HOLIFIELD 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) 921-647 Filed with the Clerk of the Division of Administrative Hearings this 1st day of November, 1996. COPIES FURNISHED: Eric S. Scott, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Mark Herron, Esquire 216 South Monroe Street Tallahassee, Florida 32301 Bonnie Williams, Executive Director 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, General Counsel 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Kerrie J. Stillman Complaint Coordinator Post Office Drawer 15709 Tallahassee, Florida 32317-5709
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all relevant times, respondent, Passport Internationale, Inc. (Passport or respondent), was a seller of travel registered with the Department of Agriculture and Consumer Services (Department). As such, it was required to post a performance bond with the Department conditioned on the performance of contracted services. In this case, petitioner, Cassandra Cook, has filed a claim against the bond for $349.50 alleging that Passport failed to perform on certain contracted services. On April 20, 1989, petitioner received a solicitation telephone call from Global Travel inviting her to purchase a travel certificate entitling her and a companion to a five-day, four-night cruise to the Bahamas. Global Travel was a Tennessee telemarketeer selling travel certificates on behalf of Passport. Petitioner agreed to purchase the certificate and authorized a $349.50 charge on her credit card payable to Global Travel. Thereafter, petitioner received her travel certificate, brochure and video, all carrying the name, address and logo of Passport. In order to use the travel certificate, it was necessary for petitioner to fill out the reservation form with requested dates and return the form, certificate, and a deposit to Passport. Before doing so, petitioner repeatedly attempted to telephone Passport's offices in Daytona Beach to obtain additional information and to inquire about the availability of certain travel dates but was never able to speak to anyone because of busy lines. She then requested a refund of her money and simultaneously filed a complaint with the Department in January 1990. In responding to the complaint in February 1990, Passport denied liability on the ground petitioner was obligated to "deal directly with the company that has charged her credit card as that is who has her money." By then, however, Global Travel was out of business. To date, petitioner has never received a refund of her money.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner against the bond of respondent be granted, and she be paid $349.50 from the bond. DONE AND ENTERED this 12th day of December, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 1994. COPIES FURNISHED: Cassandra Cook 3818 Firdrona Drive, N. W. Gig Harbor, Washington 98332 Julie Johnson McCollum 2441 Bellevue Avenue Daytona Beach, Florida 32114 Robert G. Worley, Esquire 515 Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, Esquire The Capitol, PL-10 Tallahassee, Florida 32399-0810
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all relevant times, respondent, Passport Internationale, Inc. (Passport or respondent), was a seller of travel registered with the Department of Agriculture and Consumer Services (Department). As such, it was required to post a performance bond with the Department conditioned on the performance of contracted services. In this case, petitioner, R. Jane Frazier, has filed a claim against the bond in the amount of $813.00 alleging that Passport failed to perform on certain contracted services. On June 4, 1990, petitioner purchased a travel certificate from Jet Set Travel, a Maryland telemarketeer authorized to sell travel certificates on behalf of Passport. The certificate entitled the holder to fourteen nights' accommodations in Hawaii plus roundtrip airfare for two persons, with all travel arrangements to be made by Passport. The certificate carried the name, address and logo of Passport. During petitioner's dealings with Passport's agent, it was represented to her that for $89.00 per night, she would receive a two bedroom, oceanfront condominium. This constituted a misrepresentation on the part of the agent since the rooms were actually more expensive. Relying on that representation, petitioner authorized a $328.00 charge on her credit card payable to Jet Set Travel to be used as a credit on services purchased in Hawaii. She also paid a $50.00 refundable deposit to Passport. In August 1990, petitioner contacted Passport regarding travel dates and was told the charge on her room would be $124.00 per night, and not $89.00 per night as promised by Jet Set Travel. In charging this amount, Passport relied upon its brochure which priced the accommodations in the range of $89.00 to $124.00 per night, with the highest price for the type of room selected by petitioner. Fearing that she would lose her $328.00 fee and $50.00 deposit if she did not pay the higher amount, petitioner reluctantly agreed to send a cashier's check in the amount of $1,406.00 to Passport, which represented fourteen nights' lodging at $124.00 per night. Finally, before she departed on the trip, petitioner was required to pay another $25.00 miscellaneous fee to Passport, the basis for which was never explained. When petitioner arrived in Hawaii on October 11, 1990, she discovered that her assigned accommodations for the first week at the Kona Reef were unavailable because Passport had failed to make a reservation. Accordingly, she was forced to purchase five nights accommodations at the Kona Reef for $524.02 plus two nights at another facility for $248.00. The accommodations for the second week were satisfactory. After petitioner brought this matter to the attention of Passport, she acknowledged that she received a refund check for the first seven nights' stay, although she says she can't remember if it was for all or part of her out-of- pocket costs. Passport's contention that its books reflect an entry that she was paid for the entire amount was not contradicted although neither party had a cancelled check to verify the actual amount of the payment. Passport's testimony is accepted as being the more credible on this issue. Because petitioner relied on a misrepresentation by Passport's agent as to the type and price of accommodations being offered, she is entitled to be reimbursed her $50.00 refundable deposit (which was never returned), the $25.00 miscellaneous fee paid on September 26, 1990, for which no justification was shown, and the difference between the originally agreed on price ($89.00 per night) and the actual price ($124.00) for the last seven nights accommodations, or $245.00. Accordingly, she is entitled to be paid $320.00 from the bond.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner against the bond of respondent be granted, and he be paid $320.00 from the bond. DONE AND ENTERED this 13th day of December, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 1994. COPIES FURNISHED: R. Jane Frazier 3070 Meadow Lane Mobile, Alabama 36618-4634 Michael J. Panaggio 2441 Bellevue Avenue Daytona Beach, Florida 32114 Robert G. Worley, Esquire 515 Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, Esquire The Capitol, PL-10 Tallahassee, Florida 32399-0810
Findings Of Fact On September 20, 1977, Victor Sosa, at the time an employee of petitioner, and Leroy Patten, then as now a field agent for the Department of Commerce, visited respondent's premises. A Mr. Chavez told the investigators that Jose Isidro Guillamo, respondent's sole corporate officer, was not on the premises and could not be reached. In response to Mr. Patten's questions, Mr. Chavez said he was ignorant of details about respondent's workmen's compensation insurance. Mr. Sosa asked Mr. Chavez to produce invoices reflecting purchases of alcoholic beverages. Mr. Chavez replied that most of the invoices were at an accountant's office, but joined Mr. Sosa in looking for invoices behind a counter at which customers sat. In the course of the search, Mr. Sosa noticed a clipboard hanging from a nail. The clipboard contained guest checks used as lottery slips. Nearby drawers yielded paper napkins similar employed. The search never uncovered any invoices on the premises. At no time did petitioner give respondent permission to store invoices off the premises. On September 20, 1977, and continuously until March 20, 1978, respondent did not maintain in force workmen's compensation insurance for its employees. On September 20, 1977, no notice of workmen's compensation insurance coverage was posted on the premises.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner suspend respondent's license for thirty days and thereafter until respondent shall secure compensation for its employees in accordance with Section 440.38 (1), Florida Statutes (1977). DONE and ENTERED this 26th day of June, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Dennis E. LaRosa, Esquire The Johns Building 725 South Bronough Street Tallahassee, Florida 32304 La Dominicana Corporation d/b/a La Dominicana Restaurant c/o Jose Isidro Guillama and Mario Cartas 1416 San Marco Coral Gables, Florida 33134
The Issue Whether Respondent's teacher's certificate should be suspended or revoked or other appropriate action taken for alleged violations of Chapter 231, Florida Statutes, and Chapter 6B, Florida Administrative Code, as set forth in the Petition herein. At the commencement of the hearing, Petitioner moved to amend paragraphs 1 and 2 to reflect a correct date of May 5, 1977, in lieu of the date May 5, 1978, stated therein. There being no objection, the Motion was granted and the Petitioner so amended.
Findings Of Fact The Respondent, Thomasena W. Owens, holds a Florida Teaching Certificate and has been employed in the Duval County Public School System at Ribault High School, Jacksonville, Florida, since 1979, as a cosmetology teacher (testimony of Respondent). On May 5, 1977, Respondent conducted a fashion show with her students at the high school auditorium for the purpose of raising funds to defray expenses of graduating students to take examinations before the State Board of Cosmetology. Prior to this time, Respondent obtained permission from school authorities to conduct the fund raising activity. Written school policy required that tickets for such events must be prenumbered consecutively by the printer and that a report of tickets sold and funds received must be prepared by the person in charge of the activity (testimony of Davis, Respondent, Petitioner's composite exhibit No. 4). On April 12, 1977, Respondent's husband, Herbert Owens, ordered the printing of 500 tickets for the sum of $15.00 in the name of Ribault High School - Cosmetology Department, at Bill Kight's Copy Center, Jacksonville, Florida. He later received the tickets from the Copy Center without paying for the same and delivered them to his wife's office at the school. The tickets were unnumbered. Prior to ordering the tickets, Respondent had not submitted a request for purchase approval to the School principal as was required under written school policies (testimony of Thrift, Harms, Davis, H. Owens, Petitioner's exhibit No. 1-2, 4,5). The ticket price for the fashion show was one dollar. Prior to the event, there was an undetermined number of advance ticket sales. The school auditorium has an audience capacity of approximately 700 persons. Tickets were sold at the door at the night of the performance by Emily James, a School clerical employee. The door was the only available entrance to the auditorium. During the course of ticket sales immediately before the performance, some four or five individuals entered the auditorium with passes. Although the auditorium was not completely full, at least 500 persons were present during the show. A short time before the performance had concluded, Mrs. James turned over the cash receipts and unsold tickets in a box to Respondent. On June 9, 1977, Respondent executed a form titled "Report of Monies Collected," which reflected that she had turned in $103.00 in cash to the School bookkeeper on May 5, 1977. It further reflected that 300 tickets had been printed and that 176 tickets were turned in on June 9th. It further showed that the cash balance due of $21.00 had been turned in by Respondent on the same date. The form was countersigned by the school bookkeeper. (Testimony of James, Feagin, Davis, Respondent's exhibit No. 1). In August, 1977, the bookkeeper for Bill Knight's Copy Center noted that the invoice for the tickets had not been paid by the high school. She called Mr. Owens for an explanation. He stated that the reason why the bill had not been paid was that only 300 tickets had been ordered and that in order to pay for the work, he needed another invoice, dated April 12, 1977, showing 300 tickets at the price of $15.00. The revised invoice was picked up by Mr. Owens. It was not until February 14, 1978, that the High School paid the bill for the tickets. (Testimony of Harms, H. Owens, Davis, Petitioner's exhibit No. 2, 6- 8). Respondent received a satisfactory job performance evaluation from the school principal in 1977, although the principal had expressed concerns to her for previous irregular business transactions. Respondent received an unsatisfactory overall evaluation in 1978, which the principal explained was due to the fact that "I wanted to register with Ms. Owens my objections to the fund raising business . . . and I chose this method to do that." Although the principal stated that Respondent expressed positive qualities of demonstration and enthusiasm in her classes, she was concerned about her ability to impart knowledge to students. (Testimony of Davis, Petitioner's Exhibit No. 3). Both Respondent and her husband testified at the hearing. Respondent disclaimed any knowledge of the ticket purchase and attributed all events concerning the transaction to her husband. However, when she was interview by Petitioner's security investigator in August, 1978, she told him that she had ordered the tickets and that her husband had picked them up. She also stated to him that, after discovering that she had been billed for 500 tickets even though she had ordered only 300, she went to the printers the next day and obtained a corrected invoice. In a subsequent interview about a week later, Respondent told the investigator that the corrected invoice had been mailed to her and that her husband had paid for the tickets and picked them up. At the hearing, Respondent testified that her husband had ordered that tickets because she was "busy." Although she had told the investigator that there had been advance ticket sales, at the hearing Respondent testified that she could not remember if there had been such sales. Her testimony indicated that students had counted the tickets before the performance and placed them in stacks of 25 each and that there were only 300 tickets. She further testified that Mrs. James had handed her a locked bag containing the door ticket sale receipts and unsold tickets, had placed the bag in the truck of Respondent's care, and that Respondent turned the money over to the bookkeeper the next day without knowing what was in the bag. She denied keeping any of the sales receipts or any wrong doing. She admitted that she was aware of school procedures to be followed in purchasing materials, but said that the principal an bookkeeper had authorized her to purchase the tickets. Her husband testified that he had ordered 300 tickets from the printer and picked them up when they were ready, but did not pay for them at that time. He admitted having the conversation with the printer's bookkeeper and requesting a revised invoice to reflect that only 300 tickets had been printed and delivered. He testified that he told his wife that he had paid for the tickets because he did not want her to have any "foul-ups" with the principal in regard to the bill being paid. He further testified that he viewed the crowd attending the fashion show and that there were approximately 200 spectators present. In view of the inconsistencies and conflicts of the above testimony of Respondent and Mr. Owens between themselves and with the testimony of other witnesses, the demeanor of all witnesses, and the circumstances surrounding the transaction in question, the testimony of Respondent and her husband as summarized above in pertinent respects, is not deemed credible. Based on the foregoing findings, it is further found that Respondent failed to properly account either for funds received for the sale of 200 tickets, or otherwise to satisfactorily account for the disposition of 200 missing tickets.
Recommendation That Respondent's teaching certificate be revoked for a period of three (3) years, pursuant to Section 231.28, Florida Statutes. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 20th day of August, 1979. COPIES FURNISHED: David Holder, Esquire 110 North Magnolia Tallahassee, Florida Kenneth Vickers, Esquire 437 East Monroe Street Jacksonville, Florida 32202 THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 1979.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all relevant times, respondent, Passport Internationale, Inc. (Passport or respondent), was a seller of travel registered with the Department of Agriculture and Consumer Services (Department). As such, it was required to post a performance bond with the Department conditioned on the performance of contracted services. In this case, petitioner, James R. Sherman, has filed a claim against the bond in the amount of $299.00 alleging that Passport failed to perform on certain contracted services. In response to a mail solicitation offer for a five-day, four-night cruise to the Bahamas, in May 1990 petitioner telephoned a Tampa, Florida telemarketeer then using the name of Euno Discount Distributors. After speaking with the telemarketeer, petitioner agreed to purchase the package for a price of $299.00. A charge in this amount was placed on his credit card. During the course of the telephone conversation, petitioner was never told that there were various restrictions on travel dates or that such dates had to be secured at least ninety days in advance. Euno Discount Distributors (or an affiliated entity) had purchased an undisclosed amount of travel certificates from Passport for resale to the public. Passport had agreed to honor and fulfill all travel certificates sold by the telemarketeer, and the certificates carried Passport's name, address and logo. After receiving his travel certificates, petitioner learned for the first time that he could not travel on a weekend when using his certificates and that other restrictions applied. Because of these restrictions, on January 7, 1991, petitioner requested a refund of his money. In response to his inquiry, Passport advised petitioner to contact "the sponsor from whom (he) purchased the package." By now, however, the telemarketeer was out of business. To date, petitioner has never received a refund of his money.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner against the bond of respondent be granted in the amount of $299.00. DONE AND ENTERED this 9th day of January, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1995. COPIES FURNISHED: James R. Sherman 3198 Bailey Road Dacula, Georgia 32114 Julie Johnson McCollum 2441 Bellevue Avenue Daytona Beach, Florida 32114 Robert G. Worley, Esquire 515 Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, Esquire The Capitol, PL-10 Tallahassee, Florida 32399-0810
The Issue Has Respondent Fancy Farms Sales, Inc. (Fancy Farms) made proper accounting to Petitioner Lonnie Pearce in accordance with Section 604.22(1), Florida Statutes, for agriculture products delivered to Fancy Farms from October 28, 1994, through December 10, 1994, by Lonnie Pearce to be handled by Fancy Farms as agent for Lonnie Pearce on a net return basis as defined in Section 604.15(4), Florida Statutes?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, Lonnie Pearce was in the business of growing and selling "agricultural products" as that term is defined in Section 604.15(3), Florida Statutes, and was a "producer" as that term is defined in Section 604.15(5), Florida Statutes. At all times pertinent to this proceeding, Fancy Farms was licensed as a "dealer in agricultural products" as that term is defined in Section 604.15(1), Florida Statutes, as evidenced by license number 8453 issued by the Department, supported by bond number 57 92 20 in the amount of $75,000, written by Gulf Insurance Company with an inception date of September 1, 1994, and an expiration date of August 31, 1995. Beginning October 28, 1994, and continuing through December 10, 1994, Lonnie Pearce delivered certain quantities of an agricultural product (zucchini) to Fancy Farms. It is the accounting for these zucchini (zukes) that is in dispute. It was stipulated by the parties that Fancy Farms was acting as agent in the sale of the zukes delivered to Fancy Farms for the account of Lonnie Pearce on a net return basis. There is no dispute as the quantity or size of the zukes delivered by Lonnie Pearce to Fancy Farms during the above period of time. Furthermore, there is no dispute as to the charges made by Fancy Farms for handling the zukes, including but not limited to the commission charged by Fancy Farms. The agreed upon commission was ten per cent (10 percent) of the price received by Fancy Farms from its customers. There is no evidence that Fancy Farms found any problem with the quality of the zukes delivered to Fancy Farms by Lonnie Pearce during the above period of time. Upon delivering the zukes to Fancy Farms, Pearce was given a prenumbered receiving ticket showing Lonnie Pearce as Grower number 6 and containing the following additional information: (a) date and time of delivery; (b) produce number, i.e., 37 indicating fancy zukes and 38 indicating medium zukes; (c) description of the produce, i.e., zukes, fancy; (d) a lot number containing number of delivery ticket, grower number and produce number, i.e. 2074-6-37 and; (e) the number of units of zukes received by Fancy Farm. The accounting for the zukes from the following delivery receipt ticket numbers is being contested in this proceeding: (a) 2074 dated October 28, 1994, lot nos. 2074-6-37 and 2074-6-38; (b) 2078 dated October 31, 1994, lot nos. 2078-6-37 and 2078-6-38; (c) 2086 dated November 3, 1994, lot nos. 2086-6-37 and 2086-6-38; (d) 2103 dated November 4, 1994, lot nos. 2103-6-37 and 2103-6-38; (e) 2128 dated November 8, 1994, lot nos. 2128-6-37 and 2128-6-38; (f) 2144 dated November 10, 1994, lot nos. 2144-6-37 and 2144-6-38; (g) 2162 dated November 12, 1994, lot nos. 2162-6-37 and 2162-6-38; (h) 2180 dated November 15, 1994, lot nos. 2180-6-37 and 2180-6-38; (i) 2241 dated November 29, 1994, lot nos. 2241-6-37 and 2241-6-38; (j) 2253 dated December 1, 1994, lot nos. 2253-6- 37 and 2253-6-38; (k) 2266 dated December 3, 1994, lot nos. 2266-6-37 and 2266- 6-38; (l) 2290 dated December 7, 1994, lot nos. 2290-6-37 and 2290-6-38 and; (m) 2314 dated December 10, 1994, lot nos. 2314-6-37 and 2314-6-38. Once Fancy Farms found a customer for the zukes, Fancy Farms prepared a prenumbered billing invoice. Additionally, a bill of lading and load sheet was prepared and attached to the invoice. The bill of lading and load sheet would have the same number as the invoice. Basically, the invoice and bill of lading contained the customer's name and address, produce number, description of produce, number of units ordered, number of units shipped and the price per unit. The load sheet contains the customer's name, produce number, description of produce, units ordered, units shipped and the lot number for the units that made up the shipment. On numerous occasions Fancy Farms made adjustments to the selling price after the price had been quoted and accepted but before the invoice was prepared. Fancy Farms did not make any written notations in its records showing the adjustments to the price or the reasons for the adjustments to the price. Salvatore Toscano testified, and I find his testimony to be credible, that this usually occurred when there was a decrease in the market price after Fancy Farms made the original quote. Therefore, in order to keep the customer, Fancy Farms made an adjustment to the price. Pearce was never made aware of these price adjustments. In accounting for the zukes delivered by Pearce, Fancy Farms prepared a Grower's Statement which included the delivery receipt number, the date of delivery, the lot number, grower number, produce number, description of the produce, quantity (number of units), price per unit and total due. Payment for the zukes was made to Lonnie Pearce from these statements by Fancy Farms. On occasions payment was for only one delivery receipt while at other times payment was for several delivery receipts for different dates. Petitioner's exhibit 2 is the Florida Vegetable Report (Market Report), Volume XIV, Nos. 12, 13, 16, 17, 19, 21, 22, 23, 31, 33, 35, 37 and 40, dated October 28, 31, 1994, November 3, 4,8, 10, 14, 15, 29, 1994, and December 1, 5, 7, 12, 1994, respectively. The Market Report is a federal-state publication which reports the demand (moderate), market (steady), volume sold and prices paid for numerous vegetables, including zucchini, on a daily basis. The prices quoted for zucchini is for 1/2 and 5/9th bushel cartons and includes palletizing. The average cost for palletizing in the industry is 65 per carton. Fancy Farms receives and sells zukes in one-half (1/2) bushel cartons. Fancy Farms does not palletize the cartons for handling at its warehouse or for shipment. From October 28, 1994, through November 8, 1994, Pearce delivered a combined total of 431 units of fancy and medium zukes which included all lot numbers listed on delivery receipt ticket numbers 2074, 2078, 2086, 2103 and 2128. Pearce was paid $1,715.70 by Fancy Farms for those zukes as evidenced by Pearce's Grower Statement dated November 17, 1994 (Petitioner's exhibit 1). Fancy Farms sold this combined total of 431 units of zukes for $1,901.36 as evidenced by invoice nos. 3755, 3777, 3806 and 3814. The commission earned on these sales is $190.14 (0.10 x 1901.36 = 190.14). The amount owed by Pearce after deducting the amount paid by Fancy Farms ($1,715.70) and the commission ($190.14) is: $1,901.36 - $1,715.70 - $190.14 = -$4.48. The Market Report shows a much higher price being paid on the market for both fancy zukes (mostly $10.00 on 10/28/94 and mostly $8.00 on 10/31/94) and medium zukes (mostly $8.00 on 10/28/94) and mostly $6.00 on 10/31/94) than was allowed Pearce for zukes delivered on the same dates to Fancy Farms. However, the zukes delivered on October 28 & 31, 1994, were not sold by Fancy Farms until November 1, 1994. There is no Market Report for November 1, 1994, included in Petitioner's exhibit 2. The Market Reports for November 3, 4, 8 and 10, 1994, included in Petitioner's exhibit 2, show fancy zukes selling for $4.00 - $6.65 and medium zukes selling $2.25 - $4.65. The prices ($5.00 - $6.00 for fancy zukes and $3.50 to $4.14 for medium zukes) received by Fancy Farms for those zukes delivered to Fancy Farms by Pearce beginning October 28 through November 11, 1994, are in line with the Market Report. Therefore, the prices received by Fancy Farms have been used to calculate the amount due Pearce. From November 10, 1994, through November 15, 1994, Pearce delivered a combined total of 645 units of fancy and medium zukes to Fancy Farms which included delivery receipt ticket numbers 2144, 2162 and 2180. Pearce was paid $2,461.15 by Fancy Farms for those zukes as evidenced by the Grower Statement dated November 25, 1994 (Petitioner's exhibit 1). Fifty-three units of medium zukes on delivery receipt no. 2144 (lot no. 2144-6-38), 128 units of fancy zukes on delivery ticket 2162 (lot no. 2162-6-37), 30 units of medium zukes on delivery ticket no. 2180 (lot no. 2180-6-38) and 66 units of fancy zukes on delivery ticket no. 2180 (lot no. 2180-6-37) were not accounted for by invoice. Therefore, the price established in the Market Report of $5.00, $8.00, $6.00 and $8.00, respectively were used to calculate the amount owed Pearce for those zukes. The total amount calculated as owed to Pearce for the zukes represented by delivery receipt ticket nos. 2144, 2162 and 2180 is $3,513.00. The net difference due Pearce after deducting the amount paid to Pearce and the commission is: $3,513.00 - $2,461.15 - $351.30 = $700.55 On November 29, 1994, Pearce delivered 79 units of fancy zukes and 48 units of medium zukes for a combined total of 127 units and was paid $5.00 per unit for the fancy zukes and $3.00 per unit for the medium zukes for a total of $539.00. From invoice no. 3941 it appears that Fancy Farms made an adjustment for its customer in the price per unit for fancy zukes that was not reflected in the price per unit paid to Pearce. The price per unit of $5.00 for fancy zukes paid Pearce is more in line with the price established in the Market Report and is the price used to calculate the amount due Pearce. Invoice no. 3927 indicates that Fancy Farms was paid $3.00 per unit for medium zukes. Therefore, the amount due Pearce is: $5.00 per unit x 79 units = $ 395.00 $3.00 per unit x 48 units = $ 144.00 Total $ 539.00 Less: Ten per cent commission $ 53.90 Amount received by Pearce $ 539.00 Balance Owed by Pearce -$ 53.90 From December 1, 1994, through December 7, 1994, Pearce delivered 181 units of fancy zukes represented by lot nos. 2253-6-37, 2266-6-37 and 2290-6-37 and 160 units of medium zukes represented by lot nos. 2253-6-38, 2266-6-38 and 2290-6-38 for a combined total units of 341 units and was paid $1,385.00 for those zukes by Fancy Farms as evidenced by Pearce's Grower Statement dated December 15, 1994. The price per unit paid by Fancy Farms to Pearce was $5.00 fancy zukes and $3.00 for medium zukes. Other than 73 units of fancy zukes represented by lot no. 2253-6-37 which were billed out by Fancy Farms at $4.25 per unit, there was no evidence of the price per unit received by Fancy Farms for the balance of the fancy zukes and the medium zukes. On December 1, 1994, the Market Report shows the price per unit for fancy and medium zukes to be mostly $8.65 and mostly $6.65 per unit, respectively. Pearce should received a price of $4.25 per unit for 73 units of fancy zukes; $8.65 per unit for 30 units of fancy zukes and $6.65 per unit for 33 units of medium zukes delivered on December 1, 1994. The per unit price of $6.00 and $3.50 for fancy and medium zukes respectively, received by Fancy Farms as indicated on invoice nos. 3946 and 4049 falls within the per unit price reported in the Market Report for the dates of December 5 & 7, 1994. Therefore, Pearce should receive: $4.25 per unit x 73 units = $ 310.25 $8.65 per unit x 30 units = $ 259.50 $6.65 per unit x 33 units = $ 219.45 $6.00 per unit x 78 units = $ 468.00 $3.50 per unit x 127 units = $ 444.50 Total $1,701.70 Less: Ten percent commission $ 170.17 Amount received by Pearce $1,385.00 Amount owed Pearce $ 146.53 On December 10, 1994, Pearce delivered 39 units of medium zukes and 32 units of fancy zukes to Fancy Farms and was paid $3.50 per unit for medium zukes and $5.50 per unit for fancy zukes for a total $312.50 by Fancy Farms. There is no invoice or other evidence to show what Fancy Farms received for the above 71 units of zukes. However, the Market Report reflects that fancy zukes were selling mostly for $7.00 to $8.00 per unit and medium zukes were selling mostly for $6.00 per unit. Therefore, Pearce should receive: $7.50 per unit x 32 units = $ 240.00 $6.00 per unit x 39 units Total $ 474.00 = $ 234.00 Less: Ten percent commission $ 47.40 Amount received by Pearce $ 312.50 Amount owed Pearce $ 114.10 November 17, 1994 -$ 4.48 November 25, 1994 $ 700.55 December 7, 1994 -$(-53.90) December 15, 1994 $ 146.53 December 23, 1994 $ 114.10 SubTotal Less: Positive Adjustment/ $ 906.80 The net amount owed to Pearce by Fancy Farms: From Grower Statements dated: Grower Statement dated December 25, 1994. $ 127.00 Balance owed Pearce $ 779.80
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent Fancy Farms Sales, Inc. be ordered to pay Petitioner Lonnie Pearce the sum of $779.80. DONE AND ENTERED this 28th day of November, 1995, in Tallahassee, Florida. WILLIAM R. CAVE, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of November, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2559A The parties elected not to file any proposed findings of fact and conclusions of law. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing & Bond Department of Agriculture and Consumer Services Mayo Building, Room 508 Tallahassee, Florida 32399-0800 Lonnie Pearce 1676 CR 731 Venus, Florida James A. Crocker Qualified Representative Fancy Farms Sales, Inc. 1305 W. Dr. M. L. King, Jr., Blvd. Plant City, Florida 33564-9006 Gulf Insurance Company Legal Department 4600 Fuller Drive Irving, Texas 75038-6506
The Issue The issue in this case concerns the application of Section 24.115(4), Florida Statutes, to a claim for payment of a $5,000.00 lottery prize where the winning lottery ticket was purchased by two individuals, one of whom has a substantial court-ordered child support arrearage, one of whom does not, and the prize claim form is submitted by the individual who owes child support. The Petitioners contend that only half of the prize should be subject to the outstanding child support debt. The Respondents contend that the entire prize should be subject to the outstanding child support debt. Shortly after the filing of the request for hearing in this case, the Office of the Comptroller filed a Motion To Join Indispensable Parties, by means of which it sought to join the Department of the Lottery and the Department of Health and Rehabilitative Services as parties to this case. Both of the last mentioned agencies agreed to being joined as parties and neither Petitioner objected to the joinder. Accordingly, the Department of the Lottery and the Department of Health and Rehabilitative Services were joined as parties respondent. At the hearing both Petitioners testified and also offered exhibits. The Respondents presented the testimony of several witnesses and also offered several exhibits. At the conclusion of the hearing, the parties were allowed ten days within which to submit proposed recommended orders. All parties filed post-hearing submissions containing proposed findings of fact. All proposed findings of fact are specifically addressed in the appendix to this recommended order.
Findings Of Fact Based on the testimony of the witnesses and the exhibits received in evidence at the hearing, I make the following findings of fact. Shortly after the Florida Department of the Lottery began selling lottery tickets, the two Petitioners, Lawrence R. Lindbom and Donald Johnston, began the regular practice of buying lottery tickets together. They agreed that they would make equal contributions to the cost of the lottery tickets and that they would share equally in the proceeds of any lottery prizes resulting from their co-purchased lottery tickets. On January 26, 1988, consistent with the foregoing agreement, Petitioner Lindbom purchased four instant game lottery tickets. Petitioner Johnston had contributed funds to pay half of the cost of the four tickets. Lindbom retained two of the tickets and gave the other two tickets to Johnston. At Johnston's place of employment, Lindbom scratched the two lottery tickets he had retained. One of the two was a $5,000.00 winning ticket. At the suggestion of some third party, Lindbom wrote his name on the winning ticket. He then showed the ticket to Johnston, and the other people present congratulated the two of them on their good fortune. The two Petitioners agreed that Lindbom would submit the ticket for payment in both of their names. On January 27, 1988, Lindbom traveled to the Jacksonville District Office of the Department of the Lottery, where he inquired about filling out a claim form in two names. He also inquired as to whether any money would be deducted from the prize. Upon being advised that only one name could be placed on the claim form and that no money would be deducted from the prize, Petitioner Lindbom called Petitioner Johnston to advise him of what he had been told at the Jacksonville District Office. Johnston told Lindbom to go ahead and file the claim in Lindbom's name and they would split the prize when it was received. Thereupon, Petitioner Lindbom filled out a Florida Lottery Winner Claim Form. The information he placed on the claim form included information about the lottery ticket and Lindbom's name, address, telephone number, and social security number. At the bottom of the claim form, Lindbom signed a printed statement reading as follows, in pertinent part. "Under penalty of law, I swear that to the best of my knowledge and belief, the name, address, and social security number correctly identify me as the recipient of this payment." The claim form and winning ticket were submitted to the Tallahassee office of the Department of the Lottery for validation and payment in accordance with that Department's procedures. The Department of the Lottery provided the Department of Health and Rehabilitative Services a list of $5,000.00 winners which contained the name of Lawrence Lindbom. DHRS determined from its records that there was an arrearage in child support payments by Lawrence Lindbom in the amount of $12,014.65. On February 1, 1988, DHRS certified the child support arrearage to the Department of the Lottery in accordance with Section 24.115(4), Florida Statutes (1987). On February 5, 1988, the Department of the Lottery forwarded the entire $5,000.00 claimed by Lindbom to the Office of the Comptroller of the State of Florida. On February 8, 1988, the Office of the Comptroller notified Lindbom by certified mail of its intention to apply the entire $5,000.00 prize toward Lindbom's unpaid court-ordered child support, with the result that no payment would be made to Lindbom. Following receipt of the letter from the Office of the Comptroller, Lindbom and Johnston jointly wrote a letter to the Comptroller protesting the proposed disposition of the prize and requesting a hearing. At all times material to this case, the Department of the Lottery had in effect Rule No. 53ER87-43, F.A.C., titled "Procedure for awarding prizes." That rule reads as follows, in pertinent part: (6) Until such time as a name is imprinted or placed upon the back portion of the lottery ticket in the designated area a lottery ticket shall be owned by the physical possessor of such ticket. When a name is placed on the rear of the ticket in the designated place, the person whose name appears in that area shall be the owner of the ticket and shall be entitled to any prize attributable thereto.
Recommendation For all of the foregoing reasons, it is recommended that the Office of the Comptroller issue a final order in this case providing for payment to the Department of Health and Rehabilitative Services of the entire $5,000.00 prize originally claimed by Petitioner Lindbom. DONE AND ENTERED this 9th day of June, 1988, at Tallahassee, Florida. MICHAEL M. PARRISH, 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 9th day of June, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1176 The following are my specific rulings on all proposed findings of fact submitted by all parties. Findings proposed by the Petitioners The Petitioners' proposal consisted of a letter in which they assert three specific reasons that entitle them to the relief sought. The factual aspects of those three reasons are addressed below. The legal aspects have been addressed in the conclusions of law. Reason 1. Accepted as finding of fact. Reason 2. Rejected as subordinate and unnecessary details. Reason 3. Rejected as constituting argument rather than facts. Findings proposed by the Respondents The Respondents filed a joint proposed recommended order. The paragraph references which follow are to the paragraphs of the Findings of Fact section of the Respondents' proposed recommended order. Paragraphs 1 and 2) Accepted in substance, with the exception of the implication that the Petitioners were not co- purchasers of the lottery tickets. Paragraph 3: First sentence accepted. Second sentence rejected as inconsistent with the evidence. Paragraphs 4, 5, 6, and 7: Accepted. Paragraph 8: Omitted as unnecessary procedural details covered by introduction. Paragraph 9: Accepted. Paragraph 10: Accepted in substance. First unnumbered paragraph following Paragraph 10: Rejected as constituting subordinate and unnecessary details. Second unnumbered paragraph following Paragraph 10: Accepted. Third unnumbered paragraph following Paragraph 10: Rejected as irrelevant. Fourth unnumbered paragraph following Paragraph 10: Rejected as irrelevant or subordinate and unnecessary details. Fifth unnumbered paragraph following Paragraph 10: First sentence accepted. The reminder is rejected as argument rather than proposed findings of fact. COPIES FURNISHED: Mr. Lawrence R. Lindbom 3542 Tiara Way, West Jacksonville, Florida 32217 Mr. Donald Johnston 12888 Beaubien Road Jacksonville, Florida 32225 Jo Ann Levin, Esquire Senior Attorney Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32399 Chriss Walker, Esquire Department of Health and Rehabilitative Services 1317 Winewood Blvd. Tallahassee, Florida 32399-0700 Thomas A. Bell, Esquire Department of Lottery 250 Marriott Drive Tallahassee, Florida 32301 The Honorable Gerald Lewis Comptroller The Capitol Tallahassee, Florida 32399-0350
The Issue Did Respondent engage in unlawful employment practices directed to Petitioner, as defined in Section 760.10(1), Florida Statutes? In particular, did Respondent knowingly maintain a sexually-hostile and abusive environment for its female servers which unreasonably interfered with their work, exposing the female employees to disadvantageous working conditions to which male employees were not exposed? Was the work place for female servers permeated with discriminatory ridicule and insults? Did Respondent maintain an intimidating environment which caused Petitioner's constructive discharge? Is Petitioner entitled to take up her former duties as a server at Respondent's restaurant? Has Petitioner sustained damages, including loss of back and future pay and related benefits?
Findings Of Fact Respondent owns four (4) restaurants. Two are located in Tallahassee, Florida. One is located in Mary Esther, Florida; and one is located in Pensacola, Florida. The Tallahassee restaurants are located on North Monroe Street and Apalachee Parkway. It is the Apalachee Parkway restaurant that is the subject of this case. At times relevant to the inquiry, the Parkway restaurant operated with an average staff of 16-18 servers, who are mostly female, and 9-10 cooks, who are males. The Parkway restaurant had a high volume of business during the period under inquiry. At peak volume, the employees felt under pressure and were not especially respectful of fellow employees. Petitioner was employed at the Parkway restaurant from February 12 through May 15, 1993. Petitioner is approximately 30 years old. Petitioner is a female, whose stature is one of average height and weight. Petitioner was hired by a manager at the Parkway restaurant. That manager was Erin Stowell. Respondent empowered Mr. Stowell to hire and fire employees at the Parkway restaurant and to impose the necessary controls to conduct business at the restaurant. Mr. Stowell had the supervisory authority to conduct the everyday business at the Parkway restaurant in the capacity of supervisor of servers and cooks. At times relevant to the inquiry, Petitioner worked the day shift. Mr. Stowell was her manager. On that shift, most servers were female. In Petitioner's latter tenure, there was one male server working the day shift. At times relevant, a manual detailing appropriate employee conduct was in place. Among the expectations for employees was that the employees not engage in profane and vulgar language. Moreover, employees were expected to engage in moral and proper behavior. Petitioner was given the employee manual. In the restaurant operation, servers were expected to fill out customer food order tickets that accurately described the food orders. This accuracy was vital to the restaurant's financial operation. All food items served were to be charged for. The cooks had a corresponding responsibility to make certain that the tickets were accurate and that they not prepare food that was not described on the food order ticket. These arrangements led to conflicts between the servers and the cooks concerning food preparation and its timely delivery to the customer. Christopher Titze is the son of Michael Titze. Michael Titze owns Respondent. Beth Titze is Michael Titze's wife and mother of Christopher Titze. Christopher Titze worked at the Parkway restaurant at times relevant to the inquiry. He served as a host who greeted customers. In the event that problems occurred between servers and cooks that affected service to the customer, Christopher Titze would mediate disputes between servers and customers. In addition, if there were other problems between cooks and servers, the server would seek Christopher Titze's intervention or the cook might seek Christopher Titze's intervention as mediator. This mediation function took place once or twice a day at most. Specifically, cooks would ask for assistance if the servers were not charging for food and when servers did not properly space the time for delivering food order tickets to the cooks. Servers would complain when cooks were not getting the food prepared fast enough. Christopher Titze observed that Petitioner often did not wear the proper uniform for a server. She wore shoes that were other than required and did not wear pantyhose as required. As host, Christopher Titze was expected to inform Petitioner that she was not wearing the appropriate uniform. He did inform her. These reminders were given to Petitioner on 15-20 occasions. Christopher Titze did not have the authority to discipline Petitioner for noncompliance with the uniform requirements. Christopher Titze would occasionally remind other servers that they were not in proper uniform from time to time. By contrast, Petitioner was chronically out of uniform. Christopher Titze was working at the restaurant on the Petitioner's last day of employment. He overheard Petitioner yelling. He observed that several customers in the lobby area to the restaurant were looking at him during the outburst. Christopher Titze felt embarrassment and went running to the area where Petitioner was located. When he arrived at that area, Petitioner and a cook named O.C. Mack were there. Mr. Mack was a 250-pound man. Christopher Titze observed that Petitioner was "carrying on". Mr. Mack appeared upset and seemed not to be paying attention to Petitioner. Petitioner was getting more upset with Mr. Mack and was yelling and screaming and cursing at him. At that time, the manager, Mr. Stowell was not in attendance in the area where Petitioner and Mr. Mack were engaged. In particular, Christopher Titze heard Petitioner say to Mr. Mack: "This is fucking bullshit and I don't have to put up with this shit from you or anyone else". Christopher Titze tried to ascertain what had caused the outburst. It took a couple of minutes for Petitioner to calm down and quit yelling. During this time, Mr. Mack was cooking. Mr. Mack explained that Petitioner had not charged a customer for hollandaise sauce. Petitioner told Christopher Titze that the problem had to do with hollandaise sauce for a customer. Christopher Titze told Mr. Mack that he needed the hollandaise sauce right now. Mr. Mack told Christopher Titze that he was not going to get it. Christopher Titze then went up front and asked Mr. Stowell to go back and take care of the problem. Before Christopher Titze went up front to get Mr. Stowell, Mr. Mack told Christopher Titze that he was not going to give the hollandaise sauce to him until it was charged for on the ticket. When Christopher Titze found Mr. Stowell he told Mr. Stowell that Petitioner and Mr. Mack were having an argument and that he could not straighten it out and that Mr. Stowell needed to go back there. Christopher Titze made sure that a server other than Petitioner delivered the hollandaise sauce to the customer. Later, Christopher Titze observed Petitioner yelling and screaming and saw her take her purse and comment "this is unfair" and that "she was leaving." The May 15, 1993 incident was the only occasion upon which Petitioner complained to Christopher Titze about Mr. Mack's conduct. Other servers had complained to Christopher Titze about Mr. Mack's conduct. They told Christopher Titze that Mr. Mack was hard to work with and that he was very particular on tickets, making sure that customers were charged for food. The servers reported to Christopher Titze that Mr. Mack was concerned about food costs and that Mr. Mack skimped on some things. The other servers reported that Mr. Mack was rude about the way he went about doing his job and adhering to rules in the restaurant. Christopher Titze observed that Mr. Mack was loud when operating under stress. Mr. Mack especially did not like it when tickets were not properly written, and he complained about it. Christopher Titze observed that Mr. Mack would use the word "shit" and similar language when he was under stress. He would direct his remarks to servers: "You need to write this shit right". Christopher Titze heard the kitchen staff call the servers "bitches" on one or two occasions. Christopher Titze has no recollection of doing anything in response to the remarks by the kitchen staff directed to the servers. Christopher Titze never observed nor heard servers complain that the cooks were not getting out their orders quickly as a means of being spiteful to the servers. Christopher Titze never observed the kitchen staff holding or manipulating their genitals in the presence of servers. Lori Helms was a server who worked on the shift with Christopher Titze. She reported to Christopher Titze that a cook named Wendell Holmes had been requested to prepare an employee meal for her, to which Mr. Holmes stated: "I'll make you a cum sandwich." When the incident was reported to Christopher Titze, he told Mr. Stowell. Mr. Stowell sent Mr. Holmes home that day. Mr. Holmes was subsequently fired, having never been allowed to come back and work at the restaurant beyond the day he was sent home. By Christopher Titze's observation Ms. Helms was made to cry by Mr. Holmes' conduct. Christopher Titze has no recollection of the conduct of Mr. Mack causing Ms. Helms to cry or observing her to cry on any occasion other than the incident with Mr. Holmes. Terri Dixon was a server at the Parkway restaurant from November 2, 1992 until April 1993, when she was fired by Mr. Stowell. Ms. Dixon observed that Mr. Mack was rude and that he would use vulgar language. She observed that Mr. Mack would raise his fist at you and that his conduct seemed threatening. Mr. Mack referred to Ms. Dixon as "you little white girl", "you little bitch", and "you little honkey girl". Cooks would refer to Ms. Dixon as "whitey" "honkey" and "you white bitch". This made her feel intimidated. Which cooks other than Mr. Mack made these remarks was not proven. Ms. Dixon complained to a cook named Jason about an order that she believed was not being prepared in a timely manner. Apparently, her customers were complaining about the timeliness. Jason responded to her by saying, "shut up, you white bitch" and "I will stomp your white ass into the ground". Ms. Dixon observed other cooks shaking spatulas at her. Ms. Dixon explained that when she thought that the cooks had had ample time to prepare the food she complained to the cooks. The response by the cooks was to the effect, "I will give you your food when I get well and ready to." Ms. Dixon had the experience that when service of the food was delayed, customers did not want to tip her. A food preparation employee made a number of attempts at asking Ms. Dixon to go out with him. She considered his actions to be harassment. This same person also offered her drugs. Ms. Dixon complained to Mr. Stowell about that conduct by the male employee. After her complaint, the situation did not improve. What action, if any, that Mr. Stowell took to address her complaint is not clear. Ms. Dixon did not indicate that she reported back to management to inform management that she was continuing to be approached by the food preparation employee. Ms. Dixon observed the incident between Ms. Helms and Mr. Holmes. She saw Mr. Holmes grab his genitals and say "well how about I give you a cum sandwich." Ms. Helms worked at the Parkway restaurant from around January or February, 1993, until sometime in May 1993. She quit her job as a server at about the same time that Petitioner last worked at the restaurant. Ms. Helms describes what she considered to be rude conduct by Mr. Mack. These comments were directed to Ms. Helms pertaining to the manner in which she hung or presented the customer food order tickets to the cook. He made remarks calling her "stupid", "that drugs had eaten her brain" that "she was crazy" and would refer to her as "bitch". Mr. Mack yelled at her and she was afraid of him. These circumstances usually occurred when the restaurant was busy. Otherwise, Mr. Mack was nice to Ms. Helms when she first came to work in the morning. At busy times Mr. Mack would complain to Ms. Helms that she was not writing her tickets right and would grab them off the wheel where they were placed. To Ms. Helms, it seemed as if Mr. Mack would be under pressure and would take it out on her. In the exchanges where Mr. Mack would use the terms "bitch, stupid and crazy" directed to Ms. Helms, the food that she was responsible to serve would be sitting at the service window and available to be served. On these occasions Ms. Helms would direct argument back to Mr. Mack. She would then go back to the bathroom area to collect herself sufficiently to serve the food. Under these circumstances the food service would be delayed. At times when Ms. Helms complained about the delays in serving food to the customers when the restaurant was especially busy, responses from the cooks would be "hold on a damn second, baby, I can't do everything at once." At times these remarks were made in a manner which Ms. Helms believed to be screaming. The cooks would also say, "I'm going to do it and you are the one who messed it up in the first place and this wouldn't never have happened in the first place if you would have written the damn ticket wrong." Ms. Helms observed cooks dancing around and grabbing their crotches. She did not indicate complaining about these observations to management. While working at the restaurant Ms. Helms would cry often. In this respect Ms. Helms acknowledges that she is a very sensitive person and that when she was yelled at, this made her cry. This conduct hurt her feelings. In instances when she would cry Ms. Helms would go to Mr. Stowell and he would console her by telling her to stop crying and go about her business and that it would be okay and that Ms. Helms should not allow the conduct by the other employees to get to her. Ms. Helms describes the incident with Mr. Holmes in which she asked Mr. Holmes to make a sandwich for her and he replied, "baby I'll make you a cum sandwich". She responded by telling Mr. Holmes not to talk to her that way. The incident was one of the reasons that led her to quit her position at the Parkway restaurant. As described before, Ms. Helms reported the incident to Mr. Stowell. Soon after the incident with Mr. Holmes, Ms. Helms quit her job. As Ms. Helms observed, Mr. Stowell was present when cooks would use words such as "bitch", "fuck", "shit", "damn" and "ass", in Ms. Helms' presence. She considered these remarks to be directed to her. With the exception of the word "bitch", it is not clear that the use of profane language was directed to Ms. Helms as opposed to merely being stated in her presence. On Petitioner's last day, Ms. Helms, although she was not in the immediate vicinity of the incident, overheard part of the exchange between the Petitioner and Mr. Mack. She heard both Mr. Mack and the Petitioner yelling back and forth about the hollandaise sauce. Ms. Helms then observed the Petitioner go to the back of the restaurant to smoke a cigarette and that the Petitioner was crying. Ms. Helms took the customer the hollandaise sauce. Ms. Helms was told not to wear socks as part of the attire for servers because the servers were expected to wear pantyhose. Nonetheless, she wore socks again after being told not to do so. Ms. Helms observed that cooks wore their clothes loosely and that they would hang down to the extent where she could see their underwear and could see Mr. Mack's "butt crack". She did not indicate that she complained about these observations to management. Ms. Helms also had problems with a female server Kim Tuten whom Ms. Helms described as making her feel unwelcome and treating her in a rude manner. One time Ms. Tuten told Ms. Helms "I'll kill you." Ms. Tuten called Ms. Helms "stupid." Ms. Helms said that she "hates Ms. Tuten." Ms. Helms observed Ms. Tuten using profane language. Ms. Tuten used the words "fuck, damn, shit and ass". Ms. Tuten also called Ms. Helms "a bitch". Linda McCord began work at the Parkway restaurant in 1992, working on the night shift. She quit her position as a server at the restaurant because of a conflict with her school schedule. She came back to work at the restaurant and quit a second time because of Beth Titze's actions in "dressing down" Ms. McCord. Although Mr. Mack worked on a different shift than Ms. McCord, the shifts overlapped to some extent this allowed her to watch Mr. Mack perform as a cook. She observed Mr. Mack to be intimidating. She saw him early in the morning on weekends. When Mr. Mack first arrived he acted as if nothing was right and "would just raise hell at everybody, whether you were a server, a dishwasher, you know whatever." Ms. McCord observed Mr. Mack and his son Governor Mack, another cook, use the words "fuck, fuck you and mother fucker", sometimes directed to her but a lot of times in conversation between the cooks or with a dishwasher or with other servers. Ms. McCord observed the cooks on Mr. Mack's shift, to include Mr. Mack, "brag about their physical anatomy and what they do and how they do and that they would talk sexually about women." The words that were used in the discussions between the cooks about sexual matters made Ms. McCord feel uncomfortable and offended. Ms. McCord complained to Mr. Stowell about the profane language by the cooks. His response to the complaints was "I'll see about it". She made similar complaints to the night manager who said he would talk to the day manager who was Mr. Stowell. It is not clear whether Ms. McCord received a satisfactory response to her complaint. Donna Land was a server at the Parkway restaurant. She is and has been the Petitioner's roommate since 1989. Her employment at the Parkway restaurant lasted a few days. She quit her job at the restaurant shortly after Petitioner's last day as a server. Ms. Land observed that Mr. Mack was "fussy" on the day that Petitioner was last employed at the restaurant. Ms. Land was standing near the window where the food is delivered when she saw Petitioner approach that area. Petitioner asked Mr. Mack to do her a favor and get the Petitioner some hollandaise sauce. At that time Ms. land observed that Mr. Mack was real busy. The ticket holder was full and Mr. Mack said "I've got to have a ticket in order to do that." To which Petitioner responded that Mr. Stowell was coming with the ticket. Shortly thereafter Mr. Stowell came into the conversation. After Stowell showed up Mr. Mack started yelling and cursing Petitioner and shaking his spatula in her direction. Mr. Mack said "I'm not going to get you this, god damn this." Mr. Mack called Petitioner a "fucking white bitch" and told the Petitioner to "drop dead" and that he was "going to kill her." At this juncture Petitioner started to cry. Mr. Stowell then slid a bowl across and told Mr. Mack to give Mr. Stowell some hollandaise sauce. Mr. Mack slid the bowl back and said "you go to hell, I'm not giving you it either." Mr. Mack then said "get that fucking white bitch out of my face before I stomp her to the ground." As Ms. Land recalls, Mr. Stowell then told Petitioner to go home. Petitioner replied "I can't believe you are letting him talk to me like this." Mr. Stowell told Petitioner again to "go". Petitioner stepped away and remarked to the effect that, "I'm not going anywhere" and asked Mr. Stowell if he was firing her. Mr. Stowell then responded by telling the Petitioner that she was fired. It appears that Mr. Stowell was trying to remove Petitioner from a threatening situation, not intending to fire her until Petitioner refused to leave. Petitioner walked out of the restaurant at that time. Ms. Land was upset by these events. Mr. Stowell told Ms. Land that the Petitioner would be all right and that he would give her a call later. In the conversation between the Petitioner and Mr. Mack that was overheard by Ms. Land, Petitioner remarked that while the customer had been served hollandaise sauce that it was not enough and the man wanted more as a side order. The extra hollandaise sauce had not been put on the ticket as required by restaurant policy. Ms. Land overheard the kitchen staff using the words "fucking, pussy and bitch." Ms. Land perceived that the words were directed at her and she felt a little embarrassed. Ms. Land observed the kitchen staff put their hands in their pants, which they wore very low, meaning placing their hands in their groin area. Ms. Land is not sure whether the manager, Mr. Stowell, observed this conduct and she did not make a complaint about the conduct. Ms. Land observed cooks in the kitchen yell at Ms. Helms and that Ms. Helms cried a lot. Ms. Land worked with a male server named Joe. She never observed the cooks give Joe "a hard time." Angela Brumblaugh worked at the Parkway restaurant from September 1992 into August 1994 as a hostess, server and closing manager. She also lived with Michael and Beth Titze for four months. Christopher Titze was her friend during the time Ms. Brumblaugh worked at the restaurant. During the time that Ms. Brumblaugh worked at the restaurant she overheard curse words and profanity from cooks, servers, bus-boys and dishwashers. Those words that she heard were "damn, shit, and fuck." Among others, she heard Petitioner use those words. The context in which she heard those words used was related to a general griping about something that was not going right while working at the restaurant. By example, food orders that did not come out fast enough or someone getting in the way of employees' movements or a customer that was too demanding. The context was one in which the situation was stressful due to the time constraints for preparing and delivering food orders. Ms. Brumblaugh observed that Mr. Mack was a stickler about marking things that were to be charged for on the tickets. If they were not marked, and other cooks were not enforcing the policy about requiring the tickets to be marked so that items could be charged for, he would "get on" those other cooks. Ms. Brumblaugh never heard cooks refer to Petitioner as "fucking white bitch." Ms. Brumblaugh never observed what she considered to be a sexual problem involving employment discrimination. Ms. Brumblaugh observed Petitioner's overall disposition as being happy and excited one minute and "pissed off and bitching and yelling" the next minute. Ms. Brumblaugh overheard Petitioner yelling about food being late coming out the window and in the course of these remarks Petitioner was profane. Petitioner never mentioned to Ms. Brumblaugh that she considered that employment discrimination was being directed to the Petitioner based upon Petitioner's sex. Ms. Brumblaugh observed kitchen personnel place their hands in their crotch area. She perceived these actions to be to adjust shorts or to scratch. As hostess, Ms. Brumblaugh was expected to remind servers about the correctness of their uniforms. She gave these reminders. If a server was missing a bow tie she would get them another and at times when servers were missing hose there were hose available at the restaurant; if not available, the server was reprimanded and told to wear the hose. Kim Taylor has worked as a server at the Parkway restaurant on and off for a period of ten years. She describes herself as a close friend of Petitioner. Ms. Taylor worked on the day shift with Petitioner. Ms. Taylor would cry when Mr. Mack yelled at her for not writing the tickets properly. She did not complain to management about this problem, but resolved the issue by working in an area separate from Mr. Mack. Ms. Taylor heard kitchen employees refer to servers as "bitch". Ms. Taylor observed that when problems developed between the servers and the cooks the food service was delayed and that influenced the amount of money the servers earned. Ms. Taylor did not observe Mr. Stowell being present when the kitchen employees used profane language, but surmises that Mr. Stowell heard it because it could be heard throughout the restaurant. Furthermore, on those occasions Mr. Stowell would come and tell the kitchen employees to "chill out" or "you need to stop". In Ms. Taylor's view these attempts at correction were unavailing. However, Ms. Taylor does not appear to have reminded management that its attempts at correction were not successful. After Petitioner's last day, Ms. Taylor talked to the Petitioner and following that conversation asked Beth Titze to rehire the Petitioner. Beth Titze worked at the Parkway restaurant between the hours of 8:00 a.m. and 2:00 p.m. on weekdays and from around 8:00 to 8:30 a.m. to 2:30 to 4:00 p.m. on weekends. Although Ms. Titze had no specific recollection as to the exact words of the profanity that were used, she does recall profanity being used by the cooks in her presence. When this occurred she told them to cease. When circumstances would occur between servers or cooks that involved swearing and it was reported to her she would intercede. Usually this profanity was based upon provocations by servers yelling at cooks, but sometimes it involved cooks provoking servers. The circumstances for these exchanges were related to times of stress. When informed of the problems Ms. Titze would go into the area and yell, "watch your mouth", "what's the problem" or "what do you need" or "what is the situation here". Ms. Titze expected Mr. Stowell to make decisions on whether an employee should be dismissed. If an employee was repeatedly late, Ms. Titze would remind Mr. Stowell that he had a problem and leave the decision to Mr. Stowell to dismiss a server if the server continued to be late. Her general experience was that most employees were on time for work. When employees were not in the proper uniform Ms. Titze expected Mr. Stowell to see that they got into proper uniform. Whatever disciplinary action was to be taken for not being in proper uniform was left over to Mr. Stowell. Ms. Titze has never observed a point in time when all servers were out of the proper uniform. Ms. Titze established that the servers' earnings and benefits package was a payment of $2.31 an hour, plus tips and a week's paid vacation for servers who had worked at the restaurant for a year. Ms. Titze observed that Petitioner was often late for work, especially on weekends or occasions when it was important for the Petitioner to be on time. Ms. Titze indicated that Petitioner was habitually late for work. Ms. Titze described the fact that Petitioner was not always in uniform, especially related to the refusal to wear nylons even in the instance where Ms. Titze had bought nylons to provide Petitioner. Another problem that Ms. Titze observed was that the Petitioner did not wear appropriate shoes. Petitioner wore cloth shoes that were a type of canvas tennis shoes which were not acceptable foot wear. When Ms. Titze spoke to Mr. Stowell about Petitioner's problems with being late for work and not being in the proper uniform, a conversation which she had with him on frequent occasions, Mr. Stowell responded that he, "did not have anyone to take her place at that time." As described before, Petitioner sought reemployment from Ms. Titze. On that occasion Petitioner was in uniform, to include the proper foot wear. Petitioner remarked to Ms. Titze that she had the correct shoes and could she please have her job back. Ms. Titze replied that the fact that Petitioner was always late and that she could never depend on her, made Ms. Titze feel that she could not use Petitioner at that point. The decision on reemployment was made by Ms. Titze because she was managing the Parkway restaurant at that time. Ms. Titze has no personal knowledge of any conduct directed to Petitioner that could be considered discrimination on the basis of sex and no conduct of that type was reported to Ms. Titze. Contrary to testimony by other witnesses, Ms. Titze did not say, in jest, that she was going to cut Petitioner's legs with a razor blade, direct profanity at servers or make an obscene gesture at servers with her middle finger. Ms. Titze does admit to swearing under her breath by using the word "damn" in certain circumstances that occur at the restaurant. Ms. Titze has not observed the buttocks of the male cooks while they were working at the restaurant, nor seen those cooks grab their crotches. Ms. Titze, from her observations, believed that the slow downs in service were related to the volume of business and not a deliberate ploy by the cooks. She is correct. Moreover, the delays in service created by arguments between servers and cooks explain why customers did not receive their food as quickly as they would have preferred, not the idea that cooks alone contrived to delay the service. As a consequence the servers' loss of tips for late service cannot be equated to unilateral action by the cooks to interfere with the tips received by servers. Petitioner perceived the relationship with the kitchen employees as being an intense situation, especially when the restaurant was busy. Mr. Mack in particular was seen by the Petitioner as being upset when the restaurant was busy. She observed him shaking his spatula and making gestures with his hands and yelling out slurs at the slower servers and picking out problems on the tickets which Petitioner did not believe to be a "big deal." Petitioner described the conduct by Mr. Mack as "ranting and raving." He would remark that he "was not going to do this damn food for you this way" and "this ain't the way its on the fucking menu." By virtue of complaints which Petitioner made to Mr. Stowell there was a period in which Mr. Mack and the Petitioner "just laid off each other." At times Mr. Mack and other cooks called Petitioner a "bitch" or "fucking bitch". Cooks would also refer to Petitioner as "stupid bitch". Petitioner heard cooks refer to Ms. Dixon as "stupid bitch" and Ms. Helms as a "dumb bitch". When this occurred Petitioner observed that Ms. Dixon and Ms. Helms would often cry. Petitioner observed Mr. Mack tell Ms. Helms that she was "crazy", that "crack" drove her "crazy" and had "eaten her brain." Governor Mack referred to Petitioner on one day as "damn bitch". She replied that he was a kid and should not talk to people that way. Petitioner observed the cooks wearing loose clothing such that you could see part of their shorts with words written on the shorts like "yes" and "no". When the cooks bent over in the kitchen Petitioner could see their "cracks". Petitioner considered the clothing that the cooks wore that allowed her to see their shorts to be sexually offensive. What she meant by that is further described as, she "did not like seeing a man with his pants half hanging down" and that "this was a restaurant setting and they were representing the restaurant and that they were dressed just like on the street" and that it was "vulgar to her." Petitioner observed the cooks place their hands in their crotch area where the genitals are and at the same time observed that the cooks were talking about girls using terms like "that baby" or "I got her". Petitioner felt degraded by the profanity directed to her and the conduct that she observed and the physical conduct that she observed on the part of the kitchen employees. Petitioner made a general complaint to Mr. Stowell about the vulgar language used by the kitchen staff. She mentioned in "walking and talking lightly" to Mr. Stowell that he should tell the cooks "to pull up their pants or something and to tell the cooks to dress a little better." Petitioner describes that she had problems getting her orders from the kitchen when she probably did something to irritate the cook. On a few occasions Petitioner believed that the cooks were deliberately delaying her orders, but acknowledges that those were circumstances in which she did not have her ticket correct, though she believes that it was correct enough to have gotten the order out. When these arguments were engaged in with the cooks concerning the delays, the food would be sitting there ready for serving, and it would not be served while the argument went on between Petitioner and the cook. On these occasions the cooks would say "I ain't gonna cook this shit for you" and would call the Petitioner a "bitch". On her last day Petitioner was told by Mr. Mack that he was the only cook scheduled for his part of the restaurant and words to the effect that he "could not believe" that circumstance and complained that Mr. Stowell can't get things right and that he would be glad when Mr. Stowell was gone. Petitioner remarked to Mr. Mack to the effect "are you having a bad morning", and he replied that he was "sick of this." Throughout the morning Petitioner observed that Mr. Mack was under stress and that he was the only cook working in that area. As Petitioner describes the situation on her last day, she delivered a customer a skillet that had broccoli and hollandaise sauce. The customer did not believe that it had enough hollandaise sauce and asked Petitioner to get more. Petitioner left the food order ticket with the customer and took up other duties. She then passed Mr. Stowell and asked him to get the ticket, because she needed to get the customer some more hollandaise sauce. Mr. Stowell said that he would. Petitioner then went to the kitchen area and asked Mr. Mack if he would give her some hollandaise sauce, "this man needs some". Mr. Mack asked where her ticket was for the extra hollandaise sauce. Petitioner told Mr. Mack that Mr. Stowell was coming with the ticket. Mr. Mack said "I ain't giving you shit". Petitioner made a further request for the hollandaise sauce and repeated that Mr. Stowell was coming with the ticket. During this exchange Mr. Mack told the Petitioner to "drop dead" and called her a "white fucking bitch" and that he was "going to stomp her into the ground." When he make these remarks he was yelling. When Mr. Stowell approached Petitioner and Mr. Mack, the cook continued his remarks by saying he was "going to kill" Petitioner and calling her a "fucking white bitch". Mr. Stowell said "here's your ticket, give me the hollandaise sauce now". Mr. Mack responded "I ain't giving you shit either." Mr. Mack told Mr. Stowell "you get that white fucking bitch out of my face, I'm going to kill her. Get her out of this building, get her out of here. I'm going to kill her or stomp her face into the ground". Under these circumstances, in which Mr. Stowell perceived that the Petitioner was at risk, Mr. Stowell told Petitioner to leave and go home. Petitioner started to leave, then told Mr. Stowell, "you are going to have to fire me if I have to leave this job for the way he just talked to me", referring to Mr. Mack's remarks. Petitioner said to Mr. Stowell "please fire me". Mr. Stowell then responded by saying, "go home, you're fired, Elisa; if that's what you want, you are fired". Petitioner then stated to Mr. Stowell "that's all I wanted to hear." In her testimony Petitioner failed to acknowledge that she had been profane to Mr. Mack. Petitioner felt threatened by Mr. Mack and cried. At hearing Petitioner described her motivation on the last day to be that she was not going to quit the job. She was "not going to be cussed like a dog and then have to walk away" and that "it was better to have been fired." Under that arrangement Petitioner testified "I didn't have to ever come back there". After she left the restaurant on the last day that Petitioner was employed at the Parkway restaurant, she told an acquaintance, Ruby Wilson, who works part-time at the Village Inn restaurant on North Monroe Street, and part- time at Jerry's restaurant at the airport, that Petitioner "quit" her job at the Parkway restaurant. Petitioner further told Ms. Wilson that she "wasn't worried about it and would go back, talk to Beth and get the job back". Petitioner had also told the Unemployment Compensation Commission referee, in her hearing on unemployment compensation, that she was "going to make it final that day, and that day I finalized it." She also told the referee that she would have probably quit anyway if circumstances did not improve at the restaurant. Petitioner acknowledged that she used profanity while working at the restaurant such as "damn it, they are not getting my food out for me" or "damn it, I can't believe I'm being cussed at again" or "I just can't take this shit no more". By contrast Petitioner denies profane exchanges with the cooks. That testimony related to exchanges is not accepted. Petitioner remembers the reason Ms. Titze gave her for not reemploying Petitioner was because the Petitioner did not wear pantyhose. An Unemployment Compensation Commission employee advised Petitioner to go back and try an obtain her job and this led to her conversation with Ms. Titze requesting reemployment. Joseph Halladay has worked as a server with Respondent on and off for seven or eight years, but his employment on the shift with Petitioner was only for a couple of weeks at the end of Petitioner's employment. During times when he worked for the Respondent he did not receive any sexual or profane abuse by any of the cooks. He did not observe what he considered to be sexual harassment directed to any other server from the cooks. Mr. Halladay noticed a difference in conduct by the employees at the restaurant when they were in the rush period. In that setting things were hectic. Mr. Halladay has heard employees yell things like "get out of my way or move". On the last day that Petitioner worked at the restaurant Mr. Halladay observed Petitioner and Mr. Mack yelling back and forth one to the other. He does not recall exactly what was being said. He describes the matter as "quite a bit of bickering going on between both parties." As Mr. Halladay recalls, the exchange between Petitioner and Mr. Mack was real loud. Mr. Halladay did not observe the cooks flaunting their genitals or grabbing their crotches or wearing their pants so low that the cooks buttocks could be seen. He did observe their underwear showing. He made no complaint about the latter observation. Mary Darlene Roy worked ten years with Respondent to include part of the time with Mr. Mack. She left that employment at the beginning of 1994. While employed, Ms. Roy did not detect what she considered to be sexual abuse or harassment by Mr. Mack or other cooks. Ms. Roy did observe that when order tickets were not correctly filled out the cooks would get upset. In particular, when the tickets were not right and the cooks prepared the wrong food and had to redo the food preparation, this would upset them. When Petitioner was late to work Mr. Stowell would ask other servers, to include Ms. Roy to cover Petitioner's work station. On some occasions Mr. Stowell had requested Petitioner to pick up a server named Kitty Roe and bring her to work. This made the Petitioner late. On other occasions Petitioner was late for reasons of her own making. On one occasion Ms. Roy overheard Mr. Stowell correct Petitioner for not having a bow tie on. Ms. Roy heard Petitioner and Mr. Mack arguing "a lot". The arguments had to do with orders not being picked up that were "piling up" and tickets that were not being written right. Mr. Mack yelled at Petitioner about those problems. Ms. Roy recalls that Mr. Mack was a stickler about problems with tickets. In Ms. Roy's experience other cooks would get upset when tickets were not being written properly and orders were not being picked up on time. They were not as verbal about the problems as Mr. Mack would be. Ms. Roy never heard Mr. Mack refer to Petitioner as "a fucking white bitch" or "a white bitch". Mr. Titze established that Mr. Mack had worked for the Respondent for approximately five years in the capacity of lead cook. This meant that Mr. Mack was responsible for training cooks. Mr. Titze described Mr. Mack as being very high strung. When tickets were not correct Mr. Mack would pull them down and make the server correct them. If the tickets were not correct the cooks would prepare the wrong food and this would throw the cycle of work off. Under these circumstances Mr. Mack was observed by Mr. Titze to "fly off the handle". Mr. Titze identified that the employee manual prohibits vulgar language or failure to follow a supervisor's instructions. The managers, according to the manual, are expected to squelch the profane language. Mr. Titze confirmed that Mr. Holmes was fired for the sexual advances that he made to Ms. Helms. Other than the Holmes incident, Mr. Titze was not aware of conduct which might be considered sexual harassment. Prior to the events involving the Petitioner's claims related to discrimination on the basis of sex, neither Mr. Titze nor Ms. Titze had received complaints of employment discrimination against Petitioner or other servers. At the end of May, 1993, Petitioner applied for unemployment compensation. She was granted that compensation in July, 1993. Before applying for unemployment compensation Petitioner tried to gain employment at several restaurants other than Respondent's restaurant. She managed to obtain a job at Banjo's restaurant in Tallahassee, Florida, but only worked there for a period of 20 minutes when she was told that she was being dismissed for reasons that were apparently unrelated to her performance at that restaurant. In lieu of compensation, Petitioner participated in the Training Investment Program which allowed her to receive schooling directed toward a profession. That schooling was at Lively Vocational Technical School in Tallahassee, Florida, to become a barber. The tuition at Lively was paid by another program. The Training Investment Program paid $69.00 per week through May, 1994, when Petitioner concluded her schooling to become a barber. In this arrangement Petitioner was not required to seek employment while in school. Petitioner began employment as a barber or hair stylist beginning June, 1994. Petitioner's gross earnings for the period that she worked at the Parkway restaurant were $3,167.50. The value of the TIP income for the year that Petitioner received that money was $3,588.00. The $3167.50 earned by Petitioner when employed by Respondent was for an 11-week period covered by a diary kept by Petitioner related to her earnings as extrapolated by an employe with the Unemployment Compensations Commission. When annualized to represent the period from the beginning of June 1993 until the end of May, 1994, when Petitioner was unemployed and attending barber's school, the anticipated earnings had Petitioner maintained her position with Respondent would have been $14,971.00. That $14,971.00 is offset by the $3,588.00 which she was paid as a participant in the TIP program. Therefore, the backpay, including tips and wages, for the period that Petitioner was out of work would amount to $11,383.00. The only benefit that Petitioner would be entitled to is a week's earnings for a vacation period amounting to $72.00, representing a work week of 34 hours at $2.13 per hour.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That the final order be entered which dismisses Petitioner's claims of discrimination based upon sex. DONE and ENTERED this 24th day of May, 1995, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1995. APPENDIX The following discussion is given concerning the proposed facts of the parties: Petitioner's Facts: Paragraphs 1 and 2 are not necessary to the resolution of the dispute. Paragraphs 3 through 7 are subordinate to facts found. Paragraph 8 is rejected. Paragraphs 9 through 12 are subordinate to facts found. Paragraph 13 is not necessary to the resolution of the dispute. Paragraph 14 is subordinate to facts found with the exception of the latter phrases referring to "mother fuckers" and "fuck you, mother fucker" which phrases are rejected. Paragraphs 15 and 16 are subordinate to facts found. Paragraph 17 is rejected. Paragraph 18 is subordinate to facts found with the exception of the reference to comments about breasts which is rejected. Paragraph 19 is subordinate to facts found. Paragraph 20 is contrary to facts found. Paragraph 21 is accepted in the reference to verbal aggression and is rejected in the reference to physical aggression. Paragraph 22 is subordinate to facts found with the exception of the phrase which says describing their genitals and "you want some of this baby" which is rejected. Paragraph 23 is subordinate to facts found with the exception that the suggestion that the cooks were directing their conduct specifically to the Petitioner is rejected. Paragraphs 24 and 25 are not necessary to the resolution of the dispute. The first sentence to Paragraph 26 is subordinate to facts found. The latter sentence is rejected. The first sentence to Paragraph 27 is rejected. The second sentence is subordinate to facts found. Paragraphs 28 through 30 are subordinate to facts found. The first sentence to Paragraph 31 is contrary to facts found. The second sentence is subordinate to facts found with the exception of the phrase that the attempts to stop the conduct did not do any good which phrase is rejected. The third sentence to Paragraph 31 is subordinate to facts found. Paragraph 32 is subordinate to facts found in its first sentence. The first phrase in the second sentence is subordinate to facts found. The latter phrase is not necessary to the resolution of the dispute. The third sentence is contrary to facts found. The fourth and fifth sentences are rejected in the suggestion that the complaint by the server's father led to the dismissal of the cook. The last sentence in Paragraph 32 is subordinate to facts found with the exception of the suggestion that the complaint was to no avail, which is rejected. Paragraph 33 is subordinate to facts found. Paragraphs 34 and 35 are contrary to facts found in the suggestion that orders were deliberately slowed up resulting in lower tips to the servers. The offensive language that is commented on in Paragraphs 34 and 35 is subordinate to facts found. Paragraphs 36 and 37 are subordinate to facts found. Paragraph 38 is not necessary to the resolution of the dispute. Paragraph 39 is rejected in its suggestion that the Petitioner's nonconformance with uniform requirements were comparable to the experience with other servers in terms of frequency. Paragraph 40 is subordinate to facts found. Paragraph 41 is not necessary to the resolution of the dispute. Paragraph 42 is not necessary to the resolution of the dispute. Paragraph 43 is contrary to facts found in the suggestion that Petitioner was occasionally late, is subordinate to facts found in the remaining phrase. Paragraph 44 is subordinate to facts found. Paragraph 45 is not necessary to the resolution of the dispute. Paragraphs 46 and 47 are not necessary to the resolution of the dispute. Paragraph 48 is subordinate to facts found. Paragraph 49 is not necessary to the resolution of the dispute. Paragraph 50 is subordinate to facts found with the exception of the last sentence which is not necessary to the resolution of the dispute. Paragraph 51 is subordinate to facts found. Paragraphs 52 through 54 are not necessary to the resolution of the dispute. Paragraphs 55 through 63 are subordinate to facts found. The first sentence to Paragraph 64 is not necessary to the resolution of the dispute. The latter sentence is subordinate to facts found. Paragraphs 65, 66 and 67 in the non-parenthetical references are subordinate to facts found. The parenthetical references are an incomplete discussion of the facts found in the recommended order. Paragraph 68 is subordinate to facts found. Paragraphs 69 and 70 are not necessary to the resolution of the dispute. The first sentence to Paragraph 71 is contrary to facts found. The second and third sentences are subordinate to facts found. Paragraph 72 is contrary to facts found in its suggestion that Petitioner did not use profane language in the confrontation with the cook. Paragraph 73 is contrary to facts found. Paragraph 74 is a conclusion of law. Paragraph 75 is contrary to facts found. Paragraph 76 is not necessary to the resolution of the dispute. Paragraph 77 is not necessary to the resolution of the dispute. The first sentence to Paragraph 78 is not necessary to the resolution of the dispute. The latter sentence to Paragraph 78 is subordinate to facts found. Paragraphs 79 and 80 are not necessary to the resolution of the dispute. Paragraph 81 is contrary to facts found. Paragraphs 82 through 88 are not necessary to the resolution of the dispute. Concerning Paragraphs 89 and 90, whatever Petitioner's intentions prior to the confrontation with the cook, once that confrontation transpired Petitioner opted to be fired rather than be sent home to get away from the threats by the cook or to quit her employment of her on volition. Paragraph 91 is subordinate to facts found. Paragraphs 92 through 95 are rejected. Paragraphs 96 through 99 are subordinate to facts found. Paragraph 100 is not necessary to the resolution of the dispute. Paragraph 101 is subordinate to facts found in the first sentence. The latter sentences in Paragraph 101 are irrelevant. Paragraphs 102 through 104 are acknowledged as attempts at impeachment but are rejected in favor of the facts found in the recommended order. Paragraphs 105 through 114 are subordinate to facts found. Paragraph 115 is not necessary to the resolution of the dispute. Paragraphs 116 and 117 are subordinate to facts found. Paragraphs 118 through 120 are not necessary to the resolution of the dispute. Paragraphs 121 through 124 are subordinate to facts found. Paragraphs 125 through 133 are not necessary to the resolution of the dispute. Paragraph 134 is irrelevant with the exception of the last sentence which is subordinate to facts found. Paragraphs 135 through 145 constitute legal argument. Respondent's Facts: Paragraphs 1 and 2 are subordinate to facts found. The first phrase to Paragraph 3 is accepted to the extent that conditions were stressful and the expectation of timely service to patrons. The remaining language in Paragraph 3 is rejected in that it was not established that the employees were aware of any signs that incrementally addressed the time standards for service. Paragraphs 4 through the first two sentences of Paragraph 8 are subordinate to facts found. The phrase pertaining to Petitioner's former employment is not relevant. The remaining portions of Paragraph 8 are subordinate to facts found. Paragraphs 9 and 10 constitutes legal argument. Paragraphs 11 through 13 are not necessary to the resolution of the dispute. Paragraph 14 is subordinate to facts found. Paragraph 15 is not necessary to the resolution of the dispute with the exception of the discussion of the basis for Petitioner's departure from the restaurant on May 15, 1993, which is subordinate to facts found. Paragraphs 16 and 17 are not necessary to the resolution of the dispute. Paragraph 18 is not relevant. Paragraph 19 is subordinate to facts found. Paragraph 20 is not necessary to the resolution of the dispute. Paragraphs 21 through 24 are subordinate to facts found. Paragraph 25 is not necessary to the resolution of the dispute. Paragraph 26 and the first sentence to Paragraph 27 are subordinate to facts found. The remaining sentences within Paragraph 27 constitute legal argument. Paragraph 28 is subordinate to facts found. Paragraph 29 is contrary to facts found. Paragraph 30 constitutes a correct portrayal of the process engaged in by the hearing officer; however, it is not necessary to report those activities in the fact finding. COPIES FURNISHED: Patricia A. Renovitch, Esq. P. O. Box 6507 Tallahassee, FL 32314-6507 Stephen Marc Slepin, Esq. 1114 E. Park Ave. Tallahassee, FL 32301 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Rd. Bldg. F, Ste. 240 Tallahassee, FL 32303-4149 Dana Baird, General Counsel Human Relations Commission 325 John Knox Rd. Bldg. F, Ste. 240 Tallahassee, FL 32303-4149
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all relevant times, respondent, Passport Internationale, Inc. (Passport or respondent), was a seller of travel registered with the Department of Agriculture and Consumer Services (Department). As such, it was required to post a performance bond with the Department conditioned on the performance of contracted services. In this case, petitioner, Patricia Ritter, has filed a claim against the bond for more than $299.00 alleging that Passport failed to perform on certain contracted services. On March 24, 1990, petitioner received an offer by telephone to purchase travel certificates entitling the holder to a five-day, four-night vacation package to the Bahamas plus two nights lodging in both Daytona Beach and Orlando, Florida. The offer was made by Uno Gold Card, a telemarketeer located in Atlanta, Georgia, and authorized to sell Passport's travel certificates. Before agreeing to purchase the certificates, petitioner was told that she could take the cruise at one time and use the Florida portion of her trip at a later date. She was never told that some dates were not available, or that other restrictions on travel might apply. Petitioner agreed to purchase the certificates and authorized a $299.00 charge on her credit card payable to Uno Gold Card. After receiving her travel certificates, which carried the name, address, and logo of Passport International Express, a ficticious name under which Passport was then operating, petitioner decided to use the Florida portion of her trip. She filled out one of the certificates requesting September 3 and 4, 1990, as the dates on which she wanted to begin her four-night stay in Florida. This was because she and her husband were traveling to Florida that week on their vacation and it was the only time period when she could use the certificate. She sent in a $50.00 deposit with her request. On June 28, 1990, respondent returned petitioner's $50.00 deposit and advised her that she "failed to leave the required amount of days between (her) requested travel dates," and thus her reservation could not be honored. She was told to resubmit her form within 21 days. Because petitioner was unable to travel on a different date to Florida, she could not use the certificate. When she contacted Passport for a refund of her money, Passport declined to refund her money and instead told her to contact Uno Gold Card. By now, however, Uno Gold Card was no longer in business. To date, petitioner has never received a refund of her money. Had petitioner been told to begin with that there were restrictions on how and when the certificates could be used, she would not have purchased them. But for this misrepresentation on the part of Passport's agent, the transaction would not have been consummated.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner against the bond of respondent be granted, and she be paid $299.00 from the bond. DONE AND ENTERED this 12th day of December, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 1994. COPIES FURNISHED: Patricia Ritter 154 Midvale Road Wampum, PA 16157 Julie Johnson McCollum 2441 Bellevue Avenue Daytona Beach, FL 32114 Robert G. Worley, Esquire 515 Mayo Building Tallahassee, FL 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard D. Tritschler, Esquire The Capitol, PL-10 Tallahassee, FL 32399-0810
