Findings Of Fact 15. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on October 8, 2010, the Amended Order of Penalty Assessment issued on October 28, 2010, the 2"! Amended Order of Penalty Assessment issued on April 14, 2011, and the 3" Amended Order of Penalty Assessment issued on July 22, 2011, and attached as “Exhibit A,” “Exhibit B,” “Exhibit D,” and “Exhibit F” respectively, and fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Jeff Atwater, Chief Financial Officer of the State of Florida, or his designee, having considered the record in this case, including the Petition from DE REAL TING CAFE, INC., the Stop-Work Order and Order of Penalty Assessment, the Amended Order of Penalty Assessment, the 24 Amended Order of Penalty Assessment, and the 3 Amended Order of Penalty Assessment, and being otherwise fully advised in the premises, hereby finds that: 1. On October 8, 2010, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued a Stop-Work Order and Order of Penalty Assessment in Division of Workers’ Compensation Case No. 10-302-Di to DE REAL TING CAFE, INC. The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein DE REAL TING CAFE, INC. was advised that any request for an administrative proceeding to challenge or contest the Stop-Work Order and Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Stop-Work Order and Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28-106.2015, Florida Administrative Code. 2. On October 8, 2010, the Stop-Work Order and Order of Penalty Assessment was served by personal service on DE REAL TING CAFE, INC. A copy of the Stop- Work Order and Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3. On October 28, 2010, the Department issued an Amended Order of Penalty Assessment to DE REAL TING CAFE, INC. The Amended Order of Penalty Assessment assessed a total penalty of $45,593.28 against DE REAL TING CAFE, INC. The Amended Order of Penalty Assessment included a Notice of Rights wherein DE REAL TING CAFE, INC. was advised that any .request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28-106.2015, Florida Administrative Code. 4. On October 30, 2010, the Amended Order of Penalty Assessment was served by certified mail on DE REAL TING CAFE, INC. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. On November 15, 2010, DE REAL TING CAFE, INC. timely filed a request for administrative hearing (hereinafter “Petition”) with the Department. The Petition was forwarded to the Division of Administrative Hearings on January 10, 2011, and the matter was assigned DOAH Case No. 11-0068. A copy of the petition is attached hereto as “Exhibit C” and incorporated herein by reference. 6. On February 11, 2011, the Department served its First Interlocking Discovery Request (“discovery requests”) with the Division of Administrative Hearings, to which Respondent was required to serve its answers upon the Department within 30 days of service, pursuant to Rules 1.340(a), 1.350(b), and 1.370(a), Florida Rules of Civil Procedure. The Discovery request included requests for admissions, interrogatories, and requests for production. 7. The Respondent did not answer the Department’s Discovery request. Accordingly, on April 11, 2011, the Department filed with Division of Administrative Hearings a Motion to Deem Matters Admitted and to Relinquish Jurisdiction Pursuant to Section 120.57(1)(i), Florida Statutes. 8. On April 14, 2011, the Department issued a 2™4 Amended Order of Penalty Assessment to DE REAL TING CAFE, INC. The 2°¢ Amended Order of Penalty Assessment assessed a total penalty of $2,621.06 against DE REAL TING CAFE, INC. 9. On May 11, 2011, the 24 Amended Order of Penalty Assessment was served by certified mail on DE REAL TING CAFE, INC. A copy of the 2™ Amended Order of Penalty Assessment is attached hereto as “Exhibit D” and incorporated herein by reference. 10. On July 5, 2011, the Administrative Law Judge issued an Order Granting Motion to Deem Matters Admitted and Relinquishing Jurisdiction. A copy of the Order Granting Motion to Deem Matters Admitted and Relinquishing Jurisdiction is attached hereto as “Exhibit E” and incorporated herein by reference. 11. On July 22, 2011, the Department issued a 3 Amended Order of Penalty Assessment to DE REAL TING CAFE, INC. The 3"! Amended Order of Penalty Assessment assessed a total penalty of $1,541.73 against DE REAL TING CAFE, INC. The 3 Amended Order of Penalty Assessment included a Notice of Rights wherein DE REAL TING CAFE, INC. was advised that any request for an administrative proceeding to challenge or contest the 3“ Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the 3" Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28-106.2015, Florida Administrative Code. 12. On September 13, 2011, the 3 Amended Order of Penalty Assessment was served by certified mail on DE REAL TING CAFE, INC. A copy of the 3 Amended Order of Penalty Assessment is attached hereto as “Exhibit F” and incorporated herein by reference. 13. DE REAL TING CAFE, INC. failed to answer the 3" Amended Order of Penaity Assessment or request a proceeding in accordance with Sections 120.569 and 120.57, Florida Statutes. . 14, On October 11, 2011, DE REAL TING CAFE, INC., tendered full payment of the assessed penalty to the Department.
The Issue The issue is whether Respondent discriminated against Petitioner based on Petitioner’s race.
Findings Of Fact Petitioner, Che Johnson, worked as a helper to full-time installers of hurricane shutters with Respondent. He was training to become a full-fledged installer. Respondent, AABC, d/b/a Roll-A-Guard (“Roll-A-Guard” or “Respondent”), is a company that installs hurricane shutters from its offices and warehouse in Largo, Florida. Petitioner filed an Employment Complaint of Discrimination with the Florida Commission on Human Relations against Respondent, stating, under penalty of perjury, that Respondent had 15+ employees. When asked by Respondent’s president why he believed 15 people were employed by Respondent, he was unable to give an answer. Petitioner admitted he never saw 15 people at the warehouse when he was working there. Roll-A-Guard, between October 21, 2016, and January 20, 2017, which covers the entire time Petitioner was employed with the company, never had more than seven employees on the payroll. This was substantiated by a payroll report from Respondent’s Professional Employer Organization and by testimony of Respondent’s president. This number of employees is substantially below the statutorily required number of employees (15) for Roll-A-Guard to be deemed an “employer” for purposes of the Florida Civil Rights Act of 1992. Petitioner, an African-American male, claimed that he was discriminated against on the job by his boss and president of Roll-A-Guard, Andrew J. Ayers, referring to him in a racially discriminatory way when calling on customers on several occasions. Petitioner claims that Mr. Ayers asked customers on three to four occasions whether they thought Mr. Johnson “was as cute as a puppy dog.” This offended Mr. Johnson, and he believed the statement to be discriminatory against him on the basis of his race. Mr. Johnson offered no additional testimony, nor any additional evidence, other than his own testimony that these remarks were made by Mr. Ayers. Mr. Ayers denied, under oath, that he had ever referred to Mr. Johnson as a “puppy dog,” and was especially offended not only that Mr. Johnson never raised the issue with him, but that Mr. Johnson went to the company’s Facebook page after his employment was terminated, and posted comments about Roll-A-Guard being a racist company that discriminated against African- Americans. The other employees of Roll-A-Guard, who testified at hearing, also never heard the “puppy dog” remarks allegedly made, nor did they believe Mr. Ayers was prejudiced in any way against Mr. Johnson. Although the lack of 15 employees by Respondent fails to invoke the jurisdiction of the Civil Rights Act of 1992, the evidence at hearing demonstrates Mr. Johnson’s termination from employment was unrelated to his claim of having been called a “puppy dog” by Mr. Ayers. On the day Mr. Johnson was terminated from employment, January 20, 2017, Mr. Ayers informed the workers that no one should leave the warehouse for lunch due to a rush job on a substantial order of hurricane shutters. Despite Mr. Ayers’ warning, Mr. Johnson left for lunch in the afternoon and was unreachable by Mr. Ayers, who attempted to text him to order him to return to work. Mr. Johnson did not immediately respond to the texts. Although Mr. Johnson eventually responded to the texts from Mr. Ayers after 45 minutes to an hour, Mr. Ayers was perturbed by that point, and actually hired a new worker to replace Mr. Johnson, and told Mr. Johnson not to return to work since he was fired. Mr. Ayers fired Mr. Johnson, in part, because he believed Mr. Johnson was not only leaving for lunch, but for the weekend. Other witnesses working that day confirmed this by testifying they heard words to the effect of “See you Monday.” Mr. Johnson admitted he left for lunch, but testified that he intended to return that afternoon after he had eaten.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that Respondent, Roll-A-Guard, is not an “employer” and, therefore, not subject to section 760.10, Florida Statutes, or any of the provisions of the Civil Rights Act of 1992, and dismissing Petitioner’s charge of discrimination against Respondent. DONE AND ENTERED this 3rd day of January, 2018, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 2018. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed) Che Johnson 2428 Fairbanks Drive Clearwater, Florida 33764 (eServed) Andrew J. Ayers Roll-A-Guard Suite 206 12722 62nd Street Largo, Florida 33773 (eServed) Cheyanne Michelle Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
Findings Of Fact The Petitioner was employed with the Respondent from August 3, 1985 until May 10, 1986, as a waitress in the dining room of the Kings Inn Restaurant in Pensacola, Florida. In March, 1987, the Petitioner became pregnant. She then informed her employer, Mr. Judge of her pregnancy. He told her initially that she could work as long as the doctor allowed her to. Shortly thereafter, he told her that she could not work after five months of pregnancy. On another occasion, his assistant manager, Mr. Dungan, told her that she could not work after she "started showing." Once the Respondent, Mr. Judge, learned of the Petitioner's pregnancy, he began a regime of harassing treatment. For instance, Mr. Judge made her do the "side work," filling up all the salt and pepper shakers and sugar bowls for all of the waitresses and waitress stations. It had always been uniform policy that each waitress had the responsibility to do her own side work for her own station and tables. Mr. Judge also began yelling and cursing at her in front of her workers and customers, causing her great humiliation and embarrassment. He criticized her publicly about her posture and the way she serviced customers, although she had always had an excellent record as a competent waitress and had no complaints from customers or former employers, before announcing that she was pregnant. Mr. Judge also began a practice of constantly questioning other employees about the Petitioner's job performance, although he apparently learned of no substandard performance in both her duties and her attitude toward her customers. He also took her to task about her "charge tips" being less than other employees, apparently the measure he used to determine if a waitress was serving her customers appropriately and adequately. This situation, however, was caused by his discriminatory conduct toward her in giving her fewer tables to serve and thus, reducing her tip income. Mr. Judge additionally assigned her to clean up a portion of the kitchen area, particularly the "bread shelves" when normal policy had been for kitchen personnel to perform all kitchen clean-up duties, with any clean up of the bread shelf area being rotated amongst the dining room personnel. The Petitioner, however, was singled out for this duty exclusively after it became known that she was pregnant. The Petitioner was also required to stay late and perform certain closing duties at the end of business late at night, much more often than other waitresses. In addition to performing restaurant closing duties, she was frequently required to wait on cocktail tables as late as 2:00 in the morning on many of the "late duty" occasions, even though she was hired as, and until she became pregnant worked exclusively as, food waitress. Petitioner's testimony and Petitioner's exhibit 2, in evidence, establishes that, although Petitioner was only scheduled to stay late three times in March, three times in April and once in May that, in fact, she worked late, that is, after all other employees or waitresses had been released for the evening seven out of nine days that she worked in March; nine out of twelve days she worked in April; and six out of the seven days she worked in May. Indeed, on May 10, 1986, the last day she worked for the Respondent, Mr. Judge required her to stay late and to "bus" all the tables, that is clean all the tables, in the dining room, allowing the waitress who was scheduled to stay late that night to leave early. The Petitioner became quite upset at this turn of events and resigned her position, due to the repeated pattern of harassment as described herein. Although Mr. Judge initially told the Petitioner that she could work as long as the doctor allowed her to during her pregnancy, in fact, on April 11, 1986, Mr. Judge hired the Petitioner's replacement. He hired Pamela Modes and had the Petitioner train her in her waitress duties. He stated to Ms. Modes privately when hiring her "that he needed a food waitress" because "he's got a girl that's pregnant." Additionally, he told the Petitioner that he objected to her working because of her pregnancy and claimed his insurance would not allow him to employ her after she was five months pregnant. These statements, coupled with the statement by his assistant manager, Mr. Dungan, to the effect that she would not be employed there "once she started showing" reveal an intent by the employer to terminate the employee, the Petitioner, because of her pregnancy. Instead of terminating her outright, the Respondent chose to put sufficient pressure on the Petitioner through extra, unscheduled work duties and the other above-mentioned forms of harassment, so as to coerce her into leaving the Respondent's employ. The Petitioner thus made a prima facia showing that she was forced to terminate employment due to her sex and her pregnancy, and no countervailing evidence was adduced by the Respondent.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record and the candor and the demeanor of the witnesses, it is therefore RECOMMENDED that a Final Order be entered by the State of Florida Human Relations Commission finding that an unlawful employment practice has occurred through the Respondent's discrimination against the Petitioner because of her sex (pregnancy) and that she be accorded all relief allowed under the above- cited section, including backpay and related benefits in accordance with the requirements of Section 760.10(13), Florida Statutes. DONE and ORDERED this 21st of March, 1989, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 21st day of March, 1989. COPIES FURNISHED: Debra A. Larson, Pro Se 9742 Aileron Avenue, Apt. 606 Pensacola, Florida 32506 Dracut Corporation d/b/a Kings Inn Restaurant Lawrence F. Judge, Jr. Owner/General Manager 1309 Maldonado Pensacola Beach, Florida 32561-2323 Donald A. Griffin Executive Director Florida Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird General Counsel Florida Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
Conclusions The Director, Division of Hotels and Restaurants, Department of Business and Professional Regulation (the Division), after consideration of the complete record of this case on file with the Division, enters this Final Order. 1. On July 24, 2013, the Department issued an Administrative Complaint, a copy of which is attached as Exhibit wie, 2. On October 1, 2013, a hearing in this cause was held before the Honorable Suzanne Van Wyk, Administrative Law Judge, Division of Administrative Hearings. 3. On December 11, 2013, the Honorable Suzanne Van Wyk issued a Recommended Order, a copy of which is attached as Exhibit "2". The Statement of the Issues, Preliminary Statement, Filed January 6, 2014 1:48 PM Division of Administrative Hearings Findings of Fact, Conclusions of Law, and Recommendation contained in the Recommended Order are hereby adopted in toto and incorporated herein by reference. Based upon the foregoing, and being otherwise fully advised in the premises it is, hereby ORDERED that: for Respondent's violations of Section 509, Florida Statutes, and/or the rules promulgated thereto the following penalty is imposed: 1. Respondent shall pay a fine in the amount of $100.00, due and payable to the Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within thirty (30) calendar days of the date this Order is filed with the Agency Clerk. 2. This Final Order shall become effective on the date of filing with the Agency Clerk. DONE AND ORDERED this 3st day of “Pecen Axe , 20/3. Bele Wer fp Dusan S, Weep Diann S. Wordéalla, Director Department of Business and Professional Regulation Division of Hotels and Restaurants 1940 North Monroe Street Tallahassee, Florida 32399-1015
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by Rules 9.110 and 9.190, Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the Department of Business and Professional Regulation, Attn: Ronda L. Bryan, Agency Clerk, 1940 North Monroe Street, Suite 92, Tallahassee, Florida 32399-2202 and a second copy, accompanied by the filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Florida Appellate District where the party resides. The Notice of Appeal must be filed within thirty (30) days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via Certified U.S. Mail to Holland Apartments, c/o Cindy Holland, 162 Rainbow Drive, Fort Walton Beach, Florida 32548; by regular U.S. Mail to the Honorable Suzanne Van Wyk, Administrative Law Judge, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, Florida 32399-3060; and by hand delivery to Marc Drexler, Chief Attorney, Division of Hotels and Restaurants, Department of Business and Professional Regulations, 1940 North Monroe Street, Tallahassee, Florida 32399-2202, this Go day of anvary , 2014 For the Division of Hotels | Hotels and Restaurants “Certified Article Number | oy 71596 4008 9411 516 1790 SENDERS RECORD.“ cory
The Issue Whether Petitioner, a member of a protected class, was terminated from his position with the Respondent in retaliation for reporting an unlawful employment practice that occurred in June 1995.
Findings Of Fact Respondent is an "employer" within the definition found in Section 760.02(6), Florida Statutes. Petitioner was an "employee" of the Respondent as defined in Section 760.02, Florida Statutes, and was employed by Respondent for approximately two years. Aaron Rents, Inc., is a national furniture rental and sales company which does business in some locations, including locations in Florida, as Aaron's Rental Purchase. Petitioner, Jerome Carter, was employed by the company at an Aaron's Rental Purchase store in Kissimmee, Florida, from approximately August 2, 1993, until August 19, 1995. Petitioner was initially hired as a delivery driver and progressed to Assistant Credit Manager, Credit Manager, and finally Sales Manager of the Kissimmee store. In August 1995, Petitioner's immediate supervisor was Store Manager Steven Liberti. Liberti reported to District Manager Leonard Alonzo, who was supervised by Florida Regional Manager Joseph Fedorchak. As the Sales Manager, one of Petitioner's most important job duties was greeting and interacting with customers. He typically had the first contact with each customer as they walked into the store, and his demeanor, as he greeted them, influenced whether they felt comfortable and were likely to make a purchase. Petitioner, however, was not appropriately welcoming and friendly. Petitioner's attitude was withdrawn and not very cordial. Petitioner himself admitted that he "never look[s] happy." Petitioner's sullen demeanor was the topic of numerous discussions with his supervisors. In an effort to address the Petitioner's concerns and improve his work performance, the District Manager initiated a conversation to elicit any complaints the Petitioner might have. Petitioner expressed dissatisfaction with his position as a Credit Manager and the length of time since his last raise. As a result, Alonzo transferred the Petitioner to the Sales Manager position and gave him a pay increase. After the transfer, however, Petitioner's demeanor did not brighten. Concerned, the District Manager again inquired about the cause of the Petitioner's apparent unhappiness. Petitioner merely acknowledged that his attitude needed improvement and promised that he would "straighten up" and "be more outgoing." Each time they had that discussion, however, Petitioner's behavior would improve for only a short time, then return to his previous melancholy. The Store Manager also talked to Petitioner at least twice about his attitude toward his job, telling him that he needed to smile more often. Although the Petitioner's behavior would temporarily change after these discussions, Liberti observed that the improvement lasted only about 24 hours. In August 1995, sales at the Kissimmee store were at an all-time low. Petitioner's supervisors attributed the location's failure to meet its sales goals at least in part to the Petitioner's inability to interact with customers and make sales. After their repeated discussions with him did not result in lasting improvement, the Managers felt they had no choice but to terminate Petitioners employment. Fedorchak concurred that, because the Petitioner could not seem to display an appropriate attitude and demeanor for a Sales Manager, his services were no longer needed. Petitioner admits that when he was discharged, the reason that he was given was that he "did not look happy." Approximately two months before Petitioner left the Kissimmee store, one incident with racial overtones was brought to the Store Manager's attention. In June 1995, store employees Mark Mars and/or Jesus Rivera reported to Liberti that another store employee, Michael Flowers (who is white), had used the term "nigger" during a discussion with store employee Kenny Tatum (who is black). Liberti informed Alonzo about the complaint and an investigation was conducted. When the Managers spoke with Tatum, he explained that Flowers had used the expression "nigger, please," which was slang for "you've got to be kidding," during a conversation between the two men. He assured them that he had not been offended. Nevertheless, because Alonzo and Liberti felt it was highly inappropriate for Flowers to use such language in the store, they gave him a reprimand and warning. In his deposition testimony, Petitioner recalled learning about the occurrence from several other employees. Petitioner did not personally witness it or hear Flowers use the offensive term, but merely claimed to have reported to Liberti what he had been told. According to Petitioner, Liberti responded to this information by affirming that such behavior would not be tolerated. Petitioner admits that he was never told, and had no reason to believe, that Aaron's authorized, encouraged, or instructed Flowers to use racially derogatory language in the store or that he had done so on Aaron's behalf. When Petitioner allegedly reported the occurrence to Liberti, he only believed that a co-employee had made an inappropriate comment at work. The incident involving Flowers and Tatum was unrelated to Petitioner's discharge. None of the three individuals involved in the decision to discharge Petitioner associated him with the incident or any opposition to it. Liberti does not recall discussing the incident with Petitioner, and neither Alonzo nor Fedorchak knew that Petitioner even claimed to have had some involvement in reporting it until after he was discharged. Moreover, none of the conversations among the three about their decision to terminate Petitioner included any reference to Flowers' comment or the subsequent events. No one who opposed the incident suffered any adverse consequences. Rivera and/or Mars reported the comment, and neither of them experienced any unfavorable employment actions as a result.
Recommendation Based upon the testimony and evidence submitted on the record in the formal hearings on this matter and by application of the relevant or governing principles of law to the findings of facts established on such record, it is RECOMMENDED: That the Florida Commission on Human Relations issue a Final Order which dismisses the Charge of Discrimination. DONE AND ENTERED this 13th day of November, 1998, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 1998. COPIES FURNISHED: Jerome L. Carter, Sr. 2188 McClaren Circle Kissimmee, Florida 34744 Daniel F. Piar, Esquire Kilpatrick Stockton LLP 1100 Peachtree Street, Suite 2800 Atlanta, Georgia 30309-4530 Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149
The Issue The issue in this case is whether the Petitioner, the Department of Business Regulation, Division of Hotels and Restaurants (DBR), should revoke or suspend or otherwise discipline the public lodging establishment license held by Salvatore and Carolyn Carpino for alleged violations of the requirements of licensure.
Findings Of Fact In approximately June 1988, the DBR contacted the Carpinos in writing and contacted Salvatore Carpino by telephone to advise them that the DBR had determined that the property they owned at 1323 and 1325 Charlotte Street in Tallahassee, Florida, was a public lodging establishment required to be licensed under Chapter 509, Florida Statutes. The Carpinos disagreed with the DBR's assessment of the status of the property, believing the property not to be subject to licensure, but agreed to submit to licensure as the most expedient way to deal with the matter at the time. In approximately June 1988, the DBR mailed the Carpinos an Application for License form, which the Carpinos partially completed and returned to the DBR with the application fee. Upon receipt of the partially completed form, the DBR completed the "Name of Business" and "Address of Business" parts of the form with the words "Charlotte St Apt" and "1323 Charlotte St," respectively. Based on this application, the DBR issued license number 47-1749H to the Carpinos. Upon inspection of the Carpino property on Charlotte Street on September 19, 1988, a DBR inspector found unacceptably high weed cover across the entire outside premises, together with an unacceptable amount of litter and trash, including food containers, fast food paper, bottles, and baby items. In addition, the garbage dumpster was not water tight and covered. It was missing half of the top lid, and the drain opening at the bottom of the dumpster was not plugged. Finally, the fire extinguisher at one of the four apartments at the 1325 Charlotte Street address had not been serviced and tagged since July 1981. (None of the other residents of any of the other four dwelling units at the 1325 Charlotte Street address or at any of the four dwelling units at the 1323 Charlotte Street address were available to inspection of other fire extinguishers.) The Carpinos were notified by certified mail to correct the noted violations within 10 days. Reinspection on September 30, 1988, disclosed that none of the violations had been corrected. DBR personnel inspected the Carpinos' property again; once in April and twice in August 1989. The yard and garbage dumpster were in approximately the same condition on each inspection. On the last inspection, a "prehearing inspection" on August 17, 1989, the DBR inspector was able to inspect the fire extinguisher at one of the four dwelling units at the 1323 Charlotte Street address and found that it, too, had not been serviced and tagged since July 1981. It can be inferred from all of the evidence, including the Carpinos' testimony, that none of the fire extinguishers in any of the dwelling units at either the 1323 or the 1325 Charlotte Street addresses had been serviced and tagged since July 1981. The Carpino property at 1323 and 1325 Charlotte Street consists of two separate two-story quadraplexes, each on property bearing a distinct legal description--lots 5 and 6, respectively, of Block 3 of the Westview subdivision- -and each encumbered by a distinct mortgage. Physically, the two quadraplexes both face Charlotte Street and are set the same distance back from Charlotte Street. They are very close to each other (and to the property line separating lot 5 from lot 6), separated by only a few feet. Between them is a common wooden stairway set on a concrete slab that connects 1323 to 1325. At the top of the stairs is a wooden platform that also connects the two buildings and serves as access to the second floor unit of each building that is closest to the stairway. The platform area is covered by a small roof that is part of the stair structure, not part of the roof of either of the buildings. The Carpino property on Charlotte Street is not operated under a single business name. The Carpinos identify them as, and operate them as, 1323 Charlotte Street and 1325 Charlotte Street. The name "Charlotte St Apt" was invented by the DBR for purposes of completing the license application, and the name "Charlotte St. Apartments" was invented by the DBR for purposes of the Notice to Show Cause filed in this case. The Carpino property on Charlotte Street is not regularly rented to transients or held out or advertised to the public as a place regularly rented to transients. During the pendency of this administrative proceeding, the annual license that had been issued to the Carpinos came up for renewal. The Carpinos did not renew the license but allowed it to expire on or about June 1, 1989.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, the Department of Business Regulation, Division of Hotels and Restaurants, enter a final order dismissed the Notice to Show Cause in this case. RECOMMENDED this 18th day of October 1989, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 18th day of October 1989.
Findings Of Fact Harlen Brown, was called and testified that he is a member of a corporation which owns the property which is the subject of this hearing and is located at 477 Northwest Lucy Street, Florida City, Florida. He testified that the licensee rented the space from the corporation on a month to month basis and that he was aware of the charges pending against the licensee. 1/ Brown stated that he was experiencing problems with licensee Washington and that residents of the community had also expressed their problems which were in the nature of a nuisance to the community but that the residents are not criminally inclined. Brown indicated that he would file an application to operate the premises as a beer and wine disco arrangement and that it was his intent to renovate the premises and cater to adults and not minors. He expressed the opinion that the problems stemmed from the prior lessees. Brown urged that if the licensee's license was revoked, that it be done without prejudice. Michael Somberg, a beverage officer for approximately 18 months testified that he visited the Spot Bar on November 2, 1975, along with public safety officers Swain, Davis and others at approximately 12 o'clock, based on complaints that minors were consuming alcohol. Police officers that were also on the scene made an I.D. check of all the occupants on the premises and detained a juvenile, Larry Melvin, whose age as subsequently established revealed that he was 15 years old. He at the time of his detainment was carrying a sealed can of Miller's Beer. Somberg tasted and smelled the beer and determined that it was an alcoholic beverage. He placed Melvin under arrest and the beer was given to Officer E. W. Pfitzenmaier, who in turn submitted it to the crime laboratory bureau of the Metropolitan Dade County Public Safety Department for a laboratory analysis report. The examination conducted on the beer submitted that it contained ethyl alcohol 2.01 percent by volume or 1.61 percent by weight. Somberg testified that there was a flurry of activity on the premises when they announced themselves as beverage agents and/or policemen and that there was an attempt by the patrons to rid themselves of several packets and other items which turned out to be contraband. Somberg found one aluminum packet which contained 8 small packets of what appeared to him to resemble cocaine. He also gathered small amounts of marijuana and other paraphernalia from the floor of the premises. He retained the paraphernalia and had a field reagent test conducted on the narcotics. Present with Somberg was Officer Pfitzenmaier who also assisted in gathering the large wrapper which contained the 8 small packets of the white substance which according to him resembled cocaine also. Pfitzenmaier testified that he, at all times, maintained the confiscated items under his care, custody and control until turned over to the Dade County Laboratory Department. The various reports and items were received in evidence and marked for identification as Board's Exhibits 3 through 10. Also introduced was the notice of hearing which was issued to Licensee Washington and as Exhibit Number 12 the notice to show cause why his license should not be revoked. An examination of the items revealed that the licensee and/or his agents sold to a minor a liquid containing ethyl alcohol; that among the items confiscated was heroin and marijuana i.e., 13.6 grams of marijuana and heroin and 8 small packets containing cocaine. Also introduced was a carton containing 100 packages of non Florida tax paid cigarettes which were found on the licensed premises on January 8, 1976. This possession violates Florida Statutes 561.29(1)(B).
Findings Of Fact On October 1, 1978, Respondent initiated its Young Adult Conservation Corps program (YACC) at its Everglades Youth Camp. This facility is located in Palm Beach County on the J. W. Corbett Wildlife Management Area. It has traditionally served as a summer camp for children ages 8 through 14. The YACC was an experimental program funded by the Federal Government and was intended to train hard-core unemployed young people, ages 16 to 23. The enrollees in the program were required to live at the camp, which is located in a remote and isolated area. Petitioner was hired on a temporary basis to serve as a "houseparent." In this capacity, Petitioner was assigned responsibility for the enrollees conduct after the work day. He was to provide guidance during the evening hours and insure that enrollees observed the nightly curfew. Respondent received unconfirmed reports that Petitioner was fraternizing with a female enrollee and warned him that such conduct as unacceptable by letter dated December 7, 1978. Petitioner, who was single and about the same age as the enrollees, was not successful in maintaining the degree of enrollee discipline sought by Respondent. Because Petitioner's difficulty in maintaining the desired atmosphere resulted, in part, from his youth and marital status, Respondent determined that he should be replaced by an older, married couple. This was essentially a policy decision. However, Respondent had also decided to fire Petitioner because of his increasingly poor attitude toward his job and his inability to control the enrollees. By memorandum dated January 5, 1979, Respondent advised Petitioner that he was discharged based on the policy decision to fill houseparent positions with married couples. No reference was made to Respondent's performance in this memorandum.
Recommendation From the foregoing, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding Respondent not guilty of an unlawful employment practice as charged in these proceedings. DONE AND ENTERED this 28th day of June, 1983, at Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1983. COPIES FURNISHED: Scott William Katz, Esquire 3959 Lake Worth Road Lake Worth, Florida 33461 G. Kenneth Gilleland, Esquire 620 South Meridian Street Tallahassee, Florida 32301 Colonel Robert M. Brantly Executive Director Game and Fresh Water Fish Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32301 Richard Williams, Executive Director Florida Commission on Human Relations 2562 Executive Center Circle, East Tallahassee, Florida 32301
The Issue Whether Respondent Employer is guilty of an unlawful employment practice against Petitioner Employee.
Findings Of Fact On or about November 17, 2006, Petitioner filed an Employment Complaint of Discrimination (formerly known as a "Charge of Discrimination") on the basis of disability/handicap and national origin with the Florida Commission on Human Relations. On June 15, 2007, the Commission entered a Determination: No Cause. On or about July 2, 2007, Petitioner filed a Petition for Relief with the Commission. On or about July 5, 2007, this case was referred by the Commission to the Division of Administrative Hearings. On July 18, 2007, a telephonic conference was held to schedule a final disputed-fact hearing date. The hearing date agreed upon was October 1, 2007, and a Notice of Hearing and Order of Pre-hearing Instructions issued on July 18, 2007. Neither party complied with the Order of Pre-hearing Instructions. At the time noticed for October 1, 2007, Respondent appeared for hearing. In the Joint Response to Initial Order, filed July 16, 2007, and in a subsequent Motion filed September 26, 2007, Respondent referred to itself as "Wal-Mart Stores, East L.P. (incorrectly referred-to in the caption as Wal-Mart Stores)," but made no motion to correct the style of this cause. Respondent acknowledged in its pleadings, and its counsel acknowledged orally at hearing, that it was the appropriate Respondent in this cause, regardless of the case's style. After waiting 30 minutes, Petitioner still had not appeared for hearing. The undersigned made diligent inquiry to ensure that Respondent had done nothing to discourage Petitioner from appearing, and closed the hearing.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Employment Complaint of Discrimination and a Petition for Relief. DONE AND ENTERED this 3rd day of October, 2007, in Tallahassee, Leon County, Florida. S ___ ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of October, 2007. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Amy Harrison, Esquire Lindsay A. Connor, Esquire Ford & Harrison 225 Water Street, Suite 710 Jacksonville, Florida 32202 Catrina Soriano 1826 Nekoma Court Tallahassee, Florida 32304
