Findings Of Fact Petitioner Edward Lindsey was continuously employed by Respondent White Auto Parts between 1952 and 1989 (37 years). He was 64 years old at the time of his separation from White Auto Parts. White Auto Parts is a family-owned corporation for wholesale and retail auto parts sales. At all times material, it had eight stores and a warehouse operation in and around Gainesville, Florida. Retail sales are made over the respective store counters, and outside salesmen and inside salesmen handle wholesale sales. Inside salesmen stay at a desk in a specific assigned store and conduct most of their sales by telephone. William Thomas Hawkins, M.D., is Chairman of the Board and President of White Auto Parts. Dr. Hawkins is involved in the policy decisions affecting the management of the corporation, but is not generally involved in day-to-day business operations, including personnel matters. However, during substantially the whole of his leadership, Dr. Hawkins has urged day-to-day management personnel to hire college educated persons and/or enthusiastic and aggressive people. Usually, in connection with these urgings, Dr. Hawkins has referred to these recruits as "young," "college-educated," "new blood," or the equivalent. Despite occasional comments on individual employees being "old" or "slow," there is no evidence of a concerted effort by Dr. Hawkins to terminate or force early retirement on all employees 55, 60, or 65, or any other age for any reason, including replacement by younger, aggressive personnel. Petitioner Lindsey was initially employed in the shipping department, then worked at the counter. For the last 25 years he was employed as an outside sales person, a position he truly enjoyed. Petitioner's duties as an outside sales person included calls on independent accounts (garages, car dealers, and persons in the automotive business) to make presentations of stock, as well as to handle refunds and credits on defective returns and cores. He was also expected to develop new accounts. Outside salesmanship involved local travel by company car, getting in and out of the car many times a day, lifting heavy parts, and significant paperwork. By all accounts, it was significantly strenuous, physically. In the early years of his employment as an outside sales person, Petitioner was compensated on a commission basis, but that was gradually changed after Joe Nave became general manager of the company. At all times material, Joe Nave was general manager of White Auto Parts, with responsibility for managing day-to-day operations and for hiring and firing personnel. Seven years before Petitioner's separation, Mr. Nave intended to replace Petitioner with a younger, more aggressive person because of Dr. Hawkins' directions to seek such people out and because he was dissatisfied with Petitioner's sales performance. However, Petitioner improved his performance on the road and complied with Mr. Nave's sales policy, and thereafter Mr. Nave had no further cause to speak on the subject to Petitioner again. The situation at that time had been either based on personality problems between the two men or upon Petitioner's work performance, but not upon Petitioner's age per se, and the problem was cleared up at that time. Approximately one year before his separation, Petitioner was called in and by agreement was put on a straight salary of $370.00 per week. Later, Mr. Nave sought to reduce that amount, but Petitioner refused to accept the reduction. Nothing more was said thereafter about this request of Mr. Nave, and there is no evidence in the record to explain why the request was ever made. On the whole, Petitioner and Joe Nave had a less than cordial business relationship over the whole of their association. Mr. Nave was, by all accounts, a "hyper" or choleric personality with an aggressive, if not downright belligerent, managerial style. Very simply, Mr. Nave wanted to know where all his employees were all the time, and he yelled and "cussed" a lot over every little thing. Petitioner found his superior's use of swear words particularly unappealing and inferred that the cussing was directed at him, even if Mr. Nave actually intended it toward other persons or inanimate objects. On September 6, 1989, Petitioner had surgery for prostate cancer. He was hospitalized for approximately ten days. Petitioner received a call from Mr. Nave after he got out of the hospital. At that time, Mr. Nave told Petitioner that his vacation and sick leave had been used up and his paychecks would stop, according to company policy. Petitioner knew that company policy was exactly what Mr. Nave had represented, but he anticipated trouble which was never threatened. Petitioner thought: So then I got to thinking, once before Mr. Nave had asked me, when I was sick prior years back from that, now, this was a different time . . . and he wanted to know if the doctor released me, and I said, "No sir. He will not release me for another week." And he went out of the office saying, well, he's going to get him another guy to replace me then, which it didn't take place, of course. So then I got to thinking about this thing. He called me, reminding me about my vacation time, and I guess at that time I was thinking, well, maybe he's going to pull one and replace me, so -- (TR-16) Petitioner returned to work on Monday in the second week of October 1989. At the time, he was still wearing a catheter and two drain tubes in each side. Despite Petitioner's suspicions and despite Mr. Nave's phone call, the Respondent employer kept Petitioner on at full salary until he came back to work. After being at work one week, Petitioner felt he had "over done it." On the following Monday, he told Joe Nave that he was going to try to work a few more days, but then might need some more time to recuperate. The following Thursday, Petitioner attempted to speak with Mr. Nave regarding feeling too ill to continue any further that day, but was unable to do so because when Petitioner finished his paperwork, Mr. Nave had already left. Petitioner left the keys to the company car on Mr. Nave's desk and told Arnold Reed, the purchasing agent, that he was going to have to go home. Mr. Reed noticed that Petitioner was not looking well and offered to take him home, but Petitioner called his wife, who came and got him. On Friday, Petitioner did not report for work or call in to Respondent. That day, he traveled to South Carolina with his son-in-law. Petitioner did not return to work the next Monday. That day, Arnold Reed told Joe Nave that Petitioner had had to go home Thursday. After Mr. Nave expressed his shock that Petitioner had not talked to him personally, Mr. Reed explained to Mr. Nave that it was obvious that Petitioner had been ill. Respondent presented no proof that it had a published personnel policy requiring Petitioner to remain on the premises, despite the circumstances, until he could be excused by Mr. Nave personally. That same Monday, Joe Nave called Petitioner's home and left word for Petitioner to return his call. Several days later, Petitioner's wife, Jean Lindsey, contacted Joe Nave to explain Petitioner's reasons for his absence. The tone and content of their conversation are disputed. Among other matters, Mrs. Lindsey testified that Mr. Nave informed her that Petitioner no longer had a job at White Auto Parts and was verbally abusive about Petitioner's absence and trip to South Carolina. Mr. Nave testified that he did not terminate Petitioner but only reiterated that Mrs. Lindsey should have Petitioner see Mr. Nave as soon as he returned home. Despite the foregoing contradictions, the two witnesses concur that Mr. Nave did, in fact, also tell Mrs. Lindsey that he had already given the company car and the accounts assigned to Petitioner to someone else. It was from this comment, made in the "heat of battle" as it were, that Mrs. Lindsey reasonably inferred that Mr. Nave had hired a replacement for, or had transferred another employee into, Petitioner's outside salesman position. 1/ However, somewhat contradictorily, Mrs. Lindsey also testified that although Mr. Nave had stated that Petitioner could come in and work on a part-time basis, she still concluded that Petitioner had been fired outright. Visibly upset, she exited the store where she had spoken on the telephone with Mr. Nave and told Howard Newsome, a long time employee, that Mr. Nave had fired Petitioner. As a result of her contact with Mr. Nave, Mrs. Lindsey called Dr. Hawkins, president of the corporation, to discuss Petitioner's job. She advised Dr. Hawkins during their telephone conversation that Petitioner was very ill, that he had not done well post-surgery, that he needed time off, that he had left the previous week to go to South Carolina to rest and recuperate, that previously he had come back to work with a catheter and two drains in him, and that he just was not up to coming back to work. She also told him Petitioner had been discharged for not coming to work. At that point, Dr. Hawkins directed Mrs. Lindsey to have Petitioner contact him upon his return so that a meeting could be set up to hear both sides and work out the situation. Upon returning from South Carolina on Saturday, Petitioner was informed by his wife that he had been fired from his job at White Auto Parts by Joe Nave, but she also told him about Dr. Hawkins' message. Petitioner phoned Dr. Hawkins as requested who offered to "iron things out." Dr. Hawkins set up a meeting among himself, Joe Nave, Petitioner Lindsey, and Mrs. Lindsey. At the meeting, Dr. Hawkins assumed Petitioner was still wearing the drain and catheter Mrs. Lindsey had described to him. He did not inquire about them and so he did not know they had been removed sometime before the meeting, which took place on October 31, 1989. The only persons present for the entire meeting were Petitioner, his wife, and Dr. Hawkins. Also present at the beginning of the meeting was Joe Nave, and at the very end of the meeting, Sherry Deist. At the beginning of the meeting, Dr. Hawkins had Petitioner's sales reports in front of him because he and Joe Nave had just gone over Petitioner's entire record and agreed on what they could offer Petitioner to resolve the situation. Dr. Hawkins perceived the situation to be that Petitioner was a long- time employee, not yet released from post-surgery medical care, who had come back to full-time employment too soon to be able to do the strenuous work of full-time outside salesman and who was afraid of losing his job because he had not and could not report in to do it. Petitioner and Mrs. Lindsey perceived the problem as Petitioner already having been unjustly terminated from his outside salesman job and that reinstatement to that position was the only result that would satisfy them. Because the sales reports were in front of Dr. Hawkins at the beginning of their meeting, Petitioner became defensive, since, by his perception, for years he had never been told that his work was unsatisfactory or inadequate nor had he received any documentation to that effect. 2/ Despite obvious biases, Petitioner's description of this part of the meeting is the most credible of the several conflicting versions, and it is found that Dr. Hawkins did make comments about sales being down, about Petitioner slowing down, about Petitioner being unable to continue in outside sales work, and about Petitioner being "burned out" physically. Nonetheless, Dr. Hawkins offered Petitioner the opportunity to return to work at the less strenuous position of inside salesman. 3/ There is conflict in the testimony as to whether or not Dr. Hawkins ever clearly stated that Petitioner had never been terminated, but it is most probable from the circumstances that this was never specifically stated. There is also conflict in the testimony as to whether or not Dr. Hawkins ever clearly stated that he would pay Petitioner half pay until he could return to work, would pay Petitioner part-time wages for part-time work as an inside salesman until he could work full-time, and would pay Petitioner full-time pay as an inside salesman indefinitely. The evidence is also unclear as to whether or not the inside salesman Petitioner would replace was making $370.00 per week or slightly less. Consequently, it is possible and even reasonable that Petitioner could have inferred from Dr. Hawkins' offer that even as a full-time inside salesman, Petitioner would not make exactly the same pay rate as he had been making as a full-time outside salesman. However, it is clear and undisputed that even if Dr. Hawkins was noncommittal in response to Petitioner's pleas to keep his outside job, Dr. Hawkins did offer Petitioner a less strenuous but substantially comparable inside job, which Petitioner rejected. Petitioner concedes that neither Mr. Nave nor Dr. Hawkins ever stated that he had been or was being terminated. Petitioner's primary reason for rejecting the inside salesman's job was that the desk he would work from as an inside salesman was located in the same office with Joe Nave's desk. Petitioner, his wife, and Joe Nave all agree that Petitioner rejected the inside job regardless of any beliefs Petitioner held about what salary was involved and regardless of whether it was a part-time or full-time job, purely because the inside salesman job offer was not a return to his same outside sales job and because he refused to share an office with Joe Nave, the superior he believed had fired him. At that point, Petitioner's refusal of the inside sales job, Petitioner's wife's insistence that Joe Nave had already fired Petitioner, and Joe Nave's response became so loud, adamant, and vitriolic that Dr. Hawkins tried to calm the situation down by asking Joe Nave to leave the meeting and the room. After Joe Nave left, the meeting among Petitioner, his wife, and Dr. Hawkins continued in only a slightly calmer atmosphere. Petitioner never specifically told Dr. Hawkins he was able to return to his outside sales job that day. According to Petitioner's testimony at formal hearing, at the time of the meeting on October 31, 1989, he felt that he could have resumed his duties, but that he could not have daily serviced his usual number of accounts. At the meeting, Dr. Hawkins remained under the mistaken impression that Petitioner was still wearing the drains and catheter. Therefore, Dr. Hawkins still would not make any statement binding the Respondent corporation to return Petitioner to his outside salesman job. Dr. Hawkins asked Petitioner whether he had been released by his treating physician. Petitioner told Dr. Hawkins that he still needed to see his doctor on November 10. 4/ Dr. Hawkins told Petitioner they would meet after November 10 to "iron out" the situation. Dr. Hawkins called in the corporate comptroller, Sherry Deist, and instructed her to pay Petitioner half pay until November 10. There is no evidence that Respondent had any policy or employee plan that would have provided Petitioner with any pay at all after his vacation and sick leave was used up. Even though Petitioner's vacation and sick leave had run out, Respondent had actually paid Petitioner full pay until he returned to work. 5/ Respondent also paid Petitioner full pay while he tried to work for approximately 10 days before he was "done in" and went home to recuperate. Respondent continued to pay Petitioner full pay while he was in South Carolina and for the few interim days up until the October 31 meeting. From October 31 until November 10, 1989, Respondent paid Petitioner half salary. Dr. Hawkins anticipated hearing from Petitioner on or about November 10, 1989 as to whether or not he had been released by his doctor. Dr. Hawkins had planned to set up a new meeting to work out Petitioner's job status at that time, but Petitioner never called Dr. Hawkins to set up such a meeting. At Dr. Hawkins' request, Sherry Deist called Petitioner on or about November 10, 1989 to ask if he had called Dr. Hawkins. Petitioner told her that he had not called Dr. Hawkins and that it was Dr. Hawkins' duty to set up a new meeting. Ms. Deist offered Petitioner Dr. Hawkins' phone number, but Petitioner said he had it. Sherry Deist relayed this information to Dr. Hawkins. It is Respondent's policy that unless an employee personally asks to have a check mailed, he must pick it up personally. At Ms. Deist's request, Petitioner came in to see her to pick up his check covering the November 10 date. Dr. Hawkins could have initiated a phone call or set up another job status meeting at that point, but he deliberately did not. Based upon gossip that Petitioner had never been released by his doctor, was seeking employment elsewhere, and/or was hiring a lawyer to fight his termination, none of which conflicting hearsay statements were ever established to be true, Dr. Hawkins did not initiate any further direct contact between himself and Petitioner and told Sherry Deist to keep good notes whenever she talked to him. Up to this point, Respondent had treated Petitioner in every way as if he were still employed. Dr. Hawkins' open-ended offer of another meeting to "iron out" the situation made it unreasonable of Petitioner to continue to insist that he had been terminated by Joe Nave and refuse to contact Dr. Hawkins. Also, it was reasonable, on the basis of his past experience in the Respondent's employ, for Petitioner to know, regardless of the confusion, that the burden was on him to make clear to his employer, probably through a written medical release, that he was medically able to resume his duties. 6/ Sherry Deist then phoned Petitioner, pursuant to COBRA, to inquire whether Petitioner wished to continue his group medical insurance. When he replied affirmatively, she told Petitioner he could mail Respondent a check. No evidence was presented to show that COBRA requires offering this insurance option only if Petitioner were terminated or if the employer would also have had to offer it upon Petitioner's retirement. Later, Ms. Deist called Petitioner and asked him to fill out his retirement papers. Although Petitioner told Ms. Deist that he had not retired, but had been terminated, he also requested her to fill out the retirement papers for him. He signed them in January 1990. Prior to his surgery, Petitioner was 64 years old, and the other outside salesman, Ed Girton, was 58. Mr. Girton left Respondent's employ for another job in August 1989, a month before Petitioner's surgery. Shortly prior to the time Petitioner had surgery, Respondent offered an outside sales job to Mike Monaghman, age 35. Mr. Monaghman did not accept the offer. There is no clear evidence which outside sales position was being offered to Mr. Monaghman, but it is most probable that it was the one previously held by Mr. Girton. Eventually, Rick Thames, age 36-37 took that position. Rick Thames was not hired from outside but previously had been a counter man for Respondent. He lasted only eight months on the outside and requested to return to counter work. Petitioner's position was not covered by anyone for the first two weeks he was out sick. From approximately the time of Joe Nave's acrimonious phone conversation with Mrs. Lindsey, wherein he told her he had given Petitioner's accounts and car to someone else, until May 1990, Petitioner's accounts were covered by Burt Oliver, 66 years old, who already worked for Respondent in parts management only three days a week to supplement his Social Security retirement income. When Mr. Oliver could no longer cover the accounts in three days, he returned to inside employment in parts work and his outside accounts were given to a younger man, Mark Roberts, who was 32 years old. Mark Roberts was hired from outside, but the record is unclear as to precisely when. Since 1989, both outside sales positions have been filled by a succession of people at various times and the territories were reorganized at approximately the time Burt Oliver returned to inside employment. Eventually, the persons placed in outside sales were Mark Roberts, 32, Phil Snyder, a man in his 50's, and Wayne Butler, age 40. Respondent's car formerly used by Petitioner in outside sales was used by Burt Oliver and by just about every other White Auto Parts employee on a haphazard basis until it was sent for repair. The Respondent currently employs at least 20 people over the age of The Respondent currently employs, and consistently has employed, many employees over the age of 60, but most of these work/worked only part-time to supplement their Social Security retirement income. There are currently two full-time employees over sixty. One is approximately 70 years old and was hired after Joe Nave left the Respondent for other employment. Petitioner has remained under a physician's care on a three-months- return-visit basis.
Recommendation Upon the foregoing findings of fact and conclusions of law it is recommended that the Florida Commission on Human Relations enter a Final Order dismissing the Petition and denying the prayed-for relief. RECOMMENDED this 25th day of November, 1991 in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 25th day of November, 1991. 1/ See
The Issue Whether Respondent, the University of Florida, discriminated against Petitioner, Tracey Krefting, previously known as Tracey Hardin, on the basis of a handicap as alleged in the Petition for Relief filed by Petitioner.
Findings Of Fact The Parties. The Petitioner, Tracey Krefting, formerly known as Tracey Hardin, is a handicapped individual. She suffers from seizure disorder. Ms. Krefting graduated from the University of Florida in May of 1990. She received a bachelor of science degree with a major in advertising. Ms. Krefting had experience as an advertising sales representative prior to her employment by the Respondent. The Respondent, the University of Florida (hereinafter referred to as the "University"), is a State university located in Gainesville, Florida. Within the College of Journalism and Communications of the University is a radio station, WRUF. WRUF was an auxiliary operation of the University responsible for raising revenue to fund all of its expenses, including the salaries for its sales representatives. No state funding was received directly or indirectly from the University by WRUF. Ms. Krefting's Employment by the University. Ms. Krefting was employed by the University at WRUF on July 28, 1992. Ms. Krefting was employed as "OPS", other personnel services. Ms. Krefting was employed to act as one of six or seven sales representatives of WRUF. As of January 29, 1993, Robert Clark was the General Manager of WRUF. Mr. Clark was Ms. Krefting's supervisor from January 29, 1993 until her termination from employment. Sales Representative Qualifications. The essential function of sales representatives for WRUF was to sell radio time for advertising. This function was an essential function because the revenue necessary to operate WRUF was generated in this manner. Sales representatives were responsible for servicing existing clients and for finding new clients. An essential requirement of the sales representatives of WRUF, including Ms. Krefting, was the ability to travel to the businesses and offices of WRUF's advertising clients and prospective clients. Sales representatives were generally required to spend 80 percent of their working hours out of the office servicing clients and seeking new clients. Continuous contact and an ongoing relationship with clients was required. Contacts with clients were expected to be face to face and not just over the telephone. In addition to being required to make regular contacts with clients, sales representatives were also required to make themselves available to visit their clients with little notice. Obtaining new clients usually required more than one contact with a prospective client by a sales representative. The sales representative was required to sell himself or herself and the station and must gain the trust of the prospective client. Sales representatives were also responsible for performing public service work. This work entailed the providing of public service announcements. The public service work performed by sales representatives did not directly generate revenue for WRUF. Neither the application for employment completed by Ms. Krefting when she was initially employed at WRUF nor the University's OPS personnel requisition form authorizing her employment included any of the necessary skills or qualifications for the sales representative position she was hired to fill. Ms. Krefting was aware at the time she was hired, however, that she would be required to travel to her clients locations and to the locations of prospective clients. There are other means of transportation available which would have allowed Ms. Krefting to reach clients and prospective clients: vehicle driven by a hired driver, public transportation, taxi, and walking. The evidence failed to prove, however, that there were any reasonable means of transportation available to Ms. Krefting other than driving herself which would have allowed her to meet the requirements of a sales representative for WRUF. Ms. Krefting's Handicap. On April 18, 1993, Ms. Krefting fell while rollerskating. Ms. Krefting hit her head on the ground when she fell. On April 19, 1993, Ms. Krefting was admitted to the emergency room of the North Florida Regional Medical Center. The evidence failed to prove that the injury she suffered on April 18, 1993, caused Ms. Krefting to suffer any seizure. On May 6, 1993, Ms. Krefting suffered a seizure while leaving her home to go to work. Ms. Krefting was ultimately diagnosed as having "seizure disorder." At all times relevant to this proceeding, Ms. Krefting suffered from a "handicap." Ms. Krefting's Inability to Drive. On or about May 18, 1993, Ms. Krefting provided a letter from George Feussner, M.D., dated May 18, 1993, to Mr. Clark. In the letter Dr. Feussner indicated that Ms. Krefting was able to return to work but that she could "not operate a motor vehicle " Although Dr. Feussner did not indicate how low Ms. Krefting would be unable to drive, Ms. Krefting informed Mr. Clark that Dr. Feussner had informed her that she would not be able to drive until she was seizure free for one year from the date of her last epileptic seizure, May 6, 1993. As a result of the restriction on Ms. Krefting's ability to drive and based upon Florida law, Rules 15A-5.003 and 15A-5.004, Florida Administrative Code, Ms. Krefting was unable to drive herself to see existing or prospective clients until at least May 6, 1994. Ms. Krefting discussed with Mr. Clark the possibility of hiring a "tenant" of hers to drive her around. Ms. Krefting did not identify the "tenant." Nor did Ms. Krefting inform Mr. Clark that she had completed making arrangements with anyone to drive her. Mr. Clark did not preclude Ms. Krefting from making arrangements to have someone provide transportation for her. Mr. Clark did tell Ms. Krefting that it would have to be determined what implications, if any, a driver would have on WRUF's workers compensation coverage. The resolution of this issue was to be delayed, however, until Ms. Krefting made concrete arrangements for a driver and discussed those arrangements with Mr. Clark. Ms. Krefting failed to finalize any arrangement for a driver. Had Ms. Krefting provided her own driver, at her own expense, Ms. Krefting may have been able to meet the requirement of her position that she be able to provide her own transportation. Ms. Krefting, however, did not take the necessary steps to hire a driver prior to her termination from employment. Ms. Krefting talked to her tenant, Kenneth Vest, about acting as her driver. Mr. Vest worked in the same building that Ms. Krefting did. Mr. Vest worked Sunday through Wednesday from 3:30 p.m. to 1:30 a.m. He was, therefore, generally available for part, but not all, of Ms. Krefting's working hours. Mr. Vest was generally willing to drive Ms. Krefting, if he were compensated. Ms. Krefting did not discuss with Mr. Vest the exact hours that he would be expected to drive her or her schedule. Nor did Ms. Krefting discuss compensation with Mr. Vest. Ms. Krefting failed to prove that Mr. Vest or any other individual was available at any time relevant to this proceeding, or at the final hearing, to provide transportation for her in a manner that would fulfill her responsibilities as a sales representative. Because of the restriction on Ms. Krefting's ability to drive and her failure to make alternative arrangements to have someone like Mr. Vest drive her, Ms. Krefting failed to prove that she met all the qualifications of her position with WRUF. Ms. Krefting did not meet all the qualifications of her position. But for her handicap, however, Ms. Krefting would have met all of the qualifications of a sales representative. The University's Decision to Terminate Ms. Krefting's Employment. On or about May 24, 1993, Mr. Clark informed Ms. Krefting that WRUF could not continue to employ her because of her inability to drive. Ms. Krefting suggested alternative means of meeting her responsibilities with Mr. Clark when she was informed that WRUF would not be able to continue her employment. Mr. Clark considered the suggestions, but did not accept any of them. On June 16, 1993 Mr. Clark agreed to extend Ms. Krefting's termination date to accommodate her efforts to find another postition within the University. Ms. Krefting was ultimately terminated from employment in early July of 1993. Ms. Krefting was terminated because she was prohibited from driving her vehicle and there was no other reasonable means of meeting her responsibilities to service clients and prospective clients. The University's Inability to Accommodate Ms. Krefting's Inability to Drive. During 1993, the financial condition of WRUF was precarious. WRUF was operating at a loss. Three employees had been terminated and a department had been eliminated. Another vacant position had not been filled. WRUF was forced to borrow funds from the University and a foundation account in order to continue operating. At all times relevant to this proceeding, WRUF was unable to create a newly funded position or to allow a sales representative to fail to generate reasonably expected revenues. Ms. Krefting suggested several possible alternatives to accommodate her inability to meet her requirement that she be able to drive. The suggestions were discussed with, and considered by, Mr. Clark. One suggestion Ms. Krefting made to Mr. Clark was to create a new position. The position would entail performing all of the public service work of the sales representatives. Mr. Clark rejected this proposal because it entailed the creation of a new position. The creation of a new position was not a reasonable accommodation. The creation of a new position, especially one that did not generate revenue, would have created a financial hardship on WRUF. The evidence also failed to prove that the public service work could be performed without the need for travel. A second suggestion Ms. Krefting made to Mr. Clark was to restructure her position so that she would be responsible for the preparing of proposals, filing, handling incoming sales calls and telemarketing. In effect, this suggestion also entailed the creation of a new position. This suggestion was rejected by Mr. Clark. Ms. Krefting's second suggestion was not a reasonable accommodation. It would have created an undue financial hardship on WRUF because there was not sufficient work to justify such a position. A third suggestion made by Ms. Krefting to Mr. Clark was that she be teamed with another sales representative who would do all the driving. Mr. Clark rejected this suggestion. Ms. Krefting's third suggestion was not a reasonable accommodation. Teaming two sales representatives would have reduced the effectiveness of two sales representatives who would be available to visit different clients and prospective clients at the same time if they were not teamed. This would have created an undue financial hardship on WRUF. A fourth suggestion made by Ms. Krefting to Mr. Clark was that she use public transportation and taxis. Mr. Clark rejected this suggestion. Although it is questionably whether Ms. Krefting's fourth suggestion constitutes an accommodation, to the extent that it does, it was not a reasonable accommodation. Public transportation does not provide the flexibility required of sales representatives because of the inadequacy of routes and schedules of available transportation. A fifth suggestion made by Ms. Krefting to Mr. Clark was that she provide her own driver. It is questionable whether the use of a driver, as suggested by Ms. Krefting, constitutes an accommodation. To the extent that Ms. Krefting was suggesting that WRUF provide her a driver, her suggestion was not a reasonable accommodation. If WRUF had been required to provide the driver, it would have caused an undue hardship on WRUF. Finally, Ms. Krefting suggested that a student intern from the University's College of Journalism be assigned to work with her and that the intern provide the driving required by her position. Mr. Clark rejected this suggestion. Ms. Krefting had discussed the idea of using an intern with Dr. Joseph Pisani, the Chair of the Advertising Department of the College of Journalism. Although Dr. Pisani was not opposed to the use of an intern-if the intern was properly used-he was opposed to the use of an intern primarily or exclusively as a driver. The suggestion that interns be used was not a reasonable accommodation. Student interns usually are only available to work as an intern for a maximum of 12 hours a week. Additionally, the 12 hours a week that an intern would be available depends upon their class schedule. Therefore, student interns would not be available for a sufficient period of time for Ms. Krefting to fulfill the responsibilities of her position. Although it is not impossible to find a student that would be willing to act as an intern full-time, the evidence failed to prove that it was likely that a student could be found that would be willing to take no classes for up a year or that it would be financially feasible for a student to do so. Mr. Clark did not actually attempt to implement any of Ms. Krefting's proposals. Mr. Clark also did not "consult with any experts" about the proposed accommodations. Mr. Clark's failure to attempt to implement any of the proposals or to consult with experts was not, however, necessary. The issue confronting Mr. Clark was not one involving a decision which required special knowledge or understanding of Ms. Krefting's handicap, or the needs of persons who suffer from seizure disorder. The only issue confronting Mr. Clark was how to accommodate the inability of a sales representative to transport herself to meet the needs of clients and prospective clients. Mr. Clark had all the necessary information to decide how to deal with this issue: Ms. Krefting, regardless of her condition or needs, was prohibited from driving an automobile for at least a year. Mr. Clark was fully aware of the impact of this restriction on WRUF and the resulting inability of a sales representative to carry out their responsibilities. The suggested accommodations made by Ms. Krefting also required no special knowledge or understanding. The suggestions only required an understanding of the needs of WRUF and what was expected of sales representatives. Ms. Krefting's Loss of Income. Subsequent to her termination by WRUF Ms. Krefting remained unemployed until February of 1994. After her termination by WRUF Ms. Krefting received unemployment benefits of approximately $3,500.00 Ms. Krefting earned $800.00 for part-time employment in March of 1994. Ms. Krefting was unable to work from April of 1994 until June of 1994. Ms. Krefting is currently employed. Ms. Krefting's Complaint. Ms. Krefting filed a Charge of Discrimination with the Commission on or about August 18, 1993 alleging that the University had discriminated against her on the basis of her handicap. On or about January 21, 1994, the Commission entered a Notice of Determination: No Cause, finding no reasonable cause to believe that an unlawful employment practice had occurred. On or about February 17, 1994, Ms. Krefting filed a Petition for Relief contesting the Commission's determination. The Petition was filed with the Division of Administrative Hearings. Conclusion. The evidence in this case failed to prove that the University terminated Ms. Krefting's employment because of her disability. Ms. Krefting was terminated by the University because she could not meet all of the requirements of her position. The evidence failed to prove that the University could reasonably accommodate Ms. Krefting's inability to drive without undue hardship to WRUF's activities. Ms. Krefting failed to prove that the University discriminated against her on the basis of her handicap.
The Issue Whether Petitioner is required to pay sales tax on the commission its pays to property owners for the right to place and operate air and vacuum machines at various locations in central Florida.
Findings Of Fact Petitioner owns coin-operated air and vacuum machines, which it places at numerous convenience store and gas station locations throughout central Florida. The State of Florida, Department of Revenue, is an executive agency of the State of Florida, which is statutorily charged with the administration and enforcement of Florida's sales tax laws. The Department conducted an audit of Petitioner following the discovery of information developed during an audit of another company. It was determined that Petitioner had never registered with the Department of Revenue for sales tax collection or payment. During the audit, the Department determined that Petitioner had not paid sales tax on its out-of- state purchases of air and vacuum machines and equipment valued at approximately $303,429.00. These machines were purchased for use in Florida. The Department assessed sales tax on these purchases. The Petitioner conceded that it owed sales tax on these purchases and did not contest that portion of the assessment. It has paid said taxes. The Department assessed sales tax on payments made by the Petitioner to other companies for the right to place its machines at their business. Petitioner places coin-operated air and vacuum machines on premises of the convenience stores and gas stations under a verbal contract at will in which the land owner receives a portion of the gross receipts from the operation of the machines. Petitioner is solely responsible for the installation of the air and vacuum machines, including providing the electrical tie-in at the site of the machine. The air and vacuum machines are mounted on a six hundred pound concrete pad and transported and placed on the convenience store property. The air and vacuum machines are portable, even after placement at a convenience store, and are removed if Petitioner determines that the location is not sufficiently profitable. The air and vacuum machines are purchased by Petitioner and the air and vacuum machines are owned solely by Petitioner during the period that they are located on a convenience store's premises. Petitioner is solely responsible for regular inspection of the air and vacuum machine and is solely responsible for maintenance of the machines. Petitioner is solely responsible for cleaning the air and vacuum machines at all locations. Also, Petitioner is responsible for all repair work to the machines which are provided at no cost to the owner of the convenience store. Petitioner is entitled to ingress and egress from the property at any time to accomplish these repairs. Petitioner is ultimately responsible for refunding any money to the store operator when an air and vacuum machine fails to work properly. Petitioner is solely responsible for all licensing fees and taxes on the air and vacuum machines. Petitioner carries liability insurance coverage on the air and vacuum machines. On or about June 10, 1988, Petitioner entered into a written contact with Carse Oil Company, Inc., which owned convenience stores in the central Florida area, doing business as Ideal Food Stores. This agreement was in effect for a period of three or four years, including some years during the audit period, beginning September 1, 1988. The agreement, entitled "Air/Water Vacuum Commission Agreement" (hereinafter Agreement) is a contract between Petitioner and Carse Oil Company, Inc., by which Petitioner agreed to place an air and vacuum machine on Carse Oil's property. The written Agreement with Carse Oil Company, Inc. provides for the monthly payment to be made on a date certain each month. The Carse Oil Agreement is complete and contains all of the terms of the contract between the parties as to the duties and obligations of each party under the contract. This written Agreement is representative of the course of dealing with other businesses with which Petitioner entered oral agreements during the period of the audit. Like the Agreement, the oral agreements allowed Petitioner to place its machines at its own cost on the property of a convenience store. The Petitioner does not currently have, and has not ever had any agreements in writing with its customers other than the written Agreement with Carse Oil. Under the written and oral agreements, Petitioner was responsible for coming onto the property to repair its machines. Petitioner is also entitled to come onto the property to remove monies from the cash box located in the machine. Only Petitioner's employees held the key to the money box and were entitled to come onto the property any time to access the money box in the machine. None of Petitioner's customers has a key or other access to the money box located in each air and vacuum machine. Petitioner is solely responsible for calculating the commission payment to a convenience store after collecting the money in the machine. Petitioner is solely responsible for deciding whether to remove an air and vacuum machine from a convenience store's premises if it is unprofitable. With the exception of one customer, Petitioner does not pay a separate amount to the convenience store for the electricity that is used in the operation of the air and vacuum machine. Petitioner's agreements with its customers, including the Agreement with Carse Oil Company, provide for the convenience store to receive each month a percentage of the money collected in the previous month for the operation of the air and vacuum machine(s) located on the store's premises. The air and vacuum machines are equipped with a coin counter. Petitioner is solely responsible for periodically collecting the coins that have accumulated in each air and vacuum machine. The percentage that Petitioner pays to the convenience stores under its agreements with them ranges from 25 percent to 50 percent and are negotiated on an individual basis. Petitioner pays a higher percentage to a convenience store where the revenues generated are relatively higher than the revenues generated by machines at other locations. The payment to the location owner is thus based upon the business derived at a particular location. Thus, as part of the business decision of payment for allowing placement of the machine, Petitioner evaluates the value of the location of the machine and payment is guided by the performance at the location. Payment made by Petitioner is directly connected to the acquisition of the right of placement of the machine, and the location owner is not entitled to receive any compensation once a machine is removed from the premises. The location owner has no responsibility for the cost of placing the machine, the costs of maintenance and cleaning the machine during its placement, the cost of repair of the machine during placement or responsibility for payment of insurance coverage of machines during placement. The location owner involvement is limited to authorization of the use of the property for placement of the machine. The compensation or "commissions" are directly tied to payment for the right to place the machine on the premises of a convenience store. The payment which Petitioner characterized as a revenue sharing arrangement, regardless of the title placed on the agreement between the parties, is based upon the right of placement of the machines on the property of another distinct business entity. Petitioner paid out $613,125.00 during the years under audit based upon its written and oral agreements allowing for the placement of its equipment. The Department assessed sales tax on the payments made as "commissions" to the parties where the machines were placed. The Department assessed sales tax due in the amount of $54,994.40, plus penalty in the amount of $16,539.12 and interest in the amount of $15,643.48, for a total due of $87,177.00. On April 15, 1994, Petitioner paid $18,206.61 on this amount leaving a balance due of $68,970.39. Petitioner does not dispute the Department's mathematical calculations of the total sales dollars upon which the tax assessment is based. Petitioner has not paid sales taxes on the monies it remitted to the convenience stores during the audit period. Petitioner did not seek advice from the Department prior to the assessment as to whether sales tax should have been collected on the business transactions assessed by the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Executive Director enter a Final Order denying the Petition contesting the assessment of tax and impose a sales and use tax audit assessment in the amount of $68,970.39, plus interest. DONE and ENTERED this 28th day of June, 1996, in Tallahassee, Florida. DANIEL M. KILBRIDE, 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 June, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2131 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Petitioner did not submit proposed findings of fact as of the date of this Order. Respondent's Proposed Findings of Fact. Accepted in substance: paragraphs 1-31. COPIES FURNISHED: Gary Shader, Esquire Shader and Wilson 1750 North Maitland Avenue Maitland, Florida 32751 James F. McAuley, Esquire Elizabeth T. Bradshaw, Esquire Office of the Attorney General The Capitol, Tax Section Tallahassee, Florida 32399-1050 Linda Lettera, General Counsel Deparment of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
The Issue Pursuant to Subsection 320.641(3), Florida Statutes (2006),1 the issues in the case are whether Nissan North America, Inc.'s (Respondent), proposed termination of the dealer agreement with Classic Nissan, Inc. (Petitioner), was clearly permitted by the franchise agreement, undertaken in good faith, undertaken for good cause, and based on material and substantial breach of the dealer agreement; and whether the grounds relied upon for termination have been applied in a uniform and consistent manner.
Findings Of Fact Pursuant to definitions set forth at Section 320.60, Florida Statutes, the Petitioner is a "motor vehicle dealer" and the Respondent is a "licensee." In 1997, the Petitioner and the Respondent entered into an agreement whereby the Petitioner took control of an already- existing Nissan dealership located in Orlando, Florida. In 1999, the Petitioner and the Respondent entered into a Dealer Sales and Service Agreement (Dealer Agreement), which is a "franchise agreement" as defined at Subsection 320.60(1), Florida Statutes. The Respondent's proposed termination of the 1999 Dealer Agreement is at issue in this proceeding. At all times material to this case, the dealership has been owned by Classic Holding Company. Classic Holding Company is owned by four members of the Holler family. Christopher A. Holler is identified in the Dealer Agreement as the principal owner and the executive manager of the dealership. The family owns a number of other dealerships, representing a variety of auto manufacturers. The Respondent does not sell cars at retail to individual purchasers. Standard Provision Section 3.A. of the Dealer Agreement requires that the Petitioner "actively and effectively promote" vehicle sales to individual retail purchasers. Standard Provision Section 3.B. of the Dealer Agreement permits the Respondent to develop and select the criteria by which sales are measured, as long as the measurement criteria is reasonable. Standard Provision Section 12.B.1.a. of the Dealer Agreement permits the Respondent to terminate a dealership when a dealer fails to substantially meet its vehicle sales obligation. The Dealer Agreement includes examples of various criteria that may be used to measure dealer performance. Specifically included among the examples is the calculation of a dealer's "sales penetration" within a defined geographic "Primary Market Area" (PMA) around the dealership as compared to other local and regional dealers. Sales penetration is calculated by dividing a dealer's total new vehicle sales by the number of competitive new vehicles registered in the dealer’s PMA. Data related to vehicle registration was compiled by R. L. Polk (Polk), a nationally recognized organization commonly relied upon in the auto industry for such information. There was no evidence offered to suggest the Polk data was incorrect. The dealer's sales penetration is compared to Nissan's regional sales penetration to determine the dealer's sales performance as measured against other Nissan dealer's in the region. A dealer performing at 100 percent of the regional average is performing at an "average" level. Otherwise stated, an average dealer is performing at a "C" level. The use of sales penetration calculations as a measurement of dealer performance is common in the automotive industry. The Respondent has used sales penetration as a measurement of dealer sales performance for more than 20 years. The Respondent's use of sales penetration as a measurement of dealer performance was reasonable or was permitted by the specific terms of the Dealer Agreement. The Respondent's use of the sales penetration measurements was widely communicated to dealers, who were advised on a routine basis as to the performance of their dealerships compared to local dealers and on a regional basis. The Petitioner knew, or should have known, that sales penetration was being used to measure the Petitioner's sales performance. There was no credible evidence presented at the hearing that the Respondent calculated sales penetration in order to disadvantage the Petitioner relative to other Nissan dealers in the region. At the hearing, the Petitioner suggested alternative standards by which sales performance should be reviewed, including consideration of total sales volume. The use of sales volume to measure retail effectiveness would penalize dealerships in smaller markets and fail to reflect the market opportunity available to each dealer. There was no credible evidence presented at the hearing that total sales volume more accurately measured the Petitioner's sales performance than did sales penetration. The Petitioner suggested that the use of sales penetration to substantiate the proposed termination of the Dealer Agreement at issue in this case was unreasonable and unfair because approximately half of Nissan's dealerships will be performing below 100 percent of the regional average at any given time, yet the Petitioner has not proposed termination of dealership agreements with half of its dealer network; however, the proposed termination at issue in this case is not based merely on the Petitioner's sales penetration. In 2002, the Petitioner's sales penetration was 110.5 percent, well above the regional average. At that time, the Respondent was preparing to introduce a number of new vehicles to the market. Some of the new vehicles were revisions of previous models, while others were intended to compete with products against which Nissan had not previously competed. Nissan representatives believed that the new models would substantially expand sales opportunities for its dealerships, and they encouraged their dealer network to prepare for the new environment. Some dealers responded by increasing staff levels and modernizing, or constructing new facilities. The Petitioner failed to take any substantive action to prepare for the new model lineup. Beginning in 2003, and continuing throughout the relevant period of this proceeding, the Petitioner's regional sales penetration went into decline. From 2002 to 2003, the Petitioner's annualized sales penetration fell more than 30 points to 85.13 in 2003. The Petitioner's sales penetration for 2004 was 65.08 percent. The Petitioner's sales penetration for the first quarter of 2005 was 61.78 percent. Following the introduction of the new models and during the relevant period of this proceeding, regional Nissan sales increased by about 40 percent. By 2004, the average Nissan dealer in the Petitioner's region had a sales penetration of 108.8 percent of the regional average. Through the first quarter of 2005, the average dealer in the region had a sales penetration of 108.6 percent of the regional average. Compared to all other Florida Nissan dealers during the relevant period of this proceeding, the Petitioner was ranked, at its best, 54th of the 57 Florida Nissan dealerships and was ranked lowest in the state by January 2005. Every Florida Nissan dealership, other than the Petitioner, sold more new cars in 2004 than in 2002. The Petitioner sold 200 fewer vehicles in 2004 than it had two years earlier. The three other Orlando-area Nissan dealers experienced significant sales growth at the same time the Petitioner's performance declined. The Petitioner has suggested that the Respondent failed to provide the information to appropriate management of the dealership. The Dealer Agreement indicated that Christopher A. Holler was the executive manager of the dealership; however, his address was located in Winter Park, Florida, and he did not maintain an office in the dealership. The Respondent's representatives most often met with managers at the dealership, who testified that they communicated with Mr. Holler. On several occasions as set forth herein, Nissan representatives met with Mr. Holler for discussions and corresponded with him. There was no credible evidence presented at the hearing that the Petitioner was unaware that its sales penetration results were declining or that the Petitioner was unaware that the Respondent was concerned with the severity of the decline. The Respondent communicated with the Petitioner on a routine basis as it did with all dealers. As the Petitioner's sales performance declined, the Respondent communicated the monthly sales report information to the Petitioner, and the topic of declining sales was the subject of a continuing series of discussions between the parties. In February 2003, Tim Pierson, the Respondent's district operations manager (DOM), met with the Petitioner's on- site manager, John Sekula, and discussed the dealership's declining sales penetration. Mr. Sekula was subsequently transferred by the ownership group to another auto manufacturer's dealership. In August 2003, Mr. Pierson met with the Petitioner's new manager, Darren Hutchinson, as well as with a representative from the ownership group, to discuss the continuing decline in sales penetration, as well as an alleged undercapitalization of the dealership and the lack of an on-site executive manager with authority to control dealership operations. On October 1, 2003, the Respondent issued a Notice of Default (NOD) charging that the Petitioner was in default of the Dealer Agreement for the failure to "retain a qualified executive manager" and insufficient capitalization of the dealership. In December 2003, Mr. Pierson met with Christopher A. Holler to discuss the dealership's problems. By the time of the meeting, Mr. Hutchinson had been designated as the executive manager, although Mr. Hutchinson's decision-making authority does not appear to have extended to financial operations. During that meeting, based on the Petitioner's failure to meet the capitalization requirements and respond to the deterioration in sales, Mr. Pierson inquired as to whether the Petitioner was interested in selling the dealership, but Mr. Pierson testified without contradiction that Mr. Holler responded "no." Mr. Hutchinson explained at the hearing that he asked the question because there was little apparent effort being made to address the deficiencies at the dealership, and he was attempting to ascertain the Petitioner's intentions. Mr. Hutchinson was directed to prepare a plan to address the Petitioner's customer service rating, which had fallen to the lowest in the area. Based on an apparent belief that the ownership group was going to remedy the Respondent's concerns about capitalization, the Respondent extended the compliance deadline set forth in the NOD, but the extended deadline passed without any alteration of the dealership's capitalization. A letter to the Respondent dated March 25, 2004, allegedly from Mr. Holler, noted that sales and customer service scores had improved; however, there was no credible evidence presented during the hearing to support the claimed improvement in either sales or customer service. The letter also stated that the capitalization of the dealership would be increased in April 2004 and that new vehicle orders were being reduced. On March 19, 2004, Mr. Pierson spoke with Mr. Holler and believed, based on the conversation, that a meeting would be scheduled to discuss the sales and capitalization issues. In anticipation of the meeting, Pierson sent the sales penetration reports directly to Mr. Holler, but the meeting did not occur. There was no additional capital placed into the dealership during April 2004. In April 2004, Andy Delbrueck, a new DOM for the area, met with Mr. Hutchinson to discuss the continuing decline in sales penetration through the end of March 2004. Other dealers in the area were experiencing increased sales at this time, but the Petitioner's regional sales penetration continued to decline and was below the region for almost all Nissan models. Mr. Hutchinson advised that he was hiring additional staff and had sufficient advertising funds to return the regional sales penetration averages by June. In early May 2004, Mr. Delbrueck and a Nissan vice president, Patrick Doody, sent a letter about the Petitioner's declining sales performance to Mr. Holler and requested that the Petitioner prepare a plan to address the problem. On May 18, 2004, Mr. Delbrueck again met with Mr. Hutchinson and discussed the decline in sales performance and customer service scores, as well as the issue of the dealership's undercapitalization. A May 25, 2004, letter to the Respondent, allegedly from Mr. Holler, noted that the dealership's sales penetration had improved, that additional staff had been hired, and that the Petitioner anticipated reaching or exceeding the regional sales penetration average by the end of the third quarter of 2004. The Petitioner never reached regional sales penetration averages following this letter, and, at the time it was written, there had been no material improvement in the dealership's sales penetration. On June 17, 2004, Mr. Delbrueck met with Mr. Holler to discuss the continuing decline in the Petitioner's sales performance. Mr. Delbrueck believed, based on the meeting, that Mr. Holler was aware of the problem and would make the changes necessary to improve sales, including employing additional sales staff. On July 7, 2004, the Respondent issued an Amended NOD, citing the continuing decline in the Petitioner's sales performance as grounds for the default, in addition to the previous concerns related to capitalization that were identified in the earlier NOD. The Amended NOD established a deadline of November 29, 2004, by which time the cited deficiencies were to be remedied. One day later, Mr. Delbrueck met with Mr. Hutchinson, discussed the Amended NOD, and made various suggestions as to how the Petitioner could improve the dealership's sales, including marketing and staffing changes. Mr. Delbrueck also offered to send in a trained Nissan representative, William Hayes, to review dealership operations and provide suggestions to improve conditions at the facility and ultimately to increase car sales. Mr. Hutchinson accepted the offer. A letter to the Respondent dated July 23, 2004, allegedly from Christopher A. Holler, noted that staffing levels had increased as had sales for the month of July; however, there was no credible evidence presented at the hearing that any substantive increase in staffing had occurred or that the Petitioner's sales penetration had increased. The letter contained no specific plan for remedying the problems cited in the Amended NOD. In late July 2004, a Nissan training representative, William Hayes, performed a focused review of the Petitioner's operations and provided a list of specific recommendations intended to improve the Petitioner's sales performance. He met with Mr. Hutchinson at the dealership and discussed the list of recommendations. At that time, Mr. Hutchinson stated that he believed the recommendations were useful. On September 10, 2004, Nissan Vice President Doody sent another letter to Mr. Holler referencing the Petitioner's declining sales performance and, again, requesting that the Petitioner prepare a plan to address the issue. A September 30, 2004, letter to the Respondent, allegedly from Mr. Holler, noted that staffing levels had been increased, a new executive manager (Mr. Hutchinson) had been hired, advertising funds had been increased, and customer service scores had improved. However, by that time, Mr. Hutchinson had been employed at the dealership since at least August of 2003, and there was no credible evidence presented at the hearing that staffing levels, advertising funds, or customer satisfaction scores had been materially increased. On October 18, 2004, Nissan Vice President Doody, sent another letter to Mr. Holler about the Petitioner's declining sales performance, noting that whatever efforts had been made by the Petitioner to improve sales had been unsuccessful. Thereafter, Mr. Doody arranged a meeting with Mr. Delbrueck, Mr. Holler, and another member of the Holler family to discuss the deteriorating situation at the dealership and between the parties. The meeting occurred on October 26, 2004, during which the Nissan representatives addressed the issues including under- capitalization, declining sales, and customer satisfaction scores. The Nissan representatives noted the Petitioner's failure to respond to any of the continuing problems and advised the Petitioner that, if the situation did not improve, the Respondent could initiate proceedings to terminate the Dealer Agreement. At the hearing, the Nissan representatives testified that the Holler family members in attendance at the October 26th meeting had no response during the discussion and offered no specific plan to resolve the situation. The Petitioner presented no credible evidence to the contrary. Shortly after the meeting, and in the absence of any substantive attempt by the Petitioner to resolve the concerns set forth in the NODs, the Nissan representatives decided to pursue termination of the Dealer Agreement if the Petitioner's sales penetration continued to be unsatisfactory. The Petitioner's regional sales penetration as of November 2004 was 65.69 percent. The year-end sales penetration for 2004 was 64.5 percent of regional average. On January 7, 2005, Mr. Delbrueck met with Mr. Hutchinson to discuss the dealership's sales performance. By that time, more than a year had passed since Mr. Hutchinson's designation as executive manager, yet the dealership's sales performance had not improved. Mr. Delbrueck inquired as to whether the Petitioner would be interested in using an additional Nissan resource (the EDGE program) designed to identify specific deficiencies in the sales process. The EDGE program included an extensive review of the sales process from the customer perspective, including a six-month survey period and four hidden camera "mystery shopper" visits. There was a charge to dealers participating in the EDGE program. Mr. Hutchinson told Mr. Delbrueck that he would have to discuss the program with the owners. The Petitioner subsequently chose not to participate. During the January 7th meeting, Mr. Delbrueck also encouraged Mr. Hutchinson to hire additional sales staff. At the hearing, Mr. Hutchinson testified that at the time of this meeting, he had been "building a sales force" yet by March of 2005, the Petitioner's full-time sales staff was approximately one-half of what it had been in 2003. On February 11, 2005, Mr. Delbrueck met with Mr. Hutchinson and Holler family members to follow up on the NOD and the October 26th meeting, but made no progress towards resolving the problems. On February 23, 2005, Mr. Delbrueck and Mr. Hayes met with Mr. Hutchinson to follow up on the recommendations Mr. Hayes made in July 2004. Mr. Hutchinson continued to state that the recommendations were useful, but very few had been implemented, and he offered no plausible explanation for the delay in implementing others. On February 24, 2005, the Respondent issued a Notice of Termination (NOT) of the Dealer Agreement that set forth the continuing decline in sales penetration as grounds for the action, as well as the alleged undercapitalization. At some point in early 2005, the Petitioner increased the capitalization of the dealership and corrected the deficiency, although it was implied during the hearing that the correction was temporary and that the increased capital was subsequently withdrawn from the dealership. In any event, the Respondent issued a Superceding NOT on April 6, 2005, wherein capitalization was deleted as a specific ground for the proposed termination. The Petitioner's January 2005 sales penetration was 49.3 percent of regional average, the lowest of any Nissan dealer in the State of Florida. Consumers typically shop various automobile brands, and a consumer dissatisfied with a dealer of one brand will generally shop dealers of competing brands located in the same vicinity, in order to purchase a vehicle at a convenient dealership for ease of obtaining vehicle service. The Respondent asserted that it was harmed by the Petitioner's deteriorating sales performance because Nissan sales were "lost" to other manufacturers due to the Petitioner's failure to appropriately market the Nissan vehicles. The Petitioner asserted that because Nissan's overall sales performance in the Petitioner's PMA was average, no Nissan sales were lost. The Respondent offered testimony suggesting that sales lost to Nissan may not have been lost to the Holler ownership group because the group also owned nearby Mazda and Honda dealerships. The evidence regarding the calculation of lost Nissan sales was sufficiently persuasive to establish that Nissan was harmed by the Petitioner's inadequate vehicle sales volume and by the Petitioner's failure to meet its obligation to "actively and effective promote" the sale of Nissan vehicles to individual purchasers as required by the Dealer Agreement. The number of sales lost is the difference between what a specific dealer, who met regional sales averages, should have sold compared to what the dealer actually sold. In 2003, the Respondent lost 185 sales based on the Petitioner's poor sales performance. In 2004, the Respondent lost 610 sales based on the Petitioner's poor sales performance, 200 more lost sales than from the next poorest performing Nissan dealer in Florida. The parties offered competing theories for the Petitioner's declining performance, which are addressed separately herein. The greater weight of the evidence presented at the hearing establishes that as set forth herein, the Respondent's analysis of the causes underlying the Petitioner's poor sales performance was persuasive and is accepted. The Respondent asserted that the sales decline was caused by operational problems, including an inadequate facility, inadequate capitalization, poor management, ineffective advertising, inadequate sales staff, and poor customer service. Competing dealerships in the area have constructed improved or new facilities. Customers are more inclined to shop for vehicles at modern dealerships. Upgraded dealerships typically experience increased customer traffic and sales growth. The Petitioner's facility is old and in disrepair. Some dealership employees referred to the facility as the "Pizza Hut" in recognition of the sales building's apparent resemblance to the shape of the restaurant. Nissan representatives discussed the condition of the facility with the Petitioner throughout the period at issue in this proceeding. When the Respondent began preparing for the introduction of new models in 2002, the Respondent began to encourage dealerships including the Petitioner, to participate in the "Nissan Retail Environment Design Initiative" (NREDI), a facility-improvement program. Apparently, the Petitioner was initially interested in the program, and, following a design consultation with the Respondent's architectural consultants, plans for proposed improvements to the Petitioner's facility were created. At the time, the Respondent was encouraging dealers to improve facilities, the Respondent had a specified amount of funding available to assist dealers who chose to participate in the NREDI program, and there were more dealers interested than funds were available. Although funds were initially reserved for the Petitioner's use, the Petitioner declined in June of 2003 to participate in the program, and the funds were reallocated to other dealerships. The Respondent implied that one of the reasons the Petitioner did not upgrade the dealership facility was a lack of capitalization. The allegedly inadequate capitalization of the dealership was the subject of continuing discussions between the Petitioner and the Respondent for an extended period of time; however, inadequate capitalization was specifically deleted from the grounds for termination set forth in the NOT at issue in this proceeding. Although the evidence indicates that lack of capitalization can limit a dealer's ability to respond to a multitude of problems at a dealership, the evidence is insufficient to establish in this case that an alleged lack of capitalization was the cause for the dealership's failure to upgrade its facility. In a letter to the Respondent dated June 30, 2003, the Petitioner stated only that it was "not feasible" to proceed and indicated an intention only "to proceed in the future," but offered no additional explanation for the lack of feasibility. Similarly, it is not possible, based on the evidence presented during the hearing, to find that Petitioner's failure to respond to the deteriorating operations at the dealership was due to a lack of financial resources. Daily operations at the dealership were hampered by the lack of appropriate management at the dealership location. Although Mr. Holler was identified in the Dealer Agreement as the principal owner and the executive manager of the dealership, his address was located in Winter Park, Florida, and there was no credible evidence presented that he managed the operation on a daily basis. As sales deteriorated, the Respondent began to insist that the Petitioner designate someone located on-site at the facility as executive manager with full control over the day-to- day operations of the dealership. In June 2003, Mr. Sekula was appointed as executive manager, but his authority was limited and his decisions required approval of the ownership group. At the hearing, Mr. Sekula acknowledged that the ownership group was bureaucratic. Shortly after his appointment, he was transferred by the ownership group to another of their competing dealerships. Several months later, Mr. Hutchinson was appointed as executive manager. There was no credible evidence presented to establish that Mr. Hutchinson ran the fiscal operations of the dealership. He prepared budgets for various expenditures and submitted them to the ownership group. The ownership group apparently controlled the "purse strings" of the dealership. There was no credible evidence presented as to the decision- making process within the group; however, decisions on matters such as the dealership's advertising budget required approval of the ownership group. The failure to provide appropriate on-site management can delay routine decisions and negatively affect the ability to manage and motivate sales staff. For example, when Nissan offered Mr. Hutchinson the opportunity to participate in the Nissan EDGE sales program, Mr. Hutchinson was initially unable to respond, because he lacked the ability to commit the financial resources to pay for the program. Mr. Hutchinson testified that the ownership group routinely approved his advertising budget requests. As the Petitioner's sales declined, so did advertising expenditures, from $694,107 in 2002 to $534,289 in 2004. The Petitioner's declining advertising expenditures were a contributing factor in deteriorating sales. The Petitioner reduced its total advertising budget while the Orlando market was growing, and the Petitioner's sales penetration declined while competing dealerships sales increased. Additionally, the Petitioner did not monitor the effectiveness of its advertising. The Petitioner's advertising was implemented through "Central Florida Marketing," a separate company owned by the Holler organization. There is no evidence that either the Petitioner or Central Florida Marketing monitored the effectiveness of the advertising. A substantial number of Nissan buyers within the Petitioner's PMA purchased vehicles from other dealerships, suggesting that the advertising failed to attract buyers to the Petitioner's dealership. Only eight percent of the Petitioner's customers acknowledged seeing the Petitioner's advertising, whereas about 20 percent of car shoppers in the Orlando area admit being influenced by dealer advertising. The Respondent asserted that the Petitioner failed to have sufficient sales staff to handle the increased customer traffic precipitated by the introduction of new Nissan models in 2002 and 2003. The Respondent offered evidence that the average vehicle salesperson sells eight to ten cars monthly, five to six of which are new cars and that, based on sales expectations, the Petitioner's sales force could not sell enough cars to meet the regional averages. Although the evidence establishes that the Petitioner cut sales staff as sales declined at the dealership, there is no credible evidence that customers at the Petitioner's facility were not served. The assertion relies upon an assumption that the Petitioner experienced increased sales traffic upon the introduction of new models and that the sales staff was inadequate to sufficiently service the increased traffic. The evidence failed to establish that the Petitioner experienced an increase in sales traffic such that sales were lost because staff was unavailable to assist customers. However, the Petitioner's sales staff failed to take advantage of customer leads provided to the dealership by the Respondent. The Respondent gathered contact information from various sources including persons who requested vehicle information from the Respondent's internet site, as well as the names of lease customers whose lease terms were expiring. The contact information was provided to dealers without charge through the Respondent's online dealer portal. The Petitioner rarely accessed the data, and it is, therefore, logical to presume that the leads resulted in few closed sales. The Petitioner's customer satisfaction scores also declined during the time period relevant to this proceeding. Poor customer service can eventually influence sales as negative customer "word-of-mouth" dampens the interest of other prospective customers. The Respondent monitored the customer opinions of dealer operations through a survey process, which resulted in "Customer Service Index" (CSI) scores. Prior to 2003, the Petitioner's CSI scores had been satisfactory, and then CSI scores began to decline. By the close of 2003, the CSI scores were substantially below regional scores, and the sales survey score was the lowest in the Petitioner's district. Although the Petitioner asserted on several occasions that CSI scores were increasing, the evidence established that only the March 2004 CSI scores improved and that no other material improvement occurred during the time period relevant to this proceeding. The Petitioner asserted at the hearing that the sales performance decline was caused by a lack of vehicle inventory, the alteration of the Petitioner's PMA, a lack of available financing from Nissan Motors Acceptance Corporation (NMAC), hurricanes, improper advertising by competing dealers, and the death of Roger Holler, Jr. The Petitioner also asserted that this termination action is being prosecuted by the Respondent because the Petitioner declined to participate in the NREDI dealer-facility upgrade program and declined to sell the Respondent's extended service plan product. A number of the suggested causes offered by the Petitioner during the hearing were omitted from the Petitioner's Proposed Recommended Order, but nonetheless are addressed herein. The Petitioner asserted that the Respondent failed to make available marketable inventory sufficient for the Petitioner to meet sales penetration averages. The evidence failed to support the assertion. Nissan vehicles were distributed according to an allocation system that reflected dealer sales and inventory. The Respondent used a "two-pass" allocation system to distribute 90 percent of each month's vehicle production. The remaining 10 percent were reserved for allocation by Nissan market representatives. Simply stated, dealers earned new vehicles to sell by selling the vehicles they had. New vehicle allocations were based upon each dealer's "days' supply" of cars. The calculation of days' supply is essentially based on the number of vehicles a dealer had available on the lot and the number of vehicles a dealer sold in each month. Through the allocation system, a dealership that failed to sell cars and lower its days' supply would be allocated fewer cars during the following month. More vehicles were made available to dealers with low days' supplies than were available to dealers with higher supplies. It is clearly reasonable for the Respondent to provide a greater supply of vehicles to the dealers who sell more cars. At some point during the period relevant to this proceeding, Nissan removed consideration of sales history from the days' supply-based allocation system calculation; however, there was no credible evidence presented to establish that the elimination of the sales history component from the calculation reduced the vehicle allocation available to the Petitioner. The Respondent applied the same allocation system to all of its dealerships, including the Petitioner. There is no evidence that the Respondent manipulated the allocation system to deny any vehicles to the Petitioner. The Respondent provided current inventory and allocation information to all of its dealerships, including the Petitioner, through a computerized database system. The Petitioner was responsible for managing vehicle inventory and for utilizing the allocation system to acquire cars to sell. Although the Petitioner asserted that the decline in sales was related to a lack of vehicle inventory, there was no evidence that the Petitioner's inventory declined during the period relevant to this proceeding. In fact, the evidence established that the Petitioner's inventory actually increased from 150 vehicles in early 2003 to 300 vehicles in early 2004, at which time the Petitioner reduced vehicle orders and the inventory began to decline. The Petitioner also asserted that it was provided vehicles for sale that were undesirable to the Petitioner's customers, due to expensive or excessive options packages. There was no credible evidence that the Petitioner's sales declines were related to an inventory of undesirable vehicles. Further, there was no evidence that the decline in sales penetration was related to poor supply of any specific vehicle model. Other than two truck models, the Petitioner's sales penetration decline occurred across the full range of Nissan vehicles offered for sale. Every Nissan dealer had the ability to exercise significant control (including color and option package choices) over most of the inventory acquired during the "first pass" allocation. Any inventory deficiencies that may have existed were the result of the Petitioner's mismanagement of inventory. Mr. Hutchinson did not understand the vehicle allocation system or its relationship to the days' supply calculation. The Petitioner routinely declined to order units of Nissan's apparently most marketable vehicles during the allocation process. During 2003, the Petitioner declined 137 vehicles from the "first pass" allocation, including 18 Sentras and 56 Altimas, and declined 225 vehicles from the "second pass" allocation, including 59 Sentras and 59 Altimas. During the first half of 2004, the Petitioner declined 58 vehicles from the "first pass" allocation and 42 vehicles from the "second pass" allocation. During the hearing, one of the Petitioner's witnesses generally asserted that the Respondent's turndown records were erroneous; however, the witness was unable to identify any errors of significance, and the testimony of the witness was disregarded. After the two-pass allocation process was completed, there were usually some vehicles remaining for distribution to dealers. Nissan assigned responsibility to DOMs to market these units to dealers. The DOMs used the days' supply calculation to prioritize the order in which they contacted dealers, although the vehicles were available to any dealer. There is no evidence that any DOM manipulated the days' supply-based prioritization of vehicles for denying the Petitioner the opportunity to obtain vehicles to sell. Any vehicles remaining available after the DOM attempts to distribute the vehicles were identified as "Additional Vehicle Requests" (AVR) and were made available to all dealers simultaneously. Dealerships were notified of such availability by simultaneous facsimile transmission or through the Nissan computerized database. There was no evidence that the Petitioner was denied an opportunity to obtain AVR vehicles, and in fact, the Petitioner obtained vehicles through the AVR system. The Petitioner asserted that the Nissan practice of reserving 10 percent of each month's production for allocation by market representatives rewarded some dealers and punished others. Market representative allocations are standard in the industry, and such vehicles are provided to dealerships for various reasons. Nissan market representative allocations were used to supply extra cars to newly opened dealerships or in situations where a dealership was sold to new ownership. Nissan market representative allocations were also provided to dealers who participated in the NREDI facility upgrade program. The provision of additional vehicles by market representatives to new or expanded sales facilities was reasonable because the standard allocation system would not reflect the actual sales capacity of the facility. The Petitioner presented no evidence that the Respondent, or any of its market representatives, manipulated the 10 percent allocation to unfairly reward any of the Petitioner's competitors or to punish the Respondent for not participating in various corporate programs. Prior to 2001, the Respondent had a program of providing additional vehicles to under-performing dealers in an apparent effort to increase sales by increasing inventory; however, the program did not cause an increase in sales and actually resulted in dealers being burdened with excessive unsold inventory and increased floor plan financing costs. The Respondent eliminated the program in 2001, and there is no evidence that any dealership was provided vehicles through this program during the time period relevant to this proceeding. There is no evidence that the Respondent eliminated the program for the purpose of reducing the vehicles allocated or otherwise provided to the Petitioner. The Petitioner asserted that the Respondent altered the Petitioner's assigned PMA in March 2004 and that the alteration negatively affected the Petitioner's sales penetration calculation because the Petitioner's area of sales responsibility changed. Prior to March 2004, the Petitioner's PMA was calculated using information reported by the 1990 United States Census. After completion of the 2000 Census, the Respondent evaluated every Nissan dealer's PMA and made alterations based upon population changes as reflected within the Census. Standard Provision Section 3.A. of the Dealer Agreement provides that the Respondent "may, in its reasonable discretion, change the Dealer's Primary Market Area from time to time." There was no credible evidence presented to establish that the 2000 PMA was invalid or was improperly designated. There was no evidence that the Respondent's evaluation of the Petitioner's PMA was different from the evaluation of every other PMA in the United States. There was no evidence that the Respondent evaluated or altered the Petitioner's PMA with the intent to negatively affect the Petitioner's ability to sell vehicles or to meet regional sales penetration averages. There was no credible evidence that the 2000 PMA adversely affected the dealership or that the Petitioner's declining sales penetration was related to the change in the PMA. The alteration of the PMA did not sufficiently affect the demographics of the Petitioner's market to account for the decline in sales penetration. Recalculating the Petitioner's sales penetration under the prior PMA did not markedly improve the Petitioner's sales penetration. The Petitioner suggested that the 2000 PMA revision was an impermissible modification or replacement of the Dealer Agreement, but no credible evidence was offered to support the assertion. There was no evidence that the Petitioner did not receive proper notice of the 2000 PMA. At the hearing, the Petitioner implied that the Respondent caused a decline in sales by refusing to make Nissan Motor Acceptance Corporation (NMAC) financing available to the Petitioner's buyers. NMAC is a finance company affiliated with, but separate from, the Respondent. NMAC provides a variety of financing options to dealers and Nissan vehicle purchasers. NMAC relies in lending decisions, as do most lenders, on a "Beacon score" which reflects the relative creditworthiness of a customer's application to finance the purchase of a car. Vehicle financing applications are grouped into four general "tiers" based on Beacon scores. Various interest rates are offered to customers based on Beacon scores. The Petitioner offered data comparing the annual number of NMAC-approved applications submitted in each tier by the Petitioner on behalf of the Petitioner's customers to suggest that the decline in the Petitioner's sales indicated a decision by NMAC to decrease the availability of NMAC credit to the Petitioner's customers. There was no evidence that NMAC treated the Petitioner's customers differently than the customers of competing dealerships or that NMAC-financed buyers received preferential interest rates based upon the dealership from which vehicles were purchased. There was no evidence that the Respondent exercised any control over individual financing decisions made by NMAC. There was no evidence that the Respondent manipulated, or had the ability to manipulate, the availability of NMAC financing for the purpose of negatively affecting the Petitioner's ability to sell vehicles. A number of hurricanes passed through the central Florida region in August and September of 2004. The Petitioner asserted that the dealership's physical plant was damaged by the storms, and that the hurricane-related economic impact on area consumers caused, at least in part, the decline in sales. The evidence failed to establish that the Petitioner's physical plant sustained significant hurricane damage to the extent of preventing vehicle sales from occurring. None of the Petitioner's vehicle inventory sustained hurricane- related damage. There was no evidence presented to indicate that the Petitioner's customers experienced a more significant economic impact than did the customers of competing dealers in the area. There was no credible evidence that the hurricanes had any material impact on the Petitioner's sales penetration. The Petitioner's sales penetration immediately prior to the hurricanes was 62.8 percent. The Petitioner's sales penetration in August 2004 was 61.6 percent, in September was 61.1 percent, and in October was 62.3 percent. Generally, within 30 to 45 days after a hurricane, customers with damaged vehicles use insurance proceeds to purchase new vehicles. The Petitioner's sales volume increased at this time; although because other dealers in the region also experienced increased sales, there was no change to the Petitioner's sales penetration calculation. The Petitioner asserted that improper advertising of "double rebates" by competing dealers caused declining sales, and offered evidence in the form of newspaper advertisements in support of the assertion; however, the Petitioner's own advertising indicated the availability of such rebates on occasion. There was no evidence presented to establish that the Respondent was responsible for creating or approving advertisements for dealerships. The Respondent has a program whereby dealers who meet certain advertising guidelines can obtain funds to defray advertising costs, but the program is voluntary. The Respondent does not regulate vehicle advertising or retail pricing. There was no evidence that the Petitioner reported any allegedly misleading or illegal advertising with any law enforcement agency having jurisdiction over false advertising or unfair trade practices. Mr. Hutchinson testified that the death of Roger Holler, Jr., in February 2004, negatively affected sales at the dealership, but there was no evidence that Roger Holler, Jr., had any role in managing or operating the dealership. The Petitioner's sales decline commenced prior to his death and continued thereafter. The evidence failed to establish that the death had any impact on the operation of the dealership or the Petitioner's sales performance. The Petitioner asserted that the Respondent's effort to terminate the Dealer Agreement was an attempt to punish the Petitioner for declining to participate in the NREDI program and offered a chronology of events intended to imply that the Respondent's actions in this case were a deliberate plan to force the Petitioner to either build a new facility or sell the dealership. The assertion is speculative and unsupported by credible evidence. During the time period relevant to this proceeding, only one of the four Orlando-area Nissan dealers agreed to participate in the NREDI program. Of the four dealerships, three experienced increased sales activity during the period relevant to this proceeding. The Petitioner was the only one of the four dealerships to experience a decline in sales penetration during this period. The Respondent has taken no action against the two other dealerships that declined to participate in the NREDI program. There was no credible evidence that the Respondent has taken any punitive action against any dealership solely based on a dealership's decision not to participate in the NREDI program. The Petitioner asserted that the Respondent's actions in this case were intended to punish the Petitioner for not selling the Respondent's extended service contract (known as "Security Plus") and for selling a product owned by the Petitioner, but there was no evidence supporting the assertion. A substantial number of dealers in the region did not sell the Security Plus product to new car buyers. There was no evidence that the Respondent has penalized any dealer, including the Petitioner, for refusing to sell the Nissan Security Plus product. During the hearing, the Petitioner identified a number of other troubled Nissan dealerships, ostensibly to establish that other dealerships similarly situated to the Petitioner had not been the subject of Dealer Agreement termination proceedings and that the Respondent had failed to enforce the Dealer Agreement termination provisions fairly. A number of the dealerships cited by the Petitioner are outside the State of Florida and are immaterial to this proceeding. The Dealer Agreement provides for termination of an agreement if the dealer materially and substantially breaches the agreement. The Dealer Agreement does not require termination of every dealership that fails to achieve average regional sales penetration. Termination of a Dealer Agreement because of sales performance requires a dealer-specific analysis that includes consideration of the factors underlying poor sales and consideration of conditions that may warrant delaying termination proceedings. As to the other Florida Nissan dealers cited by the Petitioner, many had higher sales penetration levels than did the Respondent. When compared to the Florida dealerships, the magnitude of the Petitioner's sales penetration decline exceeded that of all the other dealerships. Many of the cited dealerships had also initiated changes in management, staffing, and facilities to address sale and service deficiencies. Some of the cited dealers had already shown sales and service-related improvements. One dealership, Love Nissan, had already been terminated, even though its sales penetration had exceeded that of the Petitioner. One dealership cited by the Petitioner was Hampton Nissan, against whom the Respondent had initiated termination proceedings in 2003. Changes to Hampton's PMA based on the 2000 PMA resulted in an increase in the dealership's sales penetration eventually to levels exceeding those of the Petitioner, and Nissan has rescinded the action. There was no evidence that the Hampton Nissan PMA was calculated differently than the Petitioner's PMA, or that either PMA was altered purposefully to affect the dealer's sales penetration results. Other dealerships cited by the Petitioner were being monitored by the Respondent to ascertain whether efforts to improve sales performance succeed. The Respondent may ultimately pursue termination proceedings against underperforming dealerships if sales performance fails to improve. There was no credible evidence that, prior to initiating this termination proceeding, the Respondent failed to consider the facts and circumstances underlying the Petitioner's poor sales and the Petitioner's response to the situation. The Petitioner has experienced a substantial and continuing decline in sales penetration and has failed to respond effectively to the deteriorating situation during the period at issue in this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Highway Safety and Motor Vehicles enter a final order dismissing Petitioner's protest and approving the April 6, 2005, Superceding Notice of Termination. DONE AND ENTERED this 20th day of March, 2007, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 20th day of March, 2007.
The Issue The issues in this case are whether Respondent owes an additional surcharge tax liability on the sale of alcoholic beverages and, if so, how much and what penalties should be imposed.
Findings Of Fact Respondent is licensed by Petitioner as an alcoholic beverage vendor. Since January 1982, Respondent has held a 4COP license, which permits him to operate a package store, in which beer, wine, and liquor are sold for consumption off premises, and a bar, in which these alcoholic beverages are sold for consumption on the premises. Respondent sells beer, wine, and liquor for consumption on and off premises at a place of business known as Big Still Liquors, which is located at 1042 N. Tamiami Trail, North Ft. Myers. The Legislature introduced the surcharge in 1990. By Form DBR 44-005E, which is called "Election of Surcharge Payment Method and Certified Inventory Report," Respondent elected an accounting method by which to track and report sales of alcoholic beverages subject to the surcharge. On July 9, 1990, Respondent checked the box on the form that states: "I hereby permanently elect to pay future surcharges based upon purchases." The other alternative on the form is the sales method, in which the surcharge is calculated directly from retail sales. The sales method requires that the vendor record at retail the gallonage, as well as sales price. Also, the vendor must distinguish among beer, wine, and liquor sold at retail. Like most vendors, however, Respondent records sales by sales price, not volume. The issues in this case arise out of two factors. First, the surcharge applies to volume of alcoholic beverages, not the sales price or purchase cost. As noted above, Respondent's sales records are expressed in dollars. Second, the surcharge applies to alcoholic beverages sold for consumption on premises, not to package sales. Although purchases from wholesalers can easily be determined in terms of volumes, Respondent purchases all alcoholic beverages through the package store and does not purchase alcoholic beverages separately for the bar. Thus, factual issues arise in determining the volume of beer, wine, and liquor sold through the bar. Even though a vendor elects the purchase method, rather than the sales method, Petitioner must calculate the volume of alcoholic beverages sold at retail. Petitioner has devised a formula for this purpose. The audit in the present case took place at the start of 1993 and covered July 1990 through December 1992. The auditor obtained the invoices of the wholesale distributors that sold beer, wine, and liquor to Respondent during December 1992, January 1993, and February 1993. From these invoices, the auditor determined Respondent's cost of goods sold for these three months. The auditor then estimated the markup on the alcoholic beverages. For liquor, the auditor asked Respondent's counterperson the amount of markup for larger bottles and smaller bottles. The percentage markups were 25 percent and 35 percent, respectively. Recording the sales prices of two smaller items and two larger items, the auditor then calculated the actual markup and found that these estimates were quite accurate. The auditor next averaged the markup to 30 percent. It is unclear whether he attempted to estimate the relative proportion of larger items to smaller items. It is clear that this markup applies to liquor and possibly to wine, but not to beer, where the markup is much less. The auditor then found the breakdown between package store sales and bar sales for December 1992 through February 1993. Expressed as a percentage of total sales, package sales accounted for 51.1 percent, 61.3 percent, and 49.3 percent for the three months, respectively. The auditor averaged these figures and determined that 53.9 percent of all Big Still sales were through the package store. Next, the auditor applied the 53.9 percent factor to the total purchases from wholesale distributors during the 30-month audit period. After a reduction to reflect the 30 percent markup, the auditor calculated the package- store factor, which is deducted from total volume to yield the residual volume of beer, wine, and liquor, which is presumed to have been sold through the bar. The lower the markup, the higher the package-sale factor, which is to the vendor's advantage as the package-sale factor is a deduction because it is not subject to the surcharge. Numerous questions arise in the application of Petitioner's formula in this case. Questions include the reasonableness of the methods of estimating markup and differentiating between package and bar sales. In the absence of records from Respondent, however, Petitioner's approach would prevail. However, Respondent has separately accounted for bar and package store sales for years. Motivated by a desire to reduce employee pilferage, Respondent has required employees to record all transfers of beer, wine, and liquor from the package store to the bar. To ensure compliance, Respondent has also required that all empties be returned to the package store in order to monitor bar sales. Respondent reported and paid the surcharge in accordance with the volumes of alcoholic beverages reflected on its internal records. There is no surcharge deficiency.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order dismissing the Administrative Action against Respondent. ENTERED on November 29, 1994, in Tallahassee, Florida. ROBERT E. MEALE 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 on November 29, 1994. APPENDIX Rulings on Petitioner's Proposed Findings 1-3: adopted or adopted in substance. 4-12: rejected as subordinate. 13-14 (first sentence): rejected as recitation of evidence. 14 (remainder)-15: adopted or adopted in substance. 16-18: rejected as recitation of evidence. 19-25: adopted or adopted in substance; provided, however, Petitioner failed to prove that the result was more accurate than the result produced by Respondent. 26: rejected as recitation of evidence. 27-30: adopted or adopted in substance. 31-34: rejected as recitation of evidence and subordinate. Rulings on Respondent's Proposed Findings 1-2: adopted or adopted in substance. 3: rejected as irrelevant. 4: rejected as repetitious. 5-6: adopted or adopted in substance. 7-8: rejected as irrelevant. 9: adopted or adopted in substance. 10-end: rejected as subordinate, repetitious, recitation of evidence, irrelevant, not findings of fact, and not in compliance with order of hearing officer requiring numbered paragraphs with no more than four sentences per paragraph. COPIES FURNISHED: Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Richard D. Courtemanche, Jr. Senior Attorney Department of Business and Professional Regulation Division of Alcoholic Beverages and Tobacco 1940 N. Monroe St. Tallahassee, FL 32399-1007 Harold M. Stevens Harold M. Stevens, P.A. P.O. Drawer 1440 Ft. Myers, FL 33902
The Issue The issues to be resolved in this proceeding concern whether the Petitioner was the victim of a discriminatory employment practice perpetrated by the Respondent by the alleged discharge of the Petitioner on account of her handicap.
Findings Of Fact The Respondent, Sunshine Jr. Stores, Inc., is a Florida corporation, with the principal offices located in Panama City, Florida. The Respondent operates convenience stores in Marianna and Alford, Florida, along with numerous other locations. On December 14, 1990, the Petitioner, Jo-Ann Duffy, was hired as a sales associate and placed in the Marianna store. She indicated in her job application that she was willing to work in Chipley, Bonifay, Marianna and Panama City, Florida. The Petitioner received her employee training in the policies and procedures under which the Respondent operates. She received training in policy no. 030-040, the robbery/theft policy. She signed a "statement of understanding" to that effect, acknowledging that she had received such training. That statement of understanding acknowledges that if the Petitioner violated company policies, such as the robbery and theft policy, her employment was subject to termination by the Respondent. The Petitioner was described as a good worker, initially; and she had a good working relationship with her supervisor, Mr. George Susanka. Mr. Susanka was the store manager and ultimately received some complaints regarding the Petitioner's attitude toward customers. He verbally counselled her regarding this matter. On April 25, 1991, the Petitioner received a written reprimand for failure to perform assigned duties, specifically, noncompliance with policies and procedures, including with regard to inventory shortages. The reprimand was placed in her personnel file. All of the employees at that store, Store No. 190, were also given written reprimands concerning these matters. On May 2, 1991, the Petitioner suffered an injury due to slipping and falling on a wet floor at the Alford Store No. 190. The Petitioner was taken to the emergency room and treated for her injuries. The physicians determined that the Petitioner had suffered a cervical spondylosis, with no evidence of acute injury. After a two-week leave of absence, the Petitioner received permission to return to work from her doctor, Dr. Laubauah, an orthopedist. On June 14, 1991, he released her to return to work with restrictions on her bending and lifting of weight. The Respondent was aware of the Petitioner's work restrictions and that she was receiving worker's compensation benefits from the Respondent as a result of her injury. The Petitioner returned to work at Store No. 190 in Alford, Florida, under the supervision of Renate Ovaldson, who was then store manager. The Petitioner was placed on light duty which is generally defined as merely operating the cash register. She was allowed to sit on a stool behind the counter while she worked, in view of her condition. The Petitioner was later transferred to Store No. 226 in Marianna, Florida. That store was under the supervision of George Susanka, the Marianna store manager. The basis for transferring the Petitioner to that store was that Mr. Susanka was shorthanded and needed another sales associate. Mr. Susanka had previously maintained a positive working relationship with the Petitioner at Store No. 190, and the decision to transfer the Petitioner to Store No. 226 was deemed to be beneficial to the store and to Mr. Susanka. The Petitioner was given light duty at Store No. 226, also, and was given a stool to sit on while she worked. Mr. Susanka was aware that she was taking medication for her back injury. Mr. Susanka's supervisor, Keith Shipman, was not aware that the Petitioner was taking medication. Store No. 226 was considered a less busy store in terms of sales volume; however, the neighborhood was considered to be less desirable. Mr. Susanka soon began receiving verbal complaints regarding the Petitioner's attitude toward customers at Store No. 226. He received a verbal complaint from a Ms. Virginia Smith stating that the Petitioner had been flirting with several men one evening at the counter and had permitted them to go into the store cooler and leave the store with beer without paying for it. A written statement signed by Virginia Smith regarding this incident was later received by the Respondent and placed in the Petitioner's personnel file. Mr. Susanka confronted the Petitioner concerning this incident and asked her if she had been afraid to report the theft, and she indicated that she was not. Mr. Susanka and the assistant store manager, Mr. Coley, conducted a "night ride", whereby they parked their car across the street from the store to observe activities at the store while the Petitioner was on duty. Mr. Susanka witnessed a customer walk in the store and walk out with a small item without paying for it. The only door in which to enter and exit the store was a few feet directly in front of the cash register counter. Mr. Susanka submitted a written statement on the incident, which was placed in the Petitioner's personnel file by the Respondent. Mr. Susanka discussed the various complaints he had received concerning the Petitioner's attitude, performance, and the incident he observed with Mr. Coley with his district manager, Keith Shipman. Mr. Shipman had been aware of prior complaints which the Respondent had received about the Petitioner's attitude with customers, as well. Based upon the documents contained in the personnel file, customer complaints and the fact of customers leaving the store without paying for merchandise while the Petitioner was on duty, and Mr. Susanka's relation of the various incidents, Mr. Susanka and Mr. Shipman made a decision to terminate the Petitioner. The stated reason for Petitioner's termination was violation of company policy and poor customer relations. Mr. Susanka completed an employee status report terminating the Petitioner on July 24, 1991. That report stated that the reason for termination was "on Saturday, July 20, 1991, the clerk, Jo- Ann Duffy, was talking and laughing with six guys at the counter and at that time there was three to four guys in the cooler and walked out with beer and did pay for it and also has a bad attitude with customers". Mr. Susanka testified that the statement had been written in error and it should have read "did not pay for it". The employee status report was signed by Mr. Susanka and Mr. Shipman and placed in the Petitioner's personnel file. Mr. Shipman stated that due to the fact that inventory control was so important in the convenience store business, the Respondent simply could not afford to keep in its employee a sales associate who allowed merchandise to leave the store unpaid for. The Respondent's disciplinary and termination policy no. 040-003 generally states the procedures for discipline and termination. The robbery/theft Policy No. 030-040 states that an employee who violates the guidelines of the robbery and theft policy (as the Petitioner did) is subject to disciplinary action up to and including dismissal.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the Petitioner's petition for relief. DONE AND ENTERED this 30th day of April, 1993, in Tallahassee, 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 6th day of May, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5313 Petitioner's Proposed Findings of Fac A-C. Accepted. D. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not entirely in accord with the preponderant weight of the evidence. E-F. Accepted. G-H. Accepted, but not in itself materially dispositive. I-J. Accepted, but not in themselves materially dispositive. Rejected, as not in accord with the greater weight of this witness' testimony which was that some violations, such as allowing theft to occur, are the proper subjects of first occurrence terminations. Accepted, but not itself material. Rejected, as immaterial. Rejected, as immaterial given the greater weight of the testimony and evidence, which the Hearing Officer has accepted and embodied in the above Findings of Fact. Rejected, as immaterial. Accepted. Accepted, but not materially dispositive. Accepted, but not materially dispositive in itself. S-T. Accepted, but not itself materially dispositive. Accepted, but not itself materially dispositive. The Respondent's position in this case does not depend upon all low inventory being the fault of the Petitioner. Accepted, but not itself materially dispositive. Respondent's Proposed Findings of Fact 1-24. Accepted. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Dana Baird, Esq. General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Ms. Jo-Ann Duffy Route One, Box 221-X Chipley, FL 32428 Kelly Brewton Plante, Esq. TAYLOR, BRION, BUKER & GREENE 225 South Adams Street Suite 250 Tallahassee, FL 32301
Findings Of Fact The American Health and Rehabilitation Center, Inc., is a nursing home located in Plantation, Florida. The subject administrative hearing was requested by Petitioner in order to settle a dispute as to $17,356 disallowed by the Respondent, Department of Health and Rehabilitative Services, under Medicaid guidelines. The disputed disallowed costs were as follows: $6,855 - Lawn Maintenance; $1,975 - Telephone Advertising and long distance calls; $6,470 - Owner/Administrator auto rental; and $2,056 - Auto Expense for the year ending June 30, 1976. (a) Yellow Pages Advertising Petitioner contends: that the yellow pages advertising had never been disallowed before and having been paid under HIM 15 should now be paid. Respondent contends: that only a telephone listing in the yellow pages is allowable; that a display advertisement is not compensable, and that even though such display advertising might have been paid in the past, it should not have been paid and should not be allowed as a result of this hearing. Lawn/Landscape Maintenance Petitioner contends: that there was a "bookkeeping error" in the amount of $2,853 charged for additional trees and plants and agrees that amount should not have been charged to "maintenance" expense; that the maintenance service that was utilized was less expensive for the services they required and gave better protection against loss of trees and other lawn and landscaping materials; that the equipment needed to service the lawn would not be supplied by the men they could hire. Respondent contends: that a fee of $12,000 for lawn and landscape maintenance is not supportable and that the occupancy of the home had always been full and therefore did not improve with the tripling of annual landscaping expenses; that there is a poor cost-benefit ratio with such charges and that a full time maintenance man could have been employed at near minimum wage to care for the lawn. Undocumented Use of Automobile Petitioner contends: that they had been previously allowed such costs and were audited each year and they had no way of knowing that they would be disallowed for the subject cost period; that they had some staff who used the cars for errands; that automobile expense is an acceptable business expense. Respondent contends: that transportation of Medicaid patients to physicians was arranged by direct payment to third party transportation providers or by having the physicians see the patients at the nursing home; that because of the lack of documentation by Petitioner there was no way to determine the business and non-business endeavors which included the use of the automobile and therefore the full amount should have been disallowed.. The yellow page display was designed primarily to advertise the nursing home to those seeking nursing home care. Evidence presented showed that Petitioner was charged a sum of $700 per month or $8,400 per year. Whereon Petitioner claimed $12,000. The lawn covers approximately 1-1/2 acres. No documentation was presented or testimony established as to the portion of the disallowed automobile use attributable to business use, the Mercedes used by the Petitioner and the complete lack of documentation as to its business use was not substantiated.
Recommendation Allow telephone listing expense only and $700 per month for lawn maintenance. Disallow the undocumented automobile use. Unwarranted payments for advertisements, excessive lawn care and undocumented automobile expenses that have been made in the past is no reason that such undue payments should be continued. DONE AND ENTERED this 2nd day of August 1978 in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August 1978. COPIES FURNISHED: James Mahorner, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Miss Patricia E. Hintz Administrator American Health and Rehabilitation Center 7751 West Broward Boulevard Plantation, Florida 33324
The Issue Whether the Petitioner has been subjected to employment discrimination by termination, allegedly based upon race, and by retaliation, for filing a charge of discrimination.
Findings Of Fact On or about November 29, 2005, the Petitioner applied for a job as a part-time sales clerk with the Respondent. The Petitioner indicated that she was available to work on Sundays, Mondays, and Wednesdays from 7:00 a.m. to 5:00 p.m. This was because she was already employed in another job. During the course of the hiring and orientation process, the Petitioner learned of the policies of the Respondent against harassment and discrimination of all types. She was instructed in those policies and acknowledged receipt of them. The Petitioner began her employment with the Respondent on December 27, 2005, as a part-time sales clerk at a convenience store (No. 31) in Milton, Florida. When she began her employment, the Store Manager was Bob Kukuk. The Assistant Managers for that store were Michael Morris and "Cynthia." There were also two other sales clerks, Cherie Dorey and Lugenia Word. Both Ms. Dorey and Ms. Word are white. Soon after the Petitioner was hired, Mr. Kukuk announced his resignation as store manager. On January 31, 2006, the Petitioner attended the new employee training session in Milton, Florida, which included training in the equal employment and non-harassment policies of the Respondent. During the question and answer session, concerning the harassment and discrimination portion of the training, the Petitioner told Training Manager, Robert Birks that she had a problem at her store involving a conflict with another employee. She felt that she was being required to do things that other employees were not required to do. Mr. Birks advised Ms. Myles that she should provide a written statement concerning her complaints to her supervisor and he provided her with pen, paper, and envelope to do so on the spot. The Petitioner wrote out a note and returned it to Mr. Birks in a sealed envelope and he gave the envelope to the District Advisor, Jamie Galloway on that same date. After reading the Petitioner's note, Ms. Galloway met with Petitioner on that same day to discuss her complaints. The Petitioner informed Ms. Galloway that Michael Morris, an Assistant Manager at her store, was telling employees that he was going to be the new store manager. The Petitioner told Ms. Galloway that she felt Morris did not like her because of her race. Ms. Galloway informed the Petitioner that, in fact, Morris would not be selected as store manager for store No. 31 and that Mr. Kukuk would be replaced with someone else other than Morris. She also informed the Petitioner that the Respondent had a zero tolerance for harassment and discrimination and that if the Petitioner had any problems with Mr. Morris that she should personally contact Ms. Galloway. In her capacity as District Advisor, Ms. Galloway supervised the day-to-day operations of a number of stores. In fact, during the above-referenced time period, Ms. Galloway was supervising her own normal district area, as well as that of another district manager who had resigned. The three sales clerks at store No. 31, Ms. Dorey, Ms. Word, and Ms. Myles were all reprimanded ("written-up") in February 2006, because of their cash registers being "short," or containing insufficient funds at the close of the business day or shift. The Petitioner was also counseled for insubordination on this occasion because she told Ms. Word, in front of customers, that she was not going to take out the trash because Mr. Morris and Ms. Dorey would be into work soon and "they never did anything anyway." Ms. Word confirmed that Ms. Myles had made that statement to the store management. Sometime in February 2006 the Petitioner expressed the desire to transfer to a store on the West side of Pensacola because she was no longer employed in her other job in the Milton area. She therefore wanted to work for Tom Thumb at a location closer to her residence. The Manager, Mr. Kukuk at that time, informed Ms. Galloway of this wish on the part of the Petitioner. Ms. Galloway contacted the District Advisor for the West side of Pensacola, Bill Jordan, to inquire whether any positions were available that would fit the Petitioner's schedule. Ms. Galloway followed up on the question with Mr. Jordan several days later, but Mr. Jordan said that he had no employment positions available at that time. The Petitioner then filed her Charge of Discrimination on February 16, 2006, (her first charge). In her Discrimination Charge the Petitioner maintains that she was constantly "getting written-up" for unnecessary matters by Mr. Morris, the Manager. In fact, however, she was written-up only once while Mr. Morris was the Assistant Manager of the store, as were Ms. Word and Ms. Dorey, the other clerks. Both Ms. Word and Ms. Dorey are white. Patricia Merritt was installed as the new store manager at store No. 31 on February 24, 2006. Ms. Merritt has worked for the Respondent for 17 years as a clerk, assistant manager, and manager. Ms. Merritt had the responsibility of managing the store, ascertaining that all duties involved in store operation were accomplished and supervising and monitoring the performance of other store employees. She imposed discipline, including termination if necessary, and also hired employees. Mr. Morris failed to appear for work, beginning the first week of March 2006. He was terminated from his employment with the Respondent on March 9, 2006. In February or early March, Ms. Merritt informed Ms. Galloway that she had overheard another employee referring to the Petitioner having filed a claim against the Respondent because of Mr. Morris. Prior to that time Ms. Merritt was unaware of any problem between Mr. Morris and the Petitioner. Between the time that Ms. Galloway met with the Petitioner on January 31, 2006, and the time she heard from store manager Merritt that the Petitioner was still having a problem with Morris in late February or early March, the Petitioner had not contacted Ms. Galloway to report any problem. After being advised of the matter by Ms. Merritt, Ms. Galloway advised Ms. Merritt to contact the Petitioner to find out her version of the events which occurred and to offer her a transfer to any one of five stores that Ms. Galloway was responsible for on the East side of Pensacola. Ms. Merritt met with the Petitioner and offered her the transfer opportunity, which the Petitioner refused at that time because she had a mediation pending. When Ms. Merritt began duties as store manager a misunderstanding occurred about the Petitioner's schedule. Ms. Merritt understood, mistakenly, that the Petitioner was available for fewer hours of work than she actually was. This resulted in the Petitioner being scheduled to work fewer hours for two or three weeks. Ms. Merritt was then informed of the Petitioner's actual scheduling availability by someone from the management office. On March 20, 2006, the Human Resource Manager, Sheila Kates, met with the Petitioner. The Petitioner complained about her reduced hours which Ms. Kates discussed with Ms. Merritt. As soon as Ms. Merritt realized that she had misunderstood the Petitioner's hours of availability she increased the Petitioner's hours on the work schedule. The Petitioner agreed that Ms. Merritt had been unaware about any problem between the Petitioner and Mr. Morris, when she reduced the Petitioner's work hours schedule because of her misunderstanding of the Petitioner's availability. Ms. Kates again offered to allow Ms. Myles to transfer to another store if she wished (apparently to help her avoid her apparent conflict with Mr. Morris), but the Petitioner again declined. Ms. Galloway, as part of her duties as District Advisor, conducted store inventory audits. She conducted a store inventory audit for Store No. 31 on May 30, 2006. During that audit she discovered that the store had a significant inventory shortage. Ms. Galloway therefore scheduled a "red flag" meeting the next day with each employee at the store, as well as meeting with them as a group to discuss inventory control. All of the employees at the store were counseled regarding the inventory shortage, including Ms. Myles and Ms. Word. Ms. Word, who is white, was issued a written reprimand on March 24th and April 24th, 2006, because of cash shortages. Ms. Word was subsequently terminated on June 16, 2006, for causing inventory shortages by allowing her friends to come in and take merchandise out of the store without paying for it, as well as for excessive gas "drive offs," or instances where people pumped gas into their vehicles and failed to pay for it. The Petitioner was given a $1.00 per hour raise by Ms. Merritt on or about April 2006. Ms. Merritt also changed the Petitioner from a part-time to a full-time employee in May 2006. This change enabled the Petitioner to become eligible for employee benefits. Ms. Merritt also, however, reprimanded the Petitioner for a cash shortage on July 14, 2006. The Petitioner admitted that her cash register was $48.00 dollars short on that day. The Petitioner complained to Ms. Galloway sometime in July of 2006 that Mr. Morris, the former store manager, and no longer an employee, had been vandalizing her car when he came to the store as a customer. Although these allegations were uncorroborated at that time, Ms. Galloway advised the Petitioner to call the police about the matter and to contact Ms. Kates directly, in the Human Resources office, if there were any more such incidents. The Petitioner filed a retaliation claim against the Respondent on August 7, 2006. Ms. Merritt had been considering the Petitioner for promotion to assistant store manager. The Petitioner completed a background check authorization for that position on September 19, 2006. Mark Slater is a Regional Manager for the Respondent. His duties include supporting the District Advisor's position, which includes recruitment, hiring and training of managers, reviewing sales trends, and reviewing any other financial trends, such as cash shortages, "drive offs" and inventory losses. In mid-October 2006, in the course of a routine review of reports from Store No. 31, Mr. Slater became aware of a possible problem regarding excessive gasoline drive offs, and an unusual purchase-to-sales ratio. Shortly after his review of those reports, Mr. Slater went to Store No. 31 to review the store's electronic journal. The electronic journal contained a record of all the store transactions. In his review of that journal, he focused on "voids," "no sales," and "drive offs," which could explain the irregularities that he had observed in his initial review. In his review of the "voids" at store No. 31 during the period in question, Mr. Slater noted quite a few voids for cigarette cartons, for large amounts, in a very short period of time. Specifically, in the course of seven minutes, he observed voids in the total amount of $406.23. He found this to be highly irregular and suspicious. Mr. Slater also looked at the drive-offs, because he had noticed some trends on that report as well. In reviewing drive-offs, he noticed that the same employee number was involved in both the voids and the drive-off transactions. Mr. Slater noted in his review that one drive-off was held on a void and then brought down as a drive-off, which appeared suspicious to him. Mr. Slater than matched up the electronic journal transactions with the security video tape that corresponded with that journal entry. In observing the video tape, Mr. Slater identified the transaction entered as a drive-off, but saw from the video tape that a customer had in fact come in and paid for the gas in question with cash. When he began his review Mr. Slater did not know which employee had the employee number that was used in association with the voids and the gasoline drive-offs. However, after he had concluded his investigation, he researched that number and found out that it was the number assigned to the Petitioner. Mr. Slater thus knew that the Petitioner had voided the drive- off transaction, as shown in the electronic journal, while the video tape showed that the Petitioner had actually served the customer who, in fact, did not drive-off without paying, but had paid $20.00 in cash for the gasoline in question. When she was asked about the security video showing the Petitioner accepting the $20.00 for the transaction which she had entered as a gas drive-off, the Petitioner responded that she did not recall it. Mr. Slater concluded that the Petitioner had not properly handled the transaction and took his findings to the Human Resources Manager, Sheila Kates. After consulting with Ms. Kates, the decision was made to terminate the Petitioner's employment. Prior to making his investigation and prior to making his conclusions, Mr. Slater was unaware of any issues between the Petitioner and Michael Morris. None of his findings and decisions regarding the situation with the Petitioner's voids and drive-offs had anything to do, in a retaliatory sense, with any issues or complaints the Petitioner might have had against Michael Morris or to the Respondent concerning Michael Morris. After being discharged for related types of conduct, neither Ms. Lugenia Word, who is white, nor the Petitioner, Ms. Myles, are eligible for re-hire by the Respondent.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the charges of discrimination and retaliation at issue in their entirety. DONE AND ENTERED this 29th day of October, 2007, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 29th day of October, 2007. COPIES FURNISHED: Latarsha Myles 2103 Haynes Street, Apt. C Pensacola, Florida 30326 Cathy M. Stutin, Esquire Fisher & Philips LLP 450 East Las Olas Boulevard, Suite 800 Ft. Lauderdale, Florida 33301 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
Findings Of Fact On March 8, 1988, Seacrest Cadillac, Inc., filed an application with the Department for a motor vehicle dealer license to establish a new Cadillac dealership in Port Richey, Florida on U.S. Highway 19. Port Richey is located in Pasco County. Thereafter, pursuant to the provisions of Section 320.642, Florida Statutes, Larry Dimmitt Cadillac, Inc., a Cadillac dealer currently operating in Clearwater, Florida, filed a protest to the application with the Department and requested formal hearing. The general geographic area pertinent to the issue herein is the Cadillac, Tampa Multiple Dealer Area, (MDA). An MDA is an area in which more than one dealer of a line-make shares a contractual Area of Primary Responsibility, (APR), with one or more other dealers of the same line-make. The MDA is defined by contractual agreement between the manufacturer and its dealers: in this case Cadillac Motor Division of General Motors Corporation and the relevant Cadillac dealers within the area. The Cadillac, Tampa MDA is comprised of Hillsborough, Pinellas, Pasco and Hernando Counties. Three existing Cadillac dealers are in operation in this area. Dimmitt is located on U.S. Highway 19 north of State Road 60 in the Countryside Mall area of Clearwater in Pinellas County 21 miles south of the proposed Seacrest location and approximately 40 minutes driving time away. Dew Cadillac is located in downtown St. Petersburg, also Pinellas County, at Third Avenue South and Third Street, 40 miles south of the proposed Seacrest location and approximately 1 hour and 19 minutes driving time away. Morse Cadillac, (previously Bay Cadillac), is located in Tampa, Hillsborough County, at the intersection of Florida and Fletcher Avenues, 35 miles and approximately 58 minutes driving time away. There are also Cadillac dealers in Lakeland, Lake Wales, and Bradenton, but these dealerships are not included in the Cadillac, Tampa MDA and based upon sales and registration information concerned with Cadillac consumer behavior, these dealers and the areas they serve are not a part of the community or territory relevant to this hearing. The Cadillac, Tampa MDA is broken down into 5 separate Areas of Geographic Sales and Service Advantage (AGSSA). Each AGSSA represents an area wherein a dealer enjoys a competitive advantage over other dealers of the same line-make because of his geographic location. The 5 AGSSAs relevant here are: Northern Tampa plus eastern Pasco and Hernando Counties. (Morse) Southern Pinellas County (Dew) Northern Pinellas County (Dimmitt) Western Pasco and Hernando Counties.. (proposed for Seacrest) Eastern Tampa near Brandon (no dealership within) AGSSAs comprised of U.S. census tracts or otherwise well accepted geographic descriptions, are determined by the manufacturer who assigns each geographic piece to its nearest dealer or proposed dealer location unless there is some overriding consideration such as a natural or man made barrier, (Tampa Bay), or a demonstrated unwillingness by consumers to travel from one area to another. AGSSA sizes and the geographic areas are flexible and can be changed over time on the basis of changing population patterns and purposes. The geographic definition of AGSSA 4 has changed from time to time and may well change in the future. The greatest growth in Pinellas County is in the northern portion contiguous to Pasco County which, itself, can be expected to experience a substantial growth in the future. AGSSA 4 consists of census tracts and geographical pieces which are closer to the proposed Seacrest location than to any other existing Cadillac dealer or which, utilizing sound business judgement, should be assigned to AGSSA 4. Consumer research indicates that within the Cadillac, Tampa MDA there are two separate market areas generally separated by Tampa Bay. Those east of the bay, (AGSSAs 1 and 5, covering Tampa and Brandon), constitute one of the market areas. The area west and northwest of the bay, (AGSSAs 2, 3, and 4, consisting of St. Petersburg, Clearwater and Port Richey, respectively), constitutes the other. The eastern market area, made up of AGSSAs 1 and 5, are not only geographically but by consumer behavior, separated from the other three and do not constitute a part of the community or territory relevant to the issues herein. A Cadillac dealership is not currently located in Port Richey. For that reason, a determination whether AGSSAs 2, 3, and 4 comprise a single community or territory, or whether AGSSA 4 is separate and distinct is not easy to make. Indications are that it is a single community or territory and that the establishment of a dealership in Port Richey would not change this. Clearly there are two and Petitioner contends three separate auto shopping areas for high group or prestige/luxury cars along U.S. Highway 19 within the AGSSA 2, 3, 4 community or territory. One of these surrounds Dew Cadillac in St. Petersburg; one is in the area of Dimmitt Cadillac in Clearwater; and the third, if it exists as Petitioner claims, would be located near Port Richey in the area of the proposed Seacrest location. Numbers of people alone, however, do not necessarily determine the market for a particular brand of automobile. A demographic profile is often helpful in evaluating market potential and can play a significant part in the evaluation of adequacy of representation, the basic issue involved in this case. Studies run by and for General Motors Corporation indicate that 63% of Cadillac buyers are 55 years of age or older and over 60% of Cadillac buyers have household income in excess of $55,000.00. Survey statistics reflect that a large percentage of the population in AGSSAs 2, 3 and 4 are 65 and older. More than half the population in AGSSA 4 is over 55 and more people 65 or over reside in AGSSA 4 than in the other two AGSSAs within the community or territory. Age alone is not the determining factor, however. While older individuals generally have mode disposable income than younger people who have other needs for their money, the percentage of household income which is "disposable" is not necessarily indicative of the individual's ability to purchase a high group/luxury vehicle. Studies reveal that a higher percentage of people residing in AGSSA 4 have lower income levels than in the Florida zone. However, average household wealth in AGSSA 4 is about the same as in the 2,3,4 community or territory and only slightly lower than in the state as a whole. From this it might be inferred that because of the lower number of "well to do" people in AGSSA 4, the popularity or high group or luxury cars, when compared to all cars sold, may be lower than average. However, income does not have an overriding effect on Cadillac's share of the domestic high group market. The high group includes the Cadillac, the top of the line Buicks and Oldmobiles, the Lincoln Town Car, the top of the Chrysler line, and several imports. General Motors Corporation's quarterly CAMIP report which relates to average household income, marital status, sex, and education of purchase decision-makers, recognizes that even within the high group, certain vehicles do not compete. Within the high group, there are three competitive subgroups which, because of size, price, style, or image, compete more directly against one another. The three categories are the large luxury, the El Dorado/Mark, and the Seville/Continental. In the first are primarily the passenger sedans and coupes and included are three Cadillacs, (deVille, Fleetwood and Brougham); the upper line of Oldsmobile and Buick; the Lincoln Town Car; and the Chrysler Fifth Avenue. The "sport division" includes such vehicles as the El Dorado, the Mark VII, the Corvette, the Porsches and the Jaguars, and the third subcategory includes the Seville, the Continental, the Mercedes, the BMW and the upper line Volvos. Compared with both the Florida and the AGSSA 2,3,4 community or territory, more purchasers in AGSSA 4 selected cars from the large luxury subcategory and fewer from the other two. Since Cadillac generally dominates the large luxury group, it is appropriate, in an analysis of market penetration, to look at that sub group independent of the others. Market statistics indicate that during 1987, 1,309 high group cars were registered in AGSSA 4. Of this number, 76.5% were in the large luxury segment. This compares to 52.4% in the Florida zone. Within that Florida zone, Cadillac garners 46.3% of the large luxury segment, 11.73% of the ElDorado group segment, and 6.31% of the Seville group. When these percentages are applied to the 1,309 unit sales in the AGSSA 4 high group market, Cadillac could reasonably expect to sell 464 large luxury cars, 17 cars in the ElDorado group, and 9 cars in the Seville group for a total of 490 units. When the three segments are combined to reflect a single market share for Cadillac in AGSSA 4, an expectation of 38.3% share results. As it was, however, in 1987, Cadillac sold a total of only 333 in AGSSA 4 which represented a loss of 162 cars in the large luxury group and a combined gain of 5 from the other two for a net loss of 157 cars from expectation. In other words, Cadillac achieved 68.7% of what it could reasonably expect to have achieved in AGSSA 4. On the other hand, in AGSSAs 2 and 3, Cadillac met or exceeded 100% of its estimated large luxury group share. It should also be noted that almost every other domestic high group manufacturer represented in the large luxury group in AGSSA 4 also achieved better than 100% of its expectation for that segment. Further, the West Palm Beach, Miami, and Jacksonville Cadillac MDAs also met or exceeded 100% of their expected penetration. While the domestic high group models did well in AGSSA 4, the other high group manufacturers not represented by dealers in AGSSA 4 did not do as well. BMW, Mercedes, Volvo, and Acura all were below 100% as was Cadillac, and it is interesting to note that BMW, Mercedes and Volvo, with 83, 77 and 71% of expectation respectively, exceeded Cadillac's performance in AGSSA 4, (68.7%). From this, Petitioners claim it is obvious that Cadillac is under-represented in AGSSA 4 and that if it is to achieve its fair market share, it must be represented by a dealership within the AGSSA. This is not as certain as Petitioners would urge, however, since factors other than mere presence within the district contribute to the number of cars of a particular brand sold. Another factor to consider in analyzing Cadillac's adequacy of representation in the area is the ratio of Cadillac registrations in AGSSA 4 to registration of its legitimate competitors and to compare this ratio to the Florida zone and AGSSAs 2 and 3. Cadillac outsells Lincoln in the Florida zone by 160% and in AGSSAs 2 and 3 by 178%. However, in AGSSA 4, Cadillac sells only 87% of the number of cars that Lincoln does. The same relative comparison holds true for Cadillac's competitors among the large luxury cars. Almost without exception, Cadillac registrations in AGSSA 4 would have to increase two or three fold to equal its registration performance in the Florida zone and in AGSSAs 2 and 3. Another factor for consideration deals with the ability of the customer to secure competent service in a reasonable period of time at a convenient location. In the early 1980s, population figures showed the majority of people in the Pinellas/Pasco County areas were located in St. Petersburg, (Dew), Clearwater, (Dimmitt), and to a lesser degree, Port Richey. Between 1970 and 1988, the population defined not only by individual but by households has increased significantly in the Clearwater AGSSA and in the Port Richey AGSSAs, but not as much in the St. Petersburg area. People and households in the AGSSA 2,3,4 community or territory more than doubled. In AGSSA 4, alone, both individuals and households quintupled. It is generally accepted that vehicle registrations correspond to population density with registrations in the community or territory being concentrated primarily in the areas surrounding St. Petersburg, Clearwater and Port Richey, the three separate high group auto shopping areas identified herein previously. Cadillac has no representation in AGSSA 4. While population has increased radically, however, the number of Cadillac dealers in the community or territory has not increased at all. The two who were in business in 1940 are still operating. In 1970, Cadillac was represented by only two dealers, Dew and Dimmitt. Now, with the population increased between two and five times, Cadillac remains represented by only two dealers and is the only domestic high group manufacturer not represented in AGSSA 4. Pasco County, located in AGSSA 4, is the only county in Florida with a population over 100,000 that does not have a Cadillac dealer. This fact is meaningless, however, unless it relates to a lack of competition in sales or a lack of ability to provide service once a sale has been made. In that regard, at the present time, Cadillac owners in AGSSA 4 must travel an average of 28.4 miles to get to the nearest Cadillac dealer for service as compared to 7.4 miles average for other domestic high group brands. In AGSSA 2 and 3, the average distance for a Cadillac owner to get to the nearest dealer is 7 miles or less. This substantial difference between 28.4 miles and 7.4 miles is significant as it clearly impacts upon brand selection at purchase time. This is not to say that either Dimmitt or Dew are not providing quality service in a timely fashion to area Cadillac owners. To the contrary, the evidence present by Dimmitt establishes that it operates a quality service program with innovative and creative customer service benefits and no evidence was presented to indicate service quality or accessibility, at least as to Dimmitt, is lacking. A nationwide survey conducted in 1983 reflected that at least 36% of Cadillac buyers visited a dealer of at least one other brand before buying their Cadillac. Petitioner contends, and it appears reasonable, that this indicates that not all Cadillac buyers start out intending to buy a Cadillac and if a Cadillac dealer is not readily available, potential Cadillac customers may well select a competing brand rather than expend the extra effort to examine the Cadillac. The same survey also indicated that more than half of those who ultimately bought Cadillacs visited at least one other Cadillac dealership before making their purchase. Consequently, if a potential Cadillac buyer in AGSSA 4 desired to comparative shop among Cadillac dealers, he would have to travel on the average more than 85 miles to do so. This is significantly higher than for other domestic high group brands. Petitioner also contends that the community or territory has now outgrown a two dealer network located in the lower third of the geographical area involved. In light of the increasing population growth in AGSSA 4 and the fact that the lower disposable income situation there may well not remain static, there is some substance to Petitioner's argument. "Market share" and "sales penetration" are reliable measures of dealer representation. "Market share" measures a manufacturer's percentage of a given market based upon registration data obtained by R. L. Polk from the various states, and recorded monthly on a county-by-county, state-by-state, and national basis. "Sales penetration" measures actual unit sales compared with total sales potential using manufacturer warranty data, whether or not the vehicle is registered. The issue of "expected penetration" discussed previously, reflected that for the AGSSA 2,3 4 community or territory, Cadillac incurred a gross registration loss of 320 vehicles, that is, vehicle registrations shy of the expected number of registrations within the area. This shortfall, Petitioner contends, is compounded by an additional 484 vehicles registered in the AGSSA 2,3,4 community or territory which were sold to residents by Cadillac dealers from outside the community or territory. The total shortfall, then, is 804 vehicles. If it is assumed that a new dealer in Port Richey would penetrate the market at the same rate as the currently existing dealers in the community or territory, it should register 350 units which equates to 43% of the shortfall, leaving 454 units to Dew and Dimmitt to compete for. If the 804 shortfall figure is accurate, it would appear that adding another dealer to the community or territory would result in increased competition among the existing dealers for the shortfall sales which should, according to Petitioner, result in more sales and a reduction in shortfall. No evidence was introduced to show where the extra-community or territory vehicles were originally sold however. It well may be they were sold by Morse in Tampa, within the MDA, or by dealers from out of the MDA or the zone. How many of them could be recaptured is speculative. Throughout this discussion so far a distinction has been made between AGSSAs 2,3 and 4 and AGSSAs 1 and 5, considering them basically as independent sections within the Cadillac Tampa MDA. Respondent contends this is improper and prohibited by established case law. Respondent has not, however, shown that a consideration of the entire MDA as the community or territory, as it suggests, with AGSSA 4 as an identifiable plot, would result in a different conclusion. Respondent contests Petitioner's analysis of market representation with a thrust of its own asserting that AGSSA 4 has exceeded most of the established indicators or standards for the period 1985 - 1988 and when compared to the United States as a whole, has consistently outperformed the nation while currently exceeding the Florida zone average. Review of Respondent's own statistics, however, reveals that while AGSSA 4 has outperformed the national average, with the exception of the first six months of 1988, it has consistently trailed the Florida zone by several percentage points and the Tampa MDA by a narrower margin. In this one regard, Respondent's point of view is extremely short sighted. Comparison against a national average carries far less weight, considering the demographics, than does a comparison with a more localized and comparable population base. 34. Respondent further contends that while nationally Cadillac's registration penetration of high group vehicles has declined almost 10% during that period, AGSSA 4 has shown an increase of almost 5%. It is important to note as well that while the other comparables have been decreasing in percentage of penetration, with the exception of 1986, AGSSA 4's record has improved. Comparing AGSSA 4 with other AGSSAs in the Tampa MDA shows that AGSSA 4 has, during the last two years, shown a substantial gain in market share joined in gain only but to a lesser degree by AGSSA 2. It should be noted that these statistics are based on vehicle registrations, not sales. During she past two years, both Dimmitt in Clearwater and Morse in Tampa have relocated further north toward the area of AGSSA 4 and Morse underwent a change in ownership during the same period. Respondent asserts that these changes in dealership location and ownership "have had a profound impact in terms of what has and will happen in AGSSA 4." A review of Cadillac registrations in AGSSA 4 for the period 1985 through June, 1988 reflect that Morse increased its penetration from just over 10% to 25% within the AGSSA and this factor, when coupled with Dimmitt registrations in the AGSSA, make up approximately 87% of all Cadillacs registered in the AGSSA. While improvement has been shown, it is clear that those two dealerships, neither one of which is located within the AGSSA, account for a preponderance of Cadillac sales within the AGSSA. The fact remains that Cadillac sales within the AGSSA are still far below expected penetration. The fact that Cadillac's performance in AGSSA 4 would rank it 40th out of 148 markets nationwide, if it were an MDA in its own right, is not dispositive of any issue here. The question is not whether Cadillac is selling cars but whether Cadillac is selling the number of cars it should be selling. Comparing AGSSA 4 as it currently exists as a part of the Tampa MDA with other MDA's is invalid. Respondent presents evidence to indicate that based on 1988 registration data AGSSA 4 meets or exceeds in its Cadillac market share the performance of the Tampa MDA, the Tampa District, the Florida zone, the nation as a whole, and the median MDA average and that only AGSSA 2 and 3 in the Tampa MDA have performed as well as AGSSA 4. This is meaningless, however, if market conditions in the area indicate a substantially higher potential than is being achieved. If so, then the representation is inadequate. Accepting as accurate Respondent's assertion that many manufacturer's use 85% of a "standard" as the criteria to determine a dealer's acceptable efficiency or adequacy, and recognizing that AGSSA 4 achieves a Cadillac market penetration in excess of 85% of "the national average, the Florida zone, the Tampa District, and the Tampa MDA for 87 and 88," that figure, as well, is meaningless unless it is accompanied by an explanation of the "standard" applied by the manufacturer. Here, General Motors Corporation, by its intention to award a dealership within the geographical AGSSA 4 to Seacrest, is apparently not satisfied that its market share in AGSSA 4 is acceptable regardless of the fact that registrations within the AGSSA exceed 85% of the registrations in other geographic entities. Respondent suggests another test be used to evaluate the adequacy of representation of Cadillac in the AGSSA 4 area. This is based on gain/loss registrations compared to accepted retail penetration standards and is the difference between actual Cadillac retail registrations in an area and the number of registrations that would have occurred had it achieved the average penetration within that area be it national, zone, district, MDA or AGSSA. These analyses are theoretical and are based on percentages unadjusted to reflect reasonable expectations for the demographic makeup in the market. If adjusted for demography, Respondent contends, AGSSA 4 would reflect a lower penetration because of its relatively low household income. Utilizing this suggested analysis reflects that in each year between 1985 and 1987, when compared against the Florida zone, the Tampa District, or the Tampa MDA, AGSSA 4 lost sales. The maximum number occurred in 1986 when, as compared against the Florida zone, AGSSA 4 would have lost 69 sales. In each year, however, as compared to the national average, AGSSA 4 exceeded the national standard and in 1988, it exceeded not only the national figure but the other three categories as well. Since the number is so small, and since the trend is upward, Respondent urges, there is no justification to support a new single line Cadillac dealership and establishment of such a dealership would cannibalize the surrounding dealers. This argument is not persuasive, however, as it appears based on a less than adequate methodology. While comparisons against standards are used not only by automobile manufacturers but also by other product and service venders, and while both General Motors and USAI regularly use comparisons against the nation, zone, and MDA, those elements which make up the parts of the analysis must be supportable and those utilized here do not so appear. As was stated previously, Dimmitt has shown an increase in its sales in the AGSSA 4 area since its move to its current location closer to the boundary of the AGSSA. Part of the increase is undoubtedly related to the move but another part also may be related to the fact that it has substantially increased its advertising in the area. Dimmitt asserts it is one of the largest Cadillac facilities in the Florida zone and was built with a view toward servicing an increasing market. No doubt this is so. On balance, however, it would appear that with the increasing population in the Pasco County area of AGSSA 4, which is spreading to the north, away from Dimmitt rather than closer to the AGSSA 3 boundary, and considering the fluctuation in household income due to the attraction of different income groups by the construction of related residential areas, and the basic statistics which show that at the current time, AGSSA 4 is not achieving a reasonable potential expected of it, it would appear that AGSSA 4 is not adequately served by the exiting dealerships in AGSSA 1, 2 and 3. This is due primarily to the distance factor and not the caliber of service rendered by the existing dealers. Convenience to the customer, remembering that Cadillac customers are, for the most part, older citizens, is an important consideration and with the aforementioned expected population surge, it is considered unlikely that the establishment of a new dealership in AGSSA 4 would have a permanent or long lasting adverse effect on the dealers not serving the area.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the application of Seacrest Cadillac, Inc. to establish a Cadillac dealership in the vicinity of AGSSA 4, (Port Richey), be granted. RECOMMENDED in Tallahassee, Florida this 13th day of March, 1989. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-2252 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONERS: 1. & 2. Accepted and incorporated herein 3. - 5. Accepted and incorporated herein 6. - 15. Accepted and incorporated herein Accepted and incorporated herein Accepted and incorporated herein Accepted and incorporated herein Accepted and incorporated herein & 21. Accepted and incorporated herein Accepted and incorporated herein Accepted - 26. Accepted and incorporated herein Accepted and incorporated herein Accepted and incorporated herein Accepted Accepted and incorporated herein as pertinent - 33. Accepted and incorporated herein 34. - 36. Accepted and incorporated herein Accepted and incorporated herein - 41. Accepted and incorporated herein Not a Finding of Fact but a comment on the evidence - 45. Not a Finding of Fact but a comment on the evidence Accepted but not relevant Not a Finding of Fact but a comment on the evidence BY RESPONDENT DIMMITT: Accepted and incorporated herein Accepted and incorporated herein - 5. Accepted and incorporated herein 6. & 7. Accepted 8. - 10. Accepted and incorporated herein 11. & 12. Accepted and incorporated herein Accepted Accepted and partially incorporated herein & 16. Accepted and incorporated herein Accepted and incorporated herein Accepted & 20. Accepted and incorporated herein Accepted but qualified by the possibility of change in demographics. - 27. Accepted and incorporated herein Accepted & 30. Accepted Accepted Accepted and incorporated herein - 35. Not totally supported by the evidence. Accepted in part and rejected in part. 36. & 37. Accepted and incorporated herein Accepted Accepted and incorporated herein Accepted Accepted & 43. Accepted and incorporated herein Accepted & 46. Accepted and incorporated herein Accepted and incorporated herein - 50. Accepted Rejected as contra to the weight of the evidence & 53. Accepted but given limited weight due to questionable relevance Accepted and incorporated herein Accepted and incorporated herein Accepted and incorporated herein Accepted Repetitive of Findings of Fact 36. & 37. - 61. Accepted and incorporated herein but not an issue. Dimmitt's performance of service and customer satisfaction was not questioned. COPIES FURNISHED: Dean Bunch, Esquire 101 North Monroe Street, Suite 900 Tallahassee, Florida 32301 Edward Risko, Esquire Office of the General Counsel General Motors Corporation New Center One Building 3031 West Grand Blvd. Detroit, Michigan 48232 Michael A. Fogarty, Esquire Post Office Box 3333 Tampa, Florida 33601 Daniel D. Myers, Esquire 402 N. Office Plaza Drive Suite B Tallahassee, Florida 32301 Michael J. Alderman, Esquire Office of General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500
The Issue Whether Respondent, Cox Cable, discriminated against Petitioner, Janice B. Campbell, in violation of the Florida Civil Rights Act of 1992 (“the Act”), sections 760.01–760.11 and 509.092, Florida Statutes, by disciplining and then terminating her, in retaliation for her participation in a protected activity under the Act.
Findings Of Fact Cox Cable (Cox) is a provider of telephone, internet, cable, and digital television service in several regions of Florida. Cox is an employer within the meaning of the Act and Title VII of the Civil Rights Act of 1964, as amended. Petitioner was employed by Cox in its Pensacola office from May 2000, until her termination on March 19, 2012. Petitioner held a number of different positions during her tenure with Cox, including Quality Control, Customer Care Representative and Retention Representative. Petitioner joined the Customer Retention Department in July 2010, as a Retention Representative. The primary duty of a Retention Representative is to take calls from existing customers who are requesting termination or downgrade of their existing service and save those customers for Cox. Cox trains Retention Representatives to use a “call flow” with these customers. The call flow is a quality guideline that shows representatives what offers can be made to the customer at the time of the call. When a customer or potential customer calls Cox, they encounter an automated menu of services and are directed to a specific department based on their menu selections. For example, an existing customer with technical or billing questions is routed to the Customer Care Department; a customer moving out of the area is routed to the Account Services Department; and an existing customer who wishes to downgrade or disconnect service is routed to the Retention Department. Calls waiting for a representative in a particular department are “in the queue” for that department. Calls should be answered in the order received. While a Retention Representative’s primary job is to save existing customers, they may sell services to those customers as a secondary duty. For example, a retention representative may try to save the customer money by offering to provide services the customer is receiving from another provider (e.g., telephone) with services currently provided by Cox (e.g., cable) in order to reduce the customer’s overall service cost while retaining the customer. The term for this practice is offering to “bundle” services. Cox maintains a policy against Retention Representatives taking calls transferred directly to their line from representatives in other departments in order to sell services. This practice is known as “direct transfer calls.” Retention Representatives, however, are not prohibited from taking all sales calls. They may handle, for example, a call from a customer looking to purchase services when that call comes into the retention queue (presumably because the caller pressed the incorrect key). In fact, the Retention Department has sales goals set by Cox corporate office. When goals are set for a particular product or service, Cox provides incentives to boost sales of the particular product or service. The call flow provides Retention Representatives with a tool to sell upgrades to existing services based on availability of promotional offers. The Retention Department was formerly part of the Inbound Sales Department. In May 2010, just two months before Petitioner joined, Retention was created as a separate “stand alone” department with a focus on saving existing customers. The authority of the Retention Representatives with respect to selling services was subject to much confusion during the separation of the Retention Department from the Incoming Sales Department. On September 14, 2011, the Retention Managers, Shannon Boyd-Tibbs and Daniel Lister, met with all the Retention Representatives in a “huddle” to explain the types of calls they could and could not receive. The group meeting was followed up the same day by one- on-one meetings between the Retention Supervisors and each of the Retention Representatives under their supervision. On September 14, 2011, following the huddle meeting, Petitioner met with Ms. Boyd-Tibbs who reviewed with her a document titled “Sales Performance Expectation Clarification.” The “Sales Performance Expectation Clarification” provides, among other expectations, “Closed sales should not be transferred from one sales representative to another which may impact commission or performance metrics” and “Sales representatives are not permitted to transfer sales to another representative, which would cause an increase in commissions or sales performance.” Petitioner acknowledged receipt of the “Sales Performance Expectation Clarification” by her signature dated September 14, 2011. Six days later, Retention Supervisor, Daniel Lister, further clarified the issue in an email to all Retention Representatives on September 20, 2011, stating “[I]f a sales call comes into the queue, you will be able to take care of this customer. It does not mean you should take calls that are sent directly to you by a representative from billing or various other departments.” The reasons for prohibiting direct transfer calls are three-fold. First, the practice skews the Retention Department’s sales goals, which are based on the prior year’s numbers. If sales are up based on direct transfer calls in the prior year, the current year’s sales goal is inflated and may be unattainable. Second, the practice causes customers in the retention queue to wait longer for a representative, potentially causing them to become more irate and less likely to be retained. Finally, it is unfair to other Retention Representatives who compete for incentives and bonuses based on sales. Petitioner admits taking direct transfer calls from a number of sales representatives. Despite management’s clarification of the company policy in September 2011, Petitioner continued the practice throughout the remainder of the year and into 2012. On March 13, 2012, Petitioner was suspended with pay for continuing to take direct transfer calls. Her supervisor, Ms. Boyd-Tibbs, met with Petitioner and explained the basis for her suspension. During Petitioner’s suspension, Ms. Boyd-Tibbs and Mr. Lister requested and reviewed a number of reports documenting Petitioner’s direct-transfer sales and confirming Petitioner’s disproportionate sales numbers. The final decision to terminate Petitioner was made by Dennis Huber, supervisor of both Mr. Lister and Ms. Boyd-Tibbs, but only after consultation with Human Resources and the Customer Care Sales Manager. Petitioner was terminated on March 19, 2012. Ms. Boyd-Tibbs delivered the news over the phone to Petitioner. Petitioner claims she was terminated in retaliation for reporting unethical behavior by another Retention Representative, Belinda Thompson. Petitioner claims Ms. Thompson inflated her performance numbers by failing to disconnect customers who requested termination of service, transferring certain calls back to the queue, giving unauthorized credits to customers, and other questionable practices. The evidence shows Petitioner did complain to Ms. Boyd-Tibbs about Ms. Thompson’s sales practices, which were investigated by Cox and found the complaints to be unsupported. Rather than showing that Petitioner was retaliated against, the evidence demonstrated that Petitioner was terminated by Cox on March 19, 2012, for violating company policy against taking “direct transfer” sales calls from other representatives in different departments.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner’s Discrimination Complaint and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 13th day of November, 2012, in Tallahassee, Leon County, Florida. S Suzanne Van Wyk 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 13th day of November, 2012.
