Findings Of Fact The Respondent, Larry C. Griggs, is licensed as a certified general contractor, holding license number CG C001910. During the years 1979, 1980 and 1981 the Respondent was president of Kramer Homes, Inc., and in this capacity he acted as contractor for the construction of a project in Dade County known as Woods Landing. Kramer Homes, Inc., entered into subcontracts in connection with the Woods Landing project, and listed itself as contractor on these subcontracts. Kramer Homes, Inc., also caused the notice of commencement to be published, and it obtained the construction loan and paid some of the bills incurred. The Respondent, however, failed to qualify Kramer Homes, Inc., with the Construction Industry Licensing Board. The Respondent admitted the above facts, but explained that he had no intent to violate the construction industry licensing law. He asserts that he was confused as to the proper practice because he owned and operated both Kramer Homes, Inc., and his other corporation, Larry C. Griggs, Inc., which he did qualify. During the course of the Woods Landing project, funding problems developed which resulted in the failure of the Respondent to pay 16 creditors for materials furnished or services performed at Woods Landing when payment was due. Subsequently however, the Respondent has caused payment to be made, or has made arrangements for payment, to all such creditors except for five. The creditors remaining unpaid are Miami Comfort Air, Style Light, Inc., Gem Cabinet Company of Miami, Inc., World Tile Company, and Dixie Clamp and Scaffold, Inc. On approximately September 11, 1981, the Respondent issued a check on a Woods Landing account, payable to Miami Comfort Air, in the amount of $5,000. Previously, on July 31, 1981, the Respondent had acknowledged the debt due Miami Comfort Air, and had made arrangements to pay $8,000 by September 1, 1981. The check for $5,000 was in partial payment of the total debt. The check for $5,000 issued by the Respondent on September 11, 1981, to Miami Comfort Air was returned unpaid by the bank marked not sufficient funds. When the Respondent learned that this check had not been paid, he failed to make it good or to make suitable arrangements for payment of the amount due Miami Comfort Air. The Respondent contends that be believed that there were sufficient funds in his account when he issued the $5,000 check to Miami Comfort Air. He explained that his bank, County National Bank of South Florida, became insecure with the financial aspects connected with the Woods Landing project, and withdrew interest from his account without advising the Respondent, at or about the time he issued the check to Miami Comfort Air. He asserts that it is his intention to pay all of the creditors of this project, and he established his payment record of the creditors who had been paid as of the date of the hearing. Miami Comfort Air has reduced its claim against the Respondent to judgment which the Respondent has not paid, but has elected to appeal, although he did not appear in court to defend the claim when suit was filed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Larry C. Griggs, be found guilty of violating Sections 489.129(1)(d), (g), (j) and Section 489.129(1)(c) to wit Section 455.227(1)(a), Florida Statutes, and that he be assessed an administrative fine of $250 on Count 1, $100 on Count 11 and $1,000 on Count 111, for a total fine of $1,350. THIS RECOMMENDED ORDER entered on this the 24th day of January, 1983. WILLIAM B. THOMAS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 1983. COPIES FURNISHED: Michael J. Cohen, Esquire Suite 101 Kristin Building 2715 East Oakland Park Blvd. Fort Lauderdale, Florida 33306 James L. Wall, Jr., Esquire 407 Lincoln Road Miami Beach, Florida 33139 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
The Issue Did Respondent, LGI Homes-Florida, LLC (LGI), discriminate in housing against Petitioners, Bridget and Tonny Walker, on account of their race in violation of section 760.23 Florida Statutes (2018)?1 1 All references to the Florida Statutes are to the 2018 compilation unless noted otherwise.
Findings Of Fact Mr. and Ms. Walker are African-American. Their claim in this matter arises out of their inquiry into buying a house from LGI in its Hill 'N Dale community. LGI is a national homebuilder. It develops residential communities consisting of homes that it built. It offers financing for those homes. LGI follows a specific, multi-step process for home sales. The process includes maintaining a log of contacts with potential buyers. The log includes the name of the sales representative who spoke to the potential buyers, the date of the contact, and the outcome of the contact. The process also includes a loan pre-qualification step. Using a Pre-Qualification Worksheet, a sales representative gathers basic financial information from a prospective buyer including employment, compensation, and bank account balances. In addition, LGI obtains a credit report for the prospective buyer. A determination that a buyer is qualified is effective for 30 days at any LGI property. After 30 days, a buyer who wishes to tour a home must undergo the pre-qualification process again. LGI does not give home tours to individuals unless they pre-qualify for financing. It follows this policy to conserve sales representative time by avoiding wasting time showing homes to individuals who are unlikely to be able to purchase them. LGI also says the policy avoids raising unrealistic expectations in would-be buyers who will not be able to finance a home. LGI's policies require every sales representative to first take each pre- qualified prospective buyer to a target home, identified as the lowest price home available, before viewing any other available homes on the property. On March 17, 2018, Mr. and Ms. Walker visited LGI's Ballentrae community. There they completed the pre-qualification process. An LGI representative advised them that they were pre-approved for a home valued around $150,000. The Walkers did not tour a home in the Ballentrae community. On June 16, 2018, the Walkers visited LGI's Hill 'N Dale community. They had scheduled an appointment with Danine Stratton, an LGI sales representative. After the Walkers arrived and seated themselves in the waiting area, a Caucasian couple arrived and sat down. When Ms. Stratton entered the waiting area she spoke to the Caucasian couple before acknowledging the Walkers. Ms. Stratton consulted with the Walkers and obtained the information needed for pre-qualification from them. This was necessary because more than 30 days had passed since they had pre-qualified at the Ballentrae property. She also asked for some demographic information. The Walkers inquired about purchasing a four-bedroom house. Ms. Stratton expressed skepticism that they could afford a four-bedroom home. During the consultation Ms. Stratton learned that Mr. Walker's name was spelled "Tonny," with two "n"s. She noted that the spelling was unusual. She went on to say, "It's either three things, your mother could not spell, your mother was on drugs, or just unique." The Walkers were justly offended and understandably perceived the comment as invoking racial stereotypes. Ms. Stratton maintains that this was just good natured, light-hearted, teasing meant to build rapport with the Walkers. She testified that she was "completely shocked" that they were offended. Ms. Stratton is not credible. It is not plausible that a sales person would expect insulting a customer's mother to build rapport with the customer. Ms. Stratton's comments are inexplicable. Nonetheless, Ms. Stratton gave the Walkers a tour of the community.2 She offered to show the Walkers a three-bedroom home, consistent with LGI's "target home" strategy. They asked about a four-bedroom home. Ms. Stratton said that a four-bedroom home was not available for showing. There is no persuasive evidence that one was available at that time or that a four- bedroom home was shown during that time period to non-minority persons. Ms. Stratton was willing to sell a three-bedroom home to the Walkers. By then they had decided they would not purchase a home from LGI. In 2 The testimony of Ms. Walker and Ms. Stratton differed on this point and others. Based on the demeanor of the witnesses, consistency with other evidence, and the implausibility of some of Ms. Stratton's testimony, the undersigned finds Ms. Walker more credible and persuasive. Ms. Walker's words, "I declined her offer to purchase any home with LGI." (Tr. p. 39). Upset by Ms. Stratton's comments about the spelling of Mr. Walker's name, the Walkers decided that they just wanted to leave. In order to do this peacefully they said they needed to check with an uncle to obtain funds for the required earnest money. They also refused to sign the pre-qualification form. On June 17, 2018, Ms. Stratton texted the Walkers saying, "Hey there, just touching base. Were you able to talk with your uncle about helping out?" This text demonstrated that Ms. Stratton wanted to sell the Walkers a home. On June 18, 2018, Ms. Walker replied that because of the comment about the spelling of Mr. Walker's name, "We will not be purchasing with LGI." Ms. Stratton replied: Oh my goodness, I'm so sorry that I offended you. I certainly didn't mean to. I was just making a joke and in hindsight was in poor taste. Again, I'm so sorry and best of luck to you guys." Ms. Walker went to an LGI property in Ruskin and spoke to a supervisor there named Joe Boyd. He assured her that LGI would take care of the problem and someone would call her. Ms. Walker also called LGI's home office in Texas. She was connected to the area director for Florida. He emailed Ms. Walker and said that he would have someone named Todd Fitzgerald contact her. Mr. Fitzgerald did not contact the Walkers. On Friday, June 22, 2018, at 12:52 p.m., Ms. Walker sent Mr. Boyd an email. It stated, "Myself and my husband recently visited one of your properties and received poor customer service and rude racist remarks from one of your employees. I have spoken to one of you[r] managers locally but I do not [know] if anything was done. There was no follow up. Please contact me at [phone number]." On Friday, June 22, 2018, at 10:13 p.m., Mr. Boyd replied: It is my understanding that our division president Todd Fitzgerald called you to discuss this. Please let me know if he hasn't and I will be happy to call. Please be assured that in no way was the intent of our representative to offend in any way. We apologize for you feeling that you received comments that were rude and even racist, that is definitely not like us, so from the bottom of my heart I am sorry on behalf of our company. I'll be available to discuss tomorrow if Todd has not already spoke with you. Have a nice evening! The next day Ms. Walker replied: "Thank you for your quick response. But I have not spoken to Todd Fitzgerald." There is no evidence of further communications between LGI and the Walkers. The Walkers did not offer to purchase a home from LGI. They would not purchase a home from LGI. From March 2018 through March 2019, LGI closed on the sale of 15 homes at Hill 'N Dale for which Ms. Stratton was the responsible sales representative. African-Americans purchased seven of those houses. On May 20, 2018, Ms. Stratton sold a four-bedroom home Hill 'N Dale to Alfreeda Harrington, an African-American, for $175,000.00. This was before her June meeting with the Walkers. Ms. Stratton sold a three-bedroom home in Hill 'N Dale to Tawanda Boyd, for $160,000.00. Ms. Boyd is an African-American. On August 11, 2018, Beverly Easton, an African-American, purchased a four-bedroom home in Hill 'N Dale for $175,000.00. Ms. Stratton was the sales representative for the transaction. On June 9, 2018, Ms. Stratton sold a home in Hill 'N Dale to the Samuels family, who were African-Americans. On April 12, 2019, Ms. Stratton sold a home in Hill 'N Dale to an African-American buyer whose last name is Wheeler. On March 25, 2019, Ms. Stratton sold a home in Hill 'N Dale to an African-American buyer whose last name is Bacon. On January 28, 2019, Ms. Stratton sold a home in Hill 'N Dale to an African-American buyer whose last name is Swanson.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order denying the Petition for Relief. DONE AND ENTERED this 12th day of June, 2020, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Brett Purcell Owens, Esquire Fisher & Phillips, LLP Suite 2350 101 East Kennedy Boulevard Tampa, Florida 33602 (eServed) Bridget Trinettea Walker Tonny Walker 1144 Barclay Woods Drive Ruskin, Florida 33570 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue Petitioner's complaint and Petition for relief allege that she was discriminated against due to her handicap of multiple sclerosis when she was terminated by Respondents on March 9, 1990. The issue for disposition is whether that violation of Section 760.10, F.S., occurred, and if so, what relief is appropriate.
Findings Of Fact Leah Swenson-Davis was employed by Respondent, Orlando Partners, as a national sales manager from August 1989, until her termination on March 9, 1990. As sales manager she searched out new business for the hotel, maintained files and obtained repeat business from corporations and other customers. Her salary was $28,000.00 a year. Louis Evans was director of sales, and her supervisor. He hired Ms. Swenson-Davis to book conventions and also hired Barbara Hydechuk and Beth Darkshani as other sales staff. In his opinion Ms. Swenson-Davis was a "pro"; she generated substantial revenue for the hotel and her sales bookings were "much superior" to the other staff. At one point, the three women were promised new office chairs if they could generate 500 room/nights by Friday of the same week. They made their goal, with Ms. Swenson-Davis bringing in 437 out of the total, and the other women bringing in the remainder. In addition to booking hotel rooms, Ms. Swenson-Davis also was effective in selling other hotel services. She generated business from groups who had previously used the hotel but had not been reworked. Her booking packages were very detailed and thorough and she had few cancellations. In February 1990, Barbara Hydechuk was promoted to director of sales, and she took over the responsibility of national sales. Leah Swenson-Davis was hospitalized in February 1990, for what was originally thought to be a stroke. She was then diagnosed as having multiple sclerosis, a disease affecting functions in the nervous system. Hers is not a severe form of the disease and her physician released her to return to work half-time. At the hearing, no signs of illness were evident; that is, she moved and spoke in a perfectly normal manner. When she returned to work, however, Ms. Swenson-Davis was treated "like a leper". Bill Flynn and Barbara Hydechuk made her feel like she would infect them. She was kept at a physical distance. During her absence, Barbara Hydechuk had been promoted. When Ms. Swenson-Davis asked Bill Flynn why she was not informed of the promotion opportunity, he replied that he had worked with Barbara. The work atmosphere, and employees' attitudes toward Ms. Swenson-Davis were very different after her return to work. On March 9, 1990, the Friday before Ms. Swenson-Davis was to pick up her doctor's release to return to work full-time, she was informed by Barbara Hydechuk that she was "terminated immediately" due to lack of productivity in the sales department. Since her termination, Ms. Swenson-Davis has submitted approximately 300 applications with other hotels, and in other sales and marketing areas. She has been given interviews, but has not been hired as of the date of the hearing, although she is capable of working full-time. She received unemployment compensation from March until September 1990. She has accrued medical expenses in the amount of $12,602.00, in 1992, for herself and her son, which expenses would have been covered by her former employer's benefit package. She was insured through COBRA until December 1990, when the premiums went over $500.00 and she could no longer afford them.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Florida Commission on Human Relations enter its final order requiring 1) Reinstatement of Petitioner in the same or equivalent position, 2) damages of back pay computed at the rate of $28,000.00 per year from the time of discharge until reinstatement or rejection of an offer of equivalent employment, less payments received for unemployment compensation; 3) damages in the amount of $12,602.00, representing medical benefits lost; and 4) reasonable costs and attorneys fees. DONE AND RECOMMENDED this 14th day of January, 1993, in Tallahassee, Leon County, Florida. MARY CLARK 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 14th day of January, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-3920 The following constitute specific rulings on the findings of fact submitted by Petitioner: 1. Adopted in paragraph 1. 2.-3. Adopted in paragraphs 2, 3, and 4. 4. Rejected as irrelevant. 5.-6. Adopted in paragraph 6. 7. Adopted in paragraphs 2, 5, and 7. Rejected as contrary to the evidence. Petitioner asked why she was not told of the promotion opportunity. Adopted in paragraph 7. Adopted in paragraph 5. 11.-12. Adopted in paragraph 8. Rejected in part. The complaint in this case relates to wrongful termination, not failure to promote. Moreover, no competent evidence supports a finding that Petitioner would have applied for promotion or was denied promotion on account of her handicap. The other employee was promoted prior to Petitioner's return to work. Adopted in paragraph 9. Rejected as unsupported by the evidence. Basis for the computation is not apparent. Rejected as immaterial. Adopted in substance in paragraph 9, although the $200.00 expense incurred in 2/90 is rejected, as petitioner was still employed at that time. Rejected as unsupported by competent evidence. Rejected as unnecessary, although the recommendation for reinstatement is adopted. COPIES FURNISHED: James A. Kirkland Kirkland Management, Inc. 946 North Mills Avenue Orlando, Florida 32802 Percy Bell K. F. International Host, Inc. 1600 Lee Road Winter Park, Florida 32790 Raymond Rotella Kosto & Rotella, P.A. Post Ofice Box 113 Orlando, Florida 32802 Orlando Partners, Inc. d/b/a Quality Hotel Orlando Airport 3835 McCoy Road Orlando, Florida 32812-4199 Tobe Lev, Esquire Post Office Box 2231 Orlando, Florida 32802 Betsy Kushner, Claim Representative Cigna Property and Casualty Companies Post Office Box 30389 Tampa, Florida 33630-3389 Margaret Jones, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4113 Dana Baird, General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4113
Findings Of Fact The Petitioner is an Hispanic male who was employed as a sales host in the pastry department of the Respondent, Les Chefs de France, a restaurant located in the French Pavilion of Epcot Center at Walt Disney World. On August 12, 1983, the Petitioner and another employee of the Respondent, Mr. Kenneth Day, a non-Hispanic, were involved in a fight in Respondent's cooler, a refrigerated room located on the Respondent's premises. Ms. Brenda Kennedy was working in the Respondent's salad department at the time and she and another employee, Charles Hammel, were present in the cooler and witnessed the fight. Mr. Day had entered the cooler to pick up some supplies and was in the process of taking a tray out of a tram or rack when the Petitioner walked into the cooler and peremptorily told Day to get out of his way. When Day requested that the Petitioner wait until he was finished, the Petitioner shoved the tray back into the tram and pushed Day towards the back of the cooler. The Petitioner then began hitting Day with his fists. Francois Fourreau, the executive chef for the Respondent, heard a noise in the cooler at that point, looked through the window and saw Day holding the Petitioner and the Petitioner throwing punches at Day. Fourreau entered the cooler, separated the two men and directed them to leave the place of employment immediately. The Petitioner reported to the Walt Disney World infirmary and told the nurse to examine him, that he had been assaulted by another employee. A medical record prepared by that nurse indicated that the Petitioner suffered a laceration on his right hand and abrasions on his left arm. (Petitioner's composite exhibit 1 in evidence). Walt Disney World security was notified of the incident. Written statements regarding their versions of the incident were prepared by the Petitioner, Kenneth Day, Brenda Kennedy, and Francois Fourreau. Copies of them were provided to Bernie Juban, the Respondent's general manager. (See Respondent's exhibits 1 and 3 in evidence). On August 13, 1983, John Thall, who was the -assistant manager of food and beverages for the Respondent, met with Juban to discuss the incident. After reviewing the written statements, the two men decided that both Petitioner and Mr. Day should be terminated from employment in accordance with the established, consistent company policy which prohibited fighting on the job. The Petitioner was notified of this decision by a letter signed by Juban dated August 15, 1983. Day received a similar termination letter. The Petitioner acknowledges the existence of the company policy which provides that fighting may result in termination of all parties involved. This policy is contained in the employee policy handbook, which was in existence at the time of the incident and was given to all employees, including the Petitioner, at the time of their hire (Respondent's exhibit 2 in evidence). No employee who instigated or actively participated in an altercation during restaurant hours has been allowed to continue in the employ of the Respondent according to this policy which was shown to be consistently enforced. A previous incident had occurred between Mr. Fourreau and Eduardo Davilla, in which Davilla began punching Fourreau, his supervisor, in a disagreement over a work assignment. This altercation resulted in Davilla's termination, although Fourreau was not disciplined. Petitioner references this as an instance of Hispanics being discriminated against by the Respondent in favor of French Nationals employed by the Respondent. In that instance, however, Fourreau did not instigate nor actively participate in the altercation and thus the policy was not applicable to him. He simply put his arm in front of his face to protect himself. Mr. Thall had witnessed this incident, intervened in it, and stopped it by restraining Mr. Davilla from behind. This incident is further explained in Respondent's exhibit 5 in evidence. Prior to August 12, 1983, Mr. Day had threatened or in some other manner had an altercation with a supervisor, Christine Grassiot. Mr. Day was not disciplined by the Respondent for that incident. After the Respondent received the notice regarding the alleged discrimination in the instant case, Ms. Grassiot prepared a statement indicating that Mr. Day was only trying to irritate her at the time and that the episode was a totally personal matter between the two of them. The Respondent had no prior knowledge of this incident until the Petitioner alleged it in this cause as a basis for trying to show selective enforcement of the above policy. Prior to August 12, 1983, Day also reportedly had a disagreement of some sort with another employee of the Respondent, Kiki Babalagua, apparently involving him bumping into her with a "sheet pan" in the restaurant. Ms. Babalagua informed Brenda Kennedy of the incident and Day explained to Kennedy that he had accidentally bumped into her and apologized for it. In any event, this was not a fight or altercation as contemplated by the above-mentioned policy. Both Kennedy and Fourreau established that Ms. Babalagua was a difficult employee in terms of her personal relations with others and was "hard to get along with." She was later transferred to another location at her own request because she wanted to broaden her knowledge of the restaurant business and learn to work with pastries. Prior to August 12, 1983, Jean Luc Nichols, an employee of the Respondent working in a test kitchen at Disney Central Foods, was transferred by the Respondent at the personal request of a Walt Disney World manager, Mr. John Cardone, apparently to avoid a personality conflict. There is no evidence to show that Ms. Nichols was transferred because of a fight or other altercation. Finally, Petitioner acknowledges that the phrase "les imigres" translates in English as "the immigrants" and is not a standard cultural slur in the French language. Additionally, the testimony of Mr. Fourreau refuted Petitioner's allegation that this phrase had assumed a particular derogatory or discriminatory meaning among employees and staff at the restaurant.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the arguments of the parties, it is, therefore RECOMMENDED that the petition for relief filed by the Petitioner, Leonardo A. Zapata, be DISMISSED. DONE and ORDERED, this 25th day of July, 1986 in Tallahassee, Florida. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 1986. APPENDIX Petitioner's Proposed Findings of Fact Paragraph I : accepted, but not material to resolution of the material issues presented. : rejected as irrelevant. : rejected as contrary to the preponderant evidence. (d): rejected as irrelevant. : accepted, but irrelevant. : rejected as contrary to the preponderant evidence. (a): rejected as constituting argument and not supported by the evidence. (b): rejected as constituting argument and discussion of evidence and testimony. (a): rejected as immaterial.- (b): accepted but immaterial in the full context of the witness's testimony. (c): (same as (b). : rejected as not supported by record evidence. (a): accepted, but not supportive of Petitioner's position. : rejected as contrary to the greater weight of the evidence. : (same as (b)) (a): rejected as not supported by the greater weight of the evidence. : accepted, but irrelevant to resolution of the material issues presented. : accepted, but immaterial. (d): accepted, but immaterial. (e): accepted but not dispositive in itself. (f): rejected as to its purported import; merely argument. : rejected as not supported by preponderant testimony and evidence. : accepted, but immaterial to resolution of the issues at bar. : (same as (g) above.) Respondent's Proposed Findings of Fact Paragraph 1. - accepted - accepted - accepted - accepted - accepted - accepted - accepted - accepted - accepted - accepted Copies furnished: Leonardo A. Zapata Post Office Box 1934 Kissimmee, Florida 32742 Susan K. McKenna, Esquire Post Office Box 60 Orlando, Florida 32802 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303
The Issue The issue in this case is whether Respondent, Winn Dixie, discriminated against Petitioner, Simon Rowland, on the basis of his disability (cerebral palsy) in violation of the Florida Civil Rights Act.
Findings Of Fact Petitioner is an elderly man who has had cerebral palsy since birth. In August 2004, Petitioner went to work at the Dundee, Florida, Winn Dixie store as a courtesy clerk or bagger. His duties were to retrieve shopping carts from the parking lot, help customers, clean restrooms, and other general duties. He was not as fast a worker as others, but Winn Dixie accommodated him so that he could continue working. Petitioner claims that he was initially told he would work 20 to 25 hours per week. Winn Dixie asserts that he was given no indication of hours he might work. It is clear that Petitioner worked approximately ten hours per week during his employment. Lora Prine was the manager of the Dundee store, and Petitioner enjoyed working with Prine. Prine was later transferred to the Winter Haven store, and Petitioner asked to be transferred there, as well. There was no position open at first, but when a position became available, Prine contacted Petitioner to apply. When he was hired at the Winter Haven store, Petitioner was told that he would average between ten and 15 hours per week. While Petitioner was working at the Winter Haven store, Prine would make sure that his duties were consistent with his capabilities. She would make sure that Petitioner had assistance when lifting heavy objects, for example, when he was bagging groceries. Prine also allowed Petitioner to leave work early on many occasions due to illness and to miss work altogether at times, e.g., when he needed to visit his ailing brother in Gainesville. Petitioner freely admits that Prine and Winn Dixie accommodated him when he was working there. In November 2009, Petitioner was hospitalized for a week. The hospitalization involved an unnamed malady, but Petitioner was adamant that it did not involve a stroke. There is no evidence that Winn Dixie believes Petitioner suffered a stroke at that time. Upon release from the hospital, Petitioner was provided with portable oxygen. He said that the oxygen was supposed to be used while he was sleeping, but he used it a few times during the day right after he got out of the hospital. Prine learned from Petitioner's son that Petitioner was using oxygen. In mid-January 2010, Petitioner called Prine to see about coming back to work. Prine had just returned from medical leave and asked Petitioner to call her back in a few days. When Petitioner called back, he discussed his hospitalization and convalescence with Prine. He informed Prine of his need to utilize oxygen as a result of his illness. Prine suggested to Petitioner that maybe it was time for him to retire; Petitioner agreed with Prine that it was time. Prine annotated Petitioner's work file to indicate he was on retired status.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations denying Petitioner, Simon Rowland's, Petition for Relief in full. DONE AND ENTERED this 19th day of April, 2011, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 2011.
The Issue Whether the Respondent committed a discriminatory housing practice as set out in the Notice of Determination: Cause and Issuance of an Administrative Charge dated August 27, 1996, and, if so, the relief that would be appropriate.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Florida Commission on Human Relations is the state agency charged with investigating complaints of discriminatory housing practices and enforcing Florida's Fair Housing Act. Sections 760.30-.35, Florida Statutes. In 1981, the Florida Fair Housing Act was declared the substantial equivalent of the Federal Fair Housing Act, 42 U.S.C. Section 3601 et seq. Consequently, since 1981, the Commission has been charged with investigating fair housing complaints for both itself and the Department of Housing and Urban Development. Burgundy I is one of over 100 buildings comprising King's Point, a condominium complex located in Delray Beach, Florida. Burgundy I is a two-story building, with 24 condominium units on the first floor and 24 units on the second floor. The only access to the second-floor units is by stairs, and there are four stairways leading to the second floor, one on each end of the building and two spaced closer to the center of the building. The owner of a condominium unit in Burgundy I owns the space within the interior walls of the unit and an undivided interest in the common area associated with the building.1 All unit owners are members of the Burgundy I Condominium Association, a not-for-profit corporation governed by a Board of Directors ("Board") elected by the members. The affairs of Burgundy I are governed by the Burgundy I Declaration of Condominium and by the Articles of Incorporation and By-Laws of the Association. Burgundy I is also subject to Florida's Condominium Act, Chapter 718, Florida Statutes. Hyman and Ruth Tobin purchased a condominium unit in Burgundy I in 1981. Mr. and Mrs. Tobin live six months each year in their condominium unit and six months each year in their home in Marblehead, Massachusetts. They generally arrive in Florida in the first part of November and move back to Massachusetts in the first part of May. They have followed this pattern for the past ten years. Mr. and Mrs. Tobin own and reside in unit 419, on the second floor near the center of the Burgundy I building; the only access to their unit is by the stairs. In 1990 or 1991, Mr. Tobin was diagnosed with Parkinson's disease, which has become progressively worse since it was diagnosed. He also has an undiagnosed neuromuscular condition, and, in 1995, he suffered a small stroke. These conditions have resulted in Mr. Tobin's having extreme difficulty ambulating, even with the aid of a cane or a walker; this difficulty is obvious to the casual observer. Mr. Tobin's ability to ambulate is not expected to improve, and the parties have stipulated that Mr. Tobin is handicapped for purposes of Florida's Fair Housing Act. As a result of his handicap, it is very difficult for Mr. Tobin to go up and down the stairs, and he restricts his activities as a result. Although he is supposed to exercise in the swimming pool several times a week, he does not do so because of the difficulty he has negotiating the stairs. On several occasions, he has almost fallen on the stairs. In late 1994 or early 1995, Mrs. Tobin discussed with Jay Carron the feasibility of installing some type of device to assist Mr. Tobin in reaching the second floor of Burgundy I. Mr. Carron is certified by the state to install, maintain, and inspect elevators, and he owns Palm Beach Lifts, Inc., a state- registered elevator company that specializes in installing elevators and wheelchair lifts. Mr. Carron visited Burgundy I several times to evaluate the best means of providing Mr. Tobin access to the second floor of Burgundy I. The Tobins ruled out an elevator because it was too expensive. Mr. Carron investigated the feasibility of installing a chair lift on the stairs but, after taking measurements, decided that it would block egress and would not meet code requirements. He also considered the feasibility of installing a vertical wheelchair lift to the second floor of the building and determined that this alternative would meet Mr. Tobin's needs. He recommended either a hydraulic-drive or a screw-drive, free-standing lift. Mr. Carron has installed approximately 30 wheelchair lifts, and the units he recommended to the Tobins are commonly installed in shopping malls, nursing homes, office buildings, and condominiums, among other commercial and commercial/residential structures. Mr. Carron provided Mrs. Tobin with a copy of the industry standards for vertical wheelchair lifts and a copy of product information on the lift systems he recommended. He also provided her with a copy of his county occupational license, his state certificate of competency, his company's state registration, and his certificate of liability insurance. Both of the lifts Mr. Carron recommended accommodate a wheelchair and two people, although the hydraulic lift is the larger of the two units. A source of 110 to 220 volts of electricity is needed to operate the lift. Both of the lifts are free-standing and rest on a concrete slab that is six feet square. Mrs. Tobin and Mr. Carron discussed three potential locations for the lift: On the garden side of the building near the Tobins' unit; on the parking-lot side on a blank wall outside the bedroom of the unit directly underneath the Tobins' unit; and on the garden side, in the exact center of the building, where there would be convenient access to electricity. Mr. Carron also considered installing the lift so that it would open directly into the Tobins' unit. Regardless of which location is chosen, the lift will alter the common area of Burgundy I. If the lift were to open onto the walkway on the second floor, it would be necessary to cut through the railing to install a door leading from the lift to the walkway; if the lift were to open directly into the Tobins' unit, it would be necessary to cut through the wall of the unit. When he first spoke with Mrs. Tobin two years ago, Mr. Carron estimated that it would cost approximately $12,000 to install a wheelchair lift that would open onto the second-floor walkway. Shortly after she was given this estimate, Mrs. Tobin opened a bank account with her funds in the amount of $20,000 to pay for the installation of the lift and initial maintenance expenses.2 Mrs. Tobin later learned that it would cost approximately $3,000 more to install the lift to open directly into the Tobins' unit. The Tobins have not yet chosen a location for the lift. Mrs. Tobin believes that there will be opposition from many of the unit owners regardless of where the lift is located. In late 1994, Mrs. Tobin spoke informally to her second-floor neighbors about her intention to install a wheelchair lift; at about the same time, Mrs. Tobin told Harry Pulik, the president of the Association, about her proposal. Mr. Pulik's response to the proposal was very negative. Mrs. Tobin felt that he misunderstood what she wanted to do and asked that he call a meeting of the Association's Board of Directors so she could explain the proposal before the board. Mr. Pulik and other board members routinely put items on the agenda for a board meeting with nothing more than a verbal request from a unit owner.3 Notwithstanding this established practice, Mr. Pulik refused to call a board meeting to discuss Mrs. Tobin's request for a wheelchair lift. Sometime in late December 1994, Mr. Pulik attempted to contact the building inspector concerning whether a wheelchair lift could even be installed at Burgundy I; Mrs. Tobin was present when Mr. Pulik telephoned the inspector. He was on Christmas vacation, however, and was scheduled to return on January 3. Mrs. Tobin asked Mr. Pulik on January 4 if he had reached the building inspector. He told her he had not received a return call, and she never heard anything more from him on this matter. Meanwhile, Mrs. Tobin prepared a letter to her neighbors dated December 28, 1994, and hand-delivered it to the owners of Burgundy I condominium units who were in residence; she sent the letter by mail to those owners who were not in residence at the time. In the letter, Mrs. Tobin stated that "we" would like to install a hydraulic wheelchair lift for the use of the tenants of the building, that she and Mr. Tobin would pay for the installation of the lift, and that any neighbor wishing to use the lift could purchase a key for a one-time fee of $2,000 if paid before construction or $2,500 if paid after construction. Mrs. Tobin explained in the letter that the money raised from the key purchases would be used to help defray some of the costs of the lift and to fund on-going costs such as maintenance, utilities, repairs, and insurance. Mrs. Tobin did not send a copy of this letter to the board as a formal proposal, nor did she, at this time, formally advise the board that she wished to install a wheelchair lift. She knew, however, that the members of the board were aware of her plans because they were among the neighbors to whom she sent the December 28 letter. Mrs. Tobin followed up the December 28 letter in the latter part of January 1995 by taking a survey of her neighbors. The survey sheet listed the unit numbers and names of the owners of the Burgundy I condominium units. In the preface to the survey list, Mrs. Tobin wrote: "This is to inform you that we plan to install a wheelchair lift in the Burgundy I condominium, so that my husband and all upstairs participating neighbors can fully enjoy our premises."4 The survey sheet was divided into four columns, and Mrs. Tobin requested that each neighbor initial one column, specifying that "I do not object," "I will participate," or "I do object"; if anyone objected, Mrs. Tobin requested that they state the reason in the fourth column. According to the results of the survey, twenty-four owners did not object, nine second-floor owners stated that they wished to participate, five owners objected, and ten owners refused to sign, could not be reached, or were unsure. A short time after she gathered these responses, Mrs. Tobin had a meeting in her unit with the owners who had indicated that they wished to participate by purchasing a key to the lift. At this meeting, she discussed her proposal in detail. She did not, however, discuss the proposal in detail with any other neighbors. Because no action had been taken on her request for a meeting of the Association's Board of Directors, Mrs. Tobin filed the Housing Discrimination Complaint with the Commission on February 22, 1995.5 This complaint initiated the investigation that resulted in the discrimination charges. On March 3, 1995, a meeting was held with Ron Raible, a representative of Prime Management Group, the company that is under contract with the Association to provide management services to Burgundy I. The meeting was requested by Mrs. Tobin and attended by Mrs. Tobin and by Salvatore Amato, another resident of Burgundy I who has long been interested in installing some type elevator or lift to provide vertical accessibility to the second floor of Burgundy I. Mr. Carron also attended the meeting and gave Mr. Raible a copy of the materials he had earlier presented to Mrs. Tobin. Mr. Raible expressed his satisfaction that these documents were in order. Mr. Carron explained the lift and the process of installation to Mr. Raible. Additionally, Mr. Amato gave Mr. Raible a drawing he had done, which purported to show, to scale, the lift's dimensions in relation to the features of the condominium building at one of the locations under consideration. The drawing is not, however, to scale, and the open area in which the 6' x 6' concrete slab is shown is actually much smaller than it appears in the Amato drawing. Mr. Raible prepared a memorandum to Mr. Pulik dated March 10, 1995, in which he reported on the March 3 meeting. Mr. Raible stated that the issues were discussed in a "very amicable, cooperative, and positive mood"; that the plan was to install a lift not an elevator; that a bank account had been established in the amount of $20,000 to fund installation of the lift; that the results of a survey taken by Mrs. Tobin showed that thirty-two owners did not object to installation of the lift; and that Mr. Carron "was quite informed and apparently has done his homework with respect to the lift and how the county would view the installation along with the counties [sic] requirements." Mr. Raible also reported in this memorandum that the location of the lift was discussed, and Mr. Raible identified the location as between first-floor units 394 and 397.6 Mr. Raible also reported that he discussed financial responsibility for the lift with Mrs. Tobin and that he had made specific suggestions to her regarding access to the lift and responsibility for the costs associated with its operation, "pending conformation [sic] of attorneys from both sides." Finally, Mr. Raible advised Mr. Pulik that he should not act on the wheelchair lift proposal until a response to the discrimination complaint was received from the Commission; that he should not talk about the proposal with any unit owner or with any member of the board in open meeting; and that he should familiarize himself with the information provided by Mr. Carron concerning the lift unit itself. In Mrs. Tobin's view, she presented her formal proposal for the wheelchair lift to Mr. Raible, as an agent for the Association, at the March 3, 1995, meeting, and she had no reason to think that the proposal was not complete because Mr. Raible did not ask her for any additional information at or after the March 3 meeting. As of March 24, 1995, the board still had not met to discuss Mrs. Tobin's request to install a wheelchair lift. On that date, in a letter signed by Mrs. Tobin and seven other condominium owners, Mr. Pulik, in his capacity as president of the Burgundy I Condominium Association, was asked to call a meeting of the Board of Directors of Burgundy I, to be held within ten days of the request, for the purpose of discussing the necessity for installing a vertical wheelchair lift at Burgundy I. On April 2, 1995, a properly noticed board meeting was held by the condominium mailbox for the stated purpose of deciding whether to hire an attorney to advise the board with regard to the complaint filed with the Commission by Mrs. Tobin. The board decided at the meeting to hire the law firm of Sachs and Sax for this purpose. There was, however, no discussion by the board relating to the substance of the request that the Tobins be permitted to install a wheelchair lift. Nonetheless, a survey dated April 2, 1995, was taken of the Burgundy I unit owners, and a majority signed a statement attesting "that we are opposed to the installation of a lift/elevator including the maintenance, insurance expenses, and like expenses including any and all liabilities likely to be incurred." A notice dated April 25, 1995, was posted in which the Association's Board of Directors notified all Burgundy I unit owners of a special board meeting to be held May 18, 1995, to discuss the request for a wheelchair lift. The agenda included on the notice indicated that the purpose of the meeting was to discuss the "discrimination claim," and it was noted that "THE ATTORNEY WILL ATTEND THIS MEETING FOR THE PURPOSE OF DISCUSSION." A detailed "Proposed Agenda for Discussion" included a series of questions under the headings of "Feasibility of Installation of Lift at Burgundy I" and "Procedures for Approval of Lift Installation."7 Mr. and Mrs. Tobin did not attend the May 18 meeting. As they had done every year since 1981, the Tobins had returned to Massachusetts in early May. Because of Mr. Tobin's health, Mrs. Tobin could not leave her husband to travel to Florida for the board meeting. Although there was general discussion of the wheelchair lift at the May 18 board meeting, there was no discussion of the specific items included in the proposed agenda because much of the information could only have been provided by the Tobins. Consequently, no action on the request for installation of a wheelchair lift was taken by the board at the May 18 meeting because the board wanted more information regarding the Tobins' proposal. A board meeting was held March 4, 1997, a month before the final hearing in this case, and Mrs. Tobin and her daughter attended. At least one of the board members asked questions of Mrs. Tobin regarding her proposal, which she refused to answer. Pursuant to paragraphs 2.7 and 9 of the Burgundy I Declaration of Condominium, the owners of all of the units in Burgundy I are liable to pay assessments to cover the common expenses of the condominium and of the Association, and these common expenses include expenses for "insurance, maintenance, operation, repair and replacement of the common elements . . . and other common facilities of the Project." Pursuant to Section 7.5 of the Declaration of Condominium, as amended effective December 31, 1981, the entire membership must approve in writing any alteration to the common elements: Alteration and improvement. After the completion of the improvement included in the common elements contemplated by the Declaration, there shall be no alteration nor further improvement of common elements or acquisition of additional common elements without prior approval in writing by the record owners of all of the units; provided, however, that any alteration or improvement of the common elements or acquisition of additional common elements bearing the approval in writing of the record owners of not less than 50% of the common elements, and which does not interfere with the rights of any owners without their consent, may be accomplished, and the owners who do not approve are not relieved from the cost of the alteration, improvement or acquisition. Pursuant to paragraph 3.3 of the Association's By-laws, a special meeting of the membership of the Association may be called at the request of a majority of the Board of Directors or at the written request of a majority of the unit owners. SUMMARY OF THE EVIDENCE Mr. Tobin is disabled and the evidence presented by the Commission is sufficient to establish that some type of vertical accessibility device is necessary to allow him the full enjoyment of his condominium unit and the facilities at Burgundy I. The evidence presented by the Commission is also sufficient to establish that a wheelchair lift is a reasonable device for providing Mr. Tobin access to and from his second- floor unit. The evidence presented by the Commission is also sufficient to prove that the Association refused to permit the Tobins to install a wheelchair lift at Burgundy I. Installation of a wheelchair lift would necessarily alter a portion of the common elements. Consequently, depending on whether the proposal would potentially interfere with the rights and obligations of any of the unit owners without their consent, the proposal must be approved in writing either by all of the Burgundy I condominium unit owners or by fifty percent of the unit owners. Since the Association's Board of Directors has never formally presented the Tobins' request to the unit owners, the request has technically never been refused. Nonetheless, even if the board thought the Tobins' proposal to install a wheelchair lift was ill-advised or incomplete, the proposal should have been presented to the Association's membership for discussion and a vote at a special membership meeting called for that purpose. The Association's board has not, however, called such a meeting. Therefore, even though it cannot approve the Tobins' request to install a wheelchair lift, the board, acting on behalf of the Association, effectively refused to permit the modification by its inaction. The evidence presented by the Commission is not, however, sufficient to establish that the Tobins' proposal to install a wheelchair lift in the common elements of Burgundy I constitutes a reasonable modification to the premises. The Tobins have not chosen the site where they wish to install the lift. The lift's location is an important factor in determining whether the proposed modification to the condominium premises is reasonable. The installation of a wheelchair lift will affect the Burgundy I unit owners and, most especially, those persons who own units near the lift, and the impact on their rights to enjoy the premises should be considered. The evidence presented by the Commission is, likewise, not sufficient to establish that the modification proposed by the Tobins will be undertaken at their expense. All the unit owners of Burgundy I are responsible for paying their pro rata share of the expenses of maintaining the common elements of the condominium and of any other costs related to their ownership of an undivided interest in the common elements. As a result, for the modification to be at the Tobins' expense, their proposal must shield the unit owners from liability for any of the expenses relating to the installation and operation of the wheelchair lift. Mrs. Tobin testified at the final hearing that she intends to pay the entire cost of installing the lift and stated her willingness to pay for an annual service contract covering minor maintenance, for annual inspections, and for electricity. She also testified that she will purchase whatever insurance is necessary. She believes these costs will be minimal, although she does not know how much insurance will cost. She will not, however, commit to assuming sole responsibility for the expense of major maintenance on the lift because she believes that she cannot afford to pay these costs. Rather, it is, and has been, her plan to offer her neighbors the opportunity to purchase a key allowing access to the lift, with the proceeds from the sale of keys being set aside as a maintenance fund. There is, however, no evidence to establish, for example, that the Tobins will collect enough money from the sale of keys to the lift to create a viable maintenance fund; or that they have a contingency plan for providing for payment of maintenance expenses if the balance in the maintenance fund is insufficient to cover the expenses; or that they have made arrangements for purchasing the service contract and paying for inspections, electricity, and insurance if they cannot afford to pay these costs or if they no longer need the use of the lift.8 In addition, there is no evidence that the Tobins have made provision in their plan to install a wheelchair lift for shielding the Burgundy I unit owners from liability for costs and expenses arising out of the installation and use of the lift. The Commission has, therefore, not sustained its burden of proving that the Association has violated Florida's Fair Act Act.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Notice of Determination charging the Burgundy I Condominium Association with a violation of the Florida Fair Housing Act. DONE AND ENTERED this 12th day of November, 1997, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 12th day of November, 1997.
Findings Of Fact Petitioner was employed as a part-time store clerk from January 11, 1983 until January 14, 1986 at Respondent's 7-Eleven Store No. 1413-25564 located at 2990-16th Street, North, St. Petersburg, Florida. Respondent is an employer within the terms of the Human Rights Act of 1977, Chapter 760, Florida Statutes. Upon employment by Respondent, employees must sign an Awareness Form which provides, in pertinent part, that "consumption or possession of alcoholic beverages or illegal drugs while on company property (this includes the parking lot and rear of the store)" is grounds for dismissal. Petitioner signed this Awareness Form, and thereby acknowledged having been informed of Respondent's disciplinary policies set forth on said form. On December 25, 1985, at approximately 1:15 a.m. Petitioner and coworker Debbie Meany consumed one bottle of champagne in 7-Eleven Store 1413- 25564 after closing-up the store at 1:00 a.m. Meany had purchased the champagne during their shift on the evening of December 24, and then drank it with Petitioner "because it was Christmas Eve." Meany testified that she became drunk while she and Petitioner drank the bottle of champagne. Petitioner's testimony at hearing that the champagne he drank with Meany was nonalcoholic is specifically rejected based upon Meany's testimony, the fact that nonalcoholic champagne was not sold in this 7-Eleven store at the time, and the fact that he referred to the champagne as "booze" in a letter written to Fred Nichols, Respondent's personnel manager, on January 10, 1986. Meany was fired along with Petitioner for consumption of alcoholic beverages on the premises, and has no apparent motive to be untruthful in her contention that the champagne was alcoholic. Due to an audit of 7-Eleven Store 1413-25564 which revealed a merchandise shortage of approximately $1300, polygraphs were ordered for all store employees. Meany's polygraph was on January 6, 1986, and it was during her examination by Robert Rathbun that she admitted to consuming the bottle of champagne with Petitioner. She signed a statement, which she confirmed at hearing, indicating Petitioner opened the bottle, and they drank the champagne together. Petitioner was polygraphed on January 10, 1986, after executing a consent form, and during the course of his examination, he showed deception in his answers to questions about the use of alcohol on the job. When he was confronted with this indication of deception and with Meany's statement, he admitted to drinking champagne with Meany in 7-Eleven Store 1413- 25564 after they had closed at 1:00 a.m. on December 25, 1987. Thereafter, Petitioner met with Mike McKenzie, field manager, and Larry Good, district manager, on January 13, 1986 to discuss the results of the polygraph. McKenzie and Good also met with Meany. Petitioner was terminated on January 14, 1986 for consumption of an alcoholic beverage in the 7-Eleven store at which he worked. Petitioner did not disclose any handicap or physical condition which would prevent him from performing the job of store clerk on his initial application for employment, or on an application he completed and submitted to Respondent on May 27, 1986, subsequent to his termination. There is no evidence that Petitioner ever informed McKenzie or Good of his handicap. However, Petitioner's immediate supervisors Watley and Egge, store managers, did know of his handicap, and did not require him to "front shelves." This is a normal part of a store clerk's duties by which merchandise is brought forward to the front of a shelf to take the place of products that have been purchased. It has been established that Petitioner is physically handicapped due to the injury of both his knees while in the Army. He was discharged from the Army due to his disability. This handicap makes it very difficult for him to bend down, and therefore the accommodation which Watley and Egge provided was reasonable and appropriate under the circumstances. Respondent does hold Christmas parties at which alcoholic beverages are consumed in its district office. However, the district office is a separate office building and there is no 7-Eleven store located at said office. Since the district office is not a store licensed to sell alcoholic beverages, the consumption of alcohol at that location is not a violation of Respondent's policy about the consumption of alcohol set forth on the Awareness Form. A review of Petitioner's personnel file indicates prior warnings for writing bad checks, and making unacceptable advances on a female coworker.
Recommendation Based on the foregoing, it is recommended that a Final Order be issued by the Florida Commission on Human Relations dismissing Petitioner's charge of discrimination against Respondent. DONE and ENTERED this 10th day of March, 1988, in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of March, 1988. APPENDIX Rulings on Petitioner's Proposed Findings of Fact: Adopted in Finding of Fact 9. Rejected as not based on competent substantial evidence. Rejected as irrelevant, unnecessary and as simply a summation of testimony which is not persuasive. Rejected in Findings of Fact 4, 6, 7 and 12. Rejected in Finding of Fact 4. Rejected as irrelevant. Rejected in Finding of Fact 4. Rejected as not based on competent substantial evidence. Rejected in Findings of Fact 5 and 6. Rejected in Finding of Fact 6. Rejected in Finding of Fact 12. Rejected as not based on competent substantial evidence. Rulings on Respondent's Proposed Findings of Fact: Adopted in Findings of Fact 1 and 2. Adopted in Finding of Fact 1. 3-5. Adopted in Finding of Fact 3. 6-7. Adopted in Finding of Fact 4. 8-10. Adopted in Finding of Fact 5. 11-13. Adopted in Findings of Fact 4 and 6. 14-15. Adopted in Findings of Fact 4 and 7. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 4. 18-19. Rejected as unnecessary. Adopted in Finding of Fact 11. Adopted in Finding of Fact 12. 22-24. Adopted in Finding of Fact 8. 25. Adopted in Findings of Fact 7 and 8. COPIES FURNISHED: WINSTON S. MCCLINTOCK 475 - 41ST AVENUE, NORTH ST. PETERSBURG, FLORIDA 33703 E. JOHN DINKEL, ESQUIRE POST OFFICE BOX 1531 TAMPA, FLORIDA 33601 DONALD A. GRIFFIN EXECUTIVE DIRECTOR FLORIDA COMMISSION ON HUMAN RELATIONS 325 JOHN KNOX ROAD BLDG. F, SUITE 240 TALLAHASSEE, FLORIDA 32399-1925 SHERRY B. RICE, CLERK HUMAN RELATIONS COMMISSION 325 JOHN KNOX ROAD BLDG. F, SUITE 240 TALLAHASSEE, FLORIDA 32399-1925
