The Issue The issues in these two cases are whether Respondent violated provisions of chapter 475, Florida Statutes (2015),1/ regulating real estate sales brokers, as alleged in the Administrative Complaints, by (1) failing to return a rental deposit to a potential tenant; (2) serving as the qualifying broker for Friendly International Realty, Inc. (“Friendly”), but failing to actively supervise Friendly’s operations and/or sales associates; failing to preserve Friendly’s transaction records and escrow account documents; and (4) acting in a manner that constitutes culpable negligence or a breach of trust. If there was a violation, an additional issue would be what penalty is appropriate.
Findings Of Fact Parties The Department is the state agency that regulates the practice of real estate pursuant to section 20.165, and chapters 455 and 475, Florida Statutes. Ms. King is a licensed real estate broker registered with the Department (license numbers BK 3203595, 3261628, 3293588, 3306619, 3335771, 3354773, and 3363985). Ms. King is registered with the Department as the qualifying broker for 16 brokerages located throughout the state of Florida. At all times relevant to this case, Ms. King’s registered address with the Department was 4430 Park Boulevard North, Pinellas Park, Florida 33781. Friendly International Realty, LLC Friendly was a Florida licensed real estate corporation, holding license number CQ 1040825. Records reflect that James Berthelot was the registered agent for Friendly at the time of incorporation, June 2011. At all times relevant, Mr. Berthelot was a licensed Real Estate Sales Associate (license number SL 3226474) registered with Friendly. In May 2014, Respondent drafted and entered into a Limited Qualifying Broker Agreement (“Broker Agreement”) with Friendly and its owner, Ivania De La Rocha.2/ Friendly and Ms. King entered into the Broker Agreement, “in order to comply with the requirements of the Florida Department of [Business and] Professional Regulation.” Under the terms of the Broker Agreement, Respondent was not paid by Friendly per transaction. Rather, Respondent agreed to serve as the “Corporate Broker of Record” in exchange for a payment of $300 a month “as a flat fee for any and all real estate business conducted by [Friendly].” The Broker Agreement also provided for a “late fee” penalty if Friendly was delinquent in this monthly payment. Section 1.1 of the Broker Agreement outlined Respondent’s duties to Friendly, requiring her to: (1) keep her and Friendly’s licenses active and in good standing under Florida law; (2) keep her other business interests separate from those involving Friendly’s interests; and (3) provide Friendly notice of any governmental inquiry involving her serving as Friendly’s broker. There was no mention in the Broker Agreement of either Respondent’s or Friendly’s responsibilities regarding oversight of transactions, training for sales associates, or day-to-day operations. Regarding document retention, the Broker Agreement provided: Section 9.0 AUDIT & REVIEW RIGHT: Broker shall have the right to enter [Friendly’s] offices upon reasonable advance written notice to verify compliance with the real estate laws of the State of Florida. There was no evidence that Ms. King ever provided Friendly with the kind of notice described in section 9.0 of the Broker Agreement. Although the Broker Agreement did not prohibit Friendly from holding funds or assets on behalf of third parties, section 10.0 (Miscellaneous) explicitly prohibited Friendly from operating an escrow account. (g) Escrow and Ernest Money Accounts. [Friendly] shall not be permitted to hold any escrow account(s). On July 31, 2014, Ms. King was registered with the Florida Department of State, Division of Corporations, as “manager” of Friendly. Ms. King was the qualifying broker for Friendly (license number BK3303898) from August 6, 2014, through September 30, 2015, and November 4, 2015, through January 13, 2016.3/ During the time Ms. King served as the qualifying broker, Friendly operated from a number of addresses in Miami- Dade County, including 11900 Biscayne Boulevard, Suite 292, Miami, Florida 33181; and 2132 Northeast 123rd Street, Miami, Florida 33181. The office door of the Friendly office located on Northeast 123rd Street was painted in large letters, “FRIENDLY INTERNATIONAL REALTY” and “ALICIA KING” painted underneath. At the hearing, when asked about Friendly’s address, Ms. King could only confirm that when she became the broker the office was “on Biscayne.” The Biscayne Boulevard address is the one listed on the Broker Agreement. At the hearing, Ms. King was wrong about when the Friendly office had moved from the Biscayne Boulevard to the Northeast 123rd Street location, insisting it was over the Christmas holidays in 2015. Records establish Friendly moved from the Biscayne Boulevard location to the Northeast 123rd Street location sometime between April and July 2014. In January 2016, Ms. King believed the office was still on Biscayne Boulevard. In reality, it had been over a year since the office had relocated to that location. At the hearing, when asked by her own counsel how many transactions a month Friendly handled, Ms. King replied, “That’s hard to say. It was not many at all. Ten, maybe.” Respondent could not give the exact number of employees or sales associates affiliated with Friendly; when asked, she stated she could not remember the exact amount, but knew it was “very limited.” Respondent did not have any agreements or documentation related to how many sales associates were registered under her broker’s license. Respondent could not name any other sales associates affiliated with Friendly while she was the qualifying broker, except for Mr. Berthelot. While she was Friendly’s qualifying broker, Respondent did not perform any of the training for the sales associates at Friendly. Respondent did not have any face-to-face meetings with any Friendly sales associates, except for Mr. Berthelot. Respondent did not have phone or e-mail contact with any of the Friendly sales associates, except for Mr. Berthelot. Respondent did not have copies of any forms, handbooks, reports or files related to Friendly. All of these documents were in paper form and kept in the Friendly office. Respondent had no access or signatory authority for any of Friendly’s bank accounts. Natalie James was a registered real estate sales associate affiliated with Friendly for approximately five months, from November 2015 through March 2016. Ms. James worked out of the Friendly office and was physically present at the office at least three or four times a week. Ms. James was involved in several rentals and one sales transaction while at Friendly. For each transaction she assembled a file, which was kept in the Friendly office. For rental transactions, Ms. James would negotiate and facilitate lease agreements. When she represented potential tenants, she received deposit funds that she deposited with Friendly. Ms. James attended meetings at Friendly; Ms. King was not present at any of them. Ms. James never had any telephonic, electronic, personal, or other contact with Respondent. While at Friendly, neither Mr. Berthelot nor any of Ms. James’ co-workers mentioned Ms. King to Ms. James. Although Ms. King’s name was on the door of Friendly’s office, Ms. James was unaware Ms. King was Friendly’s broker. There was conflicting testimony as to how often Respondent visited the Friendly office. Ms. King’s testimony at the hearing was at odds with the Department’s evidence and testimony regarding this issue. Ms. King insisted that while she was Friendly’s broker, she would travel from Pinellas Park to the Friendly office once or twice a week. This was not believable for a number of reasons. First, had Ms. King visited Friendly’s office as often as she stated, she would have known about the change in location; she did not. Second, Ms. King could not give one concrete date or detail about her travels to the Friendly office. Third, and most compelling, was the testimony of Ms. James (who worked at Friendly for at least two months while Ms. King was its broker) that she had never seen, communicated with, or heard mention of Ms. King while at Friendly. Ms. James’ unbiased and compelling testimony alone supports a finding that Ms. King did not visit the Friendly office as frequently as she indicated. Ms. King was aware that Friendly and Mr. Berthelot provided rental or “tenant placement” services.4/ Friendly collected security deposits and other move-in funds from potential renters and held them in an escrow account. Ms. King was not aware Friendly had an escrow account until January 2016 when she was contacted by the Department in an unrelated case. On January 13, 2016, Respondent resigned with the Department as the qualifying broker for Friendly effective that same day. On January 14, 2016, Respondent filed a complaint with the Department against Mr. Berthelot for operating an escrow account and collecting deposit funds without her knowledge. Facts Related to the Viton Case In November 2015, during the time Ms. King was Friendly’s qualifying broker, Christian Viton signed a lease agreement to rent an apartment located in Miami at 460 Northeast 82nd Terrace, Unit 8 (“Viton transaction”). The Viton lease agreement listed Friendly as the holder of the deposit monies and required Friendly to transfer the deposit and move-in funds to the owner of the property. Pursuant to the terms of the Viton lease agreement, Mr. Viton remitted an initial deposit of $500, and received a written receipt from Friendly dated November 2, 2015. Mr. Viton gave Friendly a second deposit of $380, and received a written receipt dated November 4, 2015. Mr. Viton never moved into the apartment and demanded a refund of his deposit from Friendly. On December 8, 2015, Friendly issued a check to Mr. Viton in the amount of $530. Three days later, Friendly issued a stop-payment order on the $530 check to Mr. Viton. On February 29, 2016, Mr. Viton filed a complaint with the Department seeking a return of the $880 he had given to Friendly. As a result, the Department initiated an investigation into Mr. Viton’s complaint and contacted Respondent. Upon learning about the Viton complaint, Ms. King contacted Mr. Berthelot who admitted Friendly had stopped payment on the $530 refund check, but had reissued the full amount of the deposit to a third-party not named on the lease. There is no evidence Mr. Viton ever received a refund of his $880 deposit. Facts Related to Dorestant Case In June 2015, during the time Ms. King served as Friendly’s qualifying broker, Cindy Dorestant entered into a lease agreement to rent a condominium located at 1540 West 191 Street, Unit 110 (“Dorestant transaction”). In the lease, Friendly was listed as the “broker” and holder of the deposit; TIR Prime Properties (“TIR”) was listed as the owner’s agent. The Dorestant lease agreement required Friendly to transfer the deposit and move-in funds collected from Ms. Dorestant to TIR. Pursuant to the terms of the Dorestant lease agreement, Ms. Dorestant gave Friendly $1,050 as an initial deposit, and received a written receipt dated June 24, 2015. In late July 2015, Ms. Dorestant contacted TIR’s property manager and sales agent to ask for information about the status of her move into the condominium. TIR explained to Ms. Dorestant that Friendly had not conveyed any of monies collected from Ms. Dorestant to TIR. Both Ms. Dorestant and TIR attempted to contact Friendly, but Friendly was non-responsive. The TIR sales associate relayed this information to TIR’s broker, Mariano Saal, who in turn tried to reach Friendly to resolve the issue. Eventually, TIR was told by Mr. Berthelot that Friendly would release the move-in funds to TIR and that Mr. Berthelot would schedule the move-in. TIR did not receive any funds from Friendly, nor did Mr. Berthelot facilitate Ms. Dorestant’s move into the condominium. On August 31, 2015, Mr. Saal contacted Mr. Berthelot and informed him that if TIR did not receive the move-in funds for the Dorestant transaction by 5:00 p.m. that day, it would be required to find another tenant. Ms. Dorestant did not move into the condominium and demanded a refund from Friendly and TIR. On September 14, 2015, Mr. Saal sent an e-mail to what he believed was Respondent’s address, demanding the $1,050 from Friendly because it considered Ms. Dorestant’s failure to move into the property a default of the lease agreement. Respondent, however, did not have access to Friendly’s e-mails. The e-mail was also sent to Mr. Berthelot, and Ms. De La Rocha. TIR did not receive any funds from Friendly for the Dorestant transaction. After discovering she could not move into the condominium because Friendly had not transferred the deposit to TIR, Ms. Dorestant demanded a refund of her deposit monies from Friendly. She did not receive it. On February 10, 2016, Mariano Saal, TIR’s qualifying broker, filed a complaint against Mr. Berthelot and Friendly with the Department regarding the Dorestant transaction. Ms. Dorestant initially did not receive a refund from Friendly and, therefore, filed a police report against Mr. Berthelot and sued him in small claims court. Eventually, Mr. Berthelot refunded Ms. Dorestant her deposit monies. Department Investigations of Friendly Upon receiving the Viton complaint, the Department assigned the case (DPBR Case No. 2016018731) to Erik Lluy, an Investigator Specialist II in the Miami field office. Similarly, on or around the same time the Department received the Dorestant complaint; it was also assigned to Mr. Lluy (DPBR Case No. 2016018069). On April 25, 2016, Mr. Lluy officially notified Ms. King of each of the complaints. On May 25, 2016, the Department transferred both the Viton and Dorestant complaints from Mr. Lluy to Percylla Kennedy. Ms. King provided a written response to both complaints via e-mail to Mr. Lluy on May 26, 2016. At that time, Mr. Lluy indicated the case had been transferred to Ms. Kennedy and copied Ms. Kennedy on the response. Ms. Kennedy was familiar with Friendly, Mr. Berthelot and Ms. King. In January 5, 2016, she had conducted an investigation of Friendly in an unrelated complaint filed against Friendly by Borys Bilan (“Bilan complaint”). As part of the investigation into the Bilan complaint, Ms. Kennedy arrived at the Friendly office address registered with the Department on Biscayne Boulevard to conduct an official office inspection. When she arrived, however, she found the office vacant. As a result, that same day Ms. Kennedy contacted the registered qualifying broker for Friendly–-Ms. King-–by phone. During that call, Ms. Kennedy asked Ms. King where Friendly’s office was located, but Ms. King did not know. Eventually, Ms. Kennedy determined the Friendly office had relocated to the Northeast 123rd Street location. Ms. Kennedy testified that during this call, Ms. King admitted to her that she had not been to the Northeast 123rd Street location. Respondent testified she did not tell Ms. Kennedy this and as proof insisted that the January call was inconsequential and “a very short call.” The undersigned rejects Respondent’s version of events and finds Ms. Kennedy’s testimony and report regarding the January 2016 interview more reliable. First, although Ms. King describes the conversation as occurring on January 7, 2016, both Ms. Kennedy’s testimony and the Inspection Report establish the conversation occurred on January 5, 2016. Second, Respondent’s characterization of the call as inconsequential contradicts her own May 26, 2016, written response to the Department in which Ms. King outlines a number of substantive issues discussed during this phone conversation, including: the nature of Friendly’s practice, whether Friendly had an escrow account, the type of payment accepted by Friendly, and the address of Friendly’s office. After speaking with Ms. King about the Bilan complaint, Ms. Kennedy conducted the inspection at Friendly’s Northeast 123rd Street location. Respondent was not present when Investigator Kennedy conducted the office inspection. Ms. Kennedy then e-mailed the Office Inspection form to Respondent. As a result of the January 5, 2016, phone conversation with Ms. Kennedy, Ms. King contacted Mr. Berthelot about the Bilan complaint. On January 13, 2016, Mr. Berthelot provided Ms. King with the transaction file related to the Bilan complaint. When Ms. King reviewed the lease agreement, she realized that Friendly was holding deposit funds in escrow. As a result, on December 13, 2016, Ms. King filed a resignation letter with the Department explaining she was no longer the qualifying broker for Friendly. Ms. King did not ask Mr. Berthelot or anyone else at Friendly for any other transaction records at this time, nor did she make any effort to review any of Friendly’s transaction files to determine whether Friendly had obtained other deposit funds or conducted other transactions similar to the one that was the subject of the Bilan complaint. After having knowledge of the Bilan complaint and transaction, and suspecting Friendly had been operating an escrow account, Ms. King made no immediate effort to access the operating or escrow bank accounts or reconcile the escrow account. After resigning as Friendly’s qualifying broker with the Department, Ms. King filed a complaint with the Department against Mr. Berthelot for unlicensed activity involving an escrow deposit.5/ Despite no longer being Friendly’s qualifying broker, on January 21, 2016, Ms. King executed and sent back to Ms. Kennedy the Inspection Report related to the Bilan complaint. Five months later, on or around May 25, 2016, Ms. Kennedy notified Ms. King she was taking over the investigation into the Viton and Dorestant cases. Ms. Kennedy testified that as part of her investigation into the Viton and Dorestant complaints, she interviewed Respondent again. Respondent denies she was interviewed by Ms. Kennedy regarding the Viton and Dorestant complaints, and instead insists she was only interviewed in January 2016 in connection with the Bilan complaint. Ms. King testified she believed Ms. Kennedy lied about interviewing her more than once because Ms. Kennedy was “lazy.” The undersigned rejects this assertion. Ms. Kennedy’s testimony was specific, knowledgeable, and credible, unlike Ms. King’s testimony, which was intentionally vague. Moreover, Ms. Kennedy specifically attributes her findings to specific sources such as Ms. King’s written response, her interview with Ms. King relating to the Viton and Dorestant transactions, and to her previous conversation with Ms. King during the Bilan investigation. The citations to information gleaned from the January 5, 2016, call were marked by the following sub-note. SUBJECT was previously interviewed by this Investigator in January 2016 for the unrelated complaint and was unaware that FRIENDLY INTERNATIONAL REALTY LLC had moved from license location 11900 Biscayne Blvd.[,] Suite 292 Miami, FL 33181 to 2132 NE 123ST[,] Miami, FL 33181 (See Ex. 9). At that time, SUBJECT was unable to provide the transaction file. Ms. Kennedy would have no reason to fabricate the source of the conclusions she reached in her report or the number of times she contacted Ms. King. Ms. Kennedy submitted her original investigative report to the Department for the Viton complaint on October 31, 2016. Per the Department’s request, Ms. Kennedy interviewed Mr. Viton and submitted a supplemental report on December 13, 2016. In this report, Ms. Kennedy determined that on February 25, 2016, Friendly issued a check in the amount of $875 to a person who was not listed on either the lease agreement, the receipts Friendly issued to Mr. Viton, or any other paperwork. Similarly, Ms. Kennedy submitted her original investigative report to the Department for the Dorestant complaint on October 31, 2016. Per the Department’s request, Ms. Kennedy interviewed Ms. Dorestant and submitted a supplemental report on December 13, 2016, indicating Ms. Dorestant did eventually receive a refund. During the course of the Viton investigation, Mr. Lluy and Ms. Kennedy requested that Respondent provide the Department with the file related to the Viton transaction, and documentation for Friendly’s escrow account. Although Respondent provided the Department a response (consisting of a written explanation with a copy of the Bilan file and some communications between Mr. Berthelot and herself from May 2016), she did not provide the Department with the transaction file related to the Viton transaction or Friendly’s escrow account documentation. During the course of the Dorestant investigation Mr. Lluy and Ms. Kennedy requested that Respondent provide the Department with the file related to the Viton transaction, and documentation for Friendly’s escrow account. Although Respondent provided the Department a response (consisting of a written explanation with a copy of the Bilan file and some communications between Mr. Berthelot and herself from May 2016), she did not provide the Department with the transaction file related to the Dorestant transaction or Friendly’s escrow account documentation. Professional Standards Mr. Saal, TIR’s qualifying broker, testified he had served as a broker for approximately ten years. As TIR’s qualifying broker, he kept the documentation related to the transactions handled by TIR’s six sales associates. The testimony of the TIR sales associate and property manager established that they relied on Mr. Saal for advice and to resolve issues. For example, when Ms. Dorestant began contacting TIR’s sales associate and property manager regarding the move-in and then for a refund of her deposit, the sales associate went to Mr. Saal to discuss the situation. Mr. Saal then attempted to resolve the issue by attempting to communicate with Friendly, Mr. Berthelot and Ms. King. Mr. Trafton, an experienced real estate broker and expert in brokerages, reviewed the Department’s investigative files and reports relating to the Viton and Dorestant complaints, as well as applicable Florida Statutes and rules. Mr. Trafton’s testimony and report established that in Florida the usual and customary standard applicable to brokers is that they must promptly deliver funds in possession of the brokerage that belong to others. Petitioner showed that Mr. Viton was entitled to a refund of his deposit from Friendly and that Respondent erred in not ensuring he received this refund. Mr. Trafton also testified that the standard of care applicable to a broker in supervising sales associates requires active supervision. “Active supervision” is not defined by statute or rule, but by usual and customary practices exercised statewide. “Active supervision” requires a broker to: have regular communications with all sales associates, not just communicating when there is a complaint; be aware of problems, issues and procedures in the office and among sales associates; have access to and signatory power on all operating and escrow accounts; hold regular scheduled office/sales meetings; conduct in–person training meetings; provide guidance and advice for sales associates; be intimately involved in how transaction forms and other documents are stored and retrieved; and be available to provide advice and direction on short notice. In other words, a broker should set the tone at the brokerage by overseeing her sales associates’ conduct of transactions. Ms. King failed to manage, direct, and control her real estate sales associate, Mr. Berthelot, to the standard expected of a qualifying broker in both the Viton and Dorestant transactions, if not all of Friendly’s transactions. She did not actively supervise Mr. Berthelot as a sales associate. Mr. Trafton also testified that a broker, not the brokerage, is ultimately responsible for preserving transaction files, forms related to transactions, and other related documents. Although less certain than Mr. Trafton about whether a broker or the brokerage firm is responsible for preservation of transaction files, Mr. Saal testified “the broker is responsible for the . . . transactions. It’s [the broker’s] client at the end of the day.” Ms. King failed to preserve accounts and records relating to Friendly’s accounts, the files related to the Viton and Dorestant rental transactions, or any other documents related to Friendly. Petitioner also clearly established that Respondent was guilty of either “culpable negligence” or “breach of trust” in the Viton or Dorestant transaction. As Investigator Kennedy testified, and as corroborated by cost summary reports maintained by the Department, from the start of the investigation of the Viton complaint through September 14, 2017, the Department incurred $1,625.25 in costs, not including costs associated with an attorney’s time. As Investigator Kennedy testified, and as corroborated by cost summary reports maintained by the Department, from the start of the investigation of the Dorestant complaint through September 14, 2017, the Department incurred $1,608.25 in costs, not including costs associated with an attorney’s time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Real Estate Commission: Case No. 17-3989 Finding Respondent Alicia Faith King in violation of sections 475.25(1)(d)1., 475.25(1)(u), 475.25(1)(e), and 475.25(1)(b), as charged in Counts I through IV of the Administrative Complaint in the Viton case. Imposing an administrative fine totaling $2,500 ($500 fine per count for Counts I, II and III; and $1,000 fine for Count IV). Imposing license suspension for a total period of nine months (one-month suspensions each for Counts I, II, and III; and a six-month suspension for Count IV). Imposing costs related to the investigation and prosecution of the case in the amount of $1,625.25. Case No. 17-3961 Finding Respondent Alicia Faith King in violation of sections 475.25(1)(u), 475.25(1)(e), and 475.25(1)(b), as charged in Counts I through III of the Administrative Complaint in the Dorestant case. Imposing an administrative fine totaling of $2,000 ($500 fine per count for Counts I and II; and $1,000 fine for Count III). Imposing license suspension for a total period of eight months to be imposed consecutive to the suspension in Case No. 17-3989 (one-month suspensions each for Counts I and II; and a six-month suspension for Count III). Imposing costs related to the investigation and prosecution of the case in the amount of $1,608.75. DONE AND ENTERED this 25th day of January, 2018, in Tallahassee, Leon County, Florida. S HETAL DESAI 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 25th day of January, 2018.
The Issue The issue in this case is whether Respondent violated section 760.08, Florida Statutes, of the Florida Civil Rights Act of 1992 (“FCRA”), by denying Petitioner the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation on the basis of Petitioner’s handicap.
Findings Of Fact The Parties Petitioner Smith is an adult male who resides in Sunrise, Florida. Respondent 7-Eleven is a Texas corporation, with its headquarters located at 3200 Hackberry Road, Irving, Texas. Respondent owns, operates, and franchises convenience stores in Florida under the trademarked name “7-Eleven.” Procedural Background On or about March 28, 2018, Smith filed a Public Accommodation Complaint of Discrimination with FCHR, alleging that 7-Eleven, Inc., through its agent, violated section 760.80 by denying him full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation on the basis of handicap. After conducting an investigation, FCHR issued a Determination: Reasonable Cause on or about September 19, 2018, finding reasonable cause to believe that an unlawful practice occurred. Smith timely filed a Petition for Relief on October 16, 2018, asserting that 7-Eleven had discriminated against him in a place of public accommodation on the basis of handicap. This charge, as set forth in the Petition for Relief, is the subject of this de novo proceeding. Events Giving Rise to this Proceeding On September 16, 2017, Smith arrived at the Store to purchase gasoline. He was accompanied by Mrs. Smith and his daughter, Rochelle Smith. At that time, the Store was a franchised 7-Eleven convenience store and gas station. HA&A Enterprises, Inc. (“HA&A”), owned by Sumera Shahzadi (“Shahzadi”), was the franchisee. Immediately upon arriving at the Store, Smith went inside to use the restroom, while Mrs. Smith remained outside to pump gas. Smith testified, credibly, that he had a stroke and, as a result, walks slowly with a visible limp. He testified that he sometimes, but not always, uses a cane to assist him in walking. He was not using a cane when he entered the Store on September 16, 2017. Upon entering the Store, Smith discovered that the restroom was locked. Smith asked Shahzada Hussain (“Hussain”), who was working behind the counter, for the restroom key so that he could use the restroom. Hussain told him that the restroom was out of order and did not give him the key. The evidence does not establish that Hussain was aware of any disability or handicap that Smith may have.4/ Because Smith was unable to use the restroom, he was forced to urinate outside, in the front of the Store. Smith had difficulty pulling down his pants, and he urinated on himself. He testified, credibly, that other persons were present at the Store and saw him urinate on himself. Mrs. Smith assisted Smith in pulling up his pants, then went inside the Store and asked Hussain for the key to the restroom. Hussain gave her the key. She went into the restroom and found it to be in working order. She also noticed that no “out of order” sign was posted on the restroom door. Mrs. Smith then took numerous photographs of various documents on the wall of the Store. These documents included: a Broward County Local Business Tax Receipt for the period of October 1, 2016, to September 30, 2017, showing the business name as “7-Eleven #35031” and the business owner as “7-Eleven Inc. & HA&A Enterprises, Inc.”; the 2016 Florida Annual Resale Certificate for Sales Tax issued to 7-Eleven Store #35031, HA&A Enterprises, Inc.; a Florida Department of Environmental Protection Storage Tank Registration Placard, 2015-2016, issued to 7-Eleven, Inc., Store #35031; a National Registry of Food Safety Professionalism certificate issued to Shahzada Hussain; a Florida Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, Temporary License/Permit; a document titled “Notice,” with the name “7-Eleven” handwritten as the business authorized to engage in the money transmission business; a Department of Agriculture and Consumer Services Liquefied Petroleum Gas License issued to 7-Eleven Store #35031; and a ServSafe Certification issued to Sumera Shahzadi. The photographs, along with a written description of each document depicted in the photographs, were admitted into evidence at the final hearing. At that time, Mrs. Smith also photographed the Store’s restroom door, on which signs reading “MEN” and “WOMEN” were hung. Each of these signs depicted a wheelchair symbol, presumably indicating that the restroom was handicapped- accessible. The restroom door did not have a sign posted indicating that it was out of order. Mrs. Smith also photographed Shazhadi and Hussain as they were working behind the counter of the Store. Mrs. Smith referred to Shazhadi and Hussain as “the owners” of the Store in her testimony at the final hearing regarding the September 16, 2017, incident.5/ Shortly after the incident, the police arrived at the Store on an unrelated matter. At the direction of the police officer investigating the unrelated matter, the Smiths did not purchase gasoline at the Store that day, and went to another store to purchase gas. Mrs. Smith testified that she frequently patronized the Store, both before and after the September 16, 2017, incident. As noted above, Smith credibly testified that other persons present at the Store saw him urinate on himself. Smith is a member of the clergy of a local church and, thus, is a well-known person in his neighborhood, where the Store is located. The credible evidence establishes that Smith was extremely embarrassed and humiliated, and experienced emotional distress as a result of having urinated on himself in public view. He testified that this incident so embarrassed him that he may move from the community or from the state. No evidence regarding any quantified or quantifiable injury or damages that Smith may have incurred as a result of the incident was presented. On or about November 14, 2017, the Smiths filed a complaint regarding their September 16, 2017, experience at the Store through 7-Eleven’s complaint hotline. Mrs. Smith testified that in one of the telephone conversations with the 7-Eleven corporate office, they were given an incident claim number. On or about November 19, 2017, Mavis Steffan, the 7-Eleven corporate field consultant for the subgroup of 7-Eleven stores that includes the Store, contacted the Smiths and spoke to them regarding the September 16, 2017, incident at the Store. Mrs. Smith testified that when the Smiths spoke with Steffan on November 19, 2017, she (Steffan) told them that on the date of the incident, the Store was a private franchise, and that on October 23, 2017, the Store “became corporate”——meaning that 7- Eleven, Inc., began operating the Store. Steffan apologized for the incident, invited the Smiths to patronize the Store again, and told them that Smith was free to use the restroom at the Store. Relationship between the Store and 7-Eleven Steffan testified at the final hearing regarding the relationship between the Store and 7-Eleven, as it existed on September 19, 2017. 7-Eleven and HA&A entered into a 7-Eleven, Inc. Florida Individual Store Franchise Agreement (hereafter, “Franchise Agreement” or “Agreement”), effective March 23, 2016, regarding the Store. The Franchise Agreement terminated on October 23, 2017, and, as of that date, 7-Eleven, Inc., began operating the Store.6/ Therefore, the Store was a franchised store on September 19, 2017, the date of the incident. As discussed above, HA&A was the franchisee. Pursuant to the Franchise Agreement, HA&A was an independent contractor. The Agreement provided that the franchisee——here, HA&A——controlled the manner and means of the operation of the franchised store, and exercised complete control over and responsibility for the conduct of its agents and employees, including the day-to-day operations of the franchised store. The Agreement expressly provided that the franchisee’s agents and employees could not be considered or held out to be agents or employees of 7-Eleven, and could not incur any liability in the name of, or on behalf of, 7-Eleven. The Agreement further provided that all employees of the franchised store were solely those of the franchisee, and that no actions taken by the franchisee, its agents, or its employees would be attributable to 7-Eleven. As part of the Franchise Agreement, HA&A also agreed to comply with 7-Eleven’s Operations Manual (“Manual”). Provisions in the Manual stated that the franchisee was solely responsible for setting the policies and procedures to operate his or her store in accordance with the laws of the legal jurisdiction in which the store was located, and that the franchisee was solely responsible for the actions of its employees while on the job. Additionally, training materials provided by 7-Eleven to franchisees for use in training franchisee employees expressly informed those employees that they were not “in any way considered to be an employee, agent[,] or independent contractor of 7-Eleven, Inc.,” and that 7-Eleven did not “assume any liability for providing you these training materials.” Consistent with these provisions, Steffan testified that the franchisee——here, HA&A——was solely responsible for the overall operations of the Store, including supervising, hiring, firing, promoting, and disciplining Store employees. HA&A also was solely responsible for enforcing workplace rules, policies, and procedures for the Store. Based on this evidence, it is determined that HA&A was solely responsible for the actions of its employees and agents, including Hussain’s actions on September 16, 2017, toward Smith. Stated another way, the evidence establishes that 7-Eleven was not responsible for Hussain’s actions in the Store, including his actions on September 16, 2017, toward Smith while he (Smith) was in the Store.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief. DONE AND ENTERED this 12th day of March, 2019, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 2019.
The Issue The issue is whether Petitioner is entitled to seek relief pursuant to the Florida Civil Rights Act of 1992 under the jurisdiction of the Florida Commission on Human Rights.
Findings Of Fact Mr. DeLeo is a former Miami homicide detective, who received a disability retirement. He has held a real estate salesman license and real estate broker's license since about 1986. Both licenses were issued by the State of Florida. Official recognition was taken that he is over 40 years of age. POV is the sales arm of a venture known as The Villages of Lake Sumter (The Villages). The Villages is a large community located south of Ocala, Florida. It is a development that caters to persons 55 years of age and older and provides recreational opportunities, including golf. Sales of new homes in The Villages are handled exclusively by POV. The typical real estate broker-salesperson relationship is clearly one of principal and independent contractor, and cases in Florida and elsewhere describe it thus. However, The Villages mass markets its concept and its properties, nationally, and as a result, POV's relationship with its salespersons is not typical. In the course of marketing its real estate, The Villages advertises nationally. This marketing effort attracts large numbers of potential buyers to visit. A guest coordinator, who is an employee of The Villages, books visits for potential buyers. When guests arrive they are greeted by the guest coordinator who connects them with a sales representative, like Mr. DeLeo. Mr. DeLeo worked in the real estate business for about 21 years prior to becoming involved with POV. He entered into a contract with POV on September 30, 2004. The contract is entitled, "Independent Contractor Agreement" (Agreement). The Agreement was drafted by POV, and Mr. DeLeo had no opportunity to negotiate its terms. As will be discussed below, it is the actual relationship between the parties that controls the outcome of this case, not the title of the Agreement. The Agreement provided that either party could terminate the contract at will. Mr. DeLeo learned that he had been terminated on April 7, 2008. Mr. DeLeo attended an extensive training program provided by POV. He completed the training in February 2001 and thereafter began selling property pursuant to the Agreement. According to the Agreement, Mr. DeLeo could only sell houses marketed in The Villages. He was specifically prohibited from selling property not located in The Villages. He sold new properties owned by The Villages and property marketed by individuals in The Villages, in accordance with the Agreement. In a typical broker and salesperson relationship, the salesperson is not limited to selling in a geographically defined area. The Agreement had an attachment to it that was entitled Commission Structure. This set forth the details of how Mr. DeLeo was to receive compensation. Mr. DeLeo was satisfied with the commission arrangement. He received no salary. If a dispute arose over splitting a commission, the dispute was resolved by POV. Typically, disputes between real estate sales persons are resolved by committees of realtors acting under the auspices of a multiple listing service. POV provided Mr. DeLeo, as well as all salespersons, with an office, telephones, computer support, and all other items needed to complete a real estate sale except for an automobile which Mr. DeLeo provided. The computer provided a shared database which maintained information about potential buyers, and the information in the database was reviewed by management. Mr. DeLeo was required to provide liability insurance, business cards, certain signs, lock boxes, and on occasion, to pay the salaries of personal assistants, who are provided by POV. Paragraph 4 of the Agreement recites that "The parties agree that the Sales Representative is an independent contractor and not an agent, joint venturer, or employee of POV or The Villages, and nothing in this Agreement shall be construed to be inconsistent with this relationship or status. Hours devoted by the Sales Representative is [sic] entirely within the Sales Representative's control, and POV will rely upon the Sales Representative to work those hours that the Sales Representative deems necessary to perform the job in a competent and professional manner." Mr. DeLeo testified that he was required to work a set schedule and that he was required to obtain permission from a "team leader" prior to taking vacation time. Vacation time was limited. The team leader evaluated the performance of salespersons and provided feedback on ways to improve performance. The team leader was a salaried employee of POV. This sort of supervision is not typical in the real estate business. POV asserted that they did not exercise control over their salespersons with regard to working hours. However, it is unlikely that The Villages would import a large group of potential buyers and merely hope that sufficient staff would be available to make sales. Clearly, POV required salespersons to be available when needed by POV. Accordingly, the weight of the evidence proves that Mr. DeLeo's work schedule was controlled by POV. Therefore, the testimony of Mr. DeLeo is deemed accurate. Supervision of the team leader included accompanying the salespersons to meetings with clients and listening in on telephone contacts to critique the salesperson's performance. The close supervision is different from the usual relationships found in the real estate business. It is more controlling than that found in independent contractor relationships. In late 2007, POV introduced a new sales program called ValueMatch. Mr. DeLeo was required to participate in the ValueMatch sales training and utilize the ValueMatch sales approach. Mr. DeLeo was required to document his compliance with the ValueMatch sales program via a worksheet at every client contact. This requirement demonstrates that POV maintained close control over its sales and marketing representatives. POV provided an information packet to Mr. DeLeo and other sales and marketing representatives in 2006 and again in 2008. The 2006 version listed numerous "Essential duties and responsibilities." It includes a duty to be "Present and prepared for work when noted by various rotation options and/or customer needs" and "Attend training opportunities, team huddles and meetings." The 2008 version includes, "Present and prepared for work when noted by various appointments to include Open Homes, New Home showcase, 1st and 2nd Step CMA's, Resident Touches, Rotation, Pre Owned Home Floor Time, and any other customer opportunities. All appointments are expected to be logged in the customer AS400 account allowing various members of the support staff to assist in the process." The information packets present these requirements as imperatives and thus exhibit an exercise of close control over sales and marketing representatives. The 2006 version, under "Some Recommendations," sets out a detailed dress code. The 2008 version merely requires maintaining a professional appearance. It is clear that these requirements are imperative in nature thus reveal the exercise of close control over sales and marketing representatives. Both information packets address rotation (or work) schedules that are consistent with maintaining close control over the work schedules of sales and marketing representatives. Upon consideration of all of the evidence, and despite the title of the contract to the contrary, it is clear that POV maintained tight controls over the activities of their sales and marketing representatives, and, of course, over Mr. DeLeo.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations assert jurisdiction over Petitioner Joseph DeLeo and Respondent Properties of The Villages, Inc., and commence proceedings pursuant to Section 760.11, Florida Statutes. DONE AND ENTERED this 16th day of July, 2009, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 16th day of July, 2009. COPIES FURNISHED: Carla D. Franklin, Esquire Carla D. Franklin, P.A. 204 West University Avenue, Suite 3 Gainesville, Florida 32601 Stephen W. Johnson, Esquire McLin & Burnsed Post Office Box 491357 Leesburg, Florida 34749-1357 Larry Kranert, 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
The Issue Whether Respondent, a place of public accommodation, violated Section 760.08, Florida Statutes (2006), by failing to accommodate Petitioner, an individual with a disability.
Findings Of Fact Based on the oral and documentary evidence presented at the formal hearing and on the entire record of this proceeding, the following Findings of Fact are made: Petitioner, Shawn Sutton, is physically disabled and entitled to the protection of the Florida Civil Rights Act. Respondent is the owner of Golden Corral Restaurant, which is a structure for public accommodation. On July 8, 2007, Petitioner, accompanied by his parents, grandmother and siblings, visited Respondent restaurant for the purpose of eating therein. The total number in the group that accompanied Petitioner was approximately 15. Prior to July 8, 2007, Petitioner's family was a frequent customer of Respondent restaurant and had eaten there on approximately 50 occasions. There had never been a request for special accommodations for Shawn Sutton on any previous occasion. Respondent has a sign on the front door of the restaurant that reads as follows: "Please remain with your party until seated. For guests with special needs, please see the manager. Golden Corral." Respondent is a buffet restaurant. Patrons pay for meals upon entry and prior to being seated. Respondent has a seating policy that requires all persons on the same receipt of payment to remain seated together until a waitress takes their beverage order, verifies that all persons in the party are included on the receipt, and delivers a plate to each person. The members of a party are then free to sit wherever they choose. On July 23, 2007, after a visit to the same restaurant on that day, Petitioner's mother emailed Golden Corral three times complaining about rudeness and lack of professionalism on the part of restaurant employees. In one email, she makes her only reference to the matter at issue in this case, indicating that when told that her son was disabled, a restaurant employee, "Tangie," "changed the entire tone and tried to accomidate [sic] us the best she could." While Petitioner's disability is such that he needs assistance carrying his plate (and food) from the buffet line to his seat, he is able to feed himself without assistance. On July 8, 2007, the entire family sat together and Petitioner was able to eat after his mother and grandmother assisted him in obtaining his food. The evidence revealed that Petitioner's mother's complaint was substantially directed to the "rudeness" she perceived from Respondent's employees.
Recommendation Based 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 with prejudice the Petition for Relief for failure to establish an unlawful discriminatory act by Respondent. DONE AND ENTERED this 13th day of August, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 13th day of August, 2008. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Maureen M. Deskins, Esquire Butler, Pappas, Weihmuller Katz and Craig, LLP 777 South Harbor Island Boulevard Suite 500 Tampa, Florida 33602 Jerry Girley, Esquire The Girley Law Firm, P.A. 125 East Marks Street Orlando, Florida 32803
The Issue Should discipline be imposed against Respondent's Florida real estate sales associate license?
Findings Of Fact Stipulated Facts: Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular Section 20.165 and Chapters 120, 455 and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent is and was at all times material hereto a licensed Florida real estate sales associate, issued license number 3015177, in accordance with Chapter 475 of the Florida Statutes. The last license issued was as a sales associate with Diane Lynne Severino, P. O. Box 354491, Palm Coast, Florida 32135-4991. On or about August 6, 2004, Joaquin Torres and Marine Hopson (Torres) entered into a purchase and sale agreement for the real property located at 9 Rockwell Lane, Palm Coast, Florida. Respondent was the sales associate on the above transaction. The closing did not occur on the above transaction. Additional Facts: According to Petitioner's records, the following constitutes the history of Respondent's sales associate license: Francis Anthony Severino, Sr., Sales Associate, License #SL-3015177 From January 1, 2004 to October 4, 2004, he was a sales associate affiliated with Team Real Estate, Inc. doing business as Realty Executives Fun Coast Team license number CQ 1008966, a brokerage corporation located at 185 Cypress Point Parkway, suite 4, Palm Coast, Florida 32164; From October 4, 2004 to March 31, 2005 said licensee was invalid due to no employing broker or no filing of a request to remain a sales associate under another broker. From March 31, 2005 to the Present he is a sales associate affiliated with Diane Lynne Severino license number BK 666867, a brokerage sole proprietorship doing business as Severino Realty located at 170 North Beach Street, Daytona Beach, Florida 32114. Petitioner's Exhibit numbered 1. In his testimony Respondent indicated that his affiliation with Team Real Estate, Inc. ended on September 13, 2004, when he became inactive with that firm. Respondent's Exhibit numbered 2 is a copy of a DBPR RE-2050-1 Request for Change of Status form intended to establish the separation from that business. Mark Vost the real estate broker for Team Real Estate, Inc. filled out, signed, and sent it in. It has a fax stamp of September 13, 2004. The request by Mark Vost to inactivate Respondent as a sales associate with Team Real Estate, Inc., through the form DBPR RE-2050, was dated September 13, 2004, and officially received by the Department of Business and Professional Regulation on October 4, 2004. More significantly, Respondent testified that he filled out a DBPR RE-2050-1 a Request for Change of Status to be affiliated with Severino Realty whose broker was Diane L. Severino. At that time, Ms. Severino was Respondent's wife. A copy of the Request for Change of Status is found as Respondent's Exhibit numbered 3. It is dated September 13, 2004. Unlike Respondent's Exhibit numbered 2, Respondent's Exhibit numbered 3 does not have a fax stamp showing the date of transmission. Respondent indicated that he personally went to the fax machine in the office of Severino Realty and transferred his license to Petitioner by fax machine. On September 13, 2004, the date reflected on the form, Petitioner did not confirm the fax receipt by Petitioner. Respondent's explanation is that the fax machine upon which the transfer to Severino Realty of his sales associate license "did not have a receipt that prints out." Respondent in his testimony stated " . . . When I dialed the phone I got the dial tone, it rang, it answered, it made that beeping noise, and it never came and said anything that it did not go through and that it was an error. So I just assumed that it was accepted, because normally when a fax machine answers you, that beeping sound and it means that it is acknowledged and if it does not answer it’s a busy signal and you try dialing again." According to Respondent, from that point forward he assumed that his sales associate license had been transferred from Team Real Estate, Inc. to Severino Realty. It had not. Petitioner had evidence of the change of status of Respondent's license to inactive with Team Real Estate, Inc. It did not have evidence of the activation of Respondent's sales associates license with Severino Realty, even should one accept Respondent's testimony that he tried to fax the DBPR RE-2050-1 form designating a change in his broker to Diane L. Severino of Severino Realty on September 13, 2004. Ultimately the portrayal of Respondent's license history established in Petitioner's Exhibit numbered 1 is accepted where Respondent is recognized as being affiliated with Severino Realty commencing March 31, 2005. Respondent was involved with the Torres in a number of real estate transactions. One involved a purchase of a residence at 98 Ulysses Trail in Palm Coast, Florida, through a contract between Joaquine Torres and Holiday Builders, Inc. On July 21, 2004, the parties signed the contract. The total purchase price was $180,190.00. Respondent was named in the Sales/Forms FHA-VA- Std. in the portion of the forms described as "Realtor Referral" and Realty Executive is written next to his name. This is understood to refer to Team Real Estate, Inc. where Respondent was employed as a sales associate. The real estate commission involved with the purchase was 6 percent. Petitioner's Exhibit numbered 2. The real estate commission due Realty Executives (Team Real Estate, Inc.) was $8,129.00 in Respondent's name. Petitioner's Exhibit numbered 2. On September 24, 2004, when the purchase was settled at closing, the $8,1029.00 was paid, in relation to the property at 98 Ulysses Trail. Petitioner's Exhibit numbered 3. On September 24, 2004, the Torres as seller, with Severino Realty being reflected as the broker signed an Exclusive Right of Sale Listing Agreement for the 98 Ulysses Trail property. The price reflected was $229,800.00 with a broker's commission of 5.5 percent. The listing agreement bore one signature, that of the seller. The form did not name the authorized listing associate or broker. It referred to the brokerage firm name as Severino Realty. Petitioner's Exhibit numbered 4. Earlier, Mr. Torres entered into a "Showcase Home Purchase Completed Field Model Agreement" with Holiday Builders, Inc. for a residence at 9 Rockwell Lane, Palm Coast, Florida. On August 6, 2004, the parties signed the agreement. Petitioner's Exhibit numbered 5. On September 24, 2004, an Exclusive Rights of Sale Listing Agreement form was prepared between the Torres and Severino Realty on 9 Rockwell Lane, listing the sales price as $164,900.00. At the time, the Torres did not own the home. The brokerage commission was 5.5 percent. A seller's signature was attached. No other signature was provided. No one was listed as associate or broker. Petitioner's Exhibit numbered 6. The Torres' contract on 9 Rockwell Lane never closed due to the inability of the Torres to provide sufficient funds to conclude the purchase. On October 7, 2004, the Torres executed a Promissory Note to pay Respondent $5,000.00 upon the first sale of homes at 98 Ulysses Trail, 9 Rockwell Lane and 14 Ethel Lane. The amount was to be paid in 180 days from the date of the note payable at PO Box 354491, Palm Coast, Florida 32135 or "at such other place as payee or holder may specify in writing or in person." Petitioner's Exhibit numbered 7. On October 7, 2004, Mark Vost, broker/manager for Realty Executives Fun Coast Team Real Estate, Inc., wrote the title company that would be handling the closing on the 9 Rockwell Lane Property to advise that $5,000.00 of commission should be credited to the buyer with the balance of $879.00 being paid to Realty Executives the Fun Coast Team. Respondent's Exhibit numbered 8. This coincides with the settlement charges in the settlement statement for the 9 Rockwell Lane property that did not close on the anticipated date. October 12, 2004, was the scheduled closing date. Petitioner's Exhibit numbered 9. After the Torres purchase of 9 Rockwell Lane did not close, Respondent telephoned Ms. Torres and said that she would have to pay him $6,000 because of the percentage (commission) he was losing. He made more than one call. Respondent told Ms. Torres that the failure to close on the 9 Rockwell Lane property was not his problem. Respondent told Ms. Torres that she had to pay because she did not buy the property at 9 Rockwell Lane, that he lost his time and lost his commission and that it was her fault. Respondent told Ms. Torres to give him a check. Eventually, Respondent came to the Torres home to get money from the Torres that he said was due. Based upon the demand for money, Ms. Torres wrote a check payable to Frank Severino in the amount of $6,000.00. The face of the check stated the purpose for the check as "9 Rockwell Lane." The check was written on October 12, 2004, the date Respondent went to the Torres' home. The payment was not intended as any form of gift or gratuity to Respondent. Respondent deposited and cashed the check. A replica of the check and its execution is found as Petitioner's Exhibit numbered 10.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered finding Respondent in violation of Sections 455.227(1)(n) and 475.25(1)(b), (d) and (e), Florida Statutes (2004), and revoking Respondent's sales associate license.1/ DONE AND ENTERED this 30th day of March, 2007, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 2007
The Issue This is a proceeding pursuant to the Florida Equal Access to Justice Act, Section 57.111, Florida Statutes, in which the only disputed issues concern whether the Petitioner is a small business party and whether the Respondent was substantially justified in bringing the underlying proceeding.
Findings Of Fact The findings of fact which follow are based on “the pleadings and supporting documents, and the files and records of the Division of Administrative Hearings.” See Rule 60Q-2.035(7), Florida Administrative Code.1 In DOAH Case No. 96-4290, the Commissioner of Education filed an Administrative Complaint against Mr. Brown. By means of that Administrative Complaint, the Commissioner sought to take disciplinary action against Mr. Brown on the basis of allegations of misconduct by Mr. Brown in connection with his employment as a coach with the Dade County School System. An investigation was conducted prior to filing the Administrative Complaint and at the time the Administrative Complaint was filed, the agency had in its possession affidavits and other evidence which, if believed, were sufficient to establish the charges alleged in the Administrative Complaint. Prior to filing the Administrative Complaint, the evidence collected during the investigation was reviewed by agency legal counsel for the purpose of determining whether there was probable cause to file an Administrative Complaint. Upon review, the evidence appeared to be sufficient to warrant the issuance of an Administrative Complaint. Following discovery in the underlying case, the agency re-evaluated its position and, on the advice of counsel, decided to file a voluntary dismissal of the Administrative Complaint. The decision to dismiss the Administrative Complaint was based on the fact that, following discovery, the agency had serious doubts that it could prove its case by the required “clear and convincing” standard. At the time of the filing of the Administrative Complaint, Mr. Brown was the sole proprietor of an unincorporated business. His principal office was in this state. He was domiciled in this state. He had fewer than twenty-five employees and a new worth of less than two million dollars. At the time of the filing of the Administrative Complaint, Mr. Brown was not an employee of the Dade County Public School System. Rather, he was performing part-time coaching services essentially as an independent contractor.
The Issue The issue presented is whether Respondent violated Section 475.25(1)(a) and Section 475.25(3), Florida Statutes, as alleged in the administrative complaint.
Findings Of Fact Marvin Cohen is a registered real estate salesman. He was employed from September, 1975 until March, 1976, with Continental Marketing Services. The depositions of Mary Schmucker, Lawrence Hyer, and Eguene Leu were received without objection into the record. These depositions reveal that each of the deponents received a telephone call from a person identifying himself as Marvin Cohen. The caller represented that he was with Continental Marketing Services, a real estate sales organization. The caller sought a listing by the individual deponent's of property owned by them in the State of Florida with Continental Marketing Services. The caller represented that their property would be advertised nationally and overseas and could be sold at an amount greater than they had paid for it. No representations as to ready, willing and able purchasers were made to the deponents, nor was a guarantee of positive sale made. No representations were made by the deponents Hyer and Schmucker that had ever met Marvin Cohen or recognized his voice. Eugene Leu stated specifically that he had never met Cohen. The deponents all eventually listed their property with Continental Marketing Services and paid advance listing fees for between $325 and $350. No evidence was presented that the representations made by the caller were false, that Continental Marketing Services did not perform all services that it contracted to perform for the deponents, or that the Respondent Marvin Cohen had any knowledge of the calls, the representations made therein, or the business practices of Continental Marketing Services.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that no action be taken by the Florida Real Estate Commission against the registration of Marvin Cohen as a real estate salesman. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 16th day of March, 1979. COPIES FURNISHED: Mark A. Grimes Staff Attorney Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Marvin Cohen 1422 NW 196th Street Miami, Florida 33169 STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 ================================================================= AGENCY FINAL ORDER ================================================================= July 9, 1979 TO: Renata Hendrick, Registration Supervisor FROM: Mark A. Grimes, Staff Attorney RE: PD 3154 - FREC vs. MARVIN COHEN 00158048 DOAH CASE NO. 77-1293 Pursuant to the Commission's Order of May 9, 1979, the Defendant's license is to be suspended for a period of 180 days, effective June 29, 1979. The suspension shall elapse on December 27, 1979. No appeal was taken. Mark A. Grimes Staff Attorney
Conclusions The Director, Division of Hotels and Restaurants, Department of Business and Professional Regulation (the Division), after consideration of the complete record of this case on file with the Division, enters this Final Order. 1. On July 24, 2013, the Department issued an Administrative Complaint, a copy of which is attached as Exhibit wie, 2. On October 1, 2013, a hearing in this cause was held before the Honorable Suzanne Van Wyk, Administrative Law Judge, Division of Administrative Hearings. 3. On December 11, 2013, the Honorable Suzanne Van Wyk issued a Recommended Order, a copy of which is attached as Exhibit "2". The Statement of the Issues, Preliminary Statement, Filed January 6, 2014 1:48 PM Division of Administrative Hearings Findings of Fact, Conclusions of Law, and Recommendation contained in the Recommended Order are hereby adopted in toto and incorporated herein by reference. Based upon the foregoing, and being otherwise fully advised in the premises it is, hereby ORDERED that: for Respondent's violations of Section 509, Florida Statutes, and/or the rules promulgated thereto the following penalty is imposed: 1. Respondent shall pay a fine in the amount of $100.00, due and payable to the Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within thirty (30) calendar days of the date this Order is filed with the Agency Clerk. 2. This Final Order shall become effective on the date of filing with the Agency Clerk. DONE AND ORDERED this 3st day of “Pecen Axe , 20/3. Bele Wer fp Dusan S, Weep Diann S. Wordéalla, Director Department of Business and Professional Regulation Division of Hotels and Restaurants 1940 North Monroe Street Tallahassee, Florida 32399-1015
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by Rules 9.110 and 9.190, Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the Department of Business and Professional Regulation, Attn: Ronda L. Bryan, Agency Clerk, 1940 North Monroe Street, Suite 92, Tallahassee, Florida 32399-2202 and a second copy, accompanied by the filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Florida Appellate District where the party resides. The Notice of Appeal must be filed within thirty (30) days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via Certified U.S. Mail to Holland Apartments, c/o Cindy Holland, 162 Rainbow Drive, Fort Walton Beach, Florida 32548; by regular U.S. Mail to the Honorable Suzanne Van Wyk, Administrative Law Judge, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, Florida 32399-3060; and by hand delivery to Marc Drexler, Chief Attorney, Division of Hotels and Restaurants, Department of Business and Professional Regulations, 1940 North Monroe Street, Tallahassee, Florida 32399-2202, this Go day of anvary , 2014 For the Division of Hotels | Hotels and Restaurants “Certified Article Number | oy 71596 4008 9411 516 1790 SENDERS RECORD.“ cory
The Issue Whether Respondent has committed an unlawful employment practice in violation of Chapter 760, Florida Statutes, and if so, what remedy should be ordered?
Findings Of Fact Bonita Sneiderman, a/k/a Bonita Mattingly (Ms. Mattingly), is a Caucasian female born March 17, 1953. At the time of the events complained about in this proceeding, Ms. Mattingly was 53 years old. Ms. Mattingly was then known as Ms. Sneiderman and was single. Ms. Mattingly married and changed her name shortly before the hearing in this case. Dillards, Inc., is a corporation that operates a chain of department stores, referred to as Dillards. In many of the Dillards stores, there are styling salons. The Dillards department store at the Orange Park Mall in Orange Park, Florida is referred to as Store #232. During the time period relevant to this case, Susan Konstantatos was the Salon Manager of the salon at Store #232. On July 26, 2005, Ms. Konstantatos attended a manager's meeting, in which she received and discussed new policies for the salons. One such policy dealt with the schedules for salon employees and stated that all new hires would work five-day, full-time schedules. This policy, however, did not necessarily apply to employees already employed at the salons. For example, employees that worked in the Iveys salon before Dillards took over what used to be the Iveys store were considered to be "grandfathered in." Dillards honored whatever scheduling terms the employees had negotiated when taking their positions with Iveys. George Craywick, Cynthia Anderson and Marie Cox were three such salon employees. In September 2005, Ms. Mattingly applied for and received a position as a hair stylist in Dillards Store #232. Her application for employment with the store indicates that she applied for a full-time position. The application also indicates that she was hired for a full-time position. On September 21, 2005, Petitioner attended a new employee orientation session and signed the new employee orientation sheet, acknowledging that she had received orientation on Respondent's Associate Work Rules and Attendance Policy. Petitioner also signed an Associate Acknowledgment Form indicating that she received and understood Respondent's Associate Work Rules and General Policies. The Associate Work Rules and General Policies for Dillards reiterated the importance of attendance and provided notice that a "no show" would not be tolerated and would result in termination of employment. Among the stylists' job duties was an activity called "instant eventing." Instant eventing was an activity designed to generate interest in using the salon's services. Stylists could choose the type of instant eventing they would perform, such as handing out business cards, setting up a paraffin wax table and offering demonstrations, or setting up a color table with hair color swatches. Petitioner's chosen method of instant eventing involved setting up the paraffin wax demonstration. Instant eventing not only created interest in the salon, but hopefully helped new stylists to establish a following for their services. Stylists were expected to participate in instant eventing when they had no appointments. As a consequence, the more customers a stylist had, the less time he or she had to devote to instant eventing and the less stylists were expected to participate in the activity. Petitioner complains that George Craywick was not required to instant event and claims that she never saw him participate in any instant eventing activity. Mr. Craywick had more customers than any other stylist working at the Dillards salon. As a result of the number of repeat customers he served, he did not have the need for or the opportunity to engage in the same amount of instant eventing that Petitioner had. There is evidence that Mr. Craywick participated in a color table as an instant event, but it is unclear whether his participation in this activity was during the time that Petitioner was employed. Petitioner admitted that while she never saw Mr. Craywick participate in instant eventing, she had no knowledge as to whether he participated at times when she was not working with him. During May 2006, all of the salon's stylists at Store #232 were scheduled to work five days per week and one Sunday per month. When an employee worked on Sunday, Ms. Konstantatos attempted to schedule another day off for the employee during that week. Often the day off would be Monday, but the coverage needs of the salon would control. Mr. Craywick often worked on his scheduled days off at Ms. Konstantatos' request to ensure overage for the salon. Others sometimes did the same. Petitioner was scheduled to work Sunday, May 7, 2006. On or about May 1, 2006, Ms. Konstantatos checked the posted schedule and saw that Petitioner's name had been crossed off the schedule for Monday, May 8, 2006. Ms. Konstantatos had not removed Petitioner from the schedule and assumed that Petitioner had crossed her name off because she was working Sunday. Ms. Konstantatos needed Petitioner to work Monday, May 8, 2006, in order to ensure that the salon was adequately staffed. Petitioner had not worked the previous Monday. Ms. Konstantatos left Petitioner a note stating that Petitioner needed to work on Monday, May 8, 2006. After receiving the note, Petitioner called Ms. Konstantatos on Wednesday, May 3, 2006, and told her she could not work on Monday because she had made arrangements to go out of town that day. Petitioner's regular day off is Tuesday. Ms. Konstantatos advised that she needed Petitioner to work Monday to make sure that there was proper coverage for the salon, but that she could give Petitioner Wednesday off so that her days off would be consecutive. Petitioner insisted that she could not work on Monday, May 8, 2006. Ms. Konstantatos informed her that if she did not work on Monday, she would be considered to have abandoned her job and her employment would be terminated. Whether or not she worked on Monday, May 8, 2006, remained Petitioner's choice. Petitioner worked Thursday through Saturday, May 4-6, 2006. On Saturday evening, Petitioner packed up her belongings and left a note indicating that she had arranged for someone else to cover her shift on Sunday and would not be at work on Monday. She never returned to work because she considered herself to have been fired. On May 11, 2007, Respondent terminated Respondent for job abandonment. Between September 2005 and May 2006, Respondent terminated several other salon employees for job abandonment or excessive absenteeism. Those employees were both male and female, married and single. Their ages ranged from 21 to 35. After Petitioner's termination, Ms. Konstantatos hired Debra Doss as a stylist. At the time she was hired, Ms. Doss was a 49-year-old single female.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing Petitioner's complaint of discrimination. DONE AND ENTERED this 10th day of October, 2007, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 10th day of October, 2007. COPIES FURNISHED: Bonita Y. Mattingly 2040 Wells Road, Apartment 2-E Orange Park, Florida 32073 Grant D. Petersen, Esquire Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 100 North Tampa Street, Suite 3600 Tampa, Florida 33602 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
