The Issue Did Respondent, Ricoh Americas Corporation, (Ricoh), discriminate against Petitioner, Tamara Gleason (Ms. Gleason), because of her gender by demoting her? Did Ricoh retaliate against Ms. Gleason for complaining about gender discrimination?
Findings Of Fact Ricoh is in the business of selling and servicing document imaging and output equipment, including copiers, fax machines, printers, and related supplies and services such as software, paper, and toner. Ricoh has locations across the United States. Ms. Gleason worked for Ricoh from August 2008 until she resigned on March 31, 2010. She worked in its East Florida Marketplace. That area covers the eastern part of Florida from Jacksonville to Miami. In 2008, and at all times relevant to this proceeding, Al Hines (Mr. Hines) was the East Florida Marketplace manager. His responsibilities included supervising sales personnel and meeting sales quotas. Mr. Hines has worked for Ricoh in various positions for over 31 years. He is based in Ricoh's Maitland, Florida, office near Orlando. In 2008, the organizational structure of the East Florida Marketplace consisted of two group sales managers, one in Central Florida and one in South Florida. These group sales managers reported directly to the Marketplace Manager Mr. Hines. They oversaw sales managers who in turn supervised the various account executives. Also, one sales manager in Jacksonville reported directly to Mr. Hines. The group sales managers and sales managers were responsible for supervising the sales personnel, consisting of major account executives, senior account executives, and account executives. Ricoh assigned major account executives to work with specific large client accounts. Senior account executives were more experienced sales representatives. Senior account executives and account executives were assigned territories. Daytona Beach or a series of zip codes are examples of territories. Ricoh also assigned "vertical markets" for a specific industry, such as "faith-based" institutions to an Account Executive. Ms. Gleason applied and interviewed for an account executive position in the central Florida area of the East Florida Marketplace in August 2008. Mr. Hines, General Sales Manager Cecil Harrelson, and Sales Manager Anthony Arritt interviewed Ms. Gleason. On her resume and in her interview, Ms. Gleason represented that she had 20 years of experience as a sales representative in the office equipment field. Her resume stated that she was "[p]roficient in all areas relating to sales and leasing of copiers, printers, scanners, fax machines and various software solutions. Consistently exceeded sales quota." After the interview, Mr. Hines decided to hire Ms. Gleason for Mr. Harrelson's team. Ricoh hired Ms. Gleason as a senior account executive on August 11, 2008. Mr. Hines initially assigned her to work in the vertical "faith-based" market. In September 2008, a sales manager position for the Daytona Beach/Melbourne territories, overseen by Mr. Hines, opened. Three males applied for the position. Ms. Gleason did not apply. Mr. Hines asked Ms. Gleason if she would be interested in being considered for promotion to sales manager. Although Ms. Gleason had no prior management experience and had only worked for Ricoh for two months, Mr. Hines believed that she would be good in the position and asked her to consider it. Ms. Gleason accepted Mr. Hines' proposal. On September 30, 2008, Mr. Hines promoted her to sales manager. Ricoh provided Ms. Gleason manager training. In April and May of 2009, Ricoh restructured its sales positions. Ricoh changed group sales manager positions to strategic account sales manager positions. It removed all major account executives from teams supervised by sales managers and placed them on the teams supervised by the strategic account sales managers. In central Florida, the reorganization resulted in Cecil Harrelson being moved from general sales manager to strategic account sales manager. The major account executives on Ms. Gleason's team (Mary Cobb, David Norman, and Patrick Mull) and Arritt's team (Todd Anderson and Lynn Kent) were moved onto the new team supervised by Harrelson. All of the major account executives in the East Florida Market supervised by Mr. Hines were transferred to strategic account sales manager teams. On average, the sales managers in the East Florida Marketplace each lost two major account executives due to the reorganization. Mr. Hines required all of the sales managers to hire new sales personnel to bring the number of sales personnel on their teams to expected levels. This is known as maintaining "headcount." Ms. Gleason knew of this requirement. Also it was not new. The responsibility to maintain headcount pre-existed the reorganization. From the time of her hire until early 2009, around the time that the Company reorganized its sales positions, Ms. Gleason had no issues with Mr. Hines or complaints about his management. As a sales manager, Ms. Gleason bore responsibility for supervising a team of sales personnel and for ensuring that her team members met their monthly sales quotas. In addition, Ms. Gleason was responsible for maintaining the headcount on her team. Mr. Hines assigned monthly sales quotas for sales managers. He based the quotas on the types of sales representatives on each team. The monthly quota for major account executives was $75,000. For senior account executives, the monthly quota was $40,000. The monthly quota for account executives was $30,000. Mr. Hines conducted bi-monthly two-day sales meetings with all of the sales managers and office administrators to discuss their sales progress. Managers were expected to discuss their completed and forecast sales. Mr. Hines required managers to stand before the group to report on their progress and discuss any issues with quotas or goals based on month-to-date, quarter-to-date, and year-to-date expectations. Mr. Hines also considered "sales in the pipeline," or anticipated sales, to help determine sales trends for the next 90 days and in evaluating sales personnel. In addition, Mr. Hines conducted weekly sales calls with the sales managers to review their sales progress. During the calls, sales managers were to identify which sales they believed had a strong, "95 percent chance," of closing. Mr. Hines also discussed the performance of each individual sales representative on a manager's team during the calls. The discussions included examination of reasons for non-performance. Around the time of the reorganization, Mr. Hines transferred Senior Account Executive Tina Vargas in the Ocala territory from Mr. Arritt's team to Ms. Gleason's team. Mr. Hines made this transfer, in part, to help Ms. Gleason achieve her headcount and sales quotas. At the time of the transfer, Vargas expected to complete a large, one-time $320,000 sale on which she had been working. Mr. Hines anticipated that this sale would help Ms. Gleason achieve her sales quotas. Ms. Vargas was not located in the Daytona Beach/Melbourne territory. But Mr. Hines expected that Ms. Vargas would require minimal supervision because she was an experienced sales representative. Other managers also supervised sales representatives in multiple or large territories. For example, Cecil Harrelson supervised sales representatives in four areas. They were Orlando, Melbourne, Daytona, and Gainesville. Sales Manager Derrick Stephenson supervised a substantially larger geographic area than Ms. Gleason. His area reached from Key West to West Palm Beach. After the reorganization, Ms. Gleason's sales productivity declined. She also was not maintaining her headcount. The other Sales Managers experienced the same problems initially. But they recovered from the changes. Ms. Gleason never did. For the seven-month period of April through October, Ms. Gleason's record of attaining her quota was as follows: April - 35% or $70,867 in sales May - 196% or $385,452 in sales (Due to Ms. Vargas joining the team with a pending sale; 23% without Ms. Vargas.) June - 31% or $61,136 in sales July - 8% or $12,948 in sales August - 12% or $19,521 in sales September - 11% or $18,261 in sales October - 23% or $36,811 in sales During that same period, Ms. Gleason was the lowest performing sales manager in July (19 points less than the next lowest), August (14 points less than the next lowest), September (33 points less than the next lowest), and October (6 points less than the next lowest). She was the second lowest in June when Mr. Comancho was the lowest with 25% attainment compared to Ms. Gleason's 31%. The attainment percentages for all of the sales managers varied. Each had good months and bad months. After April and May, Ms. Gleason, however, had only bad months. For the months June through October, Ms. Gleason was the only sales manager who did not achieve 50% attainment at least twice, with two exceptions. They exceptions were Mr. Comancho and Mr. Rodham. Mr. Comancho chose to return to an account executive position after Mr. Hines spoke to him about his performance. Mr. Rodham joined Ricoh in October and attained 52% of quota that month. In addition to steadily failing to meet 50% of her quota, Ms. Gleason failed to maintain a full headcount for the same period of time. No male sales managers in Ricoh's East Florida Marketplace had similar deficiencies in meeting sales quota. There is no evidence that any male sales managers in Ricoh's East Florida Marketplace had similar failures to maintain headcount. There is no evidence of sales manager productivity or headcount maintenance for any of Ricoh's other markets. Ms. Gleason tried to improve her headcount by hiring additional sales personnel. She conducted a job fair with the assistance of Ricoh's recruiter. They identified 19 applicants for further consideration and second interviews. Mr. Hines reviewed and rejected all 19. They did not meet his requirement for applicants to have outside sales experience and a history of working on a commission basis. Ms. Gleason was aware of Mr. Hines' requirements. But she interpreted them more loosely than he did. Mr. Hines helped Ms. Gleason's efforts to improve her headcount by transferring four sales representatives to her team. At Ms. Gleason's request, Mr. Hines also reconsidered his rejection of one candidate, Susan Lafue, and permitted Ms. Gleason to hire her. Still Ms. Gleason was unable to reach the expected headcount. David Herrick, one of the individuals who Mr. Hines assigned to Ms. Gleason's team, had already been counseled about poor performance. Mr. Hines directed Ms. Gleason to work with Mr. Herrick until he sold something. This was a common practice with newer sales representatives. Mr. Herrick had also been assigned to male sales managers. Mr. Hines asked Ms. Gleason and Mr. Herrick to bring him business cards from their sales visits. He often did this to verify sales efforts. After Mr. Hines reviewed the cards, he threw them in the trash. But he first confirmed that Ms. Gleason had the information she needed from the cards. Mr. Hines often threw cards away after reviewing them to prevent sales representatives providing the same card multiple times. Ricoh's Human Resources Policy establishes a series of steps for disciplinary action. The first is to provide an employee a verbal warning. The next two steps are written warnings before taking disciplinary action. Mr. Hines gave Ms. Gleason a verbal warning about her performance. He spoke to her about improving sales production and headcount. Ms. Gleason's performance did not improve despite her efforts. Later, Mr. Hines gave Ms. Gleason a written warning in a counseling document dated August 31, 2009. The document stated that her performance had not been acceptable. The counseling memorandum directed Ms. Gleason to reach 65% of her quota. It also said that she was expected to maintain a minimum of seven people on her team and work in the field with her sales representatives at least four days a week. Finally the memorandum advised that failure to perform as directed would result in "being moved to sales territory." Around the end of August 2009, Mr. Hines began counseling Israel Camacho, a male, about his performance. Mr. Comancho decided to return to an account executive position. In September Ms. Gleason achieved 11% of her quota. She also did not maintain her headcount. September 24, 2009, Mr. Hines gave Ms. Gleason a second written counseling memorandum. It too said that her performance was unacceptable. The memorandum required her to produce 80% of her quota and maintain a minimum of seven people on her team. It also cautioned that failure to meet the requirements would result in "being moved to sales territory." Ms. Gleason acknowledges that she understood that if she did not perform to the expected levels that she could be demoted. After the written warning of September 24, 2009, Ms. Gleason's performance continued to be unacceptable. For October, Ms. Gleason had $23,811 in sales for a total attainment of 23% of quota. Again, she did not maintain her team's headcount. Sometime during the June through October period, Mr. Hines criticized Ms. Gleason's management style, saying that she "coddled" her personnel too much. He also directed her to read the book "Who Moved My Cheese" and discuss it with him and consider changing her management style. Mr. Hines often recommended management books to all managers, male or female. There is no persuasive evidence that Ms. Gleason is the only person he required to read a recommended book and discuss it with him. Mr. Hines' comments and the reading requirement were efforts to help Ms. Gleason improve her performance and management. During the June through October period, Ms. Gleason yawned during a manager meeting. She maintains that Mr. Hines' statement about her yawn differed from the words he spoke to a male manager who fell asleep in a meeting. The differences, she argues, demonstrated gender discrimination. They did not. In each instance Mr. Hines sarcastically commented on the manager's behavior in front of other employees. He made no gender references. And the comments were similar. Sometime during the June through October period Mr. Hines also assigned Ms. Gleason to serve in an "Ambassador" role. "Ambassadors" were part of a Ricoh initiative to develop ways to improve the customer experience. There is no evidence that males were not also required to serve as "Ambassadors." And there is no persuasive evidence that this assignment was anything other than another effort to improve Ms. Gleason's management performance. Also during the June through October period Ms. Gleason proposed hosting a team building event at a bowling alley. Someone in management advised her that the event could not be an official company sponsored event because the bowling alley served alcohol. Again, there is no evidence that males were subjected to different requirements or that the requirement was related to Ms. Gleason's gender. During this same period, Ms. Gleason received written and oral communications from co-workers commenting on her difficulties meeting Mr. Hines' expectations. They observed that she was having a hard time and that they had seen Mr. Hines treat others similarly before discharging them. Nothing indicates that the others were female. These comments amount to typical office chatter and indicate nothing more than what the counseling documents said: Mr. Hines was unhappy with Ms. Gleason's performance and was going to take adverse action if it did not improve. On November 12, 2009, Ms. Gleason sent an email to Rhonda McIntyre, Regional Human Resources Manager. Ms. Gleason spoke to Ms. McIntyre that same day about her concerns about Hines' management style. Ms. Gleason said she was afraid that she may lose her job and that she was being set up for failure. Ms. McIntyre asked Ms. Gleason to send her concerns in writing. Ms. Gleason did so on November 13, 2009. Ms. Gleason's e-mail raised several issues about Mr. Hines' management. But Ms. Gleason did not state in her email or her conversations that she was being discriminated against or treated differently because of her gender. Ms. Gleason never complained about gender discrimination to any Ricoh representative at any time. On December 1, 2009, Mr. Hines demoted Ms. Gleason from sales manager to senior account executive. He assigned her to work on Mr. Arritt's team. Ms. Gleason had no issues with Mr. Arritt and no objection to being assigned to his team. Mr. Hines has demoted male sales managers to account executive positions for failure to attain quotas or otherwise perform at expected levels. The male employees include Ed Whipper, Kim Hughes, and Michael Kohler. In addition, Mr. Comancho was the subject of counseling before he chose to return to an account executive position. After Mr. Hines demoted Ms. Gleason, he promoted Diego Pugliese, a male, to sales manager. He assigned Mr. Pugliese the same territory that Ms. Gleason had. When Mr. Hines assigned Ms. Gleason to Mr. Arritt's team, Mr. Hines instructed Mr. Arritt to give Ms. Gleason two territories with substantial "machines in field" (MIF) to buttress Ms. Gleason's opportunity to succeed in her new position. Mr. Arritt assigned Ms. Gleason the two territories that records indicated had the most MIF. Ms. Gleason asserts that the preceding account executives maintained the records for the area poorly and that the new territories had no greater MIF than other areas. That fact does not indicate any intent to discriminate against Ms. Gleason on account of her gender. In January 2010, after Ms. Gleason's demotion, Mr. Harrelson invited Ms. Gleason to attend a non-company sponsored, employees' poker party. She had been invited to other employee poker parties and attended some. Mr. Harrelson withdrew the invitation saying that Mr. Hines was attending and that Mr. Harrelson thought Ms. Gleason's presence would be uncomfortable. Mr. Harrelson did not say that Mr. Hines had made this statement. And Mr. Harrelson was not Ms. Gleason's supervisor. Nothing about the exchange indicates that Ms. Gleason's gender had anything to do with withdrawal of the invitation. The incident seems to be based upon the natural observation that Mr. Hines might be uncomfortable socializing with someone he had recently demoted. After her demotion, Ms. Gleason asked Mr. Arritt to go with her on a "big hit" sales call. Ms. Gleason claims that Mr. Arritt told her that Mr. Hines told him not to go on sales calls with her. That may have been Mr. Arritt's interpretation of what Mr. Hines said. Mr. Hines had told Mr. Arritt that because Ms. Gleason was an experienced sales representative Mr. Arritt should focus his efforts on the less experienced sales representatives on his team. This was a reasonable observation. There is no evidence indicating that Mr. Hines treated Ms. Gleason differently in this situation than he had similarly experienced males. Ms. Gleason brought this issue to Ms. McIntyre's attention. The issue was resolved. Mr. Hines told Mr. Arritt that if Ms. Gleason wanted more assistance then Mr. Arritt should attend meetings with Gleason and provide any other assistance she believed she needed. Ms. Gleason had no other issues with Mr. Hines during the remainder of her employment. On March 31, 2010, Ms. Gleason submitted a memorandum stating that she was resigning "effective immediately." There is no evidence of derogatory or harassing comments by Mr. Hines or any other Ricoh representative toward Ms. Gleason referring to gender. There is no evidence of sexually suggestive comments or actions by a Ricoh representative. There also is no evidence of physically intimidating or harassing actions by any Ricoh representative.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations deny the Petition of Tamara A. Gleason in FCHR Case Number 2010-01263. DONE AND ENTERED this 18th day of February, 2011, 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 18th day of February, 2011. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Kimberly A. Gilmour, Esquire 4179 Davie Road, Suite 101 Davie, Florida 33314 David A. Young, Esquire Fisher & Phillips LLP 300 South Orange Avenue, Suite 1250 Orlando, Florida 32801 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Should Petitioner discipline Respondent's real estate sales- person's license for alleged conduct evidencing fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust in a business transaction in violation of Section 475.25(1)(b), Florida Statutes?
Findings Of Fact 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, Petitioner carries out its duties in compliance with Chapters 20, 120, 455 and 475, Florida Statutes and the rules promulgated under authority set forth in those statutes. At times relevant to the inquiry, Respondent was, and is now, a licensed Florida Real Estate salesperson. Her license number is 0591902. That license was issued in accordance with Chapter 475, Florida Statutes. At times relevant to the inquiry, Respondent worked as a licensed real estate salesperson for Ideal Real Estate Central Florida, Inc., t/a Coldwell Banker Ideal Real Estate in Orange City, Florida (Ideal). The broker for that firm was John S. Chinelli. On April 13, 1993, Respondent listed an exclusive right of sale for property owned by Jason and Kelly Foster at 2853 Sweet Springs Avenue, Deltona, Florida. That listing contemplated that Ideal would earn a real estate commission of 7 percent of the gross purchase price. The listing price in the exclusive right of sale was $69,900. In arriving at the sales price, Mr. Foster relied upon Respondent's advice. That advice included a consideration of the price received for the sale of comparable homes. The establishment of comparable prices as a means to arrive at the listing price for the Foster property involved the use of the Coldwell Banker buyer/seller presentation booklet, as well as a marketing analysis. The price $69,900 was chosen to attract those buyers who were looking for homes that cost less than $70,000. That choice was designed to garner more interest in the home. While the Foster home was being advertised, it was available through the multiple listing pool. Respondent showed the house two times between April 13, 1993, and May 14, 1993. This did not involve a showing to any prospective buyers. Other brokers or salespersons showed the house twice to prospective buyers, but no offers were generated from those showings. Subsequently, Respondent suggested to Mr. Foster that the Foster residence might be appropriate for her use. Respondent offered to buy the Foster property for $65,000. On May 14, 1993, Respondent and Mr. Foster entered into a contract for sale and purchase of the Foster residence. The purchase price was $65,000. Respondent deposited $500 into the escrow account managed by Ideal in furtherance of her interest in the property. The earnest money deposit was placed with Mr. Chinelli pending the closing of the sale. The contract called for Respondent to assume an existing mortgage of $63,556. The contract identified that the Respondent was a licensed real estate agent in Florida, but the purchase was not being made through Ideal. Under this contract, the real estate commission that had been contemplated initially would not be paid to Ideal and Respondent. When Respondent entered into a contract to buy the Foster property, she did not tell Mr. Foster that she would no longer be representing him as a real estate salesperson. The contract between Respondent and Mr. Foster called for a closing date on or before June 30, 1993. In entering into the agreement for Respondent to purchase the home, Respondent told Mr. Foster that she intended to personally occupy that property. Respondent never told Mr. Foster that she entered into the contract to purchase his home with the intent to sell the home to another person. Originally that was not her intention. Respondent held to the view that in the event that her purchase of the home was not concluded, Respondent would still represent Mr. Foster in his desire to sell the home. This is taken to mean that she would be representing Mr. Foster as a real estate salesperson. Sometime around June 20, 1993, Kai and Denise M. Hansen, husband and wife, contacted Ideal to show the Hansens property in the Deltona area. Respondent assisted the Hansens in this pursuit, acting as a real estate salesperson. There was no written agreement between Respondent or her firm signed with the Hansens to represent them in their attempt to purchase a home. Respondent showed the Hansens 8 to 12 homes in the Deltona area. The Hansens were not interested in purchasing those homes. At that point, Respondent suggested that the Hansens look at the home that she was purchasing from Mr. Foster. Respondent told the Hansens that Respondent was buying the Foster house from the Fosters who were moving out of town and that Respondent was helping the Fosters "out of a bind." Respondent told the Hansens that the home might be "too big for her anyway." Respondent told the Hansens that if she could help the Hansens out she would sell the Foster home to the Hansens if the Hansens liked that property. If a suitable home had been found through a real estate listing, other than the Foster residence, a commission would have been paid from the seller of the hypothetical house to the broker for Ideal. In that circumstance, the Hansens would not be responsible for paying a commission to the Respondent or Ideal. The properties other than the Foster property which Respondent was showing the Hansens were shown by Respondent as a sub-agent for the sellers. Respondent showed the Hansens the Foster residence during the week of June 20, 1993. On June 24, 1993, Respondent entered into a contract with the Hansens for sale and purchase of the Foster property. An addendum to that contract indicated that "this contract is contingent upon seller obtaining clear Title on 2853 Sweet Springs, Deltona, FL." The Hansens paid a $1,000 earnest money deposit toward the purchase of the Foster property. That deposit was placed in the escrow account for Ideal. That deposit was to be held until the closing date scheduled for July 16, 1993. Again, it was not contemplated that a real estate commission would be paid to Respondent and Ideal. The price arrived at between Respondent and the Hansens to purchase the Foster property was $72,500. Initially, Respondent had offered to sell the property for $73,000. The Hansens counter-offered to pay $72,000 leading to the final purchase price of $72,500. The contract between the Respondent and the Hansens called for an assumption of a mortgage in the amount of 63,500. Although Respondent had advised the Hansens that the property was being purchased from the current occupants, the Fosters, Respondent did not advise the Hansens of the price the Respondent was paying the Fosters to purchase that property. Respondent never advised the Fosters that the Hansens had sought to purchase the Foster home and that Respondent had entered into a contract with the Hansens for the Hansens to purchase that property. On June 29, 1993, the closing occurred between Respondent and the Fosters and a warranty deed was prepared noting the change in ownership. At the closing Respondent told the Fosters that she still intended to occupy the home. On July 16, 1993, the closing occurred between the Respondent and the Hansens and a warranty deed was drawn conveying the property from the Respondent to the Hansens. As established by Mark A. Carper, a real estate appraiser, the value of the Foster property on April 13, 1993 was between $65,000 and $72,500. In anticipation of moving into the Foster home, Respondent had made arrangements to move out of the residence where she had been living by giving notice that she intended to move.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That a Final Order be entered which dismisses the administrative complaint against Respondent. DONE AND ENTERED this day of July, 1997, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 day of July, 1997. COPIES FURNISHED: Christine M. Ryall, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street, Suite N-308 Orlando, Florida 32801-1772 William A. Parsons, Esquire Woerner & Parsons 2001 South Ridgewood Avenue South Daytona, Florida 32119 Henry M. Solares, Division Director Division of Real Estate 400 West Robinson Street, Suite N-308 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent, US Growth Investment, Inc., discriminated against Petitioners Jimmy and Gelene Stewart,2 on the basis of race in violation of the Florida Fair Housing Act (“the Act”), chapter 760, part II, Florida Statutes (2019),3 and, if so, the relief to which Petitioners are entitled.
Findings Of Fact Petitioners did not attend the Zoom Conference hearing or provide any direct evidence to support their claim of discrimination. Respondent’s counsel introduced Respondent’s representative. 6 The parties sent email communications to the undersigned’s judicial assistant regarding possible dates for a hearing, but failed to timely file the status report with the requested information. 7 Petitioners requested a 60-day continuance. The length of the actual continuance: 74 days. Further, no attorney entered a Notice of Appearance on behalf of Petitioners. 8 The tenth day after the hearing fell on a weekend; thus, the PROs were to be filed on the next business day, Monday, June 7, 2021.
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 Petition for Relief filed by Petitioners in its entirety. DONE AND ENTERED this 10th day of June, 2021, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Jimmy Stewart Box 700 7862 West Irlo Bronson Highway Kissimmee, Florida 34747 Richard W. Withers, Esquire Ward & Ketchersid, P.A. 1241 Airport Road, Suite H Destin, Florida 32541 Gelene Stewart Box 700 7862 West Irlo Bronson Highway Kissimmee, Florida 34747 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020
The Issue The issue for determination at the final hearing was whether the Petitioner's application for registration as a service warranty association sales representative should have been granted.
Findings Of Fact The Petitioner, William E. Andrews, currently resides in Largo, Florida with his wife and one child. He is employed as an Assistant Manager at T.V. Stereo Town, Inc. located in Largo, Florida. On April 22, 1985, the Petitioner filed with the Department of Insurance an application for qualification and registration as a Service Warranty Association Sales Representative. The application specified that the Petitioner would represent T.V. Stereo Town, Inc. On April 9, 1983, the Petitioner entered a plea of guilty in the Circuit Court of Pinellas County to the offense of Grand Theft. The Court withheld adjudication of guilt and placed the Petitioner on probation for a period of three (3) years. The Petitioner was ordered to make restitution to the victim as a special condition of probation. The Petitioner was represented by counsel. On June 9, 1982, the Petitioner entered a plea of guilty in the County Court of Pinellas County to the offense of Battery. The Petitioner was adjudicated guilty and was sentenced to a 10 day suspended jail term and supervised probation for a period of six months. The Petitioner was not represented by counsel. On May 13, 1983, the Petitioner entered a plea of guilty in the County Court of Pinellas County to the offense of Obtaining Property in Return for a Worthless Check. The Court withheld adjudication and placed the Petitioner on unsupervised probation for a period of 60 days. The Petitioner was ordered to make restitution to the victim as a special condition of probation. The amount of the check was thirty-five dollars. The Petitioner was not represented by counsel. The grand theft charge involved theft of money and/or inventory from a business which the Petitioner and his ex-wife, Virginia Martin were involved with. The business consisted of a free standing display, or kiosk, which was set up in the middle of the Sunshine Mall in Pinellas County. The parent company was D & P Creations and the business involved gift shop merchandise. The Petitioner and Ms. Martin had an arrangement with D & P Creations wherein they would receive 20% of gross sales generated by the display. The business was opened on November 17, 1983 and closed on December 26, 1983. The loss in inventory and/or money to the parent company amounted to approximately $3,000. Throughout the operation of the business, the Petitioner worked as a desk clerk at the Gulf Sands Beach Resort Hotel. The Petitioner's ex-wife, Virginia Martin, worked as a bus driver for the Pinellas County School System. The Petitioner's wife actually ran the business, but Petitioner looked in on it from time to time. The Petitioner, upon considering advice of legal counsel, pled guilty to the offense of Grand Theft from D & P Creations. Virginia Martin, the Petitioner's ex-wife, was the victim of the battery charge to which Petitioner pled guilty. The battery occurred while the Petitioner and Ms. Martin were dating and before they were married. Petitioner and his ex-wife, Virginia Martin, maintained a joint account during the period when Petitioner pled guilty to obtaining property in return for a worthless check. The amount of the check was $35.00. The Petitioner and Virginia Martin were married in July of 1983; they were divorced in December of 1983.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is: RECOMMENDED THAT the Department of Insurance issue a final order denying William E. Andrew's application for registration as a service warranty association sales representative. DONE and ORDERED this 17th day of December, 1985, in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON 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 17th day of December, 1985. APPENDIX Respondent's Proposed Findings of Fact: Finding Ruling Accepted, see R.O. paragraph 3. Partially accepted; see R.O. paragraph 3. Matters not contained therein are rejected as conclusions of law. Partially accepted; see R.O. paragraphs 6, 7 and 8. Matters not included therein are rejected as argument and conclusions of law. Accepted; see R.O. paragraph 4. Accepted; see R.O. paragraph 5. Rejected as argument and conclusions of law. COPIES FURNISHED: Richard D. Tritschler, Esq. Department of Insurance and Treasurer 413-B Larson Building Tallahassee, Florida 32301 Don Dowdell, Esq. General Counsel The Capitol, Plaza Level Tallahassee, Florida 32301 David L. Levy, Esq. P. O. Box 5167 Largo, Florida 34294-5167 Hon. William Gunter State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32301
The Issue The issues for determination in this proceeding are whether Respondent violated Sections 475.426(1)(a) and 475.25(1)(a), (b), and (e), Florida Statutes, 1/ by: acting as a broker; failing to deposit money in escrow; committing fraud, deceit, or dishonesty; and, if so, what, if any, penalty should be imposed.
Findings Of Fact Petitioner is the governmental agency responsible for issuing licenses to practice real estate and for regulating licensees on behalf of the state. Respondent is a licensed real estate sales person under license number 0585127. In September, 1992, Respondent's real estate license had lapsed. It was renewed on October 22, 1992. The last license issued to Respondent was issued as a sales person at 457 Loma Bonita Drive, Davenport, Florida. Respondent is a British citizen doing business in Florida. Respondent owns 50 percent of the outstanding stock of Newbay Florida Associates ("Newbay") and Newbay Properties of Central Florida, Inc ("Newbay Properties"). Mr. Paul Chandler is a British citizen confined to a wheelchair by osteogenesis imperfecta, a bone disease. Mr. Chandler was injured in an automobile accident by a drunken driver in 1989. As a result, Mr. Chandler was awarded a jury verdict of $600,000. From the net proceeds of the jury verdict, Mr. Chandler purchased four houses in Florida from Respondent. The houses were for Mr. Chandler and members of his family who have disabilities similar to Mr. Chandler's. 2/ Mr. Chandler paid the remainder of his jury award, approximately $225,000, to Respondent to purchase a furniture franchise. The franchise was to be operated as Flamingo Interiors, Inc. ("Flamingo"), in Kissimmee, Florida. In September, 1992, Respondent and Mr. Chandler negotiated and executed a Franchise Rights Agreement (the "agreement"). The agreement identifies Mr. Chandler as the "franchisee" but otherwise conceals material facts and contains misrepresentations, false promises, false pretenses, and amounts to dishonest dealing by trick, scheme, or device. The agreement illustrates Respondent's fraud and breach of trust in a business transaction. The agreement contains the name "NEWBAY FLORIDA ASSOCIATES" across the top of the front page of the document. However, the agreement identifies the "franchisor" as Flamingo Interiors of Wells, Somerset, England. The agreement requires Flamingo Interiors to perform numerous obligations. The obligations include: setting up a retail store; providing all necessary training, licensing, qualifications, visas, and inventory; conveying an exclusive area of operation within an "eight (8) miles radius from the Newbay office;" and establishing the location and size of the retail store at the discretion of Newbay. The agreement represents that Newbay owns 25 percent of the outstanding stock in Flamingo Interiors. However, the agreement conceals Flamingo Interiors' place of formation, organization, and current status, and conceals Newbay's authority, or lack of authority, to bind Flamingo Interiors to the obligations of the franchisor in the agreement. Respondent is the only signatory to the agreement other than Mr. Chandler. Respondent signed the agreement on behalf of Newbay. No one from Flamingo Interiors is a signatory to the agreement. The purchase price under the agreement requires Mr. Chandler to deposit $45,000 upon execution of the agreement. The balance of $180,000 is to be paid by December 31, 1992. Mr. Chandler paid the $225,000 required under the agreement in three checks made payable to "Newbay Clients Account." Respondent represented that the amounts paid by Mr. Chandler would be held in the escrow account of Newbay Properties until the obligations of the franchisor were completed in accordance with the terms of the agreement. All negotiations were conducted in the offices of Newbay Properties. Newbay Properties had no escrow account. Respondent failed to place the $225,000 paid to him by Mr. Chandler into any escrow account. The obligations of the franchisor were never satisfied, in whole or in part. Neither Respondent, Newbay, nor Flamingo Interiors made any attempt to obtain performance of the obligations of the franchisor. After repeated efforts and requests by Mr. Chandler, Respondent failed to account for or return Mr. Chandler's money. Respondent never explained his failure to return the money deposited with Respondent by Mr. Chandler.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of violating Sections 475.25(1)(k), 475.25(1)(e), and 475.42(1)(a); guilty of violating Section 475.25(1)(b); and revoking Respondent's real estate sales license. RECOMMENDED this 8th day of February, 1995, in Tallahassee, Florida. DANIEL S. MANRY 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 8th day of February 1995.
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.
Findings Of Fact After the motion for continuance was again denied, petitioners declined to offer any evidence and petitioners announced that they would be pursuing certain supposed federal remedies.
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.
