Findings Of Fact Respondents hold license 23-3237 COP and at all times here relevant were so licensed. On 7 November, 1977, Respondent, Juan Rodriguez, sold less than five grams of marijuana to Rocco Delio, an undercover policeman, on the licensed premises. Delio paid Rodriguez $11 for the marijuana and two beers. When arrested in December 1977 on a warrant charging him with the sale of marijuana, Rodriguez had an old lottery ticket in his possession as well as a list of numbers which the arresting officers thought to be lottery numbers. Rodriguez testified that the lottery ticket was an old one he bad obtained in Puerto Rico and that he had forgotten the ticket was in his wallet. He further identified the list of numbers as measurements he had taken for a building. Rodriguez denied ever selling any lottery tickets. At his trial on the charge of possession and sale of marijuana and possession of lottery paraphernalia Rodriguez pleaded guilty, upon the advice of counsel, to unlawful sale of marijuana, and adjudication of guilt was withheld. (Exhibit 1). Rodriguez testified that he paid a $300 fine and was told by his attorney that the plea and subsequent withholding adjudication of guilt would not affect his business. At this hearing Rodriguez denied selling marijuana to the policeman who had testified to the contrary. The Petitioner's witness is deemed a much more credible witness and it was this testimony, plus the guilty plea entered in Circuit Court that resulted in the finding that Respondent possessed and sold marijuana on the licensed premises. No evidence was submitted with respect to Counts 3, 4 and 7 of the Notice to Show Cause. The admissions of Respondent with respect to the facts alleged in Counts 5 and 6 were rebutted by Respondent's testimony, which was not contradicted by Petitioner's witness, that the lottery ticket was old and that the list of numbers found on Rodriguez' person was not a list of lottery numbers.
The Issue Whether respondent discriminated against petitioner on account of her race in terminating her employment?
Findings Of Fact On May 2, 1985, even before Builders Square, Inc., opened Store No. 1423 at 1412 West Fairfield Drive in Pensacola, Sharon Jackson, an African American woman, started work, putting price tags on merchandise. When the doors opened, on May 22, 1985, she began as a "ticket checker." Stationed by an exit, she punched customers' invoices, once she determined the invoice accurately reflected the merchandise the customer proposed to leave the store with. She continued in this capacity until her employment ended. Builders Square, Inc., hired Ms. Jackson as a "Part Time Non Regular," Respondent's Exhibit No. 1, cashier at an hourly rate of $3.50. On June 7, 1985, she became a regular or permanent part-time employee and received a raise to $4.00 an hour. Respondent's Exhibit No. 2. Effective July 1, 1985, she became a full-time employee, and was reclassified: she went from "CASH I 423628 [to] TKTCMZ 423628." Respondent's Exhibit No. 3. Her wages rose again, on October 21, 1985, this time to $4.50 an hour. Respondent's Exhibit No. 4. In December of 1985, because "sales were not at budget that particular week," (T.56) a pre-Christmas reduction in the work force was decided upon. Denny Dennis, the store manager, and Roger Hittinger, assistant store manager, both white men, "went through the store and looked at areas where [they] could eliminate some employees." (T.44) They decided to abolish one of two ticket checker positions, and to terminate Sharon Jackson's employment. On Friday, December 13, 1985, they informed her she no longer had a job, as of the close of business. Cynthia Priaulx, a white woman, held the only other ticket checker position on December 13, 1985. Ms. Priaulx began work for Builders Square, Inc., on May 13, 1985, as a full-time, permanent salesperson at an hourly rate of $4.75. Respondent's Exhibit No. 9. On August 12, 1985, she became a ticket checker, but her status did not change otherwise, and her wages remained the same. Susan D. Kirkland, another white woman, began working for Builders Square, Inc., as a "Part Time Non Regular," Respondent's Exhibit No. 11, cashier at an hourly rate of $3.50, just as petitioner Jackson had done, although she started some 20 days after Ms. Jackson. Effective July 1, 1985, Susan Kirkland became a regular or permanent part-time employee and received a raise to $4.00 an hour, Respondent's Exhibit No. 12, changes that had occurred, in Ms. Jackson's case, 23 days earlier. Also on July 1, 1985, Ms. Kirkland, like Ms. Jackson, was reclassified: she, too, went from "CASH I 423628 [to] TKTCKR 423628." Respondent's Exhibit No. 12. Effective October 23, 1985, however, she was reclassified from "TKTCKR 423628 [to] CASH 1 423628." Respondent's Exhibit No. 13. Ms. Kirkland had not attained full-time status as of December 13, 1985, as far as the record reveals. Even after October 22, 1985, when ticket checker positions were reduced to two, Ms. Kirkland, who generally worked evenings, sometimes filled in as a ticket checker as did, occasionally, the store managers as well. Even though she did not always work as a cashier, Ms. Kirkland was paid as a cashier after October 22, 1985, and for that reason, missed out on the raise to $4.50 an hour that Ms. Jackson received. The personnel action notice filled out when Builders Square, Inc., discharged Ms. Jackson indicated her eligibility for rehire. Respondent's Exhibit No. 6. Tim Bolt, like Ms. Jackson an African American who was terminated on December 13, 1985, was in fact rehired in 1986. On November 22, 1988, respondent offered to rehire petitioner full-time on unspecified terms, Respondent's Exhibit No. 5, but petitioner declined. She was unwilling to give up her present job at Women's Home, where she has worked 40 hours a week at $3.50 an hour since June 10, 1987. (T.26) On March 11, 1987, she began working at Women's Home for $3.35 an hour, 32 hours a week. Since her employment there she has had "sick leave and insurance." (T.27) The job at Women's Home is the first she has held since working for Builders Square, Inc. For three or four months or maybe for as long as 26 weeks after she lost her job, she received weekly unemployment compensation in the amount of $66. Three of the seven employees who lost their jobs on December 13, 1985, were African Americans. Respondent's Exhibit No. 7. T. 53. Of the three, only Ms. Jackson did not work as a "regular employee." Two of the white employees who lost their jobs in mid-December had worked as regular employees longer than any of the African Americans whose jobs ended. Respondent's Exhibit No. 7. Sixteen of the 84 employees at Builders Square's Store No. 1423 on December 15, 1985, were African American. Of these, three had attained regular employee status later than Ms. Jackson did. Fourteen white employees and a Filipino who still had jobs after Ms. Jackson was discharged attained regular employee status after she did. Respondent's Exhibit No. 8.
The Issue The issues are whether Respondent issued a voucher ticket without obtaining cash or cash equivalent in exchange, in violation of Florida Administrative Code Rule 61D-7.020(5)(b); had adjudication withheld on felony charges involving larceny, in violation of section 849.086(6)(g), Florida Statutes (2014); or was ejected from Gulfstream Park, in violation of section 550.0251(6), Florida Statutes, as alleged in the Second Amended Administrative Complaint; and if so, what is the appropriate sanction.1/
Findings Of Fact The Division is the state agency charged with regulating pari-mutuel wagering and cardrooms in the state of Florida, pursuant to chapter 550 and section 849.086. On April 27, 2014, Mr. Havey was licensed by the Division and was working at Silks mutuels window number 607 at Gulfstream Park, a facility authorized to conduct pari-mutuel wagering and cardroom operations. At the end of the day on April 27, 2014, Mr. Havey's cash drawer did not balance. After a review of surveillance tapes and other information, Mr. Jorge Aparicio, a security director with Gulfstream Park, decided to investigate further. On May 2, 2014, when Mr. Havey returned to work, he was interviewed by Mr. Aparicio about the missing money. Mr. Havey initially stated that he accidently printed out a voucher for $5,000.00 for his friend Darren, when he had intended to punch the voucher for only $500.00. He said that Darren was supposed to give him the money at the end of the day. Later, Mr. Havey stated he really printed out the voucher for $5,000.00, placed it in his right shirt pocket, and gave the voucher to his friend Eddy inside the men's restroom for his friend to cash. Later that day, Mr. Havey prepared a written statement regarding the money missing from his cash drawer. He wrote: My friend Eddy needed 500. loan because I told he was being thriten. I offer to help Eddy by giving him 500 vocher. Eddy told me he would pay me back in a week. Eddy didn't want to come to my window #607. Eddy asked me to meet in the bathroom. I punched a $500 vocher I thought but it ended being a $5000. vocher. I gave him the vocher & never saw Eddy again. I planded on browing the five hundred from my friend to put $500. back in my money so I would balance, but[.] Mr. Aparicio testified that Mr. Havey could not give a last name or address for his friend and noted that the name of the friend given by Mr. Havey changed during the course of the interview. After the interview, Mr. Aparicio called the president of Gulfstream Park and described what had taken place. He was directed to call the police and to exclude Mr. Havey from the property indefinitely. As reflected in the Security Report, Mr. Havey was "excluded indefinitely" from Gulfstream Park on May 2, 2014. This action did not necessarily bar Mr. Havey from the park permanently, for the president could allow him to return, but he was excluded unless and until the president took further action. This "indefinite" exclusion constituted an ejection from Gulfstream Park. When Mr. Havey left the investigation room, the Hallandale Beach Police were there. Mr. Havey testified that they did not ask him a single question, but immediately placed him under arrest and handcuffed him. On August 21, 2014, Mr. Havey entered a plea of nolo contendere to a charge of grand theft in the third degree in the Seventeenth Judicial Circuit Court, in and for Broward County, Florida. Adjudication was withheld. He was placed on 24 months' probation, with the condition that he pay Gulfstream Park $4,500.00 in restitution within 18 months. At hearing, Mr. Havey admitted he issued a voucher ticket without receiving cash or cash equivalent in return. He also testified that he pled no contest with the understanding that if he paid $4,500.00 restitution to Gulfstream Park, the charges would be "disposed of," and his record would be clear. Clear and convincing evidence shows that on April 27, 2014, Mr. Havey issued a voucher ticket without receiving cash or cash equivalent in return; that he was ejected from Gulfstream Park on May 2, 2014; and that he pled nolo contendere to grand theft in the third degree on August 21, 2014, with adjudication withheld. Mr. Havey testified that he has been involved in pari- mutuel wagering in various parks, in dog racing, and Jai Alai for 40 years. He stated that the incident was "out of his character," that it was drug and alcohol related, and that he was not thinking clearly. He testified that he could barely remember what had happened on that "dark day" in his life. He said that he sought treatment and is now on the way to full recovery. Mr. Havey expressed remorse for his actions. Mr. Havey testified that he is now working part time at Mardi Gras Casino in Hallandale. He has performed well and has not been in any trouble there. He noted, however, that he is only making $10.00 per hour, rather than the $25.00 per hour he was making at Gulfstream Park. He lamented that it is extremely difficult to "keep a roof over your head" on only $250.00 a week and that he needed to work for a few more years. He stated that his wife should shortly be receiving money for a disability claim and that when she did so, he would pay Gulfstream Park full restitution. He testified that he hoped that the president of Gulfstream would then let him return. No evidence of prior discipline was introduced.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, enter a final order: (1) finding that Mr. Patrick M. Havey was in violation of Florida Administrative Code Rule 61D-7.020(5)(b), was ejected from a pari-mutuel facility, and had adjudication withheld on a felony involving larceny; and (2) revoking his pari-mutuel occupational license. DONE AND ENTERED this 17th day of May, 2016, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 17th day of May, 2016.
