The Issue Whether Respondent has committed an unlawful employment practice in violation of Chapter 760, Florida Statutes, and if so, what remedy should be ordered?
Findings Of Fact Bonita Sneiderman, a/k/a Bonita Mattingly (Ms. Mattingly), is a Caucasian female born March 17, 1953. At the time of the events complained about in this proceeding, Ms. Mattingly was 53 years old. Ms. Mattingly was then known as Ms. Sneiderman and was single. Ms. Mattingly married and changed her name shortly before the hearing in this case. Dillards, Inc., is a corporation that operates a chain of department stores, referred to as Dillards. In many of the Dillards stores, there are styling salons. The Dillards department store at the Orange Park Mall in Orange Park, Florida is referred to as Store #232. During the time period relevant to this case, Susan Konstantatos was the Salon Manager of the salon at Store #232. On July 26, 2005, Ms. Konstantatos attended a manager's meeting, in which she received and discussed new policies for the salons. One such policy dealt with the schedules for salon employees and stated that all new hires would work five-day, full-time schedules. This policy, however, did not necessarily apply to employees already employed at the salons. For example, employees that worked in the Iveys salon before Dillards took over what used to be the Iveys store were considered to be "grandfathered in." Dillards honored whatever scheduling terms the employees had negotiated when taking their positions with Iveys. George Craywick, Cynthia Anderson and Marie Cox were three such salon employees. In September 2005, Ms. Mattingly applied for and received a position as a hair stylist in Dillards Store #232. Her application for employment with the store indicates that she applied for a full-time position. The application also indicates that she was hired for a full-time position. On September 21, 2005, Petitioner attended a new employee orientation session and signed the new employee orientation sheet, acknowledging that she had received orientation on Respondent's Associate Work Rules and Attendance Policy. Petitioner also signed an Associate Acknowledgment Form indicating that she received and understood Respondent's Associate Work Rules and General Policies. The Associate Work Rules and General Policies for Dillards reiterated the importance of attendance and provided notice that a "no show" would not be tolerated and would result in termination of employment. Among the stylists' job duties was an activity called "instant eventing." Instant eventing was an activity designed to generate interest in using the salon's services. Stylists could choose the type of instant eventing they would perform, such as handing out business cards, setting up a paraffin wax table and offering demonstrations, or setting up a color table with hair color swatches. Petitioner's chosen method of instant eventing involved setting up the paraffin wax demonstration. Instant eventing not only created interest in the salon, but hopefully helped new stylists to establish a following for their services. Stylists were expected to participate in instant eventing when they had no appointments. As a consequence, the more customers a stylist had, the less time he or she had to devote to instant eventing and the less stylists were expected to participate in the activity. Petitioner complains that George Craywick was not required to instant event and claims that she never saw him participate in any instant eventing activity. Mr. Craywick had more customers than any other stylist working at the Dillards salon. As a result of the number of repeat customers he served, he did not have the need for or the opportunity to engage in the same amount of instant eventing that Petitioner had. There is evidence that Mr. Craywick participated in a color table as an instant event, but it is unclear whether his participation in this activity was during the time that Petitioner was employed. Petitioner admitted that while she never saw Mr. Craywick participate in instant eventing, she had no knowledge as to whether he participated at times when she was not working with him. During May 2006, all of the salon's stylists at Store #232 were scheduled to work five days per week and one Sunday per month. When an employee worked on Sunday, Ms. Konstantatos attempted to schedule another day off for the employee during that week. Often the day off would be Monday, but the coverage needs of the salon would control. Mr. Craywick often worked on his scheduled days off at Ms. Konstantatos' request to ensure overage for the salon. Others sometimes did the same. Petitioner was scheduled to work Sunday, May 7, 2006. On or about May 1, 2006, Ms. Konstantatos checked the posted schedule and saw that Petitioner's name had been crossed off the schedule for Monday, May 8, 2006. Ms. Konstantatos had not removed Petitioner from the schedule and assumed that Petitioner had crossed her name off because she was working Sunday. Ms. Konstantatos needed Petitioner to work Monday, May 8, 2006, in order to ensure that the salon was adequately staffed. Petitioner had not worked the previous Monday. Ms. Konstantatos left Petitioner a note stating that Petitioner needed to work on Monday, May 8, 2006. After receiving the note, Petitioner called Ms. Konstantatos on Wednesday, May 3, 2006, and told her she could not work on Monday because she had made arrangements to go out of town that day. Petitioner's regular day off is Tuesday. Ms. Konstantatos advised that she needed Petitioner to work Monday to make sure that there was proper coverage for the salon, but that she could give Petitioner Wednesday off so that her days off would be consecutive. Petitioner insisted that she could not work on Monday, May 8, 2006. Ms. Konstantatos informed her that if she did not work on Monday, she would be considered to have abandoned her job and her employment would be terminated. Whether or not she worked on Monday, May 8, 2006, remained Petitioner's choice. Petitioner worked Thursday through Saturday, May 4-6, 2006. On Saturday evening, Petitioner packed up her belongings and left a note indicating that she had arranged for someone else to cover her shift on Sunday and would not be at work on Monday. She never returned to work because she considered herself to have been fired. On May 11, 2007, Respondent terminated Respondent for job abandonment. Between September 2005 and May 2006, Respondent terminated several other salon employees for job abandonment or excessive absenteeism. Those employees were both male and female, married and single. Their ages ranged from 21 to 35. After Petitioner's termination, Ms. Konstantatos hired Debra Doss as a stylist. At the time she was hired, Ms. Doss was a 49-year-old single female.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing Petitioner's complaint of discrimination. DONE AND ENTERED this 10th day of October, 2007, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 2007. COPIES FURNISHED: Bonita Y. Mattingly 2040 Wells Road, Apartment 2-E Orange Park, Florida 32073 Grant D. Petersen, Esquire Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 100 North Tampa Street, Suite 3600 Tampa, Florida 33602 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent is guilty of six counts of misconduct involving improper comments and improper touching of minor female students, as charged in the Administrative Complaint, dated October 16, 1989, in violation of Sections 231.28(1)(c) and (h), Florida Statutes, and Rule 6B-1.006, Florida Administrative Code.
Findings Of Fact The Respondent, Thomas Vacek, holds a Florida Educator's Certificate No. 548940 in the area of art education. At all times pertinent, Respondent was employed by the Osceola County school District as an art teacher at Gateway High School in Kissimmee, Florida. Respondent is a 1981 graduate of Kearney State College, Kearney, Nebraska, and taught art at a junior high school in Omaha, Nebraska, until 1984. Respondent taught for a semester at Osceola High school in the Fall of 1984, leaving there to work as the "Village Potter" at Walt Disney World. In the Fall of 1985, he returned to teaching accepting the art teacher position at Gateway High School. Respondent has taught art for four years at Gateway High where he has been highly evaluated for his ability to motivate his students and control1 his classroom. Respondent organized and sponsored the National Art Honor Society (art club) at Gateway. Art club students planned and ran various school dances and functions throughout the year and entered various art competitions in the area. The art club was very demanding of a student's time and commitment. This was particularly true for the art club officers. In addition, advanced art students working on portfolios were required to spend mornings and afternoons, outside normal school hours, working on various art projects and art club activities. Nevertheless, art club members were a very active group, and several students were inspired to seek careers in art. Respondent is 33 of age and has been married 13 years to Karen Vacek, a fellow art teacher. They have no children. Respondent is youthful looking, is fashion conscious and is a demonstrative person. Respondent regularly comments and compliments his students on their appearance, as well as, on their projects. Karen Vacek often participates in Gateway art club activities and regularly attends art club functions and field trips that occur outside normal school hours. For several years, Thomas and Karen Vacek have sponsored a trip to Europe each year, primarily for juniors and seniors, with an emphasis on European art. Count I During the 1985-1986 school year, Tiffany Bunce was 15 years old and a ninth grade student at Gateway High School. She was a member of the art club from the beginning of the school year until sometime in December 1985. Sometime in October, 1985 during an art club meeting with other members present, Respondent and Bunce were sitting next to each other on the desk in the art class room. Respondent leaned back on his arms for support and in the process the inside of the left thumb and forefinger touched her right hip. Neither party said anything but Bunce got up and moved to another part of the room. Also in October 1985, the art club put on a Halloween Dance at the community building in Kissimmee. The windows were covered in an effort to make the room dark to aid in creating the Halloween atmosphere, and the club members decorated the room. Respondent and his wife were present as sponsors and chaperons. Bunce and the rest of the club members walked through the haunted house. While doing so, someone patted Bunce on her back side in a effort to move her along. When they came to a large cardboard box, everyone had to get down on their hands and knees and crawl through it. The person behind Bunce came very close to her posterior while crawling through the box. This made her very uncomfortable. She believed that Respondent was the person responsible. At the time, Bunce was wearing a black leotard outfit with a cape and was dressed like a witch. It was routine for Respondent and his wife to drive by Bunce's home on the way to Gateway High School. Sometime in late November or early December 1985, while on their way to school, Respondent observed Bunce putting up Christmas lights on her parents home. Several days later at school, Bunce mentioned to Respondent that she and her boyfriend liked to drive around and look at Christmas lights. Respondent replied that she needed to come over and look at his Christmas lights. Sometime after Christmas 1985, Rick Howard, Bunce's boyfriend at the time, learned of the incidents referred to above. He believed that Respondent was the person that touched Bunce at the Halloween Dance in October as well as the touching incident in the classroom. He and another student angrily confronted Respondent in his classroom at school. Respondent sent both students to the principal's office. As a result of the incident with the two boys, Bunce was told to bring her mother to school the next day for a meeting. Present at the meeting was Bunce, her mother, Respondent, the principal, Ms. Davis, and an assistant principal. Bunce told her account of the events and Respondent replied. Bunce's mother indicated at the meeting that it was all a misunderstanding. Bunce apologized. No further action was taken or requested by any of the parties. Following the meeting, Bunce stopped participating in the art club and its activities. She avoided all contact with the Respondent for the remaining three and a half years she attended Gateway. However, whenever questioned by other students she would repeat her recollection of the incidents that occurred in 1985. Respondent never had any contact with Bunce off- campus, except at the Halloween Dance in October 1985. COUNT II Vivian Rojas is a 1989 graduate of Gateway High School. During her ninth, tenth and eleventh grade years, she took art classes taught by Respondent and was very active in the art club and was elected president for the 1987-1988 school year. She also traveled to Europe in Respondent's student tour group in 1987. In 1989, she accused Respondent of repeatedly snapping rubber bands at her posterior while she was attending art class during the 1987-1988 school year; and also, on two occasions during that year she alleged Respondent brushed her posterior with his hand accidently. These incidents were never reported to school officials or the Respondent, but only to PPC Investigator. During the 1987-1988 school year, Rojas was elected president of the art club and as such had numerous administrative responsibilities. During that year she took a part-time job after school. As a consequence, she regularly failed to attend art club meetings and to assist in art club projects. In early 1988, the other art club officers voted to remove her from office and also to dismiss her from the club. Rojas blamed Respondent personally for this. Subsequently, she frequently articulated her dislike for Respondent to other students, often referring to him by obscene names. Respondent did not hit Rojas with rubber bands or brush her posterior in an improper manner. COUNT III Beth Field, formerly known as Beth Yager, is a 1988 graduate of Gateway High School. She attended there in her tenth, eleventh and twelfth grades and took art classes there all three years. Respondent was her favorite teacher until the end of the Fall 1987 semester. She completed a ceramics class at that time, received an "A" in the course and did not register for courses taught by Respondent for the Spring 1988 semester. For all previous classes in art Field received an "A". During the Fall of 1987, Field became angry toward Respondent because she believedd Respondent was responsible for getting her friend Lisa Cripanuk in trouble, with a derogatory comment he made toward her boyfriend; and Respondent confronted Field and her friend, Wendy Borkavich, in the presence of a school guidance counselor, Tommi Cook, about some gossip they were circulating around the school. During her senior year, Respondent asked Field why she liked her boyfriend and questioned whether he was good for her. On a number of occasions, as he did with all his art students, Respondent moved close to Field, looked at the art work she was doing on her table, talked over her shoulder into her ear about it and on occasion placed his hand on her shoulder. Respondent did not touch or poke Field in an improper manner or make any improper comments to her. Respondent had no contact with Field outside the classroom except when he and his wife would patronize her parent's candy store where she worked. COUNT IV Wendy Borkavich is a 1988 graduate of Gateway High School. She attended there in her tenth, eleventh and twelfth grades. She took Ceramics I under Respondent in the Fall 1987 semester and Ceramics II, a two semester course, in the spring 1988 semester and completed the course in the Fall 1988 semester She received "A's" and "B's" for all her projects. Borkavich alleged that she was standing next to the desk in Respondent's office, doing some filing, when Respondent reached over and put his hand on her posterior. This incident was to have occurred sometime in the Fall of 1987. Subsequently, she alleged that during this same time period Respondent told her on one occasion, "I would like to get naked with you," and on another occasion, "I want to pour chocolate syrup all over you and lick it off." Respondent vigorously denied these allegations. During the Fall 1988 semester, Borkavich became angry with Respondent because she was affronted by an incident involving a student named Philip who became visibly upset in class when Respondent criticized a ceramics piece he was working on and Respondent confronted her and her friend, Beth Field, f/k/a Yager, in the presence of a school guidance counselor about the gossip they were circulating about Respondent around the school. Respondent did not improperly touch Borkavich in the school year 1987- 1988 or make improper comments to her. COUNT V Crystal Seymour was a tenth grade student at Gateway High School in the 1988-1989 school year. During that year, she took an art class taught by the Respondent and was an active member of the art club. Seymour is a friend and neighbor of Field. One day in art class, Seymour spilled paint on her shirt. She washed it off and then held her shirt over an air conditioning unit in the art classroom to dry it. The next class was scheduled to come into the classroom at the time that Respondent saw her, and he told her to go into his office and use the air conditioner in there. She did so and dried her shirt while facing the wall. Seymour was wearing a "half shirt"--a waist length shirt that is not tucked in. It is somewhat tight fitting and did not blow up like a balloon as she held the bottom of it away from her body in order to dry it. At one point, her shirt flipped up and she quickly grabbed it. A verbal exchange to took place between Seymour and Respo)dent while Seymour was standing next to the air conditioner and Respondent was in another part of his office. She asked for and received a late pass for her next class. Seymour was not affronted or apprehensive by anything Respondent said or did prior to or after the incident. She continued attending art class and art club after this incident. Respondent did not make improper comments to Seymour during the school year 1988-1989. COUNT VI Patricia Hickey is a 1990 graduate of Gateway High School, having attended there all four years of high school. Hickey took art classes in each of her four years at Gateway High and received a grade of "A" in each of them. Respondent was the teacher in each of those classes. In her freshman, sophomore and first semester of her junior year, Hickey got along quite well with Respondent and was constantly striving for his attention. She was by nature flirtatious to Respondent and other students. Through the Fall of 1988, Hickey brought Respondent gifts, including a stuffed animal and a ceramic mug with a stuffed bear inside. Hickey was an active member of the art club, joining in her sophomore year. Later in the school year, she was elected an officer in the club and as such had many responsibilities. However, in the Spring of 1988, for her own reasons, she quit both as an officer and a member of the club. In the Fall of 1988, she earnestly sought to be readmitted as a member of the art club and apologized for her prior inattention in the art club the previous year. She was elected to membership and was also elected. Secretary/Treasurer She took her responsibilities seriously and was selected art club student of the month for September and October 1988, for which she received a gift certificate at a local record store. The Respondent frequently commented on Hickey's appearance and told her that she brightened up the classroom. On one occasion, Respondent asked Hickey to come to his house to "house sit" in 1987 while he and his wife attended a special dance, explaining that he had suffered some vandalism at his home and was concerned that it might recur while he was away. Hickey declined. In October 1988, Respondent drove Hickey, at her request, to the art club Halloween dance. In November 1988, Hickey went on a class field trip to the Salvador Dali Museum in St. Petersburg where she actively engaged in conversation with Respondent and his wife. During the Fall of 1988, Hickey approached Respondent and advised him that she wanted to go on the student art tour of Europe, which Respondent sponsored, in the Spring of 1989. She requested that Respondent call her mother and seek her permission to allow Hickey to go. Respondent did so, but was unsuccessful in obtaining permission for heir to go. In the Fall of 1988, Hickey was frequently absent from school. Because of her duties as an art club officer, art student and art projects, it required extensive interaction between Respondent and Hickey. These interactions resulted in telephone contact between Respondent and Hickey personally and with persons in her household, often to check on the status of a special project. It was not unusual or extraordinary for Respondent to have extensive contact with students, especially officers in the art club. Hickey was a good art student and avidly worked on many extracurricular art projects. She entered thirteen art competitions, along with many other art club members, in her junior year. In December 1988, she met with a representative of the Art Institute of Fort Lauderdale about applying for admittance and a scholarship. They advised her to prepare a portfolio and recommendations. Hickey misled her parents somewhat about the extent of her artistic successes. She had actually received awards for participation only and did not win or place in any competition in which she participated. After several disappointments, she blamed Respondent for her failure to win competitions and suspected him of somehow rigging the scoring against her. Hickey also led her parents to believe that Respondent had thwarted her plans to attend art school after high school. Hickey failed to pick up her "pointillism" from the Osceola Center for the Arts, where it had been exhibited, or to make a new one. However, Hickey and her parents blamed Respondent for losing her "pointillism", thereby preventing Hickey from completing her portfolio and applying for the art scholarship. In late December 1988, Hickey complained to three teachers that she was having problems with Respondent. Each of them advised her to go to administration for assistance. She also advised her parents. Waiting until after the Christmas holidays, Mrs. Hickey arranged a meeting with Assistant Principal Nello Rogers in his office on January 5, 1989. Hickey, both of her parents and Mr. Rogers were present. Principal Dorothy Davis joined them. At the meeting, Hickey alleged that Respondent had begun making suggestive comments beginning in October 1988 and on one occasion tried to touch her hair. Some of the statements Respondent allegedly made included comments about her boyfriend and that she could have a man like him; complimented her appearance; asked her to babysit his house; told her he was not satisfied with his wife, but that Hickey could satisfy him; told her that he loved her and wanted to marry her; stated that he could get her "fixed" if she did get pregnant. At the suggestion of Davis, Hickey agreed to remain in Respondent's class if Davis would talk to Respondent. Hickey did resign from the art club. Subsequently, Davis interviewed Respondent who denied any misconduct. She then conferred with the Deputy Superintendent of Personnel, concluded that she could find no motive for Hickey to lie and issued a letter of reprimand to Respondent. No other action was taken by the school administration at that time. Several months later, Hickey made additional allegations that she was sitting at a taible in art class when Respondent walked by and put his hand on her thigh. She also alleged she was called into Respondent's office to count money for the art club, the door was closed, Respondent was sitting behind his desk, and he put his hand on the inside of her thigh and asked her what was the color her underwear. On another occasion she testified Respondent showed her a vibrator that he kept in his desk. Finally, on a third occasion, he grabbed her hand and put it between his legs, and then stood up and tried to kiss her. Respondent vehemently denied these allegations. Respondent did not improperly touch Hickey or make improper comments to her during the Fall 1988 school semester.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found not guilty of misconduct as alleged in Counts I through VI in the Administrative Complaint dated October 16, 1989, and that these charges be DISMISSED. DONE AND ENTERED this 21st day of August, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 1990. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings of Fact. Accepted in substance or in substantial part paragraphs 1, 2, 3, 4, 5, 6, 9, 10, 11, 12, 15, 16, 20, 21, 22, 28, 29, 32, 33, 34, 35, 36, 37, 38, 39, 41, 42, 47, 52, 57, 58, 59, 60, 61 Rejected as against the greater weight of the evidence: paragraphs 8, 10 (in part), 11 (in part), 13, 14, 17, 18, 19, 21 (in part), 23, 24, 25, 26 (in substance), 27, 30, 31, 32 (in part), 48, 49, 50, 51, 52 (in part), 53, 54, 55, 56. Respondent's Proposed Findings of Fact. Accepted in substance or in substantial part: paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 10, 11, 12, 13, 14, 15, 16, 17, 20, 22, 23, 24, 25, 26, 28, 38, 39, 42, 43, 45, 46, 47, 48, 57, 59, 60, 64, 72, 73, 74, 75, 76, 76, 84, 86, 89, 93, 31, 32, 33, 34, 35, 36, 37, 38 (in part), 40, 41, 42 (in part), 43 (in part), 44, 45 (in part), 46 (in part), 50, 51, 52, 53, 54, 55, 56, 58, 61, 62, 63, 65, 66, 67, 68, 69 70, 71, 77, 78 (in part), 79, 80, 81, 82, 83, 85, 87, 88, 90, 91, 92, 93 (in part), 96, 97 (in part), 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 94, 95, 97. Rejected as argument or irrelevant or as a restatement of the testimony: paragraphs 9, 18, 19, 20 (in part), 20 2#, 21, 27, 29, 30, 115, 116, 117, 11&, 119, 120, 121, 122. COPIES FURNISHED: J. David Holder, Esquire Suite 100 1408 North Piedmont Way Tallahassee, FL 32312 Thomas A. Vacek 1435 Dean B Street Kissimmee, FL 32744 Joseph Egan, Jr., Esquire Egan, Lev & Swica P.A. Post Office Box 2231 Orlando, FL 32802 Karen Barr Wilde, Exec. Dir. Education Practices Commission 301 Fla. Education Center 325 West Gaines Street Tallahassee, FL 32399-0400 Martin B. Schapp, Administrator Professional Practices Services 352 Fla. Education Center 325 West Gaines Street Tallahassee, FL 32399-0400
The Issue Whether the claimants herein are entitled to payment from the Construction Industries Recovery Fund and, if so, the amount of the payment to which each claimant is entitled. Whether the license of the Petitioner is subject to automatic suspension pursuant to Section 489.143(7), Florida Statutes (Supp. 1998).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Fund is established by Section 489.140, Florida Statutes, for the purpose of reimbursing those persons who meet the eligibility requirements set forth in Section 489.141, Florida Statutes. The Board is the entity responsible for reviewing applications for payment from the Fund and entering orders approving or disapproving the applications. Sections 489.140(1) and 489.143(1), Florida Statutes. Mr. Kiselius is a licensed residential pool/spa contractor, having been first issued such a license in 1984. Mr. Kiselius's license is currently on inactive status, but at the times material to this action, Mr. Kiselius's license was active. Pool Masters was a Florida corporation incorporated on August 10, 1995. Frederick H. Martin and Abraham Zafrani were the sole shareholders of the corporation, and Mr. Martin was the President and Secretary of the corporation, and Mr. Zafrani was the Vice-President and Treasurer. From on or about October 24, 1995, until November 14, 1997, Mr. Kiselius was the qualifying agent for Pool Masters. The record does not reflect the date on which Pool Masters was issued its certificate of authority allowing it to engage in contracting as a business organization, but it was assigned Qualified Business Organization License Number QB0002327 on or about November 6, 1996. Pool Masters filed for bankruptcy pursuant to Chapter 7 of the United States Bankruptcy Code on January 1, 1998, and the corporation was administratively dissolved on October 16, 1998. DOAH Case No. 99-1665: Santibanez and Pappas Eugene Santibanez and Alexander Pappas entered into a contract with Pool Masters for construction of a swimming pool. The contract was executed on or about March 25, 1997. The total price stated in the contract was $21,000.00; a change order was executed on November 4, 1997, for an additional price of $2,890.00. Pool Masters represented to Mr. Santibanez and Mr. Pappas that it was a licensed swimming pool contractor. Pool Masters began work on the pool on or about May 17, 1997. Mr. Santibanez and Mr. Pappas made payments to Pool Masters pursuant to the contract, and Pool Masters excavated the hole for the pool, put in the foundation, and poured the concrete. Pool Masters ceased work on the swimming pool in late November 1997, after the concrete was poured. A week later, Mr. Santibanez heard that Pool Masters had declared bankruptcy. At the time Pool Masters ceased work on the pool, Mr. Santibanez and Mr. Pappas had paid Pool Masters a total of $19,690.00 for work done pursuant to the contract and change order. Although Pool Masters represented to them that the payments would be used to pay subcontractors and materialmen, there were subcontractors and materialmen who were not paid. At least one lien was filed against Mr. Santibanez's and Mr. Pappas's property, and they paid the subcontractors and materialmen directly in order to get the liens released. On January 17, 1998, the United States Bankruptcy Court for the Southern District of Florida issued a Notice of Commencement of Case Under Chapter 7 of the Bankruptcy Code, showing that Pool Masters had filed for bankruptcy on January 7, 1998. On or about March 11, 1998, Mr. Santibanez and Mr. Pappas submitted a Construction Industries Recovery Fund Claim Form to the Board, naming Pool Masters as the contractor. In an order entered April 20, 1998, the bankruptcy court lifted the automatic stay to allow Mr. Santibanez and Mr. Pappas to file suit against Pool Masters. Mr. Santibanez and Mr. Pappas filed a complaint against Pool Masters in the Circuit Court for the Seventeenth Judicial Circuit in Broward County, Florida, seeking damages for breach of the contract for construction of the pool. Mr. Santibanez and Mr. Pappas alleged in the complaint that Pool Masters had failed to complete the work; failed to perform in a reasonable and timely manner and abandoned the project for more than 90 days which is a violation of F.S. 489.129(1)(k) [Section 489.129(1)(j)];[ 3/ ] falsely represented that monies paid to them were paid to materialmen and sub- contractors which resulted in financial harm to the Plaintiffs which is a violation of F.S. 489.129(1)(l) [Section 489.129(1)(k)];[ 4/ ] committed mismanagement and misconduct which caused Plaintiffs financial harm as of [sic] liens were recorded as against the Plaintiff's [sic] home in violation of F.S. 489.129(1)(h)(1) [Section 489.129(1)(g)1.];[ 5/ ] f [sic]. committed mismanagement and misconduct which caused Plaintiffs financial harm in that the percentage of completion is less than the percentage of the total contract price paid in violation of F.S. 489.129(1)(h)(2) [Section 489.129(1)(g)2.].[ 6/ ] Mr. Santibanez and Mr. Pappas further alleged in the complaint that the cost to complete the pool after construction was abandoned by Pool Masters was $17,975.50, and they included in the complaint an itemized list of expenditures to support their claim. The circuit court entered a Default Final Judgment on August 4, 1998, awarding Mr. Santibanez and Mr. Pappas $17,675.50, to be recovered from Pool Masters, plus interest at the statutory rate. In a letter from their attorney dated August 12, 1998, Mr. Santibanez and Mr. Pappas submitted to the Board additional documents to support their claim against the Construction Industries Recovery Fund, based on their Default Final Judgment against Pool Masters. The final report of the Trustee of Pool Masters' bankruptcy estate, dated December 1, 1999, indicated that Pool Masters had no funds remaining after disbursement for administrative expenses. Mr. Santibanez and Mr. Pappas did not receive any funds from the bankruptcy estate or any other source to satisfy the judgment against Pool Masters. Mr. Santibanez and Mr. Pappas satisfy the statutory criteria for eligibility for payment from the Fund in the amount of $17,675.50. DOAH Case No. 99-1666: Klaus and Lucrecia Mueller Klaus and Lucrecia Mueller entered into a contract with Pool Masters for construction of a swimming pool. The contract was executed on or about February 24, 1997. The total price stated in the contract was $16,400.00. Pool Masters represented to Mr. and Mrs. Mueller that it was a licensed swimming pool contractor. Pool Masters began work on the pool in Spring 1997, and Mr. and Mrs. Mueller made payments to Pool Masters pursuant to the contract. Pool Masters excavated the hole for the pool, installed the steel frame, poured gunnite at the shallow end of the pool, and installed the brick and tile around the pool. Pool Masters last worked on the swimming pool in late November 1997. At the time Pool Masters ceased work on the pool, Mr. and Mrs. Mueller had paid Pool Masters approximately $12,900.00 for work done pursuant to the contract. Although Pool Masters represented to them that the payments would be used to pay subcontractors and materialmen, there were subcontractors and materialmen who were not paid. Liens were filed against Mr. and Mrs. Mueller's property, and they paid the subcontractors and materialmen directly in order to get the liens released. On January 17, 1998, the United States Bankruptcy Court for the Southern District of Florida issued a Notice of Commencement of Case Under Chapter 7 of the Bankruptcy Code, showing that Pool Masters had filed for bankruptcy on January 7, 1998. On or about March 11, 1998, Mr. and Mrs. Mueller submitted a Construction Industries Recovery Fund Claim Form to the Board, naming Pool Masters as the contractor. In an order entered April 20, 1998, the bankruptcy court lifted the automatic stay to allow Mr. and Mrs. Mueller to file suit against Pool Masters. Mr. and Mrs. Mueller filed a complaint against Pool Masters in the Circuit Court for the Seventeenth Judicial Circuit in Broward County, Florida, seeking damages for breach of the contract for construction of the pool. Mr. and Mrs. Mueller alleged in the complaint that Pool Masters had failed to complete the work; failed to perform in a reasonable and timely manner and abandoned the project for more than 90 days which is a violation of F.S. 489.129(1)(k) [Section 489.129(1)(j)];[ 7/ ] falsely represented that monies paid to them were paid to materialmen and sub- contractors which resulted in financial harm to the Plaintiffs which is a violation of F.S. 489.129(1)(l) [Section 489.129(1)(k)];[ 8/ ] committed mismanagement and misconduct which caused Plaintiffs financial harm as of [sic] liens were recorded as against the Plaintiff's [sic] home in violation of F.S. 489.129(1)(h)(1) [Section 489.129(1)(g)1.];[ 9/ ] f [sic]. committed mismanagement and misconduct which caused Plaintiffs financial harm in that the percentage of completion is less than the percentage of the total contract price paid in violation of F.S. 489.129(1)(h)(2) [Section 489.129(1)(g)2.].[ 10/ ] Mr. and Mrs. Mueller further alleged in the complaint that the cost to complete the pool after construction was abandoned by Pool Masters was $13,299.51. The matter was presented to the circuit court, ex parte, upon Mr. and Mrs. Mueller's Motion for Default Final Judgment. The court entered a Default Final Judgment in June 1998, awarding Mr. and Mrs. Mueller $13,299.51, to be recovered from Pool Masters, plus interest at the statutory rate. In a letter from their attorney dated June 23, 1998, Mr. and Mrs. Mueller submitted to the Board additional documents to support their claim against the Construction Industries Recovery Fund, based on their Default Final Judgment against Pool Masters. The final report of the Trustee of Pool Masters' bankruptcy estate, dated December 1, 1999, indicated that Pool Masters had no funds remaining after disbursement for administrative expenses. Mr. and Mrs. Mueller did not receive any funds from the bankruptcy estate or any other source to satisfy their judgment against Pool Masters. Mr. and Mrs. Mueller satisfy the statutory criteria for eligibility for payment from the Fund in the amount of $13,299.51. DOAH Case No. 99-1667: Mario and Martha Alboniga Mario and Martha Alboniga entered into a contract with Pool Masters for construction of a swimming pool. The contract was executed on or about March 17, 1997. The total price stated in the contract was $24,000.00. Pool Masters represented to Mr. and Mrs. Alboniga that it was a licensed swimming pool contractor. Pool Masters began work on the pool on November 10, 1997, and Mr. and Mrs. Alboniga made payments to Pool Masters pursuant to the contract. Pool Masters excavated the hole for the pool and poured the concrete form of the pool. The last day Pool Masters worked on the swimming pool was November 19, 1997. Mr. and Mrs. Alboniga later heard that Pool Masters had declared bankruptcy. At the time Pool Masters ceased work on the pool, Mr. and Mrs. Alboniga had paid Pool Masters a total of $15,200.00 for work done pursuant to the contract. Although Pool Masters represented to them that the payments would be used to pay subcontractors and materialmen, there were subcontractors and materialmen who were not paid. Liens were filed against Mr. and Mrs. Alboniga’s property, and they paid the subcontractors and materialmen directly in order to get the liens released. On January 17, 1998, the United States Bankruptcy Court for the Southern District of Florida issued a Notice of Commencement of Case Under Chapter 7 of the Bankruptcy Code, showing that Pool Masters had filed for bankruptcy on January 7, 1998. On or about March 11, 1998, Mr. and Mrs. Alboniga submitted a Construction Industries Recovery Fund Claim Form to the Board, naming Pool Masters as the contractor. In an order entered April 20, 1998, the bankruptcy court lifted the automatic stay to allow Mr. and Mrs. Alboniga to file suit against Pool Masters. Mr. and Mrs. Alboniga filed a complaint against Pool Masters in the Circuit Court for the Seventeenth Judicial Circuit in Broward County, Florida, seeking damages for breach of the contract for construction of the pool. Mr. and Mrs. Alboniga alleged in the complaint that Pool Masters had failed to complete the work; failed to perform in a reasonable and timely manner and abandoned the project for more than 90 days which is a violation of F.S. 489.129(1)(k) [Section 489.129(1)(j)];[ 11/ ] falsely represented that monies paid to them were paid to materialmen and sub- contractors which resulted in financial harm to the Plaintiffs which is a violation of F.S. 489.129(1)(l) [Section 489.129(1)(k)];[ 12/ ] committed mismanagement and misconduct which caused Plaintiffs financial harm as of [sic] liens were recorded as against the Plaintiff's [sic] home in violation of F.S. 489.129(1)(h)(1) [Section 489.129(1)(g)1.];[ 13/ ] f [sic]. committed mismanagement and misconduct which caused Plaintiffs financial harm in that the percentage of completion is less than the percentage of the total contract price paid in violation of F.S. 489.129(1)(h)(2) [Section 489.129(1)(g)2.].[ 14/ ] Mr. and Mrs. Alboniga further alleged in the complaint that the cost to complete the pool after construction was abandoned by Pool Masters was $10,541.77. The circuit court entered a Final Judgment "pursuant to stipulation" on August 4, 1998, awarding Mr. and Mrs. Alboniga $10,541.77, to be recovered from Pool Masters, plus interest at the statutory rate. In a letter from their attorney dated August 12, 1998, Mr. and Mrs. Alboniga submitted to the Board additional documents to support their claim against the Construction Industries Recovery Fund, based on their Final Judgment against Pool Masters. The final report of the Trustee of Pool Masters' bankruptcy estate, dated December 1, 1999, indicated that Pool Masters had no funds remaining after disbursement for administrative expenses. Mr. and Mrs. Alboniga did not receive any funds from the bankruptcy estate or any other source to satisfy their judgment against Pool Masters. Mr. and Mrs. Alboniga satisfy the statutory criteria for eligibility for payment from the Fund in the amount of $10,541.77. DOAH Case No. 99-1668: Salvator Militello and Sharon Sidorski Salvator Militello and Sharon Sidorski entered into a contract with Pool Masters for construction of a swimming pool. The contract was executed on or about April 6, 1997. The total price stated in the contract was $24,295.00. Pool Masters represented to Mr. Militello and Ms. Sidorski that it was a licensed swimming pool contractor. Mr. Militello and Ms. Sidorski made payments to Pool Masters pursuant to the contract. Pool Masters excavated the hole for the pool and spa, installed basic plumbing, and poured the concrete for the pool. Pool Masters last worked on the swimming pool in October 1997. At the time Pool Masters ceased work on the pool, Mr. Militello and Ms. Sidorski had paid Pool Masters $19,389.00 for work done pursuant to the contract. Although Pool Masters represented to them that the payments would be used to pay subcontractors and materialmen, there were subcontractors and materialmen who were not paid. Liens were filed against Mr. Militello's and Ms. Sidorski's property, and they paid the subcontractors and materialmen directly in order to get the liens released. On January 17, 1998, the United States Bankruptcy Court for the Southern District of Florida issued a Notice of Commencement of Case Under Chapter 7 of the Bankruptcy Code, showing that Pool Masters had filed for bankruptcy on January 7, 1998. On or about March 11, 1998, Mr. Militello and Ms. Sidorski submitted a Construction Industries Recovery Fund Claim Form to the Board, naming Pool Masters as the contractor. In an order entered April 20, 1998, the bankruptcy court lifted the automatic stay to allow Mr. Militello and Ms. Sidorski to file suit against Pool Masters. Mr. Militello and Ms. Sidorski filed a complaint against Pool Masters in the Circuit Court for the Seventeenth Judicial Circuit in Broward County, Florida, seeking damages for breach of the contract for construction of the pool. Mr. Militello and Ms. Sidorski alleged in the complaint that Pool Masters had failed to complete the work; failed to perform in a reasonable and timely manner and abandoned the project for more than 90 days which is a violation of F.S. 489.129(1)(k) [Section 489.129(1)(j)];[ 15/ ] falsely represented that monies paid to them were paid to materialmen and sub- contractors which resulted in financial harm to the Plaintiffs which is a violation of F.S. 489.129(1)(l) [Section 489.129(1)(k)];[ 16/ ] committed mismanagement and misconduct which caused Plaintiffs financial harm as of [sic] liens were recorded as against the Plaintiff's [sic] home in violation of F.S. 489.129(1)(h)(1) [Section 489.129(1)(g)1.];[ 17/ ] f [sic]. committed mismanagement and misconduct which caused Plaintiffs financial harm in that the percentage of completion is less than the percentage of the total contract price paid in violation of F.S. 489.129(1)(h)(2) [Section 489.129(1)(g)2.].[ 18/ ] Mr. Militello and Ms. Sidorski further alleged in the complaint that the cost to complete the pool after construction was abandoned by Pool Masters was $13,544.00 and that they paid $1,641.68 to satisfy liens and unpaid subcontractors and materialmen, for total damages of $15,185.68. The circuit court entered a Final Judgment "pursuant to stipulation" on August 4, 1998, awarding Mr. Militello and Ms. Sidorski $15,185.68, to be recovered from Pool Masters, plus interest at the statutory rate. In a letter from their attorney dated August 12, 1998, Mr. Militello and Ms. Sidorski submitted to the Board additional documents to support their claim against the Construction Industries Recovery Fund, based on their Final Judgment against Pool Masters. The final report of the Trustee of Pool Masters' bankruptcy estate, dated December 1, 1999, indicated that Pool Masters had no funds remaining after disbursement for administrative expenses. Mr. Militello and Ms. Sidorski did not receive any funds from the bankruptcy estate or any other source to satisfy their judgment against Pool Masters. Mr. Militello and Ms. Sidorski satisfy the statutory criteria for eligibility for payment from the Fund in the amount of $15,185.68. DOAH Case No. 00-0024: Jack and Paula Tieger Jack and Paula Tieger entered into a contract with Pool Masters for construction of a swimming pool. The contract was executed on or about December 17, 1995. The total price stated in the contract was $28,200.00. Pursuant to the contract, Pool Masters built a pool and screen enclosure, and Mr. and Mrs. Tieger paid Pool Masters the price specified in the contract. Mr. and Mrs. Tieger were not, however, satisfied with the work done by Pool Masters, and, in or around 1997, they filed a complaint for breach of contract against Pool Masters in the Circuit Court of the Seventeenth Judicial Circuit, in Broward County, Florida. In the complaint, Mr. and Mrs. Tieger alleged that Pool Masters had breached the contract: By failing to adequately explain the technical terms used in the Agreement to the TIEGERS; By failing to install a vacuum line with valve as specified in the Agreement; By failing to install anti-corrosive handrails in the swimming pool; By failing to properly install and/or provide a properly functioning waterfall as specified in the Agreement; By failing to properly fill the area behind the waterfall; By unilaterally, and or the TIEGERS' [sic] objection, placing a tile with the "Pool Masters" logo on the steps heading into the pool: By failing to re-route the TIEGERS' [sic] sprinkler system in a timely manner; By failing to advise the TIEGERS that they were going to need to pay for and install a separate circuit breaker box as part of the installation of the swimming pool; and By failing to install the second screen door as specified in the Agreement. Mr. and Mrs. Tieger did not identify the amount of damages they allegedly suffered as a result of Pool Masters's alleged breach of contract. Mr. and Mrs. Tieger were not aware that Pool Masters had declared bankruptcy until January 1998, when Mrs. Tieger went to Pool Masters' office and found the notice on the door. A non-jury trial was held before the circuit court on March 5, 1998; Pool Masters did not attend the trial. In a Final Judgment entered on March 25, 1998, the court awarded Mr. and Mrs. Tieger $4,200 as compensatory damages to be recovered from Pool Masters. In a Proof of Claim dated May 13, 1998, and filed with the United States Bankruptcy Court of the Southern District of Florida, Mr. and Mrs. Tieger submitted an unsecured claim against Pool Masters' bankruptcy estate in the amount of $7,300.00, which represented the compensatory damages awarded in the final judgment, together with attorney's fees and costs. Mr. and Mrs. Tieger have not collected any portion of their judgment against Pool Masters. Mr. and Mrs. Tieger submitted to the Board a Construction Industries Recovery Fund Claim Form dated December 5, 1998, and the Board awarded Mr. and Mrs. Tieger $800.00, representing the cost of the vacuum line with valve and the second screen door which Pool Masters had not installed. Mr. and Mrs. Tieger do not satisfy the statutory criteria for eligibility for payment from the Fund. Mr. and Mrs. Tieger failed to establish that they filed their claim with the Board within two years of the date they discovered the alleged deficiencies in the pool, and they failed to establish that the final judgment against Pool Masters was based on a violation of Section 489.129(1)(g), (j), or (k), Florida Statutes (Supp. 1998). The evidence presented herein is not sufficient to establish that Mr. Kiselius is the licensee against whom the claimants obtained final judgments.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, 25/ it is RECOMMENDED that the Construction Industry Licensing Board: Enter final orders as follows: In DOAH Case No. 99-1665, finding Eugene Santibanez and Alexander Pappas eligible for payment from the Fund in the amount of $17,675.00, in satisfaction of a final judgment against Pool Masters, Inc.; In DOAH Case No. 99-1666, finding Klaus and Lucrecia Mueller eligible for payment from the Fund in the amount of $13,299.51, in satisfaction of a final judgment against Pool Masters, Inc.; In DOAH Case No. 99-1667, finding Mario and Martha Alboniga eligible for payment from the Fund in the amount of $10,541.77, in satisfaction of a final judgment against Pool Masters, Inc.; In DOAH Case No. 99-1668, finding Salvator Militello and Sharon Sidorski eligible for payment from the Fund in the amount of $15,185.68, in satisfaction of a final judgment against Pool Masters, Inc.; and In DOAH Case No. 00-0024, dismissing the claim of Jack and Linda Tieger for payment from the Fund. Determine that Christopher P. Kiselius is not the "licensee" whose license is subject to automatic suspension pursuant to Section 489.143(7), Florida Statutes (Supp. 1998), as a result of payments to the claimants in DOAH Case Nos. 99- 1665, 99-1666, 99-1667, and 99-1668. DONE AND ENTERED this 31st day of August, 2000, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 2000.
The Issue The issue for consideration in this case is whether Respondent’s alcoholic beverage license Number 39-01036, Series 4-COP, for the premises located in the 900 block of Franklin Street in Tampa, Florida, should be disciplined in some manner because of the matters alleged in the Notice to Show Cause entered herein.
Findings Of Fact At all times pertinent to the issues herein the Petitioner, DABT, was the state agency responsible for the issue of alcoholic beverages licenses in Florida and the regulation of the sale and consumption of alcoholic beverages in this state. Respondent, Bay Entertainment, Inc., now known as Freedom Rings Entertainment, Inc., operated a night club, Solar, in the 900 block of Franklin Street in Tampa. There is some disagreement as to whether the facility was located at 911 Franklin Street or at 913 Franklin Street. The confusion is irrelevant to the issues for consideration since there is no indication a different club was operating at the second location, and there is no question regarding the identity or the licensure of the facility where the indicated misconduct was alleged to have taken place. The operation was licensed by the Petitioner under alcoholic beverage license number 39-01036, 4-COP. DABT S/A Elaine Paven first went to Solar on December 13, 1996 at approximately 11:55 p.m.. At the time, she was accompanied by S/A Murray and a confidential source. After paying the cover charge to the doorman, the party was directed to the second floor of the facility where the bar was located. From that location, they could look down to the first floor where another bar and the dance area were located. When Paven and her party went to the bar, she observed Tiffany Middlesexx, a transvestite and known narcotics user, sitting on the bar against the wall. Several male dancers, either wearing only a G-string or nude with a towel over their privates were performing. Paven and Murray went up to Middlesexx and asked to buy cocaine. Middlesexx asked them how much they wanted, and Paven gave the confidential source twenty dollars to buy some. The source gave the money to Middlesexx who, in return, gave the source a white powder which, in turn, was delivered by the source to Paven. All during this transaction, employees of the facility were routinely working in the immediate area. Other patrons appeared to be buying from Middlesexx as well, though Paven drew this conclusion only from her observation of individuals who approached Middlesexx as her source did. Paven has no direct knowledge of whether cocaine or any other proscribed drug was transferred from Middlesexx to the other patrons or whether money was transferred. In addition, however, as Paven and her party were leaving the club that night, she observed another known cocaine dealer, not further identified, enter the club. Paven next went to Solar on December 21, 1996. Tiffany Middlesexx was again sitting on the bar as before. Paven approached Middlesexx and asked for cocaine. In response, Middlesexx asked how much Paven wanted, and Paven transferred twenty dollars to Middlesexx. With that, Middlesexx took a packet of white powder out of the purse he/she was carrying and gave it to Paven. Paven saw several other similar transactions by Middlesexx that evening, during which Solar employees were present and could have observed them, and at no time did any club employee attempt to interfere with or prevent the purchases. That same evening, up on the second floor of the bar, Paven overheard a conversation between two other patrons who were discussing obtaining Ecstasy, also a proscribed narcotic. In addition, she observed patrons exiting the rest rooms snuffing and rubbing their noses which, to her, based on her training and experience, was indicative of drug use. Paven next went to the club on the evening of January 10, 1997, arriving just before 10:00 p.m. and staying until after midnight. During that period, however, she left for a short while and returned. Sometime that evening, during a conversation with Dennis, a bartender on the second floor, he told her that the club took a liberal and permissive approach toward drugs, and that the owner usually stayed on the first floor. Paven also went to the first floor that evening and, while in the restroom, notwithstanding signs posted prohibiting more than one person in a stall at a time, observed patrons go into the stalls in groups, and heard snuffing sounds coming from them which to her, under the circumstances, indicated the use of narcotics, usually cocaine. She did not observe and use however, nor did she confiscate for testing any of the substances involved. On her return to the second floor that evening, Ms. Paven met with another patron, identified as Darren, who spoke in general of the use of narcotics in clubs. She recalls no specific reference to the use of narcotics at Solar, however. Before she left the club that night, in another conversation with Dennis, the bartender, she mentioned she was going to get “party favors,” and he used the word, “stuff.” Both, in the vernacular of the drug milieu, relate to narcotics. That same night, though early in the morning of January 11, 1997, Paven additionally saw Tempo, also a transvestite male and a known cocaine dealer, on the second floor of the club. Another transvestite male, Gilda, was also there, at the bar, with Tony, who identified himself as an off-duty employee there, at the time, as a patron. Paven approached Tempo and offered him/her $20.00 for which, in return, she received a plastic bag of a substance later identified as cocaine. Dennis, the bartender, was standing behind the bar right there and, in Paven’s opinion, could not have failed to observe the transaction occur. Tony was, in fact, not an employee. He had been employed at the club as a bar back before the club opened for business but was injured within the first few minutes on the job and never returned to work. Agent Paven again went to the club at 10:45 p.m. on January 17, 1997, but left shortly after arriving and did not return until early on the morning of January 18, 1997. At that time Dennis was on duty as bartender and a group of individuals, known to Paven as drug dealers, including Tempo, Tony, and Brittany, were also present. At approximately 1:15 a.m. that morning, while up on the second floor, Paven was approached by Tony who told her he was leaving and offered to get her “something” before he left. Paven gave Tony $20.00, after which he went over to a group at the end of the bar and immediately came back with a bag of a powdered substance which he gave to her. He then asked her to save him a “bump,” which, in the drug culture, means a hit of cocaine. That same evening, Paven observed three male dancers performing down on the first floor. Two of these were nude. As she watched, she saw patrons approach the dancers and give them tips to be allowed to fondle their private parts. Dennis came downstairs while this was going on, jumped on the bar, and removed his shirt, and lowered his pants to reveal his buttocks and, presumably, his genitals, to the patrons. Dennis admits to climbing on the bar, removing his shirt, and displaying his buttocks, but denies revealing his genitals. Paven also observed some of the dancers leave the stage and approach patrons who would then touch the dancers’ genitals. Galiano, a known cocaine user, was there that night, going back and forth from Tempo to Brittany, and into a back room reserved for employees. Paven observed her at the time, snuffing and rubbing her nose, though she did not observe any direct use of any substance. Later that evening, in a discussion with Paven at the bar on the second floor, Galiano denied having any cocaine to sell but offered Paven a line of cocaine if she would come downstairs to the restroom. When Paven went downstairs with Galiano, she was given the line of substance, thereafter pretending to use it but in reality not doing so. While on the first floor, Paven asked Tempo if she had any coke. In response, Tampo said she was out, but had an order for more in and was waiting for delivery. On January 25, 1997, Paven was in Solar looking for Tiffany Middlesexx. Tony approached her and asked if she wanted any cocaine. Paven said she did and gave Tony $20.00. Approximately five minutes later, Tony came back and gave her a bag with a substance in it which was purported to be cocaine. He then suggested he and Paven go somewhere for a “bump.” Taking Paven upstairs, Tony then poured some of the substance out onto the back of her hand for her to snort it. He did the same for himself and actually ingested it, while Paven dumped hers out. That same night Tony told Paven not to go to a second bar mentioned because a raid was planned. Also the same night, Tiffany Middlesexx and Tempo were present at the club, as was the club’s chief of security, Tim, who was known to Paven as a drug dealer. Paven also observed nudity by the dancers, and sexual fondling of the male dancers for tips by some patrons, and she heard discussions between patrons about getting cocaine from elsewhere, but she did not observe any transfers take place. Agent Paven returned to the club on January 28, 1997, a slow night for business. She observed one of the male dancers dancing on top of the first floor bar and witnessed several instances where the dancer squatted in front of a patron who, it seemed to Paven, committed fallatio on him in front of other patrons. This was repeated with several patrons while Paven, as well as Agent Murray, who was also present, watched. Paven brought this to the bartender’s attention, but the bartender denied seeing anything untoward. On February 1, 1997, at approximately 1:34 a.m., Paven again entered Solar and proceeded to the first floor bar area. Tiffany Middlesexx was again sitting in his/her regular spot on top of the bar, and Paven asked if he/she had any cocaine for sale. In response, Tiffany Middlesexx offered Paven three bags for $50.00 or single bags for $20.00 each. When Paven handed over $50.00, Middlesexx opened up his/her purse and took out three bags of cocaine which was transferred to Paven. All this time, another patron was waiting and made a purchase when Paven was through. Paven also observed several other identical transactions take place with other patrons that same evening though she cannot say with certainty what substance was passed. Since the procedure was the same, it is likely the substance transferred to the other patrons was also cocaine, and it is so found. Middlesexx subsequently left the premises while Paven was still there. On February 8, 1997, Paven went back to Solar, arriving at 12:45 a.m. She went to the first floor and again observed Tiffany Middlesexx sitting in the regular spot on the bar. Paven approached Middlesexx and asked for cocaine and subsequently gave Middlesexx two $20.00 bills, in return for which she received two bags of cocaine. At this time, other employees of the Respondent were present behind the bar, and in Paven’s opinion heard and observed the transaction. Paven also watched a white male buy four bags of apparent cocaine from Middlesexx from no more than five feet from where the transaction took place. After making his purchase, that same white male showed the bags he had purchased to his friends and the group departed. Later that evening, on the second floor of the club, Paven purchased one zip-lock bag of what appeared to be cocaine from Tempo because Tempo did not want to deal on the first floor. Paven paid Tempo $20.00 for it. At no time during any of the above mentioned visits did any of the Respondent’s employees or management try to stop the purchases. The only warnings Paven heard were to watch out for the police. Paven claims she didn’t see any signs prohibiting drug activity in the club, nor did she observe club employees prohibit sales to other patrons. On any given night she was there, Paven would observe six or seven individuals on the premises who were known to her, from prior buys or sales, some of which took place within Solar, to be drug dealers. The parties stipulated that the substances purchased by Paven from individuals inside the club was cocaine. While Paven denied seeing any signs prohibiting the use or sale of drugs in the club other than in the restroom, she admits there were some signs at the entry, but even then, she cannot be sure of what the signs there said. Another sign in the bathroom prohibited more than one person in a stall at the same time. There is no doubt that the noise level in the club when the music was playing and the club was full was considerable. Club employees contend that it would have been impossible for them to hear any of the conversations between Paven and any of the individuals from whom she bought drugs because of it, because they even had to bend over the bar to hear patrons’ orders for drinks. However, Paven and Murray both insist they were able to hear and contend the bartenders, while possibly not able to hear the exact conversations taking place during the buys, could not have failed to observe what was going on. The noise certainly did not dissuade anyone from buying or selling. In addition, Paven observed security personnel hired by management passing through the club from time to time. These individuals would stop and talk to patrons and would attempt to prevent patrons from jointly occupying the restroom stalls. This served to halt drug sales while the security officer was present, but the activity resumed when the officers left. Most of the drug transactions which took place between Agent Paven and Middlesexx or Tempo were witnessed from three to four feet away by Agent Murray as well. Murray notes that whenever Paven tried to make a buy from Middlesexx, there was always someone in line before them, and Murray also observed what appeared to be drug purchases by other patrons from Middlesexx. Usually a bartender was in the immediate area of the purchase transaction. Murray cites, by way of exception, the incident on January 25, 1997, when Tony took Agent Paven to another area of the bar. Though Murray observed anywhere from six to seven drug dealers on the premises, known to her as such from prior investigations, at no time did she ever see an employee of the club, or a member of management, try to interfere with a transaction, nor did anyone ever state that such activity was illegal. It seemed as though the only concern expressed by anyone employed by the club related to the potential for the use of undercover police. Murray also observed male dancers at the club engaged in conduct which, it appeared to her, was salacious and obscene. It appeared to her than some patrons committed actual acts of fellatio on the dancers who would squat on the bar or dance floor in front of them. On at least one occasion, Murray changed her location at the bar so as to be able better to see what was going on. In her opinion, there was no doubt as to the nature of the activity. Notwithstanding the allegations of both Paven and Murray regarding the obscene activity, Diane M. Smith, the owner of the dance group which performs at Solar, categorically denies that any such activity took place involving her employees. Normally, she claims, she was present whenever her dancers performed. At any given time, she had three dancers active. One was on the center podium, one on one of the bars, and one was on break. Her dancers would wear jeans for the first set and shorts, or possibly a T-back, for the second set. She adamantly asserts there was no nude dancing or lewd or lascivious conduct permitted. She would not permit it, and management knew that. Her dancers performed from approximately 11:30 p.m., until 2:00 a.m., and at all times, there were two chaperones present. She was also often present before and after the show, and she never saw any conduct as described by Paven or Murray. This relates to drug activity as well as activity regarding the dancers. In fact, she claims, management made it very clear that drug activity was not permitted in the club. Jeffery Winemiller, who has a college degree and who attended medical school for two years before personal commitments brought him back to the Tampa area from California, was working at Solar as a bartender the night the Emergency Order of Suspension was entered. Mr. Winemiller has attended Responsible Vender training several times and is aware of how to check among patrons for drug use and abuse. He usually worked on the first floor at the rectangular bar on Friday and Saturday nights, and occasionally on other nights as well. Mr. Winemiller contends that while he worked at Solar, he never witnessed any drug activities or any oral sex being conducted on the premises. He claims there were signs at the front door and in the rest rooms warning against the use of drugs in addition to signs prohibiting entrance to persons under age and prohibiting more than one person in a restroom stall at any one time. Neither the men’s nor the women’s restroom had entry doors. Only the women’s restroom had doors on the stalls. Tiffany Middlesexx is a known drag queen - a performer in his/her 50’s, who is very well known in the transvestite community. Whenever he/she comes into Solar, he/she would have an entourage of from three to six people with him/her. Middlesexx would usually position himself/herself on the L-shaped bar on the first floor across from the dance podium on a space which was cleared for him/her. According to Winemiller, normally a bartender would not be working in that immediate location. As Winemiller recalls, Friday nights are rather quiet until after midnight, when up to seven hundred people might be in the club. During the period from midnight to club closing, a bartender might serve several hundred drinks and would be too busy to note what any particular patron was doing. In addition, as he described it, the noise level was high, and he would not be able to overhear any patron conversations. Specifically, Winemiller contends, he did not see Middlesexx or any of the other dealers described by Paven and Murray sell drugs in the bar, nor did anyone ever tell him anyone was selling drugs. As told to him, ownership policy on drugs was no tolerance. Any drug activity was to be reported to management or to security. By the same token, no lewd sexual activity was permitted either. Mr. Winemille claims he does not know Tiffany Middlesexx, Tony, or Tempo to be drug dealers. He claims not to use drugs himself and professes not to know who does. As a result of this raid and the closing of the club, he is now out of a job. In addition, his loan of $35,000 to Mr. Engerer to start up the operation is in jeopardy, though Winemiller contends he is not concerned about this. Donald Bentz, an employee of the Tampa AIDS Network has been in Solar on several occasions as a part of his work. He knows Mr. Engerer well and was a regular customer from May 1996, when the club opened, until it closed. During that period, he went there at least once a week and claims he never saw drug activity or lewd acts being carried on there. Mr. Bentz goes to several gay-oriented clubs as a part of his job and has put on fund raising functions with some of them. Because of his organization’s non-profit status and the thrust of its activities, it is careful with whom it operates and carefully checks out any operation before becoming involved with it. Mr. Bentz knows Tiffany Middlesexx as a transgendered performer who is popular in the gay/transgender community. On several of the occasions when he has been at Solar, Mr. Bents has seen signs permitting only one person at a time in the rest rooms and recalls seeing a sign stipulating no drugs allowed at the entrance. In addition, he has seen security personnel routinely checking for drugs. Though Bentz has heard rumors that Middlesexx deals drugs, he claims never to have seen it at Solar nor did he ever see anyone do or talk about illicit drugs on the premises. In his opinion, both Mr. Engerer and Mr. Winemiller considered drugs to be out of bounds at Solar. They wanted a long-term, drug-free relationship with the gay community. In Bentz’ opinion, if either member of management heard of drugs or lewdness going on at Solar, it would have been stopped. Dennis Fleming worked part time as a bartender at Solar between August 1996 and February 1997, usually on Friday and Saturday nights, and on a couple of evenings during the week. He, too, took Responsible Vendor training. As he recalls it, the noise level in Solar when it is crowded is very high, which makes it impossible to overhear patrons’ conversations. He knows Tiffany Middlesexx, who usually sat not far from where he worked the bar. During all the time Fleming worked at Solar, he claims, he never saw Middlesexx sell drugs to anyone inside or near the club. Though he knows Tony from that individual’s brief employment at the club and his subsequent patronage, he doesn’t know if Tony deals drugs The same is true for Tim. Fleming claims not to know Tempo. His periodic conversations with management reinforced the explicit no-drug policy which is expressed to the public by the signs posted about the building. Though he admits to having danced at the club, removed his shirt, and unbuttoned his pants, he denies having ever removed his pants or lowered or removed his underpants. Steven Stamberger was employed at night as a security officer at Solar from July 1996 to its closing. His post was at the entrance door where he checked identification for age and searched back packs of patrons to look for contraband. According to Mr. Stamberger, while doing this he never discovered any drugs being carried by any patrons. Mr. Stamberger also contends there were signs posted at the front entrance which indicated that drugs were not allowed on the premises. There were also signs in the bathrooms to that effect. From time to time each night he would walk through the club on the way to the bathrooms, and he claims never to have seen any drug activity during any of those walk-throughs. He also admits to knowing Tiffany Middlesexx and Tempo but denied knowing whether either sold drugs. He claims no one discussed it with him, but he knows that drugs are not tolerated on the premises. Mr. Stamberger recalls having seen an act of oral sex being committed in the VIP room one time. When he saw it, he went over to the parties, interrupted the activity, and put them out of the club for the evening. To his knowledge, they were not barred from the club for this. He denies, however, having ever seen any of the dancers disrobe or allow patrons to touch their genitals for tips in the club. In 1996, Mr. Engerer, the owner and sole officer of the corporation which operates Solar, invested $50,000 the company. This money came from his 401(k) plan and his stock investments. At the time, he claims, he had very little experience in nightclub operation, and when he took over, he hired a firm to provide Responsible Vendor training to him and his staff before he opened. Mr. Engerer worked every Friday and Saturday nights and, in addition, occasionally also went in during the week. On the weekends, he would open the club, set up the bar, and work at bar three as a bartender. Bar three is where Tiffany Middlesexx generally sat. It has two cash registers -- one at the “L,” and one at the far end. He worked at the far end. Engerer knew Tiffany Middlesexx from his/her performances at other clubs, but asserts he had no knowledge of that individual’s dealing in narcotics, either before or after he bought the club. He claims he never saw any drug deals take place in the club. Engerer claims not to have known Tempo or anything about him/her before or after he bought the club, especially about drug activity. Mr. Engerer admits to knowing Tony, who was recommended to work at Solar because of his prior experience at other clubs. However, Tony was injured the first night on the job and never actually worked there. Engerer claims he had no idea Tony dealt drugs, nor did he ever see Tony deal at Solar. Club policy, according to Mr. Engerer, which he claims he expressed to all employees, is that there is a zero tolerance for drugs, and patrons and employees are to be evicted or fired for possession of unlawful drugs on the club premises. With the large crowds they get on the weekends, he claims it was very hard to hear, especially for the bartenders who worked at least three feet from the patrons. Mr. Engerer claims that signs given to him by the Responsible Vendor trainers were posted throughout the club: at the front door, at the top of the stairs to the second floor, downstairs in the bar, and in each restroom. He had several security people on the floor on the weekends to ensure there was no drug activity in either the bar areas or the restrooms. According to Mr. Engerer, he had no prior indication from the Division or other police agencies that they had any suspicion of ongoing drug activity, nor had he heard of any prior complaints about his establishment. Club policy also prohibited lewd activities, and Engerer claims he had no knowledge of such conduct going on there. He did not ignore it nor would he condone it, he claims. Mr. Engerer also claims he was never told by anyone that Tiffany Middlesexx, Tempo, or anyone else, for that matter, was selling drugs in Solar. The first he knew of any of it, he asserts, was when the Emergency Order of Suspension was served. Had he known Tim was selling elsewhere, Tim would have immediately been fired.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division of Alcoholic Beverages and Tobacco enter a Final Order revoking Respondent’s 4-COP alcoholic beverage license number 39-01036, for the premises located at 911-913 Franklin Street in Tampa, and imposing an administrative fine of $5,000. DONE AND ENTERED this 13th day of August, 1997, in Tallahassee, Leon County, Florida. _ ARNOLD H. POLLOCK 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 1997. COPIES FURNISHED: Thomas A. Klein, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Joseph L. Diaz, Esquire 2522 West Kennedy Boulevard Tampa, Florida 33609 Richard Boyd, Director Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-1007 Linda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether or not the Respondent's activity and conduct in the performance and completion of several construction projects constitute unreasonable or dilatory practices and also whether Respondent's workmanship on such projects was of such an inferior quality that it would indicate proof and continued evidence of gross negligence or misconduct by Respondent in the practice of contracting within the meaning of Chapter 489.129(1)(m), Florida Statutes (1979). 2/ Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel, the memoranda submitted, and the entire record compiled herein, I hereby make the following:
Findings Of Fact By its Administrative Complaint signed April 27, 1981, Petitioner, Florida Construction Industry Licensing Board, seeks to revoke Respondent's license to practice the profession of contracting and to impose a civil penalty based on conduct set forth hereinafter. Respondent, Charles H. Bromley, is a certified pool contractor holding License No. CP-007871 (Petitioner's Composite Exhibit No. 1). During times material to the allegations of the Administrative Complaint herein, Respondent was a qualifying agent, pursuant to Section 489.119, Florida Statutes, for both Wands Construction Company, Inc., and for Magic Wands Pools, Inc. Respondent's testimony established that he was part owner of Wands Construction Company, Inc., was an officer of that company and deemed himself responsible for its activities. Respondent testified that he owned no stock in the predecessor company, Magic Wands Pools, Inc., nor was he an officer of that corporation and was not directly responsible for contracts undertaken by that company. Respondent's position is that at least two of these construction projects (Derfler and Dubovick) were projects undertaken by Magic Wands Pools, Inc., and completed by Respondent, doing business as, Wands Construction Company, Inc., inasmuch as Magic Wands Pools closed its doors in late 1979. Wands Construction Company, Inc., entered into a contract with Mariner Village, Inc., to construct a pool at a condominium site being developed by that corporation. The contract was dated September 6, 1979, and called for completion of the pool within six weeks from the date of issuance of a permit. The permit for pool construction was issued on November 6, 1979. Respondent was unable to complete construction of the pool at Mariner Village, inasmuch as problems developed after the pool was filled which caused the pool walls and decking to crack and leak. Respondent attempted to correct the deficiencies in the pool until approximately August of 1980, at which time he was ordered off the job by Mariner Village, Inc. Robert Hamilton, the developer and president of Mariner Village, was the person with whom Respondent negotiated the contract to build the pool for Mariner Village. During the course of time in which Respondent was attempting to correct the problems at Mariner Village, its president, Robert Hamilton, sent approximately six mailgrams to Petitioner reciting his contention that Mariner Village considered Respondent's actions to be a breach of its contract; that the pool was not completed in a professional-like manner and that Respondent's overall performance, or lack thereof, constituted negligence. (Petitioner's Composite Exhibits 3 and 4.) When Respondent completed the construction phase of the pool, neither the city nor the county would issue a certificate of occupancy to allow the residents of Mariner Village to use the pool. While it was noted that the county initially issued Respondent a certificate of occupancy for its construction of this pool site, that certificate was immediately revoked due to surface cracks in the pool on the north, east and west ends of the pool once it was filled to capacity. Robert Hamilton, president of Mariner Village, testified that at this time (during the hearing) he thought that the issuance of a certificate of occupancy was imminent and that while the price called for in the contract between Respondent and Mariner Village was $20,450.00, it (Mariner Village) had expended or was obligated to expend sums totaling $70,000.00 to complete the pool. Mr. Hamilton ordered two engineering studies to examine and report on performance in the Respondent's construction of the pool. According to Hamilton, the reports revealed that the pool was erected on "good" pilings. Respondent and Leslie Derfler entered into a contract on June 9, 1978, to construct a pool at his residence. The contract price was paid in full and the pool was completed, however, during the spring of 1979, Mr. Derfler detected an opening around the tile grout near the leaf-skimmer. The matter was immediately called to Respondent's attention. Failing to get a prompt response to his complaint, Mr. Derfler contacted the Better Business Bureau after which Mr. Derfler was able to communicate with Respondent during March of 1980. Respondent dispatched a repairman to regrout the tiles in the area around the leaf-skimmer, however, the repairman failed to regrout the tiles which he replaced. As a result, the door of the skimmer became inoperative and separated from the skimmer. Repeated attempts by Mr. Derfler to contact Respondent were unavailing and Mr. Derfler called another company (Boca Pool-Trol Laboratories, Inc.) to finish the necessary work. In this regard, evidence reveals that Respondent reimbursed Mr. Derfler for the monies paid to the Boca Pool-Trol Laboratories, Inc. Respondent and Lindberg Development Company, through its assistant project manager, Taisto Pistkan, entered a contract on January 31, 1980, for the installation of a commercial swimming pool at Shore Heights Condominiums in Lantana, South Palm Beach, Florida. Respondent commenced construction on the pool during August, 1980, and the pool was not completed, such that it could be used, until June, 1981. Mr. Pistkan had to make repeated requests of Respondent to correct numerous problems, including leaks, falling plaster and tiles. When Respondent initially completed construction of the pool and it was filled, during September, 1980, leaks surfaced and approximately nine months later (June, 1981) Respondent completed construction of the pool and a certificate of occupancy was issued. In this regard, Respondent admitted during the hearing that it took an inordinate amount of time to make the necessary repairs to get the Lindberg pool certified. On August 10, 1979, Mr. and Mrs. Melvin Dubovick entered into a contract with Magic Wands Pools to construct a pool at their residence in Delray Beach, Florida. This contract called for the completion of the pool within six weeks from the date that the permit was issued. In October of 1979, an agent of Wands Construction, which agent had previously been an agent of Magic Wands Pools, informed Mr. Dubovick that he would have to enter into a new contract due to a reorganization of the pool company. As a result of that advice, the Dubovicks and Respondent entered into another contract with Wands Construction Company, Inc., on October 25, 1979. (Petitioner's Exhibits 10 and 11.) According to Mr. Dubovick, the second contract was signed to "straighten out the paper work." Mr. Dubovick was advised that all of the material terms of the new contract would remain unchanged and that the work would be completed within approximately eight weeks. However, the contract with Wands Construction Company does not contain a completion date. Excavation for the pool was made during the middle of October, 1979. Thereafter, no further work was done during that year and the wooden deck of the Dubovicks' home, which was adjacent to the hole dug for the pool, collapsed on New Years Eve, 1979. Thereafter, there were a number of problems with the construction of the pool, including the fact that a spa was not built as called for in the plans for the pool which necessitated that the Respondent remove a portion of poured gunite around the pool's deck; the filter was improperly installed and leaks surfaced when the pool was filled, causing Respondent to place numerous patches and filter outlets in the pool. Additionally, the slope of the pool decking was improper and caused a flooding condition around the Dubovicks' patio. The dimensions of the pool were not completed according to plans in that the length of the pool as completed is 30 feet, 3 inches, whereas the plans called for the pool to be 34 feet in length. The contract provides that the pool would have a 15,000 gallon capacity whereas Mr. Dubovick contends that he has never been able to measure more than a 10,000 gallon capacity while he filled the pool. The pool was completed in July of 1980. Kim Parker, a certified pool contractor, testified on behalf of Petitioner concerning two of the projects complained of in the Administrative Complaint. Consultant Parker is a licensed pool contractor and has been certified approximately two years. He is presently the general manager for Almar Pools. Mr. Parker has supervised pool construction in excess of two years. Mr. Parker visited the Mariner Village project on August 28, 1981, and noted hairline cracks in the plaster around the pool. Those cracks indicated to him that the plaster was either improperly applied or cured. He also noted a return fitting protruding into the pool, which he considered to he evidence of "shoddy" workmanship. Mr. Parker also noticed that the pumps in the pump room were not installed in a "professional" manner. During this time period, Mr. Parker also visited the Dubovicks' residence and he noted that an air leak existed at the filter pump, which caused a loud noise and that the pool was situated approximately three inches above the patio which created a drainage problem. In this regard, the Dubovicks testified that two doors were ruined due to water drainage problems around the pool area. Mr. Parker considered the workmanship around the Dubovick pool to be professional in its appearance although he did note that the pool was not constructed to the measurements provided for in the contract. Respondent's Defense Respondent, Charles Bromley, qualified Magic Wands Pools during 1978. He did so, according to him, based on "bad legal advice." Respondent encountered numerous problems completing pools that were under construction for Magic Wands Pools while he also was handling the day-to-day affairs of the successor corporation. Respondent has completed all except two out of forty-two pools that remained incomplete when he took over and Magic Wands Pools ceased operations in late 1979. Respondent contends that the former owner dumped "problem" pools on him which included the Mariner Village pool. William Sheldon, a professional engineer who has acted as a consultant in the design of numerous pools (in excess of 1,000) was called as a witness to testify on behalf of Respondent. Mr. Sheldon visited the Mariner Village pool and studied the design. He concluded that inadequate pilings were the source of the problems with the Mariner Village pool. That is, he considered the pilings failed to give adequate support and that this was of no fault or could not result in any liability on Respondent's part, inasmuch as the pool contractor was not responsible for the pilings erected to provide support for the pool. Mr. Sheldon noted that the pilings were driven to substantially less depth than other short piles in the area which led him to conclude that the developers used "soft" piles which had a low-blow content. He concluded that this caused cracks to radiate out of the east end of the pool creating leaks. Mr. Sheldon's examination of the elevations around the pool indicated that the gutters were level; that the problem was therefore one relating to the pool's substructure and not due to any construction deficiency. Also, Mr. Sheldon noted that, based on his calculations, without the usual allowance in calculations for an approximate ten percent (10 percent) deviation in a pool's volume capacity, his calculations indicated that the pool would hold approximately 11,872 gallons whereas the plans called for an approximate gallonage capacity of 10,500 to 11,000 gallons. Finally, Mr. Sheldon indicated that his review of the pool construction at Mariner Village only indicated that there existed one extrusion which he considered not to be critical in view of the overall construction and the pool's layout. Respondent testified that construction at Mariner Village progressed at a reasonable pace indicating that on May 8, 1980, the pool was marble coated, however, the equipment was not completed in the pool room and therefore work could not proceed as scheduled. According to Respondent, the earliest time that the equipment was in place, by other subcontractors, was approximately August 18, 1980, and work commenced rapidly thereafter by Respondent's employees. Respondent testified that an engineer inspected the gutters on July 16, 1980, at which time the gutters were properly erected and that within four days, i.e., on July 20, 1980, the gutters were "low" and the tiles had sunk. Respondent replaced the gutters without cost, however, he refused to do further work on the pool until the substructure was solidified. During this period, Respondent also testified that Mariner Village failed to timely honor draw payment requests which forced him to stop work until funds were received according to the schedule for draws. Finally, Respondent testified that the pilings and related substructures were obligations contracted for and hired independently by the general contractor. For this reason, the Respondent offers that he was not obligated for the failures surrounding the pool at Mariner Village. Respondent admits that the Dubovick project caused problems in that it was one that was left from the predecessor entity, Magic Wands Pools. He admits to delays in construction, however, he testified that he labored as faithfully as he could under the circumstances and further that all corrections and/or repairs were made that were called to his attention. As to the contention that the pool was constructed smaller than the 15,000 gallon volume capacity as reflected in the plans and specifications, Respondent indicates that the 15,000 gallon capacity was an error and further that the Dubovicks never indicated to him that there was any discrepancy or deviations from requirements in the plans and specifications as he was required to do according to the terms of the contract. Respondent indicates a willingness to negotiate with the Dubovicks respecting this omission. Finally, Respondent testified that he never met the Derflers, although he did dispatch a repairman out to remedy their problem. Respondent considered that the problem had been resolved and was unaware that it had not until the subject complaints were filed. Respondent has, however, refunded the Derflers' monies which were expended to hire an outside contractor. Throughout the time in which Respondent was attempting to complete or correct projects which had been started or initiated by Magic Wands Pools, he labored to do so with as much dispatch as possible under the circumstances. Respondent indicates that money was due and owing Magic Wands Pools by many customers who refused or was slow to pay. Respondent has been in the pool construction business in excess of twenty years and based on the experience gained and the nature of that business he (Respondent) refuses to guarantee a completion date for a pool due to weather and other uncertainties beyond his control. He again acknowledged that the repairs took a great deal of time to complete, however, he stressed that he labored to perform those repairs in as much dispatch as possible under the circumstances. Concluding, Respondent offered that part of his problem with the Dubovick pool had to do with his attempt to stay within the setback lines of the Dubovicks' property which prompted him to make minor deviations from the plans and specifications.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Respondent, who holds certified pool contractors License No. CP- 007871, be placed on probation by Petitioner for a period of one year. RECOMMENDED this 26th day of January, 1982, in Tallahassee, Florida. JAMES E. BRADWELL, 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 26th day of January, 1982.
Findings Of Fact At all times pertinent to this hearing, Respondent, Women's Exchange, Inc., possessed a valid Florida license to operate a cosmetology salon at 1828 N.E. Fourth Avenue, Miami, Florida, under License No. CE 0032221, which license was issued on September 16, 1982, and expires on October 31, 1984. On January 20, 1983, Steven M. Granowitz, an investigator for Petitioner, Department of Professional Regulation, Board of Cosmetology, entered Respondent's salon for a routine inspection. When he entered the salon, which was located in what appeared to be a home, he noticed it was quite busy. Customers were being waited on at all operator positions, and others were waiting their turn. Upon entering the salon, Mr. Granowitz tried to find the manager to identify himself and present his credentials, but no manager was present, so he talked to the receptionist, showing her his credentials and advising her he was going to do an inspection. At first, he looked at the salon license and went to examine the four operators and their licenses. These licenses are required to be displayed prominently in the shop. None of the four operator stations were displaying licenses. Two operators indicated they had licenses, but did not have them present. Mr. Granowitz made a phone call to his board and verified that these two individuals, Yvonne Eberhart and Clara Ann Edden, were in fact licensed. The two other individuals who he observed to be at operator stations with customers in the chairs, to whom they were applying curly perms, Jacqueline Dulippe and Jeanette Toussaint, were not licensed either by the Board of Cosmetology or Barbers' Board. He, admittedly, did not watch these two unlicensed operators during the entire period he was there. Consequently, it may well be that other licensed operators also worked on the same customers. There is no doubt in his mind, however, that what he observed these two do were cosmetology operations. Licenses are required to perform the work being performed by these two individuals, though not all functions in a cosmetology salon require a license. When Mr. Granowitz discussed this situation shortly thereafter that day with Antonia Gary, one of the officers of Respondent corporation, in the salon, she indicated she was not the manager of the salon, that none of the corporate officers were involved in the day-to-day operation of the salon, and that she did not know these two individuals were not licensed. However, there was no claim that either had misrepresented their license status. Joyce Ann Hanks-Knox, President of Women's Exchange, Inc., the corporation which owns the corporation which now owns Fingertips, the salon in question, admits that the license is in the name of Women's Exchange, Inc. There is no question, however, that Women's Exchange, Inc., holds the license in question for Fingertips and that the current Fingertips salon is that which is described in the license. She is not a licensed cosmetologist, and while she spends as much as 20 hours per week in the business of Women's Exchange, Inc., these duties do not include active management of the salon. She further relates, however, that it has never been the policy of either the parent corporation or the management of Fingertips to permit unlicensed operators to work, unsupervised, on customers. She admits that both women in question worked at Fingertips and, in fact, one was hired by her. Their duties were to be trained as operators and to perform other small tasks within the salon, such as moving patrons from one area to another, cleaning the salon, and insuring that supplies were at the work stations as needed. They were also allowed to wash hair, but, in this apprentice program, nonlicensed personnel were not to give permanents or do anything else that could be considered cosmetology. All of the licensed operators knew what the apprentice program consisted of, its limitations, and that these two individuals were not licensed. As such, they should have stopped them from performing unauthorized tasks. Neither individual was hired as a cosmetologist, nor was she paid as a cosmetologist. Since neither Ms. Knox nor Ms. Gary actively supervise the operation of the salon, since Mr. Granowitz could find no one there during his visit who admitted to being in charge, and since there was no evidence presented that there was any manager assigned to the salon, it is obvious that the salon was left, for the most part, to run itself without effective management supervision.
Recommendation Based on the foregoing, it is, therefore, RECOMMENDED: That Respondent corporation be reprimanded and pay an administrative fine of $250 for each count proven -- a total of $500. DONE AND RECOMMENDED this 15th day of November, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 15th day of November, 1983. COPIES FURNISHED: Theodore R. Gay, Esquire Mr. Fred Roche Department of Professional Secretary Regulation Department of Professional 130 North Monroe Street Regulation Tallahassee, Florida 32301 130 North Monroe Street Tallahassee, Florida 32301 Joyce Hanks-Knox, Esquire President Women's Exchange, Inc. 1828 N.E. Fourth Avenue Miami, Florida 33142 Ms. Myrtle Aase Executive Director Board of Cosmetology Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact As a result of an application submitted August 11, 1986, the 2-COP license at Hollywoods Bar in St. Petersburg, Florida, was transferred from Norbert Prevost to Josephine Sauvageot (Exhibit 5). On April 17, 1987, DABT agents Ray and McQueen visited Hollywoods Bar to check the bar's records. Upon entering the bar, McQueen identified himself to Respondent and asked to look at the records. She produced only a diary. Shortly thereafter, Respondent's husband, John Sauvageot, came over to answer questions Respondent was unable to answer. Mr. Sauvageot produced additional records which the agents proposed to seize and so advised the Sauvageots. Mr. Sauvageot became loud and belligerent and appeared to be playing to the customers in the bar. He told the agents he wouldn't release the records and grabbed the records he had handed to McQueen and returned them to a locker in another room. Respondent testified that she told her husband to surrender the records to the agents, but if she did, she evidently did not have the authority to have this order carried out. An owner would be expected to have such authority. These agents returned to Hollywoods Bar on October 7, 1987, for a routine inspection. Upon entering, they went to the bar and asked the bartender who the owner was, and she pointed out John Sauvageot. The barmaid was also hired and trained by John Sauvageot. When approached by the agents and told the nature of the visit, John Sauvageot told the agents his wife Josephine Sauvageot was the owner. Inspection of records revealed a bank checking account was not used with bills being paid in cash or money order. When a list of employees was requested, one was not produced. Subsequently, Respondent, through her attorney, produced a list containing the names of eight people, four of whom were not shown to have a surname (Exhibit 7). Respondent contends that she has limited education, completing only through the fifth grade, and does not read and write well. Her husband does most of the record-keeping of the bar, helped her fill out the application for the 2-COP license, and his brother, Brett Sauvageot, loaned $6000 to start the business. Respondent testified that employees were paid in cash on a daily basis. It appears that social security taxes and workmens' compensation were not paid. At least no evidence was submitted to show that such funds were withheld and forwarded to the proper authorities to comply with applicable statutes. On an application for a loan from Sun Bank of Tampa Bay in the amount of $2000, John Sauvageot listed as income $1000 a month from Hollywoods Bar in the position of Manager (Exhibit 2). Electrical service, TV cable, telephone and sewer and water service for Hollywoods Bar was in the name of John Sauvageot at all times relevant hereto. Ads placed in the St. Petersburg Times soliciting a concessionaire to operate a food service at Hollywoods Bar were placed by John Sauvageot, and the ad directed inquiry to be directed to "John". John Sauvageot was convicted of grand larceny, a felony, in West Virginia in 1977 (Exhibit 11) and was sentenced to imprisonment from 1 to 10 years.
