The Issue The issue in this case is whether Respondent, Motel 6, discriminated against Petitioner, Emanuel Sessions, a/k/a Emanuel Glenn, by refusing to rent him a room at the Motel 6, Number 0791 (Motel), based on his race, African-American.
Findings Of Fact Petitioner is an African-American male. The Motel is part of a national public lodging establishment chain, which is in the business of renting rooms to consumers. The Motel is located in Orange County, Florida, where the alleged act of discrimination arose. On October 25, 2010, and for six consecutive nights, Petitioner was a guest at the Motel, registered under the name of Emanuel Glenn.1/ There were no allegations of discrimination reported between October 25, 2010, and October 31, 2010.2/ The only allegation of discrimination occurred on November 1, 2010, when Petitioner was denied a room at the Motel. On October 31, 2010, Petitioner secured room 124 at the Motel. This room was on the ground floor, facing the parking lot. During his testimony, Petitioner failed to recollect that he had stayed at the Motel for the five nights prior to October 31, 2010. Petitioner could not recall when he stayed at the Motel, claiming it was over a year ago, and he did not know; yet, he was adamant that, on November 1, 2010, the Motel would not rent him a room. The evidence was overwhelming that Petitioner had stayed at the Motel for six consecutive nights, beginning on October 25, 2010. On October 31, 2010, the Motel's manager-on-duty was Emile Saleeb (Mr. Saleeb).3/ Late on October 31, 2010, Petitioner went to the Motel lobby and complained to Mr. Saleeb about a security guard questioning Petitioner as he sat in his car in the Motel's parking lot. Petitioner acted in an aggressive and offensive manner and used profanity towards Mr. Saleeb while at least one and up to three other Motel guests were present in the lobby. Mr. Saleeb felt Petitioner caused a disturbance in the Motel's lobby, which could be categorized as aggravated misconduct on the part of a Motel guest. Mr. Saleeb had concerns for the safety and welfare of the Motel's guests as well as its employees. The Motel has a policy that anyone causing a disturbance or engaged in aggravated misconduct on the property will be placed on the do not rent (DNR) list.4/ Mr. Saleeb has the authority to place someone on the DNR list for the Motel. Based on his encounter with Petitioner on October 31, 2010, Mr. Saleeb put Petitioner's name on the Motel's DNR list. Mr. Saleeb's testimony was credible. The following evening, on November 1, 2010, Petitioner attempted to rent another room at the Motel. At that time, Petitioner was told he would not be able to rent a room as he had been placed on the Motel's DNR list. No testimony, credible or otherwise, was offered that Petitioner was told that the refusal to rent a room to him was based on his race. Petitioner jumped to the conclusion that he had been discriminated against because of his race. He believed he had been denied a room at the Motel because he is African-American. He filed a complaint with the Commission about the incident. In his complaint, Petitioner said that he "was told that I couldn't rent a room at Motel 6 on November 1, 2010 because of my skin color, and I have proof wich [sic] is my witness that was there with me." However, this complaint information conflicts with the information that Petitioner provided to the Motel's guest relations department on November 2, 2010. In the guest relations contact report, it was recorded that: GST states last night, he tried to c/i to prop & was told by GSR that he cannot rent there. GST sd he asked why & was told it is based on past experience. GST asked GSR to elaborate & GSR said he had no further information. GST sd the last time he was at prop he had a room with his partner. GST sd he went to sit in his car right outside the rm to made a call to get a better signal. While he was sitting in the car, a police officer came up to the car & opened the door & asked him why he was sitting in his car & did he have a room there. GST sd he told the officer that he did have the room right in front of the car & was making a call from the car because there was a better signal. The officer told GST he had to go back inside his room. GST sd other people were outside their rooms. GST sd when he C/O he told GSR about the officer being rude & opening his car door. GST sd he does not understand any of this. GST said there is no reason for him to not be able to rent at property. GST said he was told he cannot rent there last night about 11 p.m. & the man at the F/D was named Nabeel. Petitioner did not present any witnesses to testify despite repeated opportunities to do so. According to Robert Wade (Mr. Wade), the general manager of the Motel, his primary concern is for the safety and welfare of all the guests on his property, as well as for the safety and welfare of his employees. Mr. Wade confirmed that he is in the business of renting rooms in order to make money; the more money the business brings in, the more his bonus (and the bonuses of his employees) will be. Thus, he wants to rent rooms to customers; however, he must be able to maintain the property in a manner that customers will want to stay at the property. Mr. Wade receives a security report every day from the security officer who was on duty the previous night. Based on this security report, Mr. Wade knows if there are broken lights on the property that need to be fixed, parking lot issues to be addressed or other maintenance issues that should be resolved to ensure the property is well maintained. Additionally, he reviews the security report to review any incidents involving Motel guests or other activities. Upon receipt of the security officer's report of October 31, 2010, Mr. Wade became aware of an incident in the parking lot involving Petitioner. Mr. Wade interviewed Mr. Saleeb and the security officer, Willie Wilson, in order to understand the circumstances. A day later, Mr. Wade was contacted by the Motel's guest relations office regarding a complaint that Petitioner had lodged on November 2, 2011. Based on his own investigation into the facts and circumstances regarding Petitioner being placed on the Motel's DNR list, Mr. Wade determined that it was in the best interest of the Motel that Petitioner be on the Motel's DNR list. Mr. Wade's testimony is credible. There are other Motel guests who are on the DNR list for similar and other reasons. Those guests who are put on the Motel's DNR list based on an infraction of a Motel policy are banned from the property for one year. However, guests whose names are provided by law enforcement for the Motel's DNR list are banned for up to three years. Neither of Petitioner's names is currently on the Motel's DNR list. During the hearing as the facts were presented, Petitioner did not appear to grasp the concept that his placement on the DNR list was a result of his encounter with the security officer in the parking lot which resulted in his loud, aggressive, and disruptive behavior in the Motel lobby in front of Mr. Saleeb and other Motel guests. Petitioner had stayed at the Motel for six consecutive nights. Unfortunately on the sixth night, Petitioner engaged in behavior that caused a disturbance, and he was placed on the DNR list. Petitioner contacted the Motel's guest relations department on November 2, 2010, to complain about his inability to rent a room at the Motel on November 1, 2010. During that November 2, 2010, telephone conversation, Petitioner specifically recalled his issue with the Motel security officer. Yet during the hearing, Petitioner evaded questions about any contact with the security officer, claiming he "might have come across a security guard." Petitioner did not answer questions in a concise manner and evaded answering some questions all together. Thus, his testimony is not credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed by Emanuel Sessions in its entirety. DONE AND ENTERED this 16th day of December, 2011, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 2011.
The Issue The issue presented herein, summarily stated, is whether or not the Respondent has allowed, fostered, condoned and/or negligently overlooked the trafficking in illegal narcotics and controlled substances on or about its licensed premises and has failed to exercise due diligence in supervising its employees and managing its licensed premises so as to curtail or prevent the illegal trafficking of illegal narcotics at its licensed premises.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, posthearing memoranda and the entire record compiled herein, I hereby make the following relevant findings of fact. Del Sol Enterprises, Inc., is a corporate entity which holds alcoholic beverage license number 39-2182, series 2-COP, and does business as THE PARADISE INN, located at 3513 North 22 Street, Tampa, Hillsborough County, Florida. John Gatto, Jr. is the President and sole corporate stockholder of Del Sol Enterprises, Inc., the Respondent corporation. On several dates during the period July 26 through approximately August 26, 1983, Officer Keith Hamilton of the Division of Alcoholic Beverages and Tobacco (Petitioner herein) and Tampa Police Department Officers, Chester L. Copeland, Corporal Vincent Rodriguez and Officer Frank L. Swope, conducted several surveillance and/or investigations of the licensed premises. Specifically, on July 26, 1983, Officer Keith Hamilton, a beverage officer employed by the Petitioner since approximately December, 1980, who is trained in the enforcement of beverage and tobacco laws, entered the licensed premises for the purpose of ensuring that the beverage and tobacco laws were being enforced. Officer Hamilton observed two black males seated in the southeast corner of the bar smoking a marijuana cigarette. Officer Hamilton observed the fact that the cigarette being smoked by the two black male patrons was not cylindrical but was, rather, irregular in shape. Officer Hamilton also noted the smell of the burning substance and the manner in which it was inhaled. At no time did any employee of Respondent make an effort to stop the above- referred behavior by the two black male patrons which was observed by Officer Hamilton. The following day, July 27, 1983, Officer Hamilton again entered the licensed premises. He engaged the off-duty barmaid, Vickie Jean Washington, in conversation. During the conversation, barmaid Washington was approached by an unknown black female who inquired if she (Washington) possessed any marijuana for sale. Officer Hamilton thereafter asked Washington if she could obtain some marijuana for him, giving her ten dollars in U.S. currency for the purchase of same. Washington exited the premises and, upon returning, informed Officer Hamilton that there was no marijuana worth purchasing. Later that evening, Washington asked Officer Hamilton if he desired some cocaine. Officer Hamilton gave Washington twenty dollars in U.S. currency and Washington produced two foil packs containing a substance later analyzed and identified by the FDLE crime laboratory as cocaine. The cocaine purchased by Officer Hamilton was maintained in his custody and control until it was turned over to beverage officer John T. Allen. Officer Allen maintained custody of the substance until it was placed into the evidence vault at the FDLE crime laboratory in Tampa, Florida. Officer Allen is responsible for the transportation of all evidence from the Petitioner to the FDLE crime laboratory for analysis. During the transportation of evidence in his custody, Officer Allen ensures that all evidence in his custody is properly marked and sealed and FDLE crime laboratory technicians who are responsible for logging and transferring submissions to analysts for analysis, ensure that all submissions received follow the FDLE crime laboratory policies and procedures for the receipt of submissions for analysis. Additionally, FDLE chemists who receive submissions for analysis will not perform an analysis upon a submission which is in any manner a departure from the FDLE crime lab's policies and procedures. (Testimony of FDLE crime laboratory technicians Myrtis Smith and Priscilla Miller, and FDLE crime lab analyst Anthony Ziberna) On July 28, 1983, Officer Hamilton again entered the licensed premises in an undercover capacity. Hamilton again met with off-duty barmaid Washington and observed Washington ingest the contents of two foil packages while standing at the bar (in the licensed premises) in open view. Officer Hamilton observed barmaid Washington break the substance of the foil packs upon the bar into small grains, lick the empty foil pack, and discard it on the floor. She proceeded to ingest the powder into her nose in a snorting manner. While on the premises that date, Officer Hamilton also purchased a small clear packet containing suspected marijuana from off-duty barmaid Washington. Officer Hamilton purchased the packet, which later was identified as marijuana by the FDLE crime laboratory, for ten dollars in U.S. currency. During the negotiation for the purchase of the marijuana, Officer Hamilton inquired of Washington if she was afraid to "do" the cocaine by the door and she responded that it was "okay." During the above transactions with off-duty barmaid Washington and her ingestion of the suspected cocaine, no one in the position of authority on the licensed premises attempted to stop either activity. After exiting the licensed premises, Officer Hamilton maintained complete custody and control of the suspected marijuana until such time as he turned it over to Officer Allen who properly marked the substance, maintained complete custody and control of it until it was turned over to the FDLE crime laboratory for analysis. On July 29, 1983, Officer Hamilton again entered the licensed premises. Upon entering the licensed premises, Officer Hamilton spoke with a black female who related that she was one of the managers of the licensed premises. While engaged in conversation with this black female, Officer Hamilton observed another black male snorting a "line" of suspected cocaine on the bar. Upon pointing this out to the female manager, no action was taken on her part to stop said activity. While on the licensed premises, Officer Hamilton was also approached by a black male who sold him a foil pack containing a substance, later identified as cocaine upon analysis by the FDLE crime laboratory, in exchange for ten dollars in U.S. currency. The substance was properly maintained under the custody and control of either Officers Hamilton, Allen, or analysts at the FDLE crime laboratory. On August 1, 1983, Officer Hamilton was again in the licensed premises. While there, Officer Hamilton observed several patrons smoking marijuana in the licensed premises. Hamilton inquired of the manager whether or not he had some marijuana and was advised that no one had any on this occasion. Officer Hamilton then departed the licensed premises. On August 2, 1983, Officer Hamilton again was on the licensed premises. While on the licensed premises, Officer Hamilton observed several patrons in the bar either smoking suspected marijuana or "doing" cocaine on the bar counter. On or about August 3, 1983, Officer Hamilton again entered the licensed premises and observed several persons engaged in the sale and use of suspected marijuana without any attempt to control such activity on Respondent's part. On or about August 5, 1983, Officer Hamilton again entered the licensed premises in an undercover capacity and observed approximately five or more transactions involving suspected marijuana and/or cocaine buys. While on the premises, Officer Hamilton purchased a package of suspected marijuana from a black male in exchange for five dollars in U.S. currency. Officer Hamilton left the bar with the suspected marijuana and maintained custody and control thereof until it was received by Officer Allen for marking and identification. Officer Allen thereafter proceeded to the FDLE crime lab where he submitted the substance for analysis. On August 15, 1983, Officer Hamilton again visited the licensed premises in an undercover capacity. While there, he observed barmaid Washington and several patrons smoking what he suspected to be marijuana. While that activity was ongoing, no one on Respondent's behalf attempted to stop such activity. On August 17, 1983, Officer Chester L. Copeland of the Tampa Police Department, Street Anti-Crime Section, entered the licensed premises as part of the same undercover operation. While there, Officer Copeland was approached by an unknown black male who asked Copeland if he desired to buy some cocaine. At this time, Officer Copeland purchased a foil packet of cocaine for the price of five dollars in U.S. currency. While on the licensed premises, Officer Copeland also observed the same individual make several drug sales in an open and unobstructed manner. Officer Copeland also observed several patrons in the bar smoking what he believed to be marijuana cigarettes. Officer Copeland has received training and is experienced in the detection and identification of controlled substances and their usage. Barmaid Washington, who was on the premises at the time, made no attempt to stop the above-referred activity observed by Officer Copeland. Upon leaving the licensed premises, Officer Copeland returned to the Tampa Police Department and administered a valtox chemical test upon the suspected cocaine purchased while at the licensed premises and the results thereof were positive for the presence of the controlled substance cocaine. Officer Hamilton also entered the licensed premises on August 23, 24 and 25, 1983. While on the premises on August 23, 1983, Officer Hamilton observed on-duty barmaid Washington smoke marijuana and snort what he suspected to be cocaine from the top of the east bar. While there, Hamilton approached an unidentified black male patron and asked if he could purchase some cocaine. This inquiry resulted in a sale of suspected cocaine in exchange for ten dollars in U.S. currency. Upon leaving the premises, Officer Hamilton maintained custody and control of the suspected cocaine until it was turned over to Officer Tim Allen. Officer Allen thereafter maintained control of the suspected cocaine until it was submitted to the FDLE crime laboratory for analysis. While on the premises on August 24, 1983, Officer Hamilton again observed off-duty barmaid Washington snort a powdery substance suspected to be cocaine. This activity by Washington as in the presence of a patron and was done on the bar corner in the licensed premises. At no time did anyone on Respondent's behalf attempt to stop said activity. While on the licensed premises on August 25, Officer Hamilton was approached by a black male from whom Officer Hamilton had purchased suspected cocaine on a prior occasion. Pursuant to an inquiry by that patron, Officer Hamilton proceeded to purchase a quantity of suspected cocaine in exchange for ten dollars in U.S. currency. Upon exiting the premises, Officer Hamilton proceeded to the Tampa Police Department where he delivered the suspected cocaine to Officer Tim Allen. After marking and receiving the suspected cocaine from Hamilton, Officer Hamilton submitted it to the FDLE crime lab for analysis. On August 23, 1983, Officer Copeland again entered the licensed premises in an undercover capacity. While there, he purchased a baggie of suspected marijuana from a black female in exchange for ten dollars in U.S. currency. While there, Officer Copeland observed on-duty barmaid Washington snort a white powdery substance suspected to be cocaine in addition to smoking what he recognized as a marijuana cigarette. Upon leaving the premises, Officer Copeland returned to the Tampa Police Department where he ran a valtox chemical test on the suspected marijuana which results were positive for the controlled substance marijuana. The licensed premises is situated in an area of Tampa whereby drugs and other drug-related problems are commonplace. Narcotics and other controlled substances are readily purchased in and around the immediate area where the licensed premises is situated. The FDLE crime laboratory has uniform policies and procedures respecting the acceptance of substances submitted for analysis. Prior to acceptance by the FDLE crime lab, submissions must be properly marked, identified, and sealed. Thereafter, the submission from the agency involved is placed into an evidence locker or vault where it is kept under lock until such time as it is removed for analysis by a lab chemist. Chemists for the FDLE crime lab will not conduct a chemical analysis on a suspected substance where there is any evidence of tampering with the submission or if the submission is not sealed upon receipt by the chemist. Finally, there was no evidence introduced herein that any of the submissions received (6) were in any manner tampered with prior to analysis by the chemists from the FDLE crime laboratory (Testimony of chemist Anthony Ziberna) Of six (6) submissions submitted by the Petitioner to the FDLE crime lab, only those submissions dated August 26 and August 2, 1983 proved not to be controlled substances under the provisions of Chapter 893, Florida Statutes. Jerry Cumbie, a self-employed contractor, has done substantial remodeling work on behalf of the Respondent corporation for many years. On approximately August 5, 2/ Mr. Cumbie started remodeling and other construction of the licensed premises in an effort to prohibit patrons from using the licensed premises for hiding controlled substances. Among the things Mr. Cumbie did was close off a section of the dance area (the north side of the bar) to prevent patrons from going into that area to smoke marijuana; the tying down of the ceiling tiles and erection of new paneling to keep patrons from hiding drugs behind loose walls. Harold Gillespie, the manager of the Paradise Inn, has been employed by the Respondent corporation for approximately 12 years. Mr. Gillespie is approximately five feet five inches tall and weighs approximately 290 pounds. He is the only black male manager at the Paradise Inn during the months June and July of 1983. Mr. Gillespie acknowledged that drugs were a problem in the area and that that problem overflows into the licensed premises. In an effort to curb that overflow, Messrs. Gillespie and Gatto met with representatives of the Tampa Police Department Vice Squad during June or July of 1983 and advised the vice employees of their problems with drugs in the area. Mr. Gillespie recalled that he spoke with a Sergeant Kester and a Captain Stallings of the Tampa Police Department. Mr. Gillespie recalled having apprehended numerous patrons in the licensed premises who were using illegal drugs on the premises. Mr. Gillespie ejects any patron from the licensed premises that refuses to stop the illegal use of controlled substances while on the premises. He has also taken other steps including turning off water in the lavatories to make it difficult for drug users to "setup" in order to conveniently use the drugs. Mr. Gillespie also sought the assistance of police officers from the local precinct and recalls speaking to an Officer Keys and others who work out of the local precinct in the area of the licensed premises. Mr. Gillespie fired Vickie Washington when she was arrested for drugs. Finally, Mr. Gillespie instructed employees to patrol the restrooms and other vacant areas to attempt to curtail patrons from the use of illegal or prohibited drugs in the licensed premises. John Gatto, Jr., the president and owner of the respondent corporate entity since 1965, has owned and operated as many as six (6) liquor establishments at one time. Presently, the Respondent operates four bars and has sold two within the last six months. Del Sol Enterprises has experienced one problem with the Division of Alcoholic Beverages and Tobacco prior to the subject incident. That problem occurred approximately 8 years ago when a janitor sold a bottle of liquor before opening hours. Mr. Gatto also recalls contacting Sergeant Jones of the Tampa Vice Squad and was assured that the vice squad would help to the extent practicable with the drug related problems. Mr. Gatto spent approximately $4,000 for remodeling the licensed premises in an effort to shut it off from patrons in areas which could not be easily supervised. Mr. Gatto acknowledges the existence of the drug problems in the licensed premises and in the area and concedes that more employees would possibly alleviate part of the problem. However, he counters that the establishment was losing money and that he did the best that he could do with the available help under the circumstances. Mr. Gatto employed Vickie Washington on approximately July 17, 1983. Manager Gillespie inquired of her background and got reports that she was "pretty clean." Mr. Gatto was unaware that Vickie Washington used drugs while on the licensed premises. Mr. Gatto recalled having found drugs in the cocktail tables; loose paneling areas of the licensed premises; and in pockets in the billiard tables. Mr. Gatto frequented the Paradise Inn approximately twice per month to check the manner in which the establishment was operating. He had no knowledge of the number of drug transactions that were occurring in the licensed premises and does not condone or otherwise foster the use of drugs in the licensed premises. Finally, Mr. Gatto tied the ceiling tiles down with wire and installed a booth in the entrance area to check who went in and out of the bar.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED that the Respondent's alcoholic beverage license number 39- 2182, series 2-COP, doing business as the Paradise Inn, be suspended for a period of 6 months from the date of the final order entered herein. RECOMMENDED this 30th day of December, 1983, 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 30th day of December, 1983.
Findings Of Fact Petitioner, Earl R. Tyler, was born on October 9, 1915. Petitioner was employed by the Respondent as a storekeeper from approximately March of 1977 until April of 1978, at which time he voluntarily terminated his employment with Respondent in order to become a real estate salesman. Prior to his leaving the hospital, Petitioner had received no reprimands or complaints from his supervisors at the hospital regarding his work as a storekeeper. In September of 1978, Petitioner filed an application for employment in a clerical position at the hospital. On or about October 15, 1978, Petitioner received a letter from the hospital advising him that there was an opening in the clerical field and requesting him to contact the personnel office regarding that position. Although Petitioner was not employed at the time, he believed the open position to be on the night shift and, accordingly, he never contacted the hospital regarding that position. Dale J. Learn, the Materials Manager at Lehigh Acres General Hospital, had become good friends with Petitioner during the time that Petitioner worked at the hospital, and he also knew Petitioner's wife, who was working at the hospital. In February, 1979, Learn told Petitioner's wife to have Petitioner come to the hospital to talk to Learn about an expected vacancy in the storekeeper position. Petitioner complied, and he and Learn met in the hospital cafeteria and discussed the expected vacancy and the potential for Petitioner being rehired in that position. The storekeeper position was within the department of which Learn was the head, and Learn was currently restructuring both his department and the storekeeper position. At the time that he met with Petitioner in the hospital cafeteria, the storekeeper position was not yet available and had not been publicized. Petitioner expressed his interest in being rehired as the storekeeper, and Learn advised Petitioner that the position as envisioned would require no heavy lifting by the Petitioner since Learn also intended to hire a younger man to do the heavy lifting. Petitioner made no response to Learn's statements regarding the necessity or desirability of Petitioner engaging in heavy lifting. Several weeks after the meeting between Petitioner and Learn in the hospital cafeteria, Petitioner saw an advertisement in a Fort Myers newspaper wherein the hospital was advertising for the position of storekeeper/medical supplies. Since Petitioner had heard nothing from Learn subsequent to their meeting, Petitioner telephoned Joseph Feith to express his interest in the position. Feith advised Petitioner that the department managers had authority to make decisions regarding hiring of personnel, subject to the approval of Feith, who was the Executive Director of the hospital. Feith, accordingly, advised Petitioner to contact Learn. Petitioner telephoned Learn but was unable to reach Learn at that time. After several days, Learn returned Petitioner's telephone call. During that conversation, Learn suggested that Petitioner should be relaxing and enjoying life and playing golf, but that he would do all he could to assist Petitioner in obtaining a clerical position at the hospital. Petitioner made no response to Learn's comments regarding taking life easy and made no further contact with anyone at the hospital regarding employment as a storekeeper. Learn hired a man in his early thirties for the storekeeper's position. The decision to hire that applicant and to not hire Petitioner was made solely by Learn. Learn's decision was based upon the successful applicant's better qualifications, more recent work experience, and Learn's hope that that applicant would be more likely to remain in the position for a long term. The reorganization of his department by Learn had caused a large expansion in the inventory for which the storekeeper was responsible. Additionally, between the time that Petitioner left his employment with the hospital as its storekeeper and the time of the hearing in this cause, the position of storekeeper was held by three people instead of one, also indicating a substantial change in procedures regarding the position in question. At the time of the hearing, the storekeeper position was occupied by two men and one woman ranging in ages from the late thirties through the mid-fifties. Petitioner has no knowledge of any instances wherein Lehigh Acres General Hospital has discriminated against persons because of their age. The hospital does have a policy of nondiscrimination. During the times in question, the hospital employed approximately fifteen to twenty persons the approximate same age as the Petitioner. Further, at the time of the hearing in this cause, Feith, the Executive Director of the hospital, was fifty-eight years old, and Learn, the department manager, was fifty-four years old.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations declaring that Earl R. Tyler was not discriminated against on the basis of his age and dismissing his Petition for Relief with prejudice. RECOMMENDED this 22 day of July, 1981, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings Department of Administration 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1981. COPIES FURNISHED: William E. Adams, Jr., Esquire Florida Rural Legal Services 1617 Hendry Street, Third Floor Fort Myers, Florida 33901 R. J. Castellanos, Esquire Kushner & Castellanos Post Office Box 1999 Fort Myers, Florida 33902 Mr. Norman A. Jackson Executive Director Florida Commission on Human Relations 2562 Executive Center Circle, East Tallahassee, Florida 32301
The Issue The issue in this case is whether the application for a Class "D" security officer license submitted by Alejandro Rodriguez should be granted or denied.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, and the entire record of this proceeding, the following findings of fact are made: The Department of State is the state agency responsible for regulating and licensing private security officers. Sections 493.6100 - .6126, Florida Statutes. On July 15, 1994, Mr. Rodriguez and two friends, Eliseo Figueroa and Albert Gonzalez, went to the Miracle Center Movie Theater complex in Miami, Florida, to meet Albert's girlfriend and one of her friends. They telephoned one of the women to let her know that they were going to be late, and they arranged to meet in the theater showing the movie "True Lies." When the men arrived at the theater complex, they were not able to buy tickets for "True Lies" because the theater was sold out; instead, they purchased tickets for the movie "Lion King." When the men entered the theater complex, they began walking toward the theater showing "True Lies." They were intercepted by the theater manager, who told them they could not go into that theater because it was full. The men told the manager that they were meeting friends who were in the theater and needed to go into the theater just to make contact. Although they told the manager that they did not intend to watch the movie, he refused to let them go into the theater to find their friends, telling them that it would disturb the moviegoers. The manager also refused to go into the theater himself to locate the two women the men were to meet. As this exchange was taking place, one of the women came out of the theater, saw the men, and returned to the theater to get her friend. The two women joined the three men, and they began walking across the theater lobby on their way out of the complex. Mr. Rodriguez and Mr. Figueroa were walking together, and the two women and Mr. Gonzalez were walking ahead of them. Mr. Gonzalez made a derogatory comment about the manager, which he overheard. The manager took offense, told the group that he was going to call the police because of the derogatory remark, and sent the assistant manager to find the off-duty police officer who was providing security at the theater. Meanwhile, the two women went to the restroom, Mr. Gonzalez went to the concession stand, and Mr. Rodriguez and Mr. Figueroa went into the theater showing the movie "Lion King," where they stood in the back and watched the movie. After several minutes, the manager, the assistant manager, and Officer Luis Ruiz, the off-duty police officer providing security for the theater, entered the theater. The manager asked Mr. Rodriguez and Mr. Figueroa to step outside into the lobby, which they did. Once they were in the lobby, Officer Ruiz told Mr. Rodriguez and Mr. Figueroa that they had to leave the theater complex, that "the party is over." Mr. Rodriguez demanded to know why they were being asked to leave since he and Mr. Figueroa had purchased tickets and had done nothing wrong. The manager told them they had to leave, without giving any explanation. Mr. Rodriguez again demanded to know why. Officer Ruiz repeated his order that they leave. Mr. Rodriguez refused and again demanded to know why. Officer Ruiz told him that he would be placed under arrest if he did not leave the theater complex. During this exchange, Mr. Rodriguez used profanity and his protests became louder and louder. Several of the movies had ended, and patrons were crowding into the lobby area where the group was gathered. Officer Ruiz became more and more agitated, and the situation generally deteriorated. Even after Officer Ruiz threatened Mr. Rodgriguez with arrest, he still refused to leave. Officer Ruiz told him that he was under arrest and was going to jail, and he grabbed Mr. Rodriguez's wrist to restrain him so he could put on handcuffs. When Officer Ruiz told Mr. Rodriguez he was under arrest and grabbed his wrist, Mr. Rodriguez panicked and his only thought was to get away. He yelled that he was not going to go to jail and swung the arm Officer Ruiz had grabbed, slamming him into the wall. A scuffle ensued, with the manager, the assistant manager, and another man trying to help Officer Ruiz subdue Mr. Rodriguez. The five men fell to the floor; Mr. Rodriguez was face down, and, with the manager and the other man holding Mr. Roeriguez down, Officer Ruiz straddled him as he was trained to do to gain the maximum advantage when trying to handcuff an unruly individual. Officer Ruiz was sitting on Mr. Rodriguez's back, facing his feet, and was just about to get the handcuffs around his wrists when Mr. Rodriguez managed to stand up, throwing off Officer Ruiz and the other men; he stopped and looked around, then proceeded to run out of the theater complex and down the street. He was apprehended several blocks away. Officer Ruiz suffered bruises as a result of being slammed against the wall by Mr. Rodriguez, 2/ but there apparently was no damage done to theater property as a result of the incident. On October 26, 1995, Mr. Rodriguez filed with the Department the application for a Class "D" security officer license which is the subject of this proceeding. In his application for licensure, Mr. Rodgriguez disclosed that adjudication had been withheld in two criminal cases, case numbered F94-23888 and case numbered F94-38895, arising in Dade County, Florida, and that he was sentenced to probation in each case. The charges in case numbered F94-23888, arising out of the incident which occurred on July 15, 1994, were felonies. The terms of probation for both cases were concurrent and expired on May 31, 1996. 3/ Mr. Rodriguez is not, therefore, currently on probation on a felony charge. Mr. Rodriguez gave his probation officer no problems during his term of probation, and one of the special conditions of his probation was that he participate in an anger control program. He expressed remorse and acknowledged that he was wrong to behave as he did at the theater complex; and he testified that he would behave differently if he ever found himself in a similar situation. On July 15, 1994, Mr. Rodriguez was one week away from his nineteenth birthday; he is now 21 years of age, married, and the father of a young son. Prior to this incident, Mr. Rodgriguez had never been arrested. The Department has presented sufficient credible evidence to establish that Mr. Rodriguez committed an act of violence on Officer Ruiz which was not undertaken in the lawful protection of himself or others. However, the evidence is also sufficient to establish that, while Mr. Rodriguez showed very poor judgment in provoking the confrontation at the theater complex and in resisting arrest, he has matured and rehabilitated himself. Therefore, in light of the facts found herein, with consideration given to all of the evidence presented and to the demeanor of the witnesses, Mr. Rodriguez has carried his burden of persuasion and demonstrated his entitlement to a Class "D" security officer license by a preponderance of the evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of State enter a final order granting the application of Alejandro Rodriguez for a Class "D" security officer license and placing Mr. Rodriguez on probation for a period of two (2) years under such reasonable terms and conditions as may be imposed by the Department. DONE AND ENTERED this 11th day of Deecember, 1996, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUMCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 1996.
Findings Of Fact By stipulation of fact, the parties agree that: On July 14, 1983, FHC mailed its letter of intent to file an application for a certificate of need to establish a psychiatric hospital near Orlando. This letter of intent was for an application to be considered in the August 15, 1983, batching cycle. The DHRS deadline for a letter of intent for the August 15, 1983, batching cycle was July 18, 1983. The FHC letter of intent was received by DHRS on July 18, 1983. In mailing a copy of the letter of intent to the Local Health Council of East Central Florida ("Local Health Council") on July 14, 1983, FHC inadvertently and unintentionally failed to enclose a copy of the letter of intent; the Local Health Council therefore received an empty envelope from FHC on July 18, 1983. The handwritten notes on the empty envelope are the notes of Clifton R. Carter, who is the Executive Director of the Local Health Council. Mr. Carter called FHC on July 18, 1983, and indicated that FHC should send to the Local Health Council a copy of its letter of intent by Federal Express. FHC sent a copy of its letter of intent to the Local Health Council via Federal Express on July 18, 1983. The Local Health Council reviewed a copy of FHC's letter of intent on July 19, 1983. DHRS acknowledged receipt of FHC's letter of intent and gave FHC instructions as shown in a letter dated July 20, 1983, from DHRS' Porter to FHC's Jones. Executive Director Carter sent a letter to HRS dated August 2, 1983, where he states that the Local Health Council did not timely receive FHC's letter of intent. FHC timely submitted its certificate of need application on or before August 15, 1983. Other competing applications were also timely filed and are not being processed by DHRS. DHRS' Thomas Porter sent a letter to FHC's Stanley Jones dated September 7, 1983, which advised FHC that its application was being returned and would not be processed in the August 15, 1983, batching cycle. The parties presented evidence which supports the following supplementary findings: At approximately 11:00 a.m. on July 18, 1983, after receiving the empty envelope from FHC, Clifton Carter, Executive Director of the Local Health Council, called FHC and spoke with Betty T. Genereux, the secretary to Stanley G. Jones, Vice President for Development of FHC. Mr. Carter advised her that the envelope from FHC had been received without a letter of intent. Ms. Genereux expressed concern, and asked whether the Local Health Council had telecopier equipment. Mr. Carter had told her that none was available. He also told her that the deadline was that day, but if she would "Federal Express" the letter to him and if he received it the next day, the filing equipment would be met. Pursuant to his instructions, she "Federal Expressed" the letter; the Local Health Council received it at approximately 9:00 a.m. the next day. FHC had an aircraft available to it on July 18, 1983, which could have been used to deliver the letter of intent to the Local Health Council that day. If Mr. Carter had not led Ms. Genereux to reasonably conclude that the filing requirement would be met if the letter was received by Mr. Carter the next day, it is likely that FHC would have used its aircraft or some other means (such as a telegram) to assure delivery on July 18, 1983. FHC reasonably, and in good faith, relied upon the representation made by Mr. Carter to Ms. Genereux on July 18, 1983, concerning the filing requirement. 1/ Since the question concerned the requirement for filing a document with the Local Health Council, Ms. Genereux was reasonable in believing that Mr. Carter, Executive Director of the Local Health Council, had authority to make such a representation; and she was reasonable in acting on such belief. Pursuant to its letter of intent, DHRS sent FHC the required application forms. FHC thereafter devoted substantial resources to preparing its application and filing it on or before August 15, 1983, in order to assure that its application would be reviewed in the August 15, 1983, application batching cycle. FHC was notified of the rejection of its application (because an untimely letter of intent) by letter from Thomas F. Porter, a DHRS Medical Facilities Consultant Supervisor, dated September 7, 1983, postmarked September 13, 1983, and received on September 20, 1983. This rejection was transmitted after the time specified for DHRS to determine the completion of an application. See, Rule 10-5.08(3). Within two days after receiving the rejection, FHC filed its request for a hearing, resulting in this proceeding. No evidence was presented that DHRS or the Local Health Council were prejudiced as a result of FHC's omission of the letter of intent from its July 18, 1983, filing with the Local Health Council, and its follow-up delivery of the missing letter on the next morning.
Recommendation Based on the foregoing, it is RECOMMENDED: That DHRS accept First Hospital Corporation's application (for a certificate of need) as part of the August 15, 1983, application review cycle. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 26th day of October, 1983. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings 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 October, 1983.
Findings Of Fact At all times material to the instant case, Respondent was the holder of beverage license No. 54-279-S, Series 6COPS. The license was obtained by the Respondent by transfer in September, 1977. The licensed premises is located at the Key Wester Inn, 975 South Roosevelt Boulevard, Key West, Florida. The Key Wester Inn and the licensed premises are owned and operated by Mr. Mel Heifetz, the Respondent herein. On September 10, 1983, Beverage Officers Frank Oliva and Leonard DelMonte went to the licensed premises to investigate a complaint of drug sales taking place inside the licensed premises. The officers entered the lounge at approximately 7:00 p.m. The licensed premises are called the Inner Circle Lounge and consists of three areas. The main portion of the lounge is a large room with a bar along the south wall and a bandstand and dance floor in the northwest corner. The remainder of this area is filled with tables and chairs. To the east of the main bar is a large room which opens onto the main bar area through two large openings. This area contains tables and chairs. To the west of the main bar area is a deck and patio area called the pool bar area. When the officers arrived at the licensed premises on September 10, they sat on two bar stools at the northwest end of the pool bar. The two officers engaged a white female waitress named Lori Hart in conversation. Eventually the conversation led to a discussion of drugs and Officer Oliva asked if she could sell him some quaaludes. She said that she could not but that she could sell them cocaine if they would return at 10:00 or 10:30 p.m. that evening. She also said that the price would be between $80 and $100 and that she would have to be turned on also. This meant she would inhale some of the cocaine she sold them. The officers agreed and then left. The officers had never met Lori Hart before and no one at the bar had vouched for them or introduced them to her. At approximately 10:00 p.m., the officers returned to the lounge and sat on two bar stools at the west end of the pool bar. Lori Hart walked up and asked if they still wanted the cocaine and the officers responded "yes." She said the price would be $80. She then asked a bartender named George to tend bar for her. She picked up her purse and walked into the interior bar area and then returned and walked to the area of the bathrooms near the pool. The two officers followed her to the bathroom area. When they reached the bathroom area, the door to the ladies' room was closed. About five to ten minutes later the manager of the lounge, George Font, came to the bathroom area and went into the men's room to wash his hands. He left and a few minutes later came back and knocked on the door to the ladies' room and said "Lori you have customers." After George Font left, Lori Hart came out of the bathroom, and exchanged a packet of cocaine for $80 cash from Officer Oliva. On this particular evening, Pedro Corpion, an off-duty police officer working as a security guard at the licensed premises, was seen in the pool bar area at various times. The location where the exchange took place is a hallway adjacent to the pool area restrooms and is not visible from anywhere in the bar. On September 16, 1983, Officers Oliva and DelMonte returned to the licensed premises. They were accompanied by Faye Francy of the Monroe County Sheriff's Department. They sat at a table next to the dance floor and adjacent to the north wall of the interior lounge. While seated at the table, a waitress named Linda Carteret took their order for drinks and Officer Oliva asked if she could sell them 2 grams of cocaine. She said she would see what she could do. She later returned to the table and stated she could only get 1 1/2 grams. About a half hour later, she returned to the table again and stated that she did not have quite 1 1/2 grams so the price would be $110 rather than $120 as originally stated. Officer Oliva said o.k. and told her that the money was under a napkin on the table. She crouched between his chair and the chair where Faye Francy, who was dancing, had been seated. She placed a small packet of cocaine wrapped in a one dollar bill under Officer Oliva's left leg. When Linda Carteret crouched at the table and transferred the cocaine, she had her back to the bar area. These actions were being watched by Whitney Russel Papy, an investigator for the state attorney's office, from a table nearer the bar and he could not tell that an exchange or buy had taken place until Officer Oliva, by prearranged signal, got up and left. Officers Oliva and DelMonte had never met Linda Carteret before and had not been introduced to her before asking to purchase cocaine. On the evening of September 15, 1983, Officers DelMonte and Oliva returned to the licensed premises. They sat at the west end of the interior bar and ordered drinks. Lori Hart was working behind the bar and at approximately 9:30 a.m., Officer DelMonte and Oliva returned to the licensed premises. They sat at the west end of the interior bar and ordered drinks. Lori Hart was working behind the bar and at approximately 9:30 a.m., Officer DelMonte asked Lori Hart to sell him a gram of cocaine. She said she could get it and a short while later, she returned to where the officers were seated and placed a bulging matchbook on the bar in front of Officer DelMonte. Inside the matchbook was a small plastic baggie containing cocaine. Approximately five minutes later, Officer DelMonte ordered a drink and gave Lori Hart $100. She walked to the register, rang up the drink, and returned and handed him $17.00 in change. The price of the cocaine was $80.00 and the drink cost $3.00. Officer DelMonte placed the matchbook and cocaine in his pocket. On the evening of September 16, Paul Carr, the manager of the Key Wester Inn, came into the lounge several times. He walked in, looked around the lounge, remained for a few minutes and then left. The band was playing in the lounge this particular evening. On September 17, 1983, Officers DelMonte and Oliva were again in the licensed premises for the purpose of attempting to purchase drugs. They sat at the east end of the interior bar. Officer DelMonte placed four (4) $20.00 bills in a matchbook and placed it on the bar in front of him. A few minutes later, Lori Hart, who was behind the bar, saw the matchbook and said she would get the stuff. Some of the numbers of one of the twenty dollar bills were showing. Lori Hart asked if there was $80.00 in the matchbook and Officer DelMonte responded "yes." She took the matchbook and a short while later placed a napkin in front of Officer DelMonte. Inside the folded napkin was a small plastic baggie containing cocaine. Officer DelMonte placed the cocaine and napkin in his pocket. On this particular evening, off-duty Police Officer Pedro Corbione was working inside the lounge and was out of uniform. He passed the bar area where the officers were seated while the matchbook containing the money was on the bar. However, there was no evidence that Officer Corbione saw the matchbook. The band was playing in the lounge this evening. Beverage Officers DelMonte and Oliva returned to the licensed premises on September 22, 1983, at approximately 9:15 p.m. They were joined a few minutes later by Deputy Francy of the Monroe County Sheriff's Department. The three officers sat at a table just inside the large sitting area to the east of the interior bar area. The table where they were seated was partially obscured from vision of the bar area by a short wall that extended to the edge of the large entrance way. While seated at the table, Officer Oliva asked Linda Carteret if they could purchase some cocaine. She was on duty as a waitress. A short time later, Lori Hart walked over and asked if they were still interested in a gram of cocaine. Officer Oliva said yes and she asked for $80.00. Officer Oliva told her he didn't think he should be so open and she agreed. She told him to give the $80.00 to Linda who came over a few minutes later and picked up a napkin with the $80.00 beneath it. After taking the money, Linda Carteret returned with a foil packet under a napkin and placed it on the table. The foil packet contained cocaine. Both women were on duty as cocktail waitresses when this transaction took place. There was nothing suspicious about the actions of the officers or Lori Hart and Linda Carteret during this transaction. The transfer took only a few seconds and the foil packet was not visible beneath the napkin. This was a very secretive transaction and the exchange itself was not observed by Deputy Faye Francy who was seated at the table with Officers Oliva and DelMonte. The area where the officers were seated was dimly lit. The band was playing in the lounge this evening. On September 28, 1983, Officers Oliva and DelMonte returned to the licensed premises. They entered the lounge at approximately 7:00 p.m. and sat at the same table they had sat at on the evening of September 22. They had first entered the interior bar area and sat at the bar, but after they were joined by Linda Carteret, they went to the table. Officer Oliva asked Linda Carteret to sell them some cocaine and she responded that she had heard rumors that they were police officers. Officer Oliva convinced her that they were not police officers and she then agreed to sell them 1 gram of cocaine for $80.00. She went to the bathroom area and when she returned she placed her hands over Officer Oliva's hands and dropped the plastic baggie containing cocaine into his hands. He then handed her the $80.00. The entire exchange took about 5 seconds. While this transaction took place, the bar manager, Don Crawford, was seated at the east end of the interior bar with his back to the table where the officers and Linda Carteret were seated. This particular evening, Linda Carteret was not working at the lounge. No indication of a transaction was observed by Harry Sawyer, an investigator with the state attorney's office. Harry Sawyer was in the lounge on September 28 as a backup to Officers Oliva and DelMonte. A band was playing in the lounge on this evening. Lori Hart had previously worked at the Inner Circle Lounge in 1982. She terminated when she went home to visit her family and was rehired in January, 1983. There were no problems with her work in 1982. However, in April, 1982, an administrative complaint was made against the Respondent's license charging that Lori Hart had failed to check the identification of a minor and had sold the minor a drink. She was not terminated at that time because she was needed as a witness in the administrative proceedings. Lori Hart resigned some time prior to September 28, 1983, because she was changed to a different shift and location in the lounge. Lori Hart was initially hired as a cocktail waitress and was transferred later to bartender. Prior to being hired she was interviewed by the bar manager and by the manager of the Key Wester Inn, who oversees the entire property where the Inner Lounge is located. She was required to obtain and provide the management with an ID card which is obtained from the Key West Police Department. This ID is required for persons working in Key West and in order to obtain an ID, an application with certain background information must be given and a photograph is taken and placed on the ID card. Lori Hart was also required to fill out an employment application for the lounge. On this application, she was required to give background information and references and these were checked by the manager. At the time she was hired in January, 1983, Lori Hart was required to sign a form which states: As an employee of the Key Wester Inn I understand that it is unlawful to drink alcohol or take any form of drugs that are not prescribed by a doctor during the performance of my shift of work. And further I realize this would be grounds for dismissal. Each employee hired was required to sign such a form. The Inner Circle Lounge and Key Wester Inn had a policy against any drugs on the premises and this policy was explained to all employees when they were hired and was repeated on a continual basis. Employees caught with drugs or alcohol while on duty were terminated under this policy. Linda Carteret was employed in September, 1983. She was hired the same day she applied because the lounge was short one cocktail waitress. She was interviewed by the bar manager who requested that the manager, Paul Carr, allow him to hire her immediately. Mr. Carr approved the hiring but did not interview her. Linda Carteret was also required to provide the lounge with the ID card obtained from the Key West Police Department and was informed of the policy of drugs and alcohol while on duty. The Key Wester Inn is owned by Respondent and is managed by Paul Carr, the resident manager. Mr. Carr has 2 years experience in the hotel, restaurant and lounge business. Prior to September 12, 1983, George Font was manager of the lounge. Mr. Font had been asked to resign because of poor performance and it was agreed that September 12, 1983, would be his last day. After Mr. Font left, Don Crawford, originally hired as a cook was promoted to bar manager. He was given no authority or real responsibility because he was considered to be in a training status. Paul Carr, the resident manager actually took over management of the lounge begining September 12. The evidence did not establish that Mr. Font or Mr. Crawford was aware of the drug transactions that occurred in September, 1983. Mr. Paul Carr, the resident manager, had no knowledge of any drug transactions or drug problems in the lounge. The bar manager was in the lounge each night full-time. Paul Carr was at the lounge when it opened and closed and visited the lounge several times each evening at random times. Prior to July or August, Mr. Pedro Carbione, an off-duty Key West Police Officer worked as security officer at the entrance to the lounge. He checked ID's and watched the outside area. In July or August, Officer Corbione, on Paul Carr's recommendation, moved inside the lounge to work security. When he moved inside the lounge, he no longer worked in uniform. The evidence failed to establish that Officer Carbione was aware of any drug transactions taking place in the licensed premises. The Respondent has held the beverage license in question since 1977. Since that time, there have been no prior charges involving drugs. The only prior charge against the license involved selling to minors. The Respondent and his staff have cooperated with local authorities in prior drug investigations and the licensed premises enjoy a reputation in the community as a nice, decent place to go and dance. The Inner Circle Lounge is frequented primarily by business people, military officers, and local residents including law enforcement officers. The patrons are primarily thirty to fifty years of age. The lounge does not have a reputation in the community as a place where drugs can be sold or used or as a place frequented by people who use drugs. At no time prior to service of the Emergency Suspension Order was Respondent or his staff informed of a drug problem in the Inner Circle Lounge by the Division or local authorities. Lori Hart and Linda Carteret made several statements during the sales and during interrogation after their arrest which indicated some knowledge of the drug sales on the part of George Font and Don Crawford. This evidence was considered by the hearing officer and considered to be of no probative value in light of the total lack of any direct evidence which would show knowledge on the part of those individuals and because of the contradictions between such statements and the very secretive manner in which all the sales were made.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED That the Respondent be found NOT GUILTY of the violations charged in the Notice to Show Cause and that the charges be dismissed and the license immediately restored. DONE and ENTERED this 15th day of November 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, 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: Harold F. X. Purnell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida Charles L. Curtis, Esquire 1177 S.E. Third Avenue Ft. Lauderdale, Florida 33316 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether Respondent has committed a discriminatory act with respect to public accommodations in violation of Chapter 760, Florida Statutes, and if so, what remedy should be provided.
Findings Of Fact Petitioner is an African-American woman living in the Gainesville area. She is married and has children. On November 15, 2006, Petitioner went to the Days Inn at 7516 Newberry Road to make a reservation for her mother and sister. She was dressed casually and had her children with her. When she arrived at the Days Inn, she spoke with John Osley, who was later identified as the manager of the hotel, and asked if all the rooms were entered from the outside. He told her that the Newberry Road hotel had outside rooms only but that the Days Inn on Archer Road had internal corridors. Mr. Osley asked what dates she wanted to reserve. She told him November 23-24, which was Thanksgiving Day and the day after. Mr. Osley told her there were no rooms available those days because the hotel was the host hotel for a race-car event. She asked about cancellations and he told her to call back closer to the dates she needed the room to see if there were any. He gave her a business card for a person at the front desk. Upon her request, he allowed her to look at one of the rooms. Petitioner thanked Mr. Osley and left. After she left the hotel, she felt that she had not been treated appropriately. That evening, she checked on the Days Inn internet website to see if any rooms at the Newberry Road location were available online for November 23-24. She was able to make a reservation for the desired days via the internet. Ultimately, her mother opted to stay at another hotel. As a result, the reservation at the Days Inn was canceled. Petitioner was angry because she felt she had been mistreated at the hotel, and wrote to Joseph Kante, whom she identified as being in a management position for Days Inn. She also e-mailed him and within 24-hours, she received an apology from him. However, according to Petitioner, Mr. Kante indicated that each Days Inn is responsible for itself and the person she needed to speak to regarding the Days Inn on Newberry Street was John Osley. Petitioner returned to the Days Inn on Newberry Road in an effort to speak with Mr. Osley, and also called the hotel. Each time, Mr. Osley was not present and she never spoke with him about her concerns. After her attempts to reach him were unsuccessful, she filed her complaint with the Commission. No evidence was presented regarding any other person of any race seeking a room at the same time as Ms. Henderson who was able to reserve a room when she could not. No evidence was presented indicating that Mr. Osley was not being truthful when he stated that no rooms were available when Ms. Henderson originally sought to reserve a room.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered that dismisses Petitioner's claim. DONE AND ENTERED this 27th day of September, 2007, in Tallahassee, Leon County, Florida. S Hearings Hearings LISA SHEARER NELSON Administrative Law Judge Division of Administrative 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 this 27th day of September, 2007. COPIES FURNISHED: Burnita Henderson 5010 Southwest 63rd Boulevard Gainesville, Florida 32608 John Osley Days Inn I-75 7516 Newberry Road Gainesville, Florida 32606 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact William E. Manker, Jr. and Manker Funeral Home are licensed as Funeral Director License No, 905 and Embalmer License No. 1007. Accordingly the Hearing Officer has jurisdiction over the Respondents and the alleged offenses. In October, 1977 Hobby Tillman, a registered nurse who worked part time for Manker, told Louis C. Slater, a forensic technician at the DCMEO that he could make it worthwhile to Slater if he could provide information on bodies at the morgue which led to these bodies being turned over to Manker for interment. Manker suggested to Tillman that such representation be made to an employee of DCMEO. Tillman was paid by Manker only for services he performed at specific funerals. No agreement was made between Manker and Tillman whereby the latter would receive additional compensation for any business he brought to the funeral home. Tillman had worked for several other funeral homes in the Miami area and had picked up bodies at the DCMEO for these other homes. He was a salaried employee for House of Albert funeral home for a period of time but in October and November 1976 the only funeral home at which he was working was Mankers. Slater reported this offer to his superiors who notified the Dade County Public Safety Department. The case was assigned to Detective Buckley and Sergeant Beirne who arranged for Slater to call Tillman at the Manker Funeral Home to accept his offer and arrange a meeting for the exchange of information for money. On November 9, 1976 Slater called the number of Manker Funeral Home and asked to speak to Bobby. An individual purporting to be Tillman talked with Slater, and Manker was made aware of this conversation. This call was taped when both police officers assigned to this investigation were present in the room with Slater. During this conversation Slater stated he would accept Tillman's offer and would call later for an appointment to meet him. The tape and transcription thereof constituted Exhibits 2 and 1 respectively. The police officer who was present and transcribed a copy of this tape testified that the transcription was an accurate reproduction of the conversation; however, the other police officer who was also present, testified that only Slater's voice could be heard in the room. Absent evidence of an open mike in the room the testimony that only Slater's voice could he heard by the police officer is obviously correct. No witness identified the voice purporting to be Bobby on the other end of the line; and Tillman, in whose presence the copy offered as the new Exhibit 2 was played, denied that the voice was his or that he ever talked to Slater over the phone. On November 17, 1976 Slater called the Manker Funeral Home to speak to Hobby to set up a meeting to pass to him the name of a body at the morgue. At this point the testimony diverges. Slater testified the call was made between 12 noon and 1:00 p.m. Tillman testified that he was told the call came about 10:00 a.m. Slater testified he talked to Tillman while the latter's testimony was that he was working at his nursing job at the time of the call and didn't arrive at the funeral home until after 1:00 p.m. Upon Tillman's arrival at the funeral home he was advised by another Manker employee of the message received from Slater to meet him at the South China Cafe at 2:00 p.m. that day. Tillman was in his nurse's uniform and was driven home by Manker to change clothes. Then he was driven by Manker to the South China Cafe, stopping en route at a drug store where Manker had a prescription filled and purchased sun glasses. Upon arrival at the South China Cafe on Northwest Tenth Street Manker remained in the car while Tillman entered the cafe and met with Slater. Slater told Tillman he had the name of a body and next of kin and asked if Tillman would give him something for the information. Tillman left the cafe and went to Manker's car, spoke to Manker and returned to the cafe. Before returning to the table where Slater was waiting Tillman ordered a hot dog and coke and took these to the table where Slater waited. With respect to these events again the testimony varied principally as to detail. Slater testified he didn't give the paper containing the fictitious name that had been supplied him by the police until after Tillman gave him ten dollars. Tillman testified he took the piece of paper with the names to show Manker from whom Tillman got twenty dollars. Part of this twenty dollars was used to purchase his hot dog and coke, ten dollars was given to Slater for the information and the balance was pocketed by Tillman. Manker's version of the events was that Tillman wanted a ride to pick up a prescription at Jackson Memorial Hospital Pharmacy on Northwest Tenth Street across from the South China Cafe, and since he had to go in that direction to pick up his own prescription he agreed to take him. Manker drove Tillman home to change clothes then drove him to Northwest Tenth Avenue. Tillman came back to the car for a short visit to advise Manker he would be a few minutes longer, but according to Manker, Tillman made no request for money nor did he give him any money. Manker further testified he did not even know Tillman was to meet with Slater. Slater had been wired for sound for the cafe meeting with Tillman but background noises rendered their conversation unintelligible to the police officer monitoring the conversation a few tables away. After the paper with the names had been exchanged for ten dollars, Slater, as a prearranged signal to the police of this fact, dropped a coin on the floor as he got up to leave. When exiting the cafe Tillman was arrested and booked at county jail. A preliminary search at the jail did not produce the paper that had been given Tillman by Slater but shortly thereafter one of the wardens saw Tillman throw something in the waste basket which the warden retrieved and turned over to Detective Buckley who identified it as the paper he had given to Slater with the fictitious names. Prior to his subsequent trial Tillman agreed with the State's Attorney that in exchange for a plea of guilty and testimony against Manker he would be given probation. Tillman pleaded guilty to offering a bribe and was placed on probation.
Findings Of Fact Anthony Scrima was certified by the Criminal Justice Standards and Training Commission on April 25, 1980, and holds certificate C-7401. He has been employed as a correctional officer by the Broward County Sheriff's Office since 1988. He was certified by the Commission at the time of the events alleged in the Administrative Complaint. Mr. Scrima has served as the warehouse manager for the Broward Correctional Institution for a number of years and is in charge of receiving goods at the institution, issuing the stock, property control, and general inventory at the institution. January 23, 1988, Mr. Scrima went to the Burdine's Department Store at Hollywood Fashion Center in Hollywood, Florida with his daughter to buy a birthday present for his niece. While there, he met his nephew, John Hutchens, in the company of high school-aged friends. Because the weather had become warmer during the day, John Hutchens asked Mr. Scrima to take a jacket home for him, so he would not have to continue carrying it around. Mr. Scrima then went into the women's department to buy his gift. When he left the store with his purchase and what he believed to be his nephew's jacket, he was confronted by a store security employee, Kathy Van Damas and a young black male security employee, Bobby Smith. They asked him to come back to the store to talk to them about the jacket, and he agreed to return with them. In the security office Ms. Van Damas accused Mr. Scrima of having removed the tag from the jacket and taking it from the store without paying for it. Mr. Scrima denied that he had stolen the jacket, but did offer to pay the $145 Ms. Van Damas claimed was the price of the jacket in order to settle the matter. Ms. Van Damas declined the offer, and instead called the Hollywood Police Department to the store and ultimately pressed the case in court on behalf of the department store. Ms. Van Damas' testimony that she had observed Mr. Scrima take the jacket from a rack, tear the tickets off the jacket, throw them to the floor and then wear the jacket out of the store is not persuasive for two reasons. First, it is inherently improbable that Mr. Scrima would have engaged in such conduct in the presence of his daughter. Second, Ms. Van Damas was quite adamant at hearing about certain things she believed she had observed. For example, she testified during the final hearing that she first observed Mr. Scrima from a ladder located behind a wall in a stock room near the contemporary clothing portion of the men's department, which permitted her to look over the wall from about 12 feet in height. When her deposition was taken in the criminal matter on April 6, 1988, she testified that she was on the floor, and first observed Mr. Scrima enter the department store at the men's fragrance counter, and that another store detective was in the security observation coup, not her. She also acknowledged during cross examination that she did not have a clear recollection of the facts as of the date of the hearing. The evidence against Mr. Scrima is not clearly convincing. Mr. Scrima agreed on July 6, 1988, to plea nolo contendere to the misdemeanor charge, and to pay $125 fine because the risk of going to trial and the attorney's fees involved in going to trial were large, the proposed fine was small, and the overall circumstances dictated accepting the prosecutor's offer as the most expedient method of disposing of the accusation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Administrative Complaint filed against Anthony Scrima be dismissed. RECOMMENDED this 20th day of February, 1991, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 20th day of February, 1991. APPENDIX TO RECOMMENDED ORDER, DOAH CASE NO. 90-5487 1 and 2. Adopted in Finding 2. Adopted in Finding 1. Adopted in Findings 3 and 6. Adopted in Finding 3, although the young girl was his daughter. 6 and 7. Rejected. See, Finding 6. 8. Adopted in Finding 4. 9 and 10. Implicit in Findings 3 and 4. Generally adopted in Finding 5. Adopted in Finding 4. Rejected as unnecessary. Implicit in Finding 4. Whether Mr. Scrima carried or wore the jacket out of the store is not relevant. Adopted in Finding 4. Rejected; not the more credible evidence. Although Ms. Van Damas may not have seen the nephew, rejected based on finding 3. Rejected as unnecessary. Rejected as unnecessary. Adopted in Finding 5. Rejected as unnecessary. Adopted in Finding 7. COPIES FURNISHED: Sharon D. Larson, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Terence L. LaBelle, Esquire 200 Southeast Sixth Street Suite 300 Fort Lauderdale, FL 33301 Jeffrey Long, Director Department of Law Enforcement Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, FL 32302 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Rodney Gaddy, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302
