The Issue The issue in this case is whether Respondent, Laurel Oaks Apartments ("Laurel Oaks"), discriminated against Petitioner, Lawrence Jacobs, Jr., on the basis of his race in violation of the Florida Fair Housing Act.
Findings Of Fact Petitioner is a 22-year-old African-American male. At all times relevant hereto, Petitioner was residing at Laurel Oaks in Temple Terrace, Florida. Petitioner co-habited at Laurel Oaks with a woman, Sade Newton. Petitioner and Newton were expecting a child during the time they resided at Laurel Oaks. Laurel Oaks Apartments is the Respondent. It is a large apartment complex comprised of several buildings. Approximately 70 to 75 percent of the residents of Laurel Oaks are minorities. Petitioner moved into Laurel Oaks on or about November 3, 2009. Petitioner and Newton signed an Apartment Lease Contract (the "Lease") on that date. Petitioner was assigned apartment number 8704 (the "Initial Unit") at a rental fee of $589.00 per month. The term of the Lease was one year. Almost immediately upon taking possession of the Initial Unit, Petitioner began to have some sort of confrontation with a neighboring tenant and his family (hereinafter referred to as the "Neighbor"). Specifically, Petitioner felt that the Neighbor's children were too loud, and that they were disrupting Petitioner's quiet enjoyment of his residence. Petitioner and the Neighbor argued numerous times, and Petitioner reported these arguments to Respondent. Upon receiving Petitioner's complaints about the Neighbor, Respondent offered to let Petitioner out of his Lease or move him to another apartment. In fact, Respondent agreed to allow Petitioner to move into an upgraded apartment with no increase in the rental fee. Respondent also agreed to waive the transfer fee normally associated with moving from one apartment to another. Petitioner believes that Respondent was dilatory in helping him move to a different apartment. However, there is no evidence to support that contention. The assistant community manager, Makell, indicated that she provided Petitioner with four possible options for moving. Some of the units she offered were undergoing painting or repairs and were not immediately available. Makell remembers only one telephone call from Petitioner concerning his potential interest in one of the available units. Petitioner remembers calling regularly to inquire about the units. Makell also remembers Petitioner ultimately asking for a specific apartment, number 8716 (the "Second Unit"). Petitioner and Newton signed a new lease (referred to herein as the "New Lease") for the Second Unit on February 8, 2010, and moved in on that date. The New Lease was also for a term of one year. The Second Unit was an upgrade from the Initial Unit, but Petitioner was not charged a higher rental fee. The Second Unit was, inexplicably, directly "across the way"1 from the apartment where the Neighbor resided. The evidence as to why Petitioner chose that unit or why he agreed to move into that unit was contradictory and confusing. Nonetheless, it is clear that Petitioner at some point voluntarily moved into the Second Unit. Shortly after Petitioner and Newton moved into the Second Unit, they had some sort of domestic squabble. Newton was pregnant with Petitioner's child, and there were some tensions between them. As a result of the squabble, someone called the police. When the police arrived, they talked with Petitioner and Newton for about an hour and then arrested Newton for domestic violence. Petitioner believes Newton had to be arrested pursuant to police policy, i.e., once the police are called to investigate domestic violence, they have to arrest one of the parties. There was no persuasive, non-hearsay evidence to confirm that such a policy exists. All charges against Newton were apparently dropped. However, the significance of Newton's arrest is that it constituted a breach of the New Lease. Paragraph 28 of the New Lease prohibits conduct which infringes on the quiet enjoyment of the apartment complex by other tenants. As a result, Laurel Oaks gave Petitioner and Newton a "Seven Day Notice of Noncompliance Without Opportunity to Cure" (the "Notice"), which effectively evicted them from the Second Unit. Petitioner does not deny that the New Lease was breached; he admitted so in a letter to Respondent dated May 12, 2010, about a week after the domestic violence arrest occurred. In his letter, Petitioner asks Respondent to reconsider its decision to uphold the provision in the New Lease and to rescind the Notice. Despite Petitioner's plea, Respondent stood by its Notice, and Petitioner was forced to move out of the apartment. At some point thereafter, Petitioner and a representative from Laurel Oaks did a "walk-through" of the Second Unit. A tenant who defaulted under a Laurel Oaks lease would normally be liable for any damages and for all rent that came due until the unit was re-leased. Laurel Oaks suggested at the time of the walk-through that Petitioner would receive a prorated refund for the current month (May) and would not be charged for the remainder of the Lease term. However, Petitioner, thereafter, got into an argument with the community manager, Heckinger, and Heckinger decided to pursue all allowable charges against Petitioner. As a result, when Petitioner received his ultimate receipt from Laurel Oaks, it included a demand for payment in the amount of $589.00 for termination of the Lease, forfeiture of Petitioner's $99.00 security deposit, and the remaining May rent amount ($114.00). Petitioner believes Heckinger and other employees of Laurel Oaks did not take him as seriously as other tenants. He believes Heckinger was "nasty" to him, but not to other tenants. Petitioner believes his request to move to a different apartment was not responded to in a timely fashion. Petitioner provided no evidence that any other residents were, in fact, treated differently than he was treated. There was no evidence presented that persons of color, including Petitioner, were treated differently than similarly situated persons. There was no persuasive evidence that any person affiliated with Laurel Oaks treated Petitioner badly or discriminated against him in any fashion. Laurel Oaks actually did more for Petitioner than was required or mandated by the Lease or by law. Petitioner was given the benefit of the doubt, was provided extra accommodation for his problems, and was treated appropriately. Petitioner also admitted that he did not believe the Laurel Oaks employees were racist.
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 denying Petitioner, Lawrence Jacob, Jr.'s, Petition for Relief in full. DONE AND ENTERED this 10th day of December, 2010, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 10th day of December, 2010.
The Issue Whether Respondent violated the Florida Fair Housing Act as alleged in the Petition for Relief filed with the Florida Commission on Human Relations on July 9, 2007.
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: Petitioner is a single, widowed mother of two minor sons. She belongs to a protected class under the Florida Fair Housing Act because of her sex and familial status. During the times material to these proceedings, Petitioner owned and resided at 1779 Cambridge Village Court, Ocoee, Florida, within the Villages of West Oaks. As a fee interest owner of a lot within the Villages of West Oaks, she is a member of Respondent homeowners' association. Respondent, a not-for-profit corporation, is managed by a Board of Directors drawn from the homeowners' association members elected by members of the homeowners' association as dictated by its Articles of Incorporation and By-Laws. The Board of Directors employed Southwest Property Management to assist the Board of Directors in the management of the homeowners' association, to carry out the instructions of the Board of Directors in the management of the homeowners' association, and to ensure that the homeowners' association's rules were enforced. During the times material to this proceeding, Gary Comstock, an employee of Southwest Property Management, inspected the residences of the Villages of West Oaks to insure compliance with the Covenants, Conditions, and Restrictions of the Villages of West Oaks and Villages of West Oaks Architectural Standards. The above-mentioned Covenants, Conditions, Restrictions and Architectural Standards contain "general restrictions" that address the appearance of the residential lots within the Villages of West Oaks. For example, Article IV, Section 1(f), of the Covenants, Conditions, and Restrictions reads, in pertinent part, "All lots shall be maintained and landscaped to a standard suitable for this type development." The Architectural Standards Manual further defines landscaping standards by dictating the minimum and maximum height and type of lawn grass and provides additional, more specific, landscaping guidelines. However, these landscaping guidelines include the following: "All lots shall be landscaped and in keeping with the general conformity and harmony of the Villages of West Oaks." As a result, the landscaping rules and guidelines are vague. Petitioner was a member of the Board of Directors and Architectural Review Board that created the referenced Villages of West Oaks Architectural Standards Manual in September 2004. Between February 29, 2004, and January 10, 2006, Southwest Property Management sent Petitioner nine letters that addressed purported "disrepair of your home," "covenant violations," "need for lawn replacement," "miscellaneous items on porch," and "miscellaneous items in driveway." During the same general period of time, a significant number of homeowners' association members, female and male (Mr. or Mrs.), apparent single female (Ms.), and apparent married couples (Mr. and Mrs.), received similar letters addressing purported violations similar to those of Petitioner. Petitioner urges that she was discriminated against because of her sex and the fact the she had two teenage boys. Petitioner alleges that this discrimination was manifest in her receipt of the complaints regarding the maintenance of her home and yard. The sheer volume of similar letters to other homeowners and visual evidence received does not support this contention. Admittedly, the "landscape rules and guidelines" require subjective assessment, but there isn't any evidence of discrimination based on sex or familial status. In 2006, the Board of Directors sought volunteers to offer themselves as candidates for board positions. Petitioner offered herself as a candidate at a meeting. Apparently, there was then a discussion among Petitioner, board members and other meeting attendees that Petitioner was not qualified to serve on the board because of her extensive history of violations of the homeowners' association rules. The testimony is conflicting as to whether Petitioner withdrew her name from consideration. The homeowners' association's controlling documents do not contemplate the selection process undertaken at this meeting, nor is there a basis in these documents for disqualification based on a history of violation of homeowners' association rules, except for failure to pay assessments. If this prohibition from candidacy for the Board of Directors reflects discrimination, the discrimination is based on Petitioner's purported failure to comply with homeowners' association rules, not because of her sex or familial status. There is no persuasive evidence that the homeowners' association, either by a member of the Board of Directors or an employee of the property management, threatened to place a lien on Petitioner's property.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Catherine Hall. DONE AND ENTERED this 18th day of October, 2007, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 2007. COPIES FURNISHED: 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 Catherine Hall 584 Neuman Village Court Ocoee, Florida 34761 Ron M. Campbell, Esquire Cole, Scott & Kissane, P.A. 1645 Palm Beach Lakes Boulevard Second Floor West Palm Beach, Florida 33401-2204
The Issue Whether Grandview Landscaping Services, Inc., is liable to Petitioner for the purchase of landscaping trees; and, if so, in what amount.
Findings Of Fact Petitioner, Southeastern Trees, LLC (Petitioner or Southeastern Trees), is a Florida Limited Liability Corporation located in Gainesville, Florida, engaged in the business of commercial tree farming. Keith Lerner is the President of Southeastern, and David Lerner is the Vice President. Respondent, Grandview Landscaping Services, Inc. (Respondent or Grandview), is a Florida corporation headquartered in Ocala, Florida, engaged in commercial landscaping. Grandview is licensed by the Department as a dealer in nursery products, flowers, and sod. In August 2015, John Sapp, Grandview’s owner, visited Petitioner’s tree farm and selected 27 live oak trees to purchase. On December 11, 2014, Mr. Sapp returned to Southeastern Trees and took possession of the 27 live oak trees. Mr. Sapp used his own equipment to haul the trees. Petitioner sent an invoice to Respondent on December 11, 2014, in the amount of $5,724.00 for the 27 live oak trees. The invoice term was “net 30,” allowing 30 days for Respondent to pay in full. After 30 days had elapsed without payment, David Lerner contacted Mr. Sapp to request payment. Mr. Lerner also requested the location of the trees in order to place a lien thereon. According to Mr. Lerner, Mr. Sapp refused to divulge the location of the trees. After 60 days had elapsed without payment, Keith Lerner contacted Mr. Sapp via telephone. According to Keith Lerner, he spoke with Mr. Sapp on March 1, 2015, who informed him the trees were beautiful and Mr. Sapp would “get him a check.” Keith Lerner attempted to reach Mr. Sapp via telephone again on March 10, 2015, and left messages with Grandview’s office and on Mr. Sapp’s personal mobile phone. Mr. Lerner did not receive a return call. On March 25, 2015, Petitioner sent Respondent, via certified mail, a letter requesting payment of $5,724.00 for the 27 live oak trees and “any interest available to us beyond the 30 days of credit that were extended to you.” The letter was delivered to both Grandview’s business address and Mr. Sapp’s home address. The certified mail receipts were returned to Southeastern Trees, signed and dated March 26, 2015. Petitioner filed a complaint with the Department on March 31, 2015, against Southeastern Trees. Petitioner paid a filing fee of $50.00 As of the date of the hearing, Southeastern Trees had not responded to Petitioner’s request for payment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order approving the claim of Southeastern Trees, LLC, against Grandview Landscaping Services, Inc., in the amount of $5,774.00. DONE AND ENTERED this 8th day of October, 2015, in Tallahassee, Leon County, Florida. S Suzanne Van Wyk 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 8th day of October, 2015.
The Issue Whether Petitioner, Sarasota County School Board ("School Board"), has just cause to terminate Respondent, Rebecca Willard's (Respondent), employment as a teacher's aide.
Findings Of Fact Respondent was a teacher's aide at the Oak Park School in Sarasota, which is operated by the School Board. Oak Park School serves students with a broad range of special needs. During the 2007-2008 school year, Respondent was a teacher's aide in a classroom of six autistic children. The disabilities of these children included aggressive and non-verbal children, as well as a child who would run away if not constantly supervised. That classroom was led by one teacher and two aides, including Respondent. That staffing level was necessary for that classroom to ensure the safety of the children. Respondent has a history of excessive absenteeism, which she acknowledged. During the 2007-2008 school year, Oak Park School principal Dan Parrett counseled her informally, and later formally in a noticed meeting, for her excessive absenteeism and reminded her of the critical need for her to be present or inform administration of her absence in sufficient time so that substitute coverage could be arranged. Oak Park School maintained a designated answering machine that staff would use to call in and notify the school of an impending absence, if an employee had not previously notified administration of the absence. For instance, if an employee became ill during the night prior to work, that employee would call the answering machine and advise that he or she was ill and would not be at work. Oak Park School personnel reviewed the messages on the designated answering machine at the beginning of each morning (7:00 a.m.) and would arrange for substitutes for those individuals who left messages that they would be absent. Oak Park School personnel have a difficult time arranging for a substitute if they first learn of an absence later in the morning due to a lack of available substitutes. At all times material to this case, Respondent was aware of the answering machine and the need to inform the Oak Park School administration of any upcoming absence. Respondent failed to report to work at Oak Park School on Monday, April 28, 2008; Tuesday, April 29, 2008; Wednesday, April 30, 2008; and Thursday, May 1, 2008. Respondent did not, nor did anyone on her behalf, notify anyone at Oak Park School or anyone with the School Board prior to these absences that she would not be reporting to work on these dates. Respondent did not, nor did anyone on her behalf, leave a message on the answering machine at Oak Park School at anytime from the end of the school day on Friday, April 25, 2008, through the afternoon of Thursday, May 1, 2008. On May 1, 2008, the fourth consecutive day that Respondent was absent from work without notifying anyone of her absence, the Superintendent recommended Respondent's termination for job abandonment. Respondent testified that the reason she did not report to work the week of April 28, 2008, or leave a message on the answering machine was that she suffered from back spasms and her phone was inoperable. Respondent, however, failed to produce any document or witness to corroborate her statements. Notwithstanding her contention that she could not report to work at Oak Park School on April 28, 2008, or call to advise of her absence, she worked at her second job on Sunday, April 27 and, Monday, April 28, 2008. The undisputed evidence established that Respondent worked at Nokomis Publix on both Sunday, April 27, 2008 (during the afternoon and evening for 8.52 hours), and Monday April 28, 2008 (during the evening for 3.95 hours), which provided her access to a telephone and an opportunity to notify Oak Park School of her absence. Publix's time records for Respondent demonstrate that she was afforded breaks both of those dates and she easily could have made a telephone call and left a message on the Oak Park School answering machine. Because Respondent worked at Publix on Monday evening, April 28, 2008, the assertion that she was suffering from severe back spasms that day and the following days, which precluded her from working at Oak Park School that day is not credible. On April 27 and 28, 2008, Respondent was able to drive to her job at Publix. Respondent conceded that she had an operable motor vehicle the week of April 28, 2008. However, Respondent testified that she was unable to walk down the steps of her apartment or house and drive to the location where she could notify Oak Park School personnel that she would be absent. This testimony is not credible. Contrary to her testimony, Respondent could have notified personnel at Oak Park School, either in person or by telephone prior to her absences, but she did not. Respondent was willfully absent from her teacher's aide position at Oak Park School from April 28, 2008, through and including May 2, 2008. Contrary to her testimony, Respondent could have notified personnel at Oak Park School, either in person or by telephone prior to her absences, but she did not. Respondent voluntarily abandoned her job with the School Board and has no legitimate excuse for her absences. Respondent never requested any type of leave of absence (such as, family medical leave) associated with her absences for the week of April 28, 2008, either before or after that week.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that Petitioner, Sarasota County School Board, enter a final order that dismisses Respondent, Rebecca Willard, from her position as a teacher's aide. DONE AND ENTERED this 30th day of September, 2008, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 2008.
The Issue Is Petitioner entitled to compensation for the sale of agricultural products, and, if so, how much?
Findings Of Fact On or about August 28, 2001, Petitioner sold F.O.B. (Free on Board) at Petitioner's farm to P.S.L. Landscape Services Inc. (hereafter, PSL), 16 Crepe Myrtle trees 14 feet tall and 5 Live Oak trees 2.5 -3.0 inches in Diameter Breast High for a total costs, including tax, of $4,208.20. These trees were dug and wrapped in accordance with the standards of the American Association of Nurseryman in the afternoon of August 30, 2001. The tree roots balls were 40 inches in diameter, and the root balls were placed in wire baskets lined with burlap. The trees were placed upon a flatbed truck with the tops of the trees resting on a rack, and the entirety of the trees, except the roots, covered with a plastic screening material used for this purpose to keep the leaves from becoming wind burned in transit. The trees were transported overnight to PSL where they were received Broward County the following morning at 8:00 a.m. The trees were received and signed for by a representative of PSL, Randy Smith. The documents accompanying the shipment were introduced as part of Petitioner's Composite Exhibit 1. The first of these documents signed by Smith states: Attention: We do not replace trees. If trees are not in satisfactory condition when received, do not accept them. So please take care of your trees. Refer to watering guide in our catalog. The second document signed by Smith provides in bold type at the bottom of the page: DO NOT REFUSE TO UNLOAD THE TRUCK. If there is a serious problem and you question the merchandise, call our office immediately. Our number is 352 493 2496. PSL provided the freight company two checks, one to the freight handler for the freight and the other for 4,208.20 to Petitioner. This check was delivered to the Petitioner by the freight company and deposited by the Petitioner in due course. The Petitioner was notified several days later that a stop payment order had been received on the check for $4,208.20 by PSL. This was the first time the Petitioner was aware of a problem with the merchandise. PSL had not contacted the Petitioner about any problem with the shipment. When Mr. George Kijewski of PSL was contacted regarding the stop payment order, he responded that the trees had wilted. He wrote a letter dated December 21, 2001, to the Department of Agriculture in which he stated: Our firm ordered material from A.D. Andrews Nursery for one of our projects. Two Live Oaks were not number one as ordered. The Crepe Myrtle came in bone dry, not wet as the nursery states. The nursery dug up the plant material ordered and left items in the field until they were loaded onto truck for delivery. They never went to holding area prior to loading to get watered or hardened off. When we got them they were wilting . . . [.] Mr. Deming was present when the trees were prepared. Mr. Kijewski was not present when the trees were prepared. Mr. Deming described the manner in which the trees were dug, prepared for shipment, and shipped. The Crepe Myrtles were dug using a tree spade; the root balls were placed in burlap- lined wire baskets; and the trees placed on the trailer bed where they were secured and covered with a plastic screen to protect them from wind in transit. The Oaks were handled in a similar manner. The trees were not watered; however, the area had received approximately 1.5 inches of water in the seven days prior to shipment. The roots were wet enough to cause the burlap to be damp. The shipping documents do not reflect any wilting or problems although the documents, as quoted above, advised that product should not be received if not in good shape. No notes were made upon receipt reflecting the alleged poor condition of the trees. The trees were sold F.O.B. at Chiefland, and were the property of PSL when loaded.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department enter a final order adopting these findings and conclusions of law, directing PSL to pay to Petitioner $4,208.20 within 14 days of receipt of its final order; and, if PSL fails to abide by the Department's order, directing the surety to make good on its bond in the amount of $4,208.20. DONE AND ENTERED this 30th day of April, 2002, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 2002. COPIES FURNISHED: Andy D. Andrews A. D. Andrews Nursery Post Office Box 1126 Chiefland, Florida 32644 Brenda D. Hyatt, Bureau Chief Department of Agriculture 541 East Tennessee Street Tallahassee, Florida 32308 George Kijewski P.S.L. Landscaping Services, Inc. Post Office Box 9421 Port St. Lucie, Florida 34985 Deborah A. Meek Cumberland Casualty & Surety Company 4311 West Waters Avenue Suite 401 Tampa, Florida 33614
The Issue The issue in this case is whether Respondent, Oakmonte Village, committed an unlawful employment practice against Petitioner, Paulette 1 All statutory references are to Florida Statutes (2019). Relevant provisions of chapter 760 have been unchanged since 2015, prior to any allegedly discriminatory acts. Lewis (Ms. Lewis or Petitioner), on the basis of her race, color, national origin, marital status, religion, age, and/or in retaliation for engaging in a protected activity, in violation of the Florida Civil Rights Act (FCRA).
Findings Of Fact Royal Senior Care Management is a healthcare facility campus operating in Lake Mary, Florida. The campus includes an independent living facility, an assisted living facility, and Oakmonte Village, which is a stand- alone memory care facility that caters exclusively to residents suffering from Alzheimer’s disease and dementia. Ms. Lewis is a 52-year-old black woman. She self-identifies as light- skinned. Ms. Lewis testified that her skin color is lighter than the other black employees who worked for Oakmonte Village. She was born in Jamaica. She is married and a Christian. 3 On January 2, 2020, Oakmonte Village filed Respondent’s Response to Notice of Ex Parte Communication and Motion to Strike (in part), directed to Petitioner’s first post-hearing filing. The motion sought to strike/disregard all references in Petitioner’s filing to a settlement agreement. The motion was granted. References to a settlement were not considered in the resolution of this case. At all times relevant to Ms. Lewis’s complaint, Mr. Jones was the director of Resident Care at Oakmonte Village. Mr. Jones is a 42-year-old black man. He is of American and Jamaican descent. He is currently married, but was not married at all times relevant to the allegations in Ms. Lewis’s complaint. Mr. Jones’s current wife, who was his then romantic companion, is half-Jamaican. Mr. Jones reports directly to Mr. Marshall. Mr. Marshall is the director of Oakmonte Village. Mr. Jones and Mr. Marshall conducted a joint interview of Ms. Lewis for the position of resident caregiver. Mr. Jones and Mr. Marshall, collectively, agreed to hire Ms. Lewis.4 Ms. Lewis began working for Oakmonte Village in November 2017, starting as a part-time resident caregiver. On December 10, 2017, her employment status was changed from part-time to full-time. Ms. Lewis was a resident caregiver throughout her time with Oakmonte Village. By all accounts, Ms. Lewis was an excellent caregiver, with no marked deficiencies in her job performance. Oakmonte Village hires both resident caregivers and medication technicians to care for its residents. At the time Ms. Lewis was hired, resident caregivers were paid $9.00 per hour and medication technicians were paid $10.00 per hour. Ms. Lewis was hired at a rate of pay of $9.50 per hour, more than a typical resident caregiver. She was not hired as a medication technician because she did not have the required certification. Oakmonte Village offers medication technician training to its resident caregivers when it has a need for more medication technicians. Oakmonte Village also offers recertification training to its certified medication technicians. These trainings are conducted at Oakmonte Village by an 4 Ms. Lewis testified that Mr. Jones and Mr. Marshall were aware that she was Jamaican when they hired her. Ms. Lewis also testified that she believed Mr. Jones desired to be Jamaican and had an affinity for Jamaican culture. These facts offered by Ms. Lewis are inconsistent with her claim of discrimination based on her national origin. affiliated company. If a resident caregiver successfully completes certification training, he or she is reclassified as a medication technician and given a raise. Not all resident caregivers can be trained upon request. Certification training is provided by Oakmonte Village based on facility needs. Oakmonte Village typically requires two to three medication technicians per work shift. If Oakmonte Village loses a medication technician, because of a resignation or shift change, it fills the vacancy with a new medication technician by training and certifying a resident caregiver. Employees are not allowed to enroll in the medication technician certification training on their own; they must be nominated by Mr. Jones. There are no strict requirements for the nomination. Mr. Jones testified that he makes the nomination decision based on the employee’s work ethic, skills, and level of responsibility, among other things. Mr. Jones also considers the facility’s needs. Ms. Lewis testified that, upon hire, Mr. Jones told her that in 60 days, she would be promoted to a medication technician. Mr. Jones and Mr. Marshall credibly testified that they tell all new employees that a medication technician certification is a potential means to get a pay increase, but no assurance is given, because none can be given, that certification will definitely be offered to a particular caregiver on a particular timetable. It is based on facility need and that need changes. Ms. Lewis was not nominated to complete the medication technician certification. In April 2018, Ms. Lewis saw a list of caregivers who were nominated by Mr. Jones to complete the certification. She added her name to the list, which was inappropriate because she was not authorized to nominate herself. When Mr. Jones noticed the list had been revised, he removed Ms. Lewis from the list. As Ms. Lewis was not nominated to attend the training, she was, essentially, prevented from getting a raise. Ms. Lewis testified that Oakmonte Village’s failure to nominate her for the medication technician training in April 2018 was based on a discriminatory act. Ms. Lewis offered no evidence to prove that she was treated differently, with respect to a nomination to complete a medication technician certification training, than any other similarly situated employee outside of her protected classes, or that she was not nominated because of her race, color, national origin, marital status, religion, and/or age. Newly hired Oakmonte Village employees are on probation for 90 days. Oakmonte Village directors are strongly encouraged, but are not required, to formally discuss an employee’s job performance after the 90-day probationary period. After employees successfully complete the 90-day probationary period, they are considered permanent employees. Ms. Lewis testified that during her time at Oakmonte Village, she was not given a three-month or six-month evaluation. A formal evaluation is not required at the three-month mark. Oakmonte Village conducted an informal evaluation of Ms. Lewis after her 90-day probationary period (at the three- month mark). Mr. Marshall testified that he informally discussed Ms. Lewis’s job performance with Mr. Jones and that they agreed that Ms. Lewis was doing a “fantastic” job and warranted permanent status. As a result, Ms. Lewis was removed from probationary status and made a permanent employee. It is undisputed that Ms. Lewis continued to work at Oakmonte Village for several months after her 90-day probationary period ended. Oakmonte Village does not conduct a six-month evaluation. After the three- month (90-day) evaluation, which may be formal or informal, the next evaluation that Oakmonte Village conducts is at the one-year mark. Ms. Lewis failed to offer evidence showing how Oakmonte Village’s failure to provide a formal evaluation at the three-month or six-month mark adversely affected her or constituted a discriminatory act. Further, Ms. Lewis offered no evidence showing that she was treated differently, with respect to evaluations, than any other similarly situated employee outside of her protected classes, or that Oakmonte Village’s failure to provide a formal evaluation was because of her race, color, national origin, marital status, religion, and/or age. Oakmonte Village employees who work 64 hours or more per pay period (or 32 hours or more per week) are considered full-time employees. Full-time employees have extra benefits, including paid time off. Ms. Lewis reported directly to Mr. Jones. Mr. Jones was in charge of setting her schedule. During the weeks of June 17 through 23, June 24 through 30, and July 1 through 7, 2018, Ms. Lewis was scheduled to work two days (16 hours) per week. As Ms. Lewis was a full-time employee, this amounted to a 50 percent reduction in her scheduled hours. On June 15, 2018, Ms. Lewis emailed Mr. Marshall to complain about her reduced scheduled hours. Mr. Marshall was on vacation when he received the email, but agreed to discuss the matter with her when he returned. On June 16, 2018, Ms. Lewis emailed Mr. Jones to complain about her reduced scheduled hours. Mr. Jones told Ms. Lewis that he and Mr. Marshall would discuss her hours with her the following Monday. Mr. Marshall testified that upon his return to work, he discussed Ms. Lewis’s reduced hours with Mr. Jones and directed him to increase her hours to at least 32 hours per week. Ms. Lewis corroborated that this was accomplished when she testified that Mr. Jones called her in to work on several days to make up her reduced hours. For the week of June 17 through 23, Ms. Lewis worked and was paid for 16 hours. For the week of June 24 through 30, although she was initially scheduled to work for 16 hours, after Mr. Marshall spoke with Mr. Jones, Ms. Lewis worked and was paid for 40 hours. For the week of July 1 through 7, Ms. Lewis worked and was paid for 27.25 hours. Ms. Lewis’s last day at Oakmonte Village was July 5, 2018. She was scheduled to work eight hours on July 7, 2018. Had she worked on July 7, her total hours worked for the week of July 1 through July 7 would have been 35.25 hours. Ms. Lewis testified that the reason her hours were cut in June was due to Mr. Jones’s disdain for her because of her national origin, religion, color, and because she was a poet.5 Contrary to that description, Ms. Lewis testified that, during a meeting with Mr. Jones about her reduced hours, he told her that her hours were reduced because she was confrontational and not a team player. Ms. Lewis testified that she was the only Jamaican working at Oakmonte Village and that no other employees experienced a reduction in hours during this time. Ms. Lewis did not present any evidence at the final hearing, outside of her own assertions, that she was treated differently, with respect to scheduling of hours, than any other similarly situated employee outside of her protected classes, or that the reduction in work hours was because of her race, color, national origin, marital status, religion, and/or age. In fact, except for one week in June 2018, Ms. Lewis worked and was paid for more than 32 hours each week. Oakmonte Village operates continuously with three employee shifts: 6:00 a.m. to 2:30 p.m.; 2:00 p.m. to 10:30 p.m.; and 10:00 p.m. to 6:30 a.m. On July 4, 2018, Mr. Jones asked Ms. Lewis to come in to work the 10:00 p.m. to 6:30 a.m. shift (the night shift). She was not initially scheduled to work that day, and generally did not work the night shift, but in an effort to provide her more hours, she was asked to come in. During the July 4 to 5 night shift, Ms. Lewis worked alongside Monica Nurse (Ms. Nurse), Adrianna Rivera (Ms. Rivera), and Shanece Newman (Ms. Newman). Ms. Lewis testified that shortly after she arrived, she noticed Ms. Newman asleep at a desk, where she remained asleep for approximately two hours. Ms. Rivera asked Ms. Lewis to provide care to one of 5 Ms. Lewis testified at length that Mr. Jones disliked her because she was a poet and a writer. Writer/poet is not a protected class under the FCRA. Ms. Newman’s assigned residents. After tending to the resident, Ms. Lewis complained to Ms. Rivera about having to help Ms. Newman while also carrying out her own duties. This complaint instigated a verbal altercation between Ms. Lewis and Ms. Rivera. Ms. Nurse and Ms. Newman quickly joined the argument. Ms. Lewis testified that all three coworkers began screaming at her. Feeling threatened, Ms. Lewis called 9-1-1. As Ms. Lewis spoke to the 9-1-1 operator, Ms. Rivera contacted Mr. Marshall by telephone. A police officer arrived at the scene. Ms. Lewis testified that, by speaker phone, Mr. Marshall told her to return her emergency keys (which allowed her entrance to the building) and told her that she was fired. Mr. Marshall disputes this testimony. Mr. Marshall credibly testified that, by phone, Ms. Lewis told him that she could no longer work under those conditions and that she resigned. The persuasive and credible evidence presented at the hearing demonstrated that Ms. Lewis resigned because of the conflict with her coworkers. On July 5, 2018, Mr. Marshall emailed Ms. Lewis stating: “Thank you for your service I will mail your final check[.]” In response, Ms. Lewis emailed: “John my safety comes first. Sorry you didn’t see it that way. May God bless Oakmonte Village[.]” Ms. Lewis asserted during the final hearing that the events of the July 4 to July 5 night shift were planned by Mr. Jones and Mr. Marshall. Ms. Lewis testified that she was “set up” by Mr. Jones and Mr. Marshall so that the other three employees working that night would “jump” her. Mr. Jones and Mr. Marshall denied these allegations. Ms. Lewis presented no credible evidence that Mr. Jones and Mr. Marshall orchestrated the alleged “set up.” Further, even if this allegation were true, Ms. Lewis presented no evidence to prove that the “set up” was because of her race, color, national origin, marital status, religion, and/or age. Ms. Lewis asserts that during her time at Oakmonte Village, she experienced persistent discrimination.6 Ms. Lewis generally complained that Oakmonte Village had a hostile work environment. Ms. Lewis described an incident in November 2017, during her interview for the position for which she was hired, when Mr. Jones seemed taken aback by her non-existent criminal history. Ms. Lewis also testified that Mr. Jones once asked her “who the F do you think you are that your coworkers have to say please and thank you?” Ms. Lewis also had other personal conflicts with a few of her coworkers. Ms. Lewis complained, specifically, about her relationship with Ms. Debbie Perry (Ms. Perry). Ms. Perry is a 53-year-old black woman. Ms. Lewis testified that Ms. Perry frequently cursed at her and once intentionally bumped into her. Ms. Lewis complained to Mr. Marshall about her interactions with Ms. Perry. Mr. Marshall met with Ms. Lewis to discuss the issue and directed her to speak to him should the issue arise again. Mr. Marshall testified that he also spoke to Ms. Perry. Mr. Marshall indicated that after he met with them separately, Ms. Lewis presented no additional complaints about Ms. Perry. Ms. Lewis did not claim that either Ms. Perry’s alleged harassment, or Oakmonte Village’s response to Ms. Lewis’s complaint, was because of Ms. Lewis’s race, color, national origin, marital status, religion, and/or age. On or about July 3, 2018, a state agency conducted an investigation of Oakmonte Village. The nature of the investigation is unknown as no evidence about the type of or reason for the investigation was offered at the hearing. Ms. Lewis testified that rumors swirled at Oakmonte Village about a possible “informant.” Ms. Lewis testified that she was not the informant and she 6 Ms. Lewis offered several anecdotal circumstances, in addition to the ones provided in paragraph 29, such as whether Oakmonte Village’s work schedule listed her as a caregiver or medication technician, which she suggested were somehow discriminatory. None of her examples were persuasive. None could reasonably be considered evidence of discrimination because of her race, color, national origin, marital status, religion, and/or age. presented no evidence that her coworkers or supervisors believed she was the informant. Ms. Lewis suggested that Oakmonte Village retaliated against her for participating in a protected activity, but she did not identify a protected activity on which she is relying to make this claim, nor did she specify what action was taken in retaliation for the unidentified protected activity. Ms. Lewis alleged several bases for discrimination, including race, color, national origin, marital status, religion, and age, but did not present a persuasive case of discrimination based on any of those protected classes. Information related to claims based on her marital status and religion was not mentioned in any relevant detail at the hearing. Ms. Lewis failed to prove that Oakmonte Village’s reduction of her work hours, its decision to not nominate her for the medication technician certification training, and its failure to formally evaluate her were based on race, color, national origin, marital status, religion, and/or age discrimination, nor did she prove that any other similarly situated employees outside her protected classes were treated more favorably. Accordingly, Ms. Lewis failed to meet her burden of proving that Oakmonte Village committed an unlawful employment action against her in violation of the FCRA.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Ms. Lewis’s Petition for Relief. DONE AND ENTERED this 18th day of February, 2020, in Tallahassee, Leon County, Florida. S JODI-ANN V. LIVINGSTONE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Paulette Lewis 1658 April Avenue Deltona, Florida 32725 Timothy Tack, Esquire Fisher Phillips Suite 2350 101 East Kennedy Boulevard Tampa, Florida 33602 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue The issues to be resolved in this proceeding concern whether the Respondent, as a member of the City Commission of Oak Hill, Florida, committed a violation of Section 112.313(6), Florida Statutes, by allegedly threatening the police chief's employment status during a verbal altercation.
Findings Of Fact Charles Dean, the Respondent, was elected to the Oak Hill City Commission in the 2004 election and took office in January 2005. He is employed as a Senior Manager of Operations and Management for the Kennedy Space Center and also is a saddle and harness maker, owning C. Dean's Saddle Shop jointly with his wife, Carol Dean. As an elected public officer, the Respondent is subject to the requirements of Part III, Chapter 112, Florida Statutes, which is the Code of Ethics for public officers and employees with regard to any acts or omissions committed during his tenure in office. The Petitioner, Ethics Commission, is an agency of the State of Florida charged with enforcing the provisions related to ethical standards for public officers and employees embodied in Part III, Chapter 112, Florida Statutes, and for imposing sanctions for violations thereof. The City Commissioners of Oak Hill, including the Respondent, are elected officials accountable to citizens at regular elections and are subject to recall as permitted by law and in accordance with the Oak Hill City Charter. The Commission also appoints heads of departments from among the sitting commissioners. The function of the department heads is to ensure that the department to which they are assigned is running efficiently in carrying out the Commission's directives. The Respondent was appointed as department head of the solid waste department. He had no authority over the police department. According to the Oak Hill City Charter, no individual commissioner, except the appointed department head for a particular department, is permitted to give directives or orders to any employee, except in cases of emergency. The Respondent, in his testimony, indicated his awareness of those limitations on his authority as a city commissioner in his contact with city employees. In his position at the Kennedy Space Center employed by NASA, the Respondent is a Senior Manager of utilities and supervises some 900 employees. He thus has professional awareness and experience in dealing with personnel matters such as employee suspensions, terminations and the like. The Complainant, Walter Zalisko, was hired by a majority vote of the City Commission to be Chief of Police for the City of Oak Hill. He was hired on July 29, 2004, before the Respondent's election to the City Commission. He was hired with the charge of elevating the professional standing and status of the City of Oak Hill Police Department. Soon after he took office in January 2005, the Respondent encountered difficulties in his relationship with Chief Zalisko. This occurred over the manner in which then Chief Zalisko handled the suspension and termination of Oak Hill City Police Department Officer Dee Williams. At a City Commission meeting on April 18, 2005, the Respondent took issue with the fact that Chief Zalisko had unilaterally suspended Officer Williams from her position, without pay, pending an internal audit, rather than bringing that decision before the City Commission for a vote. After the Respondent raised the issue at that meeting, the City Commission voted to reinstate Officer Williams's pay pending the internal audit results. In reality the Respondent objected to the procedure used by then Chief Zalisko against Officer Williams, rather than the actual decision to terminate the officer. In fact, the Respondent ultimately voted to terminate Officer Williams from the Oak Hill Police Department. In any event, after the April 18, 2005, City Commission meeting, then Chief Zalisko was angry that the Respondent had questioned his authority to suspend Officer Williams without pay in front of the City Commission. While walking back from the City Commission meeting Chief Zalisko called the Respondent a derogatory name and stated to other police officers that he was "going to get him." Apparently various members of the community communicated to the Respondent that Chief Zalisko was very upset with him and was "having him watched." Officer Winston of the police department came to the Respondent's shop and told the Respondent that the Chief was "out to get him and was watching his shop and having officers take photographs of cars parked at his shop." Sometime in June 2005 the Respondent received a telephone call from an anonymous caller advising him that Chief Zalisko was watching his saddle shop and having police officers take photos of cars parked there. This person was later revealed to be Sergeant Guy Grasso who replaced Zalisko as the current Chief of Police for Oak Hill and who testified in the hearing. Chief Grasso contacted the Respondent after Chief Zalisko ordered officers, including Grasso, to keep cameras in their police cars and photograph and ticket cars parked illegally at the Respondent's shop.1/ As shown by Advocate's Exhibit A-3 (A-F) a series of photographs (A-F) of cars parked at the Respondent's business, photographs indeed, were taken. Although Chief Zalisko initially denied that he had done so, or ordered it done, he also testified that he took some of the photographs, but thought that Officer Ihnkin or Officer Winston had taken the remainder of the photographs. In any event, both Officer Ihnkin's and Chief Grasso's testimony as well as that of Chief Zalisko, shows that photographs of cars parked in front of the Respondent's shop were taken, and implicitly would only have been taken upon then Chief Zalisko's order. Officer Ihnkin testified that Chief Zalisko told police officers prior to October 11, 2005, to write tickets for cars parked in front of Dean's Saddle Shop and to take photographs of the cars there. The current Chief of Police, Guy Grasso, also testified that before October 11, 2005, then Chief Zalisko had ordered all officers to take photographs of cars parked at the Respondent's saddle shop business and to give tickets to cars parked there. Chief Zalisko had discussions with members of the police department concerning the application of Section 316.945, Florida Statutes (the parking violation statute) as it pertained to the Respondent's shop and its location. An issue arose about the location of a stop sign at the corner of U.S. 1 and East Halifax Avenue, concerning the legality of cars parked in relation to the sign. Officer Ihnkin testified that he pointed out to Zalisko that the statute required that a car be parked 30 feet on the approach to the stop sign (presumably a minimum of 30 feet distance from the sign) and that cars parked on U.S. 1 in front of the saddle shop were actually behind the stop sign so they could not be on the approach to it and were therefore legally parked. Officer Ihnkin relates that Chief Zalisko opined that any car parked in front of the saddle shop was illegally parked and should be cited. Both Chief Grasso and Officer Ihnkin's testimony regarding the conversations they had with Chief Zalisko about the applicability of the above statute to parking in the vicinity of the saddle shop is corroborated by Chief Zalisko's opinion that it is not legal to park in front of Dean's Saddle Shop on U.S. 1 or on the East Halifax side of the shop. There were four or five incidents before October 11, 2005, while the Respondent was at his shop, when he was contacted by officers from the police department about cars parked in front of the shop. There was never an incident where the officer was rude to him, the contacts were friendly and the Respondent always voluntarily had the cars moved. Kelly's Bait and Tackle Shop and Shell Gas Station is a nearby business which has a stop sign on U.S. 1 next to the business. The Respondent observed cars parked around that stop sign and the gas station actually dispensing gas to cars which technically were on the right-of-way of U.S. 1. Neither the cars nor the business was ever cited or told to move the cars, according to the Respondent. Whether or not this was true the Respondent felt that he was being harassed by Chief Zalisko by having his business targeted and not other businesses. The fact that people were telling him, rightly or wrongly, that he was being watched by the police chief and that customers were having to move their cars from his shop, when other businesses were not being so closely watched, or supervised by the police department fed the Respondent's feelings of harassment on the part of then Chief Zalisko. On October 10, 2005, a City Commission meeting was held at which the Respondent once again took issue with the way Chief Zalisko handled the promotion of Sergeant Shaffer to lieutenant. The City of Oak Hill operates by resolution, and before anyone could be promoted to the position of lieutenant the city needed to pass a resolution creating that position. On October 7, 2005, before the City Commission had voted on whether to create the lieutenant's position, Chief Zalisko issued a press release announcing that Officer Shaffer had been promoted to lieutenant. The Respondent took issue with Chief Zalisko at the City Commission meeting for announcing to the newspaper that the promotion had been made, when in fact it had not. Chief Zalisko became angry with the Respondent and raised his voice on that occasion. The Respondent actually approved having Officer Shaffer promoted to lieutenant, but was at odds at Chief Zalisko over the procedure that Chief Zalisko had used. Chief Zalisko's anger at the Respondent from the events of the October 10th City Commission meeting is corroborated by Advocate's Exhibit 6, in which Zalisko describes the Respondent's conduct at the October 10th meeting as "ruining Lieutenant Shaffer's day" by unnecessary "show boating." On October 11, 2005, Officer Ihnkin observed a car parked in front of Dean's Saddle Shop. He thought it might be illegally parked, but rather than issue a citation he went into the shop and asked the owner of the car to move it, which the owner readily did. Officer Ihnkin stated that the sales lady, who actually was the Respondent's wife, stopped him while he was in the store and accused him and the police department of harassing them and interrupting her sale. Mrs. Dean and witness Charlie Haynes, a good friend of the Dean's niece and nephew, both testified that the officer behaved in a gruff rude manner toward Mrs. Dean. Officer Ihnkin denied being rude or unprofessional or that he raised his voice. Mrs. Dean testified that she primarily runs the shop, with some help from her husband. She had never encountered any problems with parking around the shop, according to her testimony, until the Respondent questioned Chief Zalisko about policy and procedures regarding the Williams suspension incident. After that she maintains police officers would come to the shop and tell customers to move their cars. The customers complied with it. Mrs. Dean maintains that during that same time period no other businesses in the vicinity were having parked cars moved. She also states that she observed Chief Zalisko sitting in his patrol car watching her business with binoculars. These incidents purportedly occurred between February and October of 2005. In any event, at the end of the October 11, 2005, incident in the store, Office Ihnkin left the saddle shop after the customer complied with his request to move the car without issuing a traffic citation or a written warning. Later that afternoon the Respondent came to the saddle shop after work. Mrs. Dean explained what had happened and told the Respondent that the officer had been rude. The Respondent told his wife that he would find out about the situation and went to the police station. Upon arriving at the Oak Hill Police Station, the Respondent confronted Chief Zalisko in his office regarding the incident at Dean's Saddle Shop earlier that day. The Respondent asked the chief why the officer had been rude to his wife and the chief responded by telling him that the officer had not been rude. During the conversation regarding the incident with Officer Ihnkin at the saddle shop, the Respondent told Chief Zalisko that "you work for me." Chief Zalisko maintains in his testimony that he responded that he did not work for the Respondent, but that he worked for the city commission as a whole. The Respondent went on to criticize the way the chief was running the police department and told the chief that he did not feel that he was following proper procedures. During the course of the heated conversation of about 10 minutes duration the subject of the promotion of Lieutenant Shaffer came up once again. The Respondent indicated his displeasure at the way Chief Zalisko had handled the matter of the promotion of Lieutenant Shaffer. The Respondent maintains that he did not raise the issue of Lieutenant Shaffer's promotion during this conversation because he did not want to upset Lieutenant Shaffer once again as had been done the night before at the city commission meeting. Lieutenant Shaffer was present during this conversation between the Respondent and Chief Zalisko in the police station. Regardless of who brought up the Lieutenant Shaffer promotion issue again, it is undisputed that in the conversation the Respondent made the comment, "I am coming after your job, and I am going to work hard to get rid of you." This comment was made near the end of the conversation when the Lieutenant Shaffer promotion was being discussed. The evidence does not reflect that the Respondent ever approached Officer Ihnkin concerning the way that he felt the officer had treated Mrs. Dean at the saddle shop on the day in question. The evidence does not indicate that he directed Chief Zalisko to do anything regarding parking citations or violations at his shop. He never issued any orders or directives to Chief Zalisko during that conversation at the police station. It is undisputed that both Chief Zalisko and the Respondent were speaking to each other with raised voices, arguing during this conversation. The conversation or argument lasted approximately 10 minutes whereupon the Respondent left the police station. The Respondent admitted in his testimony at final hearing that he made the comments to Chief Zalisko in both his official capacity as a city commissioner and in his capacity as a private citizen. Chief Zalisko in his testimony stated that he felt uncomfortable with the way the Respondent approached him during the argument in the police station. He testified that it was the second time the Respondent has threatened his job and he felt that he could go through with the threat and that he was misusing his position "for some personal gain to his saddle shop." Chief Zalisko further acknowledged that the Respondent never told him not to enforce the traffic laws at his shop, or that everybody should be ticketed, but the chief testified that the fact that the Respondent was complaining to him in his office and the fact that he was a commissioner sent him a signal that the Respondent was looking "for some preferential treatment." It is clear that during the conversation the Respondent told the chief that the chief "worked for him" in the context of the Ihnkin incident. It is also clear that the Respondent knew at the time of the confrontation that he should not use his official position to confront Chief Zalisko and threaten his job, regardless of whether it was about the parking situation or what the Respondent believed about the way the chief managed the police department, including the Lieutenant Shaffer promotion incident. The Respondent understood the limitations and restrictions of both the city charter and the code of ethics. City commissioners are accountable to the citizens and the Respondent was the appointed head of the Solid Waste Department therefore he had no authority to issue orders or directives concerning the police department. Parenthetically, there is no evidence that he actually did that. Under the city charter no individual commissioner, except the commissioner who is an appointed department head, may give directives to employees of a commissioner's assigned department. The Respondent sought to justify his behavior on October 11, 2005, by alleging that he felt that Chief Zalisko had been harassing him. The totality of the evidence of record indicates that there is some validity to the contention that Chief Zalisko was harassing the Respondent, even in the face of the fact that no actual tickets or warnings were issued for parking violations adjacent to the Respondent's saddle shop. The evidence, however, clearly and convincingly demonstrates that the Respondent, while a member of the Oak Hill City Commission, whet to the office of the police chief and threatened the police chief concerning his employment status, after a police officer had notified the Respondent's wife of a parking violation in front of their business, and his wife had conveyed to the Respondent the message that the officer had been rude to her. The Respondent, both as a private citizen and as a city commissioner, made direct threats of retaliation against Chief Zalisko concerning his employment.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and the arguments of the parties, it is, therefore, RECOMMENDED that a final order and public report be entered by the Florida Commission on Ethics finding that the Respondent Charles Dean, violated Section 112.313(6), Florida Statutes (2007), and imposing a civil penalty of two hundred dollars. DONE AND ENTERED this 31st day of January, 2008, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 January, 2008.
