The Issue The issue is whether Respondent engaged in an unlawful employment practice.
Findings Of Fact Mr. Phillips is a person of the masculine sex. He was employed as a maintenance foreman at Respondent Martin Stables South, Inc. (Martin Stables), of Reddick, Florida, from May 19, 2005, until June 27, 2005. Edmund Martin is the president of Martin Stables. He is also the only stockholder. Mr. Martin is aware of the number of employees working at Martin Stables. He testified that Martin Stables had less than 15 employees during the period May 19, 2005 to June 27, 2005. Moreover, he testified that Martin Stables never employed 15 or more employees in the current year, or in the year preceding May 19, 2005. He further stated that Martin Stables had never employed as many as 15 employees at any given time. Mr. Phillips provided no evidence contradicting this assertion.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Human Relations dismiss the Petition. DONE AND ENTERED this 11th day of May, 2006, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 11th day of May, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 John L. Phillips Post Office Box 771011 Ocala, Florida 34477 David A. Glenny, Esquire Bice Cole Law Firm, P.L. 1333 Southeast Twenty-Fifth Loop Suite 101 Ocala, Florida 34471 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Petitioner's witness admitted that all of the sign were permittable with the possible exception of the sign located .90 miles east of US 27 which is in the city limits of Bartow (Sign #5, Exhibit 1). Respondent has applied for permits for those signs for which permits are required. Sign #5 was first erected in 1942 by Respondent's predecessor in title and was rebuilt in 1952. The lessor of the property when the sign was first erected was the City of Bartow and it was sold to a private party in 1944. At the time the sign was erected and rebuilt there was no zoning ordinance in Bartow. Non-conforming lawful uses of property before the enactment of Bartow' s Zoning Ordinance were grandfathered and remained lawful after passage of the Zoning Ordinance (Exhibit 2, Section 4)
The Issue Whether Respondent Employer is guilty of an unlawful employment practice against Petitioner Employee.
Findings Of Fact On or about November 17, 2006, Petitioner filed an Employment Complaint of Discrimination (formerly known as a "Charge of Discrimination") on the basis of disability/handicap and national origin with the Florida Commission on Human Relations. On June 15, 2007, the Commission entered a Determination: No Cause. On or about July 2, 2007, Petitioner filed a Petition for Relief with the Commission. On or about July 5, 2007, this case was referred by the Commission to the Division of Administrative Hearings. On July 18, 2007, a telephonic conference was held to schedule a final disputed-fact hearing date. The hearing date agreed upon was October 1, 2007, and a Notice of Hearing and Order of Pre-hearing Instructions issued on July 18, 2007. Neither party complied with the Order of Pre-hearing Instructions. At the time noticed for October 1, 2007, Respondent appeared for hearing. In the Joint Response to Initial Order, filed July 16, 2007, and in a subsequent Motion filed September 26, 2007, Respondent referred to itself as "Wal-Mart Stores, East L.P. (incorrectly referred-to in the caption as Wal-Mart Stores)," but made no motion to correct the style of this cause. Respondent acknowledged in its pleadings, and its counsel acknowledged orally at hearing, that it was the appropriate Respondent in this cause, regardless of the case's style. After waiting 30 minutes, Petitioner still had not appeared for hearing. The undersigned made diligent inquiry to ensure that Respondent had done nothing to discourage Petitioner from appearing, and closed the hearing.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Employment Complaint of Discrimination and a Petition for Relief. DONE AND ENTERED this 3rd day of October, 2007, in Tallahassee, Leon County, Florida. S ___ ELLA JANE P. DAVIS 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 3rd day of October, 2007. COPIES FURNISHED: 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 Amy Harrison, Esquire Lindsay A. Connor, Esquire Ford & Harrison 225 Water Street, Suite 710 Jacksonville, Florida 32202 Catrina Soriano 1826 Nekoma Court Tallahassee, Florida 32304
The Issue Whether Petitioners are entitled to an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes.
Findings Of Fact Stipulated Facts On or about May 14, 2007, the Department filed an Administrative Complaint alleging that Respondents in the merits case held themselves out as interior designers. On or about August 15, 2007, Braxton filed an Election of Rights requesting a formal hearing. On October 15, 2007, Braxton filed a Motion for Attorney’s Fees and Costs. On or about October 18, 2007, the Department filed a Motion to Dismiss Formal Hearing based on the parties’ agreement that the case would be resubmitted to the Probable Cause Panel with the recommendation of dismissal. On or about October 19, 2007, the Division of Administrative Hearings entered an Order Closing File. On or about November 5, 2007, the case was presented to the Probable Cause Panel and a Closing Order was entered. On or about December 18, 2007, a letter was sent to Braxton’s attorney indicating the matter was closed and no further action was required. However, the letter did not enclose a copy of the Probable Cause Panel Closing Order. On March 3, 2008, Braxton sent a letter to the Department’s counsel asking for a copy of “any final action taken by the Probable Cause Panel.” On or about March 7, 2008, a copy of the closing order was faxed to counsel for Braxton. On or about April 7, 2008, Braxton filed a Supplemental Motion of Attorney’s Fees and Costs. Facts Based Upon the Evidence of Record In the Motion and Supplemental Motion, Braxton seeks relief under the Florida Equal Access to Justice Act, Section 57.111, Florida Statutes. There is no dispute that Braxton is a small business party for purposes of Subsection 57.111(4)(a), Florida Statutes. There is no dispute that Braxton is the prevailing party in the underlying merits case. There is no dispute that the fees and costs set forth in the April 7, 2008, affidavit filed with the Supplemental Motion for Attorney’s Fees and Costs are reasonable. The undersigned has reviewed the Supplemental Affidavit as to Attorney’s Fees and Costs filed on October 27, 2008, and the Second Supplemental Affidavit as to Attorney’s Fees and Costs filed on December 10, 2008, and finds the fees and costs contained therein to be reasonable. Dwight Chastain is an investigator for the Department and, while employed by a private law firm, investigates complaints concerning the Board of Architecture and Interior Design. In December 2006, Mr. Chastain received a complaint letter regarding Petitioner herein, Sheryl Lyn Braxton. The complaint letter was addressed to the law firm for which Mr. Chastain is employed. The letter alleged that Ms. Braxton represented herself to the public as an interior designer, and that the complainant could find no evidence that she held a license “specifically that of an interior designer as represented in attached CBS website, is held either by her personally or her company “Braxton Designs.” Attached to the complaint letter is a page purportedly from the website, CBS.com, specifically a link from the television show, “Big Brother 2.” Additionally, the complaint letter alleged that Ms. Braxton had verbally represented to "many individuals" that she had performed interior design work for Ivana and Donald Trump at the Plaza Hotel in Manhattan. While the letter contains a signature, it is impossible to decipher the writer’s last name, and Mr. Chastain considered the signature to be illegible. Further, the letter did not contain a return address or a telephone number. Because the writer’s name is illegible and there was no contact information in the letter, the complaint letter is essentially anonymous. The printed page attached to the complaint letter from the CBS website identifies a participant on the show as “Sheryl,” with no last name mentioned, from Ponte Vedre Beach, Florida. Under the heading “personal profile,” her occupation is listed as interior designer. The copyright date at the bottom of the page is “MMIII,” which is 2003, although Ms. Braxton participated in the Big Brother show in 2001. The name “Braxton Interiors” does not appear on the printout from the CBS website. Also attached to the complaint letter is a page purportedly from the myflorida.com website showing that Sheryl Lyn Braxton held a current real estate license and was employed by Florida Network LLC, a real estate corporation. Mr. Chastain could not decipher the signature on the letter and, therefore, did not attempt to contact the complainant. He did a fictitious name search of and did not find anything under the name of Braxton Designs, Braxton Designers or Sheryl Lyn Braxton. Mr. Chastain searched the Department's database and found that Sheryl Lyn Braxton was not licensed by the Board of Architecture and Interior Design. Mr. Chastain also went to the CBS website and found the page referencing “Sheryl” more fully described above in paragraph 18. There is nothing in the record to indicate that Mr. Chastain called CBS to seek any information which Ms. Braxton submitted to CBS about herself, i.e., whether she actually held herself out to be an interior designer to CBS. Mr. Chastain acknowledged at hearing that in his computer searches of Ms. Braxton’s name and “Braxton Designs,” he found nothing indicating that Ms. Braxton held herself out to anyone as an interior designer. There is nothing in the record to indicate that Mr. Chastain spoke to anyone who confirmed the allegations in the complaint letter that Ms. Braxton verbally held herself out to anyone that she was an interior designer. On January 5, 2007, Mr. Chastain wrote a letter to Ms. Braxton informing her that the Board of Architecture and Interior Design had initiated a complaint investigation as to allegations that she was using the title “interior designer," or words to that effect, without a valid license. The letter also informs her that “[y]ou have 20 days to respond in writing or you may contact me at (850) 402-1570. My email address is dwightc@stslaw.com.” Ms. Braxton called Mr. Chastain’s office and left two voice mail messages for him, neither of which he received. Regardless of the circumstances of Ms. Braxton’s response to the letter, Mr. Chastain proceeded with the belief that she had not responded to his letter.3/ Mr. Chastain wrote an Investigative Report which was provided to the Probable Cause Panel. The report read in pertinent part: Alleged Violation: FS481.223(1)(c) use of the name or title “interior designer”, or words to that effect, without a valid state license. Synopsis: This investigation was based on a consumer complaint in which it is alleged that subject appeared on the CBS television show Big Brother Show link, identifies her as an interior designer. Complainant alleges subject does business under the name Braxton Design and that she has verbally represented herself to “many individuals” that she has been involved in the interior design of many high-profile residential and commercial buildings. (Exhibit 1) Subject is not licensed as an interior designer in Florida, but is licensed as a real estate sales associate. Braxton design is not a registered corporation or fictitious name with the Florida Secretary of State. (Exhibit 2) Subject was notified of this investigation by letter dated January 5, 2007, but failed to respond. The letter was not returned undelivered. (Exhibit 3) Meeting of Probable Cause Panel The Probable Cause Panel met on May 14, 2007, during which the Braxton case was considered. The packet of materials which the panel members received regarding the Braxton case consists of a memorandum to the panel members from the prosecuting attorney regarding the case; another memorandum from the prosecuting attorney to someone named Emory Johnson regarding the case; a draft administrative complaint; a draft Notice and Order to Cease and Desist; the investigative report written by Mr. Chastain with three attachments: the complaint letter with the page from the CBS website and printout showing Ms. Braxton’s real estate licensure status; copies of licensing and corporate registration information found by Mr. Chastain; and the letter written by Mr. Chastain to Ms. Braxton notifying her of the complaint. The transcript of the Probable Cause Panel concerning the Braxton case reads as follows: MR. MINACCI: Tab A-6, Sheryl Lyn Braxton, Case Number 2007-000968. The subject is unlicensed and held herself out as an interior designer on the CBS television show “Big Brother.” The subject failed to respond to the investigation. Recommendation, notice of order to cease and desist, one count Administrative Complaint for using the title “interior designer” without a license. MR. WIRTZ: Motion to accept counsel’s recommendation for one count. THE CHAIR: Second. Discussion. Hearing none, all those in favor of the motion, signify by saying aye. (so signified by aye.) THE CHAIR: Opposed, like sign. (No response.) THE CHAIR: Hearing none, the motion carries unanimously. MR. WIRTZ: She’s a big star. She can afford 5,000 for the count plus costs. THE CHAIR: Second. Recommendation has been made and seconded. Discussion? Hearing none, all those in favor of the recommendation, signify by saying aye. (So signified by aye.) THE CHAIR: Opposed, like sign. (No response.) THE CHAIR: Hearing none, the recommendation carries. MR. HALL: Shall we send a copy of the complaint to CBS? THE CHAIR: If you would like to. THE [sic] HALL: We certainly can. MR. Wirtz: I think we should. An Administrative Complaint was filed against Sheryl Lyn Braxton and Braxton Designers with the Department’s clerk on May 21, 2007, which began the underlying merits case.
The Issue This is a case in which the Petitioner alleges that the Respondent has engaged in an unlawful employment practice within the meaning of Section 760.10(1)(a), Florida Statutes, by engaging in the following activities: (a) Discharging the Petitioner from her position of employment with Respondent because of Petitioner's race and (b) after discharging the Petitioner, continuing to seek applications for the position previously held by the Petitioner from similarly qualified or less qualified applicants. Subsequent to the filing of her petition for relief, the Petitioner filed a motion for default pursuant to Rule 22T- 9.008(5)(d), Florida Administrative Code, based upon the Respondent's failure to file an answer to the petition as required by the cited rule. By order dated September 21, 1987, the Respondent was given until October 5, 1987, within which to show cause as to why the relief requested in the motion for default should not be granted. The Respondent failed to respond to the order of September 21, 1987, and on October 7, 1987, an order was issued which included the following language: That pursuant to Rule 22T-9.008(5)(d), Florida Administrative Code, the Respondent is hereby deemed to have admitted all material facts alleged in the petition. That at the final hearing in this case the material facts alleged in the petition will be taken as established without further proof, but both parties will be afforded an opportunity at the final hearing to offer evidence regarding any additional relevant facts. On the day scheduled for the hearing, the Petitioner and her attorney appeared at the time and place set forth in the Notice of Hearing, but there was no appearance on behalf of the Respondent. Approximately 45 minutes after the scheduled commencement time, the Hearing Officer called the Respondent's offices in Jacksonville and was advised by an employee of Respondent that the Respondent did not intend to have anyone attend the hearing. Shortly thereafter the hearing was convened and the Hearing Officer received evidence offered by the Petitioner. At the conclusion of the presentation of evidence by the Petitioner, the Petitioner requested, and was granted, 15 days within which to file a proposed recommended order. Thereupon the record of the hearing was closed without any appearance having been made on behalf of the Respondent. On November 16, 1987, the Petitioner filed a proposed recommended order containing proposed findings of fact and conclusions of law. Specific rulings on all findings proposed by the Petitioner are contained in the Appendix which is attached to and incorporated into this recommended order. Following the hearing, the Respondent was advised by letter of its right to file a proposed recommended order, but as of the date of this recommended order the Respondent has not filed any post-hearing document with the Hearing Officer.
Findings Of Fact On October 11, 1985, the Petitioner was referred by Job Finders of Florida, a private job placement service, to apply for a position with the Respondent, Handling Systems Engineering, Inc. The job the Petitioner applied for was Secretary/Dispatcher. The Petitioner met all of the qualifications for the job of Secretary/Dispatcher. The Petitioner was interviewed by Mr. Jim Hart, the manager of the Ocala office of the Respondent. After interviewing the Petitioner, Mr. Hart decided, on the basis of her experience and references, that the Petitioner was the best qualified of several applicants. In this regard, it is noted that the Petitioner's prior employment had required the performance of duties substantially similar to those of the Secretary/Dispatcher position with Respondent. Thereafter, in the afternoon or evening of October 11, 1985, Mr. Hart telephoned the Petitioner, offered her the job, and advised her that she was to report to work on October 14, 1985. On October 14, 1985, the Petitioner reported to work at the Ocala office of the Respondent and immediately began performing the duties of Secretary/Dispatcher. During the work day on October 14, 1985, the Petitioner received a telephone call from Mrs. Lou Mohrman, the managing director of the Respondent. Mrs. Lou Mohrman welcomed the Petitioner to her position of employment and stated that she was pleased with the Petitioner's placement with the company. On October 15, 1985, Mr. L. D. Mohrman, president of Respondent, accompanied by Mrs. Lou Mohrman, managing director, visited the Ocala offices of the Respondent. After engaging in a boisterous conversation with Mr. Hart and visually ascertaining the Petitioner's race, Mrs. Mohrman summarily dismissed Petitioner without articulating a legitimate business reason for the termination. Within the next few days the Respondent listed the Secretary/Dispatcher position as vacant and continued to seek to fill the position with individuals with qualifications similar to or less than the qualifications of the Petitioner. The Petitioner is a black female. She is a person within the meaning of Sections 760.02(5) and 760.10(1), Florida Statutes. The Respondent is an employer within the meaning of Section 760.02(6), Florida Statutes. The dismissal of the Petitioner from her position of employment with the Respondent was motivated by the president and the managing director ascertaining the Petitioner's race. The dismissal of the Petitioner was motivated solely by her race. The Petitioner's starting salary at the Respondent company was $4.50 per hour for a 40-hour work week. After her termination, the Petitioner sought employment elsewhere and obtained another job in January of 1986, where she worked until November of 1986. In November of 1986 the Petitioner voluntarily left her job in order to finish school. When she began work in January of 1986 the Petitioner was making $3.80 per hour. When she quit in November of 1986 she was making $4.00 per hour.
Recommendation Based on all of the foregoing, it is recommended that the Florida Commission on Human Relations issue a final order to the following effect: Concluding that the Respondent has engaged in an unlawful employment practice; Prohibiting the Respondent from terminating any employee on the basis of the employee's race; Requiring the Respondent to offer reinstatement to the Petitioner under the terms and conditions of employment to which she would be presently entitled if she had been continuously employed, including any raises to which she would have been entitled on the basis of longevity. Requiring the Respondent to pay back pay to the Petitioner from the date of termination until November of 1986 in an amount equal to the total amount the Petitioner would have earned as a Secretary/Dispatcher during that period, less any amounts actually earned during that period; and Requiring the Respondent to pay to the Petitioner her reasonable attorney's fees incurred in this case. DONE AND ENTERED this 4th day of December, 1987, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3048 The following are my specific rulings on the findings of fact proposed by the parties. Findings proposed by Petitioner: Paragraph 1: Accepted in substance with exception of subordinate details not supported by the evidence. Paragraph 2: Accepted in substance with exception of subordinate details not supported by the evidence. Paragraphs 3, 4, 5, 6,7, and 8: Accepted Paragraphs 9, 10, 11, and 12: Not included in findings of fact because they are subordinate procedural details. Paragraphs 13, 14, and 15: Covered in prior findings. Paragraph 16: Accepted Paragraph 17: Covered in prior findings. Findings proposed by Respondent: (None) COPIES FURNISHED: Harry L. Lamb, Jr., Esq. Perry & Lamb, P.A. 312 W. First Street Suite 605 Sanford, Florida 32771 Mr. L. D. Mohrman, President Handling Systems Engineering, Inc. 3000 West 45th Street Jacksonville, Florida 32209 Dana Baird, Esquire General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Donald A. Griffin Executive Director 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Sherry B. Rice, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue The issue is whether Petitioner was subjected to an unlawful employment practice as a result of retaliation.
Findings Of Fact Petitioner D'Angelo A. Sullivan is a black male who worked for Respondent from January 14, 1999, until November 2002 as a blooming onion cook at Respondent's restaurant in Pensacola, Florida. Respondent Aussie Restaurant Management is a company that operates an Outback Steakhouse in Pensacola, Florida. Respondent employs more than 15 people. In a letter dated September 6, 2002, Petitioner requested a paid vacation. Petitioner believed he was entitled to a paid vacation. He departed on vacation on September 23, 2002. Upon returning on September 30, 2002, he was told that he would not be paid during the time he was on vacation. Respondent has a policy that provides paid vacations to employees who have worked 32 hours per week for the six weeks prior to the time requested for a vacation. Petitioner averaged 30.20 hours per week for the six weeks prior to his request for a vacation. He was, therefore, not entitled to a paid vacation. On October 11, 2002, Petitioner filed a Complaint Form with the Escambia-Pensacola Human Relations Commission. In the "Nature of the Complaint" section the blocks "race" and "color" were checked. The "other" block was completed with the words "promotion, pay raise." In this complaint, Petitioner recited that he was not given paid leave, that his work schedule had been reduced, and that he had been given a $.25 per hour pay raise instead of the annual $.50 per hour pay raise that he had received in prior years. The complaint also asserted that only one black had been employed "out front" among the customers. In the complaint he alleged mistreatment by a manager identified as "Donnie." Petitioner suggested as a remedy, that Respondent cease discrimination, that Petitioner be given a pay raise, a paid vacation, and a W-4 tax form. He also suggested that he should be trained so that he could get a promotion. No evidence was offered demonstrating that Respondent was aware of the existence of the complaint. Petitioner testified that he was advised by the person who took his complaint to refrain from telling Respondent he had complained, and that he followed that advice. In November 2002, subsequent to an automobile accident, and upon the advice of the attorney representing Petitioner as plaintiff in a personal injury lawsuit arising from the accident, Petitioner determined that he should not continue to work. This decision was based in part upon his belief that working might lessen his chances of prevailing in the ongoing lawsuit. In June 2003 Petitioner approached the manager of Respondent's restaurant, Nicholas Loizos, on at least four occasions and asked to be hired as a "take away" person in the "front of the house." Although his former position of blooming onion cook was offered to him, Petitioner insisted that he wanted the "take away" position. Mr. Loizos told Petitioner that in order to be a "take away" person, he would have to take the "Front-of-the House Selection Test." Petitioner was provided the opportunity to take this test. Petitioner did not avail himself of this opportunity. No evidence was adduced that would indicate that Respondent engaged in racial discrimination against Petitioner, or any of Respondent's employees. No evidence was adduced that would prove that Respondent was aware that Petitioner had filed a discrimination complaint. Because Respondent was unaware of the discrimination complaint, Respondent could not have engaged in retaliation against Petitioner.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Petition be dismissed. DONE AND ENTERED this 16th day of March, 2005, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 16th day of March, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 D'Angelo A. Sullivan 1006 West Hayes Street Pensacola, Florida 32501 Maria A. Santoro, Esquire George, Hartz, Lundeen, Fulmer, Johnstone, King & Stevens 863 East Park Avenue Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue Whether Respondent employer is guilty of an unlawful employment practice against Petitioner based upon mental disability.
Findings Of Fact The final disputed-fact hearing began on time. Petitioner was present, as was the attorney for Respondent. Petitioner appeared pro se and responded clearly and affirmatively to the undersigned's questions, stating that she knew that she could be represented by an attorney but for reasons of her own she chose to represent herself. After explaining the duty to go forward, the burden of proof, and the order of proof, the undersigned inquired of both parties whether any further explanation was necessary; whether they had any questions; and whether the undersigned could do anything to make the process easier on either of them. At that point, Petitioner gestured to a piece of paper and requested to meet with Respondent's counsel for purposes of negotiating a settlement. A brief recess was granted for that purpose, and the undersigned left the hearing room. Upon returning to the hearing room, the undersigned inquired whether a settlement had been reached and was informed that one had not been reached. Petitioner then announced that, "Since they won't settle, I have no more to say." The undersigned inquired at length to be certain Petitioner understood that: she could call witnesses; she could testify on her own behalf; and she could present documents, either through her own testimony or that of others. Petitioner stated that she understood but did not want to call witnesses or testify. She gestured at what appeared to be her proposed settlement document, but which could have been something else, stating that she only had a document. The undersigned explained that very few documents could be called "self-authenticating" and gave a brief explanation of what type of testimony is necessary to lay a predicate to put any document into evidence. Petitioner said she did not wish to testify. She did not offer her piece of paper. The undersigned explained that if Petitioner did not testify and did not offer her single document, she could not prevail, and that based upon the allegation in her Petition that she has a "mental disability/handicap," the undersigned needed to be assured that Petitioner understood that unless she testified to something, called witnesses to testify, or offered some exhibits, the undersigned would have no choice but to enter a recommended order of dismissal. Petitioner assured the undersigned that she understood and refused to proceed.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Complaint of Discrimination and the Petition for Relief herein. DONE AND ENTERED this 1st day of August, 2008, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 1st day of August, 2008. COPIES FURNISHED: 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 Michele B. Brown, pro se 2634 North Point Circle, Apt. B Tallahassee, Florida 32308 Rhonda S. Bennett, Esquire Brooks, LeBoeuf, Bennett Foster & Gwartney, P.A. 909 East Park Avenue Tallahassee, Florida 32301
The Issue Whether or not, the Petitioner, Zemour, Inc., t/a La Bonne Maison should be granted a license by the State of Florida, Division of Beverage, the license no. 23-2612-SRX series 4-COP.
Findings Of Fact The Petitioner, Zemour, Inc., through its owner Edgard Zemour, purchased the restaurant known as Left Guard Restaurant located at 7444 Biscayne Boulevard, Miami, Florida. After making the purchase the Petitioner made application to transfer the beverage license held by the Left Guard Restaurant, which license is no. 23-2612-SRX series 4-COP. In addition application was made to change the name of the restaurant from Left Guard Restaurant to La Bonne Maison. These applications to transfer the license and change the name were filed with the State of Florida, Division of Beverage. By letter of February 15, 1977, the Director of the Division of Beverage has denied the transfer and the change of name applications. The denial was premised upon the statement that the application corporate officer, Edgard Zemour was not believed to be of good moral character, as required by Section 561.15, F.S. In addressing the question of his moral character, the owner and President of Zemour, Inc., Edgard Zemour filed a personal data sheet with the State of Florida, Division of Beverage. This data sheet lists arrests and/or inquiries made by the French Government against Edgard Zemour. Edgard Zemour gave testimony in the subject hearing on the application for transfer and change of name of the licensed premises, which augmented the personal data sheet. In 1956, Edgard Zemour was charged by the French Authorities with car theft or using the car without the permission of the owner. At the time, Edgard Zemour was 18 years of age and he and a friend decided to go dancing and stole someone's car and went to a discotheque to dance. He was arrested and sent to jail for two weeks, followed by four months probation. During this same year, 1956, Edgard Zemour was arrested for assault and battery for a fight which he had with an American sailor in a bar in Brest, France. Edgard Zemour was fined approximately $25.00 for that incident. From 1953 thru 1963, Edgard Zemour was in the wine business as a salesman, until the French Police told him to not operate in such a capacity, and Edgard Zemour responded by ceasing his activities. In 1958, while in the wine business, as a salesman "door to door", Edgard Zemour was charged with wine fraud. This incident involved his company placing approximately 30 gallons of wine in a cask when a customer wanted 25 gallons, and the customer being charged for the full 30 gallons. Zemour was not convicted of this charge. In 1959 Zemour was charged with abuse of trust while operating the wine business, due to the late arrival of wine which had been purchased by customers. He was not convicted of this offense. In 1960, he was charged on two separate occasions for wine fraud, in that Zemour was allegedly responsible for the customer paying for 30 gallons of wine when in fact only 25 gallons had been ordered. Edgard Zemour was found not guilty on those two occasions. In 1960, Edgard Zemour was charged with indecent conduct with a female for an incident which occurred with a girl in an automobile. This case did not go to court. Edgard Zemour was released from the charge. (This incident relates to the no's 6 and 7 found in his personal data sheet answers.) In December 1961, Edgard Zemour was charged with possession of weapons, but was not responsible since this weapon belonged to his father who served in World War I. This charge had been placed by the French Authorities. During May 1967, Edgard Zemour was charged with fraud while operating in the textile business. The textile business would mean the clothing business. This charge was placed by the French Authorities and pertained to the activities of one of the salesmen working for a company in which Edgard Zemour was part owner. The salesman had lied about the type of materials used in the clothing and the clothing did not properly fit the customers to whom he had sold the clothing. Zemour, as owner of the corporation for whom the salesman worked, was charged with complicity which is apparently some form of conspiracy. Edgard Zemour had a trial on the issue and the judge found him guilty and placed him on two years probation. Zemour appealed the sentence and the appellate court upheld the conviction and sentenced Zemour to two years in prison. Edgard Zemour learned of the actual sentence before going back to court to face the sentence and fled France until 1972. When Edgard Zemour left France, he went to Israel. While in Israel, Edgard Zemour was in the restaurant business. On one occasion while Zemour was in the restaurant business, a homicide occurred in his restaurant and the Israeli police took him to jail and kept him there for 23 to 25 days, after which time he was released when the police found the actual assailant. On one other occasion while living in Israel Zemour tried to stop a fight in his restaurant and the police took him to the police station as a part of their investigation of the fighting incident, but subsequently released Zemour from charges. In 1973, Edgard Zemour's father became ill and Edgard Zemour left Israel by way of Frankfurt, Germany to return to France to see his father who was thought to be dying. Zemour took the passport of one of the employees in the restaurant in Israel, and had someone in Frankfurt, Germany place Zemour's picture on the French passport belonging to the restaurant employee. This was done to avoid detection by the French authorities who would arrest Zemour to serve the two year sentence for the fraud case in 1969. When Zemour arrived in France he was arrested for having a false identification and for showing the false identification passport to the French Authorities. He went to court and was given a one month sentence for having a false identification and a one month sentence for showing a false passport to the French Police, in addition to the two year sentence which was pending on the fraud case of 1969. Zemour served between 8 and 9 months on these cases and was placed on probation. Edgard was with his brother and uncle and some friends in a bar in France between 4:00 p.m. and 4:15 p.m., during the year 1975. At this time Zemour was on probation and did not wish the police to see him in the bar, although he felt his probation would allow him to be in that bar. A group of policemen entered the bar and shot and killed his brother and uncle and one friend. The police also shot Zemour five times. Zemour claims that this incident involved some political dispute in France. Zemour was charged with fighting with the police. Before standing such charge, he spent one year in the hospital most of which time was spent in the prison hospital. Zemour was acquitted of the offense of fighting with the police and left France. In March 1976, Edgard Zemour went to Brussels, Belgium for one week and from there to Martinque for two weeks and subsequently to Miami, Florida, in April of 1976, and has remained in Miami, Florida since that time.
Recommendation It is recommended that the application for transfer and change of name as filed by Zemour, Inc., t/a La Bonne Maison, concerning the license no. 23-2612- SRX, 4-COP, be denied. DONE AND ENTERED this 8th day of March, 1977, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Cy Chadroff, Esquire Charles F. Tunnicliff, Esquire Suite 2806 Division of Beverage 120 Biscayne Boulevard, North The Johns Building Miami, Florida 33132 725 Bronough Street Tallahassee, Florida 32304
The Issue The issue is whether this case should be dismissed based on Petitioner's failure to appear at the hearing and apparent intent to withdraw her request for an administrative hearing.
Findings Of Fact The Notice of Hearing in this case was issued on May 22, 2012, setting the hearing for July 17, 2012, at 9:30 a.m., by video teleconference at sites in Tallahassee and Fort Myers, Florida. Also, on May 22, 2012, an Order of Pre-hearing Instructions was entered. Respondent timely complied with the pre-hearing requirements by filing a witness list and exhibit list and tendering its proposed exhibits, all of which were served on Petitioner. Petitioner did not file or exchange a witness list, exhibit list, or proposed exhibits. Petitioner spoke by telephone with a secretary at DOAH on July 16, 2012, the day before the scheduled hearing, and indicated that she had sent a letter withdrawing her hearing request; however, to this day, no such letter has been received. Petitioner was advised to send another written statement confirming that she was withdrawing her hearing request, and she indicated she would do so by facsimile that day. However, no such facsimile was received by DOAH. After hours on July 16, 2012, a typed, but unsigned letter, was sent by facsimile to counsel for Respondent. The letter appears to have been sent by Petitioner and states that she wished to cancel the hearing scheduled for July 17, 2012. Petitioner did not make an appearance at the scheduled hearing at the start time or within 25 minutes after the scheduled start time. While it would have been better practice for Petitioner to file a written, signed statement with DOAH to withdraw her hearing request, it is found that Petitioner intended to withdraw her hearing request, and that is why Petitioner did not appear at the scheduled hearing. Petitioner should have made her intentions clear sufficiently in advance of the scheduled hearing to avoid the inconvenience and expense of convening a hearing by video teleconference and assembling all of those who were prepared to go forward.
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 in this case. DONE AND ENTERED this 3rd day of August, 2012, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 3rd day of August, 2012. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Lawrence F. Kranert, Jr., General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Todd Evan Studley, Esquire Florida Department of Corrections 501 South Calhoun Street Tallahassee, Florida 32399 Natalie Goldenberg Post Office Box 7388 Fort Myers, Florida 33911
The Issue The issues are whether Respondent is guilty of obtaining his real estate license by means of misrepresentation or concealment in violation of Section 475.25(1)(m), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to Chapters 455 and 475, Florida Statutes. Respondent is now, and at all times material to this proceeding, was licensed as a Florida real estate broker. He holds real estate broker's license number 3004152. Respondent passed the real estate broker's examination on April 22, 1996. From May 10, 1996, through September 8, 1996, Respondent was an inactive broker. Since September 9, 1996, Respondent has been a land developer and a real estate broker/officer of a real estate brokerage corporation in DeLand, Florida. There have been no prior complaints or disciplinary action against Respondent's Florida license. Respondent is also a licensed real estate broker in Massachusetts since 1966 and in Colorado since 1994. There have been no complaints or disciplinary actions against Respondent's license in those states. In 1981, Respondent sold a boat for $10,000 to a person who failed to make a full payment. About a year later, Respondent made a demand for payment from the buyer. An argument between Respondent and the buyer resulted in a pushing contest. About one month later, Respondent ran a traffic light in Laconia, New Hampshire. The law enforcement officer who stopped Respondent informed him that there was an outstanding warrant for his arrest. Respondent was arrested and released on the same day. Until that time, Respondent was not aware that he had been charged with any offense. Respondent appeared in court with his attorney on October 15, 1982. After pleading guilty to the charge of simple assault, he paid a fine in the amount of $50. Respondent received a sentence of 10 days of jail time, suspended on good behavior, and given a conditional discharge. Respondent filed a application for a Florida real estate broker's license on August 17, 1995. He signed a notarized affidavit on the application form, swearing that his answers and statements were true and correct. The application form contained a question seeking the following information in pertinent part: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? This question applies to any violation of the laws of any municipality, county, state or nation, including traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. . . . * * * Your answer to this question will be checked against local, state and federal records. Failure to answer this question accurately could cause denial of licensure. If you do not fully understand this question, consult with an attorney or the Division of Real Estate. From the record, it is found that Respondent clearly understood question nine. In response to this question, Respondent answered in the negative by marking the "no" box. Respondent asserts that his response was truthful at the time he signed the application because he had no independent recollections of the 1982 simple assault charge. He claims that he did not knowingly and intentionally give a false or incomplete response. Respondent testified that he would have disclosed his guilty plea if he had remembered it. Taking into account all evidence, Respondent's testimony is not persuasive. Petitioner's investigator subsequently questioned Respondent about the 1982 offense. Respondent then contacted his attorney in New Hampshire. The attorney obtained a copy of the court docket which was subsequently furnished to Petitioner. During the hearing, Respondent testified that he still cannot remember whether the police fingerprinted him after his arrest. Respondent claims that he cannot remember the judge pronouncing a sentence or his attorney explaining anything about the proceeding to him. Likewise, this testimony is not credited.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That Petitioner enter a Final Order revoking Respondent's real estate broker's license and fining him $1000. DONE AND ENTERED this 6th day of November, 1998, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 Filed with the Clerk of the Division of Administrative Hearings this 6th day of November, 1998. COPIES FURNISHED: Ghunise Coaxum, Esquire Department of Business and Professional Regulation 400 West Robinson Street, Suite N308 Orlando, Florida 32801 Frederick H. Wilsen, Esquire 1999 West Colonial Drive, Suite 211 Orlando, Florida 32804 Henry M. Solares, Division Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
