The Issue Whether Respondent Employer committed an unlawful employment practice against Petitioner on the basis of his race, color, disability/handicap, and/or age.1/
Findings Of Fact Petitioner is an African-American male who was 66-68 years of age at all times material. Petitioner worked successfully, in a variety of positions, for Respondent from March 20, 1999, until July 29, 2007. By all accounts, he was an excellent employee in each position. He has, at his own expense, trained for, and received, a security guard license and education as a fork lift operator. The published job description for employment as a Wal- Mart Garden Center Sales Associate, has, since May 2005, required, among other "essential functions," that one be able to: While moving within the department over uneven surfaces and moving up and down a ladder, frequently lifting, sorting, carrying, and placing merchandise and supplies of varying sizes, constantly lifting up to 50 pounds without assistance and over 50 pounds with team lifting. On March 3, 2006, Petitioner signed this job description, signifying that he possessed the ability at that time to perform all its essential functions. On a Saturday in July 2007, Petitioner was still working for Respondent as a Garden Center Sales Associate. Early that day, Petitioner and a cashier were alone in the garden center of Respondent's store at 13th Avenue, Gainesville, Florida. Upon her request, Petitioner loaded 83 bags of top soil into a customer's truck without assistance. Later that same day, Petitioner's wrist began to hurt. The following Monday, Petitioner’s hand was swollen. He approached Store Manager Thomas Horton, and told Mr. Horton that he needed to see a doctor. Petitioner did nothing to alert Mr. Horton that he might have had an on-the-job injury. Mr. Horton orally authorized Petitioner to go to a doctor. Petitioner unilaterally selected Dr. Youssef W. Wassef to treat his wrist. There is no evidence of the workers' compensation process, pursuant to Chapter 440, Florida Statutes, ever being invoked. On or about August 2, 2007, Dr. Wassef provided a note that said: Patient should not allowed [sic] to lift more then [sic] 15 lb. This note was provided to Respondent’s store personnel office by Petitioner at or about the same time he got it. According to the August 2, 2007, restrictions placed on Petitioner by his treating physician, Petitioner was unable to perform the essential functions of the Garden Center Sales Associate position. Petitioner testified that he last worked on July 29, 2007. On or about September 6, 2007, Petitioner delivered to his store’s personnel office another note from Dr. Wassef, stating: Patient should continue until further notice on full-time, light duties, no lifting or pushing. This note also placed medical restrictions on Petitioner which made him unable to fulfill the essential functions of his Garden Center Sales Associate position. It is unclear whether Petitioner was working or was on the equivalent of sick leave from Monday, July 30, 2007, until September 7, 2007. It is most probable, based on the evidence as a whole, that at least after receiving the August 2, 2007, doctor’s note, Wal-Mart did not allow Petitioner to work in the capacity of a Garden Center Sales Associate. Specifically, Mr. Horton testified that he “called back” Petitioner sometime during the back-to-school/college season, which “season” would have been in late August or early September, to work in a temporary position. The temporary position assigned Petitioner was described by Ms. Chewning, the store's Personnel Manager, as a “May I assist you?” position. In this temporary position, which lasted only a few weeks, Petitioner was only required to walk around and point out to inquiring shoppers their requested back-to-school/college materials. Wal-Mart did not require Petitioner to work outside his medical restrictions. When the back-to-school/college season ended, so did the temporary position. When the back-to-school/college season ended and the temporary sales associate position was eliminated, there were no positions available at Petitioner’s store that he could perform with his medical restrictions on lifting and pushing. Also, at that point in time, Mr. Horton began to lay off people in some positions. However, Petitioner remained on leave and was not laid off. Although Petitioner referred to a People Greeter position in his November 20, 2007, discrimination complaint before FCHR, there is no credible record evidence that Petitioner requested a Wal-Mart People Greeter position as an “accommodation” of his condition prior to filing his discrimination complaint or that a People Greeter position was vacant at any time material to this case. However, the published job description for employment as a Wal-Mart People Greeter has, since May 2005, required, among other "essential functions" that the incumbent be able to: Provide shopping carts to customers by pushing or pulling up to 10 pounds of pressure . . . Frequently lifting, placing and deactivating items weighing up to 10 pounds without assistance, and regularly lifting merchandise over 10 pounds with team lifting. Petitioner documented at hearing, via an old doctor’s report, that in 1991, he had severe arthritis in both his elbows and that surgery was contemplated at that time. However, there is no clear evidence that he had the surgery or, if he had the surgery, what was its outcome. There also is no persuasive evidence that Respondent’s personnel office or any Wal-Mart employee material to the instant case knew about this doctor’s report prior to the present litigation. Petitioner demonstrated at hearing that his elbows are visible in the short-sleeve shirts worn by Wal-Mart employees. He believes his elbows stick out farther than other people’s elbows, and he speculated that his superiors and store personnel office employees decided visually that he had a handicap because “my arms stick out” and because of a scar on one arm. The undersigned observed his demonstration. If there is a deformity, it is not substantial, and the scar is not visible without close inspection. Sometime in August-September 2007, probably during the back-to-school/college season, Mr. Horton observed Petitioner wearing what Mr. Horton believed to be a brace on Petitioner’s hand, but which was, in fact, a wristband. However, no evidence supporting Petitioner’s theory that any superiors or personnel office employees did, in fact, perceive him as disabled/handicapped was adduced. Petitioner denied ever being handicapped or unable to perform the essential functions of his job as a Wal-Mart Garden Center Sales Associate. Mr. Horton and Jennifer Chewning each credibly denied ever perceiving Petitioner as handicapped, even up to the date of the hearing. When he had been hired in 1999, Petitioner acknowledged receipt and understanding of the policies contained within Respondent’s Associates Handbook. Petitioner again acknowledged receipt and understanding of these policies on March 29, 2001, when he was issued a revised Associates Handbook. Wal-Mart regularly offers leaves of absence to any associate who has a medical condition that is not perceived by the employee or management as a “disability” under the Americans with Disabilities Act (ADA) or the Florida Civil Rights Act, but whose condition prevents him from performing his job. Ms. Chewning testified that the Request for Leave of Absence form described below is used specifically for situations not covered by the ADA or by State disability laws.3/ The form upon which an employee may apply for such a leave of absence advises that the leave of absence is without pay; that there will be no accrual of benefits or seniority during the leave of absence; and that the employee must pay his own insurance premiums during this period. Grant of the requested leave is dependent upon the treating physician’s verification of the employee's medical condition. (See Finding of Fact 20.) Based on Petitioner's inability to perform the essential functions of any available position within the store in September 2007, Ms. Chewning offered Petitioner such a leave of absence. Petitioner disputes some of the contents of the Request for Leave of Absence form in evidence, which completed form Mr. Horton retroactively approved on September 21, 2007, for Petitioner to be on continuous leave beginning September 7, 2007, with a return date of December 31, 2007. However, Petitioner admits that he signed this form. The date beside Petitioner’s signature seems to be September 19, 2007. Petitioner’s signature on this form signifies that he was requesting “medical leave,” thereby acknowledging: A medical condition (including pregnancy and childbirth, and on-the-job Workers’ Comp. injuries) requiring time away from work. The Health Care Provider’s Section, below, must be completed and signed. Before returning, associate must submit a return- to-work statement/release from a Health Care Provider detailing restrictions, if any. . . . * * * . . . I fully understand Wal-Mart’s Leave of Absence Policy. Petitioner also agreed that on or about September 19, 2007, as reflected on the portion of this Request for Leave of Absence form which was filled-in by Dr. Wassef, Petitioner’s doctor had certified that Petitioner should begin medical leave on September 9, 2007, and continue through September 30, 2007. Petitioner asserted that on or about September 13, 2007, he delivered to someone other than Ms. Chewning in Respondent's personnel office another note from Dr. Wassef stating: Patient has partial permanent disability.[4] Does not need sick leave. He needs to continue to work full-time with limited lifting, pulling, and pushing. Petitioner asserted that on or about October 29, 2007, Petitioner delivered to someone other than Ms. Chewning in Respondent's personnel office the last note he had received from Dr. Wassef, which stated: Patient able to work full-time with limited lifting to 20 pounds. Ms. Chewning testified that neither the September 13, 2007, nor the October 29, 2007, medical notes contemporaneously reached either herself or Petitioner’s personnel file. According to the last medical note she received prior to hearing, Petitioner could not even perform the essential functions of a People Greeter position. (See Findings of Fact 10 and 13.) Reviewing Dr. Wassef’s September 13, 2007, and October 29, 2007, notes for the first time at hearing, she pointed out that, according to the most recent note, Petitioner was still medically restricted from performing some of the essential functions of his Garden Center Sales Associate’s position. (See Findings of Fact 3 and 22.) She has never received a medical release permitting Petitioner to return to full functioning as a Garden Center Sales Associate. Ms. Chewning testified that Wal-Mart has a policy that a medical leave of absence may not extend beyond one year. However, neither its printed non-ADA leave of absence policy in evidence nor the Request for Leave of Absence form in evidence specifies a one year maximum leave. More than a year after Petitioner’s leave began on September 7, 2007, and nearly 10 months after the leave was supposed to end on December 31, 2007, Wal-Mart has not taken steps to terminate Petitioner, because of the current litigation that began with Petitioner’s filing his complaint with FCHR on November 20, 2007. Ms. Chewning testified that, as of the date of hearing on October 15, 2008, Respondent had not terminated Petitioner; Petitioner remained on his approved unpaid leave of absence; and if Petitioner brings in a doctor’s note saying he can perform all the essential functions listed on his Garden Center Sales Associate’s job description, including but not limited to being able to lift 50 pounds, Wal-Mart will put Petitioner back in his Garden Center Sales Associate position, and he will retain his salary level, his accrued years of service, and all his benefits as they existed at the beginning of his leave of absence. Petitioner erroneously perceives himself as having been terminated and wants to go back to work, but he has not yet presented any doctor’s release that allows him to perform regularly the functions of a Garden Center Sales Associate. There is no evidence herein that under similar conditions Wal-Mart has treated any person of any race other than African-American differently than Petitioner has been treated. There is no evidence herein that under similar conditions Wal-Mart has treated any person of any age other than 66-68 years of age, differently than Petitioner has been treated.
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 Petitioner’s Complaint of Discrimination and Petition for Relief. DONE AND ENTERED this 2nd day of February, 2009, 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 2nd day of February, 2009.
Findings Of Fact Gary Porter, an individual, is the sole stockholder, owner, and decision-maker for the two corporate entities, Gary Porter, Inc., and Gary, Inc., that are petitioners in these consolidated cases. In early 1990, Mr. Porter reached an oral agreement with Jerry Thompson, a Florida resident, to purchase two boats from Miss Angie, Inc., a Florida corporation owned and operated by Mr. Thompson. The two boats were the only boats owned by Mr. Thompson and his corporation. The purchase price for the two vessels, the "Miss Angie" and the "Christy Lynn", plus related fishing equipment and gear, was $285,000.00 (two hundred eighty-five thousand dollars). Separate sales agreements were drawn up for the sale of the two boats and a closing was scheduled in the office of an attorney in Destin, Florida, Dana C. Matthews, Esquire. Approximately one week before the closing, the $285,000.00 was paid to Mr. Thompson. On March 19, 1990, the closing took place. The two sales agreements and two bills of sale were executed by Mr. Thompson personally and in his capacity as President of Miss Angie, Inc. In the case of the Miss Angie sales agreement, Gary Porter, in the capacity of president of the corporation, signed the agreement on behalf of Gary, Inc. In the case of the Christy Lynn sales agreement, Gary Porter, as president, signed the agreement on behalf of Gary Porter, Inc. Title to the Miss Angie passed from Miss Angie, Inc., to Gary, Inc. Title to the Christy Lynn passed from Miss Angie, Inc. to Gary Porter, Inc. No reference to payment of taxes is made in the Sales Agreements or the Bills of Sale. At the closing, Mr. Thompson represented to both Mr. Porter and Mr. Matthews that he would see that all taxes arising from the transactions were paid. Contrary to his representations to Mr. Porter and Mr. Matthews, no sales or use taxes were paid by Mr. Thompson, Miss Angie, Inc., or anyone else. The Christy Lynn has been continually berthed in Destin, Florida, both before and after its sale from Mr. Thompson to Gary Porter, Inc. The Miss Angie was also berthed in Destin both before and after the sale by Mr. Thompson. But, the Miss Angie disappeared from its berth about one and one-half years after the purchase by Gary, Inc. Mr. Porter represented to the Department that, at the time of the sales, the value of the Miss Angie was $275,000.00 and of the Christy Lynn, $10,000.00. The Department revised its assessments to conform to Mr. Porter's representations. The revised assessments were received by the Petitioners and are mathematically correct. Upon the $10,000.00 value of the Christy Lynn, Mr. Porter paid to the Department the sum of $600.00 as sales tax, (6 percent of $10,000.00). But no other taxes, interest or penalties, have been paid on the sales of the Christy Lynn or the Miss Angie. As of June 14, 1994, the total amount due, according to the assessment amended that date, on the sale of the Miss Angie to Gary, Inc., was $24,452.77, the sum of $16,525.00 in total tax due, $4,131.25 as a late filing penalty and $3,796.52 in interest. As of June 14, 1994, the total amount due, according to the assessment amended that date, on the sale of the Christy Lynn to Gary Porter, Inc., was $925.00, the sum of $625 in total tax due, $256.25 in a late filing penalty and $143.75 in interest. Of the $925.00 due on the sale of the Christy Lynn, $600.00, as mentioned above, has been paid by Mr. Porter. Mr. Porter has steadfastly maintained that neither he nor his corporations are liable for sales tax, interest and penalties beyond that which he has already paid because Mr. Thompson had represented that the taxes would be paid.
Recommendation It is, accordingly, RECOMMENDED: That a final order be entered by the Department of Revenue upholding its assessments of tax, interest, and penalties against the Petitioners and that Gary Porter, Inc. be credited for a payment of $600.00 toward the total assessment due from Gary Porter, Inc. DONE AND ENTERED this 26th day of September, 1994, in Tallahassee, Leon County, Florida. DAVID M. MALONEY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 1994. APPENDIX Petitioner's proposed recommended order does not contain any proposed findings of fact. Respondent's proposed findings of fact are adopted in substance, insofar as material. COPIES FURNISHED: Gary Porter 219 Benning Drive Destin, FL 32541 Mark T. Aliff Assistant Attorney General Department of Legal Affairs Tax Section, The Capitol Tallahassee, FL 32399-1050 Linda Lettera General Counsel Department of Revenue 204 Carlton Building Tallahassee, FL 32399-0100 Larry Fuchs Executive Director Department of Revenue 104 Carlton Building Tallahassee, FL 32399-0100
Findings Of Fact Respondent is a licensed cosmetologist in Florida and was so licensed at all times here relevant. In January, 1983, Respondent began employment as a cosmetologist at the Rose Unisex Hair Salon in Clearwater, Florida. This salon was owned by Rose Sousa, who had advertised the salon for sale. In response to that ad Respondent commenced working at the salon to learn if the salon would be a profitable purchase. In April, 1983, Respondent executed a chattel mortgage agreement in favor of Rose Sousa and her husband, Joe, in consideration of the transfer of the salon to her. An assignment of the lease was contingent on the payment of this chattel mortgage. The agreement further provided that Rose Sousa would continue working at the salon for one year. On May 2, 1983, Respondent gave Sousa a cashier's check for $7,000 which Respondent had borrowed from a friend, in satisfaction of the chattel mortgage. At this time the salon was licensed in the name of Rose Sousa and this license was due to expire in a few months. Respondent believed she could operate under that license until it expired and would then be required to put the salon license in her name. On June 21, 1983, an inspector from the Department of Regulations visited the salon and checked the license of Mary Carroll, who told him she owned the salon, and the salon license which still showed Rose Sousa as owner. Some three weeks after the closing Rose Sousa quit working at the salon and most of the customers left with her. Respondent testified that Rose Sousa had opened a salon in her garage and was servicing her customers there. Regardless of this allegation, the business dropped drastically, Respondent was unable to pay the rent, and the salon was padlocked by the owner of the building. Respondent subsequently declared bankruptcy. But for a friend who took her in as a houseguest, Respondent would, literally, have been out on the street.
Findings Of Fact Respondent is a registered real estate salesman and between the period of May 10, 1973 and May 15, 1974, he was registered with the Florida Real Estate Commission as a salesman with International Real Estate Coordinators, Inc., Miami, Florida (Petitioner's Exhibit 7). In the summer of 1973, Respondent was introduced to a land developer named Armand Archer by a realtor in Fort Lauderdale. Through this meeting, Respondent learned of a parcel of land located in Santa Rosa County consisting of about 8,000 acres which was owned by a joint venture consisting of the Santa Rosa Development Corporation, a Florida Corporation controlled by Mr. Archer, and the Charter Development Corporation of Jacksonville, Florida. Respondent became interested in the potential of the land for development and visited Archer in Pensacola in order to look over the property. At that time, he gave Archer his card as a salesman for International Real Estate Coordinators, Inc. Archer thereafter gave the Respondent a verbal open listing to sell the land. Other listings had been or were later given to other real estate firms. According to the Respondent, the arrangement with Archer was that he would pay the Respondent $500.00 a week as salary for services to be rendered in promoting the sale of the land, plus 20 percent of the stock in the Santa Rosa Development Corporation. On the other hand, Archer testified that the Respondent was simply acting as a salesman for International Real Estate Coordinators, Inc., and that he advanced Gomer some $6,800 during the period July, 1973 to January, 1974 for expenses and as a draw upon any future commissions if the Respondent was successful in selling the tract of land. Archer conceded, however, that he had had discussions with the Respondent to the effect that if he eventually made the sale, he might be brought into the company. Archer maintained that Respondent was never an employee of Santa Rosa Development Corporation even though the Respondent worked full-time out of the offices of that corporation. During this period, Respondent exerted great efforts in attracting prospective purchasers for the real estate in question, arranged for an appraisal of the land, assisted in designing a plan for development of the property and publishing a brochure, and arranged for financing by Bankers Trust Company of New York. Respondent devoted approximately eight months to these endeavors in behalf of Mr. Archer and the Santa Rosa Development Corporation (Testimony of Marlene Archer, Armand Archer, Bernard Gomer; Petitioner's Composite Exhibit 1; Respondent's Exhibit 8). Although Respondent denied actively working for International Real Estate Coordinators, Inc. during the period of time he was pursuing the interests of Santa Rosa Development Corporation, the evidence shows that he did continue to represent International Real Estate Coordinators, Inc., to some degree during that time. In August, 1973, Mr. Richard E. Grant, the real estate broker for International Real Estate Coordinators, Inc. terminated his association with that corporation. Although Mrs. Archer testified that she was aware of this fact and had urged the Respondent to secure another broker during the fall of 1973, the Respondent disclaimed knowledge of Mr. Grant's action until January, 1974, after discussions with representatives of the Florida Real Estate Commission. He was instrumental in then having Mr. Archer become the President of International Real Estate Coordinators, Inc., in January, 1974, for a brief period of time for the reason of securing a new broker in order that any real estate commission could be shared by the two corporations if a remaining portion of the land in Santa Rosa County was purchased. To this end, Mr. Archer as president of International Real Estate Coordinators, Inc., gave permission to Mr. Manuel Grossman to serve as an acting broker for that corporation and Mr. Grossman proceeded on January 11, 1974 to apply to the Florida Real Estate Commission for a multiple certificate as broker for International Real Estate Coordinators, Inc. Respondent, on January 12, 1974, wrote to the Florida Real Estate Commission advising that he had only recently learned of Mr. Grant's departure from the corporation, and that a new broker had been secured. (Testimony of Marlene Archer, Armand Archer; Respondent's Composite Exhibits 3, 4 & 5). In late January, 1974, Respondent and Archer had a falling out which apparently stemmed from Respondent's discovery that a civil lawsuit had been filed against Archer by others in federal court concerning the Santa Rosa County land. By a letter, dated February 1, 1974, Archer advised Respondent that he should remove himself and his possessions from the office at his earliest opportunity. Respondent thereafter on May 15, filed suit against Armand Archer and the Santa Rosa Development Corporation in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, asking damages for failure of the defendants to abide by their agreement to give him a 20 percent equity interest in Santa Rosa Development Corporation for services rendered and to be rendered. The complaint in this lawsuit was amended in February, 1975, to recite that Archer had hired the Respondent on or about May 10, 1973 to be a full-time employee of Santa Rosa Development Corporation at a weekly salary of $500.00 as compensation for services to be rendered to the corporation and, that he was so employed for a period of 36 weeks, thereby earning a total salary of $18,000.00 of which was due and owing the sum of $14,000.00 as back salary Additionally, the amended complaint alleged that Respondent was to receive as compensation for his services to be rendered to the Corporation 20 percent of its stock to be conveyed to him by Archer and that, despite numerous requests, Archer had refused to convey the said stock to him. Respondent claimed at the hearing that he filed this suit upon the advice of his attorneys who had provided him with bad advice (Testimony of Gomer; Petitioner's Exhibits 2-6; Respondent's Exhibit 6). Official records of the Florida Real Estate Commission do not show Santa Rosa Development Corporation as a registered corporate real estate broker or that during the period May 10, 1973 to May 15, 1974 Respondent registered Santa Rosa Development Corporation as his employer (Petitioner's Exhibit 7).
The Issue The issue in this case is whether Respondent, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (the “Department”), is operating under an unadopted rule in its application of sections 210.276 and 210.30, Florida Statutes, which impose a surcharge and an excise tax, respectively, on tobacco products other than cigarettes or cigars, commonly known as other tobacco products (“OTP”), by utilization of “best available information” in lieu of actual documents submitted by the taxpayer when performing audits to establish a tax assessment. Unless otherwise stated herein, all references to Florida Statutes shall be to the 2016 codification.
Findings Of Fact Global Hookah was formed as a Florida corporation on June 9, 2005, with its principal place of business in Melbourne, Florida. After graduation from college, Global Hookah’s owner and 100 percent shareholder, Brennan Appel, decided to move his company to North Carolina. Global Hookah was re-formed as a North Carolina corporation on June 14, 2007. Appel then moved all of his inventory and business equipment to a 10,000-square- foot warehouse in Charlotte, North Carolina. Each corporate annual report filed since 2007 reflects the Charlotte, North Carolina, address. All annual meetings and corporate tax returns indicate North Carolina as the situs for the corporation. Mr. Appel, sole shareholder of Global Hookah, has resided in North Carolina continuously since 2007. At all times pertinent hereto, Global Hookah was conducting its business from North Carolina. When the North Carolina corporation was formed, Mr. Appel mistakenly failed to convert the Florida Global Hookah corporation into a foreign for-profit corporation. That oversight was corrected on May 31, 2016, by way of a filing with the Florida Division of Corporations. Global Hookah does not currently have a physical place of business in Florida; its only connection to the State is the sale and delivery (by unaffiliated carriers) of the products it sells. When the company was still operating out of its Florida offices, Mr. Appel’s mother, Jennifer Appel, worked as an employee and was an officer of the Florida corporation. After the move to North Carolina, Mrs. Appel became a part-time employee, performing quality assurance checks in the North Carolina warehouse. She was paid for her services by way of a direct deposit into her checking account in Florida. Mrs. Appel continues to reside permanently in Florida, traveling to North Carolina when working for Global Hookah. Mrs. Appel is not an officer of the North Carolina corporation. When Global Hookah was located in Melbourne, Florida, the Department’s Orlando office conducted its semiannual tax audits. The Department’s office in Margate, Florida, conducts audits of out-of-state licensees, and the audit at issue was therefore conducted by the Margate office. Global Hookah sells about 3,500 different tobacco- related products to customers in many jurisdictions, including Florida. Its customers are primarily businesses, such as hookah lounges, night clubs, bars, restaurants, and cigar stores, but also other tobacco distributors. Some products are also sold by Global Hookah directly to consumers. The products are sent to customers via U.S. Mail, or third-party carriers. The Department is the government agency responsible for, inter alia, monitoring and collecting taxes on the sale of tobacco and OTP in Florida. As part of its duties, the Department audits on a regular basis (from every six months to every two years) each entity which distributes tobacco and OTP in Florida. In July 2013, the Department notified Global Hookah that an audit would be performed on that company for the period January 1, 2013 through June 30, 2013. The primary purpose of the audit was to determine the wholesale sales price of the OTP sold by Global Hookah in Florida during the audit period, determine the amount of products which had been sold, and assess a tax on the total. How that audit actually transpired is a matter of dispute between the parties. The parties agree that an auditor from the Department, Deborah Spady, contacted Mr. Appel and requested certain records so that she could conduct the audit. Beyond that, the parties completely disagree as to what transpired. The Department’s position, based almost entirely on unsubstantiated hearsay testimony from Mr. Torres, is as follows: Ms. Spady asked for certain company records to be sent to her via U.S. Mail, but Global Hookah refused to comply with the request. Ms. Spady then scheduled a visit to the Global Hookah offices in North Carolina to obtain the records she needed. She was provided numerous boxes of documents to review, but was not allowed to use the company’s copier to make copies. She called her supervisor, Mr. Torres, who told her to purchase a hand-held scanner and to scan all the documents so they could be printed on her return to Florida. Ms. Spady purchased a scanner and returned to Global Hookah. At that point, she was told that she could not scan the documents. Discussions between the Department and attorneys for Global Hookah ensued, resulting in Ms. Spady being allowed to scan the documents. She allegedly scanned an amazingly large number of documents in just a day and a half at the Global Hookah offices. Ms. Spady brought the scanned documents back to Florida so they could be printed and an audit could be performed for the audit period. At that point, Ms. Spady commenced the audit. According to Mr. Appel, the audit happened like this: Mr. Appel was informed by Mr. Torres that Ms. Spady would be conducting an audit for the aforementioned time period. Mr. Torres said that Ms. Spady preferred to come to North Carolina to do the audit. Upon her arrival at the Global Hookah offices in North Carolina, Mr. Appel gave Ms. Spady a CD containing all the requested documents, i.e., purchase invoices showing the cost of the tobacco and OTP, sales documents showing the products were sold in Florida, and the monthly returns filed by the taxpayer pursuant to Florida requirements. The monthly returns are a self-reporting summarization of products shipped to and sold in Florida by a distributor (minus some allowed exemptions). Compilation of those records on a CD was Mr. Appel’s normal procedure for the semiannual audits conducted by the Department. Ms. Spady reviewed the CD on her computer when she went to lunch. When she returned to Global Hookah’s office after lunch, she reported that some of the files on the CD would not open properly. Mr. Appel converted the documents on the CD into another format and verified that Ms. Spady could open the files. Ms. Spady said she was satisfied with the results and left the Global Hookah offices. Mr. Appel never saw Ms. Spady again. The parties basically agree only that an audit was initiated by the Department, it was commenced by Ms. Spady, and that someone else ultimately completed the audit. Just about everything else about the pre-audit process is disputed. It is as if the parties were talking about two completely different audits, which is what Global Hookah suggests happened. There was a subsequent audit performed by the Department where the auditor did scan some documents. There was allegedly some dispute in the latter audit concerning the auditor attempting to scan documents relating to sales in states other than Florida. A letter was supposedly sent to the auditor addressing that issue, but no such evidence was presented at final hearing. The Department says there was a subsequent audit, but Global Hookah “refused to provide records” so it was not completed. At some point in time, another auditor, Robert Lerman, took over the Global Hookah audit from Ms. Spady. None of Ms. Spady’s audit notes were preserved and so were not available for review at final hearing to substantiate Mr. Torres’ hearsay testimony concerning how the audit was initiated. Ms. Spady, who no longer works for the Department, was not called as a witness at final hearing. On November 24, 2014 (about four month after Ms. Spady commenced the audit), Mr. Lerman set up an audit file. At the commencement of his work, Mr. Lerman was advised by Mr. Torres that the records obtained from Global Hookah could not be trusted. This was due to the fact that Global Hookah had produced documents entitled “sales order” rather than traditional “invoices,” even though the Department had accepted the same kinds of documents from Global Hookah in the past. The Department believed that the sales orders could be altered, while the invoices would be more precise and final. Faced with its unease using the sales orders, the Department contacted Mr. Appel and requested that he submit invoices instead of sales orders for the audit period. Global Hookah contacted its supplier in California, Fantasia Distributors, Inc. (“Fantasia”), to obtain invoices to submit to the Department. The only difference between the sales orders and invoices–- besides the title of the documents--was that some charges had been zeroed out, presumably because the amount had been paid when the invoice was issued. Mr. Appel provided the Department with 40 pages of invoice documents marked as “invoiced in full.” The Department compared the new Fantasia invoices with the Global Hookah sales orders and determined that some of the information contained therein did not match up appropriately. There were some missing numbers, some invoices were not in logical number sequence, and there appeared to be other discrepancies. At that point, Mr. Torres got more involved in the Global Hookah audit. From the documents supplied by Global Hookah, Torres prepared a spreadsheet identifying 18 separate dates of transactions between Global Hookah and Fantasia during the audit period. He found, however, that there were really only about 15 actual purchases; some of the costs relative to a single purchase were divided and appeared on invoices with different dates. Some of the invoices had five-digit identification numbers that did not seem to match up with the sales orders previously provided. Based upon his review and findings, Mr. Torres deemed the invoices from Fantasia (which had been provided by Global Hookah) to be less than credible. Mr. Torres in fact concluded, unilaterally, that Global Hookah was attempting to hide purchases and to “deceive” the Department. It is noted that the Department made no attempt to contact Fantasia, with whom it was very familiar, to ascertain why the documents did not match up. Once Mr. Torres reached that conclusion, he decided to ascertain the actual purchase amounts by way of “best available information.” According to his audit notes, Mr. Lerman was directed by Mr. Torres to determine the “best available information” as follows: He was to make a schedule of all products purchased by Global Hookah from Fantasia. Inasmuch as the Department was familiar with Fantasia and knew that company supplied many distributors in Florida, Mr. Lerman was told to compare the cost of each product Global Hookah had bought from Fantasia with the cost other providers had paid for the same products. An average unit price for the products was thus calculated by the Department. The Department determined that Global Hookah was paying far less for some products than Fantasia was charging some of its other distributor customers. No competent evidence was produced as to why this disparity existed. The Department simply surmised that Global Hookah was apparently misstating the amounts it had paid Fantasia for the products. The Department, based on its comparison of Fantasia’s other non-related invoices, determined that Global Hookah was understating those product costs amounts by 454 percent. The Department thereupon applied a factor of 4.54 to all of Global Hookah’s purchases and Florida sales for the entire audit period. Although less than 20 percent of Global Hookah’s purchases for that audit period were with Fantasia, the factor was applied to all Florida sales in order to make the tax assessment.1/ The tax assessment on Global Hookah using the revised cost figures was determined to be $305,374.76, plus $152,687.37 of penalties, and $58,419.43 in interest, for a total tax assessment of $516,481.53. The Department had taken the purchases reported by Global Hookah on the monthly returns filed during the audit period, multiplied that figure by 4.54 to arrive at an adjusted figure, took the difference between the reported amount and the adjusted figure, and made a tax assessment on that amount. Later, the Department decided to revise its assessment by removing some of the non-Fantasia purchases, resulting in a tax assessment of $170,292.42 in tax, plus 1 percent interest per month, plus a penalty in the amount of 50 percent of the assessment, for a total tax assessment of $241,818.77. The basis for this reduction in tax assessment was that the Department determined that the 454 percent mark-up based on the Fantasia invoices should not necessarily be applied to the other 80 percent of Global Hookah’s purchases from other suppliers. Contrary to the Department’s position regarding the Fantasia purchases, Mr. Appel’s unrefuted testimony was that the prices shown on the sales orders were the actual amounts paid by Global Hookah to Fantasia. An affidavit dated April 2, 2016, from Fantasia’s president, Randy Jacob, corroborated Mr. Appel’s testimony.2/ That evidence is contrary to Mr. Torres’ contention that Global Hookah was falsifying its purchase price as to products purchased from Fantasia. The Department presented no competent evidence as to the basis for the prices Fantasia charged Global Hookah for products. The Department’s position, though based on logical reasoning in the abstract, was still entirely speculative and unpersuasive.3/ The Department’s decision to rely upon “best available information” is a new, unique way of conducting its review of records for an audit. Mr. Torres stated that in 30 years, he had not had to resort to such a process. The Department relied upon the “best available information” policy only in the instant case. There is no evidence that the policy was to be used in any other case or as a regular or appropriate method of dealing with less than acceptable records. It was used in the case at issue because Mr. Torres felt no other means would suffice. Global Hookah also contends that the Department’s inclusion of federal excise tax, shipping costs and other items in the taxable base for distributors constitutes an unpromulgated rule. That issue, however, has already been decided in Florida Bee Distributors, Inc. v. Department of Business and Professional Regulation, Case No. 15-6108 (DOAH Mar. 3, 2016)(“Florida Bee”), and will not be addressed in this Recommended Order. The Final Order in Florida Bee has been stayed and is currently under appeal at the First District Court of Appeal, Case No. 1D16-1064, meaning that the Department is free to rely on the policy pending a decision by the appellate court.
Findings Of Fact Odell Hines and Dorothy Spray Hines (who are man and wife) operate the Rooster's Comb, a beauty salon in Gainesville, Florida. A building with exterior dimensions of 18 feet in width and 60 feet in length houses the shop, a single room in which there are several booths manned by respondents and nine or ten employees. Every employee does not work every day. Although, with the exception of a couple of "floaters," each operator is assigned a particular booth or station, no one operator works in the same place all of the time. Cosmetology licenses or certificates of registration issued to respondents and their employees are all posted on a bulletin board. The bulletin board, which weighs approximately one and one half pounds, leans against a wall, so that the licenses are plainly visible, and is situated within 20 feet of every operator who is working and about three feet from the manicurist.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner dismiss the administrative complaint against respondents. DONE and ENTERED this 14th day of July, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Daniel J. Wiser, Esquire Post Office Box 1752 Tallahassee, Florida 32302 D. Spray Hines and Odell Hines d/b/a The Rooster's Comb, Inc. 2405 S. W. 13th Street Gainesville, Florida 32608
The Issue The issue is whether Respondent discriminated against Petitioner on the basis of her age in violation of the Florida Civil Rights Act.
Findings Of Fact Petitioner is a 56-year-old female. Petitioner has over 26 years of retail sales experience. Petitioner had both outside sales and store management experience, but most of her experience was as a retail floor salesperson. Petitioner worked as a salesperson at GM Appliance, a retail appliance business currently owned and operated by Respondent. She had worked for GM Appliance for over 21 years. Petitioner was a good and capable salesperson. She had never been formally reprimanded in her 21 years with GM Appliance. According to Respondent's owner and manager Todd Williams, there were no problems at all with Petitioner's performance. She was qualified as a salesperson. In 2004, Williams Corporation, a single shareholder entity owned by Mr. Williams, purchased GM Appliance from its previous owner, Curtis Murphy. Mr. Murphy was retiring after owning GM Appliance for many years. Mr. Williams had worked with Mr. Murphy as a wholesaler and was relocating to the Panama City area from Atlanta. At the time of the GM Appliance purchase, Mr. Williams was approximately 40 years old. As would be expected when taking over a business, Mr. Williams made some changes at GM Appliance. He created a new outside sales position. He created and hired a new sales manager. He opened two offices outside of Panama City. Mr. Williams made all the business decisions at GM Appliance. As he was the sole shareholder and owner, Mr. Williams had the sole authority to hire and fire employees. Under Mr. Williams, GM Appliance did not have any formal written employment policies. Respondent has no sexual harassment or anti-discrimination policies and no process on how to handle employment complaints related to age or sex. GM Appliance has no written employee evaluations or job descriptions. If someone had a complaint, he or she needed to "take it to the EEOC," according to Mr. Williams. As a result of Mr. Williams' hiring and firing decisions, the GM Appliance workforce became decidedly younger in Panama City, especially in the sales positions. Since purchasing GM Appliance through 2010, Mr. Williams hired Matt Davis (born 1970) as a sales manager; Ashley Williams (born 1976) in an outside sales position; Kris Westgate (born 1979) as inside sales and delivery; and Amy Farris (born 1982) as inside sales and administrative. In 2010, two sales persons also remained on the staff of GM Appliance from the former owner: Bobby Tew (aged 63) and Petitioner (aged 54). Both primarily worked inside sales. Mr. Williams' hiring decisions made the culture at GM Appliance more "youth" oriented. There was much more juvenile and sexual talk. Mr. Williams was overheard saying that Petitioner wore old women clothes. Some members of GM Appliance's younger workforce often called Petitioner "Mama" or "Old Mama" to her face and behind her back. As a result of the worldwide economic slowdown, the business environment deteriorated for GM Appliance in 2008. To save money, GM Appliance began to cut back on its operations and expenses. In late 2010, unable to stem the tide of losses, Mr. Williams decided he needed to cut additional staff from the sales department in Panama City. Of the six salespeople working in Panama City, he laid off the two oldest: Mr. Tew and Petitioner. The four younger sales persons kept their jobs, but one, Kris Westgate, was reassigned to the warehouse instead of laid off. Also, the two highest paid salespersons, Ashley Williams, Todd Williams' brother, and Matt Davis, remained employed with GM Appliance. Ashley Williams and Davis annually made $45,000 and $80,000, respectfully. Petitioner, at the final hearing, identified the three younger employees retained following her termination as evidence of discriminatory intent: Margaret Walden, Amy Farris, and Matt Davis. Matt Davis, aged 46, was the sales manager and Petitioner's immediate supervisor. Petitioner reported directly to Matt Davis. Amy Farris, aged 30, was originally hired as a secretary to the outside salesman. Although she would sometimes come on the sales floor, her job was to provide support for outside sales. During the course of her employment, her duties expanded to include purchasing agent and SPIFF (manufacturer's incentive program) administrator. Respondent employed outside salespersons and other salespersons (retail sales associates) such as Petitioner, who worked the showroom floor. Outside salespersons reported directly to Respondent's president, Mr. Williams. Margaret Walden, aged 45, was an outside salesperson in Respondent's office in Destin, Florida, and was responsible for developing and maintaining relationships outside the office with client contractors in Destin and South Walton County. A showroom was not maintained at the Destin office. All three identified co-workers held positions with different duties and responsibilities from the position held by Petitioner. Petitioner was not replaced, and no younger (or older) sales associate was retained in a similar position. In July 2011, Respondent hired 51-year-old Steve Williams as a sales associate. This hire was made after the Charge of Discrimination was filed by Petitioner. Steve Williams, a former Sears appliance salesman and manager, solicited a job with Respondent as Respondent had not advertised an available position. After being told repeatedly that Respondent was not hiring sales associates, he offered to accept compensation on a commissioned sales basis. Prior to terminating Petitioner, Respondent terminated six employees, ages 25 (outside sales), 27 (purchasing agent), 52 (warehouse/delivery), 41 (warehouse manager), 59 (accounting manager), and 45 (outside sales) from a period beginning on May 8, 2008, through July 31, 2009. Prior to discharge, Petitioner and the only other associate salesperson on the retail showroom floor, Mr. Tew, had their hours reduced to four days a week. In addition and during Petitioner's tenure, Respondent made changes in the corporation's 401-K plan, health insurance, paid leave, and overtime compensation all changes designed to save money. Mr. Tew was terminated on the same day as Petitioner, September 7, 2010. Janice Heinze (aged 66), Jeff Reeder (aged 54), and Angus Thomas (aged 70), all employees at the Panama City location and all older than Petitioner, were retained by the company. Respondent hired his father (a 1099 contractor), aged 68, to assume outside sales duties at the location in Foley, Alabama, and Cindy Powell, aged 54, was hired to answer the telephone there. Kelly Hill, aged 45, was hired to replace Ms. Walden upon her subsequent resignation and relocation. Petitioner and Mr. Tew were laid off with the intent to rehire. There were no performance or other identified issues with their employment. Mr. Williams stated that he wanted to bring them back to work. Petitioner had better objective sales qualifications than the younger salespeople that were retained. According to the latest records that GM Appliance had, Petitioner was the highest profit margin generating salesperson in Panama City. Mr. Tew had the second highest profit margin. Petitioner and Mr. Tew also had more sales experience and seniority than any of the younger retained workers. Petitioner earned approximately $40,000 in total over the past three years of her employment and has been unemployed since she was laid off in 2010.
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 finding Respondent did not commit the "unlawful employment practice" alleged by Petitioner and dismissing Petitioner's employment discrimination charge. DONE AND ENTERED this 25th day of June, 2012, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 25th day of June, 2012. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Daniel Harmon, Esquire Daniel Harmon, P.A. 23 East 8th Street Panama City, Florida 32401 Robert Christopher Jackson, Esquire Harrison Sale McCloy 304 Magnolia Avenue Post Office Box 1579 Panama City, Florida 32402-1579 Lawrence F. Kranert, Jr., General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent committed an act of discrimination in employment based on age, in violation of Section 760.10(1)(a), Florida Statutes.
Findings Of Fact Petitioner was born on December 11, 1951. She was employed by Respondent from 1977 until December 27, 1999, at which time Respondent terminated her. During the entire term of her employment, Petitioner has served as an outside sales representative. As an outside sales representative, Petitioner was typically assigned a territory within which she was to serve existing advertisers and develop new advertisers. Petitioner often helped customers prepare their advertisements and plan and budget their advertising campaigns. While employed with Respondent, Petitioner helped train Mr. Fine, who has been employed with Respondent for nearly 13 years. Mr. Fine is currently the National Advertising Director, but, during the time in question, served as the Broward Advertising Sales Manager, and, as such, he supervised Petitioner. He served as the Broward Advertising Sales Manager from September 1998 through February or March 2000. While Broward Advertising Sales Manager, Mr. Fine supervised eight sales representatives. Mr. Fine found that Petitioner was strong in persuasiveness, but weak at times when she displayed a negative attitude and sense of entitlement to her job and her way of doing her job. She also treated customers inconsistently. In February 1999, Mr. Fine disciplined Petitioner for her handling of an internal fax that the Broward office received from an employee of Respondent in another office. The fax was addressed to a member of management and contained salary information about five persons in the office. Petitioner happened to find the fax and revealed its contents to her coworkers before delivering it to the addressee. When Mr. Fine reprimanded Petitioner for her actions, she denied any wrongdoing. Next, Mr. Fine began receiving complaints from various of Petitioner's customers, mostly over a relatively short period of time. A marketing person at the Swap Shop complained that Petitioner was brusque in dealing with her. Another customer representative mentioned that Petitioner had criticized one of her coworkers in suggesting that the customer place all of its business with Petitioner. A similar situation arose with another customer, to whom Petitioner claimed that its outside sales representative handled only smaller accounts. A representative of the Florida Philharmonic Orchestra requested that Mr. Fine assign it a new outside sales representative because Petitioner raised her voice and talked down to its young, inexperienced marketing person. On June 29, 1999, Mr. Fine sent a memorandum to his supervisor, Donna Sasser, who was then Advertising Director. The memorandum describes Petitioner as "dynamite" and expresses concern as to when she "will blow and who she will hurt." At the time, Mr. Fine was concerned that Petitioner's actions might undermine morale among the other staff for whom he was responsible. Ms. Sasser advised Mr. Fine to communicate to Petitioner specific expectations in terms of job performance and customer interaction in particular. Mr. Fine met with Petitioner and detailed his problems with her job performance and his expectations for improvement. By memorandum dated July 30, 1999, Mr. Fine memorialized the meeting, including specific customer complaints, and warned that Petitioner's job "will end, even within the next few weeks, if you are unable to achieve the following: no additional customer complaints, monthly goals [met] on a consistent basis; positive, collaborative attitude with co-workers, customers, and managers; [and] acceptance of responsibility for what goes well and what does not go well." Petitioner resisted Mr. Fine's criticism. By memorandum dated August 22, 1999, she defended her actions by pointing to shortcomings elsewhere within Respondent. Significantly, the memorandum does not address the complaints about brusque, discourteous treatment of employees of customers. At this point, Mr. Fine, who was a young manager, was legitimately concerned about whether Petitioner's attitude would undermine his ability to do his job. Mr. Fine resolved to assess over the next three to six months whether Petitioner met the goals that he stated in the July 30 memorandum. In late October 1999, a representative of the Cleveland Clinic complained about Petitioner's handling of its account. The complaints included Petitioner's "flip attitude" and "lack of professionalism." Two months later, Mr. Fine received a more serious complaint because it involved a loss of revenue to Respondent and the advertiser. Due to some miscommunication, Respondent published the wrong advertisement for a customer. When the customer's representative telephoned Petitioner and complained, she blamed someone at the Fort Lauderdale Sun Sentinel, who had supplied her the wrong advertisement for publication. When she did not call him back on the day that she had promised, the customer representative called Respondent, complained about the poor handling of the account, noted the reduction in advertising from his company over the past year as compared to the prior year, and requested a different outside sales representative. Mr. Fine consulted with Ms. Sasser and Janet Stone, the Human Relations specialist assigned to advertising. The three agreed that Respondent should terminate Petitioner. Their decision was submitted through four levels of management--up to the level of Publisher--and each level approved the decision before it was implemented. On December 27, 1999--six days after the receipt of the last complaint--Mr. Fine and Ms. Stone met with Petitioner and told her that she had been terminated. At the hearing, Petitioner presented evidence of a contemporaneous complaint about age discrimination that she had made to a Human Relations specialist who had since left the employment of Respondent. Respondent contested this assertion, but Petitioner's August 22 memorandum states that, as a "female over 40 I feel the harassment and stress that you have been putting on me is totally unnecessary." Although not a formal complaint concerning age discrimination, this memorandum is an early mention of Petitioner's age within the context of harassment. Based on the testimony of coworkers, Mr. Fine was a high-pressure manager, given to yelling, but he did not make age-related comments to Petitioner. Even if Petitioner had timely made comprehensive complaints about age discrimination, the record in this case does not support her claim that her termination was due to age discrimination. Mr. Fine hired two outside sales representatives over 40 years old, and the only other outside sales representative whom he fired was under 40 years old. More importantly, he treated employees the same without regard to age. Most importantly, Petitioner's job performance provided Mr. Fine with ample reason to fire her. Without regard to the quality of the support that Petitioner received, customer satisfaction is paramount in advertising. In a competitive environment, Mr. Fine justifiably sought satisfaction of all customers, not just favored customers. Mr. Fine could not reasonably allow Petitioner to continue to treat discourteously representatives of advertisers, regardless of the merits of her claims of inadequate support. Past evaluations suggest that interpersonal relations was never Petitioner's strength. Despite an obvious talent at advertising sales and considerable experience, Petitioner's frustrations with the perceived incompetence of her coworkers and customers' employees weakened her interpersonal skills beyond a critical point, so that her other strengths no longer offset this important deficit.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Charge of Discrimination. DONE AND ENTERED this 2nd day of July, 2002, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 2nd day of July, 2002. 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 Jan Hall-Szugye 3834 Panther Creek Road Clyde, North Carolina 28721 Ellen M. Leibovitch Adorno & Yoss, P.A. 700 South Federal Highway, Suite 200 Boca Raton, Florida 33432
The Issue Whether Respondent Joyce McClain practiced cosmetology without the presence and supervision of a master cosmetologist.
Findings Of Fact Two inspectors from the Board of Cosmetology entered the premises of the Seligman & Latz, Inc. beauty salon, d/b/a May Cohen Beauty Salon, late in the evening of September 19, 1974 and observed the Respondent Joyce McClain combing out the hair of a customer. Joyce McClain was not a master cosmetologist at that time and there was no master cosmetologist directly supervising the work of the cosmetologist Joyce McClain. The inspectors for the Board of Cosmetology observed the Respondent working, discussed the work with her, wrote a violation, presented it to her and departed the premises having found no master cosmetologist in the area in which the Respondent Joyce McClain was working or in the area in which the customers were invited to come and in which the employees practiced the art of cosmetology on the customers. The act of combing out the hair of another person is practicing the art of cosmetology as defined in Section 477.03, Florida Statutes.
Recommendation Suspend the license of Respondent cosmetologist Joyce McClain for a period of not less than one (1) and not more than thirty (30) days. DONE and ORDERED this 29th day of January, 1976. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Ronald C. LaFace, Esquire Counsel for Petitioner John R. Forbes, Esquire Counsel for Respondent ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA FLORIDA STATE BOARD OF COSMETOLOGY BOARD OF COSMETOLOGY, Petitioner, vs. CASE NO. 75-597 LICENSE NO. 0081516 JOYCE MCCLAIN, Respondent. /
