Findings Of Fact Respondent is a certified roofing contractor having been issued license number RC0021181. His address as stated at the June 30, 1982, hearing is 11360 SW 47th Terrace, Miami, Florida 33165. On or about August 2, 1976, Mildred Buckaloo contracted with Respondent, who was then doing business as Roddy Roofing Company, to re-roof her residence in Miami. Respondent completed the job with some agreed changes in the contract. The customer was not satisfied with the job and Respondent returned in September to reinstall lead flashing and replace a facia board. Ms. Buckaloo subsequently complained that the roof leaked, and accused Respondent of improper sexual advances. Respondent agreed to return to the job site, but sought to be accompanied by a third person. This was never arranged and Ms. Buckaloo's death apparently resulted in the dispute remaining unresolved. Respondent admitted that he failed to obtain a building permit for the Buckaloo job as required by Section 301.1(k), Metropolitan Dade County Code. Respondent claims that although he has no documents, he did obtain the project inspection required by Section 201.1(3)(b) of this Code. In this regard, Respondent stated that he ran into Dade County building inspector Gene Kirby in a restaurant and got Kirby to come to the job site and make the inspection. Building inspector Kirby testified at the second hearing and denies making the inspection. He did not know Respondent in 1976 but believes he first met him around 1980. Due to the long period of time which has elapsed since the alleged inspection, it cannot be found that either witness lied. However, the absence of any record to document the inspection indicated that it was not performed.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter its Final Order suspending Respondent's roofing contractor's license for a period of six months. DONE and ENTERED this 1st day of October, 1982, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 1982.
The Issue : The issue in this proceeding concerns whether the Petitioner has been the victim of a discriminatory housing practice, in alleged violation of Sections 760.20 through 760.37, Florida Statutes (2007).
Findings Of Fact The Petitioner is a physically handicapped person. He resides in a residential unit (Unit 11C) in the Sea Cabins residential complex. The Petitioner is a full-time resident at Sea Cabins and is the owner of unit 11C. The Respondent is a Florida Corporation (not for profit) and is a homeowners association, as defined by Section 720.303, Florida Statutes (2008). Sometime in early May 2007, Nancy Maconi, the Petitioner's wife, placed a number of signs around the Sea Cabins property. The Respondent purports that there were approximately 13 signs. One of the signs was a designated handicap parking space sign for unit 11C. It was erected in close proximity to the Petitioner's Sea Cabins unit 11C. Thereafter, the Petitioner sought reimbursement for the cost of the signs from the homeowners association board of directors, the Respondent. The request was denied at a meeting of the board of May 11, 2007, with the minutes reflecting that the Petitioner had not requested nor been granted permission to install any signs, hence the denial at that point. Ms. Maconi testified at the hearing that she had asked the Respondent's manager for permission to install the signs, which the manager, Willa Merriott, denied. The action of the board at the May 11, 2000 meeting, however, is not in dispute. Thereafter, on approximately June 22, 2007, the attorney for the Respondent wrote the Petitioner requesting that the designated handicap parking sign be removed since it had not been authorized by the board, nor had any formal request for the installation of the sign been made. On June 23, 2007, the Petitioner responded to that letter by requesting that the board formally authorize the handicap parking sign. A letter from the Veterans Administration was attached to that letter to the effect that the Petitioner had a service-connected disability. The specific nature of the disability was not specified, however. In any event, the Respondent association acquiesced in the handicap parking sign at issue remaining in place and use while it investigated whether the Petitioner was actually entitled to a handicap parking space. The Petitioner was advised by letter of October 11, 2007, by the Respondent, that the handicap parking sign could remain in place while his application was pending. A series of letters then passed between the parties or their representatives in October through December 2007. Pursuant to its policy concerning the granting of handicapped parking spaces and the like, the association sought information on the nature of the Petitioner's disability or handicap. The Petitioner countered by taking the position that the association already had enough information upon which to make its decision. In any event, however, through this period, the Petitioner's designated handicapped parking space and sign remained in place in the original location where Ms. Maconi had placed it. The Respondent acquiesced in its presence and in the Petitioner's use of the handicapped space. Counsel for the Respondent received a letter dated January 3, 2008, from Paul E. Brooks, a Podiatrist, revealing for the first time the specifics of the Petitioner's disability. That is, he has an orthopedic condition which limits his ability to walk. This letter was received on January 8, 2008, and considered by the board of directors at a special meeting held January 28, 2008. At that meeting the board formally granted the Petitioner's application for a designated handicap parking space and voted to allow the sign already erected by Ms. Maconi to remain permanently in place. Due to a misunderstanding between the board and its counsel as to who should notify the Petitioner of the decision, the Petitioner was not actually notified of the decision until March. By letter of March 17, 2008, counsel for the homeowners' association wrote the Petitioner of the actions of the board regarding the sign.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the subject Petition for Relief in its entirety. DONE AND ENTERED this 27th day of January, 2009, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 2009.
The Issue The issue in the case is whether the Respondent’s suspension and eventual termination of the Petitioner from employment were in retaliation for complaints of sexual harassment made by the Petitioner against a co-worker.
Findings Of Fact The Petitioner began employment with the Respondent in October 1990 as an Automotive Service Worker in the maintenance department. At various times during his employment, there were between nine and eleven employees in the maintenance department. The Petitioner's responsibilities included mechanical work on the Respondent's police vehicles. At all times material to this case, the Petitioner's immediate supervisor was Chris Marinari. Ben Lacy, the Maintenance Division Director, supervised Mr. Marinari. At all times material to this case, Benjamin Lanahan was employed in the maintenance department and worked at the same facility as the Petitioner. Mr. Lanahan occasionally exhibited inappropriate behavior around the mechanic's shop, including exposing his sexual organs to co-workers and grabbing at their groins or buttocks. Mr. Lanahan exhibited such behavior in the presence of, and towards, the Petitioner. The Petitioner was offended by the behavior and on several occasions told Mr. Marinari of his objection to the behavior. Mr. Marinari apparently regarded the conduct as mutual "horseplay" and although he may have verbally instructed Mr. Lanahan to refrain from the behavior, he took no official action on Petitioner’s verbal complaints. The Petitioner received periodic evaluations throughout his employment. The Petitioner did not note his concern about Mr. Lanahan's behavior in the employee comment section of the evaluation form, but noted his apparent increasing satisfaction with the workplace. On April 15, 1992, the Petitioner was promoted to Auto Mechanic I. On December 8, 1993, the Petitioner was promoted to Auto Mechanic II. There is no evidence that the Petitioner filed any written complaints with his employer regarding Mr. Lanahan's behavior prior to his termination from employment. In May 1995, the Petitioner apparently became dissatisfied with Mr. Marinari’s response to his complaints about Mr. Lanahan’s behavior and took his complaint to Mr. Lacy. The Petitioner asserts that Mr. Lacy threatened to terminate his employment if he "made waves." Mr. Lacy denies that he threatened the Petitioner's employment. The Respondent's sexual harassment policy authorizes an employee to contact the Director of Human Resources if an employee believes that a supervisor has not adequately addressed a complaint. The Petitioner received a copy of the policy as set forth in the personnel rules. The Petitioner did not report the alleged threat by Mr. Lacy until 1996, when Mr. Lacy recommended to the City Manager that the Petitioner's employment be terminated for the reasons addressed herein. The greater weight of the evidence fails to establish that Mr. Lacy made the alleged threat to terminate the Petitioner's employment based on the complaint of harassment. Mr. Lacy investigated the Petitioner’s complaint and, determining it to be valid, issued a written disciplinary report against Mr. Lanahan in June 1995. Mr. Lacy and the Respondent’s Director of Human Resources recommended to the city manager that Mr. Lanahan’s employment should be terminated. The city manager did not accept the recommendation, and instead suspended Mr. Lanahan for two weeks without pay and required him to go to counseling. The Respondent also offered counseling to employees at the facility who had been subjected to Mr. Lanahan’s behavior. In August 1995, the Petitioner realized that, when attempting to cash a check, his driver's license had expired. He advised Mr. Marinari, who told him to take emergency vacation time to renew his license. The Petitioner renewed his license. Driving a city vehicle without a valid license is a "Group II" violation of the Respondent's personnel rules, and warrants a seven-day suspension without pay. The Petitioner received the suspension. He did not file a grievance at that time. The Petitioner eventually learned that some city government employees who worked in other departments and were found to be driving with invalid licenses apparently received lesser penalties for the infraction. The Petitioner then filed a grievance regarding his suspension, but the filing deadline had passed and it was dismissed. The Petitioner’s grievance did not raise the alleged threat by Mr. Lacy to terminate his employment for complaining about Mr. Lanahan. There is no evidence that the Petitioner's supervisors were aware of what other supervisors were doing at the time they suspended the Petitioner for driving without a valid driver's license. There is no evidence that the Petitioner’s suspension was related in any way to his complaint regarding Mr. Lanahan’s behavior. The Petitioner suggests that the Respondent, which maintained a database of relevant information in order to remind employees of license expiration dates, inaccurately informed him that his license was valid when it had expired. The evidence establishes that the Petitioner provided the inaccurate database information to the Respondent. There is no evidence that the Respondent knew or should have known that the Petitioner's license had expired. In September 1995, the Petitioner asked to be placed on "flextime" so that he could leave work early in the afternoon and pick up a child from school. Initially his request was denied because there were already two other employees working flextime, and the supervisor was concerned about the small shop not being fully staffed at normal hours. Within a few days, one of the other employees was returned to a regular work schedule and arrangements were made to allow the Petitioner to work a flexible schedule from 6:30 a.m. to 3:00 p.m. At the time the flextime request was approved, the Petitioner was advised that because he would start his workday an hour before the maintenance shop was otherwise staffed or supervised, it was necessary that he remain on task in order to complete work assignments. At some point around this time, the Petitioner found a piece of city equipment (an “A/C leak detector”) under the seat of his truck. He complained to Mr. Marinari, who questioned the Petitioner’s co-workers but was unable to determine how the equipment came to be in the Petitioner’s truck. There was no disciplinary consequence to the incident. During the time the Petitioner worked a flex schedule, the building maintenance supervisor also arrived for work at about 6:30 a.m. The building manager became aware that the Petitioner and the other co-worker on flextime would routinely leave the shop in a city vehicle shortly after arriving and “punching the clock” at 6:30 a.m. The building manager reported the practice to Mr. Marinari, who in turn told Mr. Lacy. On January 12, 1996, Mr. Marinari and Mr. Lacy arrived at the shop early enough to precede the Petitioner, and waited to see what would happen. The supervisors observed the Petitioner and the other co-worker arrive at about 6:30 a.m., clock in, almost immediately leave in a city vehicle, and then return with food at about 7:00 a.m. and eat breakfast. While the Petitioner and the co-worker went to get breakfast, the maintenance shop was unattended and unsecured. Prior to January 12, 1996, the supervisors were unaware that the flextime employees were taking a city vehicle to get breakfast while being "punched in" on the time clock. The Petitioner asserts that leaving work in a city vehicle for breakfast was a common practice. The evidence fails to support the assertion. The supervisors confronted the employees at the time the practice was discovered. Both employees were subsequently disciplined for the incident. The co-worker was suspended for a period of seven days without pay. Because the Petitioner had committed two "Group II" offenses within an eighteen-month period, Mr. Lacy recommended to the City Manager that the Petitioner's employment be terminated. The City Manager declined to follow the recommendation and instead suspended the Petitioner for a period of thirty days without pay. During the thirty-day suspension period, Mr. Marinari learned that the Petitioner had a statue in his backyard that was presumed to be city property. The source of Mr. Marinari's information is unclear. Mr. Marinari advised Mr. Lacy of the matter. Mr. Lacy investigated the report by driving by the Petitioner's house with the director of the city parks department, where they determined that the statue was similar to one kept at a city storage area. The matter was referred to the city police department. After investigation, a police investigator determined that the statue was city property. The investigator attempted to discuss the matter with the Petitioner, who suggested other city employees had placed it there at some earlier time. The Petitioner declined to identify the individuals he believed were responsible, and asserted that the whole incident was a conspiracy by people trying to "get him." The evidence fails to establish that other city employees placed the statue in the Petitioner's backyard. The statue was in the Petitioner’s possession for an undetermined period of time. There is no evidence to suggest that someone involved in a “conspiracy” to have the Petitioner’s employment terminated placed the statue in his yard. There is no evidence that the Petitioner reported to law enforcement officials the initial appearance of the statue in his yard. There is no evidence that the Petitioner attempted to identify or return the statue to the owner. The Petitioner asserts that the police investigator suggested that the Petitioner should resign to avoid prosecution for possession of stolen city property. The investigator denies the assertion. The greater weight of the evidence fails to support the assertion. Misuse of city property is a "Group III" offense, and pursuant to the personnel rules, is punishable by termination of employment. The supervisor recommended termination to the city manager. The Petitioner was suspended for five days pending an administrative hearing. Subsequent to the hearing, the city manager accepted the recommendation and terminated the Petitioner's employment effective February 6, 1996. There is no credible evidence that the termination of the Petitioner’s employment was a result of his complaints about Mr. Lanahan’s behavior.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Human Relations Division, City of St. Petersburg, enter a final order dismissing the complaint of employment retaliation filed by Timothy Henault against the City of Pinellas Park. DONE AND ENTERED this 1st day of May, 2002, in Tallahassee, Leon County, Florida. ___________________________________ WILLIAM F. QUATTLEBAUM 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 May, 2002. COPIES FURNISHED: J. Robert McCormack, Esquire Persante & McCormack, P.A. 2555 Enterprise Road, Unit 15 Clearwater, Florida 33763 Deborah S. Crumbley, Esquire Thompson, Sizemore & Gonzalez, P.A. 109 North Brush Street, Suite 200 Tampa, Florida 33602 William C. Falkner, Esquire Pinellas County Attorney's Office 315 Court Street Clearwater, Florida 33756 Stephanie N. Rugg City of St. Petersburg 175 Fifth Street, North St. Petersburg, Florida 33701
The Issue The issue is whether Respondent meets the definition of an employer within the meaning of section 70-51, Code of Ordinances, and, therefore, is subject to the discrimination ordinance enacted by Pinellas County (County).
Findings Of Fact Respondent is a small tire company located at 5582 66th Street North, St. Petersburg, Florida. Richard Newberry is the owner of the business. This case began after Petitioner filed with the Office a Charge of Discrimination alleging that Respondent rejected her employment application on the basis of her religion. If proven, this action would be a violation of section 70-53(a)(1)a. of the County discrimination ordinance. The narrow issue to be resolved at this stage of the case is whether Respondent "employs five or more employees for each working day of 13 or more calendar weeks in the current or preceding calendar year." § 70-51, Code of Ord. If Respondent did not reach that threshold, the discrimination ordinance does not apply and Petitioner's Charge of Discrimination must be dismissed. Because the alleged discrimination occurred on March 22, 2016, by definition, only the years 2015 and 2016 are relevant in making this determination. Id. To support its contention that it had less than five employees for each working day during any 13-week period in 2015 and 2016, Respondent submitted copies of its 2015 and 2016 reemployment (unemployment) wage/tax quarterly reports filed with the Department of Revenue. Resp't Ex. 1. Among other things, the reports reflect the number of employees that performed services for Respondent during each quarter. In addition, Respondent submitted its payroll journals for both years. Pet'r Ex. 5; Resp't Ex. 2. The journals were prepared by Respondent's accountant, Mr. Boylan, who verified their accuracy. Respondent's 2016 quarterly reports reflect that, excluding Mr. Newberry, Respondent had no more than three employees at any time during that year. Respondent's payroll journals for the same time period corroborate this information. Respondent's 2015 quarterly reports reflect that it had no employees during the first three quarters of the year, and only one person on the payroll during the last quarter. The payroll journals for the same time period corroborate these facts. Through the testimony of Mr. Boylan, this information was shown to be reliable and accurate. Through cross-examination of Mr. Boylan, Petitioner sought to establish that Mr. Newberry may have been paying employees "off the books" (by cash), without Mr. Boylan's knowledge, and these employees would not be shown on the reports or journals. She also suggested that when preparing the reports and journals, Mr. Boylan may have relied on false or incomplete information given to him by the owner. However, these assertions are mere speculation without evidentiary support and have not been credited. Petitioner also contended that Jessica Belt, the person who was hired by Respondent to fill the position, is not shown on the payroll journal until the first week of October 2016, or after she was offered the position at an earlier date. Pet'r Ex. 1. However, Ms. Belt's actual date of hire and first day of work are unknown, and Mr. Boylan's explanation that she may not have begun work until October 2016 has been accepted as being credible. Importantly, even if Ms. Belt began work several months earlier, Respondent still would have had no more than three employees in the second quarter of 2016 and two employees during the third quarter of that year. Respondent had less than five employees during any 13-week period in calendar years 2015 and 2016.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Charge of Discrimination by Petitioner against Respondent be DISMISSED, with prejudice. DONE AND ENTERED this 21st day of December, 2018, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 21st day of December, 2018.
The Issue Whether Respondent, Seven Lakes Association, Inc. (the Association), violated section 760.10, Florida Statutes (2018),1 by discriminating against 1 Unless otherwise indicated, all statutory and administrative rule references are to the 2018 codifications of the Florida Statutes and Florida Administrative Code. Petitioner, Donald Chew, based on his race (African American) when it terminated his employment; and, if so, what is the appropriate remedy.
Findings Of Fact Petitioner, Donald Chew, is an African American male who was employed by the Association from January 23, 2017, to September 19, 2018. During the time he was there, Mr. Chew was one of the Association's few non-white employees. Respondent, the Association, is a condominium association governed by chapter 718, Florida Statutes. According to Mr. Chew, a majority, if not all, of the condominium owners are white. The Association has approximately 50 employees. The Association is governed by a Board of Directors (Board), made up of five to seven members. All the Board members who testified at the hearing were white. The Board hires a General Manager, who oversees the day-to-day operations of the Association. This includes oversight over the condominium grounds, recreation, and financial aspects of the Association. The General Manager had check-writing authority for the Association. For the times relevant to Petitioner's claims, Timothy Day served as the General Manager.2 Prior to being hired Mr. Day was involved in an investigation related to his employment with a local government entity. 2 Mr. Chew was hired by the Association's General Manager Judy Grosvenor, but Mr. Day became General Manager in August 2017. Neither the reason for the investigation nor the outcome of that investigation was clear from the evidence. Regardless, Mr. Day was given the opportunity to explain the circumstances related to the investigation to the Board prior to being hired. Relevant to this case, the General Manager oversaw the Accounting Manager, who managed a staff of accountants. June Gibbs served as the Accounting Manager who oversaw Mr. Chew from the date of his hire to May 2018, while he was in the staff accountant role. MR. CHEW'S JOB HISTORY AND DUTIES The Association originally hired Mr. Chew for the position of staff accountant. The hiring process consisted of review of Mr. Chew's resume, an interview, and then a criminal background and reference check. The Association did not check Mr. Chew's litigation history at the time it hired him. In September 2017, Ms. Gibbs gave Mr. Chew a mixed written performance review. Although he was "Above Average" in initiative and working relationships, Ms. Gibbs indicated he was "Below Average" in his basic accounting skills and his tardiness. In her comments, she noted: Don, I really dislike writing a negative evaluation. But, your accounting skills really concern me. This is why I hired you and the core of your position. It's been great that you have done well with the insurance and working with Brown & Brown. Even though we have struggled with the accounting parts of the insurance UMS you have done well assisting everyone setting [ ] this software up. And I believe you are above average in computer technology. But, once again accounting is the core. At this point because I really need someone strong in accounting behind me. I am going to have you stay with what you are good at – working on the insurance and UMS. And I will appoint you some basic accounting jobs. Also work on any tardiness issues. In March 2018, the Association requested that Mr. Chew obtain a Community Association Manager License (CAM License) from the Florida Department of Business and Professional Regulation. Mr. Chew submitted an online application in which he was required to answer a number of questions, including the following: 2. Are you or have you ever been a defendant in civil litigation in this or any other state … in which the basis of the complaint against you was alleged negligence, fraudulent or dishonest dealing, foreclosure, bankruptcy, or breach of fiduciary duty related to the practice or profession for which you are applying, or is there any such case or investigation pending. Mr. Chew answered "No" to this question. On May 2, 2018, the Association promoted Mr. Chew to the Administrative Services Manager (ASM) position, which reported directly to the General Manager, Timothy Day. Along with this promotion, Mr. Chew received a salary increase. In the ASM position, Mr. Chew handled a variety of issues and considered himself the General Manager's "right hand man." Mr. Chew did very well in this position and was well liked by the Board, Mr. Day, and the Association staff. In August 2018, Mr. Day announced that he would be resigning from the Association and recommended Mr. Chew for General Manager position. On August 30, 2018, the Board voted unanimously to appoint Mr. Chew as the Interim General Manager. The credible testimony at the hearing established that at this point the Board believed a final decision would be made for the permanent General Manager position after more extensive background checks were conducted on Mr. Chew. Meanwhile, Mr. Chew would serve in an interim capacity. Later on August 30, Mr. Day informed Mr. Chew that he had received information that there was judgment for embezzlement against Mr. Chew in an action brought by the Attorney General for the State of Illinois. Mr. Chew explained that the suit was not against him personally, but against a corporation. On September 4, 2018, Mr. Day informed Mr. Chew that he was being placed on paid administrative leave pending an investigation into the Illinois litigation. On September 19, 2018, the Association's attorney sent Mr. Chew a letter of termination. DISCRIMINATORY ACTS Mr. Chew testified that his accounting co-workers made racial comments that made him feel uncomfortable while he was working as a staff accountant. As described by Mr. Chew, these remarks were made while he was working under Ms. Gibbs, prior to May 2018. Mr. Chew's co-worker, Joan Farus, confirmed that Ms. Gibbs (Ms. Farus's and Mr. Chew's supervisor) and other employees talked about "black people" in a derogatory way around Mr. Chew.3 The undersigned finds that Petitioner established that he was subject to discriminatory comments by staff prior to Mr. Chew becoming an ASM. Mr. Chew also asserts that he was treated less favorably by the Board than the white employees. Mr. Chew presented little, if any, evidence of how he was treated less favorably by the Board. To the contrary, based on the testimony at the hearing by the Board members and staff, it was clear that Mr. Chew was well liked; the Board promoted him and provided him with bonuses and pay raises. The fact that the Board unanimously approved him for the Interim General Manager position on August 30, 2018, leads to the conclusion that the Board did not have any racial animus toward Mr. Chew. Although the Association has an Equal Opportunity Employer and Non-Harassment Policy, there is nothing in its Employee Handbook 3 Ms. Farus was terminated by the Association in August 2018. specifically prohibiting discriminatory conduct based on race. The Handbook indicates employees "deserve to be treated with respect and courtesy." It also states it is company policy that the "workplace be free of tensions involving matters which do not relate to our business" such as "ethnic, religious, or sexual remarks," but stops short of explicitly prohibiting racism or racist comments. The Handbook does urge an employee who feels harassed to notify a supervisor or the Human Resources department. It also provides that any grievances regarding the job, working conditions, or problems with another employee be submitted to the employee's immediate supervisor in writing. There is no credible evidence Mr. Chew ever submitted a written complaint to his supervisor, Human Resources, or anyone else at the Association regarding the racist comments. MR. CHEW'S BACKGROUND HISTORY After the Board appointed Mr. Chew as the Interim General Manager, Kathy Miske, a white female who lived in an Association condominium, researched Mr. Chew's background.4 Ms. Miske previously performed background checks for a law firm in Chicago before she moved to a condominium in the Association. She researched Mr. Chew because she had a "habit of checking on people," and she had been approached by a condominium resident, Debbie Combs, also a white female, who was suspicious of Mr. Chew. The reason for Ms. Combs's suspicion was not disclosed at the hearing. Ms. Miske discovered that the Attorney General of Illinois had filed a "Verified Complaint for an Injunction, an Accounting, Surcharge, and Other Equitable Relief" (Complaint) against Mr. Chew personally in May 2013. The Complaint essentially described an embezzlement scheme, and specifically accused Mr. Chew of abusing a position of trust while employed at Marcy- 4 Although she later became a Board member, at the time she researched Mr. Chew she was not. Newbury Association, Inc. (MNA). It alleged Mr. Chew had misappropriated funds, in violation of the Illinois Charitable Trust Act. Although not a criminal prosecution, the Illinois Attorney General sought injunctive relief, civil damages, punitive damages, and civil penalties against Mr. Chew. Ms. Miske also discovered an Order of Final Judgment (Final Judgment) had been entered against Mr. Chew in the Illinois case on September 9, 2013. The Final Judgement seems to be a default judgment. As a result, Mr. Chew was enjoined from serving as a charitable trustee, was ordered to pay $205,372 in damages, and was also required to pay interest and investigative costs. Although Mr. Chew had a plausible explanation as to the circumstances surrounding the Illinois case, there was no evidence that the Final Judgment had been appealed, withdrawn, reversed, or nullified in any way. Mr. Chew admitted he did not notify the Association of the Final Judgment and that he did not list MNA on the resume he provided to the Association. Ms. Miske made copies of the Complaint and Final Judgment against Mr. Chew. She distributed the copies to three of the Board members that she knew personally. Eventually, copies were provided to the President of the Board, Mr. Day, and the Board's attorney. The Association was required by law to maintain a bond to cover its employees, including the General Manager.5 The Board members testified they were concerned that the Final Judgment would affect the Association's ability to obtain the proper bond if Mr. Chew became General Manager. The Board members relied on the Association's attorney's advice regarding the Association's ability to obtain a bond and the attorney's recommendation to terminate Petitioner based on the Complaint and Final Judgment. Mr. Chew claims that he was discriminated against because he was not given an opportunity to explain the Final Judgement or underlying facts to the Board. In comparison, he claims Mr. Day was given an opportunity to explain a criminal investigation against him and was hired despite the investigation. Mr. Day had previously been involved in the local government, but the nature of the investigation or the outcome of that investigation was not established at the hearing. Mr. Chew had a Final Judgment against him by the Illinois Attorney General for what essentially amounted to embezzlement. In contrast, Mr. Day was only under investigation; there was no evidence he was found guilty of anything. Moreover, Mr. Chew failed to disclose a former employer, MNA. There is no proof that Mr. Day tried to hide that he had been under investigation or that he hid his employment by a previous employer. 5 Section 718.111(11)(h), Florida Statues, states: (11) INSURANCE. * * * (h) The association shall maintain insurance or fidelity bonding of all persons who control or disburse funds of the association. The insurance policy or fidelity bond must cover the maximum funds that will be in the custody of the association or its management agent at any one time. As used in this paragraph, the term "persons who control or disburse funds of the association" includes, but is not limited to, those individuals authorized to sign checks on behalf of the association, and the president, secretary, and treasurer of the association.
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 Donald Chew's Petition for Relief. DONE AND ENTERED this 18th day of November, 2020, in Tallahassee, Leon County, Florida. S HETAL DESAI 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 COPIES FURNISHED: Tammy S. Barton, Agency Clerk Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 2020. Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Donald Chew 1262 Northeast 41st Terrace Avenue Cape Coral, Florida 33909 (eServed) Christina Harris Schwinn, Esquire Pavese Law Firm 1833 Hendry Street Post Office Drawer 1507 Fort Myers, Florida 33901 (eServed) Vanessa Fernandez, Esquire Pavese Law Firm 1833 Hendry Street Fort Myers, Florida 33901 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue The issue is whether the claim of employment discrimination contained in the Petition for Relief must be dismissed due to Petitioner's execution of a release at the time of his termination from employment.
Findings Of Fact Effective August 15, 2011, Petitioner's employment with Respondent was terminated. Two days later, Petitioner signed and delivered the Release. In the Release, Respondent agreed to pay Petitioner "severance pay" of about $5,000, net several items, provided Petitioner did not exercise his right to revoke the agreement within the seven days following execution, as provided by the Release. Petitioner did not revoke the agreement, and Respondent discharged its obligations under the Release. In exchange, Petitioner agreed to release Respondent from any and all charges, complaints, claims, liabilities, obligations, promises, sums of money, agreements, controversies, damages, actions, suits, rights, demands, sanctions, costs . . ., losses, debts, and expenses of any nature whatsoever, existing on, or at any time prior to, the date hereof, in law, in equity or otherwise, which [Petitioner] . . . had or [has] by reason of any fact, matter, cause or thing whatsoever. This Release includes . . . a release of all claims or causes of action arising out of or related to [Petitioner]'s employment and/or separation from employment with [Respondent] and . . . claims or causes of action arising under any federal, state or local law, including . . . Title VII of the Civil Rights Act of 1964 " Even taken as true, the above-quoted statement is not, on its face, evidence of discrimination based on national origin because it does not reveal that the speaker acted on his hatred of Petitioner; it merely describes hatred, the national origin or religion of the speaker, and the national origin of Petitioner. However, for the purpose of ruling on Respondent's Motion to Relinquish Jurisdiction, it is assumed that a Jewish supervisor fired Petitioner on the ground of national origin. More importantly, perhaps, is the fact that, after concluding that his termination had constituted unlawful discrimination, Petitioner has not tendered back to Respondent the severance payment, nor has he offered to do so.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 12th day of April, 2013, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 12th day of April, 2013. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Albert B. Balzanti 4857 Northwest 93rd Avenue Fort Lauderdale, Florida 33351 Holly A. Dincman, Esquire Melissa F. Sale, Esquire Coppins, Monroe, Adkins, and Dincman, P.A. 1319 Thomaswood Drive Tallahassee, Florida 32308 Cheyanne Costilla, Interim General Counsel Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue Whether Respondent is, for purposes of Chapter 760, Florida Statutes, an "employee" of Petitioner. Whether Respondent has committed an unlawful employment practice against Petitioner by failure to hire him on the basis of race, to wit: African-American.
Findings Of Fact Petitioner is an African-American male. At all times material, he was employed as a member of the Flagler County, Florida, Sheriff's Department. In 2001, he had worked for the Sheriff's Department in some capacity for twenty years and had held the rank of sergeant for twelve years. In June 2001, he was a Sheriff's Department patrol sergeant. As such, he supervised Sheriff's Department officers on patrol. Respondent City of Bunnell is a municipality located in Flagler County, Florida. It is governed by a five-person City Commission, including its mayor. At all times material, the Commissioners were Mayor King and Commissioners Fell, Henry, Edmonson, and Marquis. Herein, Petitioner asserts that Respondent City discriminated against him due to his race because he was not appointed to the position of Acting Police Chief of the City of Bunnell, pursuant to an interlocal agreement the City never entered-into with the Sheriff's Department In early 2001, the City's full-time Police Chief resigned, and the City began to advertise for a full-time replacement. Petitioner lived in Bunnell, and was aware of the open position of full-time City Police Chief, but he elected not to apply. One reason for his decision not to apply was that he had twice applied unsuccessfully in the mid-1990's. Another reason was that by 2001, Petitioner was set in his career path with the Flagler County Sheriff and with his accruing State retirement benefits. Employment with the City would not have continued to accrue him State retirement benefits. At all times material, all of the City police officers were Caucasian. While seeking a full-time Police Chief, the City kept the City Police Department functioning by relying on a series of "Acting Police Chiefs"; Police Corporal Harrison; and Donna Kearney, Administrative Assistant to the City Manager. At all times material, Corporal Harrison was supervisor for the City Police Department's "road patrol." Donna Kearney had handled some clerical and scheduling functions of the City Police Department since the City had been seeking a full-time Chief of Police, but she was not a police officer. She also has never been certified as a law enforcement officer by the Florida Department of Law Enforcement. At all times material, James Manfre was the elected Sheriff of Flagler County. He had assumed that office on January 2, 2001. The Sheriff is a constitutional officer and the chief law enforcement officer of Flagler County. Sheriff Manfre is Caucasian. His main offices are not in Bunnell, Florida. The Bunnell City Police Chief was restricted in what she/he could do. She/he had to have City Manager approval to hire, to promote, or to reprimand police officers. The Bunnell City Police, including the Police Chief, were expected to work out of City property, the Police Department, located in Bunnell. Despite a series of "Acting" Chiefs of Police who served while the City advertised the full-time position, by June 2001, the efficiency of the City Police Department had been suffering for some time. City police officers' morale was low, and their attitudes were bad. Citizens were complaining about their frequency of patrols and general inefficiency. The Saturday before the June 19, 2001, City Commission Meeting, Acting Chief of Police John Ashton quit as Chief and returned to regular duty as a Bunnell City Police Sergeant. This apparently was due to a salary dispute with the City. On June 19, 2001, the City Commission met to discuss Acting Chief/Sergeant Ashton's compensation. Present at the June 19, 2001, City Commission Meeting were Mayor King (gender and race not of record); and Commissioners Fell (male Caucasian), Henry (female African- American), and Edmonson (male Caucasian). Commissioner Marquis was absent. Commissioner Edmonson was a former City Police Chief who had been fired several years previously for making a racist comment against African-Americans. At the June 19, 2001, City Commission meeting, Mayor King and Commissioner Fell took a moment to cite the City Police Department for doing a good job. Corporal Harrison also spoke to the Commission. Prior to June 19, 2001, the City had approached Sheriff Manfre about the Sheriff's Office taking over the City police functions until the City could hire a full-time police chief. Sheriff Manfre attended the June 19, 2001, City Commission meeting and made a presentation concerning having the Sheriff's Department supervise the City Police Department's road patrol for a period of 90 days to allow time for the City to find and hire its own permanent Police Chief. After the Sheriff's presentation, Commissioner Fell moved a vote, which was seconded by Commissioner Henry.1/ The Motion failed to get a majority. After further discussion, there was a motion to reconsider. Ultimately, a motion to start negotiating the proposed interlocal agreement was passed unanimously by Commissioners King, Fell, Henry, and Edmonson.2/ Negotiations between the Sheriff and the City ensued, and the Sheriff's attorney drafted a proposed interlocal agreement. On June 22, 2001, another City Commission meeting was held. At that time, only three City Commissioners were present: King, Fell, and Henry. Edmonson and Marquis were absent. Thus, there was no quorum to conduct business. Nonetheless, Sheriff Manfre spoke before the Commission, as did several members of the public and Corporal Harrison. Another Commission meeting was scheduled for June 25, 2001, to, among other things, vote on whether or not to approve the proposed interlocal agreement. Upon the hopeful predictions of his attorney and his own optimism because the City had initially approached him, Sheriff Manfre signed the proposed draft of the interlocal agreement on June 22, 2001, and wrote in that the agreement was to be effective as of June 22, 2001. That draft was never approved by the City Commission or signed by anyone on behalf of the City. Paragraph 2 of the proposed interlocal agreement provided, in part, "This Agreement shall be interpreted and administered in such a manner that it will not constitute a transfer, merger, or consolidation as those terms are used in the Constitution of the State of Florida or in any statute of the State of Florida." There was no clear consensus among the witnesses who testified about whether the language of the proposed agreement was designed to provide the City with an interim police chief or with a supervisor of its road patrol, a position already occupied by Corporal Harrison. The Sheriff testified that he had in mind to detail Petitioner to the City Police Department position, whatever that position was, and that he had spoken to Petitioner about it. The Sheriff's intent was based on Petitioner's rank; capabilities; and familiarity with City issues, due to Petitioner's residency in Bunnell. The Sheriff envisioned Petitioner operating out of the City Police Department; having daily interaction with the City police officers; and dictating to/directing the City police officers. Petitioner never read the proposed interlocal agreement, yet he "knew" that, under it, he would be supervising road officers, and he assumed that if the proposed interlocal agreement went through, he would become the City Police Chief. The proposed interlocal agreement also is not clear as to whether the Sheriff was to provide an interim police chief or a supervisor of the City's road patrol. Paragraph 4 of the proposed interlocal agreement set forth the services to be provided by the Sheriff. Specifically, the Sheriff would "provide supervision for all necessary and appropriate law enforcement services in and for the CITY." Paragraph 4 also provided that a "command officer" would be assigned as "supervisor" of the City's patrol deputies. Paragraph 12 of the proposed interlocal agreement provided, in pertinent part: PERSONNEL: The SHERIFF shall have authority for the hiring, training, assignment, discipline and dismissal of all law enforcement personnel subject to his supervision under this Agreement. The SHERIFF shall also be legally responsible for the action of law enforcement personnel performing services under this Agreement in accordance with law. Any employee of the SHERIFF is not for any purpose whatsoever, an agent, employee, or legal representative of the City and are in no way authorized to make any contract, agreement or representation on behalf of the CITY or to create any obligation on behalf of the CITY. (Emphasis supplied) The Sheriff's unilateral hiring and disciplining authority in paragraph 12 of the proposed interlocal agreement would have been a departure from City Manager authority in that regard. (See Finding of Fact 11). Paragraph 9 of the proposed Agreement specifically designated the Sheriff as an "independent contractor." In addition to the foregoing explicit language contained in the draft proposal at paragraph 2 (see Finding of Fact 23) and paragraph 9, Sheriff Manfre's testimony supports the concept that the Sheriff would have continued to be Petitioner's employer, whatever Petitioner's title, if the proposed interlocal agreement had been approved by the City Commission. The Sheriff was clear that at all times the supervising officer he would designate under the agreement would remain an employee of the Sheriff's Department, even while carrying out duties for the City. Paragraph 18 of the proposed agreement granted the Sheriff "authority to expend funds from the existing Bunnell Police Department budget" to operate the City Police Department under the Sheriff's supervision. Despite some contrary language, one could reasonably interpret the proposed agreement to delegate to the Sheriff decisions on how much and for what purposes City money would be spent on City law enforcement. Paragraph 17 of the proposed interlocal agreement provided that the agreement would terminate after 90 days from its effective date, unless both parties agreed to review it. Also, either party could terminate the agreement prior to the end of its term upon 30 days' written notice. Paragraph 17 also reserved to the City the right to require the Sheriff to transfer and replace any personnel, who, in the sole determination of the City, failed to perform consistent with City standards. This paragraph would seem to have permitted the City unilateral removable rights over whomever the Sheriff could appoint under the interlocal agreement. On June 25, 2001, the City Commission met and again discussed the proposed interlocal agreement. Commissioners King, Fell, Henry, and Edmonson were present. Marquis was again absent. Several members of the public spoke on the issue of whether the agreement should be approved. Among others, Donna Kearney spoke against what she saw as "the Sheriff's proposal," because she interpreted the proposed agreement as duplicating the position of "road supervisor," which was already filled by Corporal Harrison of the City Police Department, and because she felt a permanent police chief was needed. Delories Hall, an African-American citizen, spoke in support of the proposed agreement because she felt her neighborhood, which is predominantly African-American, was poorly protected by the City Police. Corporal Harrison spoke again at the June 25, 2001, meeting. Although the content of his comments is not of record, it may be presumed, from the evidence as a whole, that he opposed the interlocal agreement. On June 25, 2001, some City Police Officers spoke to the Commissioners, generally opposing the agreement between the City and the Sheriff. They felt their professional performance had recently improved and that they should be given another chance to correct the problems that had led to the proposal of the interlocal agreement. After the public discussion closed on June 25, 2001, Commissioner Henry made a motion to accept the proposed interlocal agreement, with several revisions. Commissioner Edmonson seconded Commissioner Henry's motion.3/ The vote resulted in King and Henry supporting the proposed agreement, with revisions, and Commissioners Fell and Edmonson opposing the proposed agreement, even if revised. As a result of the "two- to-two" vote, the motion did not pass, and the proposed agreement which had previously been signed by the Sheriff, never took effect. The record herein does not explain how the proposed revisions were to be presented to the Sheriff by the City Commission. The exact revisions proposed by the Commission are not of record. They were not interlineated over the Sheriff's signature on the two copies of his proposed draft of the interlocal agreement which are in evidence, nor did witnesses seem clear whether there ever were any written proposed revisions. Finally, the Commission's Minutes in evidence do not reflect the proposed revisions. Commissioner Fell testified, without refutation, as to several reasons he had ultimately voted against the proposed agreement in any form. None of his reasons addressed race. Most of his concerns were financially based, but he also worried that the Sheriff was making a "power play." From Mr. Fell's point of view, if the proposed interlocal agreement were approved, the Sheriff would be supervising law enforcement throughout the entire county, and through similar interlocal agreements, would be supervising law enforcement in all but two cities within the county. Although the City of Bunnell had problems with its police department, Mr. Fell wanted to give the local police officers another chance. He expressed confidence in Corporal Harrison. Commissioner Edmonson testified that on June 25, 2001, he voted against the proposed agreement because several City police officers, including Corporal Harrison, had spoken to him before the Commission meeting and asked that he give them one more chance to operate without outside help, and that he had told them he would vote them another chance, but it would be their last chance. The Sheriff's attorney advised the Sheriff of the negative June 25, 2001, Commission vote by phone on June 25, 2001. The Sheriff, in turn, placed a phone call to his friend, Commissioner Edmonson. Commissioner Edmonson and Sheriff Manfre spoke by cell phone while the Sheriff was driving on the Florida Turnpike. Their respective versions of this bad connection and frequently distracted conversation are very different. According to the Sheriff, Edmonson told him that Edmonson had "heard" that some of the City police officers would not report to an African-American. However, even Sheriff Manfre conceded that Edmonson did not say this knowledge motivated Edmonson's vote against the proposed interlocal agreement. Commissioner Edmonson denied the statement attributed to him by Sheriff Manfre. He claimed to have stated to the Sheriff that some City police officers had a problem with Petitioner, personally, and that the Sheriff needed to check into that problem. Edmonson further testified that when the Sheriff asked if the problem was because Petitioner was African- American, he, Edmonson, had denied that race was the issue, and the Sheriff hung-up. On this point, Commissioner Edmonson is the more credible witness. Commissioner Edmonson further testified that if the Sheriff had not terminated their cell phone conversation when he did, Edmonson would have explained to the Sheriff that the City police officers had told Edmonson they were upset over an incident several weeks prior to June 25, 2001, when Petitioner, acting for the Sheriff's Office, had released an individual in City Police Department custody. Because Petitioner denied that any such release of an arrestee by Petitioner ever occurred, and because there was no explanation how, without an interlocal agreement in force, Petitioner would have had any authority to release a City arrestee, it has not been proven that such an incident occurred. However, there was no evidence to refute Edmonson's testimony that this story had been told him by police officers and no evidence that race, rather than Petitioner's personality or an interlocal power struggle, influenced Edmonson's vote on June 25, 2001. Finally, paragraph 17 of the proposed agreement (see Findings of Fact 33-34) would have given the City a unilateral right to require transfer of anyone assigned by the Sheriff pursuant to the interlocal agreement, and even to terminate the agreement, itself, upon 30 days notice. Such an options suggest that if race had been an issue, it could have been addressed at any time later. A few days after June 25, 2001, the Sheriff issued a press release denouncing the City Commission vote as "racist." Much public uproar ensued. Then the Sheriff appeared at an NAACP meeting with Commissioner Edmonson "to heal" the situation created by his press release. There were no further negotiations on an interlocal agreement. Corporal Harrison next served as interim City Police Chief. In either August or September 2001, the City finally hired a full-time Police Chief. The hiree was Caucasian. Apparently urged on by the Sheriff's public stance, Petitioner filed a Charge of Discrimination with the Commission on or about March 1, 2002. Therein, Petitioner named the "Flagler County Sheriff's Office" as the offending employer or governmental agency. However, on April 5, 2002, Petitioner amended his Charge to reflect that the employer or governmental agency involved was the City of Bunnell. No evidence was presented as to any damages Petitioner incurred due to the tied vote of the City Commission on June 25, 2001. There was no evidence Petitioner would have been paid more money or would have received greater fringe benefits if he had been appointed by the Sheriff to serve the City in any capacity under the proposed agreement. There was no evidence Petitioner did not continue to receive his regular compensation and benefits from the Sheriff after the City rejected the proposed agreement. Petitioner has prayed for attorney's fees, but by agreement, the parties have deferred that issue until the merits of the case are determined by the final order.
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 Charge of Discrimination and the Petition for Relief for lack of jurisdiction. DONE AND ENTERED this 7th day of June, 2004, 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 7th day of June, 2004.
The Issue The issue in this case is whether the discipline imposed on Petitioner, Alisha Fessel, by Respondent, City of Cape Coral (the "City"), was appropriate.
Findings Of Fact Based on the Stipulated Record, the following Findings of Fact are made: The City has the authority to monitor and regulate its employees in accordance with the laws and rules of the State of Florida, the City Charter, and ordinances and rules promulgated under the Charter. Ms. Fessel was employed by the City as an administrative secretary in the City's Police Department, and she was a member of the Union. Ms. Fessel had been counseled and disciplined on several occasions regarding her work performance and behavior pursuant to the City's personal rules and regulations as codified in the City of Cape Coral Code of Ordinances and the Cape Coral Police Department General Orders. All disciplinary proceedings against Ms. Fessel were initiated under the City of Cape Coral Code of Ordinances, Chapter 2, Article III, Division 7, entitled, Discipline of Regular Employees, and pursuant to the collective bargaining agreement between the City and the Union. On September 30, 2011, Ms. Fessel was placed on a 120-day performance improvement plan. On November 2, 2012, Ms. Fessel was suspended for 40 hours. On March 7, 2013, Ms. Fessel was placed on administrative leave with pay. On March 12, 2013, Ms. Fessel remained on paid administrative leave while the City conducted a pre-disciplinary hearing. On April 18, 2013, Ms. Fessel's employment with the City was terminated. The parties have stipulated: The underlying discipline is not being challenged; rather, Petitioner [Ms. Fessel] contends that the suspension with pay during the period March 7, 2013[,] up to and including April 18, 2013, constituted disciplinary action barring any further discipline (i.e., Fessel's termination on or about April 18, 2013) for the same actions.
The Issue Whether Respondent, Cambridge Management Inc., engaged in housing discriminatory practice in violation of the Florida Fair Housing Act, as amended, sections 760.20 through 760.37, Florida Statutes (2010).1/
Findings Of Fact In 2009-2010, Ms. Elizabeth Sherlock and her nine-year-old son, Luke Sherlock, rented a home from Ms. Sheryl Whitaker. The home was located in the Wedgewood II at Pelican Strand located in Collier County, Florida. The lease was from June 1, 2008, until June 1, 2010. Cambridge Management is the Master Association for the condominium association for the Strand properties. Cambridge Management did not rent or lease the home to Ms. Sherlock. Ms. Sherlock testified that the homeowner's association cited her for violations of the homeowner's association covenants, based on her son engaging in normal childhood activities such as climbing trees, archery, playing in the street and the community clubhouse. Ms. Sherlock testified that she was told in April 2010 that her lease would not be renewed, because her son had run across a sand trap on the golf course during a rain storm. According to Ms. Sherlock, Cambridge Management discriminated against her and her son by denying them access to their rented home.2/ Further, Ms. Sherlock testified that her son suffered severe traumatic stress, based on the security officers denying them access to their home. Finally, Ms. Sherlock testified that the decision not to continue renting to her caused her to move from the home and resulted in financial hardship. Ms. Sherlock's Petition for Relief summarily states that Respondents violated the Florida Fair Housing Act through "discriminatory terms, conditions, privileges or services, and facilities." The Petition for Relief does not contain any specific factual allegation against Respondents. The record does not support Ms. Sherlock's testimony that Cambridge Management engaged in any discriminatory practice or that it retaliated against her and her son in violation of the Florida Fair Housing Act. Mr. LeClaire is a security guard for the Wedgewood at Pelican Strand. Mr. LeClaire testified that on June 24, 2010, at approximately 9:00 p.m., he had stopped Ms. Sherlock at the gate because his supervisor had told him that Ms. Sherlock may not be a current resident. After confirming that she was still a current resident, Mr. LeClaire allowed Ms. Sherlock to access her home through the gate. Although Mr. LeClaire's supervisor had told him that Ms. Sherlock may not be a current resident, no one from Cambridge Management had told Mr. LeClaire to deny Ms. Sherlock access to her rented home. Mr. Weaver is also a security guard for the Wedgewood at Pelican Strand. Mr. Weaver testified that on July 2, 2010, at approximately 9:00 p.m., he stopped Ms. Sherlock at the gatehouse to determine whether or not she was a current resident. Mr. Weaver credibly testified that he stopped Ms. Sherlock because he did not recognize her as a resident. After he verified that she was a current resident, Mr. Weaver allowed Ms. Sherlock into the community. Mr. Weaver credibly testified that he delayed her at most three minutes. Mr. Charles Sherlock is Ms. Sherlock's father. Mr. Sherlock resides in Naples, Florida, during the winter. He testified about the close relationship that he enjoys with his grandson Luke. According to Mr. Sherlock, Luke felt that it was his fault that he and Ms. Sherlock had been evicted from Ms. Whitaker's home, and had to move to Minnesota. Mr. Sherlock further testified that he had to pay for Ms. Sherlock's move to Minnesota, and that he would like to be reimbursed for the costs. Ms. Rubele is an officer with Wackenhut Security, and she testified about the Wackenhut Standard Operating Procedure for the Strand, and testified that Wackenhut's contact person for security was Ms. Brandy K. Callahan of Cambridge Property Management. Prior to the final hearing, Ms. Sherlock voluntarily dismissed, with prejudice, her claims against Respondents, Wedgewood at Pelican Strand Neighborhood Association, et al., and Newell Property Management, et al., and voluntarily dismissed Respondent, Sheryl Whitaker.
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 of dismissal of the Petition for Relief. DONE AND ENTERED this 7th day of June, 2011, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS 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 7th day of June, 2011.
