Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all relevant times, respondent, Passport Internationale, Inc. (Passport or respondent), was a seller of travel registered with the Department of Agriculture and Consumer Services (Department). As such, it was required to post a performance bond with the Department conditioned on the performance of contracted services. In this case, petitioner, Robert F. Boles, has filed a claim against the bond for more than $1,000.00 alleging that Passport failed to perform on certain contracted services. On an undisclosed date in 1990, petitioner purchased a travel certificate from Passport entitling the holder to four nights lodging at the Lucayan Beach Resort and Casino in Freeport, Bahamas, which Passport described as "the nicest property on the beach." Petitioner used his certificate to travel with his wife and two children to Freeport on April 1, 1991. The room to which petitioner was assigned did not have hot water. Petitioner was offered a different room with a less desirable view, but the hot water was not working in that room, and the room had not been cleaned since the prior guest had departed. Since the hotel was otherwise fully booked, petitioner decided to keep his original room, but says he had no hot water during his entire four-night stay. Besides a lack of hot water, the cable television connector was not repaired until the second day, the room air- conditioner was "noisy," and the bed sheets were not changed during the entire stay. As to the latter deficiency, petitioner says this was particularly galling since one of his children had chicken pox while on the trip. He acknowledged that he never requested the house cleaning department to change the sheets but says he had no responsibility to do so. Finally, the burned-out light bulb in the room lamp was never replaced. Whether petitioner asked that it be changed is not of record. When he checked out of the hotel, petitioner expected an adjustment on his bill but received none. Because of the foregoing problems, petitioner asks that he be refunded in excess of $1,000.00, which he says represents his costs incurred on the trip. According to the evidence, petitioner paid a $90.00 deposit to Passport in October 1990, plus $692.90 for upgrades to better accommodations, additional services and taxes in February 1991. The record does not show what portion of the $692.90 pertains to the upgraded accommodations. The derivation of the remaining part of petitioner's claim is unknown. The hotel's version of what occurred is found in a letter dated July 5, 1991, but it is hearsay in nature. It does corroborate other evidence that the hotel offered petitioner an apology, gave his family a free meal one evening, and attempted (albeit unsuccessfully) to resolve the problems.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner against the bond of respondent be approved, and he be repaid $346.45 from the bond. DONE AND ENTERED this 13th day of December, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER 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 13th day of December, 1994. COPIES FURNISHED: Robert F. Boles 1522 Ohio Avenue Palm Harbor, FL 34683 Michael J. Panaggio 2441 Bellevue Avenue Daytona Beach, Florida 32114 Robert G. Worley, Esquire 515 Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard D. Tritschler, Esquire The Capitol, PL-10 Tallahassee, FL 32399-0810
The Issue The issue presented is whether the Respondent, David Hirshberg acted as a yacht salesman without being licensed in accordance with Chapter 326, Florida Statutes.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to this proceeding, the Respondent was not licensed as a yacht broker or as a yacht salesman in accordance with Chapter 326, Florida Statutes, commonly referred to as the "Yacht and Ship Broker's Act". The Division is the state agency statutorily authorized to regulate yacht and ship brokers and salesmen. At all times material to this proceeding, the Respondent was employed by Tampa Bay Marine Repossession Center (Center). Respondent's main responsibility was the sale of new Chris Craft boats and occasionally used boats. However, other than giving directions or explaining procedures at the boat show as set out in Finding of Fact 11 the Respondent was not involved with the sale of yachts. The Center is a division of Hirsh Marine, Inc., and acts as the showing agent between banks owning the repossessed boats and the boat buyer. At all times material to this proceeding, Center was not licensed as a yacht broker in accordance with Chapter 326, Florida Statutes, but was licensed as a boat dealer. On Sunday, March 10, 1991, the Center maintained a display booth at the Ninth Annual Suncoast Boat Show (Show) at Sarasota, Florida. The Center's display booth at the Show on March 10, 1991 contained listings offering boats for sale which had been repossessed by banks. One of those listings was for a 34-foot Mainship Trawler (Trawler). Listing of boats on a display board at boat shows is a common method of offering brokerage boats for sale. At the time Center was offering the Trawler for sale on March 10, 1991, the Center did not own, hold title to or have a secured interest in the Trawler. On March 10, 1992, the Trawler was owned by a lending institution that had foreclosed its security interest in the Trawler. The Trawler had been delivered to the Center by the lending institution to be offered for sale. The Trawler was held for sale by the Center for the owner in expectation of compensation for the sale. Ron Hirshberg testified that after the Center negotiated the sale of a repossessed boat with a buyer, the Center paid the lending institution off and title to the boat was transferred to the Center which in turn transferred title to the buyer. Based on material available at Center's display booth, this does not appear to be the procedure used by the Center in handling a sale. The material available at the Center's display booth advises the potential buyer, among other things, that: (a) Center acts as the showing agent between the boat owner (bank) and buyer; (b) certain guidelines are imposed by the bank; (c) no offers will be submitted to the bank without a 10% refundable deposit on initial offer; (d) offers are subject to bank's acceptance; and (e) if repairs are needed, this will be negotiated between bank and buyer. Respondent had his business cards on the table at the display booth which indicated he was associated with the Center. Also, on the display board was a notice that read "Any questions, come out to Chris Craft in-water display and ask for Dave". Dave is the Respondent herein. Upon inquiry, Respondent would direct the person to the marina where the repossessed boats were stored and explain the procedure on how to make an offer or purchase a repossessed boat. There was insufficient competent substantial evidence to establish facts to show that the Respondent was employed by the Center as a yacht salesman or that the Respondent acted as a yacht salesman on behalf of Center as the term "salesman" is defined in Section 326.082(4), Florida Statutes.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, accordingly, RECOMMENDED: That Petitioner, Department of Business Regulation, Florida Land Sales, Condominiums and Mobile Homes enter a final order dismissing the order to show cause. DONE and ENTERED this 14th day of January, 1992, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1992. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in the case. Rulings on Proposed Finding of Fact Submitted by the Petitioner Adopted in substance as modified in Findings of Fact 6 and 7. Adopted in substance as modified in Finding of Fact 8. - 5. Adopted in substance as modified in Finding of Fact 9. Adopted in substance as modified in Findings of Fact 3 and 11. Rejected as not being supported by competent substantial evidence in the record. Adopted in substance as modified in Finding of Fact 11. Adopted in substance as modified in Findings of Fact 1 and 5. Adopted in substance as modified in Finding of Fact 1. Adopted in substance as modified in Finding of Fact 9. Rulings on Proposed Findings of Fact Submitted by the Respondent The Respondent did not submit any Proposed Findings of Fact. COPIES FURNISHED: Mark Henderson, Esquire Department of Business Regulation Division of Florida Land Sales, Condominiums and Mobile Homes 725 South Bronough Street Tallahassee, Florida 32399-1007 David R. Hirshberg 6035 30th Avenue West Bradenton, Florida 34209 Henry M. Solares, Director Division of Florida Land Sales, Condominiums and Mobile Homes 725 South Bronough Street Tallahassee, Florida 32399-1000 Donald D. Conn, General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
Findings Of Fact At all times pertinent to the allegations contained herein, Respondents were licensed real estate salesmen in the State of Florida, with Mr. Blanc's license being 0406481 and Ms. Kirkland's license being 0399466. The Division of Real Estate is a state government licensing and regulatory agency charged with the responsibility of regulating the practice of real estate in this state. In November, 1985, Mr. and Mrs. William A. McKie were owners of Week 43 in Unit 1 of a time share condominium located at the Anchorage Resort and Yacht Club in Key Largo, Florida. About that time, they received a card issued by the Florida Bay Club to visit a time share condominium there. Because they were somewhat disappointed in the condition of their Anchorage unit, they went to see the Florida Bay Club facility and met with Respondent Kirkland who took them on a tour of the facility and the model apartment. Mrs. McKie was quite impressed with it, but indicated she could not afford it, because she and her husband already owned a time share unit at the Anchorage. When told that, Ms. Kirkland introduced the McKies to Respondent Blanc, who in the course of his sales presentation, suggested that the McKies use their ownership at the Anchorage as a trade-in worth $4,000 off of the in excess of $11,000 price of the Florida Bay Club unit. The McKies agreed and signed certain documents incident to the purchase including a worksheet, purchase agreement, disclosure agreement, and settlement statement, all prepared by Respondent Blanc. The worksheet reflected that the unit being purchased by the McKies, Week 44 in Unit A-5, had a purchase price of $6,500 toward which the McKies made a down payment of $650 by three separate charges to their Master Card and Visa cards, two for $300 each and one for $50. This left a mortgage balance to be financed of $5,850 payable for 7 years at 15 1/2 percent with monthly payments of $114.54. No reference was made in the worksheet to a trade in of the Anchorage unit. The purchase agreement also signed by the McKies and by Respondent Kirkland for the Florida Bay Club reflects a purchase price of $6,500 with a down payment of $650. The truth in lending form reflects that the amount financed would be $5,850 at 15.5% resulting in a finance charge of $3,771.36 with a total monthly payment amount of $9,621.36 which, when added to the $650 deposit, showed a total sales price of $10,271.36. The settlement statement signed by the McKies reflects a sales price of $6,500 with a $650 deposit. At no place, on any of the documentation, is the $4,000 trade-in for the Anchorage unit reflected. As a part of the transaction and at the suggestion of Respondent Blanc, the McKies were to sign a quitclaim deed to him as the representative of the seller to receive credit for the $4,000 trade-in. The documents, except for the quitclaim deed, were signed by the McKies on their first visit to Florida Bay Club on November 17, 1985. Mrs. McKie does not recall either Respondent signing the documentation, but there is evidence that Ms. Kirkland signed the purchase agreement and the worksheet and Mr. Blanc approved the worksheet. Neither the disclosure statement, the settlement statement nor the quitclaim deed, which was prepared by Respondent, Blanc, and furnished to the McKies on their second visit, was signed by either Respondent. The McKies went back to Florida Bay Club approximately a week later to sign for the prize they had been notified they had won and to sign the quitclaim deed, which had not been ready for them on their first visit. Respondent Blanc explained what the quitclaim deed was for and according to both McKies, they would not have purchased the property at Florida Bay Club had they not been able to trade-in their Anchorage unit. They definitely could not afford to pay for both units, a fact which was repeatedly explained to Respondents on both visits. Mrs. McKie believed that when she signed the quitclaim deed to the Anchorage unit, she would no longer be responsible for making payments there and in fact, the McKies notified the Anchorage Resort Club that Respondent Blanc had assumed their Week at the Anchorage, a fact which was confirmed by the Anchorage to Mr. Blanc by letter dated February 13, 1986. It is further noted that on January 30, 1986, Ms. Berta, general manager of the Florida Bay Club, by letter of even date, notified Mr. Blanc who was no longer an employee of Florida Bay, that the McKies' payment book, invoices for taxes due on the Anchorage property, and the quitclaim deed were being forwarded to him as evidence of the change of ownership of the Anchorage Resort unit from the McKies to Respondent Blanc. In this letter, Blanc was requested to notify the Anchorage of the change so the McKies would not be dunned for continuing payments. At the closing of the Florida Bay unit, when Mrs. McKie and her husband signed the quitclaim deed, Respondent Blanc told her she would continue to get payment notices from the Anchorage while the transfer was being processed, but she should bring those payment notices to him at the Florida Bay Club and he would take care of them. When Mrs. McKie received the first notice, she brought it to the Florida Bay Club to give to Mr. Blanc, but he was no longer located there. On this visit, she spoke to Ms. Berta, who advised her that the Florida Bay Club did not take trades. Ms. Berta called Respondent Blanc at his new place of business by phone in Mrs. McKie's presence and Respondent indicated at that time that he would buy the Anchorage unit himself and assume the payments. As a result, Mrs. McKie sent the delinquent notices to him at his new place of business, Gulf Stream Manor. In the meantime, she continued to make her new payments at the Florida Bay Club. Notwithstanding Respondent Blanc's agreement to assume payments, Mrs. McKie continued to receive mortgage payment delinquent notices from the bank for the Anchorage unit. During later negotiations with the bank regarding this, Mrs. McKie was told that she would still be responsible for making the payments even if Respondent Blanc took over and didn't pay and as a result, in order to relieve herself from this impending burden, she made arrangements to pay off the entire amount due for the Anchorage unit. After that she made several efforts to get Respondent Blanc to pay her back for the amount paid. Respondent Blanc agreed to make the payments and said he would pay the taxes on the unit, but he never reimbursed the McKies for any of the amount they had to pay. The McKies now own the Anchorage unit and have worked out a settlement agreement with the Florida Bay Club to get out of the responsibility for the unit there. Review of the quitclaim deed in question, prepared by Respondent Blanc and signed by the McKies, reflects that the McKies are both the grantors and grantees of the property and that Respondent Blanc's name nowhere appears on the document. It is of no force and effect. Respondent contends that when the McKies indicated they were unable to purchase a new unit since they still had a prior unit to pay for, relying on his understanding that the marketing organization selling the Florida Bay Club units had in the past taken a unit in trade, he discussed the matter with his supervisor who advised that he could offer up to $4,000 in trade on the unit. In order to do this, Respondent Blanc had to price the new unit at $10,500 and credit the McKies with $4,000. However, none of the documentation shows this was ever done. At no place on any of the documentations is the $4,000 trade-in referenced. It is clear the offer of a trade-in was a sham to induce the McKies to purchase a unit at Florida Bay Club. Ms. Berta, who was manager at Florida Bay Club at the time in question, indicated that no trade-ins were ever taken by the club. The prior trade-in referenced by Mr. Blanc was a unit which was completely paid for as opposed the McKies' which still had a substantial outstanding balance on it. Respondent Kirkland who was not a party to any of the negotiations subsequent to her initial interview with the McKies indicates that she "probably" quoted the McKies a price of $10,500. When Mrs. McKie indicated that they could not afford such a high price, she turned them over to Mr. Blanc who thereafter handled the entire transaction. Respondent Blanc tells a somewhat different story about the reaction of the McKies when his failure to assume responsibility for the trade-in unit at the Anchorage Bay Club came to light. He indicates that it was never intended that he would take title to this unit at first. The trade in was to be absorbed by the marketing company, Resort Sales International, for whom he worked, and he assumed, when he left the following week to go to a different facility, the company would follow through with its agreement to assume the McKie's Week at the Anchorage. He was quite surprised, he contends, to learn that this had not been done and since he wanted a unit in the Key Largo area anyway, he agreed to then assume it personally after first offering Mrs. McKie the opportunity to back out of the purchase. When she said that she wanted to be at Florida Bay Club, he was sent the payment books and the deed. He called the bank to notify them that he was going to assume responsibility for the loan, but the bank would give him no information regarding it and the bank official, Ms. Brown, was adamant in her representation that the McKies could not quitclaim deed the property to him. No reason was given for this, however. Mr. Blanc claims he made a series of telephone calls between January 30 and March 31, 1986, in an attempt to straighten out the difficulty involved. These included sixteen calls to Ms. Berta, eight calls to his former supervisor at Resort Sales, four calls to the Anchorage, three calls to the bank and three calls to Mrs. McKie. Mrs. McKie denies receiving calls from the Respondent and contends that her numerous calls to him remained unanswered. In a call he made after she paid off the loan on the Anchorage and settled with Florida Bay Club for approximately $2,183, Mrs. McKie advised Blanc to forget about it, that they were tired of messing with him and with the property. As a result, he admittedly gave up and did and heard nothing more regarding the property until he was contacted by a DPR investigator. On January 30, 1988, Mr. Blanc offered to buy Mrs. McKie's unit at the Anchorage for $2,900 which was exactly the amount owed on the property when she paid it off. She refused to accept that offer since she had paid $6,800 for the unit initially.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Administrative Complaint against Respondent Sandra Kirkland be dismissed and that Respondent Blanc's license as a real estate salesman in Florida be suspended for six months. RECOMMENDED in Tallahassee this 19th day of April, 1988. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1988. COPIES FURNISHED: Arthur R. Shell, Jr., Esquire Darlene F. Keller Department of Professional Acting Executive Director Regulation DPR, Division of Real Estate Division of Real Estate Post Office Box 1900 Post Office Box 1900 Orlando, Florida 32801 Orlando, Florida 32801 Sandra S. Kirkland Post Office Box 9264 Panama City, Florida 32407 John G. Blanc 17501 West Highway 98 Panama City, Florida 32407
Findings Of Fact Respondent Heidt Neil "Cap" Fendig, Jr., and his corporate alter ego, Go Fish, Inc., do business under the name Golden Isles Charter Company. Aside from operating the marina he leases on St. Simons Island, Georgia, Mr. Fendig hires out as a captain (for $175 a day), arranges charters, and acts as a yacht broker in Georgia. When Kirby J. Bourgeois acquired the Westwind, a 55-foot "Ocean Super Sportfisherman," the man to whom the boat had previously belonged recommended respondent to Mr. Bourgeois, an Oklahoman who knew little about boats, as somebody who could assist him. When Messrs. Fendig and Bourgeois met on October 5 or 6, 1990, respondent agreed to register the Westwind in the name of a corporation (Mandela Corp.) Mr. Bourgeois specified, and to equip the boat in accordance with Coast Guard requirements. Later he took Mr. Bourgeois out on "training trips." For each of these services, respondent prepared invoices which Mr. Bourgeois paid in due course. Around Thanksgiving of 1990, Mr. Fendig acted as the Westwind's captain on a cruise Mr. Bourgeois took to the Bahamas. They left the boat docked in Marsh Harbor. In January of 1991, Mr. Bourgeois told Mr. Fendig on the telephone that he wanted to sell the Westwind. At that time, if not before, Mr. Fendig mailed Mr. Bourgeois a packet of information about selling boats, which included a form yacht brokerage agreement. Instead of signing the yacht brokerage agreement, Mr. Bourgeois decided to show the Westwind at the Third Annual Brokerage Yacht Show in Miami Beach, one of the alternatives Mr. Fendig had suggested. Mr. Fendig, who had once inquired of petitioner DBR about obtaining a Florida yacht broker's license, and been told he was ineligible because he lived and worked out of state, advised Mr. Bourgeois that he was not licensed in Florida and could not act as a yacht broker in Florida. From conversations he had with petitioner's employees at the time he discussed obtaining a Florida license, Mr. Fendig understood that Florida law permitted him to accompany and assist yacht owners in the sale or purchase of yachts in Florida so long as he did not buy or sell as an owner's agent. Mr. Fendig agreed to bring the Westwind over from Marsh Harbor for the show, which began on February 14, 1991, a Thursday. On January 23 or 24, 1991, respondent sent Mr. Bourgeois a facsimile transmission, described as confirmation of a telephone conversation, in which he wrote: "As per your instructions, I will transport the boat to the Miami show and look for your arrival in Miami at [sic] sometime during the show." Petitioner's Exhibit No. 4. Although Mr. Bourgeois had informed respondent "that he would not be able to be there the first day" (T.24), Mr. Fendig arrived before the show began. He also filled out a form application and a contract for exhibit space, Petitioner's Exhibit No. 3, which, together with the application fee, had reached Yachting Provisions, Inc. in Ft. Lauderdale, on February 1, 1991. Mr. Bourgeois, whose name did not appear on the application and contract, later reimbursed him the fee. Reportedly delayed by a snowstorm, Mr. Bourgeois did not reach Miami before Saturday evening. Until Mr. Bourgeois arrived, Mr. Fendig stayed with the boat, moored at slip 221 on Collins Avenue. Available to anybody who visited the Westwind while he was on board were copies of his business card, which included the words "YACHT SALES-YACHT MANAGEMENT." Petitioner's Exhibit No. 6. Also available to show goers (including those to whom respondent never spoke) were one page fliers describing the Westwind and concluding: "Asking $350,000 Looking for serious offers contact H. N. "Cap" Fendig, Golden Isles Yacht Sales & Charter Co. 912 638-7717 St. Simons Island, Ga." Petitioner's Exhibit No. 5. Respondent had asked his brother to make up this flier. Like other paid captains, respondent told anybody who inquired the owner's asking price. When, on the first day of the boat show, investigators in petitioner's employ posed as potential buyers, Mr. Fendig told them they would have to speak to the owner, who would be arriving later in the show. He told "everybody that, if they wanted to make an offer, the owner was coming and they could drop by later in the show and . . . talk to him." T. 36. While at the boat show, Mr. Fendig slept on the boat, which was an economic benefit for him, at the same time it afforded the vessel a measure of security, which was an economic benefit for the owner. Mr. Bourgeois paid him for bringing the boat to Miami Beach, but not for the time he spent there. He had wanted to go to the boat show for his own purposes, in any event. The yacht show closed on Monday without the Westwind's changing hands. Mr. Bourgeois still owned the Westwind on March 11, 1991, when he signed a yacht brokerage agreement with respondent Fendig. Petitioner's Exhibit No. 7. Before that time Mr. Fendig had no agreement for or expectation of any compensation on account either of the Westwind's sale or of his efforts to accomplish a sale (other than bringing the boat to Miami, for which he received a fixed amount.)
Recommendation It is, accordingly recommended that petitioner dismiss the notice to show cause. RECOMMENDED this 5th day of December, 1991, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of December, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3108 Petitioner's proposed findings of facts Nos. 1, 2, 3, 4, 5, 8, 9, 11, 12, 13, and 14 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 6, he was off and on the boat during the last two days. Before Mr. Bourgeois' arrival, it had been necessary to stay with the boat for security reasons. With respect to petitioner's proposed finding of fact No. 7, the proof did not show that anybody asked the owner's name, address or phone number. Respondent testified he did not distribute this information because it "wasn't necessary, because the owner was going to be there." T.36. With respect to petitioner's proposed finding of fact No. 10, the taking of evidence had closed and respondent was making legal argument. With respect to petitioner's proposed finding of fact No. 15, respondent (who appeared pro se) answered a speculative question about what "could" happen. COPIES FURNISHED: Thomas Bell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 H. N. "Cap" Fendig 205 Marina Drive St. Simons Island, GA 31522 Henry M. Solares, Director Florida Land Sales, Condominiums and Mobile Homes 725 South Bronough Street Tallahassee, FL 32399-1000 Donald D. Conn, General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1000
The Issue Whether or not on or about May 25, 1977, the Respondent licensed under the beverage laws and/its agent, servant, or employee, employed by salary or on a contractual basis to entertain, perform or work upon the licensed premises, to wit: Lisa Palov Clark, aka Di Di Bang Bang, did beg or solicit a customer or patron, to wit; Deputy Ernest Weaver, on the Respondent's licensed premises, to purchase a beverage, alcoholic or otherwise, for Respondent, its agent, servant, or employee or entertainer, contrary to Section 562.131(1) F.S. There was noticed for hearing a second count to the Notice to Show Cause which was not heard due to the motion to withdraw the count, made by the Petitioner.
Findings Of Fact The Respondent, Golden Dolphin Number One, doing business as Golden Dolphin, is the holder of license number 15-229, Series 2-COP, held with the Petitioner, State of Florida, Division of Alcoholic Beverages and Tobacco. This license is for operation at a location at 6107 North Atlantic Avenue, CAPS Canaveral, Florida. The operative period of the license is from October 1, 1976 through September 30, 1977. A copy of the license may be found as part of Petitioner's composite exhibit #1 admitted into evidence. On May 25, 1977, Lisa Palov Clark, also known as Di Di Bang Bang, was actively employed on the licensed premises, by the licensee. Ms. Clark's employment was as an entertainer, specifically a dancer. On the subject evening of May 25, 1977, Officer Ernest Weaver of the Brevard County, Florida Sheriff's Office, and Beverage Officer Eugene P. Fogle, entered the licensed premises around 9:00 p.m. and took seats in separate locations. They observed the floor shows being presented on the licensed premises, which shows were nude dancers and striptease. One of the dancers was Lisa Palov Clark. After completing her dance, Ms. Clark went to the dressing- room area of the licensed premises and then returned to the area occupied by the patrons. When she returned, she approached the table at which Officer Weaver was seated. She approached him without being requested by Officer Weaver either orally or by gesture. When she arrived at the table, she made the comment to Officer Weaver either to the effect "Can I have a drink?" or "Won't you let me order something?". Officer Weaver in his testimony at the hearing was uncertain of the exact statement made by Ms. Clark. Subsequent to the aforementioned comment, in whatever form it took, Ms. Clark stated that she felt hot and that her neck was wet. These comments were directed to Officer Weaver. During the course of this conversation, a waitress came and stood by the table at which Officer Weaver was seated. The waitress did not participate in the conversation between Ms. Clark and Officer Weaver. Officer Weaver, in response to Ms. Clark's comments, asked what she would like to drink, and Ms. Clark indicated that she would like champagne, one drink of which costs $2.75 and a pony bottle cost $6.00. The waitress then stated, "What will it be?" and Officer Weaver said, "Bring one of the $6.00 bottles." The waitress brought a bottle and at least one glass. The bottle was placed on the floor between Officer Weaver and Ms. Clark. The glass was positioned in the place at which Ms. Clark was seated and a drink was poured for her. Officer Weaver paid $6.00 plus a tip to the waitress. (There was some discussion about a possible second bottle which was purchased, but the recollection of witnesses was not sufficient to establish the existence of such a second bottle of champagne.) There was no testimony about the knowledge of the activities between Officer Weaver, Ms. Clark, and the waitress, from the point of view of any of the officers, directors, or owners of the licensed premises. Moreover, it was not established that any manager in charge of the licensed premises observed the interchange between Officer Weaver, Ms. Clark and the waitress. The facts as established, constitute a sufficient basis to show that the employee of the licensee, to wit, Lisa Palov Clark, employed on the licensed premises to entertain, perform or work, did beg or solicit a patron or customer on the licensed premises to purchase a beverage in violation of Section 562.131, F.S. However, even though the employee violated this law, the licensee was not culpable based upon any willful intent, negligence or lack of due diligence. See Trader Jon Inc. vs. State Beverage Department, 119 So.2d 735 (1st DCA 1960). Additionally, the testimony indicated that the licensee in the person of Milton Seidman had instructed the employee Ms. Clark not to solicit drinks. Finally, to penalize the licensee under s. 561.29, F.S., there must be a showing of more than an isolated incident as is the case here. See Taylor v. State Beverage Department, 194 So.2d 321 (2d DCA, 1967).
Recommendation It is recommended that the licensee, Golden Dolphin Number One, d/b/a Golden Dolphin, operating under licensee number 15-229, to do business at 6107 North Atlantic Avenue, CAPS Canaveral, Florida, be relieved of the necessity to make further answer to the Notice to Show Cause which is the subject of this hearing. DONE and ENTERED this 6th day of October, 1977, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Lawrence D. Winson, Esquire Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32304 Lawrence M. Litus, Esquire 231 East New Haven Melbourne, Florida 32901
Conclusions The Director, Division of Hotels and Restaurants, Department of Business and Professional Regulation (the Division), after consideration of the complete record of this case on file with the Division, enters this Final Order. 1. On July 24, 2013, the Department issued an Administrative Complaint, a copy of which is attached as Exhibit wie, 2. On October 1, 2013, a hearing in this cause was held before the Honorable Suzanne Van Wyk, Administrative Law Judge, Division of Administrative Hearings. 3. On December 11, 2013, the Honorable Suzanne Van Wyk issued a Recommended Order, a copy of which is attached as Exhibit "2". The Statement of the Issues, Preliminary Statement, Filed January 6, 2014 1:48 PM Division of Administrative Hearings Findings of Fact, Conclusions of Law, and Recommendation contained in the Recommended Order are hereby adopted in toto and incorporated herein by reference. Based upon the foregoing, and being otherwise fully advised in the premises it is, hereby ORDERED that: for Respondent's violations of Section 509, Florida Statutes, and/or the rules promulgated thereto the following penalty is imposed: 1. Respondent shall pay a fine in the amount of $100.00, due and payable to the Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within thirty (30) calendar days of the date this Order is filed with the Agency Clerk. 2. This Final Order shall become effective on the date of filing with the Agency Clerk. DONE AND ORDERED this 3st day of “Pecen Axe , 20/3. Bele Wer fp Dusan S, Weep Diann S. Wordéalla, Director Department of Business and Professional Regulation Division of Hotels and Restaurants 1940 North Monroe Street Tallahassee, Florida 32399-1015
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by Rules 9.110 and 9.190, Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the Department of Business and Professional Regulation, Attn: Ronda L. Bryan, Agency Clerk, 1940 North Monroe Street, Suite 92, Tallahassee, Florida 32399-2202 and a second copy, accompanied by the filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Florida Appellate District where the party resides. The Notice of Appeal must be filed within thirty (30) days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via Certified U.S. Mail to Holland Apartments, c/o Cindy Holland, 162 Rainbow Drive, Fort Walton Beach, Florida 32548; by regular U.S. Mail to the Honorable Suzanne Van Wyk, Administrative Law Judge, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, Florida 32399-3060; and by hand delivery to Marc Drexler, Chief Attorney, Division of Hotels and Restaurants, Department of Business and Professional Regulations, 1940 North Monroe Street, Tallahassee, Florida 32399-2202, this Go day of anvary , 2014 For the Division of Hotels | Hotels and Restaurants “Certified Article Number | oy 71596 4008 9411 516 1790 SENDERS RECORD.“ cory
The Issue The issue is whether Respondent committed an unlawful employment practice contrary to Section 760.10, Florida Statutes, by discriminating against Petitioner based on his gender.
Findings Of Fact Respondent is a staffing company that provides temporary employees to a variety of customers/employers. Respondent performs workforce management for its customers, including hiring personnel, providing new-employee orientation, and conducting ongoing training after the initial hire. Respondent provides its employees with harassment-free workplace training as part of the initial orientation. Thereafter, Respondent provides the harassment-free workplace training on an annual basis and more frequently at the request of its customers. Petitioner is a white male who worked as a temporary employee for Respondent on two occasions: from May 17, 1993, through July 27, 1996, and from June 30, 1997, through July 28, 2003. On both occasions, Respondent assigned Petitioner to perform maintenance work at the Island House Hotel in Orange Beach, Alabama. Petitioner was a maintenance technician at the Island House Hotel until Respondent promoted him to the position of Assistant Supervisor of Maintenance in 1998. Respondent promoted Petitioner to the management position of Chief Engineer in 1999. As Chief Engineer, Petitioner supervised five or six maintenance technicians. Petitioner received a salary but often worked more than a 40-hour week. For instance, Petitioner would stay at the hotel during hurricanes instead of going home to be with his family. At all times relevant here, Petitioner was aware of Respondent's written "Harassment-Free Workplace Policy." The policy defines sexual harassment as "unwelcome conduct of a sexual nature where an employee feels compelled to comply with the harassment as part of job betterment, or where the harassment interferes with an employee's work creating an intimidating or hostile work environment." The policy lists examples of sexual harassment, including unwelcome physical contact, request for sexual favors, and/or displays of a sexual nature. Respondent's Harassment-Free Workplace Policy goes on to discuss other types of discriminatory conduct. Specifically, the policy prohibits discrimination, such as intimidation or ridicule based on gender, race, color, national origin, sexual orientation, pregnancy, age, religion, disability, veteran status, or any other basis that creates an offensive work environment, or which results in an unfavorable job action. The policy lists verbal or written jokes or offensive comments based on race, sex, etc., as examples of discriminatory conduct. Respondent's Harassment-Free Workplace Policy advises employees, whether a victim or a witness, to report all incidents of discrimination or harassment. Respondent instructs its employees to report such complaints to their manager, their local office staffing specialist, and/or Respondent's corporate office, using a toll-free employee hot line. Petitioner had a good professional and personal relationship with Respondent's employees who were assigned management positions at the Island House Hotel. Specifically, Petitioner was friends with the following employees: (a) Barbara Walters, General Manager; (b) Glenn Johnson, Director of Operations; and (c) Margaret Lathan, Director of Housekeeping. Petitioner and Ms. Walters occasionally shared off- color jokes with each other. Sometimes they laughed about jokes with sexual connotations that one of them had copied from the Internet. On at least one occasion, Ms. Walters and Petitioner discussed hotel guests who were wearing bathing suits at the pool. There is no evidence that Petitioner was ever offended by the jokes; he never complained to Respondent about the jokes. Ms. Walters personally was not offended by the jokes. In time, however, she became concerned that Petitioner's jokes and comments to employees other than herself were no longer appropriate in the workplace. Eventually, Ms. Walters began to verbally counsel Petitioner to clean up his language and to be careful of his remarks to other employees because they might consider them offensive. Petitioner and Ms. Latham also enjoyed sharing jokes of a sexual nature with each other. On one occasion, Ms. Latham gave Petitioner a T-shirt when she returned from vacation. The back of the shirt had pictures of ladies’ butts wearing bikinis. There is no evidence that Petitioner found the shirt offensive; he never complained to Respondent or anyone else about the T-shirt. On or about June 23, 2001, Ms. Walters wrote a note to Petitioner. Ms. Walters requested that Ms. McDowell place the note in Petitioner's personnel file. The note stated as follows: After our conversation on Wednesday, I thought we had cleared up my concerns with you. Today I discover that your "blond" lady that does awnings was in your office yesterday and that you allowed her to accompany you to repair the washer in the laundry. This is totally unacceptable and violates Hotel policy and safety issues. I do not expect you as a manager to have outside vendors in areas that they are not here to inspect, study, or to prepare estimates for. I will not discuss this any further with you. Ms. Walters would have written the above-referenced note if Petitioner had invited an unauthorized male to accompany him into a secure area. However, Ms. Walters was especially concerned because the incident involved a female. On at least two occasions, Ms. Walters made special requests for Respondent to conduct a class to review Respondent's harassment policy with her management team. She made these requests because her management team consisted of members who were of various ages. Ms. Walters wanted to make sure that the management team was aware that times had changed, and that conduct, which had been acceptable years ago, was no longer acceptable in today's workplace. At the request of Ms. Walters, Respondent's staffing specialist, Martina McDowell, conducted a class on Respondent's harassment policy at the Island House Hotel on January 31, 2002. Petitioner, Ms. Walters, and Ms. Latham attended the class. During the January 2003 class, Petitioner received a copy of Respondent's Harassment-Free Workplace Policy. He signed a statement acknowledging that he had read and understood the policy, including the procedure to report violations. On February 14, 2002, Petitioner signed a copy of Respondent's "New Employee Orientation Guidelines: Policy & Procedures." This document includes Respondent's discrimination and harassment policies, which Petitioner initialed. Ms. McDowell signed the document under Petitioner's signature. In the last year of Petitioner's employment at the Island House Hotel, Ms. Walters realized Petitioner was under stress in his personal life. She also noticed a change in his behavior at work. Ms. Walters felt that Petitioner's jokes and other attempts to be humorous became more intense. Ms. Walters was so concerned that she requested Ms. McDowell to counsel Petitioner on more than one occasion. During the counseling sessions, Ms. McDowell advised Petitioner that off-color jokes were not accepted in the workplace. Ms. McDowell also told Petitioner that flirting with female co-workers was inappropriate and would be considered as sexual harassment under Respondent's policy. Respondent does not provide the Island House Hotel with employees to perform housekeeping duties. Island House Hotel contracts with a company by the name of TIDY for housekeeping services. Ms. Latham, as Director of Housekeeping, does not supervise TIDY's housekeepers directly. Instead, she interacts with TIDY's supervisors to ensure that the housekeeping duties are performed. One of TIDY's housekeepers was a young female named April. She began working at Island House Hotel on or about July 23, 2003. On Friday, July 25, 2003, Petitioner grabbed and jiggled his private parts as he walked down the hall to the elevator at the Island House Hotel. April, Ms. Latham, and a porter named Alan Hoffman, were standing at the elevator. Ms. Latham observed Petitioner's conduct and considered it offensive. Ms. Latham could tell that Petitioner's inappropriate behavior embarrassed April. On Saturday, July 26, 2003, Ms. Walters was working at the Island House Hotel when she learned that a young man was at the front desk. The young man wanted to speak to Ms. Walters privately. Therefore, Ms. Walters invited the young man to go with her to the sales office. During the conversation, the young man complained to Ms. Walters that an older gentleman named Ben, who worked at the hotel, had made inappropriate gestures to his fianceé, April. Specifically, the young man alleged that Ben had grabbed his private parts and jiggled them in front of April, who was offended by such behavior. Ms. Walters talked to Ms. Latham after the young man left the hotel. Ms. Latham confirmed that she had witnessed Petitioner grabbing his private parts in front of April. Immediately after talking to Ms. Latham, Ms. Walters called Respondent's branch manager, Sherry Moore. Ms. Walters told Ms. Moore that Respondent needed to release Petitioner from his assignment at Island House Hotel. Ms. Moore contacted Ms. McDowell by telephone. Ms. Moore instructed Ms. McDowell to contact Petitioner and instruct him to report to Respondent's office in Gulfport, Florida, on July 28, 2003. On Sunday, July 27, 2003, Ms. McDowell contacted Petitioner. Ms. McDowell told Petitioner to report to her office the next day instead of returning to work at Island House Hotel. On Monday, July 28, 2003, Petitioner met Ms McDowell at her office. Ms. McDowell explained that Respondent had received a sexual harassment complaint involving his behavior. Petitioner's initial reaction was to state that he had talked to the little girl and that she was okay with his apology. The little girl that Petitioner referred to was not April. Petitioner's initial statement in Ms. McDowell's office related to an incident involving a female employee of the hotel's beach service. Ms. McDowell informed Petitioner that the complaint involved a housekeeper. After explaining the allegations against him, Ms. McDowell relieved Petitioner of his work assignment at Island House Hotel. Petitioner became angry, stating as follows: "Well, if Ms. Walters was going down the hallway and her ass was itching and she scratched it, would you fire her too?" Ms. McDowell responded that she was dealing only with a complaint brought against him, where another employee had witnessed his conduct. Ms. McDowell did not tell Petitioner that he was terminated as one of Respondent's temporary employees. Respondent's policy requires employees to make themselves available for work assignments. Employees are supposed to contact Respondent within 48 hours of the time that a work assignment ends if they are available for another job. Thereafter, employees are required to contact Respondent on a weekly basis. Petitioner did not follow Respondent's policy in this regard. In any event, Ms. McDowell conducted a follow-up investigation. The investigation included interviews with Ms. Walters, Ms. Latham, and Mr. Hoffman. Ms. McDowell was unable to talk to April who never returned to work. After completing her investigation, Ms. McDowell considered Petitioner's employment terminated. On or about November 21, 2003, Ms. McDowell requested that Ms. Latham make a written statement regarding the July 25, 2003, incident. Ms. Latham made the following statement: April (housekeeper), Alan (porter) and myself were standing by the elevator when Ben Torres came down the hall and grabbed his privates. Ben might not have realized April was standing there, he made these gestures all the time and I told him many times, that one of these days he will do it in front of the wrong person and get in trouble. Most of the housekeepers knew how he was and just ignored his behavior. Respondent did not hire another Chief Engineer to replace Petitioner. Instead, Respondent assigned the duties of Chief Engineer to Glenn Johnson, the Director of Operations at the Island House Hotel. Mr. Johnson is a white male.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 6th day of June, 2005, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of June, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Debra Dawn Cooper, Esquire Debra D. Cooper, Attorney 309 West Gregory Street Pensacola, Florida 32502 Jane M. Rolling, Esquire 5301 North Ironwood Road Post Office Box 2053 Milwaukee, Wisconsin 53217 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact The Respondent is, and has been at all times material to this proceeding, a licensed physician in the State of Florida, having been issued license number ME 0013518. The Respondent is, and has been at all times material to this proceeding, a board certified obstetrician/gynecologist. On or about July 24, 1991, Mrs. Y., a female passenger on the CARIBE I, a cruise ship owned by Commodore Cruise Line, Limited, complained to the ship's doctor that she had been sexually assaulted by one of the ship's employees while the ship was in a foreign port. News of Mrs. Y.'s complaint was promptly communicated to the cruise line's New York legal counsel. In anticipation of almost certain litigation, the New York legal counsel decided that it would be in the best interests of the cruise line to have Mrs. Y. examined by an independent physician at the earliest practicable time. Because the ship was bound for Miami, Florida, and because the cruise line's New York legal counsel did not know any gynecologists in the Miami area, the New York counsel contacted legal counsel in Miami and asked if the Miami counsel could arrange to have a gynecologist examine Mrs. Y. when the ship arrived at the Port of Miami. To that end, the Miami legal counsel contacted the Respondent and retained him as an independent expert on behalf of the cruise line. The Miami legal counsel for the cruise line specifically asked the Respondent to give an independent evaluation and to examine Mrs. Y. for communicable diseases and for evidence of sexual assault or rape. The cruise line advised the Respondent that the cruise line would pay him for conducting the examination and for his consultation. In due course the cruise line did pay the Respondent for his services related to Mrs. Y., which included such activities as interviewing and examining Mrs. Y., telephone conferences, conferences with attorneys, and preparation of a typed report regarding his examination of Mrs. Y. At approximately 8:00 a.m. on the morning of July 27, 1991, the Respondent, accompanied by his nurse, Mary Eany, met with Mrs. Y. in the infirmary aboard the CARIBE I at the Port of Miami. The Respondent introduced himself to Mrs. Y., described his status to her as being that of an independent medical expert, and explained to Mrs. Y. that he had been retained by the cruise line to examine her. Mrs. Y. consented to the examination by the Respondent. The Respondent took a history from Mrs. Y., conducted a physical examination of Mrs. Y., and collected vaginal swabs for the purpose of ascertaining whether she had been sexually assaulted or raped, and for DNA purposes. Gonorrhea and Chlamydia cultures were taken as well. The Respondent also drew blood samples from Mrs. Y. for several tests. During the entire examination the Respondent was assisted by his nurse, Mary Eany. Following the examination of Mrs. Y., the Respondent administered prophylactic antibiotics (Vibramycin and Ampicillin) to her, advised her to obtain follow-up care and testing from her private physician, and advised her that he would inform her by telephone of the test results. At the request of the cruise line, the Respondent took all of the evidence that had been gathered by the ship's doctor (items such as Mrs. Y.'s bed sheets, underwear, trousers, and a towel or wash cloth) and immediately placed it under lock and key in his office. The Respondent subsequently turned those items over to the FBI. In due course, Mrs. Y. retained a Miami law firm to represent her in a claim against the cruise line. After an initial exchange of letters /2 between Mrs. Y.'s Miami attorneys and the Respondent, by means of a letter dated September 26, 1991, Mrs. Y.'s Miami attorneys wrote to the Respondent seeking copies of records. In pertinent part, the September 26 letter read: Please submit us a complete photocopy of all office records you may have regarding the above-captioned individual. Please include personal informative records as well. The Respondent replied to the letter of September 26, 1991, by means of a letter dated November 1, 1991, addressed to Mrs. Y.'s Miami attorneys. The letter read as follows, in pertinent part: /3 Please find enclosed photostatic copies of the following: Results of a vaginal culture including blood group and type, results of HIV under Florida will not be forwarded to you, and a copy of my notes of July 27, 1991. * * * The treatment which I have rendered to Mrs. Y. is present in the report which I have given to Mr. James Canty. The Respondent's letter of November 1, 1991, to Mrs. Y.'s Miami attorneys was accompanied by a photocopy of the laboratory reports mentioned in the letter and a photocopy of the Respondent's handwritten notes written during the course of his interview and examination of Mrs. Y. /4 On November 1, 1991, the Respondent also sent a letter to a Mr. James Canty, who was then the Director of Operations of the cruise line. In pertinent part, the letter to Mr. Canty read: Please find enclosed my report which was performed on July 27, 1991 regarding [Mrs. Y.]. I have had no further contact with the F.B.I. nor have I heard from [Mrs. Y.]. I find it rather embarrassing to be put in an awkward situation by Mr. Martucci regarding this case. Enclosed with the November 1, 1991, letter to Mr. Canty was a four page typed report regarding the Respondent's examination of Mrs. Y. The typed report contains information that is not contained in the handwritten notes the Respondent prepared during the course of his interview and examination of Mrs. Y. on July 27, 1991. The typed report was prepared some time during the latter half of October of 1991. By letter dated December 12, 1991, Mrs. Y.'s Miami attorneys wrote to the Respondent with the following request: Pursuant to your letter of November 1, 1991, please provide my office with a copy of the report which you gave to Mr. James Canty concerning [Mrs. Y.]. You should know that Florida law requires that you send these to us. Please do so at once so that we can avoid litigation over these records. On January 21, 1992, Mrs. Y.'s New York attorneys filed a lawsuit on her behalf against Commodore Cruise Lines, Ltd., alleging that she had been sexually assaulted by an employee of the cruise line and seeking an award of damages against the cruise line. The lawsuit was filed in the United States District Court for the Southern District of New York. By letter dated February 27, 1992, Mrs. Y.'s Miami attorneys again wrote to the Respondent. The February 27 letter read as follows, in pertinent part: Since September 6, 1991 we have been attempting to obtain your complete records of my client, [Mrs. Y.], including the report which you provided to Mr. Canty. You have refused to return our calls or furnish us with your complete records. This is to remind you once again that Florida law requires that you furnish us with all medical information, pursuant to Medical Authorization properly executed by our client. This has been provided to you. We demand that you immediately furnish us with a copy of the report which you furnished to Mr. Canty together with copies of your notes dated July 27, 1991, which you also omitted. Your failure to comply with this request at once will leave us no choice but to commence legal action against you. Mrs. Y.'s Miami attorneys sent a copy of their letter of February 27, 1992, to the Department of Professional Regulation. Following the Respondent's receipt of the letter of February 27, he had a telephone conversation with one of Mrs. Y.'s Miami attorneys. During the telephone conversation the Respondent explained that he had consulted legal counsel, that legal counsel had advised him that the subject report constituted "work product," and that Mrs. Y. and her attorneys were not entitled to it except through "legal channels." During the same telephone conversation, one of Mrs. Y.'s Miami attorneys insisted that they were entitled to receive a copy of the report and that unless the Respondent furnished it to them, they would report the matter to the Department of Professional Regulation and would otherwise initiate litigation against him. The Respondent further replied to the letter of February 27, 1992, with a letter addressed to Mrs. Y.'s Miami attorneys under date of March 10, 1992. The Respondent's letter of March 10 read as follows, in pertinent part: I am corresponding to you concerning your letter dated February 27, 1992. As I related to you per our phone conversation of March 3, 1992, under the Florida law I have furnished you with the information you have requested. I have spoken to an attorney, Mr. David Horr, concerning the above and he has advised me that the written report which I have forwarded to Mr. Canty was not part of the patient's medical records. I am not interested in getting into any legal action which you may bring. I am sure that this report can be obtained from Commodore Cruise Lines if you desire. As I related to you in my letter of November 1, 1991, evidence and information which I had received was turned over to the F.B.I. on July 30, 1991. If you want to involve the Department of Professional Regulation that is your prerogative. However, I have had legal advice concerning this from Mr. Horr. At various times during the exchange of letters described above, the Respondent sought and received legal advice from the attorneys for the cruise line, including the Miami attorney who had contacted him to retain his services on behalf of the cruise line, and the New York attorney who was general counsel for the cruise line. The cruise line attorneys advised the Respondent that, for several different reasons, the Respondent was not required to provide a copy of the typed report to Mrs. Y.'s attorneys, and that he should not do so absent a valid subpoena or court order. The attorneys from whom the Respondent sought legal advice also told him that the judge presiding over the New York litigation had ruled that Mrs. Y. and her attorneys were not entitled to a copy of the disputed report until after the deposition of Mrs. Y. had been taken. The cruise line attorneys sought (successfully) to prevent Mrs. Y. from seeing a copy of the disputed report prior to her deposition because they believed, or hoped, that at her deposition she would make statements inconsistent with statements attributed to her in the Respondent's typed report. For obvious reasons, Mrs. Y.'s attorneys sought access to the typed report prior to her deposition and made strenuous efforts to that end. In March of 1992 the Respondent was served with a subpoena which directed him to appear for deposition and to bring with him the typed report. On April 3, 1992, the New York attorneys representing Mrs. Y. and the New York attorneys representing the cruise line participated in a conference held by the presiding judge at which time they argued their respective views on several discovery matters. At the conference the cruise line's attorneys agreed to produce a copy of the Respondent's typed report, but sought to postpone production of the report until after Mrs. Y. was deposed. The New York attorneys for Mrs. Y. agreed to the postponed production and the Respondent was excused from compliance with the subpoena that had been served on him. The presiding judge apparently approved that resolution of the matter, but no court order was ever entered with respect to postponement of production of the typed report. Some time during May of 1992, Mrs. Y.'s Miami attorneys mailed a complaint to the Department of Professional Regulation complaining that the Respondent had failed to provide complete medical records and reports when requested to do so by Mrs. Y.'s Miami attorneys. By letter dated May 26, 1992, the Department of Professional Regulation wrote to the Respondent advising him that the Department had received a complaint regarding his failure to furnish complete records regarding Mrs. Y., summarizing the requirements of Section 455.241(1), /5 Florida Statutes, and requesting that the Respondent send the requested records to Mrs. Y.'s Miami attorneys and provide the Department with a certificate that he had done so. Under date of June 4, 1992, the Respondent wrote a long letter to the Department of Professional Regulation explaining the circumstances with which he was faced. Pertinent portions of the Respondent's June 4 letter read as follows: [Mrs. Y.] was never a patient of mine. She was examined in the infirmary on board the cruise ship the Caribe II (sic) docked in the port of Miami. There are no office records or billing records for [Mrs. Y]. [Mrs. Y.] was examined on a foreign flagged cruise ship docked in the port of Miami, at the request of Commodore Cruise Lines and all bills were paid by Commodore Cruise Lines. Mr. Huggett's [Mrs. Y.'s Miami attorney] office has been trying repetitively to obtain a confidential report which I prepared for Commodore Cruise Lines. * * * According to the attorneys involved in this litigation, this report is considered a work product. A subpoena was served on me from the United States District Court, Southern District of Florida, for March 24, 1992. This was filed by an attorney in New York City, Mr. John P. James of Freidman, Biondi and James who represent [Mrs. Y.'s] suit against Commodore Cruise Lines, Ltd. Please find copy of the subpoena enclosed. The subpoena was negated by the courts of New York and my deposition subsequently was cancelled. I have been threatened by Mr. Huggett's office . . . [Mrs. Y.'s Miami attorneys] that if I did not comply and give "all information" I would be turned in to the Department of Professional Regulation and legal action would be instituted against me. . . . Mr. Huggett [Mrs. Y.'s Miami attorney] is using the Department of Professional Regulation in a roundabout way to try to obtain information which he has been denied through legal channels. This has been very intimidating to me. I have not violated any Florida law. As previously stated and upheld in a court of law, this is a work product. Any corrobative evidence which you may need can be obtained from the attorneys who are representing Commodore Cruise Lines. If you would like for me to contact these attorneys I would be more than willing to do so. * * * I am chagrined by the fact that Mr. Huggett's office [Mrs. Y.'s Miami attorneys] is allowed to intimidate and threaten me with the Department of Professional Regulation and litigation. * * * I welcome a telephone call and or letter in response to my letter of June 4, 1992. As I stated my office has no patient file on [Mrs. Y.]. I have a detailed report prepared for Commodore Cruise Lines which is considered a work product. It is unfortunate that Mr. Huggett [Mrs. Y.'s Miami attorney] has taken a threatening and subversive approach in trying to coerce me to release a "work product" for which he is not entitled. Along with his letter of June 4, 1994, the Respondent sent the Department of Professional Regulation copies of all of the correspondence back and forth between himself and Mrs. Y.'s Miami attorneys, as well as a copy of the subpoena mentioned in the letter. The deposition of Mrs. Y. was taken on January 29, 1993, in Miami, Florida, and by letter of March 2, 1993, the cruise line's New York attorney provided a copy of the Respondent's typed report to Mrs. Y.'s New York attorneys. Finally, on June 3, 1993, Mrs. Y.'s Miami attorneys wrote to the Department of Professional Regulation, as follows: . . . I am writing to advise you that Dr. Bennett [the Respondent] has now provided the records which were the subject matter of our initial letter of complaint. Accordingly, we have no further interest in pursuing this matter.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Board of Medicine issue a Final Order in this case dismissing the charges against the Respondent. /7 DONE AND ENTERED this 17th day of May, 1994, at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 17thday of May, 1994.
Findings Of Fact Petitioner was hired by the Palm Beach Gardens Holiday Inn in 1974. She began work as a cashier and later worked as a hostess in the restaurant. She was promoted to Food and Beverage Manager in 1978. On November 27, 1978, Respondent purchased the Holiday Inn and appointed Mr. John Astarita as its general manager. Astarita made several personnel changes in late 1978 and early 1979, and on March 9, 1979, discharged Respondent. Immediately prior to her discharge, Petitioner had given information to an investigator regarding a sex discrimination complaint of a female employee who had been discharged earlier by Respondent. Astarita questioned Petitioner about her conversation with the investigator the day before he discharged her. She refused to give him the information he sought. Petitioner's evidence of sex discrimination is limited to a rumor she had heard that Astarita did not want women in management positions. This hearsay evidence lacks credibility and is uncorroborated. Respondent's evidence established that Petitioner's job performance was not satisfactory. The ratio of liquor costs to sales had increased above an acceptable level, and she had failed to clean up the bar area after having been instructed to do so by Astarita.
Recommendation From the foregoing, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner's complaint. DONE AND ENTERED this 20th day of May, 1983, at 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 20th day of May, 1983. COPIES FURNISHED: Ms. Catherine Scott 12712 Ellison-Wilson Road Juno Isles, Florida 33408 R. E. Williams, Executive Director Florida Commission on Human Relations 2562 Executive Center Circle, East Suite 100, Montgomery Building Tallahassee, Florida 32301 Eugene W. Murphy, Jr., Esquire Murphy, MacLaren & Littell, P.A. 341 Royal Poinciana Plaza Post Office Box 2525 Palm Beach, Florida 33480
