The Issue Whether Respondent, Walt Disney World, violated Section 760.08, Florida Statutes (2006), as alleged in the Petition for Relief in this matter.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Petitioner is a Caucasian male, born in Puerto Rico. He is an amateur photographer. He had visited Walt Disney World at least ten times prior to December 1, 2006. Respondent owns and operates a theme park in Orange and Osceola Counties, Florida. Respondent employs individuals with the job title, "security host," with the responsibility of maintaining security in the theme park. This category of employees is licensed by the State of Florida, and they receive training in "abnormal behavior of guests," threat analysis, surveillance, intelligence, and other job-related skills incidental to maintaining a safe environment within the theme park. Respondent has a specific protocol regarding theme park guests exhibiting "abnormal behavior." In the context of this case, taking photographs in the theme park is not an "abnormal behavior." In fact, guests are encouraged to photograph those accompanying them and various theme park characters, e.g., Mickey Mouse. However, excessive photographing of structures, "mapping or progression photography," is considered "abnormal behavior." "Mapping" consists of taking pictures in a progression, so as to familiarize someone who has never been to an area with the layout of that area and is considered very unusual behavior. Petitioner entered the Magic Kingdom, part of Respondent's theme park, on December 1, 2006. A security host observed Petitioner photographing the main entrance and security bag check. Petitioner was unaccompanied. The subject matter and manner of Petitioner's photography was considered to be "abnormal" by the security host. Once a security cast member identifies potentially abnormal behavior by a guest, the protocol requires the security host to contact a member of management (by radio) and continue to observe the guest. Petitioner moved further into the Magic Kingdom and took photographs of Main Street and City Hall. Because Petitioner was limiting his photography to structures, the security host's initial impression that Petitioner was doing something "abnormal" was reinforced and, in accordance with the established protocol, he again called management. As further dictated by Respondent's security protocol, the uniformed security host is then met by an "undercover" security host whose job-responsibility is "real-time threat analysis." The "threat-analysis" security host continued to observe Petitioner as he took what was interpreted by the security host to be "panoramic" photographs of Town Square and "mapping" photographs of the interior of the train station. He, too, assessed Petitioner's photographic activities as "abnormal." Because the "threat analysis" security host concurred with the initial determination of "abnormal," the security protocol dictates that a security manager make contact with the guest. This was done in a discreet and unobtrusive manner. The security manager identified himself as an employee of Respondent and asked Petitioner if "he could do anything to assist him." Petitioner did not respond, so the security manager repeated himself. Respondent responded that he "was not an Arab terrorist," or words to that effect. His response was louder than conversational, and he appeared to be agitated. Because Petitioner was uncooperative, the security manager called a uniformed law enforcement officer, an Orange County, Florida, deputy sheriff, as dictated by Respondent's security protocol. The deputy sheriff asked for, and received, Petitioner's driver license. After a license check revealed that Petitioner's address was valid, he was allowed to pursue his activities in the theme park. His interaction with the security manager and deputy sheriff lasted approximately 15 minutes. Petitioner then returned to his theme park photography without limitation and spent an additional two hours in the theme park, until his camera's battery pack ran down. He did not have any further interaction with Respondent's security personnel, nor was he kept under surveillance. Petitioner returned to Respondent's theme park on December 9, 27, 28, 29 and 30, 2006 (he had an annual pass), had access to all facilities without difficulty, and had no encounters with Respondent's security personnel. The incident that occurred on December 6, 2006, was a result of Petitioner's photography being identified as "abnormal." There is no evidence that it was precipitated by his national origin or that Respondent was not exercising reasonable diligence in an effort to protect theme park visitors and employees.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Jose M. Gandia, failed to present a prima facie case of discrimination based on national origin, and, therefore, this matter should be dismissed in its entirety and a determination be entered by the Florida Commission on Human Relations that Respondent, Walt Disney World, did not violate the provisions of Chapter 760, Florida Statutes, as alleged in the Petition for Relief. DONE AND ENTERED this 13th day of March, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 2008. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Jose M. Gandia 3054 Holland Drive Orlando, Florida 32825 Paul J. Scheck, Esquire Shutts & Bowen, LLP 300 South Orange Avenue, Suite 1000 Post Office Box 4956 Orlando, Florida 32802-4956
Findings Of Fact The upland property abutting the proposed marina is zoned CTF-28, which provides for the complete range of motel-hotel developments. Type A Marina facilities are permitted as a special exception in a CTF-28 district. The property owned by Petitioners is presently occupied by a 17-room motel (Exhibit 5) and there are 15 available parking spaces. Petitioners propose to remove the seaward 16 feet of the existing 20-year-old dock, extend the remaining portion of this dock from its present length of 62 feet to 112 feet, and construct four finger piers two feet wide by 24 feet long extending seaward from this dock so as to provide seven boat slips. As private slips this would constitute a Class A marina. Petitioners intend to convert the existing motel from sole ownership (husband and wife) to a cooperative association which will enter into long-term leases with proprietary lessees who purchase shares in the association. Specifically, the current owners will transfer title to the property to Tropical Palms Development Corporation, who in turn will transfer the property to The Bel Crest Beach Cabanas & Yacht Club, Inc., who will sell the leases (Exhibits 2 and 3). A copy of the Proprietary Lease proposed for use in this endeavor was not presented to the Board of Adjustment and Appeal on Zoning, nor was the By- Laws of The Bel Crest Beach Cabanas & Yacht Club, Inc. These documents were presented at this hearing as Exhibits 4 and 5. The Proprietary Lease (Exhibit 4) provides the dock is appurtenant to the unit and may not be conveyed, leased or subleased independent of the unit. Slips 1-7 are assigned to Units 7, 8, 9, 10, 11, 16 and 17, respectively (Exhibit 5). Petitioner Leonhardt testified that he would never allow the motel unit to be leased independent of the slip appurtenant to that unit. He also testified that the boat slips got little use from motel occupants. The existing dock, which is 62 feet long, contains berthing space for three or four boats, depending on the size of the boats. No evidence was presented concerning the parking problem, if any, resulting from the existing docking facilities. Respondent's primary concern and the reason this application was denied by the Board of Adjustment and Appeal on Zoning is the effect the proposed marina will have on parking on Clearwater Beach. Vehicular parking is a serious problem confronting Clearwater Beach at this time. Further aggravation of this problem will adversely affect the public interest. A special exception for a seven-slip, Class A marina was granted to the Sea Gull Motel located some 300 feet west of the Bel Crest motel less than one year ago. The Sea Gull converted to cooperative ownership in a plan similar to that proposed by Petitioners. At the Sea Gull hearing for a special exception the parking situation on Clearwater Beach was not raised. Item 40 of the Proprietary Lease (Exhibit 4) contemplates more than one person may be named as lessee and provides joint lessees have only one vote, are jointly and severally liable for lessees' obligations, etc. Nowhere does the Proprietary Lease or By-Laws of the Association specifically preclude one owner- lessee occupying the boat slip while another owner-lessee occupies the motel unit. Once converted to a cooperative, the Bel Crest will continue to operate as a motel run by the resident manager with the units owned by the shareholders in the Association. Currently, all units of the motel are owned by a single owner. The By-Laws and Proprietary Lease do not fully cover the situation regarding the boat slip when the unit appurtenant to that boat slip is rented by the usual overnight motel guest who has no use for a boat slip. The proposed slips present no hazard to navigation or interfere with the enjoyment of the waters adjacent thereto by the boating public.
Findings Of Fact The Florida Hotel and Motel Association, Inc. (Association or petitioner) is a non-profit corporation whose membership includes various hotels and motels throughout the State of Florida. The organization has been in existence since the 1950's. As of July, 1980, the Association had approximately 600 members. There are currently in excess of 6,000 licensed properties in the State that are eligible to join the Association. Mr. David Arpin was employed in various capacities by the Association for more than twenty years. His last position was that of executive vice president. Because of an illness, Mr. Arpin's full time activities with the petitioner ceased in December, 1977. However, he continued to receive compensation from the Association until June 30, 1978, on a "sickness leave of absence." (Exhibit No. 1). His employment with the Association was terminated on that date. (Exhibit No. 4). On November 7, 1977, a memorandum was prepared for Mr. Arpin by the Association's secretary which advised him that the name "Florida Hotel and Motor Hotel Association, Inc." was available for reservation in the Division of Corporations. (Exhibit No. 5). Mr. Arpin claims he did not read the memorandum at that time. However, he acknowledged that sometime after January 1, 1978, he became aware of the availability of the corporate name in question. On June 26, 1978, Mr. Arpin, through his counsel, reserved the name "Florida Hotel and Motor Hotel Association, Inc." Because of the controversy with petitioner, the respondent has been unable to utilize the name since that time. Since the cessation of his relationship with the Association, Mr. Arpin has operated an organization known as the Florida Lodging and Food Service Association, Inc. It is comprised of approximately 100 members, of which the majority are hotels and motels. It is in direct competition with petitioner for memberships. The logo used by the corporation is also strikingly similar to that used by petitioner. If the name "Florida Hotel and Motor Hotel Association, Inc." is awarded Mr. Arpin, he intends to use it in conjunction with an industry newsletter to be distributed to hotels and motels, or to substitute it in lieu of the corporate name now being used. He will continue to compete with petitioner, and solicit memberships from motels and hotels that are now members of the Association. Until July 1, 1980, the uncodified practice of the Division relative to the awarding of corporate names was that there be at least a one word difference in a corporate name from another in order to enjoy its use. Under this informal guideline, the Division took the position that the inclusion of the words "motor hotel" in lieu of "motel" constituted the necessary name difference for awarding the name to Mr. Arpin. Prior to the 1960's, a distinction existed between the terms "motel" and "motor hotel". Typically, a motor hotel was larger than a motel, and offered a full range of services that a motel did not, such as food, beverages and a night club. In contrast to a motel, a motor hotel did not have doors leading from each room directly to the parking lot. Since 1960, this distinction has evaporated within the hotel-motel industry, and the words are used interchangeably in the trade and have the same meaning.
The Issue Whether Respondent, James Michael Rossi, violated section 468.436(2)(b)2., Florida Statutes (2015),1/ as alleged in the Amended Administrative Complaint; and, if so, what penalty should be imposed.
Findings Of Fact The Department is the state agency charged with licensing and regulating Community Association Managers (CAMs), pursuant to sections 468.433 and 486.436, Florida Statutes, respectively. At all times material hereto, Respondent was a licensed Florida CAM, having been issued CAM license number 35631. At all times relevant hereto, Respondent was the CAM for Ocean Villa Condominium Association, Inc. (Ocean Villa). At times during Respondent’s tenure as Ocean Villa’s CAM, Respondent provided CAM services to other associations. During the relevant time period, Ocean Villa did not establish a credit card in its name. Respondent’s practice was to purchase goods for Ocean Villa using his personal credit card, and reimburse himself via check from the Ocean Villa checking account. Respondent submitted his credit card statements and some receipts as backup for the reimbursement checks. In December 2016, Ocean Villa obtained a debit card in its name and Respondent ceased the practice of making purchases on behalf of Ocean Villa using his personal credit card. In the Amended Administrative Complaint, the Department alleges as follows: On or about the following dates: May 2014; June 2014; March 2015; May 2015; and September 2015, Respondent wrote checks to himself from the Association’s checking account, for which Respondent failed to maintain and/or provide the corresponding receipts or invoices substantiating the total amount for each of those checks. The parties stipulated to introduction of seven checks Respondent wrote to himself allegedly in reimbursement for expenditures made by him on behalf of Ocean Villa. Check No. 1989 was written on May 13, 2014, in the amount of $519.00. The check stub indicates the payment was made for a “paint striper roll master,” a piece of equipment used in striping parking lots. As backup for the reimbursement, Respondent submitted an email from sales@paintsprayersplus.com to Respondent confirming an order placed May 13, 2014, for “Newstripe Rollmaster 1000 Parking Lot/Warehouse Line Striper” for a charge of $519.00. Under “payment information,” the email reads, “CREDIT (Denied).” The email further reads, “Your Credit Card payment has been denied. If you do not have a customer account, please contact sales@paintsprayersplus.com for assistance.” Respondent also introduced his June 2014 U.S. Bank credit card statement, which includes a charge on May 15, 2014, to Paintsprayersplus in the amount of $519.00. Respondent wrote Check No. 2043 on June 23, 2014, in the amount of $362.98. The check stub describes the purpose as “Reimburse Expenses.” As backup for the reimbursement, Respondent produced his June 2014 U.S. Bank credit card statement. The statement is redacted to exclude personal charges. The statement includes five separate charges at Office Depot, for a total amount of $147.64; a charge of $9.00 for conference call services; the charge of $519.00 from Paintsprayersplus; and a charge of $207.00 from Newstripe, Inc. Respondent testified the Newstripe, Inc. charge was for the paint used to restripe the parking lot at Ocean Villa. The redacted credit card statement contains Respondent’s handwritten note next to the Paintsprayersplus charge of $519.00 “PO 5-13-14 Ck# 1989,” indicating he previously reimbursed himself for that charge via Check No. 1989. The redacted credit card statement also contains Respondent’s handwritten note totaling the unredacted charges to $881.98, subtracting the $519.00 previously reimbursed for the restriper, leaving a remainder of $362.98 to be reimbursed. That amount matches the amount Respondent reimbursed himself via Check No. 2043. Respondent wrote Check No. 2361 on March 6, 2015, in the amount of $108.70. The check stub lists two invoices both dated March 6, 2015: $10.72 for “Phone cord for conference calls,” and $97.98 for “Copy paper and stamps.” As backup for the reimbursement, Respondent produced a receipt from Office Depot dated March 3, 2015, and a receipt from Home Depot dated February 26, 2015. The Home Depot receipt is for a “50’ white phone line cord” at $9.97, for a total of $10.72, after tax. The Office Depot receipt lists three separate charges: one for two boxes of 9 x 11 inch paper at $53.99 each; two quantities of U.S. postage stamps at $49.00 each; and another box of 9 x 11 inch paper at $53.99. All three boxes of paper were discounted $8.00 each, and the total, after tax, for the purchased items was $195.96. Respondent handwrote on the receipt after the total, “/2 97.98 Half to OV & Half to TP.” Respondent testified, credibly, that the supplies were purchased for both Ocean Villa and a second association for which he served as CAM. Respondent wrote Check No. 2371 on March 19, 2015, in the amount of $554.51. The check stub notes the purpose was reimbursement for three separate invoices dated March 19, 2015, for “office supplies.” The amounts corresponding with each invoice are $120.34, $386.28, and $47.89, respectively. As backup for the reimbursement, Respondent introduced his redacted U.S. Bank credit card statements for January and February 2015, as well as an Office Depot receipt dated March 7, 2015. The February 2015 bank statement contains the following unredacted charges: 01/16 Office Depot #2821 $24.48 01/18 Conf. Call Services $9.00 02/03 Office Depot #2821 $83.07 02/09 USPS $3.79 The total of the unredacted charges is $120.34, the same amount as the first invoice for office supplies noted on the check stub for February 10, 2015. The January 2015 bank statement contains the following unredacted charges: 12/10 Office Depot #2821 $28.20 12/11 USPS $134.33 12/15 Office Depot #2821 $49.00 12/24 Conf. Call Services $9.00 01/02 Lowes #02367 $22.00 01/06 Office Depot #2821 $143.75 The charges total $386.28, the same amount as the second invoice for office supplies noted on the check stub for January 12, 2015. The March 7, 2015 receipt from Office Depot lists two charges: No. 8 Envelopes at $36.99, and two of another item (unidentifiable based on the receipt) at $3.99 each for a total of $7.98. The total purchase, after tax, was $47.89, the same amount as the third invoice for office supplies noted on the check stub. Respondent wrote Check No. 2378 on March 20, 2015, in the amount $359.40. The check stub describes the purpose as “Miscellaneous.” As backup documentation for the reimbursement, Respondent introduced his March 2015 U.S. Bank credit card statement, which lists the following unredacted charges: 02/19 Conf. Call Services $9.00 02/24 USPS $12.35 02/25 Amazon Marketplace $113.56 02/27 Amazon Marketplace $176.60 03/07 Office Depot $47.89 Respondent testified, credibly, that the Amazon Marketplace charges were for personalized uniform jackets for Ocean Villa maintenance and security personnel, purchased at the direction of the Board. The unredacted charges total $359.40, the same amount as reimbursement Check No. 2378. Respondent wrote Check No. 2459 in the amount of $2,364.74 on May 22, 2015. The check stub lists nine separate purchases in April and May of 2015, including binders for Ocean Villa’s financial statements, an external hard drive, file folders, sun umbrellas and bases, and postage for certified mail. As backup in support of the reimbursements, Respondent introduced nine receipts from a variety of vendors, including Office Depot, Home Depot, WalMart, Sam’s Club, and USPS. The last check at issue is Check No. 2593 which Respondent wrote on September 24, 2015, in the amount of $471.50. The check stub lists four separate invoices for postage. As backup documentation for the reimbursement, Respondent introduced four separate USPS receipts which match the amount listed on the check stub for each invoice, and which total $471.50. In this case, the Department charges Respondent with two counts pursuant to section 468.436(2)(b)2., which subjects a licensee to discipline for violating any rule adopted by the Department. Count I In Count I of the Amended Administrative Complaint, the Department alleges Respondent violated Florida Administrative Code Rule 61E14-2.001(3)(d), which requires maintenance of the “official records” of an association as required by section 718.111(12), Florida Statutes. Specifically, the Department charges Respondent with failure to maintain “[a]ccurate, itemized, and detailed records of all receipts and expenditures,” as required by section 718.111(12). The Department introduced the testimony of Dawn Warren, a 16-year licensed CAM, who has been employed as CAM for two separate condominium associations, served as president of a condominium association complex for 15 years, and previously served on the Regulatory Council of Community Association Managers for eight years (three years as Chair). Through Ms. Warren’s testimony, the Department attempted to establish that a CAM must keep vendor receipts of each purchase in order to comply with the statutory requirement to maintain “[a]ccurate, itemized, and detailed records of all receipts and expenditures.” Ms. Warren testified consistently that the vendor receipt was the only appropriate record of what was purchased by, or on behalf of, the association. The Department admitted, through Ms. Warren’s testimony, that the backup documentation for Check Nos. 2361, 2459,3/ and 2593 were appropriate itemized records of what was purchased on behalf of the association. The Department’s allegations on Count I can be narrowed to whether Respondent failed to maintain “[a]ccurate, itemized, and detailed records of all receipts and expenditures,” based on the records associated with four checks: 1989, 2043, 2371, and 2378. Ms. Warren’s opinion that itemized receipts for each purchase are required hinges on her interpretation of the statute, summarized as follows: Well, right in 718, it does say itemized receipts and expenditures. So an itemized receipt would be something that’s itemized, which you – which I and anyone that I know that’s a CAM turns in a receipt, and it itemizes what they bought.[4/] Despite Ms. Warren’s depth of experience as a CAM, her testimony was not persuasive. Ms. Warren’s read of the statute is incorrect. It does not read, “itemized receipts,” it reads, “itemized and detailed records of all receipts and expenditures.” Further, Ms. Warren’s opinion that the vendor receipt is required because it is the only record of what was actually purchased, is not credible. With regard to Check No. 2361, Ms. Warren testified that, based on the receipt, she could identify that the three purchases were, in order, envelopes, postage, and paper. The first and third items on the receipt have the exact same product ID and description--196517 PPR,X- 9.11” .10. Yet, Ms. Warren testified that the first charge on the receipt was for No. 10 envelopes, while the last item on the receipt was for paper. She subsequently testified as to the first charge, “I don’t know what it is exactly.” Ms. Warren’s opinion that the vendor’s itemized receipt is the only allowable record of expenditures, because it is “the record of what was purchased,” was undercut by her own inability to identify from the vendor itemized receipt specifically what was purchased on behalf of the association. The Department’s focus on receipts is misplaced. As correctly identified by Respondent, the items purchased by him on behalf of Ocean Villa are expenditures, not receipts. The statute requires Ocean Villa, through its CAM, to maintain “itemized and detailed records of all . . . expenditures.” Respondent testified, credibly, that he maintains copies of all Ocean Villa expenditures organized by both date (month, day, and year) and by vendor, as well as QuickBooks records of all Ocean Villa documents. Further, with the exception of Check Nos. 2043 and 2378, the checkstubs entered into evidence are itemized as to the date of purchase, the amount paid, and a description of the item purchased. These are detailed, itemized records of the expenditures made. The check stub for Check No. 2043 lists an invoice dated June 23, 2014, in the amount of $362.98 to “Reimburse Expenses,” followed up with a redacted credit card statement listing five separate Office Depot charges, a charge from Newstripe, Inc., and a $9.00 charge for conference call services. At hearing, it was established that the $9.00 charge for conference call services was a recurring monthly charge to the association. It was also established that the $200.00 charge to Newstripe, Inc., was for the paint used to restripe the Ocean Villa parking lot. The record does not support a finding of what specifically was purchased at Office Depot for a total of $146.74. The check stub for Check No. 2378 lists one invoice in the amount of $359.40 for “Miscellaneous” expenses, to which Respondent attached his unredacted March 2015 credit card statement. The statement lists unredacted charges of $9.00 for conference call services, $12.35 for postage, $47.89 for purchases at Office Depot, and the Amazon Marketplace charges for uniform jackets totaling $290.16. Respondent introduced the March 7, 2015 Office Depot itemized receipt showing two purchases: one for envelopes at $36.99, and one for an unidentified product5/ at $3.99 each, for a total of $47.89. The record does not support a finding of what specifically was charged at Office Depot for $3.99 x 2. The Department did not prove Respondent failed to maintain “[a]ccurate, itemized, and detailed records of receipts and expenditures.” At most, the Department proved that Respondent reimbursed himself, through Check Nos. 2043 and 2378, for expenditures totaling $154.72 without a written itemized account of what was purchased. Count II In Count II of the Amended Administrative Complaint, the Department alleges Respondent violated rule 61E14- 2.001(2)(c), which requires a CAM to “perform all community association management services . . . to professional standards and to the standards established by Section 468.4334(1), F.S.” The Department argues Respondent failed to meet undefined “professional standards” by reimbursing himself for expenses incurred on behalf of the association without itemized vendor receipts for each expense. Ms. Warren testified repeatedly that Respondent did not submit itemized receipts to support reimbursement checks to himself for purchases made on behalf of Ocean Villa. She expressed her opinion that a CAM’s reimbursement records should include the itemized receipts for purchases for which reimbursement is sought, and that, in her 15 years as an association president, she would never sign a check to reimburse a CAM without the itemized receipt for the purchases made. Ms. Warren’s opinion was based solely on her practice and not on any standards or guidelines established by a professional organization. Ms. Warren’s testimony did not establish that her practice constituted recognized “professional standards,” because she was not able to identify at hearing the specific items purchased based on the Office Depot itemized receipt. Section 468.4334(1) requires, in pertinent part, as follows: A [CAM] and a [CAM] firm shall discharge duties performed on behalf of the association as authorized by this chapter loyally, skillfully, and diligently; dealing honestly and fairly; in good faith; with care and full disclosure to the community association; accounting for all funds; and not charging unreasonable or excessive fees. In an apparent effort to prove Respondent violated the specific professional standards captured in section 468.4334(1), the Department introduced Respondent’s management services contracts with Ocean Villa, and testimony regarding his performance of his duties pursuant to the contracts. The testimony suggested that the checks at issue were reimbursement for expenses Respondent did not have Board approval to incur. For example, Christopher Arnold, who became Ocean Villa President in October 2017, testified that Respondent was limited by the contract to incur expenses for repairs up to $500.00 without Board approval. Mr. Arnold argued that, as none of the expenditures for which Respondent reimbursed himself were for repairs, Respondent did not deal honestly and fairly, or with good faith, in reimbursing himself for the expenses because he did not have Board approval to incur them. Mr. Arnold’s testimony was neither credible nor persuasive. Paragraph 4 of Respondent’s contract in effect beginning in June 2015, titled “Reimbursement of Expenses,” requires the association to reimburse the CAM for costs incurred “in providing services, material, and supplies to, or for the direct benefit of,” the association. Paragraph 4 contains no monetary limit on the amount of costs to be reimbursed. In contrast, paragraph 5.H. of the contract, upon which Mr. Arnold relied, requires the CAM to make repairs and perform other functions in order to “maintain and operate the Association,” and limits expenditures for repairs to $500 without “prior consent from the Board’s representative unless it is a budgeted item.” The Department did not introduce any credible evidence that Respondent’s reimbursements at issue in this case were contrary to any term of Respondent’s contract with Ocean Villa. Moreover, Respondent’s prior contract with Ocean Villa--which preceded the June 2015 contract--required the association to reimburse the CAM “for all reasonable expenses incurred by the [CAM] in the course of its engagement.” The Department did not introduce any evidence that Respondent’s reimbursements were not for “reasonable expenses incurred.” The record established that neither the Ocean Villa Board nor its President in office during 2014 and 2015 ever questioned Respondent’s reimbursements. The Department did not prove Respondent’s reimbursement of expenses by Check Nos. 2361, 2371, 2378, 2459, and 2593,6/ violated any professional standard, including those set forth in section 468.4334(1).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation dismiss DBPR Case No. 2017-043696 against James Michael Rossi. DONE AND ENTERED this 27th day of September, 2018, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 2018.
The Issue Whether Respondent violated Subsections 475.25(1)(b), (1)(d)1, and (1)(e), Florida Statutes, and, if so, what discipline should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made: Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular, Section 20.165 and Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent is and was at all times material hereto a licensed Florida real estate salesperson, issued license number 0530788 in accordance with Chapter 475, Florida Statutes. The last license issued to Respondent was an involuntary inactive salesperson at 2156 Turnberry Drive, Oviedo, Florida 32764. On or about April 13, 2000, an Administrative Law Judge entered a Recommended Order finding Respondent guilty of violations of Subsections 721.11(4)(a), (h), (j), and (k), Florida Statutes (1995), by making oral misrepresentations in his sales pitch to timeshare purchasers. On or about June 15, 2000, the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes, issued a Final Order adopting the Findings of Fact and Conclusions of Law of the Administrative Law Judge and rejecting all of Respondent's exceptions. In the Final Order, the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes, ordered Respondent to cease and desist from any further violations of Chapter 721, Florida Statutes, and ordered Respondent to pay a penalty of $28,000. As of September 24, 2002, Respondent had failed to pay the penalty pursuant to the terms of the Final Order of the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes. On or about July 22, 2000, a uniform disciplinary citation was issued to Respondent for failing to notify the Florida Real Estate Commission of his current mailing address or any change of the current mailing address in violation of Rule 61J2-10.038, Florida Administrative Code. Pursuant to proper authority, the Florida Real Estate Commission penalized Respondent $100 for the violation. At the time he received the uniform disciplinary citation, Respondent was advised as follows: "You have a total of 60 days from the date this citation was served upon you to pay the fine and costs specified. This citation automatically becomes a Final Order of the board if you do not dispute this citation within 30 days of the date this citation was served upon you. As a Final Order, the fine and costs shall be due to the board within 30 days of the date of the Final Order. After this citation has become a Final Order, failure to pay the fines and costs specified constitutes a violation of a Final Order of the board and may subject you to further disciplinary action." On or about August 22, 2002, the citation became a Final Order. As of September 24, 2002, Respondent had failed to pay the penalty pursuant to the terms of the Final Order of the Florida Real Estate Commission. Respondent had more than 20 years' experience selling timeshare units as a salesman, sales manager or sales director; he had worked in sales at various Central Florida timeshare resorts since 1979. Between July 1995 and March 1997, Respondent was employed as a salesman and sales director by Vocational Corporation, the owner/developer of Club Sevilla, a timeshare resort property. On October 24, 1995, Respondent participated in a sales presentation to Raymond and Charlene Sindel at Club Sevilla, which resulted in their purchase of a timeshare. During the sales presentation, Respondent made the following false, deceptive and misleading statements which induced the Sindels to purchase the timeshare: (1) the Sindels would become members of Interval International, a timeshare exchange program, in which they could exchange their timeshare and/or utilize another timeshare for $79 or $99 a week 52 weeks per year; and (2) representatives of Tri Realty would sell their existing timeshare before the end of the year. On October 24, 1995, Respondent participated in a sales presentation to Clarence and Maxine Shelt at Club Sevilla, which resulted in their purchase of a timeshare. During the sales presentation, Respondent made the following false, deceptive and misleading statement which induced the Shelts to purchase the timeshare: the Shelts would become members of Interval International, a timeshare exchange program, in which they could exchange their timeshare and or utilize another timeshare for $79 a week 52 weeks per year. On June 26, 1996, Respondent participated in a sales presentation to Eugene and Mildred Plotkin and their son, Daniel, at Club Sevilla, which resulted in the purchase by Eugene and Mildred Plotkin of a timeshare. During the sales presentation, Respondent made the following false, deceptive and misleading statements which induced the Plotkins to purchase the timeshare: (1) a timeshare owned by the Plotkins in Las Vegas, Nevada, would be sold within two months; (2) the Plotkins would receive a low-interest credit card with which they would finance the purchase of the Club Sevilla timeshare and that their Las Vegas timeshare would be sold quickly enough that they would not have to pay any interest on the credit card; and (3) the Plotkins would become members of Interval International, a timeshare exchange program, in which they could utilize another timeshare anywhere for $149 a week. On July 26, 1996, Respondent participated in a sales presentation to Robert and Susan Bailey at Club Sevilla, which resulted in their purchase of a timeshare. During the sales presentation, Respondent made the following false, deceptive and misleading statements which induced the Baileys to purchase the timeshare: (1) they would receive a low-interest credit card within ten days with a $20,000 credit limit with which they could finance the timeshare purchase; and (2) the Baileys would receive a prepaid 52-week membership in Interval International, a timeshare exchange program. In September 1996, Respondent participated in a sales presentation to Thomas and Betty Prussak at Club Sevilla, which resulted in the purchase of a timeshare. During the sales presentation, Respondent made the following false, deceptive and misleading statements which induced the Prussaks to purchase the timeshare: (1) timeshares owned by the Prussaks in Westgate and Club Sevilla were valued at $12,000 each and that these timeshare units would be sold if the Prussaks purchased a new timeshare unit at Club Sevilla; (2) that the new Club Sevilla timeshare unit would be a "floating" unit (could be used anytime); and (3) that the new Club Sevilla timeshare would be rented and that the Prussaks or their daughter would be able to take "getaway" weeks and stay at any RCI timeshare for $149 per week. On December 11, 1996, Respondent participated in a sales presentation to Larry and Carla Eshleman at Club Sevilla, which resulted in their purchase of a timeshare. During the sales presentation, Respondent made the following false, deceptive and misleading statements which induced the Eshlemans to purchase the timeshare: (1) the Eshlemans would receive a low-interest credit card with which they could finance the timeshare purchase; (2) the Eshlemans would become members of Interval International, a timeshare exchange program, in which they could exchange their timeshare and utilize another timeshare for $149 a week; and (3) the timeshare the Eshlemans owned prior to their purchase of the Club Sevilla timeshare would be sold in three months or would be rented for $1,650 per week.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner enter a final order finding that Respondent violated Subsections 475.25(1)(b) and (e), Florida Statutes, and that Respondent's license as a real estate salesperson be revoked, that he be fined $2,000 and be required to pay the costs of the investigation and prosecution of the case. DONE AND ENTERED this 3rd day of December, 2002, in Tallahassee, Leon County, Florida. JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 2002. COPIES FURNISHED: Christopher J. Decosta, Esquire Department of Business and Professional Regulation 400 West Robinson Street, Suite N-308 Hurston Building, North Tower Orlando, Florida 32801 William S. Walsh 13079 South Taylor Creek Road Christmas, Florida 32709 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Buddy Johnson, Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Nancy P. Campiglia, Chief Attorney Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
Findings Of Fact Peter P. Sedler, at all times material to the complaint, has been licensed as a real estate broker, holding license 0079017. He was last licensed as a broker c/o Marshall & Sedler, Inc., 7771 St. Andrews, Lake Worth, Florida 33467. Marshall & Sedler, Inc., at all times relevant to the complaint, had been registered as a Florida real estate broker, holding license 0250511, its last licensed address was 7771 St. Andrews, Lake Worth, Florida 33467. Peter P. Sedler was the qualifying broker and officer for Marshall & Sedler, Inc. On about July 3, 1987, Tom Teixeira was employed as a salesman by Cartier Realty, of 11852 42nd Road North, Royal Palm Beach, Florida. Cartier Realty had solicited, through a direct mailing, listings for property in the Royal Palm Beach area. Ms. Mary Myers, an older woman of about 70 years of age, responded to the advertisement, and gave Mr. Teixeira an open listing for real property which she owned. While Mr. Teixeira placed a Cartier Realty "For Sale" sign on the property, the sign was somehow removed shortly thereafter, and no party dealing with Ms. Myers during the months of July, August and September of 1987 would have been placed on notice that Cartier Realty had any listing on the property. Mr. Sedler had nothing to do with the disappearance of the sign. Ms. Myers had originally acquired the property from her daughter. Long before Ms. Myers gave a listing to Cartier Realty, William Kemp and his wife Gina DiPace Kemp had told Ms. Myers that they were interested in purchasing the property, which is adjacent to the home of Mr. and Mrs. Kemp. When Mr. and Mrs. Kemp first contacted Ms. Myers, she had wanted to keep the property, in the belief that she might eventually convey it back to her daughter. Mr. Teixeira brought to Ms. Myers an offer from David R. and Maureen C. Rose to purchase the land for $11,900. Ms. Myers did not accept that offer, but the Roses accepted Ms. Myers' counteroffer on July 24, 1987, to sell it for $12,300. The sale was contingent upon the buyers obtaining financing; they applied for a loan, and ordered both an appraisal and a survey. The closing was to be held by September 1, 1987. (Contract, paragraph VI.) The closing date passed, without the buyers obtaining the necessary financing, so the contract was no longer effective. On about September 8, 1987, Mr. Teixeira attempted to contact Ms. Myers. He had obtained no written extension of the contract but hoped the sale might yet close. Ms. Myers told Teixeira that she was still willing to sell the property to Mr. and Mrs. Rose. In the meantime, Mr. and Mrs. Kemp became aware that Ms. Myers wanted to sell the property, because they noticed Mr. and Mrs. Rose coming to look at the land, and had engaged them in conversation. Ms. Kemp then contacted Ms. Myers to remind her that they were still willing to purchase the property, and also to say that they would offer more than the current offer on the property. On about September 11, 1987, Ms. Kemp contacted Cartier Realty to say that she also wished to make an offer on the Myers' lot. For a reason which was never adequately explained at the hearing, Teixeira, who should have been working on behalf of the seller, refused to take the offer, even though it was for a higher price. After this rebuff by Teixeira, Ms. Kemp contacted Marshall & Sedler, Inc., in order to try to find a broker who would convey their offer to Ms. Myers and spoke with Patricia Marshall, Ms. Marshall referred her to her partner, Peter Sedler. The Kemps told Sedler that Ms. Myers had told them that she had received a $9,000 offer on the lot. Why Ms. Myers told the Kemps that the Rose offer was $9,000 is not clear, for the actual offer had been $12,300, but Sedler did not know this. There was no listing of the lot in the local board of realtors multiple listing service book, and Mr. Sedler found the address of Ms. Myers through the public records. Mr. Sedler knew from his conversations with Ms. Kemp that Cartier Realty had some involvement with an offer on the property. He called Cartier Realty and tried to speak with the broker handling the matter. He spoke with a man named Tom, who he thought was a brother of the owner of Cartier Realty, Pete Cartier. Mr. Sedler actually talked with Tom Teixeira. Sedler believed he was dealt with rudely by Teixeira, who had hung up on him. Sedler then called Pete Cartier directly to find out whether there was an outstanding contract on the property, and Cartier told Sedler that he would call Sedler back. When Cartier called Sedler, Cartier warned Sedler that he should stay out of the deal. Mr. Sedler became suspicious about Cartier Realty's failure to bring a higher offer to the attention of the seller, and on September 16, 1987, filed a complaint against Tom Cartier with the Lake Worth Board of Realtors. Mr. Sedler then traveled to Pompano Beach to meet with Ms. Myers at her home, and brought with him a contract for sale and purchase of the property, already signed by the Kemps and dated September 14, 1987. While at the door, Ms. Myers asked Peter Sedler if he was "Tom." Ms. Myers knew that she had been dealing with a "Tom" at Cartier Realty, but all her dealings were on the phone, and she did not know what Tom Teixeira looked like. Sedler replied "Yes, but you can call me Pete." Sedler merely intended the comment as humor. At that time Sedler gave Ms. Myers his pink business card and specifically identified himself as Pete Sedler of Marshall & Sedler, Inc. Mr. Sedler asked Ms. Myers if she had any paperwork, such as the prior contract for the sale of the lot which had expired on September 1, 1987, but she did not. While Sedler was with Ms. Myers, she agreed to sell the property to the Kemps for $12,500 and signed the Kemp contract. The Kemps had put the purchase price of $12,500 into the Marshall & Sedler escrow account. Three days later, on September 18, 1987, Mr. Sedler, in the company of his wife Bonnie, presented a post-dated check to Ms. Myers in the amount of $11,020, the net amount due to Ms. Myers for the lot, based on the purchase price of $12,500. When they met this second time he introduced himself again as Pete Sedler and offered Ms. Myers his card for a second time. The post-dated check was conditioned by an endorsement making it good upon a determination that the title to the lot was good. A quit claim deed to Mr. and Mrs. Kemp was executed by Ms. Myers and witnessed by Bonnie Sedler. The post-dated check was given to Ms. Myers because she was about to leave on vacation. The check was given as a sort of security for good title, in return for the quit claim deed which closed the transaction. Mr. Sedler had structured the transaction in this way because he was concerned that someone at Cartier Realty might also attempt to purchase the property from Ms. Myers on behalf of one of their clients. At that time, Mr. Sedler held the reasonable belief that no other party had a subsisting contract to purchase the property from Ms. Myers. Sedler had no reason to believe the Roses would or could pay more for the property than the Kemps offered. Ms. Myers knew that Tom Teixeira from the Cartier realty firm represented a distinct business entity from Marshall & Sedler or Pete Sedler. After a title search showed that Ms. Myers had clear title to the property, the check which Mr. Sedler had given to Ms. Myers on September 18, 1987, with the restrictive endorsement was replaced. Later Mr. and Mrs. Rose tried to close their purchase, but found they could not. Ms. Myers had failed to inform them of the sale she made to the Kemps through Mr. Sedler. Mr. Teixeira, in retribution, filed an ethics complaint about Mr. Sedler with the West Palm Beach Board of Realtors.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Administrative Complaint against Peter P. Sedler and Marshall & Sedler, Inc., be dismissed. RECOMMENDED this 14th day of March, 1991, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 14th day of March, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-6183 Rulings on findings proposed by the Department: 1. Rejected as unnecessary. 2 and 3. Adopted in Finding 1. 4 - 6. Adopted in Finding 2. Adopted in Finding 3. Adopted in Finding 3. Implicit in Finding 5. Adopted in Finding 5. Adopted in Finding 5. Adopted in Finding 5. Adopted in Finding 5. Adopted in Finding 6. Implicit in Finding 6. This does not mean that the contract subsisted, however. Rejected. Ms. Myers was willing to sell the property to Mr. and Mrs. Rose after the contract expired, but she was not under any obligation to do so. Adopted in Finding 7. Rejected, because there was no pending contract. Teixeira never obtained a written extension of the closing date and Ms. Myers was free to sell elsewhere. Rejected. No one could have truthfully told Sedler there was a pending contract. None existed. Rejected, because Mr. Sedler had no reason to believe that there was a subsisting contract for the sale of the property; there was none. Admission number 20 is not to the contrary. Adopted in Findings 10 and 11. Rejected. See, Findings 9 and 10. Rejected as unpersuasive. Rejected as cumulative to Finding 9. Adopted in Finding 14. Adopted in Finding 11. Rejected as unnecessary. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Frank W. Weathers, Esquire Frank W. Weathers, P.A. Post Office Box 3967 Lantana, Florida 33465-3967 Darlene F. Keller, Division Director Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32801 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondents violated the Florida Fair Housing Act as alleged in the Petition for Relief filed with the Florida Commission on Human Relations.
Findings Of Fact Petitioner, a 59-year-old male, alleges that he is a disabled and non-violent person, who was "illegally" evicted from an apartment unit in the Lakeside Apartment complex. At all times relevant to this proceeding, Respondents, Stephen McCormick and Scott Leonard (Lakeside Apartment Management or Respondents) were the owner and manager, respectively, of Lakeside Apartments. On August 9, 2005, Petitioner submitted a Rental Application and Information Release Form for Lakeside Apartments located at 4715 Land O'Lakes Boulevard, Land O'Lakes, Florida. On the application, Petitioner indicated that he would be the only person living in the apartment. Petitioner also noted that his dog would also be occupying the apartment. Petitioner's application did not indicate that he had any disability. However, at the time he submitted his rental application, he told the owner or manager of Lakeside Apartments that he had a mental disability. Petitioner's application was approved, and, on March 12, 2006, he moved into a one bedroom apartment on the second floor of Lakeside Apartments. The apartment that Petitioner occupied provided him with a "lake view." On or about June 2007, Petitioner was involved in a car accident. Two or three months later, Petitioner was involved in a second accident. In or about the fall of 2007, after the car accident, Petitioner requested that the manager assign him a first-floor apartment due to the problem with his ankles, presumably sustained in the car accident. This was an oral, not written request. At the time he made the oral request, and at no time thereafter, did Petitioner provide documentation of any type of disability, including one related to problems with his ankles. Moreover, Petitioner failed to provide a medical certification from a physician verifying that Petitioner's requested accommodation (i.e., assign him to a first-floor apartment) was necessary for his disability. The management of Lakeside Apartments began eviction proceedings against Petitioner in or about the spring of 2008. An order was issued on May 28, 2008. Petitioner moved out of Lakeside Apartments on or about May 31, 2008. The eviction action against Petitioner was initiated after Petitioner repeatedly exhibited inappropriate and disruptive behavior on the Lakeside Apartment property, as well violated the terms of his lease. Petitioner's conduct included the following: (1) driving on the Lakeside Apartment property while intoxicated; (2) calling "911" 17 times for no reason between April 1 through 9, 2008, resulting in the police being dispatched to the property; and (3) being disrespectful and causing disturbances with other tenants. Numerous tenants complained to Lakeside Apartment Management about Petitioner's inappropriate conduct on the property, including his drinking and being loud and disruptive. Petitioner violated the terms of his lease by having three unauthorized people living in his apartment unit. Even after eviction proceedings were underway, Petitioner was arrested for spitting on another tenant. In another incident, Petitioner's dog bit the manager at the Lakeside Apartment complex. Both of these incidents occurred on the Lakeside Apartment complex premises. After being evicted, Petitioner requested that Lakeside Apartment Management return his $400.00 security deposit. Lakeside Apartment Management refused to return Petitioner's $400.00 due to the condition of the apartment when Petitioner moved out. Upon inspecting the apartment unit after Petitioner moved, management found that the apartment had been damaged (i.e., holes in the walls) and was not cleaned. Petitioner failed to establish that his eviction was for any reason other than his disruptive and inappropriate conduct on the Lakeside Apartment premises. Moreover, Petitioner failed to establish that the Lakeside Apartment management's refusal to return $400.00 of his security deposit was for any reason other than the condition of the apartment unit when Petitioner moved out.
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 Petitioner's Complaint and Petition for Relief. DONE AND ENTERED this 5th day of March, 2009, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 2009.
The Issue The issue in this case is whether Respondent committed a housing discriminatory practice against Petitioner based on Petitioner’s race and gender, in violation of Section 760.23, Florida Statutes (2008).1
Findings Of Fact Ms. Martindale is an African-American female. Westgate sells timeshare units and vacations. Westgate is the largest privately-owned timeshare developer in the world. It currently has 27 resorts around the United States. There are over 250,000 owners of timeshares sold by Westgate. Westgate has developed a strategy to market its timeshare units. It leases locations in the Orlando area, including space in hotels, and outdoor locations at gas stations and convenience stores. Marketing coordinators are placed in the locations to solicit families and individuals to come and tour Westgate properties in hopes that they will purchase vacations or timeshares. One of the enticements Westgate uses to get people to tour its properties is a free gift, if the potential customer meets certain qualifications. On July 1, 2008, Ms. Martindale was approached by a Westgate marketing coordinator at a convenience store. The marketing coordinator asked to see Ms. Martindale’s driver’s license and a credit card. The marketing coordinator also asked her the amount of her annual income. Ms. Martindale was presented with an invitation by the marketing coordinator, who went over the details of the invitation with Ms. Martindale. The invitation was to be used to secure Ms. Martindale’s admission to a tour of the Westgate resort at Kissimmee, Florida. Ms. Martindale signed the invitation and initialed the invitation acknowledging that she met the qualifications listed in the invitation for a $100 cash gift. The invitation states: Provisions of offer: There is no cost or obligation to purchase anything. No one is excluded from our tour or resort ownership; however, the following requirements must be met in order to receive a gift. After meal, you must attend a 90 minute sales presentation. If married, husband and wife must attend together. If cohabitating, both parties must be present. You must speak fluent English or Spanish. If married, husband or wife must be between the ages of 23-65 with a valid photo I.D. or passport to qualify with a combined gross annual household income of $50,000. Single persons (single constitutes never married, divorced, widowed; single does not constitute separated) must be between the ages of 23-65 with a valid photo I.D. or passport and a $50,000 gross annual income. Florida residents of Brevard, Volusia, Lake, Orange, Polk, or Seminole Counties do not qualify for this offer. Must have spent prior night in a motel, hotel, resort, condo or vacation rental in the Orlando area and are not staying in a campground, driving an R.V. or with family/friends. Subject to the above qualifications, this offer is available to all permanent residents and citizens of the United States. This offer may not be available to citizens and residents of some countries. I/we have confirmed our eligibility for the gift with the Marketing Representative prior to arranging for my/our tour. When Ms. Martindale received the invitation, she understood that she would not receive the free gift if she did not meet the qualifications listed in the invitation. She also understood that she did not have to meet the qualifications in order to take the tour and that she could purchase a timeshare unit without meeting the qualifications. Ms. Martindale took the invitation and went to the Westgate property for a tour and her free gift. At the time that Ms. Martindale signed the invitation and presented herself for the tour and free gift, she was a resident of Orlando, Orange County, Florida. When Ms. Martindale arrived at the Westgate property, she stopped at the tour check-in desk. Again she was asked to present her driver’s license and a major credit card. She was asked the amount of her annual income. The employee at the check-in desk told Ms. Martindale to proceed to the reception area where she would be greeted by another employee and taken on a tour. Ms. Martindale stayed in the reception area for about ten minutes when she was greeted by a salesperson who took her to a larger reception area in which there were hundreds of people of varying nationalities and gender, including African- American women. The reception area contained a buffet, and the salesperson told Ms. Martindale that she could enjoy the buffet. The man then began to ask her questions about her annual income. He told her that he did not believe her and left to get Lissette Roman, who was the assistant manager resort liaison. He returned with Ms. Roman. When a potential customer does not appear to meet the financial qualifications for the free gift, Ms. Roman is asked to assist in determining if there is any way in which the potential customer may qualify for the free gift. Ms. Roman’s duties include asking questions concerning the amount and sources of income the potential customer has. Ms. Roman receives a commission for each timeshare unit that is sold. Many times potential customers who do not qualify for the free gift become upset, and it is Ms. Roman’s job to calm the potential customer and to avoid a confrontation. If the potential customer becomes antagonistic, Ms. Roman will call security. Ms. Roman asked Ms. Martindale questions about Ms. Martindale’s income. Ms. Martindale felt that Ms. Roman was rude to her, and she felt humiliated by Ms. Roman’s questions regarding her income. According to Ms. Martindale, Ms. Roman called her a liar, wrote cancelled on the invitation, and asked Ms. Martindale to leave the premises. Ms. Roman does not recall the incident involving Ms. Martindale; however, she does not believe that she called Ms. Martindale a liar because such conduct could result in her being terminated from her job. Based on the evidence presented, it is found that Ms. Roman did not call Ms. Martindale a liar, but that, based on the questions that Ms. Roman was asking relating to Ms. Martindale’s income, Ms. Martindale felt that the veracity of her response regarding the amount of her annual income was being impugned. Ms. Roman did write “cancel tour” on the invitation and asked Ms. Martindale to leave. Ms. Roman’s actions had nothing to do with Ms. Martindale’s gender or race. Based on the evidence presented, the conversation between Ms. Martindale and staff from Westgate was escalating into a confrontational situation in a room with hundreds of potential customers. The removal of Ms. Martindale from the premises was a means of avoiding a scene in front of other potential customers. Ms. Martindale wrote a letter to Westgate complaining about the incident. She did receive a telephone call from a representative of Westgate concerning the letter, and she may have been offered a tour of the resort. She was not interested in touring the resort at that time and does not want to tour the resort now. Ms. Martindale never made an offer to purchase a timeshare unit from Westgate. Westgate gives free gifts to males and females of varying nationalities, including African-Americans, if the potential customers meet the qualifications listed on the invitation. Westgate gives tours and sells to males and females of varying nationalities, including African-Americans, regardless of whether the potential customers meet the qualifications for the free gifts. Usually, if the potential customer does not qualify for the free gift, the potential customer does not care to take the tour. However, there have been potential customers who have not met the free-gift qualifications, have taken the tour, and have purchased timeshare units.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing Ms. Martindale’s Petition for Relief. DONE AND ENTERED this 30th day of April, 2009, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 30th day of April, 2009.
The Issue The issue is whether Respondent engaged in an unlawful employment practice.
Findings Of Fact Mr. Hurley was 53 years of age when hired by Advance in 1998. He was born on June 19, 1944. His employment relationship with Advance was "at will." His work schedule was determined by Advance and was based entirely on the determination by Advance of its requirement to adequately serve its customers. When Mr. Hurley started working there, he worked Monday, Tuesday, and Wednesday from 7:30 a.m. until 5:00 p.m., although sometimes he worked until 6:00 p.m. Advance is a large retail auto parts retailer. It has many stores. Mr. Hurley was employed as a driver in the Advance store located at 52 North Young Street, Ormond Beach, Florida, during all times pertinent. William G. Nulf was the store manager of the Ormond Beach Store during 2006. The assistant store manager was Jose Rivera. Jim Ashcraft was the "commercial parts pro." All of these men were authorized to supervise Mr. Hurley. On October 30, 2006, Mr. Hurley returned in his assigned vehicle after completing deliveries for the store. Mr. Rivera asked Mr. Hurley about receipts for the parts he had delivered. Mr. Hurley believed the receipts should be accounted for in one way and Mr. Rivera another way. These divergent views resulted in a disagreement that devolved into loud speech. Mr. Rivera told Mr. Hurley to leave the store and go home, but Mr. Hurley refused on the ground that he believed Mr. Rivera was without authority to send him home. During the disagreement Mr. Hurley was on one side of a counter, and Mr. Rivera was on the other side. As the argument progressed, Mr. Rivera stated that Mr. Hurley was a dirty, old, perverted man who should have been discharged a long time ago. Mr. Hurley also made inappropriate comments. Mr. Rivera dared Mr. Hurley to come from behind the counter and fight him. He put his fist in front of Mr. Hurley's face. Ultimately, the "commercial parts pro," Mr. Ashcraft, intervened, and his intervention ended the threat of actual physical violence. Neal Potter, the division manager for Advance having responsibility for the Ormond Beach store, investigated the incident. He used the employee handbook as a guide. The employee handbook of Advance states, "Any threats, incidents of violence, or intimidation of any nature whatsoever (including indirect threats or acts of intimidation) directed against a Team Member or other party by another Team Member will result in immediate termination." Mr. Potter took written statements from the participants and witnesses. He determined that the incident did not rise to the level of workplace violence as described in the handbook. He determined that both parties were at fault, and the incident was no more than a heated argument. Mr. Potter transferred Mr. Rivera to the Daytona Store with an effective date of November 8, 2006, because as a manager Mr. Rivera was held to a higher standard, and he had allowed the incident with Mr. Hurley to get out of control. Mr. Rivera was informed that if any similar issues occurred in the future, he would be terminated. This was memorialized in an Employee Action Report. Mr. Hurley told Mr. Potter that he was very afraid of Mr. Rivera. Subsequent to this incident, Mr. Hurley performed his job satisfactorily and rarely was in the presence of Mr. Rivera, although he did on occasion make deliveries to the Daytona Store where Mr. Rivera was then working. Mr. Hurley did not complain of discrimination as a result of this incident. The Employee Handbook has detailed guidance on how to complain of discrimination or a hostile work environment. Mr. Hurley was familiar with the process. He had complained to Mr. Potter on numerous occasions about a variety of issues, including payroll matters, vacation time, new policies and procedures, and other matters. Mr. Potter regarded him as someone who was quick to complain about almost any matter. Prior to March 4, 2007, Tom Estes was the store manager at the Daytona Store. During his tenure at the Daytona Store, Mr. Rivera was transferred to his store and served as Mr. Estes' assistant. Although Mr. Estes was aware that Mr. Rivera had been transferred from the Ormond Beach store because of an altercation with a fellow employee, he did not know that the employee involved was Mr. Hurley. Mr. Estes had prior experience with Mr. Rivera, thought him to be an excellent employee, and was happy that he had been transferred to his store. On March 4, 2007, Mr. Estes was transferred by Advance and became the manager of the Ormond Beach store. He had required drivers at the Daytona store to maintain delivery logs. He instituted this practice when he took over the Ormond Beach Store. This conformed to company policy. Mr. Hurley did not like this policy. From January 6, 2007, until March 10, 2007, Mr. Hurley's hours generally were Monday and Tuesday from 7:30 a.m. until 5:00-5:30 p.m., and Wednesday from 8:00 a.m. until noon. A short period after becoming manager of the Ormond Beach Store, Mr. Estes determined that more coverage was needed in the late afternoon hours. He made the specific determination that the commercial business required coverage until 6:00 p.m. For the week ending March 31, 2007, he changed Mr. Hurley's hours to Monday and Tuesday from 9:00 a.m. until 6:00 p.m. and Wednesday from 8:00 a.m. until noon. This change was based solely on Mr. Estes' estimate of the business needs of the store. When Mr. Hurley learned of this on March 21, 2007, he displayed anger. He told Mr. Estes that he could not work until 6:00 p.m. because he had to feed his pet birds. On March 26, 2007, the first day he was to work the new schedule, Mr. Hurley was excused from work based on a doctor's note. As events transpired, he never worked the new schedule and, as of the hearing date, he had not returned to work. He did not assert at the time he departed that the proposed change in hours was discriminatory, harassing, or retaliatory. The only person involved in requiring Mr. Hurley to maintain trip logs, and the only person involved in the decision to change Mr. Hurley's hours was Mr. Estes. Mr. Estes was unaware of Mr. Hurley's statement to Mr. Potter. Mr. Estes could not have made changes in Mr. Hurley's work requirements based on retaliation because he was unaware of a complaint.
Recommendation Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that the Florida Commission on Human Relations dismiss Mr. Hurley's Petition for Relief DONE AND ENTERED this 9th day of September, 2008, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 2008. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 David Glasser, Esquire Glasser and Handel Suite 100, Box N 150 South Palmetto Avenue Daytona Beach, Florida 32114 Steven David Brown, Esquire LeClair Ryan 951 East Byrd Street Richmond, Virginia 23219 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
