The Issue Whether the Petitioner, Macia Poole, was subject to an unlawful employment practice by Respondent, Westminster Village of Pensacola, on account of her sex or due to retaliation for her opposition to an unlawful employment practice in violation of section 760.10, Florida Statutes.
Findings Of Fact On April 3, 2015, Petitioner’s Employment Complaint of Discrimination and Petition for Relief were transmitted to the Division of Administrative Hearings by the Florida Commission on Human Relations for a formal administrative hearing to be held in accordance with section 120.57, Florida Statutes. On April 10, 2015, a Notice of Hearing by Video Teleconference was entered which set the final hearing for June 1, 2015, at 9:00 a.m., Central Time, (10:00 a.m., Eastern Time), at video teleconference sites in Pensacola, at the Office of the Judges of Compensation Claims, Video Teleconferencing Room, 700 South Palafox Street, Suite 305, Pensacola, Florida, and in Tallahassee, at the Division of Administrative Hearings, the DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida. On May 4, 2015, one Subpoena Duces Tecum and four Subpoenas Ad Testificandum were issued at the request of Petitioner. On May 14, 2015, Petitioner electronically filed her Notice of Appearance in this proceeding. On May 26, 2015, Petitioner filed a Request to Reschedule Video Hearing. The Request made no allegation of an inability to attend the hearing, only that her attendance would be an “inconvenience.” The Request was denied. The filing of the Request is convincing evidence that Petitioner knew that the final hearing was scheduled to be heard in accordance with the Notice of Hearing by Video Teleconference. On June 1, 2015, at the scheduled date, time, and place, the final hearing was convened. Mr. Moran, representing Respondent, Westminster Village of Pensacola, made his appearance. Petitioner did not appear. The final hearing was recessed for twenty minutes to allow Petitioner to appear. During the recess, the undersigned confirmed that the Division had not received any communication from Petitioner of exigent circumstances that may have interfered with her appearance at the final hearing. After twenty minutes had passed, the final hearing was re-convened. Petitioner was not in attendance. Respondent was prepared to proceed, and had its witnesses in attendance at the Pensacola video location. Mr. Moran confirmed that he had received no emails from Petitioner, that being their normal form of communication. At 9:25 a.m., Central Time, (10:25 a.m., Eastern Time), the final hearing was adjourned. There was no evidence presented at the final hearing in support of Petitioner’s Employment Complaint of Discrimination and Petition for Relief.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Respondent, Westminster Village of Pensacola, did not commit an unlawful employment practice as to Petitioner, Macia Poole, and dismissing the Petition for Relief filed in FCHR No. 2014-01235. DONE AND ENTERED this 3rd day of June, 2015, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 2015. COPIES FURNISHED: Tammy Scott Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 Brian J. Moran, Esquire Moran Kidd Lyons Johnson, P.A. 111 North Orange Avenue, Suite 900 Orlando, Florida 32801 (eServed) Macia Deanne Poole Apartment 176 6901A North 9th Avenue Pensacola, Florida 32504 (eServed) Christopher R. Parkinson, Esquire Moran, Kidd, Lyons, and Johnson, P.A. 111 North Orange Avenue Orlando, Florida 32801 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399
The Issue The central issue in this case is whether the Respondent is guilty of the violations alleged in the emergency order of suspension and notice to show cause dated November 25, 1991; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: Lunar Guppies, Inc. is the holder of an alcoholic beverage license, number 58-03679, series 2-COP, for a licensed premises known as Club Space Fish Cafe (Cafe) which is located at 536 West Church Street, Orlando, Florida. All activities described herein took place at the licensed premises. Michael Brown is the president and majority shareholder of Lunar Guppies, Inc. Michael Buchanan is the corporation's vice president and he owns fifteen percent of the shares issued by the entity. At all times material to the allegations of this case, both owners, Mr. Brown and Mr. Buchanan, were present on the licensed premises. Some time prior to November 18, 1991, Mr. Brown was contacted by an individual known to him only as "Merle." Apparently, Merle represented the band known as "G.G. Allin and the Murder Junkies" (hereinafter referred to as the group or the band) and was responsible for seeking work for the group. After some discussions, the parties reached a verbal agreement whereby the band would play the second set at the Cafe on November 18, 1991. Flyers for the performance billed the event as the group's only Florida show. All arrangements were verbal, and were conducted between Mr. Brown and Merle. Initially, Mr. Brown expected the band to perform at 11:00 p.m. on the designated date; however, after checking in and reviewing the equipment, the group announced that they would return to perform around 11:30 p.m. During the check in meeting with the band, Mr. Brown advised the group that he did not expect them to damage property belonging to the Cafe. Prior to the group's performance Cafe staff had covered speakers with plastic to protect them from moisture. Also, areas of the stage were lined with plastic. According to Mr. Brown, such precautions are standard when rowdy bands are booked for the Cafe. The speakers, which belong to the Cafe, are expensive and sensitive to moisture. Spills from beverages are not uncommon with certain types of bands. Also prior to the group's performance on November 18, 1991, Mr. Brown prepared a written warning which was posted on the Cafe's door. While there is some dispute as to the exact language of the warning, the purpose was to warn Cafe patrons that the performance (by the band) was expected to contain language and subject matter which might be considered offensive or obscene by some. The exact language of the warning is unknown because shortly after the police arrived on the scene someone removed the sign and its current whereabouts is unknown. That the sign existed is not disputed. Upon his arrival back at the Cafe, the lead singer of the band, G.G. Allin a/k/a Kevin Allin (Allin), appeared for the band's microphone check wearing only a hooded jacket, studded dog collar, and shoes. Shortly after the check, removed his jacket to reveal that he was nude but for the dog collar and shoes. Also at that time the drummer for the band appeared and played in the buff as well. Just prior to, and during the first song performed by the band: Allin broke glass and rubbed it into his head causing a flow of blood which continued to stream down his head throughout his performance; he smashed his microphone into his head to further damage the wounds; he constantly grabbed his penis; and he leaped off the stage, knocked a female patron to the floor, and rubbed his face into her groin area simulating oral sex. The female patron kicked Allin and resisted his advances. At the conclusion of the first song, Allin grabbed a male patron and rubbed his penis against the man's head. During the second song, Allin's acts prompted most of the Cafe's patrons to flee the interior of the licensed premises. Most fled after Allin defecated onto the Cafe floor, urinated into his own hand (so he could drink it), followed by his licking the floor (with the feces) and spitting and throwing it at patrons. When Allin returned to the stage, he stuck his finger into his rectum and rubbed the microphone in the anal area as well. During the remainder of the performance (three or four more songs), Allin continued to dance around the Cafe (encumbered only by the microphone cord), continued to fondle his penis, allowed at least one patron to fondle his penis, and poured himself a beer at the bar. At all times described above, Mr. Buchanan observed the performance and did nothing to deter Allin. During the performance there was a sound and/or light technician above the Cafe's main floor who watched the band and, presumably, assisted. The Cafe has flood lights above the main floor area where Allin performed. When the patrons from the Cafe fled into the street outside, officers in a patrolling police car observed the commotion. Two officers, Browning and Arnott, went to the Cafe to investigate. Upon entering the premises, Officer Browning observed Allin on the floor rubbing his head into glass. Obviously, Officer Browning noted that Allin was au naturale. At that point the band's performance ceased. The term "performance" has been used herein loosely to describe what occurred at the Cafe; such "acts" could hardly be described as entertainment. After taking statements from Cafe patrons, the police officers filed criminal charges against Allin in connection with the incidents described above. Incidental to the arrest, Mr. Brown and Mr. Buchanan voluntarily went to the police station and filed sworn statements regarding the night's activities. While Mr. Buchanan was present behind the bar during the entire performance (approximately twenty-six minutes, six songs) his sworn statement is replete with factual errors regarding what occurred. Additionally, Mr. Brown's sworn police statement incorrectly chronicled the acts which had occurred. Mr. Brown's explanation at the hearing has not been deemed credible nor were his comments regarding the disappearance of the written warning which had been posted on the Cafe's door. At the start of Allin's performance, Mr. Buchanan and Mr. Brown should have provided appropriate security for the Cafe patrons. At least one female patron was touched by Allin and demonstrated her displeasure at such conduct. Volunteer security help (which incidently fled with the others) is not sufficient when a band's performance might be considered to be, and anticipated to be, rowdy (as the plastic suggested). Once the band member Allin exhibited inappropriate conduct (as early as the first two songs), the Cafe owners should have taken measures to stop the performance. Given public sensitivity related to exposure to body fluids, the Cafe owners were negligent in not aborting Allin's act once it began, and in not previewing his proposed performance since they were made aware of the potentially objectionable nature of the show (as evidenced by the warning and Mr. Brown's prior conversations with band members and groupies). Even if Mr. Brown and Mr. Buchanan did not know the full extent of Allin's proposed performance, once he exhibited offensive and lewd conduct, they bore a burden to interrupt the act and take precautionary measures to insure the safety of the Cafe patrons. Mr. Brown's explanation that he was fearful for his own safety (and thus excused from action) has not been deemed credible. At the minimum, Mr. Brown or Mr. Buchanan could have sought assistance from 911 (which was not done). Had the police not arrived when they did, no telling how long the Cafe owners would have allowed Allin to reign. Presumably, until the set contracted for was finished. As it was, Mr. Brown paid the band for a partial performance. Subsequent to the Allin performance, the Cafe owners have drafted a written agreement to attempt to avoid any reoccurrence of an unlawful performance. The Cafe did not prior to, or subsequent to, November 18, 1991, allow an unlawful performance such as that which is described herein to be conducted on its licensed premises. The acts which occurred on November 18, 1991, are the sole basis for disciplinary action against this licensee.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco enter a final order suspending Respondent's alcoholic beverage license for a period of ninety (90) days retroactive to the date the emergency order was entered. DONE and ENTERED this 7th day of January, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this day of January, 1992. APPENDIX TO CASE NO. 91-7697 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: The Petitioner footnoted many of its proposed findings of fact. Such footnotes are not accepted as they contain argument, comment, or irrelevant matters. The proposed findings have been addressed without reference to footnotes as follows: Paragraphs 1 through 5 are accepted. With the deletion of the phrase "Once back on the stage" paragraph 6 is accepted. Paragraph 7 is accepted. With regard to paragraph 8 it is unknown if Merle was, in fact, the band's manager; otherwise, the paragraph is accepted. With the deletion of the second sentence which is rejected as hearsay, paragraph 9 is accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: NOTE: Respondent's proposed findings of fact begin with the numbered paragraph 4. Paragraphs 4 through 8 are accepted. Paragraph 9 is accepted but is irrelevant. Paragraph 10 is rejected as argument or comment. The weight of the credible evidence suggests that, utilizing ordinary care, the Cafe owners should have made inquiries to assure that the band would not perform lewd acts (they were on notice of the band's potential for offensive behavior). The first sentence of paragraph 11 is accepted; otherwise rejected as argument or comment. Paragraph 12 is rejected as contrary to the weight of the credible evidence. Respondent knew the band's performance might be offensive or obscene and failed to use ordinary care to assure it would not be unlawful. Paragraph 13 is accepted to the extent that it states most patrons fled; however, others remained and the Respondent allowed the performance to continue. COPIES TO: Janet E. Ferris, Secretary Department of Business Regulation 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 Richard W. Scully Director, Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Thomas A. Klein Chief Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Howard S. Marks Graham, Clark, Pohl & Jones 369 North New York Avenue Post Office Drawer 1690 Winter Park, Florida 32790
The Issue The issue in this case is whether Respondent violated the Florida Civil Rights Act of 1992 by committing unlawful employment practice (discrimination) on the basis of Petitioner's sex (female), National Origin (Hispanic), handicap when it terminated Petitioner from employment, or on the basis of sexual harassment.
Findings Of Fact As noted above in the Preliminary Statement, the parties have entered into an Agreement of Settlement and Mutual and General Release. Their agreement, in pertinent part, includes the following: "DM, on the one hand, and JBF (under the name Joe Blasco Cosmetics), on the other hand, are parties to proceeding which took place before the State of Florida Division of Administrative Hearings, in Case No. 01- 2328, on about June 28, 2001, with respect to DM's claims of discrimination against JBE (the"Action"). Each of the parties hereto considers it to be in its best interest, and to its advantage, forever to settle, adjust, and comprise all claims and defenses which have been, or could have been, asserted in connection with the employment relationship, the Action, and/or in an other action or proceeding arising out of any employment or other relationship between the parties hereto. The terms of this Agreement are contractual, not a mere recital, and this Agreement is the result of negotiation between the parties, each of whom has participated in the drafting hereof, through each of the parties' respective attorneys. Diana Morales shall dismiss with prejudice Case No. 01-2328 pending before the State of Florida, Division of Administrative Hearings. Diana Morales agrees to execute and file any and all documents necessary to dismiss her claim and advise any and all documents necessary to dismiss her claim and advise any investigative bodies, administrative bodies and/or courts that she has withdrawn, dismissed and resolved any and all claims with Joe Blasco Cosmetics, Joe Blasco Enterprises and/or Joe Blasco." The parties' stipulated settlement agreement constitutes an informal disposition of all issues in this proceeding.
The Issue Whether Petitioner, a member of a protected class, was terminated from his position with the Respondent in retaliation for reporting an unlawful employment practice that occurred in June 1995.
Findings Of Fact Respondent is an "employer" within the definition found in Section 760.02(6), Florida Statutes. Petitioner was an "employee" of the Respondent as defined in Section 760.02, Florida Statutes, and was employed by Respondent for approximately two years. Aaron Rents, Inc., is a national furniture rental and sales company which does business in some locations, including locations in Florida, as Aaron's Rental Purchase. Petitioner, Jerome Carter, was employed by the company at an Aaron's Rental Purchase store in Kissimmee, Florida, from approximately August 2, 1993, until August 19, 1995. Petitioner was initially hired as a delivery driver and progressed to Assistant Credit Manager, Credit Manager, and finally Sales Manager of the Kissimmee store. In August 1995, Petitioner's immediate supervisor was Store Manager Steven Liberti. Liberti reported to District Manager Leonard Alonzo, who was supervised by Florida Regional Manager Joseph Fedorchak. As the Sales Manager, one of Petitioner's most important job duties was greeting and interacting with customers. He typically had the first contact with each customer as they walked into the store, and his demeanor, as he greeted them, influenced whether they felt comfortable and were likely to make a purchase. Petitioner, however, was not appropriately welcoming and friendly. Petitioner's attitude was withdrawn and not very cordial. Petitioner himself admitted that he "never look[s] happy." Petitioner's sullen demeanor was the topic of numerous discussions with his supervisors. In an effort to address the Petitioner's concerns and improve his work performance, the District Manager initiated a conversation to elicit any complaints the Petitioner might have. Petitioner expressed dissatisfaction with his position as a Credit Manager and the length of time since his last raise. As a result, Alonzo transferred the Petitioner to the Sales Manager position and gave him a pay increase. After the transfer, however, Petitioner's demeanor did not brighten. Concerned, the District Manager again inquired about the cause of the Petitioner's apparent unhappiness. Petitioner merely acknowledged that his attitude needed improvement and promised that he would "straighten up" and "be more outgoing." Each time they had that discussion, however, Petitioner's behavior would improve for only a short time, then return to his previous melancholy. The Store Manager also talked to Petitioner at least twice about his attitude toward his job, telling him that he needed to smile more often. Although the Petitioner's behavior would temporarily change after these discussions, Liberti observed that the improvement lasted only about 24 hours. In August 1995, sales at the Kissimmee store were at an all-time low. Petitioner's supervisors attributed the location's failure to meet its sales goals at least in part to the Petitioner's inability to interact with customers and make sales. After their repeated discussions with him did not result in lasting improvement, the Managers felt they had no choice but to terminate Petitioners employment. Fedorchak concurred that, because the Petitioner could not seem to display an appropriate attitude and demeanor for a Sales Manager, his services were no longer needed. Petitioner admits that when he was discharged, the reason that he was given was that he "did not look happy." Approximately two months before Petitioner left the Kissimmee store, one incident with racial overtones was brought to the Store Manager's attention. In June 1995, store employees Mark Mars and/or Jesus Rivera reported to Liberti that another store employee, Michael Flowers (who is white), had used the term "nigger" during a discussion with store employee Kenny Tatum (who is black). Liberti informed Alonzo about the complaint and an investigation was conducted. When the Managers spoke with Tatum, he explained that Flowers had used the expression "nigger, please," which was slang for "you've got to be kidding," during a conversation between the two men. He assured them that he had not been offended. Nevertheless, because Alonzo and Liberti felt it was highly inappropriate for Flowers to use such language in the store, they gave him a reprimand and warning. In his deposition testimony, Petitioner recalled learning about the occurrence from several other employees. Petitioner did not personally witness it or hear Flowers use the offensive term, but merely claimed to have reported to Liberti what he had been told. According to Petitioner, Liberti responded to this information by affirming that such behavior would not be tolerated. Petitioner admits that he was never told, and had no reason to believe, that Aaron's authorized, encouraged, or instructed Flowers to use racially derogatory language in the store or that he had done so on Aaron's behalf. When Petitioner allegedly reported the occurrence to Liberti, he only believed that a co-employee had made an inappropriate comment at work. The incident involving Flowers and Tatum was unrelated to Petitioner's discharge. None of the three individuals involved in the decision to discharge Petitioner associated him with the incident or any opposition to it. Liberti does not recall discussing the incident with Petitioner, and neither Alonzo nor Fedorchak knew that Petitioner even claimed to have had some involvement in reporting it until after he was discharged. Moreover, none of the conversations among the three about their decision to terminate Petitioner included any reference to Flowers' comment or the subsequent events. No one who opposed the incident suffered any adverse consequences. Rivera and/or Mars reported the comment, and neither of them experienced any unfavorable employment actions as a result.
Recommendation Based upon the testimony and evidence submitted on the record in the formal hearings on this matter and by application of the relevant or governing principles of law to the findings of facts established on such record, it is RECOMMENDED: That the Florida Commission on Human Relations issue a Final Order which dismisses the Charge of Discrimination. DONE AND ENTERED this 13th day of November, 1998, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 1998. COPIES FURNISHED: Jerome L. Carter, Sr. 2188 McClaren Circle Kissimmee, Florida 34744 Daniel F. Piar, Esquire Kilpatrick Stockton LLP 1100 Peachtree Street, Suite 2800 Atlanta, Georgia 30309-4530 Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149
The Issue Whether Respondent, C and C Enterprises, Inc. (“C and C Enterprises”), discriminated against Petitioner, Leslie D. Richardson, in violation of the Florida Human Rights Act and, if so, what relief should be granted.
Findings Of Fact Mrs. Richardson is a Caucasian female who at all times relevant to this proceeding was an employee of C and C Enterprises, Inc., and worked at the Restaurant. Mrs. Richardson primarily served as a bartender, with most of her shifts placing her at the bar located outside the Restaurant on a deck or patio adjacent to the Restaurant. Sandy Bottoms is a family oriented restaurant located in Fernandina Beach, Florida. It has normal restaurant seating, plus two bars. One bar is located inside the restaurant; the other is located outside. The outside bar has fairly tight quarters, allowing only one person comfortably behind the bar at a time. The outside bar is frequented by customers more than the inside bar, so working outside is more lucrative for the bartenders. Mrs. Richardson began working at Sandy Bottoms in January 2013. She was hired as a bartender and, by most accounts, was very proficient at her job. She quickly chose the outside bar as her preferred spot when working and had many regular customers. Mrs. Richardson was even featured in a local newspaper article in January 2015, wherein she was touted as a particularly well-liked bartender. When she began working at Sandy Bottoms, Mrs. Richardson formed good relationships with its owner, Claude Hartley, and her fellow workers. She also had a good relationship with the manager, Russell McNair, and with the Restaurant’s bookkeeper, Natalie Thelemann. Mrs. Thelemann is Claude Hartley’s daughter. According to Mrs. Richardson’s testimony at final hearing, she began to have “issues” with Mr. Hartley beginning about a year into her tenure at the Restaurant, i.e., around “early to mid 2014.” Conversely, in her Employment Charge of Discrimination, the first alleged incident she reported occurred in “late winter-early spring 2015.” Mrs. Richardson generally claims Mr. Hartley sexually harassed her and even perpetuated potentially criminal or tortious touching. In her complaints to FCHR, Mrs. Richardson reported incidents which allegedly occurred between August 2015 and November 2015. She maintains that Mr. Hartley continued to act inappropriately towards her until her employment ended on November 2, 2015, and even once after she left Sandy Bottoms. Mr. Hartley denies there was any sexual harassment or inappropriate touching at any time during Mrs. Richardson’s employment at Sandy Bottoms. Neither Mr. McNair nor Mrs. Thelemann saw any such things occurring while Mrs. Richardson was working at Sandy Bottoms. Mrs. Richardson’s employment ended abruptly on November 1 or 2, 2015. On Sunday, November 1, 2015, she had shown up at work for her regular shift. She clocked in a couple of minutes late that day, but she blames the Restaurant’s timeclock for that. The time on that clock (referred to by staff as “Aloha time”), was always, according to Mrs. Richardson, five or so minutes ahead of the “actual” time. Mrs. Richardson was late for her shifts approximately 67 percent of the time, but she says she would sometimes work a bit around the Restaurant before clocking in, even if she got there on time.1/ In light of credible testimony from the manager and bookkeeper that all personnel clocked in immediately upon arrival, Mrs. Richardson’s testimony is not persuasive. The only other non-manager employee who testified, Danielle Guidry, did not corroborate Mrs. Richardson’s testimony concerning how staff clocked in for work. After clocking in late on November 1, 2015, Mrs. Richardson took a telephone call from her mother, who was ill at the time. She walked around outside during the telephone call. When she came back to the outside bar area to begin her shift, she was told that she would be working the inside bar on this day. Apparently another bartender, who had prepared the outside bar for opening in Mrs. Richards’s absence, asked to staff the bar even though she had been scheduled to work the inside bar. The outside bar is generally busier and generates more tips than the inside bar. Mr. McNair granted the other bartender’s request because Mrs. Richardson was late for her shift. According to the Restaurant’s Server Operational Manual, a server/bartender should arrive at least 10 minutes prior to their shift. Otherwise, the shift would “go up for auction” to another employee. Upon hearing the news that she had to work the inside bar, Mrs. Richardson became irate. She stormed into the restaurant and angrily confronted Mr. McNair, but he stood by his decision. When Mr. McNair refused to budge, Mrs. Richardson cursed at him and exited the Restaurant loudly, all the while with customers sitting within hearing range. Mrs. Richardson went home, where she received a call from Mr. Hartley within half an hour or so. Mr. Hartley asked her to come back to the Restaurant and do her shift, but Mrs. Richardson refused. Mr. Hartley discussed the situation with his “management team” which included his wife, Rita Hartley, Mr. McNair, and Phil Thelemann, another manager (who is also Mr. Hartley’s son-in-law). The consensus was that Mrs. Richardson had abandoned her job by walking out without notice or cause. Mr. Hartley then called Mrs. Richardson again, this time leaving her a message wherein he told her not to come in the next day as scheduled. It was the decision of management that Mrs. Richardson’s employment with Sandy Bottoms was over. Mr. Hartley left the following message on Mrs. Richardson’s phone: “Leslie, this is Claude. There’s no sense in coming in tomorrow. My family is ‘bout to kill me. And, uh… I’m sorry. Call me and talk to me. I’ll help you out if I can. Goodbye.” Mrs. Richardson considers that message evidence that Mr. Hartley’s family was angry with him because of his infatuation with her. No competent or persuasive evidence was presented to support her theory. Mr. Hartley said the message reflected the fact that his family was upset with him for trying to preserve Mrs. Richardson’s job at Sandy Bottoms despite the team consensus that she had abandoned her position. His explanation seems more credible. Mr. Hartley and other Restaurant employees soon began hearing rumors that Mrs. Richardson was planning to file a lawsuit against Sandy Bottoms alleging wrongful termination. When she came in to pick up her final paycheck a week or so after being let go, Mr. Hartley asked Mrs. Richardson if she was planning to sue him or the Restaurant. Mrs. Richardson was friendly (or at least “not unpleasant”) and indicated she would not “do something like that.” It does not appear that anyone at the Restaurant knew Mrs. Richardson had actually hired a lawyer until she had filed her complaint with FCHR. Mrs. Richardson struggled to find good employment after leaving Sandy Bottoms. She worked for two other restaurants tending bars, but neither job was as lucrative as her bartender position at Sandy Bottoms. She believed some restaurants refused to hire her because she had been fired by Sandy Bottoms, but could identify only one potential employer who brought up her tenure at Sandy Bottoms. That person did not testify at final hearing to confirm or deny Mrs. Richardson’s contention. Mrs. Richardson is the sole breadwinner for her family. After losing her job at Sandy Bottoms she was evicted from her home and had to move to Yulee, a less attractive community off the island of Fernandina Beach. She is now working as a housekeeper. Her husband, who was a frequent customer at Sandy Bottoms while she was working there, is disabled and cannot work. Ultimately, Mrs. Richardson did hire legal counsel and file a complaint against Sandy Bottoms. In her “Employment Charge of Discrimination,” Mrs. Richardson alleged a number of instances wherein Mr. Hartley had acted improperly towards her. The majority of the allegations could not be substantiated or corroborated by any other witness. Those “he said - she said” allegations will only be referred to in passing and as necessary to elaborate on the two somewhat verifiable allegations. The two alleged incidents for which other eyewitness testimony exists are generally described as follows: On or about October 4, 2015, Mrs. Richardson was working behind the outside bar. Mr. Hartley, who kept a bottle of port wine in a cooler behind the bar for his personal consumption, came behind the bar. Mrs. Richardson felt a bottle being shoved between her legs, scaring her and making her very uncomfortable. Mr. Hartley supposedly laughed and asked a customer “wasn’t that funny?” or “isn’t that fun?” In the late winter or early spring of 2015, Mr. Hartley approached Mrs. Richardson as she was working at the bar and – staring at her breasts – said, “It’s not that cold in here.” A customer sitting at the bar overheard the statement. As to the first incident, Mrs. Richardson’s description in her diary of allegations said Mr. Hartley “shoved the neck of the bottle between my legs from behind.” Despite the egregiousness of the allegation, whether it occurred exactly as alleged is unclear from the evidence. Her testimony about the event at final hearing was wanting. Mrs. Richardson testified as follows, first in response to questions from her counsel, then from Respondent’s counsel: Q: Did Mr. Hartley shove a bottle of port into your genital area? A: Yes, the very top of my legs where my shorts were, yes. Q: Okay. A: My shorts were wet from it, and my shorts were not short shorts, but they were short enough to be to the upper part of my legs, not my calves. Transcript, page 59. Q: You stated on direct that you were –- you felt degraded [by the bottle incident]. A: Yes. Q: Can you explain what you mean by degraded? A: I felt like an idiot. I mean that I couldn’t believe that he had the nerve to come behind the bar and stick a bottle of port anywhere on me. It wouldn’t have been funny, let alone where it was. Transcript, pp. 100-101. Though it was suggested a number of times, Mrs. Richardson’s testimony never directly alleged that Mr. Hartley put the bottle against her vagina or anus, only that he poked her with the bottle in some fashion. In fact, Mrs. Richardson never specified exactly where the bottle had touched her body. Mr. Hartley testified he went behind the bar on the day of the incident to retrieve his bottle of port. When he reached down to pick up the bottle cap which he had dropped, he intentionally touched the cold bottle to Mrs. Richardson’s leg. It was meant to be playful, a joke, consistent with his normal behavior towards her – and like her playfulness with him. He touched the cold bottle to her bare leg, causing her to jump. There were many other people in the restaurant at the time. Mr. Hartley’s testimony seemed credible, even though there was some testimony from others that he generally asked the bartender to pour his port wine rather than getting it himself. He maintains that on the day in question the bar was quite busy and he did not want to distract Mrs. Richardson from her duties. The perceptions of the two other people in attendance must also be considered. First, a long-time friend of Mrs. Richardson, Deborah Botke, was sitting at the bar. She saw Mr. Hartley’s arm move toward Mrs. Richardson’s legs. From her vantage point, she could not actually see below Mrs. Richardson’s waist, but from the angle of Mr. Hartley’s arm-–and Mrs. Richardson’s reaction–-Ms. Botke presumed that the man had poked the bottle “in the direction of her private regions.” She said, “I saw him take it and shove it like this. I don’t know where it landed.” She did note that Mr. Hartley was approximately waist-high to Mrs. Richardson, i.e., he did not bend over so as as to touch her ankle or lower leg. Ms. Botke was a credible witness. She holds a very significant security clearance at her job managing all the navigational equipment for the U.S. Navy’s Ohio-class ballistic submarines. It is unlikely she would perjure herself in a proceeding such as this and put her clearance at risk. It is clear she saw something and was convinced that Mr. Hartley acted improperly, even if she could not actually see what he did. To the detriment of her believability, she is a close friend of Mrs. Richardson and obviously wants to support what her friend alleges. And, she has had some past trouble with Sandy Bottoms. She was once removed from the Restaurant by the police when she became extremely drunk after breaking up with a boyfriend. All in all, Ms. Botke’s belief that Mr. Hartley utilized the bottle in a sexual manner is not proven by a preponderance of the evidence. Ms. Botke also provided hearsay testimony concerning other allegations Mrs. Richardson had made concerning Mr. Hartley, but those allegations were not corroborated by other competent evidence. For example, she suggested that security cameras at the Restaurant were installed for the primary purpose of allowing Mr. Hartley to remotely look at Mrs. Richardson’s breasts. In fact, Ms. Botke says that Mrs. Richardson came home crying one night when she (Richardson) discovered that fact about the cameras. No persuasive evidence was presented, however, to establish the legitimacy of that allegation. Also, Ms. Botke said that Mr. Hartley appeared to “make contact with” Mrs. Richardson unnecessarily when he went behind the bar one time. Mrs. Richardson acknowledged the area behind the bar was very small and it was difficult for two people to be there at one time. From the totality of the evidence, it is certain that Mr. Hartley touched a cold bottle of port wine to Mrs. Richardson’s body. It cannot be confirmed where on her body the bottle touched Mrs. Richardson, i.e., whether it was her backside, her crotch, or on one of her legs. Nor can it be reasonably ascertained whether Mr. Hartley’s purpose was playful or sexually motivated. Regarding the comments Mrs. Richardson made about the security cameras, again there was no corroboration. Mr. Hartley and Mr. McNair say the cameras were installed for security purposes only. One reason the cameras were required was to make sure staff were not drinking on the job and/or drinking without paying for the drinks. In fact, in September 2015, the cameras recorded Mrs. Richardson taking alcohol “shots” at the bar during one of her shifts. She was reprimanded and written up for the infraction. As to the second incident, i.e., that Mr. Hartley allegedly made inappropriate comments while looking at Mrs. Richardson’s breasts, the evidence is even more scant. At final hearing, Mrs. Richardson’s attorney asked if Mr. Hartley had made a specific reference to her nipples in late winter- early spring 2015. She replied, “Yes sir.” In her written list of allegations given to FCHR, she said Mr. Hartley said, “It’s not that cold in here” in reference to her nipples while looking at her breasts. Mr. Hartley testified only that he did not make any such comment concerning Mrs. Richardson’s breasts or nipples. There was another person, Robert Pelletier, sitting at the bar at the time of the alleged incident. Mr. Pelletier, who is a managing broker for a real estate firm, is also a licensed attorney. At the time of the alleged incident, he had visited the bar on half a dozen occasions. He was sitting at the inside bar when an “older man” went behind the bar and said something to Mrs. Richardson about her nipples being hard. He found the comment to be very offensive. He was told by Mrs. Richardson that the man was the owner of Sandy Bottoms. At final hearing Mr. Pelletier could not say whether Mr. Hartley, who was sitting some six feet away from him, was the man he saw speaking to Mrs. Richardson that day in the bar. In an affidavit he prepared in May 2016, Mr. Pelletier did not mention that the man had commented specifically about Mrs. Richardson’s nipples. Nor did he mention that the man had gone behind the bar to talk to Mrs. Richardson. The only consistency between Mr. Pelletier’s testimony and his affidavit was that he heard something inappropriate said to Mrs. Richardson as he sat at the bar. By his own admission, Mr. Pelletier’s memory of the event was cloudy. No one else witnessed this encounter. It happened very quickly, according to Mr. Pelletier, and was not that memorable an event. While it is certainly possible that the event happened exactly as Mrs. Richardson remembers it, there is not a preponderance of evidence to that effect. Besides the two incidents discussed above, Mrs. Richardson also alleges a history of unwanted advances and comments from Mr. Hartley. She describes incidents where she felt like Mr. Hartley’s interactions with her or comments to her were sexual in nature. Both Ms. Botke and Ms. Guidry reported some other general comments allegedly made by Mr. Hartley that Mrs. Richardson had reported to them, but their testimony in that regard was not particularly persuasive. Mr. Hartley describes the same incidents as completely non-sexual in content or intent. Ms. Guidry had worked at, and been fired from, Sandy Bottoms several times. She once heard Mr. Hartley tell Mrs. Richardson that he wanted to buy her a red dress; that statement seemed to make Mrs. Richardson uncomfortable. Ms. Guidry thought Mr. Hartley hung around Mrs. Richardson too much. However, she never saw anything untoward happen between the two. Had she seen something improper happen, she would have reported it to someone. She never reported anything to anyone. Ms. Botke said that Mrs. Richardson would complain to her about Mr. Hartley as the two women sat on their decks enjoying a drink after work. None of those complaints, however, were substantiated by other evidence. Watching the demeanor and apparent sincerity of the two (Richardson and Hartley) at final hearing, it is quite possible each is telling the truth as he or she believes it to exist. That is, Mrs. Richardson sincerely believes that some of Mr. Hartley’s actions and words were provocative and meant to be sexual in nature. Mr. Hartley honestly believes that he was joking with Mrs. Richardson in a friendly and joking fashion, never crossing the line into inappropriate behavior. Mrs. Thelemann believed she and Mrs. Richardson got along quite well. They both had children and would talk about “kid things” with each other. Mrs. Thelemann saw her father (Hartley) and Mrs. Richardson talking quite frequently but never saw anything improper or questionable. Mrs. Richardson told Mrs. Thelemann once that Mr. Hartley was “an old flirt,” but not in a complaining way. Once, when Mrs. Richardson was distraught about being “written up” for drinking liquor while on duty, Mrs. Thelemann consoled Mrs. Richardson and let her know all was well. Mrs. Thelemann said Mrs. Richardson was, after all, a good employee. Another time, when Mrs. Richardson had to go visit her ailing mother, Mrs. Thelemann and her parents offered Mrs. Richardson money and the use of one of their cars. Mrs. Thelemann, an accountant, offered to help Mrs. Richardson with some IRS tax issues. And Mr. Hartley offered to loan Mrs. Richardson some money to buy Capri pants to replace short pants which had been deemed inappropriate. In short, there appears to have been a friendly relationship between Mrs. Richardson and the Hartley family. Speaking of inappropriate shorts, one of Mrs. Richardson’s unverified allegations had to do with Mr. Hartley allegedly telling her to turn around and bend over so he could inspect her shorts. Someone had complained that she and another waitress, Brittany, were wearing shorts that were too revealing. She says Mr. Hartley directed her to bend over so he could tell if the shorts were okay. At some point, Mrs. Thelemann told Mrs. Richardson that the shorts she was wearing on a particular day were too short. Later, Mrs. Richardson came to Mrs. Thelemann and said Mr. Hartley had inspected the shorts and overruled her, saying the shorts were okay. Mrs. Thelemann was angry that her father would undercut her authority, but there was no mention in the conversation that Mr. Hartley had acted inappropriately towards Mrs. Richardson. Mr. Hartley remembers visually inspecting Mrs. Richardson’s shorts, but not in a suggestive or inappropriate way. Again, there is no independent corroboration of either person’s testimony. Mrs. Richardson had a fairly clean record during her time at Sandy Bottoms. Besides the aforementioned write-up for drinking on the job, she was written up once for failing to timely enter drinks into the Point of Sale (“POS”) system. It is imperative that wait staff and bartenders timely enter drink orders into POS so that they do not forget to do so (and, apparently, to prevent them from giving away drinks). Mrs. Richardson had not timely entered some orders into the POS system and was written up for it. She signed the disciplinary action form, but wrote, “I did not do anything wrong on Sunday.” She maintains she entered the drinks as soon as practicable based on how busy she was with customers at the time. Mrs. Thelemann said that drinks actually were supposed to be entered into POS prior to being poured. Mrs. Richardson was also late for her shifts fairly frequently, roughly two thirds of the time. Otherwise, she was a model employee. Despite the numerous allegations in her written complaint, Mrs. Richardson noted only one time that she complained to management about specific harassment. She purportedly told Mr. McNair about the incident with the port wine bottle. She also said she complained to Mr. McNair at least ten other times about Mr. Hartley. Mr. McNair, however, does not remember her coming to him with that complaint (or any other, for that matter). Mrs. Richardson did express hesitation about going to management, as Mr. Hartley was the owner and ultimate authority at the Restaurant. Mrs. Richardson contends Mr. McNair is simply afraid of testifying against Mr. Hartley, but inasmuch as Mr. Hartley no longer owns the Restaurant, that contention loses credence. Besides, Mr. McNair appeared very credible while testifying at final hearing. Mrs. Richardson suggested that Mr. McNair lied on his affidavit, which had been sworn to while he was still an employee of Sandy Bottoms. Now, she reasons, he must maintain his lie in order to avoid perjuring himself. While there is logic to the reasoning, there is no evidence to support the contention. At best, the evidence at final hearing supports a finding that: 1) Mr. Hartley made an inappropriate comment about Mrs. Richardson’s breasts; and 2) Mr. Hartley touched Mrs. Richardson’s body with a wine bottle. Neither of these incidents rises to the level of sexual harassment. Mrs. Richardson also claimed retaliation by her employer, specifically that she was fired from her job because of the complaints she made against Mr. Hartley. There is no persuasive evidence in the record to support that claim. In fact, it is clear that Mrs. Richardson voluntarily walked away from her job–-at least for her November 1, 2015, shift--and was thus deemed to have abandoned her position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations Issue a Final Order finding that Respondent, C and C Enterprises, Inc., did not discriminate against Petitioner, Leslie Richardson. DONE AND ENTERED this 10th day of May, 2017, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 10th day of May, 2017.
The Issue The issue before DOAH is a determination of the amount of attorney’s fees and costs to be awarded for the administrative proceedings in Brooklyn Luncheonette, LLC v. Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, Case No. 09-1973 (DOAH October 23, 2009).
Findings Of Fact On October 23, 2009, the undersigned ALJ of DOAH issued a Summary Final Order in the case of Brooklyn Luncheonette, LLC v. Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, Case No. 09-1973 (DOAH October 23, 2009), in which it was held that Florida Administrative Code Rule 61A-3.0141(2)(a)2., “promulgated by the Department of Business and Professional Regulation, and its directive that the square footage making up the licensed premises of an SRX license be “contiguous,” constitutes an invalid exercise of delegated legislative authority “that cannot be relied upon by Respondent to deny the issuance of an SRX license to Petitioner.” No appeal was taken of said Order and the license was issued. In the Joint Stipulation Regarding Attorney’s Fees, Respondent waived its right to demonstrate that its actions were justified or that special circumstances exist which would make the award unjust. Based on a review of the underlying file, the affidavits of the attorneys filed with the petition, the Stipulation filed herein, and the procedure for calculating the lodestar figure set forth in Rowe, Harold F. X. Purnell and Maggie M. Schultz’s attorney’s fees totaled $16,301.25. These fees are determined to be reasonable, and no adjustment is warranted. Based on the affidavits and Stipulation filed herein, Petitioner has established that the costs of pursuing the administrative proceeding disputing the validity of the rule challenged totaled $408.47.
The Issue Whether Petitioner has been the subject of an unlawful employment practice.
Findings Of Fact On May 18, 1992, a Notice of Hearing was issued setting the date, time, and place for the formal administrative hearing. The Notice of Hearing was sent by United States mail to the Petitioner and his counsel at the addresses listed in the Petition for Relief and accompanying information. Petitoner's attorney appeared at the hearing. However, even though Petitioner received adequate notice of the hearing in this matter, the Petitioner did not appear at the place set for the formal hearing at the date and time specified on the Notice of Hearing. The Respondent was present at the hearing. The Petitioner did not request a continuance of the formal hearing or notify the undersigned or his attorney that he would not be able to appear at the formal hearing. Petitioner was allowed fifteen minutes to appear at the hearing. As a consequence of Petitoner's failure to appear, no evidence was presented to support Petitioner's case. Specifically, no evidence of discrimination based on handicap or race was forthcoming. Therefore, Petitioner's attorney was advised that the Petition for Relief would be dismissed and a Recommended Order entered recommending the Commission do likewise.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Florida Commission on Human Relations enter a Final Order dismissing the Petition for Relief. DONE and RECOMMENDED this 14th day of September, 1992, at Tallahassee, Florida. COPIES FURNISHED: Robert Allen, Esquire 322 West Cervantes Street P.O. Box 12322 Pensacola, Florida 32581 Joseph L. Hammons, Esquire 17 West Cervantes Street Pensacola, Florida 32501 Margaret A. Jones Agency Clerk Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, FL 32399-1570 Dana Baird General Counsel Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, FL 32399-1570 DIANE CLEAVINGER, Hearing Officer Division of Administrative Hearings The De Soto 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 September, 1992.
The Issue Whether Com-Jet Corporation (Respondent) violated the Florida Civil Rights Act by unlawfully discriminating against Gladys V. Fleites (Petitioner or Ms. Fleites) on the basis of her alleged disability.
Findings Of Fact Com-Jet Corporation repairs airplanes through its division Aircraft Systems (Respondent). Petitioner was employed as an aircraft mechanic by Respondent between June 30, 2008, and April 8, 2011. At the times relevant to this proceeding, Osvaldo Guillam was also employed by Respondent and was described as Petitioner's common law husband or significant other. Mr. Guillam and Petitioner were hourly employees. At all times relevant to this proceeding, Respondent's policy was to require each hourly employee to punch-in his or her time card when the employee arrived at work and to punch-out his or her time card when the employee left work. If an employee could not punch his or her time card because of a physical limitation, the employee was to have a supervisor punch the card for him or her. In February 2011, Melanie Alonso, Respondent's director of human relations, discovered that Mr. Guillam was punching-in and punching-out Petitioner's time card. On February 9, 2011, Ms. Alonso met with Mr. Guillam and Petitioner and told them that each employee was required to punch-in and punch-out his or her own time card. Ms. Alonso told them that one employee could not punch another employee's time card. Petitioner admitted to violating the time card policy and apologized for having done so. At no time did Petitioner indicate that she could not punch her time card due to a physical limitation. Later that day, Ms. Alonso met with all of Respondent's hourly employees and reiterated the company policy pertaining to time cards. Petitioner has had a problem with her left ankle since a fall in 2001. At the times relevant to this proceeding, Petitioner experienced pain while walking and had difficulty standing or bending. Petitioner worked at a table in a seated position. Petitioner did not have a noticeable limp. While Petitioner wore an elastic band on her ankle, that band was covered because Petitioner wore pants to work with a sock over the band. Respondent's management did not know that Petitioner had difficulty with her ankle. Petitioner was scheduled to undergo arthroscopic surgery on her left ankle on March 31, 2011. In conjunction with that surgery, Petitioner requested eight days of leave, which was all the annual leave she had. There was a conflict in the evidence as to what Petitioner told Respondent's management about the leave. The greater weight of the credible evidence established that Petitioner did not tell Respondent's management that she was scheduled to have surgery on her left ankle. The ankle surgery was postponed due to an insurance coverage issue. After finding another surgeon, Petitioner rescheduled the surgery. Respondent's work area has security cameras that monitor activities in the work area. Ms. Alonso reviewed the videos from those cameras after a vacuum cleaner was stolen from the work area in April 2011. During the course of that review, Ms. Alonso observed that Mr. Guillam was punching-in and punching-out two time cards. On April 8, 2011, Ms. Alonso confronted Petitioner and Mr. Guillam. Both admitted that Mr. Guillam had been punching Petitioner's time card. Ms. Alonso terminated the employment of Mr. Guillam and Petitioner on April 8, 2011, for violating the company's time card policy. There was no evidence that Ms. Alonso knew of Petitioner's ankle problems when she terminated her employment.
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 adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order dismiss with prejudice the Petition for Relief filed against Com-Jet Corporation by Gladys V. Fleites. DONE AND ENTERED this 3rd day of September, 2013, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of September, 2013. COPIES FURNISHED: Violet Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Anthony Joseph Perez, Esquire Law Office of Alfredo Garcia-Menocal, PA Suite 214 730 Northwest 107th Avenue Miami, Florida 33172 Paul F. Penichet, Esquire Paul F. Penichet, P.A. Suite 907, Biscayne Building 19 West Flagler Street Coral Gables, Florida 33130-4400 Cheyanne Costilla, General Counsel Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue Whether the registration of the Respondent, Betty Lou Haber, license #0034988 should be revoked or suspended, or whether Respondent should be otherwise disciplined.
Findings Of Fact An administrative complaint was filed by the Petitioner, Florida Real Estate Commission, on September 29, 1978, seeking to revoke or suspend or otherwise discipline Respondent Haber. The administrative complaint charged that the licensee was presently confined in a state prison. Respondent requested an administrative hearing. A stipulation was entered by Barry A. Cohen, Esquire, the attorney for Respondent, confirming that Respondent Haber was and had been continuously confined in the Broward Correctional Institution since August 16, 1977. Said stipulation is attached hereto and made a part hereof. Prior to the hearing a letter was received by the Petitioner, Florida Real Estate Commission, advising the Petitioner that Respondent did not intend to proceed to hearing and requesting Petitioner to close the matter. The Division of Administrative Hearings was not so notified. A copy of said letter is attached hereto and made a part hereof. Petitioner presented the aforesaid stipulation and aforesaid letter and a witness at the hearing. The witness, Martha Iglesias, Inmate Records Supervisor for the Broward Correctional Institution, testified that Respondent Haber was an inmate of said institution, having been found guilty by a jury of First Degree Murder in Case #75-518 in the Circuit Court in and for Hillsborough County, Florida, and sentenced to be imprisoned in the State Penitentiary for a period of her natural life.
Recommendation Revoke the non-active salesman license held by the Respondent, Betty Lou Haber. DONE and ORDERED this 18TH day of April, 1979, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Manuel E. Oliver, Esquire 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Barry A. Cohen, Esquire 100 Twiggs Street, Suite 4000 Tampa, Florida 33602 DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32301 (904) 488-9675
