The Issue Whether Respondent, Arnold I. Franco (Respondent), violated applicable law enforcement standards by improperly exhibiting a firearm on one or more occasions in the presence of one or more persons in a rude, careless, angry, or threatening manner, not necessary for self-defense and, if so, what is the appropriate penalty.
Findings Of Fact Respondent was certified as a corrections officer in the State of Florida by the Department on December 16, 1998, and issued corrections certification #183395. The Department is the state agency responsible for enforcing standards applicable to correction officer certificates, pursuant to section 943.12 and chapter 120, Florida Statutes. Petitioner began his law enforcement career in corrections on July 13, 1998, and is currently employed as a certified correctional sergeant at Hernando Correctional Institution. Respondent is married to Lidie Franco, and has two adult daughters, Danielle Franco and Laura Franco, and a stepdaughter, Alicia Weierheiser. At the time of the incidents giving rise to the Complaint, Ms. Weierheiser was married to Brent Courtney, and she had a one-year-old daughter, Cecelia, who was not Brent Courtney’s child. Mr. Courtney had a history of physically abusing both Ms. Weierheiser and her young daughter, Cecelia. Both Respondent and his wife were aware of Mr. Courtney’s abusive behavior. Despite Mr. Courtney’s abusive behavior, no matter how severe, Ms. Weierheiser would return to Mr. Courtney. On the afternoon of January 28, 2016, Mr. Courtney called Mrs. Franco on her cell phone while Mrs. Franco was at home with Respondent. She put her cell phone on speaker mode and both she and Respondent heard Brent Courtney state, “If you don’t come get your daughter and your f--king scumbag retarded granddaughter, I’m going to kill them both.”2/ Upon hearing the threat, both Respondent and his wife believed that their daughter and granddaughter were in danger. Mr. Courtney’s threat was credible and he had the present ability to carry out his threats. At the time, Mr. Courtney, Ms. Weierheiser, and her daughter lived in a house they shared with William and Jacqueline Perkins located on Waycross Drive in Spring Hill, Florida, located about 10 to 15 minutes from Respondent’s home. In a decision he later regretted, Respondent and his wife decided that Respondent should remain home and go to work on his evening shift, and that Mrs. Franco and their daughter, Danielle, would go and retrieve Ms. Weierheiser and Cecelia. When Mrs. Franco and Danielle arrived and went inside the house on Waycross Drive, Mr. Courtney and a male accomplice physically attacked Danielle, Mrs. Franco, and Ms. Weierheiser in the grandchild’s presence. The male accomplice grabbed Danielle by the neck and held her against the wall. When Ms. Weierheiser attempted to help Danielle, Mr. Cortney began hitting Ms. Weierheiser. When Mrs. Franco attempted to break it up, Mr. Courtney swung a metal pipe at her head. When he missed, the metal pipe stuck in the wall. During the struggle, Mrs. Franco had an opportunity to call 911, after which Mr. Courtney and his accomplice ran away before the police arrived. Once the police arrived, they stayed at the house on Waycross Drive for several hours taking statements and allowing Ms. Weierheiser an opportunity to gather her and her child’s belongings. The events lasted through the night of January 28, 2016, until approximately 1:00 a.m. on January 29, 2016. At the suggestion of the police, Ms. Weierheiser and her daughter went with Mrs. Franco and Danielle to the Franco’s residence for safety. After everyone arrived at the Franco residence, Mrs. Franco called Respondent and asked him to leave work early and come home to be with the children and ensure their safety because she had to go to work. Respondent agreed and arrived home at approximately 2:00 or 3:00 a.m. that morning, January 29, 2016. When he arrived home, he saw that Danielle and Ms. Weierheiser had been beaten and bruised. Mrs. Franco told Respondent that Mr. Courtney had attempted to kill her with a metal pipe. Respondent remained awake for the remainder of the night while his wife was at work and his children slept because he knew of Mr. Courtney’s potential for violence and was worried that Mr. Courtney might come to the Franco home to exact vengeance upon the family. Respondent kept vigilance over his children until Mrs. Franco returned from work at approximately 8:00 a.m. on January 29, 2016. Later that day, child protective investigator (CPI) Jeannie Pastore with the Florida Department of Children and Families (DCF) completed a face-to-face interview with Ms. Weierheiser at Respondent’s home. CPI Pastore initiated and Ms. Weierheiser agreed to a formal safety plan for Cecelia’s safety, which required Ms. Weierheiser to remain in the Franco home and not return with the child to the residence she shared with Mr. Courtney. At the time, Mr. Courtney had an active warrant for his arrest, as did another roommate at the house, Mr. Perkins. CPI Pastore warned the Franco family that if the safety plan was broken, or if Ms. Weierheiser returned to the home she shared with Mr. Courtney, DCF would remove Cecelia and place her in state care. CPI Pastore also asked Respondent and his wife to notify her and law enforcement if the Safety Plan was broken or if Mr. Courtney contacted anyone in the family. That night, shortly after midnight while the Franco family slept, Ms. Weierheiser secretly left the Franco residence with Cecelia. The next morning, January 30, 2016, upon discovering that Ms. Weierheiser and Cecelia were missing, Mrs. Franco contacted DCF and law enforcement and advised that Ms. Weierheiser had left the Franco residence with her grandchild sometime during the night and their whereabouts were unknown. DCF personnel called 911 and the Sheriff’s dispatch to report that Cecelia’s safety was in extreme danger. After that, Mrs. Franco, the Sheriff’s office, and DCF personnel attempted to locate Ms. Weierheiser and Cecelia, but could not find them. Respondent became actively involved with searching for Cecelia and Ms. Weierheiser between 11:00 a.m. and 1:00 p.m. on January 30, 2016, by canvassing the neighborhood. While at first unsuccessful, Respondent then waited near the house on Waycross Drive. His daughter, Danielle, in her own car, joined him in his search. Finally, they noticed Ms. Weierheiser’s vehicle in the area. Although he could not recognize other passengers in the vehicle because of tinted windows, Respondent could tell that Ms. Weierheiser was driving. When Ms. Weierheiser saw Respondent, she “took off” and began driving recklessly. Respondent followed closely behind, believing that both Mr. Courtney and Cecelia were also in the vehicle. Respondent pursued and called 911 while following behind Ms. Weierheiser’s vehicle and blowing his horn in an attempt to get her to stop. Danielle, in her own car, was also in the chase. At one point during the chase, the vehicles came to a stop at Pinehurst Drive. While they were stopped, Respondent exited his vehicle and beat on the windows on the driver’s side of Ms. Weierheiser’s car. Respondent testified that he only hit the windows with his hand during that stop, but there is other evidence indicating that he hit one or more of the driver’s side windows with a gun. During that stop on Pinehurst, Respondent could see through the tinted windows that his granddaughter was in the backseat behind the driver. The chase started up again, and then, shortly thereafter, Ms. Weierheiser stopped in the area off Kass Circle next to a Sheriff substation, which was closed, and Papa Clyde’s Ice Cream Store. During that stop, once again Respondent exited his vehicle and repeatedly struck Ms. Weierheiser’s car window. This time, without question, Respondent struck the driver’s side with the butt of his pistol, a functioning Glock 40 S&W caliber pistol, Model 27, in an attempt to break the window and retrieve Cecelia. After that, Ms. Weierheiser drove away again and the chase continued. During the chase, both Respondent’s car and Danielle’s car struck, or were struck by, Ms. Weierheiser’s vehicle, but there were no serious accidents. While the chase was ongoing, one or more of the passengers in Ms. Weierheiser’s vehicle called 911. Although evidence indicates that the occupants of Ms. Weierheiser’s car were frightened, the evidence is insufficient to show that Respondent exhibited his pistol in an attempt to threaten or harm anyone. Rather, he only used his firearm in an attempt to break a window to recover his granddaughter. Ms. Perkins, the only occupant in Ms. Weierheiser’s vehicle that day who was a witness at the final hearing, testified that she believed that Respondent was not coming to attack them that day, but was just trying to save his granddaughter. The chase ended when the vehicles involved pulled into a McDonald’s parking lot, followed by about a half dozen sheriff patrol cars. The entire chase lasted only about 15 minutes. Hernando County Sheriff Deputy Belmonte arrived on the scene that day in the McDonald’s parking lot. When he got there, the occupants of the vehicles involved in the chase were out of their cars (except for Respondent’s granddaughter) and arguing. There were, however, no physical altercations or anything like that at the time. Respondent did not try to avoid Deputy Belmonte and immediately raised his hand and volunteered that he was the one who had the pistol and that it was in his vehicle’s glovebox. After taking statements, Deputy Belmonte placed Respondent under arrest for his actions involving the use of his firearm. Respondent’s granddaughter, Cecelia, was taken from Ms. Weierheiser and placed in the custody of the child’s paternal grandparents. Respondent was charged with three counts of aggravated assault with a deadly weapon. Because of his arrest and the nature of the charges against him, the Florida Department of Corrections terminated Respondent on or about February 4, 2016. Respondent timely grieved his termination under the terms of his Collective Bargaining Agreement with the Department of Corrections. In the meantime, on March 6, 2016, a circuit court judge in Hernando County entered a permanent Final Judgment of Injunction for Protection on Mrs. Franco’s behalf against Mr. Courtney. On March 15, 2016, the State of Florida filed a No Information on two of the three counts against Respondent for aggravated assault with a deadly weapon. The remaining third count of aggravated assault with a deadly weapon was reduced to a misdemeanor charge of improper exhibition of a dangerous weapon and transferred to Hernando County Court. On April 12, 2016, Mr. Franco voluntarily completed a four-hour Anger Management Class and passed a written knowledge assessment. On May 4, 2016, the State of Florida resolved the case against Respondent without prosecution and entered a nolle prosequi, effectively dismissing the charge against Respondent alleging improper exhibition of a dangerous weapon.3/ As a result of his termination from Department of Corrections, Respondent was out of work for approximately four- months without pay. Respondent’s grievance of his termination was resolved on May 11, 2016. Under an agreement settling the grievance, Respondent was given a one-day suspension, the Department of Corrections rescinded Respondent’s dismissal, and Respondent was reinstated to his supervisory position. Several employment-related character reference letters from law enforcement colleagues, supervisory staff, and productive members of the community were received into evidence. The reference letters are all positive character references in support of Respondent. A number of those submitting the letters appeared at the final hearing and verified their positive comments in favor of Respondent’s moral character, and have been considered persuasive in Respondent’s defense of the charges against him. Of particular note is a letter from Tina Roberts, warden of Respondent’s institution who initially drafted Respondent’s Dismissal Letter. Her letter is a positive character reference letter for Respondent requesting the Commission to consider Respondent’s work history, the fact Respondent was reinstated, and his dedication to the Florida Department of Corrections. Those factors have been considered in drafting this Recommended Order. Prior to the incident giving rise to the criminal charges against Respondent that have since been dismissed, and the Complaint in this case, Respondent had never faced disciplinary charges, nor has he been disciplined since. Respondent continues to be employed in a supervisory role at the Department of Corrections.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the Administrative Complaint. DONE AND ENTERED this 9th day of October, 2019, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 9th day of October, 2019.
The Issue Whether or not on or about the 7th day of June, 1976, on the Respondent's licensed premises located at 10 West Church Street, Jacksonville, Florida, the Respondent, its agent, servant or employee, to wit: Cynthia Brown, did unlawfully commit a lewd act with another by dancing in a topless state for Vice Detective Cornell B. Iverson and attempting to place the nipples of her breasts in his mouth and attempting to rub her vagina against his knee and hand, and also fondling Iverson's penis with her hands, in violation of s 798.02, F.S. thereby violating s 561.29, F.S. Whether or not on or about the 7th day of June, 1976, on the Respondent's licensed premises located at 10 West Church Street, Jacksonville, Florida, the Respondent, its agent, servant or employee, to wit: Gaynell Moore, did unlawfully commit a lewd act with another by dancing in a topless state and allowing a patron, one Bruce Anthony Timmons, to fondle her buttocks and vagina while she rubbed her bare breasts in his face, in violation of s 798.02, F.S. thereby violating s 561.29, F.S.
Findings Of Fact At all times material to the allegations found in the amended Notice to Show Cause the Respondent, G and B of Jacksonville, Inc., trading as The Harem, located at 10 West Church Street, Jacksonville, Florida, was licensed under License No. 26-957, Series 2-COP, held with the State of Florida, Division of Beverage. On June 7, 1976, Officer C. B. Iverson of the Jacksonville Sheriff's Office, entered the licensed premises. Officer Iverson entered the premises in the capacity of an undercover officer making a routine check. Shortly after his entry, another officer of the Jacksonville Sheriff's Office, one W. L. Geiger, came into the licensed premises. One of the dancers in the bar, working at that time, was Cynthia Brown. Brown approached Iverson and asked Iverson if he wanted her to dance. She danced for Iverson for the duration of three or four dance records. During the course of the dancing, she attempted to place the nipples of her breasts into the mouth of Iverson and attempted to rub her vagina on his hand, which hand was placed on his knee while he was seated. Other persons were in the licensed premises at that time, to include a female bartender and four other dancers. None of these individuals attempted to stop the conduct of Cynthia Brown. On the same date, June 7, 1976, Bruce Anthony Timmons was one of the patrons. Timmons was seated on a bar stool and was approached by Gaynell Moore, a dancer working in the licensed premises at that time. Gaynel Moore was dressed in a black brassiere and bikini type outfit. After being approached by Moore, Timmons placed his mouth on the breast of Gaynell Moore. Timmons also massaged the vagina of Gaynell Moore and fondled her buttocks. None of the aforementioned employees in the licensed premises attempted to stop Gaynell Moore's activity with Timmons. All the circumstances between Moore and Timmons occured during the course of her dancing for him.
Recommendation It is recommended that the license of the Respondent, G and B of Jacksonville, Inc., trading as the Harem, license no. 76-957 be suspended for a period of 10 days. DONE AND ORDERED this 18th day of April, 1977, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Charles Tunnicliff, Esquire Division of Beverage 725 Bronough Street Tallahassee, Florida 32304 Harry Katz, Jr., Esquire 337 E. Forsyth Street Jacksonville, Florida 32304
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on March 10, 2004.
Findings Of Fact Petitioner is an African-American man who was employed by Respondent from May 2003, until July 29, 2004. Respondent, Sacred Heart Health Systems, operates a charitable, not for profit acute care hospital in Pensacola called Sacred Heart Hospital. While employed at Sacred Heart Hospital, Petitioner was a call center resource agent. His supervisor was Jane Nix. During cross-examination, Petitioner responded as follows when asked whether Respondent had discriminated against him on the basis of race: Q: And is it fair to say that you truly believe that Sacred Heart did not discriminate against you because of your race at any time during your employment? A: Yes, it is. Q: And is it also true that Ms. Nicks [sic] did not discriminate against you because of your race at any time during your employment at Sacred Heart Hospital? A: No, sir, she did not. Q: Okay. Your race was never an issue at any time during your employment at Sacred Heart Hospital? A: Not to my knowledge, no sir. Q: You also never complained of discrimination based on race at any time during your employment at Sacred Heart Hospital; is that correct? A: This is correct. Q: And no one at Sacred Heart ever retaliated against you because of your race? A: Not because of race, no sir. Q: And you know this because you would not allow anybody to discriminate against you because of your race; is that correct? A: This is correct. Q: Or retaliate against you because of your race? A: This is correct. Q: And you do not believe that Sacred Heart violated the Florida Civil Rights Act; is that correct? A: No, sir, I do not. Q: And you do not believe that Sacred Heart violated the Florida Civil Rights Act; is that correct? A: No, sir, I do not. Q: And you do not believe that Ms. Nicks (sic) violated the Florida Civil Rights Act; is that correct? A: No sir, I do not. By his own admission, Petitioner does not allege discrimination or retaliation by Respondent on the basis of race.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief for lack of jurisdiction. DONE AND ENTERED this 11th day of July, 2005, in Tallahassee, Leon County, Florida. BARBARA J. STAROS 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 11th day of July, 2005.
The Issue This is a case in which the Petitioner seeks to impose an administrative fine against the Respondent by reason of statutory violations described in an Administrative Complaint which are alleged to have taken place in the course of the operations of the Respondent's cosmetology salon.
Findings Of Fact At all times material to this case, the Respondent has been licensed as a Cosmetologist, having been issued license number CL205771. The Respondent's last-known business address is 2600 Hammondville Road, Pompano Beach, Florida 33069, at which location he operates a Cosmetology Salon named Cut Creation. At all times material to this case, Cut Creation has been licensed as a Cosmetology Salon, having been issued license number CE53077. On February 5, 2004, the Respondent's business premises were inspected by Norma Fishner, an Investigative Specialist employed by the Department of Business and Professional Regulation. During the course of her inspection on February 5, 2004, Norma Fishner observed Christopher Mason cutting a customer's hair on the premises of Cut Creation. On that date Christopher Mason was not licensed as a Cosmetologist in the State of Florida. On February 5, 2005, Norma Fishner also observed an unidentified male cutting a customer's hair on the premises of Cut Creation. This unidentified male ran out the front door before he could be questioned or identified by Norma Fishner. Norma Fishner questioned the Respondent about the unidentified male who ran out the door and asked the Respondent to provide identifying information about that person. The Respondent refused to provide any information about that person. It was clear that the Respondent knew the identity of the unidentified male who ran out the door and that the Respondent knew that the unidentified male did not have a Cosmetologist license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered in this case concluding that the Respondent is guilty of the violations alleged in the Administrative Complaint and imposing an administrative fine in the total amount of one thousand dollars ($1,000.00). DONE AND ENTERED this 27th day of July, 2005, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 2005.
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
Findings Of Fact Early on the morning of February 12, 1980, Detective Edward Hanek of the Miami Police Department arrived at 533 Southwest 12th Avenue, the address of respondent's bar, Rincon de los Recuerdos. On the sidewalk in an alcove in front of the bar lay the bloody corpse of Guillermo Tey. Detective Hanek tried both doorways into the bar from Southwest 12th Avenue but found both outer doors locked. At both doorways, he was able to reach through the iron bars of the outer doors, push open unlocked wooden doors, and see the interior of the bar. Detective Hanek "followed a blood trail leading from the body to the south door" (R. 24) on Southwest 12th Avenue. Another blood trail led away from the bar. A rear entrance to the bar also featured a locked iron outer gate and a wooden door behind it, unlocked. Nahir Gil arrived at the bar in a police car and opened the back door at Detective Hanek's request. Inside were glasses and bottles of beer "that appeared to be left in a hurry." (R. 26). Balls on a pool table and change strewn on the bar had the same Flying Dutchman quality. At the scene of the crime, Mr. Gil told Detective Hanek that he had closed the bar at one o'clock, or ten minutes of, that morning; that he sent about ten customers away when he closed; that he did not know of the deceased; and that he did not know the barmaid Anna's last name or where she lived. Later the same morning, at the Miami Police Station, Detective Hanek interviewed Mr. Gil further and Mr. Gil executed a sworn statement at 6:36 a.m., on February 12, 1980, in which he stated inter alia: that this girlfriend, Melba Bernal, and her sister from Pereira, Columbia, were in the United States without visas, as far as he knew; that he and his brother Manuel owned the bar; that he had spent the day of February 11, 1980, drinking in the bar; that he closed at one instead of three o'clock on the morning of the 12th, because he was drunk, and failed to gather the day's receipts from the cash register for the same reason; that he did not know Guillermo Tey; that he did not know Anna's last name or where she lived; and that he had not seen "anybody lying on the sidewalk with blood coming out." Petitioner's Exhibit No. 2, p. 6. Mr. Gil indicated that his girlfriend had once worked in the bar. He answered, "Yes, sir" to Detective Hanek's question, "What you told me you know, is all you know?" Later on in the day, Mr. Gil told Detective Hanek that he had heard two gunshots and seen a man lying on the sidewalk just before he closed the bar. Through his lawyer, Mr. Gil got Anna's last name, Vasquez, and address to Detective Hanek. The following day, Detective Hanek visited Ms. Vasquez's apartment, only to learn that she had recently moved. Nahir Gil admitted to Detective Hanek that Anna was an illegal alien and admitted to John Clayton, an agent of the United States Border Patrol, that the Bernal sisters had been smuggled into this country. Subsequently, one sister returned to Colombia and the other married Nahir Gil. The parties stipulated that respondent's license, No. 23-00932-2COP, was current at all relevant times; that a certificate of incumbency filed on or about July 7, 1978, reflected that Geoberto Gil owned half of respondent's stock and that Nahir Gil owned the other half; that Geoberto Gil transferred fifty shares, all of his interest in respondent, to Manuel Salvador Gil on April 10, 1979, and resigned as director on the date; and that, as recently as April 10, 1979, Nahir Gil acted as secretary of respondent corporation.
Recommendation Upon consideration of the foregoing, it is recommended that petitioner dismiss the Notice to Show Cause. DONE and ENTERED this 13th day of March, 1981, in Tallahassee, Florida. ROBERT T. BENTON, II, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of March 1981. COPIES FURNISHED: Dennis E. LaRosa, Esquire The Johns Building 725 South Bronough Street Tallahassee, Florida 32301 Thomas B. Duff, Esquire 1407 Biscayne Building 19 West Flagler Street Miami, Florida 33130
The Issue The issue in this case is whether Respondent, Knites of Redington, d/b/a Fort Knox Bar (the “Bar”), discriminated against Petitioner, Kevin Murphy (“Murphy”), on the basis of his age or, alternatively, for retaliation, in violation of the Florida Civil Rights Act.
Findings Of Fact Murphy is a 56-year-old male. At all times relevant hereto, he was employed as a bartender at the Bar. He had been hired at the Bar initially by its former owners, the Smiths, in approximately March 2009. In December 2009, Bachert purchased the Bar and retained Murphy as an employee. When he purchased the Bar, Bachert formed a corporation, Knites of Redington, Inc., to own the assets. Bachert was listed as the only officer, director, or owner of the corporation. The corporation was formed on December 17, 2009. Murphy was one of several bartenders working at the Bar. Under the prior owners, Murphy was paid $25.00 per shift, plus tips. When Bachert took over, Murphy was paid $40.00 per shift, plus tips. By his own admission, Murphy did not report all of his tips to the Internal Revenue Service. Bachert’s sister, Elizabeth Horton, also worked at the Bar, helping out with accounting services. Apparently, she and Murphy did not get along. Murphy testified that Ms. Horton called Murphy names and said he was “old, fat, and slow.” Murphy also claims that Ms. Horton was a cocaine user, used the Bar’s money as her own, and caused “problems” at the Bar with customers. There was no other competent, substantial evidence presented to support those claims. Some time in February 2011, Bachert became aware that Murphy had an extensive criminal background. Bachert had not done a criminal background check on Murphy because he (Murphy) was already an employee of the Bar when Bachert took over operations. When he found out about Murphy’s background, Bachert placed Murphy on a temporary leave of absence to further investigate Murphy’s past. Bachert expressed a concern that he did not believe persons with criminal backgrounds are allowed to work as bartenders. Murphy said no such prohibition exists. Neither party introduced support for their position. After a couple of weeks, Bachert called Murphy in and told him that “things just aren’t going to work.” Bachert said that because of Murphy’s criminal past, and the fact he was “running sheets” from behind the bar, his employment at the Bar was being terminated. (“Running sheets” refers to the practice of betting on football games, car races, and other events. It was common for such bets to be going on in the Bar, and in fact Bachert took part. The problem was that Murphy was running sheets from behind the bar while on duty, and Bachert had asked him not to do that. Despite that request, Murphy continued to run sheets from behind the bar.) During Murphy’s entire period of employment, he had never heard Bachert make any disparaging or discriminatory remarks about him. The only person who allegedly made such remarks was Ms. Horton. The evidence does not prove that Ms. Horton had any authority over Murphy. At the onset of the corporation, she was not listed as an officer. On the Division of Corporations printout produced by Murphy, however, Ms. Horton is shown as secretary of the corporation. However, that document was dated May 12, 2011, i.e., some three months after Murphy was terminated. Thus, the evidence does not support that Ms. Horton had authority over Murphy at the time she allegedly made disparaging comments. The average age of bartenders and employees at the Bar was about 49 years of age. Murphy refused to testify during his case-in-chief. He reluctantly testified during the Bar’s case-in-chief, but did not, during his testimony, establish any evidence of discriminatory behavior by the Bar or its owners.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the claim for relief filed by Petitioner, Kevin Murphy, should be denied. DONE AND ENTERED this 25th day of January, 2013, in Tallahassee, Leon County, Florida. 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 25th day of January, 2013.
The Issue Whether the Petition for Relief from an unlawful employment practice was timely filed with the Florida Commission on Human Relations, thereby permitting the Division of Administrative Hearings to exercise jurisdiction for the conduct of a formal hearing under the provisions of Section 120.57(1), Florida Statutes.
Findings Of Fact On December 13, 1995, and again on January 12, 1996, the Florida Commission on Human Relations (FCHR) transmitted to the Division of Administrative Hearings (DOAH) a Petition for Relief from an Unlawful Employment Practice, together with all other "pleadings and jurisdictional papers heretofore filed in this proceeding." The pleadings and papers transmitted by FCHR show that Petitioner filed a complaint with FCHR on December 2, 1994, charging an unlawful employment practice by Respondent. On October 11, 1995, the FCHR concluded its investigation into the matter and issued its determination of No Cause to believe that an unlawful employment practice had occurred. Notice of that determination was served on Petitioner at his Quincy, Florida address by regular mail. The "Notice of Determination: No Cause" served on Petitioner included the following statement: Complainant may request an administrative hearing by filing a PETITION FOR RELIEF with 35 days of the date of this NOTICE OF DETER- MINATION: NO CAUSE. The "Notice of Determination: No Cause" also contained the following statement: If the Complainant fails to request an admini- strative hearing within 35 days of the date of this notice, the administrative claim under the Florida Civil Rights Act of 1992, Chapter 760, will be dismissed pursuant to Section 760.11, Florida Statutes (1992). Petitioner received the Notice of Determination. Sometime after receipt of the notice, Petitioner telephoned the FCHR and spoke with a secretary who again explained the necessity of filing a Petition For Relief to Petitioner within the specified time limits. Petitioner filed a Petition For Relief on November 27, 1995, approximately 47 days after issuance of the Notice of Determination: No Cause. No evidence was presented by Petitioner that he did not receive the mail notice of the FCHR determination in a timely fashion sufficient to permit his timely filing of a Petition For Relief.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered dismissing with prejudice the Petition for Relief in DOAH Case No. 95-6018 and FCHR Case No. 94-E334, for failure to timely file the Petition. DONE and ENTERED this 18th day of March, 1996, in Tallahassee, Leon County, Florida. DON W. DAVIS, 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 18th of March, 1996. COPIES FURNISHED: Lorenzo McGill Route 7, Box 4096 Quincy, Florida 32351 Kimberly L. King, Esquire Messer, Caparello, Madsen, et al. Post Office Box 1876 Tallahassee, Florida 32302-1876 Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Ronald M. McElrath, Executive Director Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
