The Issue Has Petitioner been the subject of an unlawful employment practice because of his race, American Indian, and if so, what relief is appropriate?
Findings Of Fact Upon consideration of the oral evidence adduced at the hearing, the following relevant findings of fact are made: At all times relevant to this proceeding, Respondent operated a citrus processing facility in Bartow, Florida, and employed in excess 15 employees. Petitioner is a full-blooded American Indian who resides in Lakeland, Polk County, Florida. Bobby Branch, Respondent’s Maintenance Supervisor, hired Petitioner as a Maintenance Mechanic. Petitioner commenced employment with Respondent on August 18, 1997. Petitioner was employed at an hourly rate of $10.50. Petitioner was assigned by Bobby Branch to work under the direct supervision of Garry R. Guard, Lead Plant Mechanic. Petitioner had 37 plus years' experience as a mechanic and 15 years' experience with the citrus industry as a mechanic. Petitioner understood at the time he was hired that he would be on probation for a period of 90 days. Shortly after Petitioner began work, Garry Guard told Petitioner “I don’t want to work with an Indian” and “I’m prejudiced and I don’t give a damn who knows it” or words to that effect. Additionally, Guard let it be known that he would prefer working with a Mexican. Approximately one week after this incident, Petitioner complained to Bobby Branch, Maintenance Supervisor, about Guard’s comment to Petitioner. This is supported by the testimony of Charles Palmer, a former employee of Respondent, that he was aware that Petitioner reported Guard's comment to Bobby Branch. There was no remedial action taken by either Branch or any other management personnel concerning Guard’s comment to Petitioner. Subsequently, Petitioner noticed his work being undone and Guard complaining that Petitioner’s work was not done or that his work was done improperly. Petitioner and William Waples, a former employee of Respondent, worked together on one of those projects, rebuilding and installing a pump. Waples considered Petitioner a good mechanic. Later, after Waples and Petitioner were finished with the pump, Guard was observed taking the pump apart. Subsequently, Guard complained that Petitioner failed to install a specific part in the pump. Waples specifically recalls that particular part being installed by himself and Petitioner. Subsequent to that event, Guard, when questioned by another worker about the pump and the problem with it, was over heard by Waples saying words to the effect that the “Damn Indian did it.” On October 22, 1997, Petitioner filed a complaint with Branch that Guard was purposefully sabotaging his work because of his race. Again, there was no remedial action taken by Branch or any other management personnel. Branch neither personally observed deficient work performance by Petitioner nor personally communicated to Petitioner the need for Petitioner to improve his performance if he were to successfully complete his probationary period with Respondent, notwithstanding Branch’s testimony to the contrary, which I find lacks credibility in this regard. Petitioner was never reprimanded or counseled prior to being terminated. Petitioner was not terminated because of his deficient work performance during his probationary period, but was terminated because of his complaints to Bobby Branch of being discriminated against due to his race, notwithstanding Branch’s testimony to the contrary, which I find lacks credibility in this regard. Petitioner was terminated by Respondent on November 14, 1997. Petitioner claims lost wages at an hourly rate of $10.50 for 40 hours per week for the period from November 15, 1997 to April 24, 1998. There does not appear to be any evidence of a set-off against the claim for lost wages. Although Petitioner was represented by an attorney, there was no evidence presented as to the amount of Petitioner's attorney's fees.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner's Petition for Relief be granted, and as further relief, award Petitioner back wages for the period of November 15, 1997 until April 24, 1998, based on a 40 hour week at an hourly rate of $10.50, and upon motion to the Commission, award reasonable attorney's, in accordance with Section 760.11(7), Florida Statutes. DONE AND ENTERED this 20th day of August, 2001, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 2001. COPIES FURNISHED: Merette L. Oweis, Esquire DiCeasure, Davidson & Barker, P.A. Post Office Box 7160 Lakeland, Florida 33897 David J. Stefany, Esquire Allen, Norton & Blue, P.A. South Hyde Park Avenue Suite 350 Tampa, Florida 33606 Dana A. Baird, General Counsel Florida Commission on Human Relations John Knox Road, Building F, Suite 240 Tallahassee, Florida 32303-4149 Azizi M Dixon, Agency Clerk Florida Commission on Human Relations 325 John Knox Rd, Bldg. F, Suite 240 Tallahassee, Florida 32303-4149
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 The issue is whether this case should be dismissed based on Petitioner's failure to appear at the hearing and apparent intent to withdraw her request for an administrative hearing.
Findings Of Fact The Notice of Hearing in this case was issued on May 22, 2012, setting the hearing for July 17, 2012, at 9:30 a.m., by video teleconference at sites in Tallahassee and Fort Myers, Florida. Also, on May 22, 2012, an Order of Pre-hearing Instructions was entered. Respondent timely complied with the pre-hearing requirements by filing a witness list and exhibit list and tendering its proposed exhibits, all of which were served on Petitioner. Petitioner did not file or exchange a witness list, exhibit list, or proposed exhibits. Petitioner spoke by telephone with a secretary at DOAH on July 16, 2012, the day before the scheduled hearing, and indicated that she had sent a letter withdrawing her hearing request; however, to this day, no such letter has been received. Petitioner was advised to send another written statement confirming that she was withdrawing her hearing request, and she indicated she would do so by facsimile that day. However, no such facsimile was received by DOAH. After hours on July 16, 2012, a typed, but unsigned letter, was sent by facsimile to counsel for Respondent. The letter appears to have been sent by Petitioner and states that she wished to cancel the hearing scheduled for July 17, 2012. Petitioner did not make an appearance at the scheduled hearing at the start time or within 25 minutes after the scheduled start time. While it would have been better practice for Petitioner to file a written, signed statement with DOAH to withdraw her hearing request, it is found that Petitioner intended to withdraw her hearing request, and that is why Petitioner did not appear at the scheduled hearing. Petitioner should have made her intentions clear sufficiently in advance of the scheduled hearing to avoid the inconvenience and expense of convening a hearing by video teleconference and assembling all of those who were prepared to go forward.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief in this case. DONE AND ENTERED this 3rd day of August, 2012, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 August, 2012. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Lawrence F. Kranert, Jr., General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Todd Evan Studley, Esquire Florida Department of Corrections 501 South Calhoun Street Tallahassee, Florida 32399 Natalie Goldenberg Post Office Box 7388 Fort Myers, Florida 33911
The Issue This is a case in which the Petitioner alleges that the Respondent has engaged in an unlawful employment practice within the meaning of Section 760.10(1)(a), Florida Statutes, by engaging in the following activities: (a) Discharging the Petitioner from her position of employment with Respondent because of Petitioner's race and (b) after discharging the Petitioner, continuing to seek applications for the position previously held by the Petitioner from similarly qualified or less qualified applicants. Subsequent to the filing of her petition for relief, the Petitioner filed a motion for default pursuant to Rule 22T- 9.008(5)(d), Florida Administrative Code, based upon the Respondent's failure to file an answer to the petition as required by the cited rule. By order dated September 21, 1987, the Respondent was given until October 5, 1987, within which to show cause as to why the relief requested in the motion for default should not be granted. The Respondent failed to respond to the order of September 21, 1987, and on October 7, 1987, an order was issued which included the following language: That pursuant to Rule 22T-9.008(5)(d), Florida Administrative Code, the Respondent is hereby deemed to have admitted all material facts alleged in the petition. That at the final hearing in this case the material facts alleged in the petition will be taken as established without further proof, but both parties will be afforded an opportunity at the final hearing to offer evidence regarding any additional relevant facts. On the day scheduled for the hearing, the Petitioner and her attorney appeared at the time and place set forth in the Notice of Hearing, but there was no appearance on behalf of the Respondent. Approximately 45 minutes after the scheduled commencement time, the Hearing Officer called the Respondent's offices in Jacksonville and was advised by an employee of Respondent that the Respondent did not intend to have anyone attend the hearing. Shortly thereafter the hearing was convened and the Hearing Officer received evidence offered by the Petitioner. At the conclusion of the presentation of evidence by the Petitioner, the Petitioner requested, and was granted, 15 days within which to file a proposed recommended order. Thereupon the record of the hearing was closed without any appearance having been made on behalf of the Respondent. On November 16, 1987, the Petitioner filed a proposed recommended order containing proposed findings of fact and conclusions of law. Specific rulings on all findings proposed by the Petitioner are contained in the Appendix which is attached to and incorporated into this recommended order. Following the hearing, the Respondent was advised by letter of its right to file a proposed recommended order, but as of the date of this recommended order the Respondent has not filed any post-hearing document with the Hearing Officer.
Findings Of Fact On October 11, 1985, the Petitioner was referred by Job Finders of Florida, a private job placement service, to apply for a position with the Respondent, Handling Systems Engineering, Inc. The job the Petitioner applied for was Secretary/Dispatcher. The Petitioner met all of the qualifications for the job of Secretary/Dispatcher. The Petitioner was interviewed by Mr. Jim Hart, the manager of the Ocala office of the Respondent. After interviewing the Petitioner, Mr. Hart decided, on the basis of her experience and references, that the Petitioner was the best qualified of several applicants. In this regard, it is noted that the Petitioner's prior employment had required the performance of duties substantially similar to those of the Secretary/Dispatcher position with Respondent. Thereafter, in the afternoon or evening of October 11, 1985, Mr. Hart telephoned the Petitioner, offered her the job, and advised her that she was to report to work on October 14, 1985. On October 14, 1985, the Petitioner reported to work at the Ocala office of the Respondent and immediately began performing the duties of Secretary/Dispatcher. During the work day on October 14, 1985, the Petitioner received a telephone call from Mrs. Lou Mohrman, the managing director of the Respondent. Mrs. Lou Mohrman welcomed the Petitioner to her position of employment and stated that she was pleased with the Petitioner's placement with the company. On October 15, 1985, Mr. L. D. Mohrman, president of Respondent, accompanied by Mrs. Lou Mohrman, managing director, visited the Ocala offices of the Respondent. After engaging in a boisterous conversation with Mr. Hart and visually ascertaining the Petitioner's race, Mrs. Mohrman summarily dismissed Petitioner without articulating a legitimate business reason for the termination. Within the next few days the Respondent listed the Secretary/Dispatcher position as vacant and continued to seek to fill the position with individuals with qualifications similar to or less than the qualifications of the Petitioner. The Petitioner is a black female. She is a person within the meaning of Sections 760.02(5) and 760.10(1), Florida Statutes. The Respondent is an employer within the meaning of Section 760.02(6), Florida Statutes. The dismissal of the Petitioner from her position of employment with the Respondent was motivated by the president and the managing director ascertaining the Petitioner's race. The dismissal of the Petitioner was motivated solely by her race. The Petitioner's starting salary at the Respondent company was $4.50 per hour for a 40-hour work week. After her termination, the Petitioner sought employment elsewhere and obtained another job in January of 1986, where she worked until November of 1986. In November of 1986 the Petitioner voluntarily left her job in order to finish school. When she began work in January of 1986 the Petitioner was making $3.80 per hour. When she quit in November of 1986 she was making $4.00 per hour.
Recommendation Based on all of the foregoing, it is recommended that the Florida Commission on Human Relations issue a final order to the following effect: Concluding that the Respondent has engaged in an unlawful employment practice; Prohibiting the Respondent from terminating any employee on the basis of the employee's race; Requiring the Respondent to offer reinstatement to the Petitioner under the terms and conditions of employment to which she would be presently entitled if she had been continuously employed, including any raises to which she would have been entitled on the basis of longevity. Requiring the Respondent to pay back pay to the Petitioner from the date of termination until November of 1986 in an amount equal to the total amount the Petitioner would have earned as a Secretary/Dispatcher during that period, less any amounts actually earned during that period; and Requiring the Respondent to pay to the Petitioner her reasonable attorney's fees incurred in this case. DONE AND ENTERED this 4th day of December, 1987, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3048 The following are my specific rulings on the findings of fact proposed by the parties. Findings proposed by Petitioner: Paragraph 1: Accepted in substance with exception of subordinate details not supported by the evidence. Paragraph 2: Accepted in substance with exception of subordinate details not supported by the evidence. Paragraphs 3, 4, 5, 6,7, and 8: Accepted Paragraphs 9, 10, 11, and 12: Not included in findings of fact because they are subordinate procedural details. Paragraphs 13, 14, and 15: Covered in prior findings. Paragraph 16: Accepted Paragraph 17: Covered in prior findings. Findings proposed by Respondent: (None) COPIES FURNISHED: Harry L. Lamb, Jr., Esq. Perry & Lamb, P.A. 312 W. First Street Suite 605 Sanford, Florida 32771 Mr. L. D. Mohrman, President Handling Systems Engineering, Inc. 3000 West 45th Street Jacksonville, Florida 32209 Dana Baird, Esquire General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Donald A. Griffin Executive Director 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Sherry B. Rice, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue Whether Respondent committed an unlawful employment practice in violation of Sections 760.10(1), Florida Statutes.
Findings Of Fact The Respondent, Beard Equipment Company, Inc., sells and maintains heavy equipment in Panama City, Florida. The Petitioner, Robert G. Harrison began employment with the Respondent in Panama City, Florida, in September, 1988. The Petitioner was employed as a janitor. Petitioner's duties included running numerous and varied errands which required driving of a motor vehicle. In April of 1989, Petitioner was hospitalized in order to adjust his medication for what he indicated was a bipolar disorder. However, at the hearing, Petitioner produced no expert testimony to establish that he was mentally handicapped or had bipolar disorder. At that time, Respondent became aware that Petitioner had a medical problem. Later, Petitioner was hospitalized in order to adjust his medication on two more occasions in 1989, and twice in 1992. On each occasion the Respondent accommodated Petitioner by making arrangements to hire temporary employees or readjust other employees' duties so that they could perform Petitioner's duties while he was hospitalized. In early 1992, the Respondent's liability insurance company conducted a random audit of employee driving records. The Respondent was notified by its insurance company that no coverage would be provided for any accident where the employee/driver had a DUI conviction. This random audit prompted Respondent to conduct a complete company- wide internal audit of driving records of all employees. The driving record audit resulted in some transfers for those employees for whom driving was an essential part of their job duties, but whose driving records would prohibit them from being covered under Respondent's liability policy. Employees who could not fulfill the duties of a non-driving position were terminated. Respondent could not afford to allow employees to drive who could not be insured by Respondent's liability carrier. The in-house driving record audit revealed that Petitioner had a DUI conviction on his record. Respondent had no other non-driving positions for which the Petitioner was qualified. Respondent was therefore forced to discharge the Petitioner since he could no longer fulfill the duties of his employment. Petitioner was discharged in November of 1992. When Petitioner was terminated, Petitioner was advised by Mark Veal, his supervisor, that the driving record audit had revealed that Petitioner had a DUI conviction, and because he would not be covered under the company insurance policy, they had no alternative but to discharge him. Within a day or so, Petitioner's wife called and requested his discharge letter in writing. Veal prepared the letter, indicating that due to Petitioner's medical history, his operating a motor vehicle would be too much of a liability. Although the real reason for Petitioner's discharge and the reason given him at the time was the DUI conviction, Veal tried to write the discharge letter in such a way as to minimize any embarrassment for the Petitioner due to his DUI conviction. Therefore, the termination letter does not support the conclusion that Respondent discriminated against Petitioner based on a mental handicap. In fact, there was no substantial evidence that Respondent terminated Petitioner based on a mental handicap. The evidence clearly showed Respondent was terminated for his driving record and his lack of qualifications to fill any other non-driving position. Moreover, Petitioner failed to establish that his position was filled by a person not in a protected class or that Respondent is an employer employing more than 15 employees. Given these facts, Petitioner has not established a prima facie case that Respondent committed an unlawful employment practice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding that Petitioner did not prove by a preponderance of the evidence that he was discriminated against because of his alleged handicap in violation of the Florida Human Rights Act and that the petition be dismissed. DONE AND ORDERED this 22nd day of December, 1994, in Tallahassee, Florida. DIANE CLEAVINGER 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 22nd day of December, 1994.
Findings Of Fact This cause comes on for consideration based upon the Notice to Show Cause filed by the Petitioner, State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco vs. Robert E. and Grace E. Parker, d/b/a Americana Restaurant and Bar at 2826 - 4th Street, North, St. Petersburg, Florida. The details of the Notice to Show Cause are set forth in the issues statement of this Recommended Order. The Respondents are holders of license No. 62-473-SRX, series 4-COP, held with the State of Florida, Division of Alcoholic Beverages and Tobacco. This license was issued in 1972 and remains in effect at this time. The facts in this case show that Beverage Officer Michael Freese went to the licensed premises on February 10, 1978, to make a routine license inspection. He arrived in the premises around 11:15 a.m. and found six to eight customers inside the building. Some of those customers were seated at the bar, drinking alcoholic beverages. None of the customers were observed to be eating. The licensed premises was in the control of Nancy Brown, an employee of the Respondents, and she was the only employee in the licensed premises, and her function at that time was to act as a bartender. When inquiry was made of her concerning the preparation of meals in the licensed premises, her response to Freese was that she cooked meals if anyone ordered a meal. While Freese was in the licensed premises, he observed Ms. Brown serve the patrons with additional alcoholic beverages. Freese also noted that a few of the tables in the restaurant area had place settings to include knives, forks and spoons. There were no signs in the premises advertising food for sale. In the kitchen area, the ovens were not operating and no foods were being prepared. There was no grease in the deepfryers, nor indication of any fresh garbage remaining from the preparation of food. The dishes were clean and put away with a light film of dust, indicating that the dishes has not been utilized for sometime. Handles were missing from the sink where the dishes would have been cleaned up. In examining the silverware on hand, it was determined that the restaurant was short eighty- five knives. There was insufficient food to serve two hundred persons. There was no fresh produce or desserts on hand. In a later discussion with Mr. Parker, the Respondent; which was held on the same day, Parker stated that if any cooking needed to be done he could be at the licensed premises in ten to fifteen minutes. He also stated that they got sandwiches from a local vendor and that 80 percent of the food sales is constituted of sandwiches and soups. Parker provided Freese with a menu of the restaurant, a copy of which may be found as Petitioner's Exhibit No. 1, and a comparison of that menu against the inventory of food on hand when Freese made the inspection shows that there was insufficient food on hand to serve those items listed on the menu. Freese left the licensed premises around 4:00 p.m. and during the entire time that he was in the restaurant, no one was served food. Subsequent examination of the records of the licensees revealed that during the months of January through December, $5,169 was expended on nonalcoholic items in the category of food, constituting 16.5 percent of the total purchases, and $21,417.79 was spent for alcoholic beverages, constituting 68 percent of the total purchases. The licensees did not have register tapes available to compare against the invoices for purchases. The only items available were daily takeoff sheets which showed that in the same time period listed above, $21,000 was sold of food and $28,000 of alcoholic beverages. When compared to the purchase prices for food and alcoholic beverages, the statistics found in the daily worksheets do not present creditable figures. On February 13, 1978, Officer Freese and Officer Joseph A. Maggio returned to the licensed promises around 1:45 p.m. Again, the only person in the restaurant was Ms. Brown and seven to eight customers were observed in the bar area. No one was observed taking meals. Six tables were set up so that meals could be served. The area off the kitchen was as described on February 10, 1970, in terms of the cooking ranges, utensils, food and food preparation. Around 2:05 p.m. there was a further discussion held with the Respondent, Mr. Parker, who in the conversation indicated that he and his wife worked in the restaurant from 6:00 a.m. to 11:00 a.m., at which point Ms. Brown came in, and the Parkers returned at 6:00 p.m. and stayed until closing. In the course of the hearing, Mr. Parker testified and reiterated that sandwiches and soup are the main food of the restaurant, although the customers may be served steaks and produce and dairy products, upon request.
Recommendation It is recommended that the Respondents, Robert E. and Grace E. Parker, have their series 4-COP SRX license REVOKED. DONE AND ENTERED this 13th day of August, 1979, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 100 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Mary Jo M. Gallay, Esquire Staff Attorney Depatment of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Robert E. and Grace E. Parker d/b/a Americana Restaurant and Bar 2826 - 4th Street North St. Petersburg, Florida 33704
The Issue Whether Respondent, Cracker Barrel Old Country Store (Respondent), subjected Petitioner, Brandy Lee Colwell (Petitioner), to employment discrimination based upon Petitioner's race, and/or retaliated against Petitioner because of her complaint against Respondent alleging discriminatory employment practices, in violation of the Florida Civil Rights Act of 1992, sections 760.01–760.11 and 509.092, Florida Statutes.
Findings Of Fact Neither Petitioner nor her counsel appeared at the noticed time for the final hearing in this case. After waiting for approximately 25 minutes, at the undersigned's directions, Respondent's counsel contacted Petitioner's counsel by telephone and arranged for Petitioner's counsel, whose law offices are in Lake City, to join the final hearing for a conference call via speakerphone. During that conference call, Petitioner's counsel advised that he had received the Notice of Hearing scheduling this case, but that he had erroneously failed to calendar the hearing. Respondent's counsel further advised that, in addition to his client, he intended to offer the testimony of approximately three witnesses, but that he had not subpoenaed those witnesses. He further could not identify the names of those witnesses, but advised that his client knew their names.1/ Petitioner's counsel verbally requested a continuance. Petitioner's counsel had participated in the preparation of a prehearing stipulation just one week earlier and understood that the prehearing stipulation was untimely because it had not been filed within the time frames of the prehearing instructions.2/ Petitioner's counsel acknowledged that while he knew that the hearing was in the near future, he did not check to see when it was scheduled. Accordingly, the undersigned denied Petitioner's counsel's request for continuance to the extent that it asked for another day, but ruled that the hearing would be delayed until 1:00 p.m. that afternoon, June 7, 2012. When the final hearing was reconvened at 1:00 p.m., Petitioner's counsel appeared with his assistant, but without Petitioner or any witnesses. Petitioner's counsel presented a written Petitioner's Motion for Continuance. The undersigned first considered Respondent's pending Motion to Dismiss, or Alternatively, to Strike (Respondent's Motion to Strike). Petitioner's counsel stated that Petitioner had no objection to the granting of Respondent's Motion to Strike because it sought only to strike or dismiss that portion of Petitioner's claim alleging retaliatory discharge. Considering Petitioner's lack of objection, as well as the fact that Petitioner's discharge from Respondent's employ did not occur until after the instant Employment Complaint of Discrimination was filed with the Florida Commission on Human Relations, Respondent's Motion to Strike was GRANTED, thus preserving Petitioner’s claim of retaliatory discharge for subsequent action if properly perfected. Petitioner's written Motion for Continuance was then addressed. In the motion, Petitioner's counsel explained that his legal assistant had not calendared the final hearing for June 7, 2012, because his legal assistant's stepdaughter had been involved in an accident on April 19, 2012, and had passed away on April 22, 2012. The Notice of Hearing in this case was issued on April 17, 2012. The motion also stated that "[t]he undersigned counsel accepts full responsibility for the actions of his staff." Petitioner's Motion for Continuance further advised that "[t]he undersigned counsel for the Petitioner when advised that he was not present at the hearing, checked with Petitioner to try to have her available on June 7, 2012, and she was on her way to Gainesville for a post-operative checkup with her son who had recently had surgery." Respondent's counsel opposed continuance of the case. Upon consideration of Petitioner's Motion for Continuance, Respondent's argument against a continuance, the fact that there was no emergency, and the motion was untimely under Florida Administrative Code Rule 28-106.210 ("Except in cases of emergency, requests for continuance must be made at least five days prior to the date noticed for the hearing"), as well as the circumstances outlined above, Petitioner's Motion for Continuance was DENIED.
Recommendation Based upon the fact that Petitioner failed to present any evidence in support of her claim, it is RECOMMENDED that the Florida Commission on Human Relations enter an order dismissing this case. DONE AND ENTERED this 12th day of June, 2012, 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 12th day of June, 2012.
The Issue This case arises out of a notice to show cause served upon the Respondent by the Division of Alcoholic Beverages and Tobacco alleging that Beverage License No. 27-92 should be suspended, revoked or otherwise disciplined for five separate counts involving drug sales on the licensed premises. As a basis for its proof, Petitioner relied upon a stipulation entered into with the Respondent and a Division of Alcoholic Beverages and Tobacco Case Report which was admitted without objection. Mr. Charles Andrews testified on behalf of himself as licensee. A copy of the notice to show cause was admitted as Joint Exhibit 1 and the Petitioner of foreign and had admitted without objection one exhibit, the case report of the Division of Alcoholic Beverages and Tobacco.
Findings Of Fact Charles D. Andrews, trading as Odom's Bar, is the licensee of Beverage License No. 27-92, License Series 4-COP. The licensed premises is located on Highway 29 in Century, Escambia County, Florida. The Petitioner and Respondent, having stipulated to the truth and accuracy of those facts alleged in the notice to show cause, and based upon that stipulation, the undersigned Hearing Officer finds those facts set forth in A through F of this paragraph: On May 24, 1982, Johnny Andrews, the employee of Charles D. Andrews, did violate the laws of the State of Florida by delivering a controlled substance, to wit: cannabis to Agent P. A. Blackman while on the licensed premises of Charles D. Andrews, contrary to Florida Statute 893.13 within Florida Statute 561.29. On June 14, 1982, Johnny Andrews, the employee of Charles D Andrews, did violate Florida Statute 893.13 and Florida Statute 561.29 by delivering a controlled substance, cannabis, to Agent P. A. Blackman while on the licensed premises of Charles D. Andrews. On June 17, 1982, Johnny Andrews, the employee of Charles D. Andrews, did violate Florida Statute 893.13 and Florida Statute 561.29 by delivering a controlled substance, cannabis, to Agent P. A. Blackman while on the licensed premises of Charles D. Andrews. On July 11, 1982, Johnny Andrews, the employee of Charles D. Andrews, did violate Florida Statute 893.13 and Florida Statute 561.29 by delivering a controlled substance, LSD, to Agent P. A. Blackman while on the licensed premises of Charles D. Andrews. On August 6, 1982, Johnny Andrews, the employee of Charles D. Andrews, did violate Florida Statute 893.13 and Florida Statute 561.29 by delivering a controlled substance, LSD, to Actent P. A. Blackman while on the licensed premises of Charles D. Andrews. A. The negotiations and discussions about the May 24, 1982, transaction occurred inside Odom's Bar and the delivery took place through the drive-in window located on the north side of the licensed premises. On June 14, 1982, Beverage Officer Blackman drove to the drive-in window and asked Johnny Andrews if he was holding any pot. Johnny Andrews stated he was holding a 35 cents bag. After a short discussion about possible purchase of a larger quantity, Officer Blackman purchased the bag of marijuana for $35.00. The plastic bag of marijuana was in a brown paper bag and was handed to Officer Blackman through the drive-in window. The delivery of the marijuana to Officer Blackman on June 17, 1982, also took place at the drive-in window. Johnny Andrews handed Blackman a brown paper bag containing a Miller and a plastic bag of marijuana. On July 11, 1982, Officer Blackman observed three patrons smoking a marijuana cigarette in Odom's Bar, and this activity was observed. by the barmaid on duty. No attempt was made to stop the activity. Officer Blackman was offered the marijuana cigarette and he pretended to smoke it. At this time, Johnny Andrews approached Officer Blackman and offered to 7 sell him some "acid" (LSD). Officer Blackman agreed and was instructed to drive around to the drive- in window. He did so and the delivery of the "acid" took place through the drive-in window. On August 5, 1982, Officer Blackman, after being in the licensed premises, drove up to the drive-in window where Johnny Andrews offered to sell him some "acid" (LSD) Officer Blackman agreed to purchase and agreed to return on August 6 to pick up the "acid". on august 6, 1982, Officer Blackman returned to the drive-in window where Andrews handed him a bag containing six hits of acid. At the time of the conversations and purchases on June 14, August 5, and August 6, 1982, Johnny Andrews was on duty and working at Odom's Bar. Mr. Charles Andrews has owned Odom's Bar for the past five years and worked for the two previous owners. He began working at Odom's Bar 20 years ago. The bar is managed by Respondent and his wife. Johnny Andrews, referred to in the stipulation above, is the son of Mr. and Mrs. Charles D. Andrews, and during the time period of the incidents set forth in Paragraph 1, was working as an employee at the bar. This was the first summer he had worked at the bar. He was working while he was home from college, and has not been allowed to work at the bar since August, 1982, when he was arrested. Generally, Johnny Andrews would relieve Mr. and Mrs. Andrews and they would leave the bar while he was working. The Respondent, Charles D. Andrews, had no knowledge of the drug transactions his son was involved in. Prior to the incidents in question, Odom's Bar was operated by Mr. and Mrs. Andrews with the help of four women whom they employed. Mr. Andrews had previously given instructions to his employees that they were not to allow drugs of any type to be used or sold on the premises. On the date of Johnny Andrews' arrest, agents for the Division of Alcoholic Beverages and Tobacco thoroughly searched the licensed premises and found no drugs. The clientele of Odom's Bar is primarily middle- aged persons. Prior to the incidents described in Paragraph 1 above, the licensee, Charles Andrews, had had no other violations of the law or drug related problems at the licensed premises. Once Mr. and Mrs. Andrews were notified of the charges and arrest warrant for their son, they cooperated with the police and also aided them in completing their arrest of Johnny Andrews. Although the Respondent testified that he had cautioned his employees against drugs on the premises, there was no evidence that he took any steps to ensure that the premises were being properly supervised and legally operated in his absence. There was no arrangement or plan whereby the licensee monitored what was occurring at the licensed premises in his absence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That a Final Order be entered finding the Respondent in violation of Florida statute 561.29, imposing a civil penalty of $1,000,and suspending Respondent's beverage license for a period of 60 days. DONE and ENTERED this 26th day of April, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, 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 28th day of April, 1983. COPIES FURNISHED: William A. Hatch, Esquire Mr. Howard N. Rasmussen Department of Business Director, Division of Alcoholic Regulation Beverages and Tobacco 725 South Bronough Street 725 South Bronough Street Tallahassee, Florida 32301 Tallahassee, Florida 32301 Mr. Charles D. Andrews Mr. Gary Rutledge Highway 29, Odom's Bar Secretary, Department of Business Century, Florida Regulation 725 South Bronough Street Tallahassee, Florida 32301
