The Issue Whether the Petitioner, Stephanie Walker, timely filed a Petition for Relief regarding her charge of discrimination against the Respondent, Bennett Auto Supply, Inc.
Findings Of Fact The Petitioner, Stephanie Walker, applied for and received employment with the Respondent, Bennett Auto Supply, Inc. The Petitioner's initial employment with the company ended on March 8, 2001, as she resigned her job on or about February 26, 2001. Thereafter, the Petitioner returned to employment with the Respondent. Again, the Petitioner resigned her job and left employment on April 27, 2002. The exact reasons the Petitioner began employment, left employment, returned to employment, and again left employment with the Respondent are immaterial to the findings dispositive of this case. Suffice it to say the Petitioner ultimately filed a claim of discrimination with the FCHR against the Respondent. The Petitioner's Charge of Discrimination naming the Respondent was dated March 21, 2003, and noted April 27, 2002, as the date the most recent discrimination had taken place. Based upon its investigation of the allegations, the FCHR issued a Determination: No Cause on September 23, 2003. The Determination: No Cause provided, in pertinent part, ". . . it is my determination that there is no reasonable cause to believe that an unlawful employment practice has occurred." The Notice of Determination: No Cause, provided: Complainant may request an administrative hearing by filing a PETITION FOR RELIEF within 35 days of the date of this NOTICE OF DETERMINATION: NO CAUSE. A Petition for Relief form is enclosed with Complainant's notice. It may be beneficial for Complainant to seek legal counsel prior to filing the petition. If the Complainant fails to request an administrative hearing with [sic] 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). The Petition for Relief was filed approximately 159 days after the FCHR issued its determination in this case.
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 Petitioner's Petition for Relief as it was not timely filed and is, therefore, barred as a matter of law. DONE AND ENTERED this 29th day of April, 2004, in Tallahassee, Leon County, Florida. S J. D. 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 29th day of April, 2004. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Aplachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Richard A. Giardino, Esquire Davis & Giardino, P.A. 201 Arkona Court West Palm Beach, Florida 33401 Stephanie Walker 1808 Northwest 52nd Avenue Lauderhill, Florida 33313
The Issue Whether Respondent committed the offenses set forth in the Administrative Actions in these consolidated cases, and, if so, what penalty should be imposed.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: At all times material hereto, Fowler Liquors was licensed by the Division, having been issued license number 46- 04643, Series 3-PS. The license permits Fowler Liquors to make packaged sales of beer, wine, and liquor at its convenience store located at 3450 Fowler Street in Fort Myers. In an Administrative Action dated July 11, 2002, the Division charged Samer Barghouthi, the majority owner and principal officer of Fowler Liquors, with selling alcoholic beverages to a person under the age of 21 on May 19, 2002. Fowler Liquors conceded there were no disputed issues of fact and requested that the matter be resolved in an informal hearing. In a Final Order dated October 25, 2002, the Division ordered Fowler Liquors to pay a fine of $1,000 and serve a seven-day license suspension. The Administrative Action regarding the May 19, 2002, sale arose from an incident in which 20-year-old Tony Cubello was beaten, robbed, and shot to death in the parking lot of Fowler Liquors after making a purchase in the liquor store. The murder of Mr. Cubello was the subject of articles in the Fort Myers newspaper. The Fort Myers Police Department investigated Mr. Cubello's murder and came to believe that Samer Barghouthi could identify the killers but was refusing to cooperate. The Fort Myers police requested the assistance of the Division in securing Mr. Barghouthi's cooperation. The Division commenced an investigation, interviewing young people who had known Mr. Cubello. During the course of these interviews, the Division became aware that Fowler Liquors was widely reputed as a place where underage people could buy alcoholic beverages. During its investigation, the Division also learned that the Department of Revenue had a tax warrant against Fowler Liquors, and that the City of Fort Myers had issued citations against Fowler Liquors for hours-of-sale violations. During its investigation, the Division sent an underage operative into Fowler Liquors to attempt to purchase alcoholic beverages. The operative was wearing a hidden microphone, allowing the Division's officers to hear what transpired in the liquor store. As the sale was about to be completed, a van full of construction workers pulled up outside the store. The person working behind the counter at Fowler Liquors said that there were "cops" in the van, and declined to complete the sale to the operative. On June 14, 2002, Captain Tania Pendarakis, district supervisor for the Division's Fort Myers office, met with Samer Barghouthi. She informed Mr. Barghouthi that the Division might consider filing administrative charges rather than criminal charges against Fowler Liquors, if Mr. Barghouthi would cooperate with the Fort Myers Police Department's murder investigation. During this conversation, Mr. Barghouthi assured Captain Pendarakis that he was going to start checking identifications and stop selling alcoholic beverages to underage children. The next day, June 15, 2002, David P. Green, then sixteen years old, entered Fowler Liquors early in the evening to buy beer. In the liquor store, Mr. Green recognized other people whom he knew from his high school. Mr. Green testified that it was widely known at his school that underage people could purchase alcohol at Fowler Liquors. Mr. Green purchased a twelve-pack of Budweiser Light beer. He tendered ten dollars cash to the cashier and asked if the store sold "dip," i.e., finely ground tobacco. The cashier told him no, but offered to sell Mr. Green cigarettes. The cashier did not ask Mr. Green his age, nor request any identification from Mr. Green to prove that he was at least 21 years of age. At the hearing in this matter, conducted nearly nine months after the fact, Mr. Green looked no older than sixteen. When he purchased the beer at Fowler Liquors, Mr. Green made no attempt to alter his appearance or otherwise disguise the fact that he was only sixteen years old. When Mr. Green exited Fowler Liquors, he saw a police officer parked in a police cruiser directly in front of him. Mr. Green put his twelve-pack of beer down next to a garbage can, then got into his car and drove away. Several of Mr. Green's friends were also in his car. The police officer who witnessed this scene, Officer Bradley J. Ades of the Fort Myers Police Department, testified at the hearing. Officer Ades testified that, because of the ongoing problems the police were having with Fowler Liquors, he stopped by there to check it out as part of his normal duties. As he pulled into the parking lot, he saw a "very young white male" walking out the front door of Fowler Liquors. The boy was carrying a twelve-pack of Budweiser Light beer. Officer Ades stated that he was surprised not to see the boy's father follow him out of the store, because the boy looked so young. The boy got into his car and drove away. Officer Ades followed him for a little more than one block, then pulled him over. Officer Ades interviewed Mr. Green and photographed him. Mr. Green admitted that he bought the beer in Fowler Liquors, and that he and the other boys in his car intended to drink it. Because the sale of alcohol to a minor is a misdemeanor, and he did not witness the sale, Officer Ades could not make an arrest. The next day, he forwarded to the Division the information concerning his stop of Mr. Green. Agent Brian D. Sauls of the Division contacted Mr. Green and asked him to come to the Division's offices for an interview. Mr. Green agreed. Agent Sauls conducted a photographic suspect lineup, and Mr. Green identified Samer Barghouthi as having been behind the counter at Fowler Liquors at the time he purchased the twelve-pack of Budweiser Light on June 15, 2002. The incident involving the sale to Mr. Green formed the basis of the Administrative Action that led to DOAH Case No. 03-0431. Fowler Liquors did not contest the evidence that a sale was made by Fowler Liquors to Mr. Green, an underage person, on June 15, 2002, or that Samer Barghouthi was present at the counter when the sale was made. On the evening of June 17, 2002, Justin C. Bender, then eighteen years of age, entered Fowler Liquors to buy beer. Mr. Bender testified that he had purchased alcohol at Fowler Liquors more than 40 times and had never been asked for any identification. Mr. Bender stated that he has seen friends and other people whom he knew from school inside Fowler Liquor Store. Mr. Bender also testified that he had discussions with other people about Fowler Liquors being a place where underage people could purchase alcoholic beverages. On June 17, 2002, Mr. Bender purchased a twelve-pack of Budweiser beer and a quart of Heineken beer, then left the store. Mr. Bender purchased the beer from Steve Barghouthi, the father of Samer Barghouthi. Steve Barghouthi did not ask Mr. Bender his age, nor request any identification to prove that he was at least 21 years of age. Mr. Bender had made no effort to alter his appearance or make himself look older than eighteen. On June 17, 2002, Anthony J. Smith, the chief of law enforcement for the Division, visited the Fort Myers office. He asked Captain Pendarakis to inform him of cases her office was involved in, and the subject of Fowler Liquors was discussed. After dinner that evening, Chief Smith drove by Fowler Liquors to take a look at the store. As he drove through the parking lot, Chief Smith saw Mr. Bender exiting the store with his beer. Chief Smith stopped him to determine how old he was. Mr. Bender produced a valid driver's license that showed he was eighteen years old. Chief Smith searched Mr. Bender for fake identification, but found none. Chief Smith asked Mr. Bender if he would be willing to return to Fowler Liquors and make another purchase that Chief Smith could observe. Mr. Bender agreed to do so. Chief Smith telephoned Captain Pendarakis and asked her to bring marked cash for Mr. Bender to purchase beer. Captain Pendarakis arrived with the cash. She went into Fowler Liquors to ascertain whether it would be safe for Mr. Bender to return to the store. After Captain Pendarakis determined the store was safe, Mr. Bender entered the store. Chief Smith and Captain Pendarakis watched the transaction from across the street. They had a clear view through the window of the liquor store. They observed Mr. Bender get a carton of beer, put it on the counter, pay for it, and walk out the door. After Chief Smith and Captain Pendarakis viewed the sale to Mr. Bender, they went into the store to arrest the person who had made the sale, Samer Barghouthi. Mr. Barghouthi was arrested and taken to the Lee County Jail. The incident involving the sale to Mr. Bender formed the basis of the Administrative Action that led to DOAH Case No. 03-0217. Fowler Liquors did not contest the evidence that a sale was made by Fowler Liquors to Mr. Bender, an underage person, on June 17, 2002, or that Samer Barghouthi, the licensee, had made the sale. In mitigation, counsel for Fowler Liquors argued that license revocation would be unfair because Samer Barghouthi is no longer involved in the operation of the business, having signed over his interest to his uncle, Shahir Daghara. Counsel contended that Mr. Daghara acted to remove Samer Barghouthi from the premises of Fowler Liquors as soon as he learned that Mr. Barghouthi was making sales to underage persons. This contention is not credible. The two sales that are the subject of these proceedings occurred nearly one month after the murder of Mr. Cubello, which was widely known to have occurred after Mr. Cubello purchased alcoholic beverages in Fowler Liquors. The two sales also occurred after Mr. Barghouthi had been interviewed by Captain Pendarakis about sales of alcoholic beverages to minors. Moreover, Officer Cecil Pendergrass of the Fort Myers Police Department testified that Samer Barghouthi was still working at Fowler Liquors on July 1, 2002, two weeks after his arrest for selling alcoholic beverages to Justin Bender. There is no record evidence that Mr. Barghouthi transferred his interest in the business to Mr. Daghara. At most, the Division's files indicate that at some point, Fowler Liquors represented to the Division that Mr. Daghara had taken a 49 percent interest in the business. The file also contains an undated "Current Licensee Update Data Sheet" on which Samer Barghouthi's name is crossed through, but Fowler Liquors offered no sworn testimony to explain the significance of this document. Further, even if Mr. Daghara did take over the business, there is no evidence that he took any steps to remove Mr. Barghouthi from the premises of Fowler Liquors, or did anything else to address the problem of selling alcoholic beverages to minors. Officer Pendergrass, who is the community coordinator for the area of Fort Myers that includes Fowler Liquors, also testified that he has been called to Fowler Liquors on a regular basis to deal with code enforcement problems, fights between family members, drug sales, robberies in the parking lot, and civil problems between the owners over refrigeration equipment. Officer Pendergrass testified that the police department's statistics establish that Fowler Liquors is the nucleus of criminal complaints in the area, and that in the last year, the Fort Myers Police Department has had over 300 calls for service to Fowler Liquors.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco enter a Final Order revoking the license of Barghouthi Enterprises, Inc., d/b/a Fowler Liquor Store. DONE AND ENTERED this 5th day of June, 2003, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 5th day of June, 2003. COPIES FURNISHED: Michael Martinez, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Captain Tania Pendarkis 4100 Center Point Drive Suite 104 Fort Myers, Florida 33916 John Kyle Shoemaker, Esquire Post Office Box 1601 Fort Myers, Florida 33902 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Peter Williams, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent committed the unlawful employment practice alleged in the Employment Complaint of Discrimination filed with the Florida Commission on Human Relations (FCHR) and, if so, the appropriate relief for such action.
Findings Of Fact For purposes of this case, the Petitioner began his employment with the Respondent in July of 2007. Although the Petitioner had worked for the Respondent in prior years (at another location), he had voluntarily left the company to pursue other opportunities. When the Petitioner returned to employment with the Respondent in connection with this case, it was ten years after a heart transplant. At the time of hiring, the Respondent knew the Petitioner's medical condition and age. The Petitioner is approximately 61 years of age. The Respondent is a national corporation with several sites for engineering and manufacture of its products. The Respondent is an equal opportunity employer and maintains policies prohibiting unlawful discrimination. One of the Respondent's facilities, Sykes Creek, is located in Brevard County, Florida. The Petitioner was hired to work at the Sykes Creek facility in the role of engineering supervisor. The Sykes Creek site builds luxury power yachts ranging from 50–to-60 feet in length. The price of these yachts runs from approximately $900,000 to $2,000,000 each. Typically, the yacht is ordered and customized to the buyer's specification. The Petitioner was responsible for supervising and directing work at Sykes Creek and reported to Kevin Shaw, his immediate supervisor. Mr. Shaw in turn reported to the plant manager, Steven Fielder. The Petitioner reviewed the work and attendance of approximately 21 hourly employees. When the Petitioner was hired (2007), the Sykes Creek facility produced 116 yachts and employed approximately 575 people. Within the Petitioner's department (engineering) there were 26 people; four others like Petitioner were salaried employees. The economic crunch that struck most of the nation drastically reduced the Respondent's business. In 2008 the Respondent instituted unpaid furloughs and layoffs due to the lack of business. By 2009 the economic condition in the industry had not improved. Accordingly, the Respondent had to make additional cuts to its staff. To that end, Mr. Fielder advised Mr. Shaw that the Petitioner's department would have to be cut to reduce the number of hourly employees and one salaried employee. To determine who should be cut, the Respondent looked to the number of years of service with the company and the skill set/education they provided for the facility. The Petitioner had the shortest length of service with the Respondent except for an employee named Julie Halesma. That person was not chosen for lay-off because she was a credentialed industrial engineer. The Petitioner did not have those credentials. The Petitioner was not offered a lower, hourly paid position because he did not have the skill set to perform the work as well as the hourly employees who were already doing the jobs. A number of employees were laid off the same day the Petitioner was dismissed. The Petitioner's job position was eliminated and has not, as of the date of hearing, been restored. The Respondent has continued to lay off workers. In 2009 the Sykes Creek facility was down to 175 employees. The engineering department was down to 15 people. Absent a return to more prosperous times, it is not expected that the facility will be able to rehire employees. The job tasks that the Petitioner performed are now shared by other employees at the facility. Throughout his time at the Sykes Creek facility, the Petitioner was allowed to take time off as needed to attend to medical issues. Based upon the frequency of the medical leave, the Respondent knew or should have known that the Petitioner's medical condition required monthly treatment. The extent of the medical treatment, however, was unknown to the Respondent. As a salaried employee the Petitioner did not have to "punch the clock." The Respondent allowed the Petitioner to complete his work as he might dictate so that he was free to leave the facility to attend to his medical needs. Clearly, the Respondent knew the Petitioner had had the heart transplant at the time of hiring but that medical condition did not impede the Petitioner's ability to perform his job assignments. The medical situation required that he be absent, but there is no indication that Petitioner could not perform his job. The cost of the Petitioner's medical care was unknown to the persons charged with making the lay-off decisions. The cost of the Petitioner's medical care played no part in the decision to eliminate the Petitioner's job. Similarly, the Petitioner's age did not play a part of the Respondent's decision to eliminate the Petitioner's job. The Respondent articulated legitimate business reasons for eliminating the Petitioner's job position. Clearly the Respondent knew of the Petitioner's age at the time of hiring. The Respondent did not replace the Petitioner with a younger employee. The Respondent's explanation for whom it chose to retain in employment was not based upon an employee's age but rather legitimate business interests. Episodes during which the Petitioner required medical attention at the facility did not rise to a level to cause the Respondent to be concerned for Petitioner's medical well-being. Incidents of the Petitioner being light headed or with low blood sugar did not cause the Respondent to seek to eliminate the Petitioner's job 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 no cause for an unlawful employment practice as alleged by the Petitioner, and dismissing his employment discrimination complaint. DONE AND ENTERED this 9th day of March, 2009, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 March, 2009. COPIES FURNISHED: Rolf J. Bierman 1035 Palmer Road Rockledge, Florida 32955 Brian W. Koji, Esquire Bona M. Kim, Esquire Allen, Norton & Blue, P.A. 324 South Hyde Park Avenue, Suite 225 Tampa, Florida 33606 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
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 The issue is whether Respondent discriminated against Petitioner based on Petitioner’s race.
Findings Of Fact Petitioner, Che Johnson, worked as a helper to full-time installers of hurricane shutters with Respondent. He was training to become a full-fledged installer. Respondent, AABC, d/b/a Roll-A-Guard (“Roll-A-Guard” or “Respondent”), is a company that installs hurricane shutters from its offices and warehouse in Largo, Florida. Petitioner filed an Employment Complaint of Discrimination with the Florida Commission on Human Relations against Respondent, stating, under penalty of perjury, that Respondent had 15+ employees. When asked by Respondent’s president why he believed 15 people were employed by Respondent, he was unable to give an answer. Petitioner admitted he never saw 15 people at the warehouse when he was working there. Roll-A-Guard, between October 21, 2016, and January 20, 2017, which covers the entire time Petitioner was employed with the company, never had more than seven employees on the payroll. This was substantiated by a payroll report from Respondent’s Professional Employer Organization and by testimony of Respondent’s president. This number of employees is substantially below the statutorily required number of employees (15) for Roll-A-Guard to be deemed an “employer” for purposes of the Florida Civil Rights Act of 1992. Petitioner, an African-American male, claimed that he was discriminated against on the job by his boss and president of Roll-A-Guard, Andrew J. Ayers, referring to him in a racially discriminatory way when calling on customers on several occasions. Petitioner claims that Mr. Ayers asked customers on three to four occasions whether they thought Mr. Johnson “was as cute as a puppy dog.” This offended Mr. Johnson, and he believed the statement to be discriminatory against him on the basis of his race. Mr. Johnson offered no additional testimony, nor any additional evidence, other than his own testimony that these remarks were made by Mr. Ayers. Mr. Ayers denied, under oath, that he had ever referred to Mr. Johnson as a “puppy dog,” and was especially offended not only that Mr. Johnson never raised the issue with him, but that Mr. Johnson went to the company’s Facebook page after his employment was terminated, and posted comments about Roll-A-Guard being a racist company that discriminated against African- Americans. The other employees of Roll-A-Guard, who testified at hearing, also never heard the “puppy dog” remarks allegedly made, nor did they believe Mr. Ayers was prejudiced in any way against Mr. Johnson. Although the lack of 15 employees by Respondent fails to invoke the jurisdiction of the Civil Rights Act of 1992, the evidence at hearing demonstrates Mr. Johnson’s termination from employment was unrelated to his claim of having been called a “puppy dog” by Mr. Ayers. On the day Mr. Johnson was terminated from employment, January 20, 2017, Mr. Ayers informed the workers that no one should leave the warehouse for lunch due to a rush job on a substantial order of hurricane shutters. Despite Mr. Ayers’ warning, Mr. Johnson left for lunch in the afternoon and was unreachable by Mr. Ayers, who attempted to text him to order him to return to work. Mr. Johnson did not immediately respond to the texts. Although Mr. Johnson eventually responded to the texts from Mr. Ayers after 45 minutes to an hour, Mr. Ayers was perturbed by that point, and actually hired a new worker to replace Mr. Johnson, and told Mr. Johnson not to return to work since he was fired. Mr. Ayers fired Mr. Johnson, in part, because he believed Mr. Johnson was not only leaving for lunch, but for the weekend. Other witnesses working that day confirmed this by testifying they heard words to the effect of “See you Monday.” Mr. Johnson admitted he left for lunch, but testified that he intended to return that afternoon after he had eaten.
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 finding that Respondent, Roll-A-Guard, is not an “employer” and, therefore, not subject to section 760.10, Florida Statutes, or any of the provisions of the Civil Rights Act of 1992, and dismissing Petitioner’s charge of discrimination against Respondent. DONE AND ENTERED this 3rd day of January, 2018, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 January, 2018. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed) Che Johnson 2428 Fairbanks Drive Clearwater, Florida 33764 (eServed) Andrew J. Ayers Roll-A-Guard Suite 206 12722 62nd Street Largo, Florida 33773 (eServed) Cheyanne Michelle Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue The issue is whether the Respondent discriminated unlawfully against the Petitioner by discharging him because of a handicap contrary to Chapter 760, Florida Statutes, and, if so, the nature and extent of financial loss suffered by the Petitioner.
Findings Of Fact The Petitioner, Shannon M. Spence, was employed from March 1993 until May 1, 1993 by the Respondent. The Respondent is an employer as defined by Chapter 760, Florida Statutes. The Petitioner, who earned on average $125/week, was employed by the Respondent as a bouncer and "bar backer", a person who assisted the bartender. On or about April 29, 1993, the Petitioner suffered an on the job injury which was duly reported to the employer and for which the Petitioner was treated at a local hospital pursuant to arrangements made by the employer. The Petitioner's injury was determined to be a right inguinal hernia, and the Petitioner was cautioned against lifting more than 25 pounds and standing for long periods of time. The Petitioner reported for work the following day, and communicated to his supervisor his inability to lift and to stand for long periods of time. His supervisor, Jess Wall or J.W., placed the Petitioner on security detail for the parking lot and entrance. There were additional light duties available for security personnel within the employer's business in which the employee could have been placed. The Petitioner's employment was terminated later that evening. The testimony is conflicting regarding whether the Petitioner was discharged because he was dating another employee, or because he was injured, or quit in sympathy with Jess Wall, who was also terminated on that evening. The most credible evidence is that the Petitioner was discharged because of his injury, but was told it was because he was dating another employee. The prohibition against dating was a new rule, it was applied against the Petitioner without any prior warning, the female employee was not discharged, and the Petitioner was the only person discharged for this activity although there were others who dated employees. The alternative theory that Petitioner quit in sympathy with the head bouncer, Mr. Wall, is specifically rejected for lack of credibility of the various witnesses. The Petitioner subsequently settled his workman's compensation claim arising from this injury with the Respondent for $15,000. No details were received regarding the allocation of moneys for medical and wages. The Petitioner is entitled to back wages from his discharge until the hearing on April 27, 1995, less any mitigation, including any portion of the settlement of his workman's compensation claim attributable to lost wages, occurring after surgical repair of the hernia when the Petitioner was reemployed. The Petitioner is entitled to reasonable costs and attorneys fees.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Commission find that the Petitioner was unlawfully discriminated against by the Respondent, and that the Respondent be ordered to pay the Petitioner his lost wages from May 1, 1993 until April 27, 1995 less any amounts the Petitioner earned during this period and any amounts included in the workman's compensation settlement specifically provided for wages; that the Commission retain jurisdiction for the award of damages and attorney's fees and costs; and the Commission remand the matter for a determination of the attorney's fees and costs and to permit the Respondent to present any evidence in mitigation of its damages. DONE and ENTERED this 20th day of June, 1995, in Tallahassee, Florida. STEPHEN F. DEAN, 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 20th day of June, 1995. APPENDIX The parties filed proposed findings which were read and considered. The following states which of their findings were adopted and which were rejected and why: Petitioner's Recommended Order Findings Paragraph 1,2 Subsumed in Paragraph 1 and 2. Paragraph 3-5 Subsumed in Paragraphs 3-5. Paragraph 6-8 Subsumed in Paragraphs 6-9. Paragraph 9 Subsumed in 3 and 11. Respondent's Recommended Order Findings Paragraphs 1-3 Paragraphs 1-3 Paragraph 4 Rejected because the date was April 29, 1993. Paragraph 5 Subsumed in Paragraphs 4,5. Paragraph 6,7 Rejected as contrary to more credible evidence. Paragraph 8,9 Subsumed in Paragraphs 10,11. COPIES FURNISHED: James P. Tarquin, Esquire Michael B. Staley, Esquire P.O. Box 906190 Ocala, FL 34478 John Daley, Esquire 201 E. Pine Street 15th Floor Orlando, FL 32801 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113
Findings Of Fact Max R. Jones owns a small family grocery at 2020 North Main Street in Kissimmee, Florida. He and his wife, Esther M. Jones, doing business as Jones Grocery and Meats at that address, are now and at all relevant periods have been licensed by the Division of Alcoholic Beverages and Tobacco (DABT) for the sale of wine and beer under license number 59-00056 2APS. Besides beer and wine, the Jones' sell groceries, meats and delicatessen items. Mr. Jones and his wife run the business with the assistance of four or five employees. Sometime prior to December 16, 1988, DABT received an anonymous complaint that underage persons were purchasing alcoholic beverages at the Jones' licensed premises. On December 16, 1988, at approximately 2:55 p.m., DABT Investigators, Steven Green and Ellie Doyle, entered Jones Grocery and Meats with an underage operative, Michelle Haynes Newman. Ms. Newman, whose birthdate is March 7, 1970, was eighteen years old at the time. As instructed previously by Investigator Green, Ms. Newman took the money he gave her, went to the cooler and obtained a 6-pack of Miller draft beer. She proceeded to the checkout counter and paid for the beer. At no time did the clerk who sold her the beer ask her age or request any identification. Ms. Newman immediately gave the beer to one of the investigators who accompanied her out of the store. She had never been in the premises before and has not visited there since the December 16th occasion. Investigator Green interviewed the clerk, Lisa K. Dahlhauser, and informed her that she had sold alcoholic beverages to an underage person. He later informed Max Jones of the sale and violation. Consistent with the policy of the DABT, no administrative complaint was filed on this first offense. Lisa Dahlhauser had been working for Jones only one or two days. He had personally observed her checking identification during the day. She left her employment at Jones' grocery about four weeks after the incident. On February 20, 1989, at approximately 4:30 p.m., Investigator Green; another DABT Investigator, Mark Douglas; and an underage operative, Kris Ann VanShaick, approached Jones Grocery and Meats. Ms. VanShaick, now married and known as Kris Copeland, was born on March 30, 1970, and was eighteen years old at the time. The agents gave the operative their standard instructions: to use a correct driver's license; if asked, to present the license and to tell her correct age; and to receive, but not consume, the alcoholic beverage. Ms. VanShaick entered the store with Investigator Douglas. She obtained a single can of Coors Light beer and took it to the counter. The clerk, Irene Bower, asked for identification and she produced her driver's license, showing her correct birthdate. The clerk examined the license, took the money and sold her the beer. At the time of the December 16, 1988 sale, Max Jones was not near the counter and was unaware of the sale until he was informed by Investigator Green. On the second occasion he was near the cashier when Ms. VanShaick obtained the beer from the cooler. He thought she looked young and told the clerk to check her identification. He was going toward the back room of the store when the purchase was actually made. He heard the clerk ask for the identification and saw the young woman present it. The clerk was terminated at the end of the week. Max Jones counsels new employees regarding checking identification cards. He does not have a formal training program and has not taken advantage of the training offered by the DABT, but he has conveyed to his employees that he does not tolerate sales to minors. There is a card on the cash register with the date by which the customer must be born in order to purchase alcoholic beverages. Max Jones presumes that his employees can read and compute figures.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED That a Final Order be entered dismissing the Notice to Show Cause. DONE AND RECOMMENDED this 9th day of October, 1989, in Tallahassee, Leon County, Florida. MARY CLARK 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 9th day of October, 1989. COPIES FURNISHED: Thomas A. Klein, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Addison E. Walker, Esquire 4313 Neptune Road St. Cloud, Florida 32769 Stephen R. MacNamara, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Joseph A. Sole General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Leonard Ivey, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
Findings Of Fact Paul Allen Cohen moved to Florida from New York City five years ago. Since he was 13 years old, he was held various jobs in the retail grocery business. At the time of the hearing, he was the principal stockholder in the corporate petitioner that is seeking a license for package sales in these proceedings. The corporation owns a grocery store on North Miami Beach in which Mr. Cohen and his parents were working at the time of the hearing. Mr. Cohen has never been fired from a job. He has had several bank accounts and had three at the time of the hearing, but has never written bad checks. He follows the food stamp rules meticulously and enjoys a good reputation for moral character among his business acquaintances. Aside from traffic arrests, Mr. Cohen has been arrested on a single occasion. Detective Mark Allen Wood, a Hollywood policeman, made the arrest on the night of December 26, 1979, outside Richard's Department Store in Hollywood. As a result of conversations the arresting officer had with Mr. Cohen in the store men's room earlier in the evening, Detective Wood charged Mr. Cohen with "offering to commit a lewd and indecent act." This charge became "lewd and lascivious act," Petitioner's Exhibit No. 3, and Mr. Cohen pleaded nolo contendere on June 25, 1980, at which time adjudication of guilt was withheld, a fine of $240 was levied and court costs of $10 were assessed. Neither the presiding judge nor Mr. Cohen's counsel at the time told Mr. Cohen what effect this disposition would have on his arrest record. His then counsel did advise him that none of his "rights" would be "infringed". Mr. Cohen did, in fact, solicit sexual favors from Detective Wood on the night of December 26, 1979, but declined Detective Wood's invitation to go to a parking lot with him for that purpose. There was no physical contact between the two men until the arrest. Mr. Cohen testified that he did not consider himself a homosexual and that this was an isolated incident. According to Detective Wood, the men's room at Richard's Department Store was a notorious meeting place for homosexuals. In connection with petitioner's application for a beverage license, Mr. Cohen completed a personal data form on which he indicated that he had never been arrested for any offense other than minor traffic offenses. Even though he knew this was false, he swore that the form had been filled out truthfully. At the hearing, Mr. Cohen testified that he did not want his parents to learn of his arrest.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent deny petitioner's application. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 9th day of January, 1981. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1981. COPIES FURNISHED: Maurice Rosen, Esq. Suite 112 16666 Northeast 19 Avenue North Miami Beach, Florida 33162 Dennis E. LaRosa, Esq. 725 South Bronough Street Tallahassee, Florida 32301
The Issue The issue in this case is whether the Petitioner timely filed a complaint of discrimination in accordance with the provisions of Chapter 760, Florida Statutes (2009).
Findings Of Fact Prior to November 28, 2007, the Petitioner was employed by the Respondent. On November 26, 2008, the Petitioner sent a Technical Assistance Questionnaire (TAQ) to the Florida Commission on Human Relations (FCHR). The TAQ was submitted via facsimile transmission and was not signed. The Petitioner believed she was complying with the directives of the FCHR website and that follow-up assistance (from the FCHR) would not be required. The Petitioner did not understand that a signature was required, notwithstanding the place for same (along with a date) on page 2 of the TAQ. The Petitioner maintains that the FCHR website instructions were unclear and that she erroneously relied on the directions that did not specify she was required to sign the TAQ. The Petitioner filed a signed Charge of Discrimination with the FCHR on January 14, 2009. On February 5, 2009, the Petitioner received a "Notice of Receipt of Complaint" from the FCHR. At the same time, a copy of the complaint was furnished to the Respondent, who was then, presumably, put on notice of the Petitioner's charge. The FCHR did not advise the Petitioner that the TAQ had to be signed. In the course of its review of the instant charge, the FCHR entered a determination of "untimely." Per the FCHR's assessment, the charge of discrimination was filed more than 365 days from the last incident or act of discrimination. Thereafter, the Petitioner elected to file a Petition for Relief to challenge the determination and to seek relief against the Respondent. The Commission then forwarded the matter to the Division of Administrative Hearings for formal proceedings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a Final Order dismissing the Petitioner's claim of discrimination. DONE AND ENTERED this 29th day of September, 2009, in Tallahassee, Leon County, Florida. J. D. 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 29th day of September, 2009. COPIES FURNISHED: Mark Levitt, Esquire Allen, North & Blue 1477 West Fairbanks Avenue, Suite 100 Winter Park, Florida 32789 Marie C. Perez 517 29th Street West Palm Beach, Florida 33407 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
