The Issue The issue for consideration in this hearing is whether Petitioner, Larsen Communications and Professional Services, Inc., should be certified and designated as a Minority Business Enterprise.
Findings Of Fact At all times pertinent to the issues herein, the Commission on Minority Economic and Business Development was one of the agencies in Florida responsible for the certification of women and minority owned businesses in Florida as Minority Business Enterprises. Larsen Communications and Professional Services, Inc. was operating a video production and public relations company in Tampa. Petitioner, as a part of its business operation, sought and performed contracts with various agencies of the State of Florida. Valerie D. Larsen, current President and 75 percent owner of the Petitioner corporation, is a graduate of high school in Hillsborough County. After graduation, she went to work as a legal secretary and worked in that field for several years. She is currently a financial analyst with GTE Data Services. From 1991 through 1993 she was a student at the Tampa Academy of Performing Arts from which she claims to have graduated, though she has no diploma to so indicate. While there, she took training in on-camera acting, camera handling, voice over, and other facets of video production. She also acted in and produced plays, directed plays, and was active in all aspects of theatre production, both from the artistic and the business sides. In March, 1990, Ms. Larsen married her husband, a 1973 graduate of Florida State University with a bachelor's degree in Broadcast Communications. Mr. Larsen was, for many years, a television reporter in the Tampa area as well as elsewhere. He has considerable experience in the on-camera presentation of news stories and has written many of the pieces he delivered on air. From the very beginning, Mrs. Larsen wanted to own her own business, and over the years, as she worked as a legal secretary and with GTE, she maintained this ambition. Several years ago, when her husband was put out of work, she got the idea of starting her own production company, not only to give herself an opportunity to do that which she most enjoyed doing, but also to give her husband something to do as well. Ms. Larsen admits that she made a big mistake in not hiring an attorney to help her draft the business organization papers. Instead, she went to Office Depot and purchased an incorporation kit which she filled out without any professional advice and submitted to the Florida Secretary of State's office for registration. In doing so, she made her husband the President of the company even though she was in charge and actually made the business decisions. She did this in order to help her husband maintain his self respect. This officer designation was corrected sometime thereafter. When Ms. Larsen graduated from the Tampa Academy of Performing Arts she knew she wanted to start her own company and what she liked to do. Video production seemed to fit the bill, and on September 4, 1992, because she no longer could act due to her pregnancy, she started the company. The initial funding for the company came from a $2,500 withdrawal from funds owned jointly by the parties and to which she had contributed over the years. At the time the company was started, Mr. Larsen had his severance pay of $3,200 per month for two or three months. This money was used for the family's living expenses. The money which was invested in the company, and which had been in the joint account, came, Ms.Larsen avers, from her salary from GTE Data Services. Ms. Larsen is currently President of the company. She professes to make all business decisions. She consistently researches jobs to bid on and is a subscriber to the Florida Administrative Weekly, which lists bid opportunities. If she find something she feels the company can handle, she contacts the agency and asks for a proposal package. Then, she claims, she prepares and submits the company's bid. Ms. Larsen on the one hand claims to handle all the company accounting, but on the other hand states she hires a CPA to do the payroll. She claims also to make all the arrangements for financing and borrowing for the company, the hiring and firing of personnel, and the solicitation of work for the company. There are no full time employees, however, besides the Larsens. Usually, people with the particular skills needed for a specific job are contracted with on a tempor ary basis. She decides who she wants to use on a particular job, determines the costs as to how much each element will cost, and comes up with a final bid price. She might have Mr. Larsen do some of the research and plug details into the computerized bid shell, but she does the majority of the bid process and makes the ultimate decision as to whether a bid will be submitted. She also pays all the bills. Mrs. Larsen claims she must do a lot of research for the business which she does in her spare time at work, during her lunch periods and in the evenings. She also calls Mr. Larsen at home and gives him things to look up. For her research, she uses the University of South Florida library, two newspapers and other research sources dealing with the subject matter of the pending bid, so that she can effectively evaluate the project and submit an appropriate bid. Bid prices are based on what it will cost her to hire the required people and lease the required equipment. Since the company is small, she hires most artists, such as writers, photographers, editors and graphic artists, on a per job basis. If Larsen is successful and is awarded a bid for a particular production, Ms. Larsen has the initial job of preparing the script for the production, the blueprint to present to the photographer. A script is prepared for each production designed around the requirements of that particular subject. Most scripts are written on the basis of her research and that of her husband, and the skills needed to prepare a script include an ability to do research, writing skills, formatting skills, experience and creativity. Once the script is prepared, it is presented to the client for review and suggestions. Upon final approval, Ms. Larsen hires the photographer who will do the shooting. Often the photographer works alone, but sometimes either Ms. or Mr. Larsen accompanies him. Mr. Larsen does some of the research and the typing and purchases some supplies, but major purchases are approved and determined by Ms. Larsen. He also is responsible for answering the phone. Mr. Larsen is often the narrator on their productions, which is appropriate because of his on-air experience and his voice. In Mr. Larsen's prior career as a news journalist he wrote some of his material and appeared on camera. The nature of news broadcasting, however, is different from the productions of Larsen Communications. Whereas news reporting is primarily a recitation of facts which have occurred, Larsen's productions are far more creative, designed to tell a story or sell a particular product or point of view. Therefore, his prior experience, while good for on camera work, is not necessarily translatable to the management of the work the company does. In fact, Ms. Larsen is of the opinion that he does not have any skills she does not have, and is convinced that if he were not with the company, his absence would not have much effect on its operation. She is quite confident that she could do what he does or could easily hire someone to do what he does. Larsen Communications is a small company. To date, not more than 10 contracts have been awarded to it, and in each case, the solicitation process described above was used. Earnings from the company are split. Ms. Larsen receives an intermittent draw, depending on the company income. Mr. Larsen receives a set salary of $1,000 per month. There are no bonuses paid because this is all Ms. Larsen feels can be afforded, and even Mr. Larsen's salary is based on the company's money flow. He has been a salaried employee for several years, but only recently has he been paid by check. Aside from Ms. Larsen's 75 percent of the stock and Mr. Larsen's 25 percent, there are no other owners of the company and no one else shares any risk of loss. If the business fails, Ms. Larsen will bear the biggest loss, and Mr. Larsen would have to find a job elsewhere. The original application for MBE certification submitted by Larsen in 1994 sought certification in three areas: video production, public relations and media relations. This has been amended and now the only certification sought is that in video production. Ms. Larsen believes that all three areas are interrelated. Mr. Larsen confirms the testimony of Ms. Larsen regarding the responsibility for accomplishment of duties within the corporation. When the company was formed, he was unemployed and he agreed to support Ms. Larsen in the operation of her business; the company was her brainchild. She is the one who secured and filled out the incorporation forms that were submitted to the Secretary of State's office, and he did not know what the papers intended or what they said he was to do. He knows he was the original President of the company and a Director, but he also recognizes that those designations have been changed in the interim. Based on his education and experience, he believes he is qualified in video production, public relations and media relations. However, he was in news broadcasting by experience and throughout his career, and the business of Larsen Communications is totally different - more like entertainment. Mr. Larsen indicated he probably could be called the Marketing Director of the company, but it is a small company and in reality he has no title. He is authorized to make decisions on minor matters, but the ultimate decisions are made by Ms. Larsen. The company is her baby, her brainchild and her business, and he agrees that if he were to walk away from the company, while she might have trouble running the business alone while maintaining a full time job elsewhere, she has the skills, the experience and the ability to do so. He could be replaced easily. At no time, according to Mr. Larsen, did he ever run the company. He has researched and written scripts but Ms. Larsen has always had a major idea or input into whatever he has done and he works, he claims, at her direction. When Larsen's application was forwarded to the Commission, it was evaluated by Mr. Ringgold who conducted a telephone interview with Mr. and Ms. Larsen on August 29, 1994. At this point, the Commission now agrees there is now no issue as to the ownership of the corporation and that Larsen Communications in owned by Ms. Larsen. Nonetheless, Mr. Ringgold recommended that Larsen's application be denied under the provisions of Rule 60A-2.005, F.A.C. because he believed that Ms. Larsen does not assume the majority share of risk; that she does not have the authority to control and the experience to exercise dominant control over the corporation; that she does not have sufficient technical capability to run the corporation; that her control is not real, substantial and continuing; that she does not control the purchase of equipment and supplies; that she does not have independence in seeking business and that she does not have direction and control over all aspects of the business. Because he now accepts the fact that Ms. Larsen has knowledge and control of the company's financial affairs, the preexisting objection on that grounds is withdrawn, but taken together, as of the date of the hearing, Mr. Ringgold still recommended denial. No evidence was presented by the Commission, other than the testimony of Mr. Larsen which tended to support Petitioner's position, which would show with particularity any basis for disbelieving Petitioner's assertions. When Mr. Ringgold made his recommendation for denial, his decision was based on the matters submitted by the applicant and the information gained in the telephone interview. He did not make an on-site inspection of Larsen's facility. By the same token, he did not know of Ms. Larsen's schooling at the Tampa Academy of performing Arts at the time he made his recommendation. He does not recall ever having changed his mind regarding a recommendation in the nine years he has been doing this work. Mr. Ringgold has his educational credentials in speech and has some knowledge of video production having worked in that area for his uncle while in school.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner, Larsen Communications and Professional Services, Inc., be granted certification as a Minority Business Enterprise. RECOMMENDED this 29th day of August, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 29th day of August, 1995. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 94-5839 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Not a Finding of Fact but a Conclusion of Law. - 4. Accepted and incorporated herein. Accepted and incorporated herein except for references to F.A.C. which are Conclusions of law. - 8. Accepted and incorporated herein. FOR THE RESPONDENT: None Submitted. COPIES FURNISHED: Miriam L. Sumpter, Esquire 2700 North MacDill Avenue Suite 218 Tampa, Florida 33607 Joseph L. Shields, Esquire Commission on Minority Economic and Business Development 201 Collins Building 107 West Gaines Street Tallahassee, Florida 32399-2000 Crandall Jones Executive Administrator Commission on Minority Economic and Business Development Collins Building - Suite 201 107 West Gaines Street Tallahassee, Florida 32399-2000
The Issue Whether Petitioner's application for a telephone salesperson license should be approved.
Findings Of Fact Respondent, the Department of Agriculture and Consumer Services (Department), is the state licensing and regulatory agency charged with the responsibility of administering and enforcing Chapter 501, Part IV, Florida Statutes, the Florida Telemarketing Act. On or about November 29, 1999, Petitioner, Gary A. Pappas (Petitioner), applied for licensure as a telephone salesperson. By letter dated February 10, 2000, the Department issued a letter denying Petitioner's application for licensure. According to the letter, the basis for denial of the license was Petitioner's felony conviction and his failure to disclose information relative to the felony conviction on his licensure application. As a part of the Department's application review process, a background investigation is conducted on each applicant. In this case, the Department had such an investigation done on Petitioner. The results of the background investigation of Petitioner revealed that he had been charged and convicted of a felony offense. According to the background investigation report, on October 17, 1988, in Pinellas County, Florida, Petitioner was convicted of a felony offense, constructive possession of an illegal substance. The report further indicated that adjudication was withheld. The Department's application form for licensure as a telephone salesperson contained Question 3 which requested information concerning the applicant's criminal history. In pertinent part, the question is as follows: 3. Please complete this section if you: a. Have previously been arrested for, convicted of or are under indictment or information for a felony and, if so, the nature of the felony. Conviction includes a finding of guilt where adjudication has been withheld. * * * If you have not been subject to any charge set forth above and are not subject to any current or restrictive order, then mark your initials in the [preceding] box. Your true name at the time of the action: Court or administrative agency rendering the decision, judgement [sic] or order: Date of conviction, judgement [sic] or order: / / Docket# Name of governmental agency which brought the action: Nature of conviction, judgement [sic], order or action: In response to Question 3, Petitioner initialed the box next to the statement, "If you have not been subject to any charge set forth above and are not subject to any current or restrictive order, then mark your initials in the box. The term "charge set forth above" referred to the offenses described in subsections a, b, c, d, and/or e of Question 3. In this case, only subsection a of Question 3 is relevant. By initialing the box mentioned in paragraph 7 above, Petitioner was indicating that he had never been convicted of a felony. On November 29, 1999, Petitioner signed his completed application for licensure as a telephone salesperson. On the application, immediately above the applicant signature line, the following statement was printed in bold letters: I DECLARE UNDER PENALTY OF PERJURY THAT ALL OF THE INFORMATION PROVIDED IN QUESTIONS 1-3, AND IN THE EXHIBITS ATTACHED HERETO, IS TRUE AND CORRECT. At the formal hearing, Petitioner admitted that in 1988, he had been convicted of a felony and adjudication had been withheld. He also testified that the conviction was for the sale and possession of marijuana. Although Petitioner had been convicted of a felony, he failed to disclose the conviction on his application for licensure as a telephone salesperson. Petitioner testified that he was misinformed and had misread and misinterpreted Question 3. Petitioner also testified that because the incident occurred more than ten years ago and adjudication was withheld, he thought the conviction did not have to be disclosed on the application. Petitioner's stated justification for failing to disclose his 1988 felony conviction lacks credibility given the clear wording of Question 3 on the application for licensure. Notwithstanding Petitioner's statements to the contrary, his testimony established that he was capable of reading and interpreting the questions on the application, including Question 3. Petitioner has had no felony convictions since the aforementioned conviction in 1988.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order denying Petitioner's request for licensure as a telephone salesperson. DONE AND ENTERED this 13th day of September, 2000, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of September, 2000. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Brenda D. Hyatt, Bureau Chief Department of Agriculture and Consumer Services Mayo Building, Suite 508 407 South Calhoun Street Tallahassee, Florida 32399-0800 William N. Graham, Esquire Department of Agriculture and Consumer Services Mayo Building, Room 515 407 South Calhoun Street Tallahassee, Florida 32399-0800 Gary A. Pappas 2555 Oak Trail North, Number 114 Clearwater, Florida 33764
The Issue The issues in the case are whether the allegations of the Administrative Complaint are correct, and, if so, what penalty, if any, should be imposed.
Findings Of Fact At all times material to this case, the Respondent was a seller of business opportunities registered with the Petitioner, holding registration number 2000-054, and located at 3101 Twenty-Second Avenue South, St. Petersburg, Florida 33712. The Respondent was the successor in interest to American Cash Machine, Inc., and is responsible for fulfilling the obligations of the previous company. At all times material to this case, Gilbert B. Swarts was the president and chairman of the board of the Respondent. On July 8, 2005, the Respondent entered into a contract with Bonnie Campbell as trustee of the Campbell Family Trust (purchaser) under which the purchaser agreed to purchase 36 "CardPayment" machines from the Respondent, and the Respondent agreed to place the machines in appropriate business locations on behalf of the purchaser. As required by the contract, the purchaser paid a total of $135,000 by check to the Respondent. At the time of the sale, the Respondent provided a disclosure form to the purchaser which stated that 200 "CardPayment Business Opportunities" had been sold by the Respondent to other purchasers by the end of 2005 and that 25 "Internet Kiosk Business Opportunity [sic]" had been sold by the Respondent to other purchasers by the end of 2002. The disclosure form also stated that the Respondent would provide to the purchaser, the names, addresses, and telephone numbers of the ten purchasers located closest to the purchaser; however, the disclosure form did not include the information, and the Respondent did not otherwise provide the information to the purchaser. The Respondent stocked the 36 CardPayment machines, but failed to acquire business locations for all of the machines. The Respondent has asserted that after discussions with the purchaser, the parties agreed to "upgrade" the 36 CardPayment machines identified in the contract to 18 Internet Kiosk machines. The Respondent was subsequently unable to acquire business locations for all of the Internet Kiosk machines. The Respondent has asserted that after discussions with the purchaser, the parties agreed to "upgrade" the 18 Internet Kiosk machines to 18 "Smart Terminal" machines. The CardPayment machines, Internet Kiosk machines, and Smart Terminal machines are different types of machines, and each type has a usage different from the others. The terms of the contract executed between the parties did not provide for the substitution of various machines upon failure by the Respondent to place the machines into operation. The contract required the Respondent to rebate a portion of the sales price for each month during which each CardPayment machine was not placed for operation. No contract for the purchase of either the Internet Kiosk or the Smart Terminal machines was executed by the parties. The disclosure information provided by the Respondent to the purchaser related to the Internet Kiosk machines was insufficient to comply with the statutory requirements addressed herein. No disclosure information related to the Smart Terminal machines was provided by the Respondent to the purchaser.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order finding that the Respondent has violated Subsections 559.803(11)(a) and (b) and 559.809(11), Florida Statutes (2005); imposing an administrative fine of $10,000; and placing the Respondent on probation for a period of three years subject to such conditions as the Department deems appropriate. DONE AND ENTERED this 8th day of February, 2008, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 8th day of February, 2008. COPIES FURNISHED: Eric H. Miller, Esquire Department of Agriculture and Consumer Services 2005 Apalachee Parkway Tallahassee, Florida 32301 Gilbert B. Swarts American Cash Machine, LLC 535 Twenty-Second Street South St. Petersburg, Florida 33712 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
Findings Of Fact In early 1984, the Florida Department of Law Enforcement in its Fingerprint Identification Section decided to replace some equipment used for purposes of analyzing finger prints. That equipment was three Kodak PR-1's, known as readers. The reason for the replacement concerned the fact that these machines had been in operation since 1969 and Kodak was no longer willing to undertake the service of the machines through a service agreement. Initially, the staff favored the idea of replacing the Kodak equipment with other Kodak equipment, having in mind the idea that Kodak was the only manufacturer that could meet the needs of this function within the Florida Department of Law Enforcement. If this suggestion had been accepted, then it would have been on the basis of a request to the Department of General Services to be given permission to enter into a contract with a sole source, namely Eastman Kodak. Indeed, preliminary steps were taken to purchase the Kodak IMT-50 reader-printer to substitute for the three PR-1's, as a noncompetitive purchase from the single source, Kodak. There had also been some discussion about the purchase of Kodak IMT-100's, a reader-printer which allowed multilevel blipping. That type of feature, i.e., multilevel blipping, was determined not to be necessary. Ultimately, the Florida Department of Law Enforcement determined to meet their needs for replacement of the PR-1 machines through a' competitive bidding, Bid No. 83-50. A copy of the invitation to bid may be found as Petitioner's Exhibit 14. This particular item is a response on the part of Lanier Business Products to the invitation to bid. Among the instructions in the invitation to bid was general condition Number 7 which reminded the prospective vendors to direct questions concerning the conditions and specifications set forth in the bid invitation to the Florida Department of Law Enforcement no later than ten days prior to the bid opening. Bid opening was scheduled for May 31, 1984. None of the vendors who offered bid responses questioned the meaning of any of the general conditions or specifications set forth in the invitation to bid related to the purchase of microfilm reader-printers as contemplated in the bid invitation. Eastman Kodak Company also submitted a bid. The bid response by Lanier Business Products was for the provision of a reader-printer known as the 900 Page Search manufactured by 3M. The Kodak product which was bid was the IMT-50 reader-printer. Another prospective bidder, Office Systems Consultants, submitted a "no bid," signifying the inability to meet the specifications of the invitation to bid. On May 31, 1984, the bid opening was held and a tabulation was made as to the bid responses offered by Lanier and Kodak. The unit price for each of the three microfilm reader-printers was $8,650 by Lanier and $9,040 by Kodak. Therefore, Lanier was the apparent low bidder on the project. Within the bid specifications are requirements which set forth specific needs for this project. One of those items pertains to film retrieval capability, and that provision states: Unit will retrieve, by automated means, 100 feet 16mm rolls of 5.4 mil film or 215 feet 16mm rolls of 2.5 mil film (such as Recordak AHU microfilm). Retrieval unit must be able to read, randomly, and ANSI standard document reference (Blip), and must have an advance-- return transport speed of 12 feet per second minimum. Related to lens requirements, the bid specifications indicated: Lens magnification must be 24:1 to be compat- operation. ible with present standards and be designed so that additional lens can be interchanged without interrupting the reader-printer Under the heading of general requirements the invitation to bid stated: By nature of the work requirements and pro- duction schedule, the equipment may be gener- ally described as a 16mm reader-printer capable of retrieving microfilm images by means of ANSI Standard Blips, and will be compatible with existing system. Prior to bid consideration, potential bidders will review, on site, typical production required as part of the overall routine of the finger- print section. Appointment for this inspec- tion will be made by calling (904) 488-9953. The Department will not alter the current production system. After bid opening and prior to award, vendors will conduct tests and provide demonstrations to personnel of the Department to assure a quality product compatible with the existing system. Where applicable, the film retrieval unit will conform to Florida Administrative Code, Chapter 1A-26. At the time the decision was made to replace the three PR-1 microfilm readers, the Identification Section within the Florida Department of Law Enforcement had four other machines which had reading capability. Those machines were also Kodak and are referred to as Starvue. As can be seen, neither the PR-1 nor the Starvue referred to had the capability to print. A review of Petitioner's Exhibit 3 reveals that the ability to print identification cards was accomplished through another Starvue type machine in operation prior to the bid invitation. When processing fingerprint cards within the Identification Section of the Respondent agency, the task of fingerprint identification and verification is addressed. Over and above this reading function, prints are sometimes made of fingerprint identification cards or documents related to a given subject. These prints either are made from the positive film being reviewed, the copy appearing as a negative image of that film, or in the alternative, the positive film is replaced with negative film and a positive print is made through the copying process. Copies were reproduced on the separate printer which the agency had available to it, prior to bidding for the purchase of three reader-printers contemplated by the invitation to bid under discussion. This required removing the film from the reader or substituting the film before printing. In addition, some lens changes within the readers would be necessary, on average a couple of times a day. The PR-1 machine had a telescoping lens which would allow magnification without lens replacement. The Starvue reader requires the replacement of the lens to gain greater magnification. This Kodak machine, following the lens substitution, would not lose contact with the image which had been on the screen prior to the substitution. The fingerprint analysis operators or technicians, at the time that the bid was prepared, used a 30:1 lens in performing their function of reading the fingerprint microfilm image. A 24:1 lens was needed for printing. Under these circumstances the Respondent indicates that in the bid specifications reference should have been made to a 30:1 lens as opposed to a 24:1 lens in describing lens requirements. The PR-1 machines that were being replaced did not have the capability to read blips on the given frames or images within the microfilm cartridges, thus automatic access of the roughly ten per cent of microfilm cartridges that contained the blips was not possible. Both the 3M 900 Series and the IMT-50 microfilm reader-printers allow for automatic retrieval of the image within the microfilm cartridge, as stated before, a required feature set forth in the invitation to bid. The operation of the Fingerprint Identification Section at the time of the bid invitation dealt with approximately forty-eight hundred reels of microfilm, 90 per cent of which could only be accessed manually. Most of the microfilm cartridges contained one hundred feet of microfilm. When reference is made in the bid document to the fact that the proposed equipment should allow for the changing of lenses without interrupting the operation of the reader-printer, this is a literal impossibility. While the first lens is being removed and the second lens is being placed, no reading or printing may occur. As a consequence, when officials with Lanier read this requirement, they perceived it as being some form of inconsequential mistake and did not seek clarification as contemplated by clause Number 7 of the general conditions to the invitation to bid. While it is not apparent from the reading of this requirement, the Florida Department of Law Enforcement intended this provision pertaining to lenses to mean that once the second lens had been placed in the machine, the image that had been being examined prior to the lens replacement would be immediately available for reading or printing. The IMT-50 Kodak equipment allows for that, the Starvue equipment by Kodak allows for that, and the PR-1 did not require lens replacement. By contrast, either in the manual mode or in the automated mode, the 3M 900 Series equipment might require a slight adjustment to recapture the image once the lens had been changed. This adjustment would take approximately two seconds to achieve. The reason for the differences between the 3M equipment and Kodak equipment concerns the fact that the power source in the 3M equipment is turned off when the lens is out of the machinery and the power source within the Kodak equipment remains constant even when the lens is removed. When the lens requirement is considered in the context of the idea expressed in the general requirements, that the Department did not intend by the replacement of its equipment to alter its current production system, use of the 3M equipment at times of lens interchange is not found to be out of compliance with that general requirement or condition. That determination is made realizing that the lens requirement was ambiguous, at best, and the more important fact that the amount of delay caused in using the 3M equipment in a lens change posture amounts to three operators x two occasions per day x two seconds per occasion or 12 seconds per day. This delay is inconsequential. On this topic, in its position in justifying its choice to reject Lanier's equipment as not complying with the lens requirement, suggestion has been made by the Florida Department of Law Enforcement that eight to ten lens changes per hour might be necessary in the "hard" identification of prints. This comment as offered as a justification for rejecting the Lanier bid as nonresponsive to the lens requirement is not borne out in the record of the hearing by competent proof. This information was imparted in Petitioner's Exhibit 45 which is information that the Florida Department of Law Enforcement submitted to the Department of General Services, having determined that the Lanier bid was not responsive because of a failure to comply with the lens requirement and the requirement for film retrieval capability, which will be discussed subsequently. That information in the exhibit was hearsay and was contradicted by the comments by two of the operators who utilized the reader-printers in the Fingerprint Identification Section. They are the source of the idea that lens changes occur once or twice a day, and their position has been accepted as factually correct. In summary, Lanier is found to have complied with the specific requirements for lens compatibility with existing needs of the Fingerprint Identification Section and future needs of that section. An official within the Florida Department of Law Enforcement had been informed by Kodak that the Starvue equipment in use by the Fingerprint Identification Section at the time that the bid invitation was prepared had a capability of performing the retrieval function at a pace of twelve feet per second. This pertained to both the forward and the return phase of that operation. Having this in mind, the previously described requirement for film retrieval capability was included within the bid specifications. Again, it was the intention of the Department, as expressed in that provision and the general requirements, that the replacement equipment maintain the same efficiency of production as existed. The manufacturers of the equipment which was offered in response to the bid have described their equipment in this fashion: The Kodak IMT-50 is described as having a speed advance of up to fourteen feet per second. The 3M 900 Series which was offered by Lanier carried a "rating" of twelve feet per second. The author of the bid specifications pertaining to film retrieval speed included within that section the phrase ". . . advance--return transport speed " This phrase is not used in the microfilm industry to describe film retrieval capability. Officials at Lanier perceived this as a manufacturer's speed "rating." Officials with Kodak who offered testimony at the hearing had various ideas about what advance and return transport speed meant, which opinions were not constant. Likewise, the author of this provision within the bid specifications offered variety in his explanation of the meaning of that phrase, that variety ranging from the idea of maximum speed when the machine was operating at full capacity in terms of the advancement or return of the microfilm within the machine, to the idea of maximum speed as ascertained shortly after the machine had started to advance or return the microfilm. In any event, he states that it did not mean transport speed as an average of time for a given length of film to move through the machine. Nothing about the specifications suggests that return transport speed equates to the idea of average speed, meaning the amount of time necessary to transport a given length of film through the machine either in the forward or reverse mode. When this requirement of transport speed is seen as a function of protecting against the acquisition of equipment that would not be as efficient as existing equipment, a further dilemma is presented. Edward E. Ricord, author of the specification related to film retrieval speed testified that testing had been done, unrelated to the present hearing, with the intention of describing the transport capabilities of preexisting equipment within the Florida Department of Law Enforcement. The recount of that testing was not offered as evidence by way of documentation. Nonetheless, the equipment that was existing is depicted as having the capability of transporting a ninety-six foot length of microfilm through the older machine, Starvue, in a shorter length of time than could be achieved by the 3M 900 Series. The Starvue was four seconds faster in the forward mode and ten seconds faster in the reverse or rewind phase than the 3M 900 Series, according to Ricord. The old machine was also described as being slower at one end and a little bit faster at the other end in transporting the ninety-six foot length of microfilm when contrasted with the IMT-50 Kodak. (The transport of ninety-six feet of film becomes significant in a later paragraph describing the basis for rejecting the Lanier bid offering as being unresponsive.) On the other hand, Carl Durian, one of the operators or technicians who has used the PR-1, the Starvue, the 3M 900 Series and the IMT-50 machines had these observations, in terms of a subjective analysis of speed. He felt that the Kodak IMT-50 was a subjectively faster operating machine when performing the retrieval function related to the movement of the microfilm through the machine when compared to the 3M 900 Series; however, the 3M 900 Series was found to be subjectively faster than either the Starvue or the PR-1. Finally, Durian felt that the Starvue was faster than the PR-1 when considering the retrieval capabilities of the various machines. Again, this firsthand information, though subjective, is of a better quality than the information offered by Ricord who recounted test results not produced at hearing. Looking at this problem in the most favorable light, there is conflict within the agency as to the issue of whether the 3M 900 Series equipment is as capable in the retrieval of microfilm, as a function of speed, as existing equipment within the Fingerprint Identification Section at the time that the bid invitation went out. This is significant, because, having no industry standards related to return transport speed and having no clear indication of what that term meant at the point of the preparation of the bid specification which is separate and apart from the capabilities of existing machines, it is taken to mean the capabilities of those existing machines, and the uncertainty about those capabilities must be resolved in favor of Lanier. Moreover, on this occasion the Florida Department of Law Enforcement cannot point to Lanier's obligation to ask the question about the meaning of return transport speed as a reason to reject the bid response, in that such a theoretical inquiry would not have elicited a satisfactory answer to the question and alerted Lanier that it was potentially incapable of satisfying the bid specifications related to microfilm retrieval. In accordance with the bid document, the vendors Lanier and Kodak were required to present one of their machines to the Department following the bid opening for purposes of evaluation. Once the machines were in place, some concerns were expressed about the difference in operating capabilities in the retrieval function of the two machines. To gain some understanding of those differences, a test was devised to measure the responsiveness of the two machines. The test, by its terms, measured the average time necessary to move ninety-six feet of microfilm through the machines in a forward and reverse mode. The tests were conducted, forward and reverse on each machine, by using a person holding a wrist watch and gaining an average of the time necessary to accomplish the functions, after an operator switched the machine into the fast forward and reverse positions to commence the test. The tests forward and reverse were executed three times. It was revealed that in the forward mode, the best performance by the 3M 900 Series was a speed of 5.99 feet per second and in the reserve mode 8.30 feet per second. By contrast, the speed of the Kodak IMT-50 was, at best, 12.80 feet per second in the forward mode and 16.16 feet per second in the reverse mode. No comparison was made at the time of that testing between the two proposed machines and the existing Starvue or PR-1 equipment. For that reason it is not graphically depicted whether the 3M 900 Series machine would slow down the operation of the Fingerprint Identification Section because of its inability to comply with the requirement for film retrieval. A description of the testing that was done between the 3M 900 Series and the IMT-50 cannot be found as a requirement within the bid specifications, nor does it comport with any expressed statement of what transport speed meant as described in the bid specification document. While it does point out a remarkable difference between the film retrieval capabilities of the Kodak IMT-50 and the 3M 900 Series, it does not establish that Lanier failed to comply with the bid specification related to film retrieval when offering the 3M 900 Series machine in response to the bid invitation. Lanier has met the requirement for film retrieval. In support of this finding, the scope of this inquiry as stipulated to between the parties does not allow for the discussion of the implications of the greater film retrieval capability of the Kodak IMT-50 when compared to the 3M 900 Series as it might pertain to work efficiency within the Fingerprint Identification Section. More significantly, even should it be demonstrated that this difference in film retrieval speed has a profound influence on work efficiency, it could not be said that the Lanier bid failed to meet specifications. The only consequence of this revelation might be that the agency would rebid the project, when examined in the abstract. Given what the agency considered to be a lack of responsiveness on the part of Lanier related to the lens requirement and film retrieval requirement, it was determined to seek permission from the State of Florida, Department of General Services to obtain the IMT-50 equipment from Kodak as a sole source. This is under the theory that in a competitive bid setting where only one responsive bidder has responded, a sole source purchase opportunity must be sought from the Department of General Services. Following some explanation, that authority was granted. When the authority was granted, the Department of General Services did not realize that Lanier had not been given a point of entry to question the rejection of its bid. When this circumstance was discovered, the Department of General Services recanted its stated permission pending the opportunity for Lanier to have due process concerning its claim of compliance with bid specifications. The decision by Department of General Services to change its position on permission for sole sourcing occurred on October 2, 1984. In the face of that statement and the advice by the Department of General Services that the Florida Department of Law Enforcement should give a point of entry to Lanier to contest the question of a determination that Lanier's bid was unresponsive, the Florida Department of Law Enforcement on December 17, 1984, officially noticed Lanier of the choice to award the contract to Eastman Kodak. Given this notification, a letter of protest was filed by counsel for Lanier on December 21, 1984. Kodak had been awarded the contract through the issuance of a purchase order from the Florida Department of Law Enforcement at a time when the Department of General Services had initially indicated the acceptability of a sole source arrangement, but before the October 2, 1984, decision by Department of General Services to rescind its permission to go sole source. As a part of the arrangement with Eastman Kodak, $262 per machine was allowed in the way of trade-in of the three PR-1 machines which were being replaced. The IMT-50 equipment is presently in place in the Fingerprint Identification Section of the Florida Department of Law Enforcement. Had Lanier placed the 3M 900 Series machines with the Florida Department of Law Enforcement, it would have made a profit of $5,700. This is offset by the cost of $4,080 which would have been necessary to convert the existing microfilm reels to fit the 3M equipment. With that deletion, the total profit from the sale becomes $1,620. The effective life of the 3M 900 Series of equipment is five years, and service revenues from those three reader-printers averages $2,940 per year x five years = $14,700 as total service revenues. The loss of revenues over the five-year span for the three reader-printers related to paper supplies is $24,300 based upon three reader-printers $4,860 per year. The figures given relate to gross charges for paper supplies. That paper has not been supplied, and no indication has been given on the difference between the vendor's cost for producing the paper and the retail price of the paper, giving a net figure as to profit. In view of the fact that the paper has not actually been delivered and in the absence of some indication as to the amount of net profit, this item of damages is not allowed. Finally, no indication was made as to the amount of labor cost and net profit related to the overall service charge, and, as with the paper supplies, this claim is disallowed. These items of damages are disallowed because the Petitioner would only be entitled to claim net profits, having never actually offered the services or supplies. An additional $810 is lost in interest income at a rate of ten per cent per year over the five-year effective life of the equipment, pertaining to use of the profits realized in selling the machines. The proven total damages to Lanier is $2,430. Claims by Lanier for loss of future earnings related to the sale of unrelated machines are not found to be convincing, in that they are too speculative in nature. The related claim for past damages if the 3M machines are installed is rejected in that the effective life of the machines starts from the time of their installation. Therefore, profits for sale, supplies and service would commence at that moment. Lanier is the lowest responsive bidder on Bid No. 83-50.
The Issue Whether Respondent discriminated against Petitioner based upon sex, race, or disability and/or retaliated against her for engaging in a protected activity.
Findings Of Fact Based on the testimony and exhibits admitted at the final hearing, the following Findings of Fact are made. Petitioner’s Background At all times material to this matter, Petitioner identified as a Caucasian woman. In February of 2020, Ms. Smith was diagnosed with Hashimoto’s disease.3 Ms. Smith’s Hashimoto’s disease, when active, causes her to experience debilitating fatigue, gastric problems, muscle aches, headaches, and hair loss. Her condition, when active, substantially limited several of Ms. Smith’s major life activities, including the ability to function on even a basic level. Ms. Smith testified that she requires treatment from a doctor to manage and minimize the most debilitating aspects of her condition. Ms. Smith was hired by Cellular Sales in 2016, as a sales representative. In October 2018, Ms. Smith moved to Florida and was transferred to a Cellular Sales location in Florida. In December 2019, Ms. Smith was transferred to the Cellular Sales location in the Brandon Town Center Mall (Brandon Mall) in Brandon, Florida. Ms. Smith was then promoted to assistant store manager at that location. As a sales representative, Ms. Smith was responsible for sales, client services, and developing sales leads. She had the same responsibilities as a store lead. 3 Hashimoto’s disease is a condition that causes one’s immune system to attack one’s thyroid. During Ms. Smith’s employment with Cellular Sales, she never received disciplinary action. Cellular Sales Policies and Procedures Respondent, Cellular Sales, sells Verizon Wireless products, services, and accessories. The Cellular Sales Employee Handbook contains a Pyramid of Ethics, which prohibits employees from “discriminating, offensive, abusive, or harassing behavior and/or language” against another employee and prohibits “retaliation against those who report suspected violations of law or Company policy.” Cellular Sales also maintains an open-door policy, which directs employees to notify a supervisor, contact the corporate human resources department, or submit a complaint via the Report It Hotline, if they have any concerns about their employment or policy violations. Cellular Sales also maintains an Equal Employment Opportunity policy which prohibits discrimination based, among other characteristics, on sex, national origin, disability. The Individuals With Disabilities policy directs employees to notify both their supervisor and the corporate human resources department of any reasonable accommodation requests so that they can be addressed by the human resources department. Ms. Smith received and signed for a copy of the Employee Handbook when she began working for Cellular Sales in 2016 and received an updated copy of the handbook in 2017. She also received annual training on the company’s policies, including those related to the prevention of discrimination. All managers that were involved in this matter also received annual training on Cellular Sale’s policies. Brandon Mall Managers Mr. Abujbara identifies as a male of Arab national origin. Prior to working at the Brandon Mall, Ms. Smith worked with Mr. Abujbara at a Cellular Sales location in the Central Florida market. Mr. Abujbara became the store lead at the Brandon Mall store at the end of 2019. When Mr. Abujbara became the Brandon Mall Store Manager, he selected the sales representatives that he wanted on his team, which included Ms. Smith, an African-American female, and another Caucasian female. Mr. Abujbara also promoted Ms. Smith to be the assistant team lead. Mr. Abujbara did not select a male of Arab origin for the position. Mr. Abujbara was later promoted to store manager at the Brandon Mall. During Mr. Abujbara’s tenure as store manager, Ms. Smith received scheduling privileges as a result of her position as store lead. In June 2020, Mr. Abujbara was promoted to general manager. As a result of Mr. Abujbara’s promotion, Mr. Alabed became interim store lead for the last two weeks of June 2020. Business Practice for Cellular Sales During COVID-19 At some point, the Brandon Mall store closed for a period of time due to the COVID-19 pandemic. Employees were given the option to accept COVID-19 leave pay during that time. Ms. Smith accepted the paid leave. Mr. Walkover testified that the pandemic changed the Cellular Sales business, especially at the Brandon Mall location, because it could not depend on traffic walking in the door. It required Cellular Sales to be creative in the way it drove traffic to its locations. Cellular Sales implemented new performance standards, including a goal for sales representatives to make a minimum number of weekly phone calls. Mr. Crutcher, the regional director, e-mailed the Central Florida market about the new sales calls standards. He instructed sales representatives that “[e]very sales rep will be responsible to make at least 10 calls each week – this will be tracked and credited weekly to keep our leads list from running dry.” The new performance standard was effective starting May 1, 2020. Ms. Smith acknowledged that she received the email. Notably, the email did not indicate which day would mark the end of the week. All sales representatives were required to make the calls through a program called RingCentral, a voiceover IP phone application that allows Cellular Sales to track and monitor calls. The sales representatives could use RingCentral to make calls outside the store as well. RingCentral also has a built-in team chat allowing communications among the sales team. Mr. Abujbara’s used the RingCentral chat feature to communicate with his sales team at the Brandon Mall. On May 16, 2020, Mr. Abujbara sent at least two specific messages to his sales team using RingCentral which stated: First Message: “[t]he market-wide standard for outbound phone calls through ring central from our leads app is 10 per week. These will be monitored weekly and write ups will be issued at the end of the week for all that do not meet this minimum expectation of 10 calls.” Second message: “This week. Calls are due by Friday.” On May 21, 2020, Mr. Abujbara sent a reminder message that stated: “Minimum expectations/n10 calls for the week due tomorrow/n Total of 40 by end of month due on 31st Any issues with leads or powerapp reach out to Mo Khalel and communicate with me.” In addition to the messages, two other members of the Brandon Mall sales team testified that Mr. Abujbara also announced the Friday deadline in a meeting. Ms. Smith testified that she did not receive the RingCentral messages that the calls were due on Fridays. The undersigned finds that there is competent substantial evidence to demonstrate that Mr. Abujbara provided timely and sufficient notice, using the method of communication commonly used by his team, that the sales call deadline was Friday of each week. Ms. Smith’s Work Performance and Discipline History Ms. Smith made 10 calls for the first, second, and fourth weeks of May 2020. In these weeks she worked two shifts, three shifts, and four shifts, respectively. However, she made seven calls the third week of May 2020. Thus, she failed to meet the minimum 10 calls goal by Friday for the third week of May 2020. Ms. Smith testified that she missed work days the third week of May 2020 because she had “doctors’ appointments.” Ms. Smith testified that she had a chiropractor appointment that week and that she regularly gets blood work. The evidence offered at hearing was not sufficient to rebut her testimony and thus, it is credited. However, even if Ms. Smith had an appointment the third week of May, there was no credible evidence that anyone else at Cellular Sales had knowledge that she had an appointment the third week or that she missed her sales goals as a result of the appointment. On May 23, 2020, Mr. Abujbara sent Ms. Smith an e-mail with a Disciplinary Action Form. The disciplinary action was for insubordination in a meeting and for failing to make the required minimum 10 calls the third week of May 2020.4 Ms. Smith was then placed on a performance plan which stated the following, “[g]oing forward we need to make sure that you are attaining minimum standard for phone calls on a weekly basis … .” 4 The third week in May 2020 ended on May 22, 2020. After receiving the email containing the disciplinary action on May 23, Ms. Smith disputed the basis for the action. The text exchange between Ms. Smith and Mr. Abujbara was as follows: Ms. Smith: Give me a call when you can. I have 9 completed calls for the week Mr. Abujbara: Hey I’m out of the office until Monday for religious purposes. I will follow-up with you Monday when I return. Ms. Smith: I will accept the write up for the calls. But I will be having extensive conversation with you, Eric Brown or Eric Walkover regarding what is happening at this store. So please get back to me when you can. Ms. Smith then texted Mr. Brown on the same date. The text exchange in pertinent part was as follows: Ms. Smith: Also, are calls due on Friday or By end of day Saturday? Since the week technically ends on Saturday. Mr. Brown: Technically the original email was sent Friday. It should have been discussed at your draft as well that day so we have been running it Friday to Friday. Ms. Smith: Okay. I made 8 calls this weeks because we got slammed yesterday as I was finishing them. So to avoid a write up I was wondering if I could have today to complete them. Ms. Smith never told Mr. Abujbara or Mr. Brown that the reason for missing the call goal was due to her medical condition or related appointments, discrimination, or retaliation. Ms. Smith also disputed the disciplinary action with Mr. Walkover stating that she got her calls done by Saturday and should not have received the disciplinary action. Mr. Walkover told her that she missed the deadline, which was Friday. Like with Mr. Abujbara and Mr. Brown, Ms. Smith also never told Mr. Walkover that she did not meet her sales call goal because she had a medical appointment, nor did she complain that the disciplinary action was based on discrimination. Similar to the failure to make calls, Ms. Smith also contested the insubordination claim. Mr. Abujbara described her insubordination and unprofessional conduct that stemmed from her behavior during a team meeting where she expressed her disagreement5 with the new “chumming” policy. “Chumming” refers to the process of greeting and engaging clients in front of the store to attempt to bring them in for sales. Each sales representative working on that day would share in the commission for that sale. The new chumming policy for the Brandon Mall store permitted a sales representative who brought in a customer and closed a sale to keep the commission for the sale. Thus, the other sales representatives would not share the commissions for that sale. Mr. Brown created the policy because the store’s numbers were struggling with sales and he wanted to incentivize the sales representatives to attract customers that otherwise would not shop in the store. It was known amongst Ms. Smith’s coworkers that she did not like chumming and did not chum often. More importantly, she never requested an accommodation for chumming due to a disability or medical condition. Reading Book While at Work In June 2020, Mr. Abujbara was promoted to general manager and Mr. Alabed became the interim store lead at the Brandon Mall store. Ms. Smith wanted Mr. Alabed to be the store manager of the Brandon Mall store. Mr. Alabed testified that during the time he was the interim store lead, he had no knowledge that Ms. Smith had an autoimmune disease. 5 Petitioner’s former coworker, Mr. Sanchez confirmed that she was disrespectful to Mr. Abujbara in the meeting by interrupting him and complaining about the rule. On June 19, 2020, Mr. Alabed observed Ms. Smith reading a book on the sales floor while she was on duty. Instead of sending her home, Mr. Alabed directed her to put the book away and to begin “chumming.” Ms. Smith went into the mall area to chum but then, returned to reading her book. Given Ms. Smith’s failure to follow Mr. Alabed’s instructions, Mr. Alabed then took a picture of Ms. Smith reading, sent it to Mr. Brown, and notified him of Ms. Smith’s actions. The following day, on June 20, 2020, for the second time, Mr. Alabed observed Ms. Smith reading a book on the sales floor while on duty. On this day, customers were in the store. Mr. Alabed took a picture of Ms. Smith reading on that day and sent it to Mr. Brown. Mr. Brown called Mr. Walkover, both times he learned of Ms. Smith’s behavior, to inform him that Ms. Smith was reading a book on the sales floor and was not participating in team activities. Mr. Brown also sent the pictures of Ms. Smith reading a book to Mr. Walkover. Mr. Walkover contacted Mr. Jenkins to seek further advice regarding Ms. Smith’s actions. Mr. Jenkins testified that Mr. Walkover related to him that a sales representative was observed reading a book two days in a row on the sales floor, and that she was on a performance plan for not meeting phone call requirements. Mr. Walkover also sent the pictures to Mr. Jenkins that he received from Mr. Alabed. Mr. Walkover was concerned that Ms. Smith was not working while sitting at the desk reading a book. He believed her reading a book was also distracting to the rest of the team. He was also concerned that she had previously missed the minimum phone call expectations, for which she was on a performance plan. Mr. Jenkins told Mr. Walkover he would investigate Ms. Smith’s actions. Mr. Jenkins confirmed that Ms. Smith had been written up less than 30 days earlier for not making her minimum phone calls and that a security video showed her reading a book on the sales floor with customers in the store. Mr. Jenkins showed Mr. Walkover the security video. The video, from June 20, 2020, clearly shows Ms. Smith reading a book at her desk, while customers were in the store and other employees were working. After his investigation, Mr. Jenkins determined that Ms. Smith’s actions warranted termination. To ensure he was making the appropriate decision, Mr. Jenkins decided to speak with the corporate human resources department. Mr. Jenkins and Mr. Walkover called Ms. Calvert and explained the facts related to Ms. Smith, i.e., the employee was on a performance plan, reading a book twice while on duty and had a medical condition. Ms. Calvert affirmed Mr. Jenkin’s decision to terminate Ms. Smith because the decision was related to her work performance and behavior and not related to her medical condition. Mr. Jenkins shared his decision with Mr. Walkover and ultimately, Mr. Brown was directed to meet with Ms. Smith to terminate her. On June 24, 2020, Mr. Brown met with Ms. Smith to notify her that she was terminated and presented her with paperwork outlining the reasons for her termination. Ms. Smith opposed her termination on the basis that other employees engaged in non-work-related activities on the sales floor. She testified that other employees played games on their phones or watched movies. Mr. Walkover testified that sales representatives are expected to either be selling phones or gathering sales leads while at work. If they do not have a client in front of them, their job is to do what they can to try to draw in a client. Sales representatives were not permitted to watch movies, read books, or play games. He did note, however, that on occasion, employees were permitted to use their phones to direct business to the store. Ms. Smith admits that she openly read a book to learn more about her medical condition while at work on two separate days. Ms. Smith’s Disability The record is not clear regarding when Ms. Smith was first diagnosed with a thyroid condition. However, her medical records reflect a doctor’s visit of April 16, 2020, in which Ms. Smith was diagnosed with a thyroid condition. Ms. Smith testified that she notified her supervisors about her medical condition and about her periodic need to go to doctors’ appointments in order to keep her medical condition under control. Mr. Alabed testified that he was not aware of Ms. Smith’s condition. Ms. Smith testified that she was diagnosed with Hashimoto’s disease, and, a few months later, with Lupus. Throughout her employment, Mr. Abujbara gave Ms. Smith time off for medical appointments and other reasons, including for a car accident. At some point, Ms. Smith informed Mr. Abujbara that she thought she had Lupus and may need some time for doctors’ appointments. Mr. Abujbara asked if Ms. Smith needed shifts off, said he would help her get them covered, and to let him know of anything else he could do. Mr. Abujbara then contacted Mr. Jenkins to inform him they had a sales representative who was diagnosed with Lupus and needed guidance with how to assist her. Mr. Jenkins instructed Mr. Abujbara to contact Mr. Holloway, a sales representative who also serves as the Employee Relations Ambassador. He is responsible for talking to employees about their well-being and helping them get counseling services or Family Medical Leave Act (FMLA). Mr. Abujbara reached out to Mr. Holloway to inform him that Ms. Smith had some health conditions and may need assistance with FMLA. Mr. Holloway told Mr. Abujbara to provide Ms. Smith with his (Mr. Holloway’s) contact information to reach out to him so they could start the process for FMLA. The record contains extensive testimony about referring Ms. Smith for FMLA assistance. However, there is no mention about assistance for Ms. Smith regarding a request for a reasonable accommodation. Ms. Smith testified that she did not request FMLA; she was seeking a reasonable accommodation due to her disability. The undersigned finds Ms. Smith requested a reasonable accommodation in the form of intermittent leave for doctors’ appointments to treat her condition. Mr. Holloway e-mailed Ms. Vissicchio, who assists with FMLA requests. On June 19, 2021, Ms. Vissicchio e-mailed Ms. Smith, requesting information for her leave. Ms. Smith responded, “I do not currently need days.” On June 22, 2021, Ms. Vissichio followed up with an email as follows: “I didn’t file anything yet since you said you currently do not needs days off. Once I file they will require a dr evaluation and note and the paperwork filled out. Please let me know when that is all done and then I can put you in for intermittent FMLA in case future days are needed.” Ms. Smith replied to Ms. Vissichio as follows: “The days off most likely will not be in bulk. This is more of a long term condition. Will be seeing the doctors again these next two weeks. I can have them fill out the paper work. The days I need off this month have been covered.” Ms. Vissicchio testified that she did not file anything at that point because Ms. Smith was not requesting time off and the Cellular Sales’ third- party administrator that processes FMLA requests would deny a request without receiving supporting paperwork within 15 days of submitting the request. Ms. Smith did not complain to Ms. Vissicchio, who works in human resources, about discrimination based on her race, sex, or disability. Proposed Comparators At the hearing, Ms. Smith offered Ameer Salti and Mohammed Zarour as comparators to establish that she was treated differently than other employees. Mr. Salti was a sales representative with Cellular Sales. He received disciplinary action for insubordination because he refused to assist a client. He was instructed to go home for the remainder of his shift, on December 30, 2019. On March 17, 2020, Mr. Salti was disciplined a second time for making a client wait on an appointment, leaving his work station messy, and coming to work in flip flops. He was suspended for two weeks. On November 18, 2020, Mr. Salti was terminated for a failed drug screen. Cellular Sales maintains a drug-free workplace policy that subjects an employee to immediate termination for violation of the policy. Mr. Zarour, also a sales representative, was disciplined and terminated as well. He was disciplined on June 6, 2020, for failing to make 40 calls in May 2020. The evidence established that Mr. Zarour made 18 calls the third week of May. However, he failed to meet the required 40 calls per month. The simple math establishes that at least on one week, Mr. Zarour failed to meet the 10 calls minimum. However, the competent substantial evidence did not establish whether he failed to meet the minimum the fourth week (at the end of the month) or a different week. Thus, the evidence is not sufficient to establish that he was not disciplined for his failure to meet the minimum weekly call goals. However, the evidence did establish that he was disciplined for failing to meet required minimum sales calls. On July 27, 2020, Mr. Zarour was terminated by Eric Brown and Eric Walkover for policy violations, not dropping cash, not dropping trades, and failure to meet minimum call goals. Similar to Ms. Smith, Mr. Zarour was disciplined for failing to meet the minimum sales calls. However, there were no other similarities in behavior as Ms. Smith. In fact, neither of the offered comparators was observed reading a book two days in a row on the sales floor. There was discussion in Petitioner’s PRO pertaining to progressive discipline. While progressive discipline was not a Cellular Sales policy, Mr. Jenkins testified that Ms. Smith’s behavior warranted termination. Ultimate Findings of Fact Ms. Smith admitted she never complained about discrimination or retaliation to the human resources department or the Report It Hotline. She also admitted that she did not complain to anyone at Cellular Sales regarding discrimination or retaliation, or that a male of Arab national origin, or a non- disabled employee received better treatment. Ms. Smith admitted that she was reading a book on the sales floor on two separate, consecutive days. The evidence offered does not support a finding that Cellular Sales treated Ms. Smith differently than males of Arab national origin, or disabled employees. The evidence offered at hearing did not support a finding that Cellular Sales retaliated against Ms. Smith for engaging in a protected employment action. The evidence demonstrated that Ms. Smith was terminated for failing to meet workplace performance goals and reading a book on the sales floor on two days while on duty.
Conclusions For Petitioner: James Moten Thompson, Esquire Thompson Legal Center, LLC Suite 245 777 South Harbour Island Boulevard Tampa, Florida 33602 For Respondent2: Robert L. Bowman, Esquire Bryce E. Fitzgerald, Esquire Kramer Rayson LLP Suite 2500 800 South Gay Street Knoxville, Tennessee 37929 1 The hearing was conducted in person. However, the court reporter and one witness (Peggy Vissicchio) attended by Zoom conference. 2 The Respondent was represented by Robert L. Bowman and Bryce E Fitzgerald who were accepted as qualified representatives in this matter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Petitioner, Jaqueline Smith, did not prove that Respondent, Cellular Sales Services Group, LLC, committed an unlawful employment practice against her; and dismissing her Petition for Relief from an unlawful employment practice. DONE AND ENTERED this 20th day of December, 2021, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 Samuel J. Horovitz, Esquire Rogers Towers, P.A. Suite 1500 1301 Riverplace Boulevard Jacksonville, Florida 32207 James Moten Thompson, Esquire Thompson Legal Center, LLC. Suite 245 777 South Harbour Island Boulevard Tampa, Florida 33602 Robert L. Bowman, Esquire Kramer Rayson LLP Suite 2500 800 South Gay Street Knoxville, Tennessee 37929 Lori S. Patterson, Esquire Rogers Towers, P.A. Suite 1500 1301 Riverplace Boulevard Jacksonville, Florida 32207 Stanley Gorsica, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 Bryce Ellsworth Fitzgerald, Esquire Kramer Rayson LLP Suite 2500 800 South Gay Street Knoxville, Tennessee 37929
Findings Of Fact The Respondent, Kenneth P. Casey, holds license number 346-04-69 authorizing him to fit and sell hearing aids in Florida. Mr. Casey is fifty-two years of age and has been in the hearing aid sales and service business for approximately twenty-three years. He has never been involved in any legal altercations with the Petitioner. Mr. Casey has been the Beltone hearing aid dealer in the Pensacola area for a substantial period of time until approximately November of 1979. On or about September 5, 1978, the Respondent sold to Mr. Henry Golden two hearing aids for the price of nine hundred twenty dollars. The Petitioner has alleged that, hen he sold the hearing aids to Mr. Golden, the Respondent promised him that he would hear as well with the hearing id as he did when he was connected to the "master testing machine" which determined the need for a hearing aid. Mr. Golden's own testimony, however, as corroborated by the Respondent's, established that the Respondent only told him that the hearing aids would perform as well as the testing machine "If they were made to the same specifications." The testimony of witness Behrends, the audiologist testifying on behalf of Petitioner, established the accuracy of the Respondent's statement and that generally hearing aids should perform as well as the testing machine if fitting and manufacture are correct. Witness Behrends amplified on this testimony by stating that fitting, tuning or "peaking-up" the performance of hearing aid sometimes takes as long as forty-five to ninety days during which time adjustments must typically be made. In any event, Mr. Golden was assured that his hearing aids would be delivered in approximately two to four weeks. In fact, however, it took six weeks to two months before the hearing aids arrived. Mr. Golden testified he could not hear any better with the hearing aids, so Mr. Casey returned them to the manufacturer to exchange for a new pair. Mr. Golden testified that Mr. Casey adjusted the hearing aids well and they fit well, but he was not satisfied with them and ultimately returned the hearing aids to Casey who returned his money in full. The Respondent did not charge Mr. Golden for the cost of ear molds or fitting the hearing aids. The Petitioner established, as indeed the Respondent acknowledged, that Casey failed to include the serial numbers and model numbers of the hearing aids on Mr. Golden's sales receipt. The Respondent states that this was because the hearing aids were not in stock hen ordered since Beltone would only send them to him on C.O.D. basis. This basis of dealing with the Beltone Corporation resulted from Mr. Casey's poor financial condition and instances of his not paying Beltone promptly for hearing aids in the past. Mr. Golden also demonstrated in his testimony that the Respondent never did promise him that the hearing aids would prevent deafness. There is no question, however, that the Respondent did not deliver the hearing aids when promised, although this was shown to be due to the poor payment record of the Respondent with the Beltone Corporation and its consequent reluctance to process orders until payment was received, rather than any intent by Casey to defraud the customer. On June 22, 1977, the Respondent received a down payment of three hundred seventy dollars from Mr. M. P. Bryant for two hearing aids that were to be delivered to Mr. Bryant within four weeks. Mr. Bryant never received his hearing aids. The Respondent established in an unrefuted way that they were never received by Mr. Bryant because Beltone Corporation would not ship to the Respondent since his credit had been suspended with that supplier. The Respondent acknowledged that he had not timely returned Mr. Bryant's money because he had been attempting to sell a piece of property in order to raise the money to refund. Before he could accomplish this, a judgement against him was entered on behalf of Mr. Bryant. In this instance, again, the Respondent did not put the model and serial numbers of the hearing aids on Mr. Bryant's receipt because he did not have the hearing aids in his possession when the sale was made due to his bad credit relationship with Beltone Corporation. On or about March 22, 1978, the Respondent sold a hearing aid to Robert Carr for the use of Mr. Carr's mother, Susie I. Carr. Her hearing had been tested by Mr. Behrends, the audiologist who testified on behalf of Petitioner, who had referred her to the Respondent for fitting of a hearing aid. On March 22, 1978, Mr. Carr gave a hundred dollar deposit to Mary Cobb who fitted hearing aids for Casey. The hearing aids were delivered on April 18, less than a month later. Mrs. Carr was unsatisfied with the performance of the hearing aids and so her son returned the aids to Mr. Casey on May 2, 1978, requesting a refund. Mrs. Carr did not seek to have the hearing aids adjusted or tuned for better performance prior to or turning them to the Respondent for a refund. It is significant that the contract that the Carr's entered into with the Respondent contained a provision that the hearing aid must be returned in three days in order for a refund to be received, but the Respondent ultimately refunded the money in full anyway, on August 7, 1978. In the case of the contract between the Carr's and the Respondent, the serial number of the hearing aid was entered. The audiologist testifying for the Petitioner, Mr. Behrends, was familiar with the Carr's case and stated that with proper manufacture and proper tuning and adjustment the hearing aids should perform as well as the client was able to hear on the testing machine. Ms. Carr's audiogram chart reveals that she had a high-frequency hearing loss and Behrends would have recommended the type of ear mold made for her by Casey, which appeared to be appropriately manufactured. Witness Mary Cobb worked for thirteen years with Mr. Casey as a licensed audiologist and was familiar with the Carr hearing aid purchase transaction, as well as Mr. Golden's problems. Mr. Golden came back a number of times for adjustment and still was not satisfied with his hearing aid and ultimately requested refund. This Petitioner's witness corroborated the Respondent's showing that financial problems in his business prevented prompt refunds in some cases and also resulted in failures to timely deliver hearing aids, rather than any intent on Casey's part to defraud customers. This directly resulted from Beltone's practice of sending his hearing aids C.O.D. instead of dealing with him "on account," with monthly invoicing, as they had in former times. Sometimes hearing aids were sent back to Beltone when Casey failed to pay C.O.D. charges. Ultimately, Ms. Cobb became the Beltone dealer approximately fifteen months prior to the hearing, since the franchise was taken away from Casey due to their financial altercations. This witness also established that, although it is not always possible to have a person hear as well with a hearing aid as with a testing machine, that on some occasions the customers hear better with the hearing aids than with the machine. On August 10, 1979, the Respondent sold a hearing aid to Ora Lee Johnson. Ms. Johnson testified for the Petitioner, and established that it took approximately five months to receive her hearing aid after that order date. During the interim, however, the Respondent lent her a hearing aid which she used satisfactorily until her's arrived. She had previously bought a hearing aid from the Respondent in 1975 and had been thoroughly satisfied. He had always effectively serviced her hearing aid without charge. He never made any representation to her that the hearing aid would prevent or cure her deafness. She has since bought another hearing aid from Mr. Casey, in October of 1980, and has always been happy with his service. The Petitioner did establish that the sales receipt for the hearing aid sold to Ms. Johnson did not have depicted thereon the brand and serial number. Mr. Frank Kraus signed a purchase order for a hearing aid from the Respondent on March 23, 1977. This was on a Friday and approximately on thee following Monday he became ill and was to be hospitalized. He therefore went to the Respondent's office to attempt to cancel the contract and be refunded his two hundred dollar deposit. The Respondent acknowledges that he did not refund Kraus' money, but contends this was because Kraus simply changed his mind about the purchase and had no problem with the hearing aid. Mr. Kraus and his wife as well, testified in a vague manner that the Respondent made an ill-defined representation to the effect that Kraus would probably be deaf in about six months. Mrs. Kraus was unable to testify that she remembered or recognized the Respondent when he was pointed out to her in the hearing room, although she contended he made such a representation. Mr. Kraus states he remembers the representation being made, but was unable to recall the times or dates or exactly what was said. Neither witness could testify regarding the context of the conversation from which this representation was allegedly made and Mr. Kraus acknowledged repeatedly that his memory was faulty and that he was in ill health. The Respondent vehemently denies making such a representation and the Petitioner's witness, audiologist Mary Cobb, as well as Virginia Gesselman testified that when accompanying the Respondent in sales presentations to customers, they never beard him make such a representation on other occasions. In short, Mr. and Mrs. Kraus' testimony, memory and recall of those events is not of sufficient clarity to establish that the Respondent made such a representation with the intent that they be so induced into purchasing a hearing aid, in the face of the contrary evidence. Witness Ralph Gray, the administrator of the hearing aid license program for the Petitioner, testified that he had received more complaints a out the Respondent than for most dealers (thirty-five complaints in thirteen years) . He testified, however, that not all of the complaints were justified and he was not able to testify which of the complaints were found justified after investigation. Other dealers' contracts typically show the same omissions of disclaimers, serial numbers or model number . Neither was Mr. Gray able to state whether the additional number of complaints received regarding the Respondent's business was due to a greater number of customers and more business volume than other dealers under his supervision. Virginia Gesselman, a former audiologist for the Respondent, corroborated testimony of the Respondent and Mary Cobb that Casey did not make a practice of telling clients that the client would become deaf unless he purchased a hearing aid and that most people she fitted with hearing aids said they could hear better with the hearing aids than they had with the testing apparatus, after adjustments were made. Witnesses Mary Dubuisson, Thomas Roberts and James Peaden, all have received excellent service from the Respondent and have considered him to have conducted his business with them in an ethical manner. The Respondent candidly admitted that his deliveries of hearing aids in some of these instances were late, due to his poor financial condition and the resultant difficulty in obtaining prompt delivery from the Beltone Corporation. He established that he was suffering a very turbulent personal life during these times, chiefly because his son had a problem with drug addiction which ultimately resulted in the breakup of his marriage, the loss of his home and the incurring of thousands of dollars in legal fees and hospitalization expenses. He has since been successfully engaged in reassembling his shattered personal life, has remarried and his present wife is a "good business woman" and is presently assisting him greatly in running his hearing aid sales and service business. He is recovering from his financial difficulties and has earned a profit in the last two years. He no longer has any problem in assuring customers of timely delivery. The Respondent denied he ever had any intent to defraud or misrepresent the facts and circumstances of a transaction to any of his customers.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings and arguments of counsel, it is therefore RECOMMENDED that the Respondent, Kenneth P. Casey, be found guilty of the charges contained in Counts IV, VI, VIII, X and XI of the Administrative Complaint and that he be issued a written, public reprimand by the Petitioner, and that his licensure be placed on probationary status for one (1) year, with the Respondent's customer records subject to monthly audit by the Petitioner's personnel to show that no similar violations occur. It is further RECOMMENDED that the Respondent be fined the sum of three hundred dollars, to be paid within thirty (30) days of the date of entry of the Final Order in this cause and that two hundred of the said three hundred dollar fine be suspended on the condition that the Respondent, within a like period of time, refund the two hundred dollar deposit paid him by Mr. Kraus. DONE AND ENTERED this 23rd day of December, 1981, in Tallahassee, Florida. P. MICHAEL RUFF, 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 23rd day of December, 1981. COPIES FURNISHED: Jon W. Searcy, Esquire District I, Legal Counsel Post Office Box 17389 Pensacola, Florida 32522 Antony E. Fiorentino, Esquire 105 South Navy Boulevard Pensacola, Florida 32507
The Issue The issue in this case is whether Petitioner's application for licensure as a resident life, variable annuity, and health insurance agent should be denied or approved.
Findings Of Fact Petitioner is a 71-year-old man, who has been licensed to sell insurance since 1974. He was licensed in the State of Ohio to sell variable annuities, life, and health insurance; the same license he is now seeking in the State of Florida. The Department is the governmental agency responsible for, inter alia, licensing and monitoring persons wishing to sell insurance in the State of Florida. Petitioner obtained a license to sell insurance in the State of Ohio in 1974. He made his living selling insurance and expressed an appreciation of his occupation as being very fulfilling. He wishes to continue selling insurance at this time. While residing in Ohio, Petitioner began selling limited partnerships in cable funds for an entity called CabTel. Before doing so, Petitioner inquired of the Ohio Department of Securities whether he would need a securities license to market the cable funds. He was told no such license was required as long as his employer (CabTel) duly-registered the funds. CabTel would purchase the rights to sell cable services in small towns, trailer parks, and other areas around the mid- West. These rights would be packaged in individual "funds," which were numbered. Petitioner sold limited partnerships in funds from five different groups of cable funds numbered XXV, XXVI, XXVII, XVIII, and XXIX. Each of those funds was duly- registered by CabTel, and Petitioner's sales of those limited partnerships are not a concern. However, for some reason, CabTel then failed to register cable funds numbers XXX and XXXI. Petitioner has not been able to ascertain from CabTel why the funds were not registered. The owner of CabTel, a Mr. Wilson, has not returned Petitioner's repeated telephone calls. During his residency in Ohio, Petitioner sold limited partnerships to the two non-registered cable funds. He was not aware the funds had not been registered and, in fact, presumed that they were registered just like the prior groups of funds. It was CabTel's responsibility, not Petitioner's, to register the funds. Then, during calendar year 2000, Petitioner moved to Florida. Upon arrival in Florida, Petitioner applied for and was issued a non-resident license to sell variable annuities, life, and health insurance. His application for licensure was full and complete at that time. In January 2003, the State of Ohio sent Petitioner a Notice of Intent to issue a cease and desist order, requiring him to stop selling limited partnerships in the cable funds. Inasmuch as Petitioner had resigned from CabTel and had no intention to sell additional partnerships, he agreed to a Consent Order with the State of Ohio. The Cease and Desist Order was entered on February 23, 2007. The Order gave Petitioner a right to appeal, but he did not do so because he was in agreement with the terms of the Order, i.e., that he stop selling the limited partnerships. Meanwhile, Petitioner continued to legally sell insurance in Ohio and Florida. Despite Florida regulations requiring him to do so, Petitioner failed to notify the State of Florida concerning the Cease and Desist Order entered in Ohio. There is no evidence in the record as to why Petitioner failed to notify the State of Florida about the Ohio Consent Order. Florida then offered Petitioner a settlement stipulation for Consent Order wherein Petitioner would admit he had failed to provide notice and agree to pay a fine of $500. Petitioner agreed to the stipulation and duly-paid the fine. The Florida Consent Order stated that it was intended to "resolve all issues which pertain to the matters raised in the Department's investigation." Under the Consent Order, Petitioner's license remained in force and effect. On September 15, 2005, the State of Ohio issued a second Consent Order. This one permanently revoked Petitioner's license to sell insurance in Ohio (based on the same issues as in the previous Consent Order). Petitioner initially challenged that Consent Order. Petitioner then made the decision to remain permanently in Florida, so he withdrew his challenge to the revocation of his Ohio license. As a result of losing his Ohio license, Petitioner was no longer eligible for a non-resident license in Florida. He therefore applied for a resident license so he could continue to sell insurance in this state as he had been doing since 2000. The Department denied Petitioner's license application on the basis of three cited statutory sections: Sections 626.611, 626.785, and 626.831, Florida Statutes (2007). No testimony or evidence was introduced at final hearing to explain facts which would make those statutory references pertinent to this case. It may be reasonably inferred that the entry of two consent orders in Ohio forms the basis for the Department's action. Petitioner's unrefuted testimony at final hearing is credible. His demeanor and frankness lead to the conclusion that his improper sale of securities in Ohio was unintentional, excusable, and absent any intent to deceive or mislead anyone. Petitioner has admitted all aspects of his licensure history in Ohio to the Department. He has voluntarily paid the fine imposed by the Department for failing to timely disclose the existence of the Ohio Consent Order. There has been no showing of untrustworthiness by the evidence presented at final hearing. There is no credible evidence in this proceeding that Petitioner's actions in Ohio and/or Florida indicate a lack of trustworthiness. To the contrary, Petitioner's actions were at worst negligent or due to carelessness.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Financial Services granting Petitioner a license as a resident life, variable annuity, and health insurance agent. DONE AND ENTERED this 2nd day of November, 2007, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 2007. COPIES FURNISHED: Bruce Pelham, Esquire Robin Levy, Law Clerk Department of Financial Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 William J. Burkett 10177 Sailwinds Boulevard, South Unit J101 Largo, Florida 33773-2375 Honorable Alex Sink Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Daniel Sumner, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0307
The Issue The issue to be determined is whether Respondent, Sport Clips, Inc., is Petitioner’s “employer” under the Florida Civil Rights Act of 1992, chapter 760, Florida Statutes (“FCRA”).
Findings Of Fact Based upon the credibility of the witnesses and evidence presented at the final hearing and on the entire record of this proceeding, the following Findings of Fact are made: SCI is a Texas corporation, whose sole office is located at 110 Sport Clips Way, Georgetown, Texas, 78628. SCI’s Chief Executive Officer at the time of the alleged discriminatory events was Gordon B. Logan. SCI is the owner of the “Sport Clips” trademarks and business system. It licenses the Sport Clips trademarks and business system to independent business people. Each Sport Clips franchisee signs a franchise agreement under which SCI licenses its trademarks and the franchisee agrees to abide by certain operating rules that protect the Sport Clips trademarks and brand. In addition, each franchisee pays to SCI a royalty and advertising fee, as well as other fees. Sport Clips is a sports-themed hair-cutting salon which provides customers with haircuts, shampoo, and beard trims. There are approximately 1,800 Sport Clips franchise stores and an additional 75 Sport Clips stores owned and operated by SCI. SCI provides operating rules to its franchisees in a confidential operating manual.2 The operating manual does not cover employment policies, employee compensation, or employee benefits. These employment matters are determined by the individual franchisee. Instead, the operating manual focuses on business operations. According to Gordon Logan, CEO of SCI, the company trademark “[is] the essence of the business. You have to have a trademark and protect that trademark in order to have a viable system, one that franchisees can present in a consistent manner and the public knows what to expect when they come into a franchise business using that trademark.” The purpose of the procedures and specifications in the operating manual is to protect the Sport Clips trademark and brand. If SCI failed to enforce its trademark and brand standards, it could lose the right to use the trademark. Further, it ensures that the public’s expectations are met 2 Neither party introduced a copy of the confidential operating manual into evidence at the hearing and therefore it is not part of the record of this case. no matter which store they visit in the country, and protects the franchisees’ investments in the franchise. The procedures and specifications set forth in SCI’s franchise agreement and operating manual, including requiring franchisees to participate in specific training, use Sport Clips uniforms, and use a particular point of sales system, are typical of the franchise industry. JV-SC is a Florida Limited Liability Company managed by Drew C. Hopper. JV-SC’s sole corporate office is located at 708 Main Street, Houston, Texas. No SCI officer, employee, or representative holds any position with JV-SC, nor does any JV-SC officer, employee, or representative hold any position with SCI. Likewise, SCI has no ownership interest in any of Mr. Hopper’s Sport Clips stores or business entities, and Mr. Hopper and his business entities have no ownership interest in SCI. Over the last 21 years, Mr. Hopper has been involved in approximately 30 Sport Clips stores as a franchisee. Through JV-SC, Mr. Hopper operates eight Sport Clips franchise stores for profit in North Central Florida, including two locations in Gainesville. Mr. Hopper hired Ms. Kelley to manage the day-to-day operations of the Gainesville stores, and Ms. Kelley hired Ms. Turner, with Mr. Hopper’s approval, to manage and cut hair at one of JV-SC’s Gainesville stores. JV-SC has a franchise agreement with SCI with regard to the Gainesville location managed by Ms. Turner (“Franchise Agreement”). Under the Franchise Agreement, SCI granted JV-SC “a non-exclusive and personal license to operate one unit of the Franchised Business in strict conformity with the Franchisor’s standards and specifications” at 2231 Northwest 13th Street, Suite 20, Gainesville, Florida 32608 (“13th Street Location”). Ms. Kelley and Ms. Turner were responsible for recruiting and hiring hair stylists at the 13th Street Location. Ms. Turner was responsible for supervising the stylists at the 13th Street Location. Employees in JV-SC’s corporate office in Houston also handled human resources functions for JV-SC. Mr. Hopper ultimately decided what to pay stylists on behalf of JV-SC. JV-SC set employee expectations and Ms. Kelley and Ms. Turner were responsible for handling employee misconduct and firing decisions at the 13th Street Location. Ms. Kelley and Ms. Turner were also responsible for ensuring that the 13th Street Location was properly equipped with necessary tools and inventory. Mr. Boyd was a hair stylist at the 13th Street Location. He was hired by Ms. Turner on August 30, 2017, and his rate of pay was set by JV-SC at $10 per hour. When he was hired, he completed a new hire form which states in bold print at the top: “JV-SC Investments LLC DBA Sport Clips FL901.” Mr. Boyd’s employment was terminated less than three months after he was hired by Ms. Turner for a violation of JV-SC policy related to a customer complaint. SCI had no involvement in Mr. Boyd’s hiring or termination of employment. During his employment, Mr. Boyd’s work schedule was established by Ms. Turner and his benefits, including holidays, vacation pay, and health insurance, were determined by JV-SC. If Mr. Boyd was going to be late or absent from work, he needed to contact Ms. Turner. Ms. Turner supervised Mr. Boyd’s appearance and conduct while on duty at the 13th Street Location and she conducted his performance reviews. SCI has never exercised control over Mr. Boyd, including his working hours, pay, and vacation benefits. Mr. Boyd’s personnel records were created and maintained by JV-SC and the records repeatedly identify JV-SC as Mr. Boyd’s employer. Mr. Boyd’s paychecks and W-2 were issued by JV-SC and make no reference to SCI. Likewise, Ms. Turner and Ms. Kelley were hired and paid by JV-SC and JV-SC created and maintained their personnel records. SCI has no employment records indicating that Mr. Boyd, Ms. Turner, or Ms. Kelley were ever employed by SCI. JV-SC had an employee handbook based on a template it received from SCI. The handbook was modified by JV-SC and could be modified by JV-SC at any time. Indeed, SCI expressly advised JV-SC to modify the form handbook to ensure it complied with local laws and to reflect the business practices of JV-SC. The employee handbook identifies JV-SC in bold red print on the front cover and provides “Sport Clips stores are independently owned and operated franchises. Team Members working in franchised stores are employed by the franchisee (Team Leader) and are not employed by Sport Clips, Inc.” JV-SC’s employee handbook was provided to its employees, including Mr. Boyd. JV-SC’s employee handbook required Mr. Boyd to report complaints of discrimination to his manager, Ms. Turner, or if he had a complaint concerning her, to Mr. Hopper at JV-SC. Under section XVI of the Franchise Agreement, JV-SC “acknowledges and agrees that [JV-SC] is an independent business person and independent contractor.” Further, this section provides in relevant part: Nothing in the Agreement is intended to make either party an agent, legal representative, subsidiary, joint venturer, partner, employee or servant of the other for any purpose whatsoever. During the term of this Agreement, [JV-SC] shall hold itself out to the public as an independent contractor operating the Franchised Business pursuant to a license from [SCI] and as an authorized user of the System and the Proprietary marks which are owned by [SCI]. [JV-SC] agrees to take such affirmative action as may be necessary to do so, including exhibiting to customers a sign provided by [SCI] in a conspicuous place on the premises of the Franchised Business. In compliance with this section of the Franchise Agreement, JV-SC posted at its 13th Street Location a sign in the front of the store which states: “This Sport Clips store is owned and operated by JV-SC Investments, LLC an independent Sport Clips franchisee.” With regard to JV-SC’s employees, the Franchise Agreement provides that “[SCI] shall not have the power to hire, manage, compensate or fire [JV-SC’s] employees and it is expressly agreed that [SCI] has no employment relationship with [JV-SC’s] employees.” The Franchise Agreement further provides: Franchisees are responsible for hiring, managing and compensating their employees within the laws of any jurisdiction in which they operate and are encouraged to consult their own legal counsel to ensure their compliance with all applicable laws. Franchisee and Franchisor recognize that Franchisor neither dictates nor controls labor and employment matters for the Franchisee or the Franchisee’s employees. Over the last 21 years, SCI has never told Mr. Hopper “who to hire, how to hire, how much [he] should hire them for, how much [he] should pay [employees]. It’s always been up to [him].” With regard to JV-SC’s funds and store premises, the Franchise Agreement provides “[e]xcept as herein expressly provided, [SCI] may not control or have access to [JV-SC’s] funds or the premises of the Franchised Business, or in any other way exercise dominion or control over the Franchised Business.” SCI has no control or ownership interest over JV-SC’s bank accounts, set up by Mr. Hopper; SCI is only authorized to withdraw from the accounts the specific royalties and fees set forth in the Franchise Agreement. Proceeds from the sales at the 13th Street Location are deposited into JV-SC’s bank account. SCI does not lease or own the property at the 13th Street Location or any of the 23 locations Mr. Hopper franchises from SCI. JV-SC leases the property from a third party. SCI does not own any real estate in common with or lease any property to Mr. Hopper or his related business entities.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Florida Commission on Human Relations issue a final order finding that Petitioner failed to prove that Sport Clips, Inc. is an “employer” pursuant to section 760.02(7), Florida Statute, and dismissing the Petitions for Relief filed in these consolidated cases. DONE AND ENTERED this 12th day of August, 2020, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 August, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Robert W. Bauer, Esquire Bauer Law Group, P.A. Suite B 3721 Northwest 40th Terrace Gainesville, Florida 32606 (eServed) Deborah L. Taylor, Esquire SportsClips, Inc. Suite 1200 3730 Kirby Drive Houston, Texas 77098 Stephanie M. Marchman, Esquire GrayRobinson, P.A. Suite 106 720 Southwest 2nd Avenue Gainesville, Florida 32601-6250 (eServed) Maria Perez Youngblood, Esquire Law Office of Robert W. Bauer, P.A. Suite B 3721 Northwest 40th Terrace Gainesville, Florida 32606 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
The Issue Whether Petitioner has been subjected to an unlawful housing practice by Respondents, as alleged in the Amended Housing Discrimination Complaint filed by Petitioner on May 30, 2008.
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: Eduardo Mory is a dark-skinned Peruvian. In July 2004, he purchased a condominium unit at 276 Timber Run Way, Cocoa, Florida. The condominium unit was part of a condominium development governed by Northwest Lakes pursuant to a declaration of condominium dated September 24, 1998. In 2001, Northwest Lakes negotiated a bulk cable television service and easement agreement with Time Warner Communications, which became Bright House Networks in the Orlando market in 2003. Under the terms of the agreement, Northwest Lakes pays Bright House a monthly service fee for each of its 250 units. The fee is discounted from the standard rate that a unit owner would pay if he purchased service directly from Bright House. Pursuant to its declaration of condominium, Northwest Lakes passes the bulk cable fee through to each unit owner as a common expense. The fee is included in the unit owner's monthly maintenance fee. As of 2008, the monthly maintenance fee for unit owners in Northwest Lakes was $130.00, which included $28.00 for the bulk cable fee. In a letter to Mr. Mory dated February 22, 2008, Linda Miklosovic, the new president of Northwest Lakes, wrote that it had come to her attention that Mr. Mory had not paid the bulk cable fee for several years. She calculated that for the years 2006, 2007, and 2008, Mr. Mory owed $1,132.00 in maintenance fees, of which roughly $600 consisted of unpaid bulk cable fees. Mr. Mory responded that he was not required to pay the bulk cable fee. Mr. Mory had never wanted cable service in his unit. He testified that in 2006, he had arrived at an arrangement with Donald Feeser, then the president of Northwest Lakes, whereby he would not have to pay the bulk cable fee. The details of the arrangement between Mr. Mory and Mr. Feeser were not entirely comprehensible.1 However, those details are not of particular importance as this hearing is not intended to resolve the monetary dispute between Mr. Mory and Northwest Lakes. Mr. Feeser testified that he told Mr. Mory that he did not have to pay the bulk cable fee. Mr. Feeser testified that the issue was discussed at a meeting of the full Northwest Lakes board, but that the board did not vote on whether to waive the fee for Mr. Mory. Correspondence went back and forth between Mr. Mory and Ms. Miklosovic. Mr. Mory accused Ms. Miklosovic and Northwest Lakes of "stereotype discrimination." Ms. Miklosovic was adamant that no unit owner was excused from paying the bulk cable fee. She testified that she had confirmed this position with Bright House. She searched Northwest Lakes' records for some document to support Mr. Mory's exemption claim, but could find none. On May 12, 2008, Ms. Miklosovic sent Mr. Mory a final notice, giving him until May 23, 2008, to bring his account up to date or face legal proceedings. On July 31, 2008, counsel for Northwest Lakes sent Mr. Mory a demand letter for $1,076.43. At the hearing, Mr. Mory testified that he is the only black person in a 340-unit community, and believes that the actions of Ms. Miklosovic and Northwest Lakes are premised on a feeling that he does not belong there. While he offered testimony regarding disputes with Northwest Lakes over parking a recreational vehicle, Mr. Mory could provide no specific examples of speech or behavior by residents of the condominium or by officers of Northwest Lakes that in any way referenced his skin color or national origin, or that could even be inferred as discriminatory. Ms. Miklosovic credibly testified that this is simply a collection dispute. She provided records demonstrating that every unit in Northwest Lakes is billed for the bulk cable fee. She testified that every unit owner except Mr. Mory pays the bulk cable fee. At the time she sent the February 22, 2008, letter, Ms. Miklosovic had not met Mr. Mory.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief. DONE AND ENTERED this 5th day of February, 2009, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 2009.
The Issue Whether or not the Respondents, Henry Adkins and Sharon Adkins, are guilty of committing an act which constitutes fraud or dishonest dealings, for events on or about February 2, 1976, by charging Joseph Scozzafava for a (1) 1,000 ohm resistor 2 watt, when in fact it was not replaced; in violation of Section 468.159(1)(d), Florida Statutes. Whether or not the Respondents, Henry Adkins and Sharon Adkins, are guilty of committing an act which constitutes fraud or dishonest dealings, for events on or about February 2, 1976, by charging Joseph Scozzafava for a "Rebuilt Tuner", when in fact the work was not performed; in violation of Section 468.159(1)(d), Florida Statutes. Whether or not the Respondents, Henry Adkins and Sharon Adkins, are guilty of committing an act which constitutes fraud or dishonest dealings, for events on or about February 2, 1976,by charging Joseph Scozzafava for replacement of two (2) 6GH8 tubes, when in fact they were not needed; in violation of Section 468.159(1)(d) , Florida Statutes. The charging document in this cause, to wit, the Notice to Show Cause, had originally charged Henry Adkins and Sharon Adkins with the failure to identify the State Registration on invoice #3078 dated January 3, 1976, as required by Rule 7B-2.12(b), Florida Administrative Code. This count of the Notice to Show Cause was voluntarily dismissed by the Petitioner at the commencement of the hearing.
Findings Of Fact This cause comes on for consideration based upon the Notice to Show Cause of the Petitioner, which is complaint No. 108000-51 before the Petitioner, State of Florida, Department of Business Regulation, Division of General Regulation. The complaint is addressed to the Respondents, Henry Adkins and Sharon Adkins, his wife, who trade as Lauderdale Lakes T.V. and is directed to the following business entities owned by Henry Adkins or Henry Adkins and Sharon Adkins. The corresponding numbers which are reported here pertain to the license numbers assigned by the Petitioner to Henry Adkins or Henry Adkins and Sharon Adkins. Those licenses are for All-State T. V., No. 5079; Tower T.V., No. 6108; Lauderdale Lakes T.V., No. 5069; Inter-City T.V., No. 2895; X-Ray T.V., No. 2914; and M & H Electronics., No. 4854. Henry Adkins appears as the owner on all licenses. Sharon Adkins appears as the co-owner on the license for M & H Electronics, No. 4854. Before presenting the case for consideration, the parties entered into these factual stipulations: The Division of Administrative Hearings has jurisdiction to consider this case. The Notice of Hearing in this cause is timely. Henry Adkins is listed in the six licenses referred to above and each of those licenses have a mailing address of 3504 NW 10th Avenue, Fort Lauderdale, Florida 33309. In addition, those licenses referred to above and the ownership stated are correct as to the existence of the entity, the ownership and the number assigned to the various entities by the Petitioner. The invoice of Lauderdale Lakes T.V., No. 3078, is authentic. The State of Florida, Department of Business Regulation, Division of General Regulation is the owner of a 1972 RCA color television which is the subject of this case. Three television tubes, to wit: two 6GH8 tubes, and one 6-CB6 tube are the property of the State of Florida, Department of Business Regulation, Division of General Regulation. Joseph Scozzafava is not the owner of the subject 1972 RCA color television, nor was the money paid for the repair of the said television money of Mr. Scozzafava. The invoice referred to above may be found as Petitioner's Exhibit No. admitted into evidence. The television set is Petitioner's Exhibit No. 2 admitted into evidence, and the three tubes are Petitioner's Composite Exhibit No. 3 admitted into evidence. In late January, 1976 employees of the Petitioner, operating on complaints, prepared a television set for purposes of ascertaining whether or not the Respondent, Henry Adkins, d/b/a Lauderdale Lakes T.V., was. operating in violation of Chapter 468, Florida Statutes. In furtherance of their investigation they took tile 1972 RCA television set which has been mentioned as being Exhibit No. 2, and played the set for a couple of days to determine whether or not it was in good working order. From an observation point of view, there were no malfunctions during the test period. In the color circuit to include all the major components such as the tuner, transformer, and resistors, all items checked out as operating properly. In addition, 15 tubes within the set were checked by tube fester and the tubes proved to be acceptable. (The tube tester had not been certified.) After checking the set out, Frank Butler, an investigator with the Petitioner and Certified Electronics Technician, overloaded a tube within the color circuit. The specific tube is a 6-CB6 burst amplifier. The effect of overloading this tube was to remove the color from the set, such that it would play only in black and white. The created malfunction in this tube did not have an adverse effect on the other components within the set. The employees of the Petitioner also marked a number of the tubes in the set by crimping the connectors on the tubes by way of identification. An operative 6-CB6 burst amplifier was then inserted in the set and the set was played again for two days, within which time it operated successfully. The Petitioner's employees then contacted one Joseph Scozzafava, an employee with the Department of Business Regulation, Division of Beverage. The purpose of the contact with Scozzafava was to allow him to take the television set owned by the State and to contact Lauderdale Lakes T.V. for purposes of having that organization make repairs on the subject television. The idea was that the defective 6-CB6 tube would he left in the set so that the television only played black and white. When they took the set to Scozzafava in late January, 1976, they showed him that the set operated on all local-stations and then removed the operative 6-CB6 tube and replaced it with the inoperative tube and left that tube in the set. The Petitioner's employees then instructed Scozzafava to call Lauderdale Lakes T.V. to have the repairs effected. To achieve this end, Scozzafava was paid $100.00 by the Petitioner and in turn would write a check from his own account for the amount of the total cost of repairs. The set was picked up from Scozzafava on January 27, 1976. The pickup was made by an employee of the Respondent, Henry Adkins, in a truck listed to the license, Inter-City T.V. The television set was repaired under an invoice of Lauderdale Lakes T.V., a license held by Henry Adkins. That invoice is the Petitioner's Exhibit No. 1 admitted into evidence. The facts repeal that two 6GH8 tubes were replaced by employees of the Respondent, Henry Adkins, and charged to Scozzafava, when it was in fact unnecessary to replace those tubes. Those tubes may be found as part of Petitioner's Exhibit No. 3 admitted into evidence, and when tested subsequent to the time the television set was returned to the employees of the Petitioner, were found to be operable over a period of one or more days arid when played during the course of the hearing, were found to be in good operating condition. The charges and the indication of replacement may be found in the invoice and the invoice was executed by an employee of Henry Adkins, the Respondent. That employee was working for Lauderdale Lakes T.V. The invoice also reflects the replacement of one 1,000 ohm 2 watt resister, when in fact no replacement of the resister occurred. Scozzafava was charged for this item which was not replaced. Finally, there is an indication that the tuner within the set was rebuilt and a charge made to Scozzafava for that service. The Petitioner's employees had placed wax and tape across the shield which covers the inner parts of the tuner and that wax and tape had not been disturbed during the pendency of the time which the set was with the employees of the Respondent. The tuner was not rebuilt, notwithstanding the claim by witnesses of the Respondents, to the effect that certain repairs could have been made to the surface of the tuner without the necessity to remove that shield. The evidence leads to the conclusion that the tuner was not rebuilt. In summary, Scozzafava paid $88.45, to Lauderdale Lakes T.V. from funds provided him by the Petitioner. Of that amount paid, $8.40 was paid for two 6GH8 tubes; $6.25 was paid for the one 1,000 ohm 2 watt resistor which was not installed and $21.00 was paid for rebuilding the tuner, when in fact the tuner was not rebuilt. Some portion of the labor charge of $32.50 went toward these items; however, it is unclear what portion of that charge pertains to those items. As briefly mentioned before, the television set was returned to Scozzafava, who in turn gave it to the Petitioner's employees, who kept the set until such time as the case was brought. Employees of the Respondent, Henry Adkins, driving an Inter-City T.V. truck, returned three tubes, one 6-CB6 and two 6GH8; they did not return a 1,000 ohm 2 watt resister. The balance of the $100.00 paid to Scozzafava for the purposes of assisting the Petitioner was returned to the Petitioner. There was no testimony to the effect that either Henry Adkins or Sharon Adkins were directly involved in the pick-up or repair of the television set. Sharon Adkins was involved in the billing process, based upon a cost estimate given to Scozzafava in the amount of $85.00. Both Respondents indicated that they make a background check of all employees hired, for purposes of determining the employees' integrity. The Respondents, through Sharon Adkins, also indicated that they had made attempts to locate all employees who were involved with the pick-up or repair of the television set and were unsuccessful in locating them due to the death of one employee and the inability through use of a private detective to locate the other individuals. Henry Adkins also indicated that he had fired employees in the last two years because those employees put in unnecessary parts or overcharged for parts. The Petitioner has charged the Respondents with committing acts of fraud and dishonest dealings by charging Joseph Scozzafava for the one 1,000 ohm watt resister; charging him for the rebuilt tuner and replacing the two 6GH8 tubes when in fact they were not needed. To the Petitioner, these acts were in violation of Section 468.159(1)(d), Florida Statutes. That provision reads: "In violation of registration; civil penalties.- The Division may refuse to validate or may invalidate temporarily or permanently the registration of a service dealer for any of the acts or omissions related to the conduct of his business done by himself or any employee, partner, officer, or member of the service dealer; (d) Committing any other act which constitutes fraud or dishonest dealing." By charging for the two 6GH8 tubes that were not needed; by failing to replace the one 1,000 ohms 2 watt resister, and charging for such replacement and for charging to rebuild a tuner which was not rebuilt, the employees of the Respondents are guilty of fraud and dishonest dealing. For those violations and under the exact language of the statute, the Respondents would appear to be guilty of a violation of Section 468.159(1)(d), Florida Statutes. However, the law does not contemplate that an employer is the absolute insurer of all the acts of his or her employees. Absent a showing of direct involvement on the part of the Respondents in the acts which constituted fraud and dishonest dealing, the Petitioner must show negligence or a lack of due diligence by the Respondents, In the Respondents' supervision of the employees who have committed the acts of fraud and dishonest dealing. (See Taylor v. State Beverage Department, 194 So.2d 321 (2nd DCA, 1967).) An isolated incident such as the one in the case under consideration does not satisfy the requirement that the Petitioner show negligence or a lack of due diligence on the part of the Respondents. Therefore, the Petitioner has failed to establish a violation on the parts of the Respondents as it pertains to the electronic service dealer registration Nos. 5069, 5079, 2895, 4854, 6108 and 2914, which are held by Henry Adkins and Sharon Adkins and Henry Adkins, solely. Full consideration has been given to the proposed findings of facts and conclusions of law submitted and when appropriate are incorporated in this Recommended Order.
Recommendation It is recommended that the Notice to Show Cause against Henry and Sharon Adkins, which is recorded as complaint No. 108000-51, pertaining to electronic service deal registration Nos. 5069, 5079, 2895, 4854, 6103 and 2914 be DISMISSED. DONE AND ENTERED this 30th day of June, 1978, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Richard E. Gentry, Esquire Staff Attorney State of Florida, Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32304 Robert D. Hurth, Esquire 2425 East Commercial Boulevard Marwayne Office Plaza, Suite 101 Fort Lauderdale, Florida 33308
