The Issue Initially the issue was, whether Respondent, Sunshine Auto Mart, discriminated against Petitioner, Dorothy Scott, on the basis of her disability, and, if so, what remedy should be ordered. However, at the beginning of the hearing, the parties agreed that the hearing would be limited to the question of whether Respondent met the definition of “employer” under the Florida Civil Rights Act.
Findings Of Fact Respondent is a used automobile dealership. John Connell is the sole proprietor of Respondent. Petitioner was hired by Respondent in 2007. Petitioner started working for Respondent as a secretary and later became Respondent’s general manager. She would work in different areas of the dealership, as needed, but she maintained a steady work schedule. Petitioner received notification that her employment was terminated on July 28, 2014. Petitioner was unable to provide competent details of when and how long each alleged employee worked for Respondent. Some of the alleged employees worked a few hours each week and could come and go as they wanted. At the final hearing, Respondent presented Employer’s Quarterly Federal Tax Returns for 2013 and 2014, and the Florida Department of Revenue Employer’s Quarterly Reports covering 2013 and 2014. Each report shows that Respondent employed fewer than 15 employees for each quarter covered by the report. These reports, supported by Mr. Connell and Ms. Riggs’ testimony, constitute competent substantial evidence that Respondent employed fewer than 15 full-time employees for each working day in the 52 calendar weeks in 2013, and in the 28 calendar weeks in 2014, the period preceding the alleged discrimination. Petitioner did not present any competent substantial evidence to counter or rebut this evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner’s Petition. DONE AND ENTERED this 4 day of November, 2015, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 4 day of November, 2015.
The Issue The issue is whether the termination of Respondent, Otis Paul Whatley, was in accordance with the personnel procedures established by the Emerald Coast Utilities Authority.
Findings Of Fact ECUA was created in 1981 pursuant to Chapter 81-376, Laws of Florida. By law, it provides utility services throughout Escambia County, Florida. Mr. Whatley was employed by ECUA. On October 31, 2001, Mr. Whatley signed an acknowledgement that he received the ECUA Employee Handbook. The ECUA Employee Handbook is a summary of benefits, policies, procedures, and rules, which are more fully set forth in ECUA's Human Resources Policy Manual. While on the ECUA Rotation Schedule Standby List on Sunday, July 26, 2009, Mr. Whatley, and his co-worker Jonathan Wheat, were required to be available to make repairs when summoned by ECUA customers. Mr. Whatley submitted a Daily Overtime Report dated July 26, 2009, which indicated that he worked on that day from 9:00 a.m. until 10:30 a.m. at 926 Lake Terrace, in Pensacola, Florida. The overtime report further stated that he worked from 10:30 a.m. until 11:00 a.m. at 1283 La Paz Street, in Pensacola. He further asserted that he worked at 402 West Lloyd Street, from 6:00 p.m. until 11:00 p.m. According to the Global Positioning System (GPS) installed on the ECUA truck assigned to Mr. Whatley, he did not depart his residence at the time he claimed to be working at 926 Lake Terrace or at 1283 La Paz Street. Moreover, the evidence provided by the GPS indicated that he was at the 402 West Lloyd Street for four hours rather than the five claimed as overtime. Mr. Whatley's co-worker, Jonathon Wheat, did work at 926 Lake Terrace and at 1283 La Paz Street, but he worked alone. Mr. Wheat joined in Mr. Whatley's prevarication with regard to the quantity of time expended at 402 West Lloyd Street. Mr. Wheat confessed to his prevarication when confronted. Mr. Whatley lied about his whereabouts when initially confronted, but eventually admitted that his timesheet contained false entries. It is found as a fact that Mr. Whatley, on his time sheet for July 26, 2009, claimed one hour and a half overtime for work at 926 Lake Terrace, one-half-hour overtime for work or at 1283 La Paz Street, and an hour more overtime than actually worked at 402 West Lloyd Street. None of the forgoing periods were worked by Mr. Whatley. Accordingly, these entries on his time sheet were false.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Executive Director of the Emerald Coast Utility Authority, based on the findings of fact found herein, impose such penalty on Otis Paul Whatley, as he or she determines to be appropriate. DONE AND ENTERED this 24th day of November, 2009, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 24th day of November, 2009. COPIES FURNISHED: Otis Whatley 8655 Ramblewood Place Pensacola, Florida 32514 John E. Griffin, Esquire Carson & Adkins 2930 Wellington Circle, North, Suite 201 Tallahassee, Florida 32309 Stephen E. Sorrell, Executive Director Emerald Coast Utilities Authority 9255 Sturdevant Street Post Office Box 15311 Pensacola, Florida 32514-0311
The Issue The issue is whether Respondent discriminated against Petitioner Maia Fisher (Petitioner) on the basis of her gender and retaliated against Petitioner because of her pregnancy in violation of Hillsborough County Human Rights Ordinance 00-37.
Findings Of Fact Petitioner is an aggrieved person within the meaning of Hillsborough County Human Rights Ordinance 00-37, Section 16. Petitioner is a female and filed a complaint with the Board alleging that Respondent engaged in gender discrimination and retaliation after Petitioner disclosed her pregnancy. Respondent is an employer within the meaning of Section 16. Respondent operates a printing business. Respondent is a corporation wholly-owned by Mr. John Disbrow and Ms. Angela Disbrow. Mr. and Ms. Disbrow are the principal operators and decision-makers. Respondent was Petitioner's employer. Petitioner was an employee during the relevant period. Petitioner began her employment with Respondent sometime in March 2008. Respondent terminated Petitioner’s employment on July 28, 2008. Petitioner discovered in June 2008 that she was pregnant. Petitioner informed Mr. and Ms. Disbrow. Mr. Disbrow instructed Mr. Alfred Buranda to terminate Petitioner’s employment sometime in July 2008. Mr. Buranda was the head of human resources for Respondent at that time, but has since moved on to other employment. Mr. Buranda refused to terminate Petitioner’s employment. Mr. Buranda conducted a teleconference with Petitioner in his office on July 28, 2009. Mr. Buranda telephoned Mr. and Ms. Disbrow on his office speaker phone with Petitioner present in his office. Mr. and Ms. Disbrow explained to Petitioner by speaker phone that the pregnancy was the reason for the termination of employment. Respondent owes Petitioner unpaid compensation in the total amount of $2,820.00. Respondent owes Petitioner back wages for unpaid overtime equal to $720.00. Respondent owes Petitioner unpaid commissions equal to $2,100.00. Back wages in the amount of $720.00 is the product of multiplying an hourly overtime rate of $12.00 by the total of uncompensated overtime equal to 60 hours. Unpaid commissions of $2,100.00 are composed of two parts. Petitioner made five sales under $500.00 for which Respondent owes a commission of $100.00 for each sale and a total of $500.00 for all five sales. Petitioner made eight sales over $500.00 for which Respondent owes a commission of $200.00 for each sale and a total of $1,600.00 for all eight sales. Petitioner has been living in a shelter for battered women. Contact and service on Petitioner has been problematic. The Board may require an investigator or other means to provide Petitioner with actual notice of the final order in this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the final order issued in this proceeding should find that Respondent is guilty of discrimination and retaliation on the basis of gender in violation of Hillsborough County Human Rights Ordinance 00-37 and require Respondent and its principals to pay Petitioner $2,820.00 in unpaid compensation. DONE AND ENTERED this 8th day of December, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 8th day of December, 2009. COPIES FURNISHED: Maia Fischer 2302 48th Avenue West Bradenton, Florida 34207 Camille Blake, EEO Manager Hillsborough County Post Office Box 1110 Tampa, Florida 33601-1101 John Disbrow ADCO Printing 8412 Sabal Industrial Boulevard Tampa, Florida 33619
Findings Of Fact The Respondent, Larry C. Griggs, is licensed as a certified general contractor, holding license number CG C001910. During the years 1979, 1980 and 1981 the Respondent was president of Kramer Homes, Inc., and in this capacity he acted as contractor for the construction of a project in Dade County known as Woods Landing. Kramer Homes, Inc., entered into subcontracts in connection with the Woods Landing project, and listed itself as contractor on these subcontracts. Kramer Homes, Inc., also caused the notice of commencement to be published, and it obtained the construction loan and paid some of the bills incurred. The Respondent, however, failed to qualify Kramer Homes, Inc., with the Construction Industry Licensing Board. The Respondent admitted the above facts, but explained that he had no intent to violate the construction industry licensing law. He asserts that he was confused as to the proper practice because he owned and operated both Kramer Homes, Inc., and his other corporation, Larry C. Griggs, Inc., which he did qualify. During the course of the Woods Landing project, funding problems developed which resulted in the failure of the Respondent to pay 16 creditors for materials furnished or services performed at Woods Landing when payment was due. Subsequently however, the Respondent has caused payment to be made, or has made arrangements for payment, to all such creditors except for five. The creditors remaining unpaid are Miami Comfort Air, Style Light, Inc., Gem Cabinet Company of Miami, Inc., World Tile Company, and Dixie Clamp and Scaffold, Inc. On approximately September 11, 1981, the Respondent issued a check on a Woods Landing account, payable to Miami Comfort Air, in the amount of $5,000. Previously, on July 31, 1981, the Respondent had acknowledged the debt due Miami Comfort Air, and had made arrangements to pay $8,000 by September 1, 1981. The check for $5,000 was in partial payment of the total debt. The check for $5,000 issued by the Respondent on September 11, 1981, to Miami Comfort Air was returned unpaid by the bank marked not sufficient funds. When the Respondent learned that this check had not been paid, he failed to make it good or to make suitable arrangements for payment of the amount due Miami Comfort Air. The Respondent contends that be believed that there were sufficient funds in his account when he issued the $5,000 check to Miami Comfort Air. He explained that his bank, County National Bank of South Florida, became insecure with the financial aspects connected with the Woods Landing project, and withdrew interest from his account without advising the Respondent, at or about the time he issued the check to Miami Comfort Air. He asserts that it is his intention to pay all of the creditors of this project, and he established his payment record of the creditors who had been paid as of the date of the hearing. Miami Comfort Air has reduced its claim against the Respondent to judgment which the Respondent has not paid, but has elected to appeal, although he did not appear in court to defend the claim when suit was filed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Larry C. Griggs, be found guilty of violating Sections 489.129(1)(d), (g), (j) and Section 489.129(1)(c) to wit Section 455.227(1)(a), Florida Statutes, and that he be assessed an administrative fine of $250 on Count 1, $100 on Count 11 and $1,000 on Count 111, for a total fine of $1,350. THIS RECOMMENDED ORDER entered on this the 24th day of January, 1983. WILLIAM B. THOMAS, 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 24th day of January, 1983. COPIES FURNISHED: Michael J. Cohen, Esquire Suite 101 Kristin Building 2715 East Oakland Park Blvd. Fort Lauderdale, Florida 33306 James L. Wall, Jr., Esquire 407 Lincoln Road Miami Beach, Florida 33139 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
Findings Of Fact James Zaharako is the Executive Vice-President of J. R. Brooks & Sons, Inc. In this capacity he is involved in the management and administration of J. R. Brooks & Sons, Inc., including but not limited to collection of sums owed. He or his subordinates agreed to fill orders for avocadoes from Sunshine Produce Company, Inc. totalling $84,193.25 set out as follows: DATE INVOICE NO. DOLLAR AMOUNT 06/10/83 45434 $9,256.25 01/05/84 125261 7,337.00 01/11/84 12096 4,936.00 01/12/84 12168 6,610.50 01/26/84 14094 8,908.00 01/26/84 14127 8,755.00 02/02/84 15114 10,172.50 02/08/84 22125 7,340.00 02/08/84 22126 10,632.00 02/15/84 23141 10,246.00 $84,193.25 These agricultural products were delivered into the care, custody and control of truck drivers employed by Sunshine Produce, Company, Inc. at the J. R. Brooks packing facility located in Homestead, Florida. The transaction, except for payment to J. R. Brooks, was complete at that time. Despite many attempts to collect the total amount, representatives of Sunshine refused, declined, or failed to pay J. R. Brooks & Sons, Inc. the amount charged without offering any reason except that they did not have sufficient funds. The surety, pursuant to bond FS-106353 for Sunshine Produce Company, Inc. is Allied Fidelity Insurance Company. The amount on this bond is capped at $4,000 for events arising between August 7, 1983, and August 6, 1984. Seventy-four thousand nine hundred and thirty-seven dollars ($74,937.00) of the total unpaid-for orders were filled by J. R. Brooks & Son to Sunshine Produce Company, Inc. in this period of time.
The Issue Whether the Department of Transportation properly denied Petitioner’s permit application for a proposed outdoor advertising sign to be erected adjacent to US 98, 0.817 miles west of State Road 87, in Santa Rosa County, Florida, pursuant to Chapter 479, Florida Statutes.
Findings Of Fact On April 3, 1998, Lamar submitted an application for new sign permits for a proposed outdoor advertising sign along US Highway 98, 0.817 miles west of State Road 87 in Navarre, Santa Rosa County, Florida (new permits) to DOT. The new permits were to be located within 2000 feet of existing permitted signs for which Lamar already possessed permits (the existing permits). The existing permit numbers were AE682-6 and BL256-35. Santa Rosa County’s Land Development Code Section 8.07.00 provides that no off-premise advertising sign, such as involved here, can be located within 2000 feet of any other off-premise sign on the same side of the street right-of- way. Since Lamar's existing permitted sign and the proposed location of the new permitted sign was within 2000 feet of each other, Lamar wished to cancel the existing permits conditioned upon the approval of the new permits. The practice is known as conditional cancellation. Prior to and during 1998, DOT had an established non- rule policy of conditional cancellation for existing sign permits. Conditional cancellation could occur when applying for new permits that would potentially conflict with existing permits. An applicant could simultaneously submit a cancellation certification for the existing permits together with the application for new permits. The old permits would not be canceled until new permits were issued. The exact process for requesting a conditional cancellation was not shown to be uniform throughout the state. However, the policy of allowing conditional cancellations to be made by permittees was accepted statewide. The policy and process for conditional cancellation are now codified in Rule 14-10.004, Florida Administrative Code, after the application in this case had been processed. In this case and in conjunction with the submission of Lamar's new permit application, Lamar submitted a copy of the cancellation certification for its existing permitted signs to the regional District Three DOT office in Chipley, together with its application for the new permits. Simultaneously, on April 3, 1998, Lamar submitted the original cancellation certification to the central office of DOT. The instructions on the certification of cancellation require the cancellation form to be submitted to the Tallahassee office of DOT. Neither the cancellation form nor letter from Lamar indicated that the cancellation was conditional. There was no place on the form to make such an indication. Lamar had been following the above-filing practice when requesting conditional cancellation since 1995. Because of its practice Lamar believed that it had properly notified DOT that cancellation of its existing permits was conditioned upon approval of its application for new permits. Lamar never considered that one office of DOT might not know what occurred at another office of DOT or that one office of DOT might not communicate with another office of DOT. On the other hand, the regional office of DOT in Chipley only recognized that an applicant had requested a conditional cancellation of existing permits when the original and not a copy of the cancellation form was submitted with the application for new permits. Lamar was unaware of the distinction between the filing of an original cancellation form with its application and the filing of a copy of the cancellation form with its application. More importantly, this distinction was not a rule and does not appear to have been communicated to anyone save the officials at the Chipley office of DOT. Consequently, Lamar relied on its established practice when seeking a conditional cancellation. A practice that DOT had recognized on earlier conditional cancellations by Lamar. Lamar reasonably believed, based on its previous experience with the policy of conditional cancellation, that existing permits would not be cancelled until the new permits were granted. Shortly after the filing of Lamar’s application, District Three returned Lamar's permit application without action because it was incomplete. The application was not considered filed by DOT because it was incomplete and the entire application package, including the copy of the cancellation form was returned to Lamar. The application was not logged into the Department’s computer. The Chipley office, even though it knew the old permits were to be cancelled, did not notify the Tallahassee office of the return of Lamar’s application or the lack of approval of that application. On April 7, 1998, the Tallahassee office of DOT processed the cancellation form it had received from Lamar on the existing permits. The existing permits were cancelled and the cancellation was logged into the Department’s computer. Because the Department did not follow its policy of conditional cancellation on which Lamar had relied for a number of years and the Department had knowledge of Lamar’s application for new permits which clearly conflicted with the cancelled permits, the existing permits should not have been cancelled and should have remained in effect since the application had not been approved by DOT. The fact that the knowledge resided in different offices of DOT is irrelevant. On April 10, 1998, Bill Salter Advertising (Salter) submitted an application for sign permits. The proposed sign would be located 0.36 miles west of State Road 87 on the same side of US 98 as the existing permit location for Lamar. The Salter permits would be within 2000 feet of Lamar’s existing permits and not be approved by DOT if the existing Lamar permits were still in effect. On May 6, 1998, Lamar resubmitted its complete application for the new permits. Upon inspection of the site for Lamar’s new permits, it was discovered that a spacing conflict existed with the Bill Salter application site. On May 10, 1998, DOT tentatively denied Salter’s application for incorrect information on the sketch of the site it had submitted with its application. On May 28, 1998, Salter amended its application with a corrected site sketch. By letter dated June 5, 1998 the Department advised Lamar that its application would be held pending resolution of the prior application filed by Salter. On June 26, 1998, DOT granted Salter’s application. On July 6, 1998, permits BU595-55 and BU596-55 were issued to Salter. On August 26, 1998, DOT denied Lamar’s applications. The denial was based on Section 479.15, Florida Statutes, which prohibits DOT from granting a permit which would conflict with a county ordinance such as the Santa Rosa County Land Development Code sign spacing requirements. No other basis for denial of the subject permits exists.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Transportation reinstate the Lamar Advertising Company’s existing permits AE682-6 and BL256-35. DONE AND ENTERED this 7th day of October, 1999, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 7th day of October, 1999. COPIES FURNISHED: G. R. Mead, II, Esquire Clark, Partington, Hart, Larry Bond, Stackhouse & Stone 125 West Romana Street, Suite 800 Pensacola, Florida 32591-3010 Sheauching Yu, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Thomas F. Barry, Secretary Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue Whether the Division of Administrative Hearings has jurisdiction to conduct a formal hearing under the provisions of Section 120.569 and Subsection 120.57(1), Florida Statutes (2004), if the written request for a formal hearing was not timely filed pursuant to Subsection 120.569(2)(c), Florida Statutes (2004), and Florida Administrative Code Rule 28-106.111(2). Whether the Division of Administrative Hearings has jurisdiction to conduct a formal hearing under the provisions of Section 120.569 and Subsection 120.57(1), Florida Statutes (2004), if the Administrative Complaint issued by Petitioner, Department of Children and Family Services, fails to advise Respondent, Adoptions By Choice, Inc., whether mediation under Section 120.573, Florida Statutes (2004), is available as an alternative remedy as required by Section 120.573, Florida Statutes (2004), and Florida Administrative Code Rule 28-106.111(1).
Recommendation Based on the foregoing facts and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the Answer and Petition of Respondent, Adoption by Choice, Inc., in DOAH Case No. 04-3596 and DCF Case No. 04-0001, for failure to timely file its Answer and Petition; and Petitioner may proceed to final agency action. DONE AND ENTERED this 3rd day of December, 2004, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 2004. COPIES FURNISHED: Raymond R. Deckert, Esquire Department of Children and Family Services Regional Headquarters, Suite 902 9393 North Florida Avenue Tampa, Florida 33612 Ron Smith, Esquire 8293 86th Avenue North Largo, Florida 33777 Paul F. Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
