The Issue Whether Respondent, Xencom Facility Management, LLC (Xencom), terminated the employment of Petitioners solely because the contract under which they were working ended.
Findings Of Fact Xencom provides general maintenance, landscaping, housekeeping, and office cleaning services to retail facilities. In September of 2015, Xencom entered three contracts for services with CREFII Market Street Holdings, LLC (CREFII). The contracts were to provide maintenance, landscaping, and office cleaning services for a mall known as Market Street @ Heathbrook (Market Street) in Ocala, Florida. Michael Ponds, Xencom’s president, executed the contracts on behalf of Xencom. Two individuals executed the contracts on behalf of CREFII. One was Gar Herring, identified as manager for Herring Ocala, LLC. The other was Bernard E. McAuley, identified as manager of Tricom Market Street at Heathbrook, LLC. MG Herring was not a party or signatory to the contracts. MG Herring does not own or operate Market Street. A separate entity, The MG Herring Property Group, LLC (Property Group), operated Market Street. The contracts, in terms stated in an exhibit to them, established a fixed price for the year’s work, stated the scope of services, and detailed payment terms. They also identified labor and labor-related costs in detail that included identifying the Xencom employees involved, their compensation, and their weekly number of hours. The contract exhibits also identified operating costs, including equipment amortization, equipment repairs, fuel expenses, vacation costs, health insurance, and storage costs. The contracts ended December 31, 2016. The contracts specify that Xencom is an independent contractor. Each states: “Contractor is an independent contractor and not an employee or agent of the owner. Accordingly, neither Contractor nor any of Contractor’s Representatives shall hold themselves out as, or claim to be acting in the capacity of, an agent or employee of Owner.” The contracts also specify that the property manager may terminate the contract at any time without reason for its convenience. The contracts permit Xencom to engage subcontractors with advance approval of the property manager. They broadly describe the services that Xencom is to provide. Xencom has over 80 such contracts with different facilities. As the contracts contemplate, only Xencom exerted direct control of the Petitioners working at Market Street. Property Group could identify tasks and repairs to be done. Xencom decided who would do them and how. In 2013, Xencom hired Michael Harrison to work as its Operations Manager at Market Street. He was charged with providing services for which Property Group contracted. His immediate supervisor was Xencom’s Regional Manager. In 2016, that was David Snell. Mr. Snell was not located at Market Street. Property Group also did not have a representative on site. Before Xencom hired him, Mr. Harrison worked at Market Street for Property Group. Xencom hired the remaining Petitioners to work at Market Street under Mr. Harrison’s supervision. Each of the Petitioners completed an Application for Employment with Xencom. The application included a statement, initialed by each Petitioner, stating, “Further, I understand and agree that my employment is for no definite period and I may be terminated at any time without previous notice.” All of the Petitioners also received Xencom’s employee handbook. As Xencom’s Operations Manager and supervisor of the other Petitioners, Mr. Harrison was responsible for day-to-day management of Petitioners. He scheduled their work tasks, controlled shifts, established work hours, and assigned tasks. Mr. Harrison also decided when Petitioners took vacations and time off. His supervisor expected him to consult with Property Group to ensure it knew what support would be available and that he knew of any upcoming events or other considerations that should be taken into account in his decisions. As Operations Manager, Mr. Harrison was also responsible for facilitating payroll, procuring supplies, and managing Xencom’s equipment at the site. Xencom provided Petitioners work uniforms that bore Xencom’s name. Xencom required Petitioners to wear the uniforms at work. Xencom provided the supplies and equipment that Petitioners used at work. Only Xencom had authority to hire or fire the employees providing services to fulfill its contracts with the property manager. Only Xencom had authority to modify Petitioners’ conditions of employment. Neither MG Herring, Property Group, nor Xencom held out Petitioners as employees of MG Herring or Property Group. There is no evidence that MG Herring or Property Group employed 15 or more people. Property Group hired Tina Wilson as Market Street’s on- site General Manager on February 1, 2016. Until then there was no Property Group representative at the site. The absence of a Property Group representative on-site left Mr. Harrison with little oversight or accountability under the Xencom contracts for Market Street. His primary Property Group contact was General Manager Norine Bowen, who was not located at the property. Ms. Wilson’s duties included community relations, public relations, marketing, leasing, litigation, tenant coordination, lease management, construction management, and contract management. She managed approximately 40 contracts at Market Street, including Xencom’s three service agreements. Ms. Wilson was responsible for making sure the contracts were properly executed. Managing the Xencom contracts consumed less than 50 percent of Ms. Wilson’s time. During the last weeks of 2016, Mr. Harrison intended to reduce the hours of Kylie Smithers. Ms. Wilson requested that, since Ms. Smithers was to be paid under the contract for full- time work, Ms. Smithers assist her with office work such as filing and making calls. Mr. Harrison agreed and scheduled Ms. Smithers to do the work. This arrangement was limited and temporary. It does not indicate Property Group control over Xencom employees. Ms. Wilson was Xencom’s point of contact with Property Group. She and Mr. Harrison had to interact frequently. Ms. Wilson had limited contact with the other Xencom employees at Market Street. Friction and disagreements arose quickly between Mr. Harrison and Ms. Wilson. They may have been caused by having a property manager representative on-site after Mr. Harrison’s years as either the manager representative himself or as Xencom supervisor without a property manager on-site. They may have been caused by personality differences between the two. They may have been caused by the alleged sexual and crude comments that underlie the claims of discrimination in employment. They may have been caused by a combination of the three factors. On November 21, 2016, Norine Bowen received an email from the address xencomempoyees@gmail.com with the subject of “Open your eyes about Market Street.” It advised that some employees worked at night for an event. It said that Ms. Wilson gave the Xencom employees alcohol to drink while they were still on the clock. The email said that there was a fight among Xencom employees. The email also said that at another event at a restaurant where Xencom employees were drinking, Ms. Wilson gave Ms. Smithers margaritas to drink and that Ms. Smithers was underage. The email claimed that during a tree-lighting event Ms. Wilson started drinking around 3:30 p.m. It also stated that Ms. Wilson offered a Xencom employee a drink. The email went on to say that children from an elementary school and their parents were present and that Ms. Wilson was “three sheets to the wind.” The email concludes stating that Ms. Wilson had been the subject of three employee lawsuits. On December 14, 2016, Ms. Wilson, Ms. Bowen, and Mr. Snell met at Property Group’s office in Market Street for their regular monthly meeting to discuss operations at Market Street. Their discussion covered a number of management issues including a Xencom employee’s failure to show up before 8:00 to clean as arranged, security cameras, tenants who had not paid rent, lease questions, HVAC questions, and rats on the roof. They also discussed the email’s allegations. The participants also discussed a number of dissatisfactions with Mr. Harrison’s performance. Near the end of a discussion about the anonymous email, this exchange occurred:2/ Bowen: Okay, so I know that David [Snell], I think his next step is to conduct his own investigation with his [Xencom] people, and HR is still following up with John Garrett, and you’re meeting with Danny [intended new Xencom manager for Market Street] tonight? David Snell: Yes. Bowen: To finish up paperwork, and, based on his investigation, it will be up to Xencom to figure out what to do with people that are drinking on property, off the clock or on the clock, you know, whatever, what their policy is. * * * Bowen: So, I don’t know what to make of it. I’m just here to do an investigation like I’m supposed to do and David is here to pick up the pieces and meet with his folks one-on- one, and we’ll see where this takes us. This exchange and the remainder of the recording do not support a finding that Property Group controlled Xencom’s actions or attempted to control them. The participants were responsibly discussing a serious complaint they had received, their plan to investigate it, and pre-existing issues with Mr. Harrison. The exchange also makes clear that all agreed the issues involving Xencom employees were for Xencom to address, and the issues involving Property Group employees were for Property Group to address. At the time of the December 14, 2016, meeting, the participants were not aware of any complaints from Mr. Harrison or Mr. Smithers of sexual harassment or discrimination by Ms. Wilson. On December 15, 2016, Gar Herring and Norine Bowen received an email from Mr. Harrison with an attached letter to Xencom’s Human Resources Manager and others. Affidavits from Petitioners asserting various statements and questions by Ms. Wilson about Mr. Harrison’s and Mr. Smithers’ sex life and men’s genitalia and statements about her sex life and the genitalia of men involved were attached. Xencom President Michael Ponds received a similar email with attachments on the same day. On December 21, 2016, Mr. Ponds received a letter from Herring Ocala, LLC, and Tricom Market Street at Heathbrook, LLC, terminating the service agreements. Their agreements with Xencom were going to expire December 31, 2016. They had been negotiating successor agreements. However, they had not executed any. Xencom terminated Petitioners’ employment on December 21, 2016. Xencom no longer needed Petitioners’ services once MG Herring terminated the contract with Xencom. This was the sole reason it terminated Petitioners.
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 denying the petitions of all Petitioners. DONE AND ENTERED this 15th day of May, 2018, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 15th day of May, 2018.
The Issue Whether Respondent's beverage license should be suspended or revoked, or a civil penalty assessed, for an alleged violation of Section 562.12, Florida Statutes, pursuant to Section 561.29(1) Florida Statutes, as set forth in Notice to Show Cause issued by Petitioner. The hearing was originally scheduled for December 8, 1977, but respondent filed a motion for continuance which was granted by the Hearing Officer and the hearing was rescheduled for January 18, 1978. At the hearing, respondent moved to dismiss the charges on the ground that the Notice of Hearing issued on November 21, 1977, by the Hearing Officer was defective in that it did not adequately describe the petitioner's Notice to Show Cause or attach it to the Notice of Hearing. The motion was denied upon a determination that respondent had adequately been placed on notice as to the nature of the offense charged and due to the fact that the Notice to Show Cause had been sent by certified mail to respondent and that the receipt thereof on August 13, 1977, by an authorized agent of respondent was not contested. Further, respondent's motion for continuance indicates that her counsel was aware of the subject matter of the charges. Additionally, if such had not been the case, respondent had sufficient opportunity during the period in which the case had been continued to seek amplification or clarification of the issues involved in the case as set forth in the Notice of Hearing.
Findings Of Fact Respondent Jennie E. Harrell, d/b/a W. D. Harrell Fish Bait and Tackle, 515 South Roberts Street, Quincy, Florida, holds license Number 30-82, Series 1 COP, issued by petitioner which permits the sale of beer for consumption on the premises. The license was in effect during August, 1976. (Petitioner's Exhibit l) An occupational license for 1975-76 issued by the City of Quincy, Florida, Number 394, was issued to the Lake Talquin Fish Market, 515 South Roberts Street, Quincy, Florida, on October 15, 1975, to engage in the occupation of merchant. A similar license in the same name at the same address, Number 395, and issued on the same date, authorized the licensee to engage in the occupation or business of retail sale of gasoline. City occupational license 1976-77, Number 298 ,issued by the City of Quincy to Lake Talquin Fish Market at 517 South Roberts Street, to engage in the business or occupation of merchant, was issued on September 30, 1976. The Lake Talquin Fish Market is located at 517 South Roberts Street. The official records show that the license was issued to Jenny Harrell of 515 South Roberts Street, Quincy, Florida, and that the 1975-76 license Number 394 was issued in the same name. (Petitioner's Exhibits 2 and 10, supplemented by Petitioner's Composite Exhibit 3) On August 15, 1976, at approximately 10:55 a.m., State Beverage Officers Gary Sams and Fred Miller met with a reliable informant, one Guy Williams, in the vicinity of respondent's licensed premises at 515 South Roberts Street, Quincy, Florida. After searching Williams for any money or alcoholic beverages on his person, Sams gave him $7.20 and instructed him to attempt to purchase whiskey at respondent's place of business, W. D. Harrell Fish Bait and Tackle. The officers observed Williams drive to the building in question, but could not see his subsequent actions. He returned approximately fifteen to twenty minutes later with a partially filled one-half pint bottle of Seagram's Seven Crown whiskey. Williams had entered respondent's premises and asked a woman behind the counter if he could purchase a half-pint of whiskey. She told him he would have to go next door. He thereupon entered the adjacent premises, Lake Talquin Fish Market, and ordered a half-hint of Seagram's Seven Crown whiskey from a man there. The man went in the back of the store and returned with a sealed one-half pint bottle labeled Seagram's Seven Crown. Williams paid $2.50 for the bottle, took a drink from it, and found that it was, indeed, whiskey. The bottle was thereafter labeled for identification by the beverage officers and placed in the evidence room of petitioner's Tallahassee office. However, it was destroyed by petitioner prior to the hearing. (Testimony of Sams, Miller, Williams) On August 22, 1976, the two beverage agents again met with Williams at the same location at approximately 9:30 a.m. Following the same procedures as before, Sams gave Williams $4.00 and instructed him to go to respondent's state- licensed premises to attempt to purchase liquor. The same sequence of events as on August 15th occurred, involving a woman at W. D. Harrell Fish Bait and Tackle, and a man at the Lake Talquin Fish Market. This time the purchase was for a one-half pint sealed bottle of Seagram's Golden Dry Gin for which Williams paid $2.50. Again, he drank out of the bottle and verified that it was gin. This bottle was turned over to the beverage agents who verified that it was gin by its smell, and it was tagged and placed in petitioner's evidence room in Tallahassee. It, too, was destroyed by petitioner prior to the hearing. (Testimony of Sams, Miller, Williams) On August 23, 1976, criminal complaints were filed by petitioner's representatives against respondent and others, and, on August 24, a search warrant was issued authorizing a search of the premises of the Lake Talquin Fish Market at 517 South Roberts Street, and warrants were issued for the arrest of respondent and the individuals who had allegedly sold the alcoholic beverages to Williams. At approximately 5:15 p.m. on August 28, Agent Miller, together with local police officers, served the search warrant on one Isaac Ford at the Lake Talquin Fish Market. A search of the premises failed to reveal the presence of alcoholic beverages. The agents observed a well-worn path leading approximately 15 or 20 feet to an adjacent condemned frame house, and also an electric wire running from the store to the house. Further, they discovered a light switch in the store which controlled a light in the northeast room of the house. They observed a quantity of liquor and wine bottles on the floor of that room. It was noted that the house was secured by a padlock. Upon Inquiry, Ford stated that he did not have the key to the lock. The agents then asked respondent, who was at her place of business, if she had the key. She answered in the negative. When asked if the whiskey that had been observed in the house belonged to her, she said that it did not, but that she owned the house and wanted the whiskey off the premises. The agents thereupon forced entry into the house and seized 265 bottles of alcoholic beverages found inside. The bottles were sealed and strips indicating that tax had been paid were on the bottles. Sixteen of the bottles were assorted brands of wine; the remainder were liquor. (Testimony of Sams, Miller, Fader, Petitioner's Exhibits 5-13)
Recommendation That a civil penalty in the amount of $500.00 be imposed against Jennie E. Harrell, d/b/a D. Harrell Fish Bait and Tackle, License Number 30-82, pursuant to Section 561.29(1)(h) and (4),F.S., for violation of Section 562.12(1), F.S. DONE and ENTERED this 27th day of January, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Francis Bayley,. Esquire Department of Business Regulation The Johns Building Tallahassee, Florida 32304 Jack A. Harnett, Esquire Post Office Box 706 Quincy, Florida 32351 Charles A. Nuzum, Director Division of Beverage Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32304
The Issue At issue in this case is the question of whether the Respondent discriminated against the Petitioner by discharging the Petitioner because of his race and/or a handicap?
Findings Of Fact The Respondent, General Parcel Service of Florida, Inc., is in the business of shipping, receiving and delivering goods, primarily small packages. The Respondent's headquarters are located in Jacksonville, Florida, and it has a branch operation in Tallahassee, Florida. The Petitioner, Robert L. Johnson, was hired by the Respondent as a driver in late February or early March, 1989. Mr. Johnson worked out of the Tallahassee branch operation. Mr. Johnson was employed by the Respondent until October 24, 1989. Mr. Johnson is a black male. Between February, 1989, and June, 1989, Mr. Johnson's work was satisfactory. In July, 1989, Mr. Johnson injured his back. As a result of this back injury, Mr. Johnson was absent from work until approximately July 10, 1989. Mr. Johnson worked for approximately three weeks after returning to work in July, 1989, but was absent because of his back injury from the end of July, 1989, until approximately September 7, 1989. When Mr. Johnson returned to work in July and in September, 1989, his physician had ordered that he not lift anything which weighed more than 25 pounds. The weight limitation was the only limitation placed by Mr. Johnson's physician on the duties Mr. Johnson could perform. There was no medical restriction placed on Mr. Johnson's duty to report to work or to report on time. Beginning in June, 1989, the Tallahassee terminal manager, and Mr. Johnson's supervisor, was Harry LaNoue. The first day after Mr. Johnson returned to work in July, 1989, Mr. LaNoue had Mr. Johnson answering the telephone and doing paperwork. The second day Mr. LaNoue had Mr. Johnson washing trucks, cleaning around the premises and picking up trucks. On the third day after returning to work, in addition to the duties Mr. Johnson began performing on the second day, Mr. Johnson also began delivering packages. After Mr. Johnson's back injury, Mr. LaNoue personally selected the packages Mr. Johnson delivered. Mr. LaNoue attempted to insure that no package was given to Mr. Johnson which weighed more than 25 pounds. Mr. LaNoue also instructed Mr. Johnson that he was not to attempt to lift any package which weighed more than 25 pounds and that he should bring any packages which weighed more than 25 pounds back to the terminal. Mr. LaNoue also told Mr. Johnson that he was to keep all appointments with his physician and to return any packages which he could not deliver before any such appointment. Although Mr. Johnson testified that Mr. LaNoue tried to pressure him into performing duties which he believed he should not be performing because of his back injury, the weight of the evidence failed to support this testimony. Mr. Johnson gave no examples of such pressure which were contrary to his physician's instructions and he contradicted his testimony by admitting that Mr. LaNoue took the actions reflected in finding of fact 10. After Mr. Johnson injured his back, a couple of incidents involving Mr. Johnson's attendance occurred. Those incidents are described in Finding of Facts 13, 14 and 15. At some time after Mr. Johnson returned to work Mr. Johnson's wife telephoned and told Mr. LaNoue that Mr. Johnson would miss work because his back was sore. Mr. LaNoue asked to speak to Mr. Johnson but was told that Mr. Johnson was not available. Mr. LaNoue asked Ms. Johnson to have Mr. Johnson telephone him within an hour. Mr. Johnson did not call Mr. LaNoue. About an hour later Mr. LaNoue telephoned and spoke with Mr. Johnson. Mr. LaNoue told Mr. Johnson to go to see his physician. Mr. Johnson refused. Mr. LaNoue then told Mr. Johnson to report to work. Mr. Johnson refused. Mr. LaNoue told Mr. Johnson that it was important that he be dependable and report to work. On approximately September 14, 1989, Mr. LaNoue selected five or six packages he intended for Mr. Johnson to deliver. The packages weighed less than 25 pounds. When Mr. Johnson reported to work he told Mr. LaNoue that his back was sore. Mr. LaNoue instructed Mr. Johnson to go to see his physician. Mr. Johnson said no and walked out of the building. Mr. LaNoue telephoned the Respondent's personnel director, Ann Beeman, and reported the incident. Following this telephone call, Ms. Beeman received a telephone call from Mr. Johnson complaining about his back. She instructed Mr. Johnson to go to see his physician. Ms. Beeman informed Mr. LaNoue of her instructions to Mr. Johnson. Mr. Johnson went to see his physician, telephoned Mr. LaNoue and told him that he had been told to return to work. No additional restrictions on Mr. Johnson's work were imposed by the physician. After seeing his physician, Mr. Johnson returned to work. The packages that had been selected for him to deliver had already been delivered. Therefore Mr. Johnson performed other duties. In October, 1989, Mr. Johnson proposed to Mr. LaNoue and Scott Douglas Paul, driver supervisor/assistant terminal manager, that he be allowed to drive a route to Valdosta, Georgia. The route involved picking up packages from a drug company located in Valdosta. The company was an important client of the Respondent. Mr. LaNoue indicated that he would give the route to Mr. Johnson. Mr. LaNoue explained to Mr. Johnson how important the client was to the Respondent and told Mr. Johnson that he must be on time and be dependable. Mr. Johnson was also reminded that it was very important that Mr. Johnson comply with the Respondent's policy that drivers call at least one hour before their assigned departure time if they would not be able to report to work on time. The departure time for the Valdosta run assigned to Mr. Johnson was 5:00 p.m. On October 24, 1989, the second day after the Valdosta run had been assigned to Mr. Johnson, Mr. Johnson called the Respondent's offices between approximately 4:30 p.m. and 4:45 p.m. Mr. Johnson spoke to Mr. Paul. Mr. Johnson told Mr. Paul that he had "family problems" but refused to tell Mr. Paul specifically what the problem was. Mr. LaNoue was in the same room with Mr. Paul during his telephone conversation with Mr. Johnson. Based upon hand signals between Mr. LaNoue and Mr. Paul, Mr. Paul told Mr. Johnson that, if he did not report to work that day, he need not bother coming to work again. Between June, 1989, when Mr. LaNoue became the Tallahassee terminal manager, and November 1, 1989, eight individuals, including Mr. Johnson, were fired by Mr. LaNoue. Four of those individuals were black (including Mr. Johnson) and four were white. The individuals fired between June, 1989, and November 1, 1989, their race and the race of the individuals, if any, who were hired to replace them are as follows: Terminated Employee Race Race of Replacement William Rodriquez White No Replacement Tom Arnold White White Randy Wansley White Black Larry Hargrove Black White Elmer McCoy Black Black John Constant White Black Robert Johnson Black Black Lester Kelly Black White Mr. Johnson is a member of two classes protected under Chapter 760, Florida Statutes: race (black) and handicapped (back injury). Mr. Johnson was replaced by a member of one of the protected classes: race. The weight of the evidence failed to prove whether Mr. Johnson's replacement was a member of the other protected class Mr. Johnson is a member of: handicapped. The Respondent had a nondiscriminatory, rational and business-related basis for discharging Mr. Johnson: Mr. Johnson was not dependable. Mr. Johnson failed to prove that the Respondent's reason for discharging him was a pretext.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED the Florida Commission on Human Relations issue a Final Order finding that there is no cause to conclude that the Respondent discriminated against Robert L. Johnson and dismissing Mr. Johnson's Petition. DONE and ENTERED this 20th day of March, 1991, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of March, 1991. APPENDIX TO RECOMMENDED ORDER The Respondent has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner did not file any proposed findings of fact. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 2. 3 5. 4 7. 5 6-7. 6 9. 7 9-10. 8 7 and 10. 9 12-13. 10 14. Not relevant to this proceeding. 14. The last sentence is hearsay and no finding of fact based on this hearsay has been made. 13 14. 14 14-15. 15 16. 16 16-17. 17 16. 18 18. 19 11. 20 Hereby accepted. 21-22 19-20 and hereby accepted. 23 Hereby accepted. COPIES FURNISHED: Robert L. Johnson 3250 West Tennessee Street Lot 209 Tallahassee, Florida 32304 Charles F. Henley, Jr., Esquire Post Office Box 40593 Jacksonville, Florida 32203-0593 Margaret A. Jones, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 =================================================================
The Issue Whether Respondent, The MG Herring Group, Inc. (MG Herring), was an employer of Petitioners.
Findings Of Fact Xencom provides general maintenance, landscaping, housekeeping, and office cleaning services to retail facilities. In September of 2015, Xencom entered three contracts for services with CREFII Market Street Holdings, LLC (CREFII). The contracts were to provide maintenance, landscaping, and office cleaning services for a mall known as Market Street @ Heathbrook (Market Street) in Ocala, Florida. Michael Ponds, Xencom’s president, executed the contracts on behalf of Xencom. Two individuals executed the contracts on behalf of CREFII. One was Gar Herring, identified as Manager for Herring Ocala, LLC. The other was Bernard E. McAuley, identified as Manager of Tricom Market Street at Heathbrook, LLC. MG Herring was not a party or signatory to the contracts. MG Herring does not own or operate Market Street. A separate entity, The MG Herring Property Group, LLC (Property Group) operated Market Street. The contracts, in terms stated in an exhibit to them, established a fixed price for the year’s work, stated the scope of services, and detailed payment terms. They also identified labor and labor-related costs in detail that included identifying the Xencom employees involved, their compensation, and their weekly number of hours. The contract exhibits also identified operating costs, including equipment amortization, equipment repairs, fuel expenses, vacation costs, health insurance, and storage costs. The contracts ended December 31, 2016. The contracts specify that Xencom is an independent contractor. Each states: “Contractor is an independent contractor and not an employee or agent of the owner. Accordingly, neither Contractor nor any of Contractor’s Representatives shall hold themselves out as, or claim to be acting in the capacity of, an agent or employee of Owner.” The contracts also specify that the property manager may terminate the contract at any time without reason for its convenience. The contracts permit Xencom to engage subcontractors with advance approval of the property manager. They broadly describe the services that Xencom is to provide. Xencom has over 80 such contracts with different facilities. As the contracts contemplate, only Xencom exerted direct control of the Petitioners working at Market Street. Property Group could identify tasks and repairs to be done. Xencom decided who would do them and how. In 2013, Xencom hired Michael Harrison to work as its Operations Manager at Market Street. He was charged with providing services for which Property Group contracted. His immediate supervisor was Xencom’s Regional Manager. In 2016, that was David Snell. Mr. Snell was not located at Market Street. Property Group also did not have a representative on site. Before Xencom hired him, Mr. Harrison worked at Market Street for Property Group. Xencom hired the remaining Petitioners to work at Market Street under Mr. Harrison’s supervision. Each of the Petitioners completed an Application for Employment with Xencom. The application included a statement, initialed by each Petitioner, stating, “Further, I understand and agree that my employment is for no definite period and I may be terminated at any time without previous notice.” All of the Petitioners also received Xencom’s employee handbook. As Xencom’s Operations Manager and supervisor of the other Petitioners, Mr. Harrison was responsible for day-to-day management of Petitioners. He scheduled their work tasks, controlled shifts, established work hours, and assigned tasks. Mr. Harrison also decided when Petitioners took vacations and time off. His supervisor expected him to consult with Property Group to ensure it knew what support would be available and that he knew of any upcoming events or other considerations that should be taken into account in his decisions. As Operations Manager, Mr. Harrison was also responsible for facilitating payroll, procuring supplies, and managing Xencom’s equipment at the site. Xencom provided Petitioners work uniforms that bore Xencom’s name. Xencom required Petitioners to wear the uniforms at work. Xencom provided the supplies and equipment that Petitioners used at work. Only Xencom had authority to hire or fire the employees providing services to fulfill its contracts with the property manager. Only Xencom had authority to modify Petitioners’ conditions of employment. Neither MG Herring, Property Group, nor Xencom held out Petitioners as employees of MG Herring or Property Group. There is no evidence that MG Herring or Property Group employed 15 or more people. Property Group hired Tina Wilson as Market Street’s on- site General Manager on February 1, 2016. Until then there was no Property Group representative at the site. The absence of a Property Group representative on-site left Mr. Harrison with little oversight or accountability under the Xencom contracts for Market Street. His primary Property Group contact was General Manager Norine Bowen, who was not located at the property. Ms. Wilson’s duties included community relations, public relations, marketing, leasing, litigation, tenant coordination, lease management, construction management, and contract management. She managed approximately 40 contracts at Market Street, including Xencom’s three service agreements. Ms. Wilson was responsible for making sure the contracts were properly executed. Managing the Xencom contracts consumed less than 50 percent of Ms. Wilson’s time. During the last weeks of 2016, Mr. Harrison intended to reduce the hours of Kylie Smithers. Ms. Wilson requested that, since Ms. Smithers was to be paid under the contract for full- time work, Ms. Smithers assist her with office work such as filing and making calls. Mr. Harrison agreed and scheduled Ms. Smithers to do the work. This arrangement was limited and temporary. It does not indicate Property Group control over Xencom employees. Ms. Wilson was Xencom’s point of contact with Property Group. She and Mr. Harrison had to interact frequently. Ms. Wilson had limited contact with the other Xencom employees at Market Street. Friction and disagreements arose quickly between Mr. Harrison and Ms. Wilson. They may have been caused by having a property manager representative on-site after Mr. Harrison’s years as either the manager representative himself or as Xencom supervisor without a property manager on-site. They may have been caused by personality differences between the two. They may have been caused by the alleged sexual and crude comments that underlie the claims of discrimination in employment. They may have been caused by a combination of the three factors. On November 21, 2016, Norine Bowen received an email from the address xencomempoyees@gmail.com with the subject of “Open your eyes about Market Street.” It advised that some employees worked at night for an event. It said that Ms. Wilson gave the Xencom employees alcohol to drink while they were still on the clock. The email said that there was a fight among Xencom employees. The email also said that at another event at a restaurant where Xencom employees were drinking, Ms. Wilson gave Ms. Smithers margaritas to drink and that Ms. Smithers was underage. The email claimed that during a tree-lighting event Ms. Wilson started drinking around 3:30 p.m. It also stated that Ms. Wilson offered a Xencom employee a drink. The email went on to say that children from an elementary school and their parents were present and that Ms. Wilson was “three sheets to the wind.” The email concludes stating that Ms. Wilson had been the subject of three employee lawsuits. On December 14, 2016, Ms. Wilson, Ms. Bowen, and Mr. Snell met at Property Group’s office in Market Street for their regular monthly meeting to discuss operations at Market Street. Their discussion covered a number of management issues including a Xencom employee’s failure to show up before 8:00 to clean as arranged, security cameras, tenants who had not paid rent, lease questions, HVAC questions, and rats on the roof. They also discussed the email’s allegations. The participants also discussed a number of dissatisfactions with Mr. Harrison’s performance. Near the end of a discussion about the anonymous email, this exchange occurred:2/ Bowen: Okay, so I know that David [Snell], I think his next step is to conduct his own investigation with his [Xencom] people, and HR is still following up with John Garrett, and you’re meeting with Danny [intended new Xencom manager for Market Street] tonight? David Snell: Yes. Bowen: To finish up paperwork, and, based on his investigation, it will be up to Xencom to figure out what to do with people that are drinking on property, off the clock or on the clock, you know, whatever, what their policy is. * * * Bowen: So, I don’t know what to make of it. I’m just here to do an investigation like I’m supposed to do and David is here to pick up the pieces and meet with his folks one-on- one, and we’ll see where this takes us. This exchange and the remainder of the recording do not support a finding that Property Group controlled Xencom’s actions or attempted to control them. The participants were responsibly discussing a serious complaint they had received, their plan to investigate it, and pre-existing issues with Mr. Harrison. The exchange also makes clear that all agreed the issues involving Xencom employees were for Xencom to address, and the issues involving Property Group employees were for Property Group to address. At the time of the December 14, 2016, meeting, the participants were not aware of any complaints from Mr. Harrison or Mr. Smithers of sexual harassment or discrimination by Ms. Wilson. On December 15, 2016, Gar Herring and Norine Bowen received an email from Mr. Harrison with an attached letter to Xencom’s Human Resources Manager, and others. Affidavits from Petitioners asserting various statements and questions by Ms. Wilson about Mr. Harrison’s and Mr. Smithers’ sex life and men’s genitalia and statements about her sex life and the genitalia of men involved were attached. Xencom President Michael Ponds received a similar email with attachments on the same day. On December 21, 2016, Mr. Ponds received a letter from Herring Ocala, LLC, and Tricom Market Street at Heathbrook, LLC, terminating the service agreements. Their agreements with Xencom were going to expire December 31, 2016. They had been negotiating successor agreements. However, they had not executed any. Xencom terminated Petitioners’ employment on December 21, 2016. Xencom no longer needed Petitioners’ services once MG Herring terminated the contract with Xencom. This was the sole reason it terminated Petitioners.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a final order denying the Petitions of all Petitioners. DONE AND ENTERED this 11th day of May, 2018, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 11th day of May, 2018.
Findings Of Fact The Petitioner is an Hispanic male who was employed as a sales host in the pastry department of the Respondent, Les Chefs de France, a restaurant located in the French Pavilion of Epcot Center at Walt Disney World. On August 12, 1983, the Petitioner and another employee of the Respondent, Mr. Kenneth Day, a non-Hispanic, were involved in a fight in Respondent's cooler, a refrigerated room located on the Respondent's premises. Ms. Brenda Kennedy was working in the Respondent's salad department at the time and she and another employee, Charles Hammel, were present in the cooler and witnessed the fight. Mr. Day had entered the cooler to pick up some supplies and was in the process of taking a tray out of a tram or rack when the Petitioner walked into the cooler and peremptorily told Day to get out of his way. When Day requested that the Petitioner wait until he was finished, the Petitioner shoved the tray back into the tram and pushed Day towards the back of the cooler. The Petitioner then began hitting Day with his fists. Francois Fourreau, the executive chef for the Respondent, heard a noise in the cooler at that point, looked through the window and saw Day holding the Petitioner and the Petitioner throwing punches at Day. Fourreau entered the cooler, separated the two men and directed them to leave the place of employment immediately. The Petitioner reported to the Walt Disney World infirmary and told the nurse to examine him, that he had been assaulted by another employee. A medical record prepared by that nurse indicated that the Petitioner suffered a laceration on his right hand and abrasions on his left arm. (Petitioner's composite exhibit 1 in evidence). Walt Disney World security was notified of the incident. Written statements regarding their versions of the incident were prepared by the Petitioner, Kenneth Day, Brenda Kennedy, and Francois Fourreau. Copies of them were provided to Bernie Juban, the Respondent's general manager. (See Respondent's exhibits 1 and 3 in evidence). On August 13, 1983, John Thall, who was the -assistant manager of food and beverages for the Respondent, met with Juban to discuss the incident. After reviewing the written statements, the two men decided that both Petitioner and Mr. Day should be terminated from employment in accordance with the established, consistent company policy which prohibited fighting on the job. The Petitioner was notified of this decision by a letter signed by Juban dated August 15, 1983. Day received a similar termination letter. The Petitioner acknowledges the existence of the company policy which provides that fighting may result in termination of all parties involved. This policy is contained in the employee policy handbook, which was in existence at the time of the incident and was given to all employees, including the Petitioner, at the time of their hire (Respondent's exhibit 2 in evidence). No employee who instigated or actively participated in an altercation during restaurant hours has been allowed to continue in the employ of the Respondent according to this policy which was shown to be consistently enforced. A previous incident had occurred between Mr. Fourreau and Eduardo Davilla, in which Davilla began punching Fourreau, his supervisor, in a disagreement over a work assignment. This altercation resulted in Davilla's termination, although Fourreau was not disciplined. Petitioner references this as an instance of Hispanics being discriminated against by the Respondent in favor of French Nationals employed by the Respondent. In that instance, however, Fourreau did not instigate nor actively participate in the altercation and thus the policy was not applicable to him. He simply put his arm in front of his face to protect himself. Mr. Thall had witnessed this incident, intervened in it, and stopped it by restraining Mr. Davilla from behind. This incident is further explained in Respondent's exhibit 5 in evidence. Prior to August 12, 1983, Mr. Day had threatened or in some other manner had an altercation with a supervisor, Christine Grassiot. Mr. Day was not disciplined by the Respondent for that incident. After the Respondent received the notice regarding the alleged discrimination in the instant case, Ms. Grassiot prepared a statement indicating that Mr. Day was only trying to irritate her at the time and that the episode was a totally personal matter between the two of them. The Respondent had no prior knowledge of this incident until the Petitioner alleged it in this cause as a basis for trying to show selective enforcement of the above policy. Prior to August 12, 1983, Day also reportedly had a disagreement of some sort with another employee of the Respondent, Kiki Babalagua, apparently involving him bumping into her with a "sheet pan" in the restaurant. Ms. Babalagua informed Brenda Kennedy of the incident and Day explained to Kennedy that he had accidentally bumped into her and apologized for it. In any event, this was not a fight or altercation as contemplated by the above-mentioned policy. Both Kennedy and Fourreau established that Ms. Babalagua was a difficult employee in terms of her personal relations with others and was "hard to get along with." She was later transferred to another location at her own request because she wanted to broaden her knowledge of the restaurant business and learn to work with pastries. Prior to August 12, 1983, Jean Luc Nichols, an employee of the Respondent working in a test kitchen at Disney Central Foods, was transferred by the Respondent at the personal request of a Walt Disney World manager, Mr. John Cardone, apparently to avoid a personality conflict. There is no evidence to show that Ms. Nichols was transferred because of a fight or other altercation. Finally, Petitioner acknowledges that the phrase "les imigres" translates in English as "the immigrants" and is not a standard cultural slur in the French language. Additionally, the testimony of Mr. Fourreau refuted Petitioner's allegation that this phrase had assumed a particular derogatory or discriminatory meaning among employees and staff at the restaurant.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the arguments of the parties, it is, therefore RECOMMENDED that the petition for relief filed by the Petitioner, Leonardo A. Zapata, be DISMISSED. DONE and ORDERED, this 25th day of July, 1986 in Tallahassee, Florida. 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 25th day of July, 1986. APPENDIX Petitioner's Proposed Findings of Fact Paragraph I : accepted, but not material to resolution of the material issues presented. : rejected as irrelevant. : rejected as contrary to the preponderant evidence. (d): rejected as irrelevant. : accepted, but irrelevant. : rejected as contrary to the preponderant evidence. (a): rejected as constituting argument and not supported by the evidence. (b): rejected as constituting argument and discussion of evidence and testimony. (a): rejected as immaterial.- (b): accepted but immaterial in the full context of the witness's testimony. (c): (same as (b). : rejected as not supported by record evidence. (a): accepted, but not supportive of Petitioner's position. : rejected as contrary to the greater weight of the evidence. : (same as (b)) (a): rejected as not supported by the greater weight of the evidence. : accepted, but irrelevant to resolution of the material issues presented. : accepted, but immaterial. (d): accepted, but immaterial. (e): accepted but not dispositive in itself. (f): rejected as to its purported import; merely argument. : rejected as not supported by preponderant testimony and evidence. : accepted, but immaterial to resolution of the issues at bar. : (same as (g) above.) Respondent's Proposed Findings of Fact Paragraph 1. - accepted - accepted - accepted - accepted - accepted - accepted - accepted - accepted - accepted - accepted Copies furnished: Leonardo A. Zapata Post Office Box 1934 Kissimmee, Florida 32742 Susan K. McKenna, Esquire Post Office Box 60 Orlando, Florida 32802 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303
The Issue At issue herein is whether or not the Petitioner, Kelly Boat Service, Inc.'s and Cape Kennedy Charter Boats, et al's activities fall within the admissions tax liability imposed by Section 212.04, F.S. (1973). Based upon the pleadings filed herein, the documentary evidence introduced during the course of the hearing, the other evidence of record including the arguments of counsel, the following relevant facts are found.
Findings Of Fact In the instant matter, the Department of Revenue issued two sales tax assessments. The first such assessment is against Cape Kennedy Charter Boats and covers the audit period of March 1, 1973, through February 29, 1976. The Department also assessed Kelly Boat Service, Inc., in a series of three separate assessments covering the audit periods August 1, 1970, through January 31, 1976. Based on such assessments, a tax liability resulted in the amount of $25,072.37. Of this amount, $10,000 was paid by the tax payer on July 21, 1976 (Respondent's Composite Exhibit No. 1). The remaining tax liability plus interest which has accrued from July 21, 1976, is outstanding and continues to accrue. During the course of the hearing, the parties agreed that the specific liabilities as set forth in the assessment were not at issue. Rather, Petitioner solely challenged the legal authority of the Department of Revenue to impose the assessments in question. The Petitioners are owners and operators of a fleet of deep sea fishing boats in and around Destin, Florida, which, for a fee, carry individual fishermen to certain fishing banks which lie beyond the three-league limit in the Gulf of Mexico. While there, the Petitioners sell food and drinks to the fishermen and rent them fishing equipment. The fishing is done at the snapper banks in the Gulf of Mexico or in the vicinity of those banks. The fishing equipment and tackle used on these trips are mainly used beyond the three-league limit in the waters of the Gulf of Mexico; and most, if not all, of the food and drinks sold at the galley of the refreshment stand on the boat was outside the three-league limit of the State of Florida. In an earlier summary final judgment, the Circuit Court of Appeal declared, as authorized by Chapter 86, Florida Statutes, 1973, the liability of Kelly Boat Services, Inc., for payment of the admissions tax by Section 212.04, F.S., 1973, from which the Department of Revenue filed an appeal. In that decision, the Court held that Kelly, whose boats take on passengers at Destin for fishing in the Gulf of Mexico beyond the territorial limits of Florida, is taxable at the statutory rate on the admission fare charged at the dock, but that the State is foreclosed from assessing Kelly for taxes that should have been paid between August, 1970, and the first day of August, 1973, the period in which the Department demanded the production of Kelly's records for audit. Section 212.14(6), F.S., 1973. Kelly cross-appealed and urged that its activities were not subject to the tax, citing Straughn v. Kelly Boat Service, Inc., 210 So.2d 266 (Fla.App. 1st 1968). In its decision, the First District Court of Appeal in Dept. of Revenue v. Kelly B Boat Service, Inc., 324 So.2d 351 (Fla. 1976), indicated that the trial court was correct in its reading of its decision in Dept. of Revenue v. Pelican Ship Corp., 257 So.2d 56 (Fla.App 1st 1972), Cert. Denied, 262 So.2d 682 (Fla. 1972), Cert. Dismissed, 287 So.2d 93 (Fla. 1974), and in hold that Kelly's commercial activities, as evidenced by the record, render it liable to assessment for the admissions tax. The Court noted that the trial court was incorrect, however, in foreclosing the Department of Revenue from making the assessment for the full three-year period authorized by Subsection 212.14(6), F.S., 1973. The decision goes on to read that the State is not foreclosed by reason of the Court's 1968 decision in Straughn v. Kelly Boat Service, Inc., or otherwise to assert that on the facts evidenced by record, Kelly should satisfy its full tax liability incurred three years prior to August 1, 1973. North American Company v. Green, 120 So.2d 603 (Fla. 1960); Jackson Grain Company v. Lee, 139 Fla. 93, 190 So. 464 (1939). Based on the above decision of the First District Court of Appeal, the Department's assessment, which the parties admit is factually correct, is valid both as to the August 1, 1970, through July 31, 1973, and the August 1, 1973, through January 31, 1976, audit periods. Since this matter has previously been adjudicated, the same is res judicata as to the legal validity of the Department's assessment. Further, since the assessment relative to Cape Kennedy Charter Boats is based upon the same factual circumstances and legal authority as the one against Kelly Boat Service, Inc., which was upheld as aforementioned in the case of the Dept. of Revenue v. Kelly Boat Service, Inc., supra, there is no factual challenge to the validity of the Department's assessment and there being no assertion by the Petitioner that any rules of law other than those enunciated by the District Court of Appeal in Dept. of Revenue v. Kelly Boat Service, Inc., supra, are applicable, such assessment must likewise be upheld. I shall so recommend. 1/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, hereby, RECOMMENDED: That the Department of Revenue's assessment in the instant matter against the Petitioners be UPHELD. Additionally, in view of the Petitioners' letter of April 11, 1979, Petitioners' motion to treat this matter as a class action is hereby DISMISSED. RECOMMENDED this 31st day of May, 1979, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
Conclusions This matter came before the Department for entry of a Final Order upon submission of a Recommended Order of Dismissal by Lawrence P. Stevenson, Administrative Law Judge of the Division of Administrative Hearings. The Department hereby adopts the Recommended Order of Dismissal as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED and a license may be issued to Wild Hogs Scooters and Motorsports, LLC to sell motorcycles manufactured by Kaitong Motorcycle Manufacture Co. Ltd. (KAIT) at 3311 West Lake Mary Boulevard, Lake Mary (Seminole County), Florida 32746, upon compliance with all applicable requirements of Section 320.27, Florida Statutes, and all applicable Department rules. Filed September 30, 2009 3:29 PM Division of Administrative Hearings. DONE AND ORDERED this of September, 2009, in Tallahassee, Leon County, Florida. Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motor Vehicles ""-.r.• u this 9Pfh day of September, 2009. Naiini .Dulllr71cenie Admlnlltrator NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. CAF/vlg Copies furnished: Leo Su Galaxy Powersports, LLC d/b/a JCL International, LLC 2667 Northhaven Road Dallas, Texas 75229 2 Jason Rupp Wild Hogs Scooters and Motorsports, LLC 8181 Via Bonita Street Sanford, Florida 32771 David Cattafi David Cattafi d/b/a Direct Capital Motors 4107 South Orlando Drive, Suite C Sanford, Florida 32773 Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway, Room A432 Tallahassee, Florida 32399 Lawrence P. Stevenson Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator Florida Administrative Law Reports Post Office Box 385 Gainesville, Florida 32602 3
