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, 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.
The Issue Whether Respondent, C and C Enterprises, Inc. (“C and C Enterprises”), discriminated against Petitioner, Leslie D. Richardson, in violation of the Florida Human Rights Act and, if so, what relief should be granted.
Findings Of Fact Mrs. Richardson is a Caucasian female who at all times relevant to this proceeding was an employee of C and C Enterprises, Inc., and worked at the Restaurant. Mrs. Richardson primarily served as a bartender, with most of her shifts placing her at the bar located outside the Restaurant on a deck or patio adjacent to the Restaurant. Sandy Bottoms is a family oriented restaurant located in Fernandina Beach, Florida. It has normal restaurant seating, plus two bars. One bar is located inside the restaurant; the other is located outside. The outside bar has fairly tight quarters, allowing only one person comfortably behind the bar at a time. The outside bar is frequented by customers more than the inside bar, so working outside is more lucrative for the bartenders. Mrs. Richardson began working at Sandy Bottoms in January 2013. She was hired as a bartender and, by most accounts, was very proficient at her job. She quickly chose the outside bar as her preferred spot when working and had many regular customers. Mrs. Richardson was even featured in a local newspaper article in January 2015, wherein she was touted as a particularly well-liked bartender. When she began working at Sandy Bottoms, Mrs. Richardson formed good relationships with its owner, Claude Hartley, and her fellow workers. She also had a good relationship with the manager, Russell McNair, and with the Restaurant’s bookkeeper, Natalie Thelemann. Mrs. Thelemann is Claude Hartley’s daughter. According to Mrs. Richardson’s testimony at final hearing, she began to have “issues” with Mr. Hartley beginning about a year into her tenure at the Restaurant, i.e., around “early to mid 2014.” Conversely, in her Employment Charge of Discrimination, the first alleged incident she reported occurred in “late winter-early spring 2015.” Mrs. Richardson generally claims Mr. Hartley sexually harassed her and even perpetuated potentially criminal or tortious touching. In her complaints to FCHR, Mrs. Richardson reported incidents which allegedly occurred between August 2015 and November 2015. She maintains that Mr. Hartley continued to act inappropriately towards her until her employment ended on November 2, 2015, and even once after she left Sandy Bottoms. Mr. Hartley denies there was any sexual harassment or inappropriate touching at any time during Mrs. Richardson’s employment at Sandy Bottoms. Neither Mr. McNair nor Mrs. Thelemann saw any such things occurring while Mrs. Richardson was working at Sandy Bottoms. Mrs. Richardson’s employment ended abruptly on November 1 or 2, 2015. On Sunday, November 1, 2015, she had shown up at work for her regular shift. She clocked in a couple of minutes late that day, but she blames the Restaurant’s timeclock for that. The time on that clock (referred to by staff as “Aloha time”), was always, according to Mrs. Richardson, five or so minutes ahead of the “actual” time. Mrs. Richardson was late for her shifts approximately 67 percent of the time, but she says she would sometimes work a bit around the Restaurant before clocking in, even if she got there on time.1/ In light of credible testimony from the manager and bookkeeper that all personnel clocked in immediately upon arrival, Mrs. Richardson’s testimony is not persuasive. The only other non-manager employee who testified, Danielle Guidry, did not corroborate Mrs. Richardson’s testimony concerning how staff clocked in for work. After clocking in late on November 1, 2015, Mrs. Richardson took a telephone call from her mother, who was ill at the time. She walked around outside during the telephone call. When she came back to the outside bar area to begin her shift, she was told that she would be working the inside bar on this day. Apparently another bartender, who had prepared the outside bar for opening in Mrs. Richards’s absence, asked to staff the bar even though she had been scheduled to work the inside bar. The outside bar is generally busier and generates more tips than the inside bar. Mr. McNair granted the other bartender’s request because Mrs. Richardson was late for her shift. According to the Restaurant’s Server Operational Manual, a server/bartender should arrive at least 10 minutes prior to their shift. Otherwise, the shift would “go up for auction” to another employee. Upon hearing the news that she had to work the inside bar, Mrs. Richardson became irate. She stormed into the restaurant and angrily confronted Mr. McNair, but he stood by his decision. When Mr. McNair refused to budge, Mrs. Richardson cursed at him and exited the Restaurant loudly, all the while with customers sitting within hearing range. Mrs. Richardson went home, where she received a call from Mr. Hartley within half an hour or so. Mr. Hartley asked her to come back to the Restaurant and do her shift, but Mrs. Richardson refused. Mr. Hartley discussed the situation with his “management team” which included his wife, Rita Hartley, Mr. McNair, and Phil Thelemann, another manager (who is also Mr. Hartley’s son-in-law). The consensus was that Mrs. Richardson had abandoned her job by walking out without notice or cause. Mr. Hartley then called Mrs. Richardson again, this time leaving her a message wherein he told her not to come in the next day as scheduled. It was the decision of management that Mrs. Richardson’s employment with Sandy Bottoms was over. Mr. Hartley left the following message on Mrs. Richardson’s phone: “Leslie, this is Claude. There’s no sense in coming in tomorrow. My family is ‘bout to kill me. And, uh… I’m sorry. Call me and talk to me. I’ll help you out if I can. Goodbye.” Mrs. Richardson considers that message evidence that Mr. Hartley’s family was angry with him because of his infatuation with her. No competent or persuasive evidence was presented to support her theory. Mr. Hartley said the message reflected the fact that his family was upset with him for trying to preserve Mrs. Richardson’s job at Sandy Bottoms despite the team consensus that she had abandoned her position. His explanation seems more credible. Mr. Hartley and other Restaurant employees soon began hearing rumors that Mrs. Richardson was planning to file a lawsuit against Sandy Bottoms alleging wrongful termination. When she came in to pick up her final paycheck a week or so after being let go, Mr. Hartley asked Mrs. Richardson if she was planning to sue him or the Restaurant. Mrs. Richardson was friendly (or at least “not unpleasant”) and indicated she would not “do something like that.” It does not appear that anyone at the Restaurant knew Mrs. Richardson had actually hired a lawyer until she had filed her complaint with FCHR. Mrs. Richardson struggled to find good employment after leaving Sandy Bottoms. She worked for two other restaurants tending bars, but neither job was as lucrative as her bartender position at Sandy Bottoms. She believed some restaurants refused to hire her because she had been fired by Sandy Bottoms, but could identify only one potential employer who brought up her tenure at Sandy Bottoms. That person did not testify at final hearing to confirm or deny Mrs. Richardson’s contention. Mrs. Richardson is the sole breadwinner for her family. After losing her job at Sandy Bottoms she was evicted from her home and had to move to Yulee, a less attractive community off the island of Fernandina Beach. She is now working as a housekeeper. Her husband, who was a frequent customer at Sandy Bottoms while she was working there, is disabled and cannot work. Ultimately, Mrs. Richardson did hire legal counsel and file a complaint against Sandy Bottoms. In her “Employment Charge of Discrimination,” Mrs. Richardson alleged a number of instances wherein Mr. Hartley had acted improperly towards her. The majority of the allegations could not be substantiated or corroborated by any other witness. Those “he said - she said” allegations will only be referred to in passing and as necessary to elaborate on the two somewhat verifiable allegations. The two alleged incidents for which other eyewitness testimony exists are generally described as follows: On or about October 4, 2015, Mrs. Richardson was working behind the outside bar. Mr. Hartley, who kept a bottle of port wine in a cooler behind the bar for his personal consumption, came behind the bar. Mrs. Richardson felt a bottle being shoved between her legs, scaring her and making her very uncomfortable. Mr. Hartley supposedly laughed and asked a customer “wasn’t that funny?” or “isn’t that fun?” In the late winter or early spring of 2015, Mr. Hartley approached Mrs. Richardson as she was working at the bar and – staring at her breasts – said, “It’s not that cold in here.” A customer sitting at the bar overheard the statement. As to the first incident, Mrs. Richardson’s description in her diary of allegations said Mr. Hartley “shoved the neck of the bottle between my legs from behind.” Despite the egregiousness of the allegation, whether it occurred exactly as alleged is unclear from the evidence. Her testimony about the event at final hearing was wanting. Mrs. Richardson testified as follows, first in response to questions from her counsel, then from Respondent’s counsel: Q: Did Mr. Hartley shove a bottle of port into your genital area? A: Yes, the very top of my legs where my shorts were, yes. Q: Okay. A: My shorts were wet from it, and my shorts were not short shorts, but they were short enough to be to the upper part of my legs, not my calves. Transcript, page 59. Q: You stated on direct that you were –- you felt degraded [by the bottle incident]. A: Yes. Q: Can you explain what you mean by degraded? A: I felt like an idiot. I mean that I couldn’t believe that he had the nerve to come behind the bar and stick a bottle of port anywhere on me. It wouldn’t have been funny, let alone where it was. Transcript, pp. 100-101. Though it was suggested a number of times, Mrs. Richardson’s testimony never directly alleged that Mr. Hartley put the bottle against her vagina or anus, only that he poked her with the bottle in some fashion. In fact, Mrs. Richardson never specified exactly where the bottle had touched her body. Mr. Hartley testified he went behind the bar on the day of the incident to retrieve his bottle of port. When he reached down to pick up the bottle cap which he had dropped, he intentionally touched the cold bottle to Mrs. Richardson’s leg. It was meant to be playful, a joke, consistent with his normal behavior towards her – and like her playfulness with him. He touched the cold bottle to her bare leg, causing her to jump. There were many other people in the restaurant at the time. Mr. Hartley’s testimony seemed credible, even though there was some testimony from others that he generally asked the bartender to pour his port wine rather than getting it himself. He maintains that on the day in question the bar was quite busy and he did not want to distract Mrs. Richardson from her duties. The perceptions of the two other people in attendance must also be considered. First, a long-time friend of Mrs. Richardson, Deborah Botke, was sitting at the bar. She saw Mr. Hartley’s arm move toward Mrs. Richardson’s legs. From her vantage point, she could not actually see below Mrs. Richardson’s waist, but from the angle of Mr. Hartley’s arm-–and Mrs. Richardson’s reaction–-Ms. Botke presumed that the man had poked the bottle “in the direction of her private regions.” She said, “I saw him take it and shove it like this. I don’t know where it landed.” She did note that Mr. Hartley was approximately waist-high to Mrs. Richardson, i.e., he did not bend over so as as to touch her ankle or lower leg. Ms. Botke was a credible witness. She holds a very significant security clearance at her job managing all the navigational equipment for the U.S. Navy’s Ohio-class ballistic submarines. It is unlikely she would perjure herself in a proceeding such as this and put her clearance at risk. It is clear she saw something and was convinced that Mr. Hartley acted improperly, even if she could not actually see what he did. To the detriment of her believability, she is a close friend of Mrs. Richardson and obviously wants to support what her friend alleges. And, she has had some past trouble with Sandy Bottoms. She was once removed from the Restaurant by the police when she became extremely drunk after breaking up with a boyfriend. All in all, Ms. Botke’s belief that Mr. Hartley utilized the bottle in a sexual manner is not proven by a preponderance of the evidence. Ms. Botke also provided hearsay testimony concerning other allegations Mrs. Richardson had made concerning Mr. Hartley, but those allegations were not corroborated by other competent evidence. For example, she suggested that security cameras at the Restaurant were installed for the primary purpose of allowing Mr. Hartley to remotely look at Mrs. Richardson’s breasts. In fact, Ms. Botke says that Mrs. Richardson came home crying one night when she (Richardson) discovered that fact about the cameras. No persuasive evidence was presented, however, to establish the legitimacy of that allegation. Also, Ms. Botke said that Mr. Hartley appeared to “make contact with” Mrs. Richardson unnecessarily when he went behind the bar one time. Mrs. Richardson acknowledged the area behind the bar was very small and it was difficult for two people to be there at one time. From the totality of the evidence, it is certain that Mr. Hartley touched a cold bottle of port wine to Mrs. Richardson’s body. It cannot be confirmed where on her body the bottle touched Mrs. Richardson, i.e., whether it was her backside, her crotch, or on one of her legs. Nor can it be reasonably ascertained whether Mr. Hartley’s purpose was playful or sexually motivated. Regarding the comments Mrs. Richardson made about the security cameras, again there was no corroboration. Mr. Hartley and Mr. McNair say the cameras were installed for security purposes only. One reason the cameras were required was to make sure staff were not drinking on the job and/or drinking without paying for the drinks. In fact, in September 2015, the cameras recorded Mrs. Richardson taking alcohol “shots” at the bar during one of her shifts. She was reprimanded and written up for the infraction. As to the second incident, i.e., that Mr. Hartley allegedly made inappropriate comments while looking at Mrs. Richardson’s breasts, the evidence is even more scant. At final hearing, Mrs. Richardson’s attorney asked if Mr. Hartley had made a specific reference to her nipples in late winter- early spring 2015. She replied, “Yes sir.” In her written list of allegations given to FCHR, she said Mr. Hartley said, “It’s not that cold in here” in reference to her nipples while looking at her breasts. Mr. Hartley testified only that he did not make any such comment concerning Mrs. Richardson’s breasts or nipples. There was another person, Robert Pelletier, sitting at the bar at the time of the alleged incident. Mr. Pelletier, who is a managing broker for a real estate firm, is also a licensed attorney. At the time of the alleged incident, he had visited the bar on half a dozen occasions. He was sitting at the inside bar when an “older man” went behind the bar and said something to Mrs. Richardson about her nipples being hard. He found the comment to be very offensive. He was told by Mrs. Richardson that the man was the owner of Sandy Bottoms. At final hearing Mr. Pelletier could not say whether Mr. Hartley, who was sitting some six feet away from him, was the man he saw speaking to Mrs. Richardson that day in the bar. In an affidavit he prepared in May 2016, Mr. Pelletier did not mention that the man had commented specifically about Mrs. Richardson’s nipples. Nor did he mention that the man had gone behind the bar to talk to Mrs. Richardson. The only consistency between Mr. Pelletier’s testimony and his affidavit was that he heard something inappropriate said to Mrs. Richardson as he sat at the bar. By his own admission, Mr. Pelletier’s memory of the event was cloudy. No one else witnessed this encounter. It happened very quickly, according to Mr. Pelletier, and was not that memorable an event. While it is certainly possible that the event happened exactly as Mrs. Richardson remembers it, there is not a preponderance of evidence to that effect. Besides the two incidents discussed above, Mrs. Richardson also alleges a history of unwanted advances and comments from Mr. Hartley. She describes incidents where she felt like Mr. Hartley’s interactions with her or comments to her were sexual in nature. Both Ms. Botke and Ms. Guidry reported some other general comments allegedly made by Mr. Hartley that Mrs. Richardson had reported to them, but their testimony in that regard was not particularly persuasive. Mr. Hartley describes the same incidents as completely non-sexual in content or intent. Ms. Guidry had worked at, and been fired from, Sandy Bottoms several times. She once heard Mr. Hartley tell Mrs. Richardson that he wanted to buy her a red dress; that statement seemed to make Mrs. Richardson uncomfortable. Ms. Guidry thought Mr. Hartley hung around Mrs. Richardson too much. However, she never saw anything untoward happen between the two. Had she seen something improper happen, she would have reported it to someone. She never reported anything to anyone. Ms. Botke said that Mrs. Richardson would complain to her about Mr. Hartley as the two women sat on their decks enjoying a drink after work. None of those complaints, however, were substantiated by other evidence. Watching the demeanor and apparent sincerity of the two (Richardson and Hartley) at final hearing, it is quite possible each is telling the truth as he or she believes it to exist. That is, Mrs. Richardson sincerely believes that some of Mr. Hartley’s actions and words were provocative and meant to be sexual in nature. Mr. Hartley honestly believes that he was joking with Mrs. Richardson in a friendly and joking fashion, never crossing the line into inappropriate behavior. Mrs. Thelemann believed she and Mrs. Richardson got along quite well. They both had children and would talk about “kid things” with each other. Mrs. Thelemann saw her father (Hartley) and Mrs. Richardson talking quite frequently but never saw anything improper or questionable. Mrs. Richardson told Mrs. Thelemann once that Mr. Hartley was “an old flirt,” but not in a complaining way. Once, when Mrs. Richardson was distraught about being “written up” for drinking liquor while on duty, Mrs. Thelemann consoled Mrs. Richardson and let her know all was well. Mrs. Thelemann said Mrs. Richardson was, after all, a good employee. Another time, when Mrs. Richardson had to go visit her ailing mother, Mrs. Thelemann and her parents offered Mrs. Richardson money and the use of one of their cars. Mrs. Thelemann, an accountant, offered to help Mrs. Richardson with some IRS tax issues. And Mr. Hartley offered to loan Mrs. Richardson some money to buy Capri pants to replace short pants which had been deemed inappropriate. In short, there appears to have been a friendly relationship between Mrs. Richardson and the Hartley family. Speaking of inappropriate shorts, one of Mrs. Richardson’s unverified allegations had to do with Mr. Hartley allegedly telling her to turn around and bend over so he could inspect her shorts. Someone had complained that she and another waitress, Brittany, were wearing shorts that were too revealing. She says Mr. Hartley directed her to bend over so he could tell if the shorts were okay. At some point, Mrs. Thelemann told Mrs. Richardson that the shorts she was wearing on a particular day were too short. Later, Mrs. Richardson came to Mrs. Thelemann and said Mr. Hartley had inspected the shorts and overruled her, saying the shorts were okay. Mrs. Thelemann was angry that her father would undercut her authority, but there was no mention in the conversation that Mr. Hartley had acted inappropriately towards Mrs. Richardson. Mr. Hartley remembers visually inspecting Mrs. Richardson’s shorts, but not in a suggestive or inappropriate way. Again, there is no independent corroboration of either person’s testimony. Mrs. Richardson had a fairly clean record during her time at Sandy Bottoms. Besides the aforementioned write-up for drinking on the job, she was written up once for failing to timely enter drinks into the Point of Sale (“POS”) system. It is imperative that wait staff and bartenders timely enter drink orders into POS so that they do not forget to do so (and, apparently, to prevent them from giving away drinks). Mrs. Richardson had not timely entered some orders into the POS system and was written up for it. She signed the disciplinary action form, but wrote, “I did not do anything wrong on Sunday.” She maintains she entered the drinks as soon as practicable based on how busy she was with customers at the time. Mrs. Thelemann said that drinks actually were supposed to be entered into POS prior to being poured. Mrs. Richardson was also late for her shifts fairly frequently, roughly two thirds of the time. Otherwise, she was a model employee. Despite the numerous allegations in her written complaint, Mrs. Richardson noted only one time that she complained to management about specific harassment. She purportedly told Mr. McNair about the incident with the port wine bottle. She also said she complained to Mr. McNair at least ten other times about Mr. Hartley. Mr. McNair, however, does not remember her coming to him with that complaint (or any other, for that matter). Mrs. Richardson did express hesitation about going to management, as Mr. Hartley was the owner and ultimate authority at the Restaurant. Mrs. Richardson contends Mr. McNair is simply afraid of testifying against Mr. Hartley, but inasmuch as Mr. Hartley no longer owns the Restaurant, that contention loses credence. Besides, Mr. McNair appeared very credible while testifying at final hearing. Mrs. Richardson suggested that Mr. McNair lied on his affidavit, which had been sworn to while he was still an employee of Sandy Bottoms. Now, she reasons, he must maintain his lie in order to avoid perjuring himself. While there is logic to the reasoning, there is no evidence to support the contention. At best, the evidence at final hearing supports a finding that: 1) Mr. Hartley made an inappropriate comment about Mrs. Richardson’s breasts; and 2) Mr. Hartley touched Mrs. Richardson’s body with a wine bottle. Neither of these incidents rises to the level of sexual harassment. Mrs. Richardson also claimed retaliation by her employer, specifically that she was fired from her job because of the complaints she made against Mr. Hartley. There is no persuasive evidence in the record to support that claim. In fact, it is clear that Mrs. Richardson voluntarily walked away from her job–-at least for her November 1, 2015, shift--and was thus deemed to have abandoned her position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations Issue a Final Order finding that Respondent, C and C Enterprises, Inc., did not discriminate against Petitioner, Leslie Richardson. DONE AND ENTERED this 10th day of May, 2017, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 2017.
The Issue Whether or not on or about May 25, 1977, the Respondent licensed under the beverage laws and/its agent, servant, or employee, employed by salary or on a contractual basis to entertain, perform or work upon the licensed premises, to wit: Lisa Palov Clark, aka Di Di Bang Bang, did beg or solicit a customer or patron, to wit; Deputy Ernest Weaver, on the Respondent's licensed premises, to purchase a beverage, alcoholic or otherwise, for Respondent, its agent, servant, or employee or entertainer, contrary to Section 562.131(1) F.S. There was noticed for hearing a second count to the Notice to Show Cause which was not heard due to the motion to withdraw the count, made by the Petitioner.
Findings Of Fact The Respondent, Golden Dolphin Number One, doing business as Golden Dolphin, is the holder of license number 15-229, Series 2-COP, held with the Petitioner, State of Florida, Division of Alcoholic Beverages and Tobacco. This license is for operation at a location at 6107 North Atlantic Avenue, CAPS Canaveral, Florida. The operative period of the license is from October 1, 1976 through September 30, 1977. A copy of the license may be found as part of Petitioner's composite exhibit #1 admitted into evidence. On May 25, 1977, Lisa Palov Clark, also known as Di Di Bang Bang, was actively employed on the licensed premises, by the licensee. Ms. Clark's employment was as an entertainer, specifically a dancer. On the subject evening of May 25, 1977, Officer Ernest Weaver of the Brevard County, Florida Sheriff's Office, and Beverage Officer Eugene P. Fogle, entered the licensed premises around 9:00 p.m. and took seats in separate locations. They observed the floor shows being presented on the licensed premises, which shows were nude dancers and striptease. One of the dancers was Lisa Palov Clark. After completing her dance, Ms. Clark went to the dressing- room area of the licensed premises and then returned to the area occupied by the patrons. When she returned, she approached the table at which Officer Weaver was seated. She approached him without being requested by Officer Weaver either orally or by gesture. When she arrived at the table, she made the comment to Officer Weaver either to the effect "Can I have a drink?" or "Won't you let me order something?". Officer Weaver in his testimony at the hearing was uncertain of the exact statement made by Ms. Clark. Subsequent to the aforementioned comment, in whatever form it took, Ms. Clark stated that she felt hot and that her neck was wet. These comments were directed to Officer Weaver. During the course of this conversation, a waitress came and stood by the table at which Officer Weaver was seated. The waitress did not participate in the conversation between Ms. Clark and Officer Weaver. Officer Weaver, in response to Ms. Clark's comments, asked what she would like to drink, and Ms. Clark indicated that she would like champagne, one drink of which costs $2.75 and a pony bottle cost $6.00. The waitress then stated, "What will it be?" and Officer Weaver said, "Bring one of the $6.00 bottles." The waitress brought a bottle and at least one glass. The bottle was placed on the floor between Officer Weaver and Ms. Clark. The glass was positioned in the place at which Ms. Clark was seated and a drink was poured for her. Officer Weaver paid $6.00 plus a tip to the waitress. (There was some discussion about a possible second bottle which was purchased, but the recollection of witnesses was not sufficient to establish the existence of such a second bottle of champagne.) There was no testimony about the knowledge of the activities between Officer Weaver, Ms. Clark, and the waitress, from the point of view of any of the officers, directors, or owners of the licensed premises. Moreover, it was not established that any manager in charge of the licensed premises observed the interchange between Officer Weaver, Ms. Clark and the waitress. The facts as established, constitute a sufficient basis to show that the employee of the licensee, to wit, Lisa Palov Clark, employed on the licensed premises to entertain, perform or work, did beg or solicit a patron or customer on the licensed premises to purchase a beverage in violation of Section 562.131, F.S. However, even though the employee violated this law, the licensee was not culpable based upon any willful intent, negligence or lack of due diligence. See Trader Jon Inc. vs. State Beverage Department, 119 So.2d 735 (1st DCA 1960). Additionally, the testimony indicated that the licensee in the person of Milton Seidman had instructed the employee Ms. Clark not to solicit drinks. Finally, to penalize the licensee under s. 561.29, F.S., there must be a showing of more than an isolated incident as is the case here. See Taylor v. State Beverage Department, 194 So.2d 321 (2d DCA, 1967).
Recommendation It is recommended that the licensee, Golden Dolphin Number One, d/b/a Golden Dolphin, operating under licensee number 15-229, to do business at 6107 North Atlantic Avenue, CAPS Canaveral, Florida, be relieved of the necessity to make further answer to the Notice to Show Cause which is the subject of this hearing. DONE and ENTERED this 6th day of October, 1977, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Lawrence D. Winson, Esquire Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32304 Lawrence M. Litus, Esquire 231 East New Haven Melbourne, Florida 32901
The Issue Whether Respondent’s statement contained in June 4, 2004, correspondence to the controller of the Daytona Beach Kennel Club, Inc., constitutes a rule of the agency which has not been adopted by the rule making procedures provided in Section 120.54, Florida Statutes. Statutory references are to Florida Statutes, 2004, absent contrary indication.
Findings Of Fact Petitioners are St. Petersburg Kennel Club, Inc; West Flagler Associates, Ltd. (Flagler Greyhound Track); Washington County Kennel Club, Inc. (Ebro Greyhound Track); Daytona Beach Kennel Club, Inc. (Daytona Beach Kennel Club); and Southwest Florida Enterprises, Inc. (Bonita-Ft. Myers Greyhound Track). Respondent is the State of Florida, Department of Business and Professional Regulation, Division of Pari-mutuel Wagering, an agency created by Section 20.165(2)(f), Florida Statutes. Pursuant to Chapter 550, Florida Statutes, Respondent is vested with general regulatory authority over Petitioners and the operation of cardrooms at licensed and permitted pari-mutuel facilities. Each Petitioner is the holder of a pari-mutuel waging permit and a license issued by Respondent pursuant to provisions of Chapter 550, Florida Statutes, for the conduct of pari-mutuel wagering on greyhound races. Each Petitioner also holds a licensed issued by Respondent pursuant to Section 849.086, Florida Statutes, for conduct of a cardroom at its pari-mutuel facility. Each Petitioner is authorized to conduct a “meet” consisting of live racing. Each authorized meet includes evening performances generally consisting of 14 races. One or more of those races can take place after midnight but before 1:30 a.m. on the next calendar day. Each Petitioner is authorized to accept pari-mutuel wagers on each such race. Petitioner Daytona Kennel Club, by correspondence of May 27, 2004, provided a revised cardroom calendar to Respondent for approval. Respondent, in reply correspondence of June 4, 2004, pointed out that proposed day-long cardroom operation on Sunday as a result of Saturday live racing events that extended into Sunday morning, was not permissible under provisions of Section 849.086(7)(b), Florida Statutes. Respondent’s correspondence, in pertinent part, reads as follows: [Y]ou contend that if at least one Saturday race will occur after 12:00 midnight, then Sunday cardroom operation would be permitted, without any additional pari-mutuel events being held that day, under Section 849.086(7)(b), Florida Statutes. The foregoing statutory section states, “[a] cardroom may be operated at the facility only when the facility is authorized to accept wagers on pari-mutuel events during its authorized meet.” A plain reading of this language makes it evident that the Legislature intended that cardrooms be considered an adjunct to live racing, not a replacement or a substitute. As it stands today, you have not been authorized to conduct a pari- mutuel event on Sundays. Respondent’s letter of June 4, 2004, to Petitioner Daytona Beach Kennel Club, was a specific response to matters raised by that Petitioner in its letter of May 27, 2004. A final declaratory judgment issued on July 26, 2004, in the Second Judicial Circuit in Case No. 2002-CA-2971 invalidates changes to Section 550.615(6), Florida Statutes, resulting from passage of Chapter 96-364, Laws of Florida. Presently under appeal and stayed pending further decision, that ruling also invalidates Section 849.086, Florida Statutes, due to the non-severability language contained in Section 550.71, Florida Statutes. In the event of an appellate decision affirming that ruling, Respondent’s authority to regulate the hours of cardroom operation would be rendered inoperative.
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 =================================================================
