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 license should be revoked for the reasons stated in the Administrative Action.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: At all times material hereto, Shahir Daghara Corporation, d/b/a Dunbar Liquors, was licensed by the Division, having been issued License No. 46-04408, Series 3-PS. The license permits Dunbar Liquors to sell alcoholic beverages at its premises located at 3637 Martin Luther King, Jr. Boulevard, No. 101, Fort Myers, Florida. Shahir Daghara is the sole corporate officer and shareholder of Shahir Daghara Corporation. The Division introduced the license file for Fowler Liquors, which formerly held License No. 46-04643, Series 3-PS. This file was also introduced in Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco v. Barghouthi Enterprises, Inc., d/b/a Fowler Liquor Store, Case Nos. 03-0217 and 03-0431 (DOAH June 5, 2003), the consolidated cases in which Fowler Liquors' license was revoked for repeated sales to minors. As to Mr. Daghara's relationship to Fowler Liquors, the following findings were made by the undersigned: In mitigation, counsel for Fowler Liquors argued that license revocation would be unfair because Samer Barghouthi is no longer involved in the operation of the business, having signed over his interest to his uncle, Shahir Daghara. Counsel contended that Mr. Daghara acted to remove Samer Barghouthi from the premises of Fowler Liquors as soon as he learned that Mr. Barghouthi was making sales to underage persons. This contention is not credible. The two sales that are the subject of these proceedings occurred nearly one month after the murder of Mr. Cubello, which was widely known to have occurred after Mr. Cubello purchased alcoholic beverages in Fowler Liquors. The two sales also occurred after Mr. Barghouthi had been interviewed by Captain Pendarakis about sales of alcoholic beverages to minors. Moreover, Officer Cecil Pendergrass of the Fort Myers Police Department testified that Samer Barghouthi was still working at Fowler Liquors on July 1, 2002, two weeks after his arrest for selling alcoholic beverages to Justin Bender. There is no record evidence that Mr. Barghouthi transferred his interest in the business to Mr. Daghara. At most, the Division's files indicate that at some point, Fowler Liquors represented to the Division that Mr. Daghara had taken a 49 percent interest in the business. The file also contains an undated "Current Licensee Update Data Sheet" on which Samer Barghouthi's name is crossed through, but Fowler Liquors offered no sworn testimony to explain the significance of this document. Further, even if Mr. Daghara did take over the business, there is no evidence that he took any steps to remove Mr. Barghouthi from the premises of Fowler Liquors, or did anything else to address the problem of selling alcoholic beverages to minors. (Emphasis added.) The underscored language referenced a license application filed by Samer Barghouthi that named Mr. Daghara as a 49 percent stockholder. The undersigned found this insufficient to establish Fowler Liquors' claim that Mr. Daghara had taken over the business at the time Mr. Barghouthi was making illegal sales to minors. In any event, Mr. Daghara's ownership status was irrelevant to the revocation decision because there was no evidence that his ownership interest had any impact on the alcoholic beverage sales to minors at Fowler Liquors. In reviewing the Fowler Liquors file in the instant proceeding, the undersigned noted a Division form titled "Personal Data for Partner-Officer-Stockholder" that had been completed by Mr. Daghara himself on March 14, 2000, and bore his notarized signature. On this form, Mr. Daghara himself stated that he was a 49 percent shareholder of Fowler Liquors. Mr. Daghara was present at the hearing in the instant proceeding and had every opportunity to testify in explanation of his relationship to Fowler Liquors. He chose not to testify. The undersigned draws no inference from Mr. Daghara's silence, aside from the fact that it leaves the Division's version of events as the only record evidence in this proceeding. It is found that Mr. Daghara owned 49 percent of the stock of Fowler Liquors at the time that a Final Order of Revocation was entered by the Division. Mr. Daghara's ownership interest was his only proven involvement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order dismissing the Administrative Action against Shahir Daghara Corporation, d/b/a Dunbar Liquors. DONE AND ENTERED this 2nd day of September, 2004, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of September, 2004. COPIES FURNISHED: Harold F. X. Purnell, Esquire Rutledge, Ecenia, Purnell & Hoffman, P.A. Post Office Box 551 Tallahassee, Florida 32302-0551 Michael J. Wheeler, Esquire Department of Business and Professional Regulation Northwood Centre, Suite 6 1940 North Monroe Street Tallahassee, Florida 32399-2202 Peter Williams, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Leon Biegalski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
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
The Issue The issue is whether Respondent engaged in an unlawful employment practice.
Findings Of Fact Haverty's is a corporation that employs many more than 15 employees in many stores. Haverty's sells furniture. The store in which the allegations of this complaint arose is located at 1175 Eglin Parkway in Shalimar, Florida. Unless noted elsewhere, when Haverty's is mentioned, the reference is to the Shalimar store. Ms. Jester is a woman who resides in Niceville, Florida. She obtained a job at Haverty's and began working there as a sales associate on June 16, 2003. She was hired by Gary Hodge, who was the store manager. She was a sales associate during the entire time that she was employed by Haverty's. A sales associate works on a straight commission and the commission is not paid until the furniture is delivered. A sales associate, after the first three months on the job, is required to sell at least $40,000 in product each month. There are generally ten to fifteen sales associates on the floor at any given time. The environment is highly competitive. There is a computer numbering system in place, called the "up" system, which is used to determine who may approach a customer who walks into the store. If a sales associate initially helps a customer and later the customer is helped by another sales associate, the commission, if a sale is made, is split between the two. During Ms. Jester's time as a sales associate she grossed about $26,000 per year. Ms. Jester noticed shortly after she began her employment that there existed at Haverty's a clique of salespersons, including Michael Herring, Charles McEwen, Buzz Howard, and "Travis." Also in this clique was a woman named "Melanie" and another named "Trudy." This loosely affiliated group was sometimes referred to by Ms. Jester and others, as the "Good Old Boys Club," even though women were members of the group. Members of "Good Old Boys Club" would say unpleasant things to her, would make comments about her, and would sometimes make her feel uncomfortable. Sometimes sexual comments were made about her, and sometimes sexual comments were made about other female employees. On occasion, however, Ms. Jester made sexual comments. The "Good Old Boys Club" falsely accused her of stealing sales on occasion. Sometimes persons in the alleged "Good Old Boys Club" would get her so upset that she would have to leave the floor. Her absence resulted in them making more sales, and thus, more money. If a product is sold at a discount, or if a particular item is given to a person without charge to enhance a sale of other items, the official listed price must be overridden in the store computer by using an override code. A sales associate is not usually provided with the code and if, on a particular occasion, a sales associate is given the override code, it is subsequently changed by management. On one or more occasions Charles McEwen did overrides on his own, and at least twice he entered codes for Ms. Jester. Buzz Howard used an override code once. Managers at the store made exceptions to the override policy. Lee Keiran, who was a sales associate, was also a "keyholder," and he had at all times, the authority to make overrides. However, the manager, Mr. Hodge or Michael Herring, when he was promoted to floor manager, would generally enter override codes. Obtaining someone to enter an override often added additional time to completing a sale, and personally having an override code gave the holder a slight advantage over a sales associate who did not have one. Ms. Jester was never provided with her own override code. She believed, incorrectly, that this was because of her gender. Sales meetings were held at Haverty's every Saturday morning at 8:30 a. m. All sales associates were required to attend. At these meetings the manager reiterated rules and informed employees about new rules. New merchandise would be discussed and products being specially advertised would be discussed. During the time of Ms. Jester's employment, the meetings would usually be conducted by Mr. Hodge, the store manager. On one occasion, in or near the month of January 2005, Mr. Herring conducted the sales meeting. There were twelve or thirteen sales associates at this meeting. Mr. Herring, after addressing other subjects, discussed the rules concerning checking out fabrics. He reiterated the rule that sales persons must "check out" fabric samples prior to allowing customers to depart the store with them. "Checking out" fabric requires a credit card slip signed by the customer. Thereafter, Mr. Herring grasped some fabric and raised it over his head and said to Ms. Jester, "Alma, come get your fabrics." Ms. Jester rose from her chair and walked in front of everyone and took the fabric from his hand. As she walked away he said, "Unacceptable." This was at the conclusion of the meeting. Ms. Jester found this to be humiliating. Ms. Jester placed the fabrics on her desk and went straight to Mr. Hodge to complain. She and Mr. Hodge had a conversation. He inquired as to what she wanted him to do about it. She said she wanted Mr. Herring to apologize and he said, "I'll have him talk to you." Ms. Jester informed Mr. Hodge that she was sick and was going home. Mr. Herring never apologized to her. During the time Ms. Jester worked at Haverty's no men were singled out and criticized at sales meetings. During the aforesaid time, some of the men have allowed customers to take fabrics out of the store without being "checked out" and no evidence was adduced that they were rebuked either privately or publicly. Charles McEwen came to work late on more than one occasion. On one occasion when he reported late, an odor of alcohol could be detected on his person. However, he was not under the influence of alcohol. He was never reprimanded for being late or smelling of alcohol. On Sundays sales associates were required to come to work at 11:30, one-half-hour before opening, to clean, and straighten up the store. Employees would enter the building on Sundays through a side door, which was propped open by a rock. On one occasion Ms. Jester reported to the building five minutes late. The rock had been removed and the door was closed. She beat on the door and eventually someone opened it. Ms. Jester believed that she was locked out purposefully, but the evidence indicates only that someone moved the rock, causing the door to close, which resulted in her inability to enter the building immediately upon arrival. Male sales associates "Trent" and Bob Humphries were often late. Male sales associate "Travis" often left early. None of these men were disciplined for tardiness or for departing early. Ms. Jester complained to Mr. Hodge about male sales associate Michael Herring. She informed him that Michael was a male chauvinist pig. Mr. Hodge agreed and suggested that she get over it. Once Buzz Howard called her a stupid liar on the sales floor in front of three people. Ms. Jester was upset about this. She complained to Mr. Hodge. He suggested to her that Mr. Howard's intent was to get her off the sales floor so she couldn't compete with the other sales associates. He said she should, "Cowboy up." In April 2005, a woman named Ashley Bloomfield walked into the store. Ms. Jester spent an hour and a half showing her bedroom suites. Ms. Bloomfield eventually indicated that she was going to cogitate about the purchase, and departed the store. Before she left Ms. Jester gave her a business card so that she could ask for her when she returned. Customers often spend a lot of time looking at furniture, depart, and subsequently return. These customers are called, "be-backs." Sometimes "be-backs" return, and sometimes they don't. A few days after her visit, Ms. Bloomfield called for Ms. Jester on the telephone. She spoke to sales associate Bob Humphries who told her that Ms. Jester was not present. On Wednesday, April 20, 2005, Ms. Bloomfield returned to Haverty's and was assisted by Buzz Howard. Mr. Howard told her that he would ring up the sale but would credit the sale to Ms. Jester. The transaction was completed, but Ms. Jester was not given any credit for the sale. On a Thursday subsequent to Ms. Bloomfield's visit Ms. Jester entered the side door of the store and observed Buzz Howard at the office with Ms. Bloomfield. The office is the place where customers arrange payment for purchases. Mr. Howard informed Ms. Jester that when Ms. Bloomfield walked in the door she asked for Mr. Humphries, that he, Mr. Howard helped her, and that he, and Mr. Humphries, were going to split the commission. Pursuant to policy, Ms. Jester should have gotten half of the commission and a three-way split is not, she believes, possible. Ms. Jester complained to Mr. Hodge about this. Mr. Hodge explained that Ms. Bloomfield had called when she was absent and Mr. Humphries had spoken with her on the telephone. Mr. Hodge said the commission would be subject to a three-way split. The next day Ms. Bloomfield called Ms. Jester to inquire why Mr. Humphries' name was on the sales slip and not hers. When she learned that Ms. Jester was not going to get credit for the sale, she asked Ms. Jester what to do. Ultimately, Ms. Jester told her she should call "management" in Pensacola and gave her the number for "management." Specifically, she referred her to Hunter Wrisley or Zack Mattson. Ms. Bloomfield did call "management" and spoke to Zack Mattson who in turn called Ms. Jester. Mr. Mattson told Ms. Jester, "Don't do anything about this. I will get back to you." Although Ms. Bloomfield testified that Mr. Mattson intimated that Ms. Jester would get all of the commission if she was working solely with Ms. Bloomfield, this did not occur. When Ms. Bloomfield learned that Ms. Jester did not get all of the commission, she announced that she would return to the store, return the merchandise previously purchased, and then would re-purchase it from Ms. Jester. Ms. Jester called Mr. Mattson and left a message on his voicemail informing him of Ms. Bloomfield's plan of action. He did not respond to her immediately. Ms. Bloomfield returned to the store and the office manager, "Michelle," with the assistance of Ms. Jester, deleted the previous sale, and thereafter modified the transaction to reflect Ms. Jester as the seller. Mr. Mattson determined that this event ran afoul of his instruction to, "Don't do anything about this. I will get back to you." Shortly thereafter, Mr. Hodge called Ms. Jester to his office. Mr. Mattson was on the speaker phone. Mr. Mattson announced that she had deliberately disobeyed a direct order. After Mr. Mattson terminated his participation in the conversation, Ms. Jester told Mr. Hodge that she was too upset to continue working that day and that she must go home. Thereafter, she departed the premises. The next day Mr. Hodge directed that Ms. Jester report to his office and she did as requested. Mr. Hodge, in the presence of Lee Keiran, required her to sign a disciplinary form which recited that she had been insubordinate and had discussed commissions with a customer, an activity which is against Haverty's policy. The form further informed that she was suspended with no pay for three days. She signed the form and went home. When Ms. Jester returned to work she asked Mr. Hodge if she could have leave so that she could go on vacation. He denied her request. She submitted a letter of resignation to Mr. Hodge on May 20, 2005. The letter stated that she had put up with being mistreated by the "Good Old Boys Club" for the last time. However, this is not found to be a constructive termination. She gave two weeks notice but Haverty's discharged her on May 22, 2005, in accordance with their policy on notice of termination. Ms. Jester also sent a letter of resignation to a Mr. Smith of Haverty's corporate office in Atlanta. The corporate office did not respond. Haverty's employee Charles McEwen once told a customer named Schneider to ask for Ms. Whalls when she returned on a Wednesday after a Tuesday visit because he would not be working on the proposed return date. He asked Ms. Whalls for her business card to give to Ms. Schneider so that she would be sure and remember to ask for Ms. Whalls. There was some minimal discussion of commission splits at this time. However, this discussion did not result in any further involvement by the customer in the commission structure. Although evidence was adduced indicating that some of the sales associates engaged in underhanded methods designed to deprive their fellow workers of commissions, and that some had their own override codes, and others had tardiness excused, there was no evidence that any other sales associate at Haverty's involved a customer in a dispute over commissions. Although during the time of Ms. Jester's employment no one other than Ms. Jester was rebuked in front of the sales associates, being rebuked is not the type of employment practice that can be an adverse employment action. The facts in this case demonstrate that being a sales associate at Haverty's is extremely competitive. Because of the highly competitive, straight commission sales environment, employees engaged in activities designed to subvert the efforts of their fellow employees to earn commissions. Sales associates often made crude and inappropriate remarks that were upsetting to those who were the targets, in an effort to reduce competition. Ms. Jester's supervisors tolerated this behavior. Undoubtedly, a tough environment existed at Haverty's, but this should not be confused with discrimination. The sometimes unfortunate and mean employment practices permitted at Haverty's were not grounded in gender discrimination or some other prohibited basis. There is no evidence in the record that any employee of Haverty's received favorable treatment, or unfavorable treatment, because of their gender. After Ms. Jester's employment at Haverty's came to an end, she made an unsuccessful attempt to go into business for herself. For about eight months subsequent to her departure from Haverty's she was absolutely unemployed. She received unemployment compensation in the amount of $257.00 per week for four months after her departure from Haverty's. Then she went to work for the Shoe Salon for $9.50 per-hour for three weeks. Ms. Jester did not indicate how many hours per-week she worked at the Shoe Salon. Thereafter she found employment with Massey Wholesale about three months before the hearing, and at the time of the hearing she was still employed there. Her wages at Massey Wholesale compare closely to what she was receiving when working for Haverty's. Massey Wholesale will soon pay for her health insurance. She paid $387.00 per month for health insurance pursuant to COBRA for a period of three months subsequent to leaving Haverty's then secured a policy for which she pays a premium of $250.00 per month.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition of Alma W. Jester. DONE AND ENTERED this 17th day of July, 2006, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 W. Douglas Hall, Esquire Carlton Fields, P.A. Post Office Drawer 190 Tallahassee, Florida 32302-0190 John W. Wesley, Esquire Wesley, McGrail and Wesley 88 Northeast Eglin Parkway Fort Walton Beach, Florida 32548 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
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
The Issue Whether Respondent committed the violations alleged in the Administrative Action? If so, what penalty should be imposed?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Licensed Premises La Catracha Fish Market and Restaurant (hereinafter referred to as the "Restaurant") is an eatery located at 1255 West 46th Street, Hialeah, Florida, that sells beer and wine pursuant to alcoholic beverage license number 23-15943, series 2-COP. The Restaurant offers both counter and table service. The counter where patrons are served (hereinafter referred to as the "Counter") is situated toward the front of the Restaurant, to the right of the entrance. Ownership and Operation of the Restaurant Respondent is now, and has been at all times material to the instant case, the owner of the Restaurant and the holder of the license that authorizes the sale of alcoholic beverages on the premises. Respondent and his wife, Juanita, are now, and have been at all times material to the instant case, actively involved in the operation of the Restaurant. They maintain a regular presence on the premises. Among other things, Juanita mans the cash register behind the Counter. From February of 1994, until the end of July of that year, when the Moyas were on an extended vacation, Respondent had "other people" run the business. When they returned from their vacation, the Moyas discovered that the Restaurant had a "new clientele." The Undercover Operation Elio Oliva and Antonio Llaneras are detectives with the Hialeah Police Department. In August and September of 1994, they participated in an undercover investigation at the Restaurant. The investigation was initiated after the Hialeah Police Department had received complaints that illegal drug and gambling activities were taking place on the premises. The August 31, 1994, Visit The undercover operation began on August 31, 1994. On that date, Oliva and Llaneras, dressed in civilian attire, went to the Restaurant to see if they would be able to make a controlled buy of narcotics. Upon entering the Restaurant, they walked over to the Counter and sat down. From their vantage point at the Counter, Oliva and Llaneras observed a number of patrons walk up to another patron, Antonio Rosales, 1/ hand him money and receive in return a clear plastic bag containing a white powdery substance. After approximately 20 minutes, Oliva approached Rosales and asked him if he had any cocaine to sell. Rosales responded in the negative, but directed Oliva to another patron in the Restaurant, from whom Oliva purchased a clear plastic bag containing, what the patron represented was, a half of a gram of powdered cocaine. The transaction occurred at the Counter in plain view. There was no effort to conceal what was taking place. Oliva subsequently conducted a field test of the substance he had purchased at the Restaurant that day. The field test was positive for the presence of cocaine. 2/ The September 1, 1994, Visit Oliva and Llaneras returned to the Restaurant at around 8:00 p.m. on September 1, 1994. When they arrived, Rosales was at the Counter. There was a telephone on the Counter near where Rosales was seated. Rosales received incoming calls on the telephone that evening. (Employees at the Restaurant answered the telephone and handed it to Rosales, who then engaged in conversation with the caller.) Upon entering the Restaurant, Oliva noticed Rosales at the Counter and walked up to him. He told Rosales that he was interested in purchasing cocaine and then handed Rosales $20.00. Rosales thereupon pulled out from one of his pockets a clear plastic bag containing, what Rosales represented was, a half of a gram of powdered cocaine. He then gave the bag to Oliva. The transaction occurred in plain view. There was no effort to conceal what was taking place. Respondent's wife was on the premises at the time of the transaction. Oliva subsequently conducted a field test of the substance he had purchased from Rosales at the Restaurant that day. The field test was positive for the presence of cocaine. 3/ The September 2, 1994, Visit Llaneras went back to the Restaurant the following day. When he arrived, Rosales was again at the Counter. From his position near the entrance of the Restaurant, Llaneras, in a normal tone of voice, told Rosales that he wanted to buy a half of a gram of cocaine. Rosales thereupon signaled for Llaneras to sit down next to him. Llaneras complied with Rosales' request. Rosales then pulled out from one of his pockets a clear plastic bag containing a white powdery substance. Upon handing the bag to Llaneras, Rosales bragged, rather loudly, that it was "good stuff." The transaction occurred in plain view. There was no effort to conceal what was taking place. Respondent and his wife were behind the Counter at the time of the transaction. Llaneras subsequently conducted a field test of the substance he had purchased from Rosales at the restaurant that day. The field test was positive for the presence of cocaine. The substance was later analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of .3 grams of cocaine. The September 6, 1994, Visit On September 6, 1994, Llaneras returned to the Restaurant, accompanied by Oliva. On separate occasions, they each approached Rosales, who was seated at the Counter. Llaneras' September 6, 1994, Purchase When Llaneras approached Rosales, Rosales asked him if he "needed some more." Llaneras' response was to hand Rosales $20.00. Rosales then took out a folded napkin from one of his pockets and placed the napkin on top of the Counter. He proceeded to unfold the napkin. Inside the napkin were approximately 12 clear plastic bags. Each contained a white powdery substance. Rosales handed one of the bags to Llaneras. He told Llaneras that it was "good stuff." The transaction occurred in plain view. There was no effort to conceal what was taking place. Respondent's wife was behind the Counter, approximately three to four feet from Llaneras and Rosales, at the time of the transaction. Llaneras subsequently conducted a field test of the substance he had purchased from Rosales at the Restaurant that day. The field test was positive for the presence of cocaine. The substance was later analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of .3 grams of cocaine. Oliva's September 6, 1994, Purchase When Oliva approached Rosales, he handed Rosales $20.00. Rosales thereupon took out a folded napkin from one of his pockets and unfolded it on top of the Counter. Inside the napkin were approximately ten clear plastic bags, each of which contained a white powdery substance. Rosales handed one of the bags to Oliva. The transaction occurred in plain view. There was no effort to conceal what was taking place. Respondent's wife was behind the Counter, approximately six feet from Llaneras and Rosales, and was facing in their direction at the time of the transaction. The substance Oliva had purchased from Rosales at the Restaurant that day was subsequently analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of cocaine. The September 14, 1994, Visit Oliva and Llaneras next visited the Restaurant on September 14, 1994. When they arrived at the Restaurant, Rosales was seated at the Counter talking on the telephone. Oliva sat down at the Counter next to Rosales and handed him $20.00. As he had done during his previous encounter with Oliva on September 6, 1994, Rosales took out a folded napkin from one of his pockets and unfolded it on top of the Counter. Inside the napkin was a clear plastic bag containing a white powdery substance. Rosales handed the bag to Oliva. The transaction occurred in plain view. There was no effort to conceal what was taking place. Respondent's wife and the barmaids on duty were behind the Counter at the time of the transaction. The substance Oliva had purchased from Rosales at the Restaurant that day was subsequently analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of .3 grams of cocaine. The September 15, 1994, Visit Oliva and Llaneras returned to the Restaurant on the following day, September 15, 1994. Gaming Activities During their visit, they heard a loud commotion in the kitchen and went to investigate. Upon entering the kitchen, 4/ they observed several persons, including Respondent and Rosales, gathered around a table participating in a game similar to roulette. The table was round and approximately three feet in diameter. It was filled with indentations painted either black or white. A funnel was held above the center of the table through which a marble was dropped. Participants in the game bet on whether the marble would come to rest on a black or white colored indentation. If the marble landed on a white indentation, the person dropping the marble would win the money that was in the pot. If it landed on a black indentation, the other player(s) would win. The game did not require any skill to play. Its outcome was based entirely on chance. After entering the kitchen, both Oliva and Llaneras played the game. Oliva's September 15, 1994, Purchase While Oliva was in the kitchen, Rosales asked him if he "needed anything." Oliva indicated that he did and handed Rosales $20.00. In return, Rosales gave Oliva a clear plastic bag containing a white powdery substance. Oliva and Rosales each spoke in a normal tone of voice during the exchange. Respondent was among those who were in the kitchen at the time of the transaction. The substance Oliva had purchased from Rosales at the Restaurant that day was subsequently analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of .3 grams of cocaine. Llaneras' September 15, 1994, Purchase Llaneras also made a buy from Rosales in the kitchen. Rosales initiated the transaction. He asked Llaneras if he needed any cocaine. Llaneras responded in the affirmative and gave Rosales $20.00, in return for which Llaneras received from Rosales a clear plastic bag containing a white powdery substance. Llaneras and Rosales each spoke in a louder than normal tone of voice during the exchange. Respondent was in the kitchen a few feet away from Llaneras and Rosales when the transaction took place. Llaneras subsequently conducted a field test of the substance he had purchased from Rosales at the Restaurant that day. The field test was positive for the presence of cocaine. The substance was later analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of .2 grams of cocaine. The September 16, 1994, Visit The next day, September 16, 1994, Oliva and Llaneras came back to the Restaurant. During their visit on this date, they each made buys from Rosales. Oliva's September 16, 1994, Purchase Rosales was at the Counter talking with Respondent's wife when Oliva approached him. After greetings were exchanged, Rosales asked Oliva if he "needed anything," in response to which Oliva handed Rosales $20.00. Rosales then gave Oliva a clear plastic bag containing a white powdery substance. Oliva and Rosales each spoke in a normal tone of voice during the exchange. The substance Oliva had purchased from Rosales at the Restaurant that day was subsequently analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of .2 grams of cocaine. Llaneras' September 16, 1994, Purchase Rosales was in the kitchen when Llaneras approached him and inquired about purchasing a half of a gram of powdered cocaine. After Llaneras tendered the money needed to make the purchase, Rosales gave him a clear plastic bag containing a white powdery substance. Llaneras and Rosales each spoke in a louder than normal tone of voice during the exchange. Respondent was in the kitchen, approximately three to four feet away from Llaneras and Rosales, when the transaction took place. Respondent's wife was also nearby. Llaneras subsequently conducted a field test of the substance he had purchased from Rosales at the Restaurant that day. The field test was positive for the presence of cocaine. The substance was later analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of .2 grams of cocaine. The September 22, 1994, Visit Oliva and Llaneras paid separate visits to the Restaurant on September 22, 1994. During their visits, they each made buys from Rosales. Oliva's September 22, 1994, Purchase Rosales was at the Counter talking with Respondent's wife when Oliva walked up to him. Rosales interrupted his conversation with Respondent's wife to ask Oliva if he "needed anything." In response to Rosales' inquiry, Oliva handed Rosales $20.00. Rosales then handed Oliva a clear plastic bag containing a white powdery substance. Oliva and Rosales each spoke in a normal tone of voice during the exchange. Respondent's wife was behind the Counter, approximately four to five feet from Oliva and Rosales, when the transaction took place. The substance Oliva had purchased from Rosales at the restaurant that day was subsequently analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of .3 grams of cocaine. Llaneras' September 22, 1994, Purchase Llaneras encountered Rosales as Rosales was leaving the Restaurant. Rosales asked Llaneras if he "needed anything." Llaneras responded in the affirmative. Rosales, in turn, told Llaneras to wait at the Counter. Rosales then left the Restaurant. He returned shortly thereafter with a clear plastic bag containing a white powdery substance, which he handed to Llaneras. The transaction took place in plain view of Respondent's wife, who was approximately three feet away behind the Counter. Respondent was on the premises at the time of the transaction. Llaneras subsequently conducted a field test of the substance he had purchased from Rosales at the Restaurant that day. The field test was positive for the presence of cocaine. The substance was later analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of .3 grams of cocaine. Llaneras' September 28, 1994, Visit Llaneras next visited the Restaurant on September 28, 1994. Rosales was seated at the Counter when Llaneras entered the Restaurant. He saw Llaneras enter and walked up to him. Llaneras greeted Rosales by telling Rosales, in a normal tone of voice, that he wanted to purchase cocaine. He then handed Rosales $20.00. In return, Rosales gave Llaneras a clear plastic bag containing a white powdery substance. Respondent's wife was behind the Counter when the transaction took place. Respondent was on the premises. Llaneras subsequently conducted a field test of the substance he had purchased from Rosales at the Restaurant that day. The field test was positive for the presence of cocaine. The substance was later analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of .2 grams of cocaine. Oliva's September 29, 1994, Visit Oliva returned to the Restaurant on September 29, 1994. He met Rosales at the Restaurant. As was his usual custom when he conversed with Oliva, Rosales asked if Oliva "needed anything." As was his customary response to such an inquiry, Oliva handed Rosales $20.00. Rosales then stepped outside the Restaurant and retrieved from his car, which was parked in front of the Restaurant, a clear plastic bag containing a white powdery substance. When he returned to the Restaurant, he handed the bag to Oliva. The transaction occurred in plain view at the Counter. There was no effort to conceal what was taking place. Oliva and Rosales each spoke in a normal tone of voice during the exchange. Respondent's wife was behind the Counter at the time of the transaction. Respondent was on the premises. Respondent's Responsibility for Drug Transactions on Licensed Premises Although Respondent may not have been directly involved in any of the above-described sales of cocaine that took place at the Restaurant during the Hialeah Police Department's undercover operation and he may not have even been on the licensed premises at the time of some of these sales, given the persistent and repeated nature of the transactions and the open manner in which they were made, the inference is made that Respondent either fostered, condoned, or negligently overlooked them.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order finding Respondent guilty of the violations alleged in Counts 1 and 3 through 12 of the Administrative Action and penalizing Respondent therefor by revoking his alcoholic beverage license number 23-15943, series 2-COP. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 11th day of August, 1995. STUART M. LERNER 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 11th day of August, 1995.