The Issue The issues in these consolidated cases are: Whether The Buxton Group, Incorporated, and Kavin P. Buxton (hereinafter jointly referred to as "Buxton") committed fraud, deceit, negligence, or misconduct, and, if so, whether the Department of Agriculture and Consumer Services (the "Department") may deny the issuance of or revoke various licenses held by Buxton--DOAH Case No. 10-2197; and Whether administrative denial of Buxton's existing Class "G" license is warranted--DOAH Case No. 10-2198.
Findings Of Fact The Department is the state agency responsible for, inter alia, the issuance and monitoring of various licenses related to the field of private security. It is the Department's responsibility to take disciplinary action against any licensee who violates statutes or rules relating to the licenses issued by the Department. Buxton has held, now holds, or has applied for the following licenses which are issued by the Department: D9414758: A security officer's license which has an expiration date of August 30, 2010; DI9900012: An instructor's license for which Buxton applied for, but was denied renewal; B9400126: A license to operate a security agency. Buxton's license has expired and there is an administrative action pending against it; G9402513: A statewide firearms license. Buxton's license has expired, and his request for renewal has been denied by the Department; A9700094: A private investigative agency license, effective May 19, 2008; and MB9500099: A license to manage a security agency. Buxton's license has expired, and there is an administrative action pending. The basis of the Department's disciplinary actions against Buxton's licenses (and the reason the Department has denied applications for renewals) is an incident occurring on March 27, 2008, in Pinellas Park, Florida. Buxton was on that date working as a security guard for Dew Cadillac, a new and used car dealership. At approximately 5:05 a.m., Buxton was returning to the dealership after taking a coffee break off-site. He was driving his personal automobile down an unpaved track of land on the east side of the dealership. He turned unto an unpaved area at the northern end of the lot at which time he noticed movement around an employee's pick-up truck which was parked in the car lot. It appeared a window of the truck had been broken, and there was glass lying around the outside of the vehicle. Buxton approached the vehicle and found a person (later identified as Mark Lobban) "rummaging around" in the cab of the truck. Buxton noted that two windows had been smashed, and there was a dent in the passenger side door. Buxton ordered Lobban to exit the vehicle. When Lobban came out of the truck, his eyes indicated a drugged or intoxicated state, and he reached his hand into his shirt along the front waistline of his pants. When Buxton saw that movement, he drew his weapon, a Springfield Armory XP 9mm semi-automatic handgun, for which he held a current permit to carry. Lobban took his hand out of his shirt and stated that he was looking for his cousin. Buxton ordered Lobban to the ground and began to dial 9-1-1 as he kept an eye on Lobban. Just as Buxton finished dialing 9-1-1, Lobban allegedly lunged at Buxton, then took off running. Lobban ran behind some Hummer vehicles parked nearby. Buxton says that as Lobban ran, he again reached his hand into his shirt near his waistline. That placed Buxton in fear that Lobban may have a gun, so Buxton ran to another row of Hummers for protection and began firing shots toward Lobban from his own handgun. Lobban then ran past the row of Hummers and appeared to be exiting the premises. Buxton followed Lobban and later recounted in his Firearms Incident Report, that he ran toward Lobban "to insure that the suspect was actually exiting the property. At this point, I felt he was possibly running away. I followed further in an attempt to maintain sight of the suspect." Lobban approached a hedgerow located at the west side of the dealership, attempted to jump over it, but caught his leg and fell over the hedges. By this time, Buxton had cleared the last line of parked vehicles and, thus, had no more cover. When Lobban stood up on the other side of the hedgerow, he turned to face Buxton. Buxton wrote in his report, "Fearing he had drawn a weapon behind the hedge, I fired another round, at which time the suspect turned and fled east, through the wooded area adjacent to the property." Lobban did not at any time display or fire a weapon at Buxton. Buxton returned to his cell phone which he had dropped when first apprehending Lobban. The 911 operator was just calling him back at that moment. Buxton was put through to PPPD and, within minutes, the first officer, Scott Martin, arrived at the dealership. Martin had ensured that a police perimeter was established around the dealership concurrent with his arrival. When Scott got to the dealership, he found Buxton and was briefed as to what had transpired. A brief search of the premises was commenced pending arrival of the PPPD K-9 unit. While awaiting their arrival, Buxton spotted Lobban hiding under a vehicle in the dealership's service area. Lobban was apprehended by Scott and placed in a police cruiser. Scott determined that Lobban was impaired, probably by alcohol, and was essentially incoherent. Scott did an "article search" of the premises to see if any items belonging to Lobban could be found. A cell phone and wallet were recovered, but there was no sign of a firearm. The search did not concentrate on a firearm specifically, but the search was intended to find any item that Lobban had handled. The K-9 unit was able to trace Lobban's scent through the Hummers, across the hedgerow and back to the service area. The search concentrated on the areas where Lobban had been known to have crossed. No search was done of the wooded area behind the hedge, because the tracking dogs did not point to that area as having been traveled by Lobban. Scott reported in to his headquarters after hearing Buxton's explanation of the events that transpired. The discharge of a weapon in that scenario seemed unwarranted to Scott, so he reported it to his supervisor. Within minutes, Detective Doswell arrived at the dealership to further investigate the situation. Doswell arrived to find Lobban already in custody and Buxton standing in the parking lot with another security guard. Buxton told Scott he had fired four shots at Lobban initially and then two more shots after Lobban jumped the hedge. However, there were five shell casings found in the first location and only one near the hedgerow. The events concerned Doswell enough that he asked Buxton to come into headquarters and make a statement about what had occurred. Buxton initially agreed to do so. After a few minutes, however, he handed his cell phone to Doswell so that Doswell could talk to Buxton's attorney. Doswell and the attorney set up a meeting for later that same day, a Thursday. The attorney later called Doswell and said he and Buxton could not come in until the next day (Friday), so the meeting was rescheduled for that day. On Friday, March 28, 2010, Buxton and his attorney arrived at the PPPD headquarters. Doswell informed Buxton that he was investigating the event as a probable illegal discharge of a firearm and that criminal charges could be filed. Buxton was not read his Miranda rights at that time however, in that no charges had yet been filed. At some point, Doswell determined that Buxton had been involved in another incident relating to the discharge of his firearm while on duty. In that case, Buxton was working at a bowling alley when a group of kids attempted to "jump him." One kid spit on Buxton and during the brief confrontation, Buxton pulled his firearm. Buxton discharged his gun, firing into the ceiling of the establishment (because, said Buxton, someone hit his arm just as he was shooting. Buxton did not say what he was aiming at when he fired.). After interviewing Buxton and his attorney, Doswell revisited Dew Cadillac and did some further investigation. Fragments of bullets from Buxton's firearm had been recovered from the tires of two Hummers on the car lot. In order to obtain licenses which allow a person to use a firearm in conducting their authorized activities, a person must undergo a background check and certain training and education. The Class "D" license held by Buxton required 40 hours of training (which can be dispensed with if the applicant has prior corrections or law enforcement experience). The training necessarily included instruction from the Firearm Instructor's Training Manual (the "Manual"). The Manual specifically warns against the unauthorized use of deadly force, i.e., discharging a firearm at an individual. The Manual stresses the need to retreat and disengage, rather than entering into a situation that might require using the firearm. Several examples are set out in the Manual to provide applicants guidance about how to avoid using deadly force. Two of those examples follow: Situation #1: You are guarding a liquor store and are advised by a customer that there is an armed robbery in progress. You look around the corner and see a man rushing out the front door with a firearm in his hand. Instructor Discussion: Instead of immediately looking around the corner, call the police first. The suspect could turn around and see you as you look around the corner, thus, increasing the probability of armed conflict. The man is running away from you, and there is no threat of death or great bodily injury. Don't shoot. Situation #2: You have been advised that a burglary has occurred at a warehouse you are guarding. The suspects were observed leaving the scene in a blue, 1972 Dodge. Later that night, while patrolling the grounds in a well-marked security vehicle, you observe the suspects' vehicle traveling through the parking lot at a high rate of speed with the headlights off. You see a flash come from the driver's side of the suspect's vehicle and, almost simultaneously, the front windshield of your patrol car cracks. The suspect vehicle continues through the parking lot at a high rate of speed. Instructor Discussion: Don't shoot. Record the license number and description of the vehicle and suspects if it is possible to do so from a covered position. Pursuit could result in serious injury to you or to innocent bystanders who may get in the way. Call for police as soon as possible. According to the expert testimony at final hearing (which was not rebutted or contradicted by Buxton), each of the above-described situations is more egregious than the one Buxton encountered at Dew Cadillac. It is clear that discharge of a firearm in Buxton's situation would be contrary to the guidance provided in the training materials. Each of the facts stated herein are based upon the testimony of live witnesses and written statements from police and investigative reports. Each of the witnesses appeared knowledgeable about his area of testimony, and each was credible. Buxton provided no evidence to contest or rebut any of the evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Agriculture and Consumer Services denying Buxton's licensure application for License No. G9402513 and taking such action as the Department deems appropriate as to each of Buxton's other licenses issued by the Department. DONE AND ENTERED this 10th day of September, 2010, 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 September, 2010. COPIES FURNISHED: Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 Christopher E. Green, Chief Bureau of License and Bond Division of Marketing Department of Agriculture and Consumer Services 407 South Calhoun Street, Mail Stop 38 Tallahassee, Florida 32399-0800 Tracy Sumner, Esquire Department of Agriculture and Consumer Services Post Office Box 3168 Tallahassee, Florida 32315-3168 Kavin P. Buxton Post Office Box 13644 St. Petersburg, Florida 33733
The Issue The issue in this case is whether Respondent, Ricardo Cabrera, committed the offenses alleged in an Administrative Complaint issued by Petitioner, the Department of Financial Services, on March 9, 2005, and, if so, what penalty should be imposed.
Findings Of Fact The Parties. Petitioner, the Department of Financial Services (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for, among other things, the licensure of individuals who wish to install and maintain fire suppression equipment and the investigation and prosecution of complaints against individuals who have been licensed in Florida. See Ch. 633, Fla. Stat. Respondent, Ricardo Cabrera, is and has been at all times material hereto a licensed Fire Equipment Dealer, Class C, in the State of Florida. Mr. Cabrera, who first applied for licensure as a Fire Equipment Dealer, Class C, on or about October 10, 1989, was issued license number 70219300011990 on January 17, 1990. The Department has jurisdiction over Mr. Cabrera’s licenses. Criminal Case. On or about October 20, 1989, after Mr. Cabrera had first applied for licensure by the Department, a criminal Information was filed in case number 89-38498, in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, charging that on September 30, 1989, Mr. Cabrera, unlawfully and feloniously had in his actual or constructive possession cocaine, a controlled substance. On or about December 12, 1989, Mr. Cabrera pled nolo contendere to possession of cocaine, a third degree felony, in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida. Adjudication was withheld on the charge, and Mr. Cabrera was sentenced to probation for a period of one year and was ordered to successfully complete the T.A.S.C. drug program, a narcotics treatment program. As a result of the fact that the court withheld adjudication of guilt, Mr. Cabrera did not lose any civil rights. Mr. Cabrera's 1998 License Renewal Application; Count I. Mr. Cabrera applied for renewal of his license as a Fire Equipment Dealer, Class C, on or about December 5, 1998. Mr. Cabrera was asked and answered in the negative the following question on the application for renewal he filed with the Department: “Have you ever been convicted or pled nolo contendere to a felony?” The question, "[h]ave you ever been convicted or pled nolo contendere to a felony” is clear and understandable. Given Mr. Cabrera's plea of nolo contendere to the felony of possession of cocaine on December 12, 1989, the only reasonable response to this question Mr. Cabrera should have given was "yes." Mr. Cabrera has given no explanation as to why he failed to answer the question truthfully. Mr. Cabrera's license renewal application was received by the Department on or about December 21, 1998, and the renewal of his Fire Equipment Dealer, Class C, license was granted on June 14, 1999. Mr. Cabrera's 1999 License Renewal Application; Count II. Mr. Cabrera again applied for renewal of his license as a Fire Equipment Dealer, Class C, on or about December 6, 1999. Mr. Cabrera was asked and answered in the negative the following question on the application for renewal he filed with the Department: “Have you ever been convicted or pled nolo contendere to a felony?” The question, "[h]ave you ever been convicted or pled nolo contendere to a felony” is clear and understandable. Given Mr. Cabrera's plea of nolo contendere to the felony of possession of cocaine on December 12, 1989, the only reasonable response to this question Mr. Cabrera should have given was "yes." Mr. Cabrera has given no explanation as to why he failed to answer the question truthfully. Mr. Cabrera's license renewal application was received by the Department on or about December 13, 1999, and the renewal of his Fire Equipment Dealer, Class C, license was granted on December 15, 1999. Mitigating/Aggravating Factors. An Administrative Complaint was filed against Mr. Cabrera on or about December 30, 1994, as Qualifier for BC & ABC Fire Extinguisher Maintenance, alleging that he maintained two places of business without separate Fire Equipment Dealer licenses and qualifiers for each, and that he allowed an unlicensed person to conduct the business of a Fire Equipment Dealer. On or about August 8, 1995, Mr. Cabrera was placed on probation for two years and ordered to pay a fine of $1,000.00. An Administrative Complaint was filed against Mr. Cabrera on or about June 29, 2004, as Qualifier for BC & ABC Fire Extinguisher Maintenance, alleging that he allowed the insurance required to be carried by Section 633.061, Florida Statutes, for the business to lapse. On or about February 11, 2005, Mr. Cabrera was placed on probation for one year and ordered to pay a fine of $1,000.00.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department: Finding that Mr. Cabrera, did not violate Section 633.162(4)(f), Florida Statutes, as alleged in Counts I & II of the Administrative Complaint; Finding that Mr. Cabrera, violated Section 633.162(4)(g), Florida Statutes, as alleged in Counts I & II of the Administrative Complaint; and Revoking Mr. Cabrera's license for a period of four years from the date of the final order. DONE AND ENTERED this 21st day of July, 2005, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 21st day of July, 2005.
The Issue Whether Respondent violated sections 550.105(4) and (7), Florida Statutes (2016),1/ and Florida Administrative Code Rule 61D-2.005, as applicable, by engaging in the following conduct, as alleged in the First Amended Administrative Complaint: (1) assisting an unlicensed person in working in a restricted area at a licensed pari-mutuel wagering facility, in violation of section 550.105(4) and rule 61D-2.005; and (2) accumulating unpaid obligations directly related to the sport of pari-mutuel racing, in violation of section 550.105(7); and, if so, the penalty that should be imposed.
Findings Of Fact The Parties and Licensure Status Petitioner is the state agency charged with regulating pari-mutuel wagering in the state of Florida pursuant to chapter 550. At all times relevant to this proceeding, Respondent was the holder of Pari-Mutuel Wagering Individual Occupational License No. 2005775-1021, which authorizes him to own and train racing horses in this state pursuant to chapter 550. At all times relevant to this proceeding, Respondent trained and raced horses at Gulfstream Park ("Gulfstream"), a facility operated by a permitholder authorized to conduct pari- mutuel wagering in this state pursuant to chapter 550. The Administrative Complaint At all times relevant to this proceeding, Respondent was subject to chapter 550 and applicable rules codified in Florida Administrative Code Chapter 61D-2. On or about March 29, 2017, Petitioner served its Administrative Complaint on Respondent, charging him with two counts of violating statutes and rules governing pari-mutuel racing. Count I of the Administrative Complaint charges Respondent with "conspiring with, soliciting, aiding, abetting, counseling, hiring, or procuring" Salvador Domingo Ramos to work in a restricted area of Gulfstream on or about July 25, 2016. If proved, this conduct would violate section 550.105(4), which makes it unlawful to take part in any way at any pari-mutuel facility without first having secured an occupational license and paid the occupational license fee; and also would violate rule 61D-2.005, which, among other things, prohibits a licensee from conspiring with, aiding, abetting, counseling, hiring, or procuring any other person or persons to engage in a violation of chapter 550. Count II of the Administrative Complaint charges Respondent with "accumulating unpaid obligations that directly relate to the sport of racing at a pari-mutuel facility in Florida." If proved, this conduct would violate section 550.105(7), which, among other things, makes a sanctionable offense the accumulation of unpaid obligations that directly relate to the sport of racing being conducted at a pari- mutuel facility in this state. The Evidence Adduced at Hearing Count I On July 25, 2016, Julio Minaya, an investigative supervisor employed by Petitioner, engaged in an inspection of the "backside" of Gulfstream. Specifically, Minaya and the investigative team he supervised inspected barn nos. 21, 22, and 23 at Gulfstream. The "backside" is a secured area at a pari-mutuel facility that contains the barns and stables, where the racing horses are housed, and the race tracks. Only persons who hold occupational licenses or who are otherwise authorized are allowed to enter and engage in activities in the backside, and security officers are hired to guard the backside and ensure that unauthorized persons do not enter this area. As part of the inspection on July 25, 2016, Minaya requested each person encountered in barn nos. 21, 22, and 23 to provide his or her occupational license for inspection, in order to ensure that the person was licensed and that the license was valid. During the July 25, 2016, inspection of the backside at Gulfstream, a member of the Minaya's investigative team encountered a person in a storage room within barn no. 23. The man, who ultimately identified himself as Salvadore Domingo Ramos, told Minaya that he did not have his license with him. At that point, Minaya informed Ramos that he would have to leave the backside. As Minaya escorted him out of the backside, Ramos told Minaya that he worked for Respondent, that he did not have "any papers," and that he was just trying to work. Minaya interpreted Ramos's comments to mean that he (Ramos) was an undocumented immigrant, so would not have a valid occupational license. Minaya then contacted Respondent, who told him that Ramos had been working for him, exercising his horses, for approximately a month and a half. Respondent told Minaya that he did not know that Ramos was unlicensed, but that had seen Ramos exercising other trainers' horses, so assumed Ramos was licensed. At the final hearing, Respondent testified that Ramos had worked for him, for compensation, as an exerciser for the horses Respondent trained. Respondent further testified that he knew that unlicensed persons could not be hired to work in any capacity in the backside, and he acknowledged that he did not ask Ramos for his license before he hired him to exercise his horses. However, he noted that persons who go into the backside must pass through a security check at which they must show their license to gain entry. Because Respondent had seen Ramos on numerous occasions in the backside exercising other trainers' horses, he assumed that Ramos was licensed. The evidence, consisting of testimony by Petitioner's licensing administrator and supporting documentation from Petitioner's licensing computer database, confirmed that Ramos did not hold an occupational license on July 25, 2016, and had never held such a license. Count II Finish Line Feed, Inc. ("Finish Line"), is a business that sells animal food products. Ninety percent of its business is selling equestrian hand grain in Florida to race track facilities and to individuals who train and race horses at race tracks in Florida that hold pari-mutuel events. Doreen DeFonzono, office manager at Finish Line, is responsible for keeping records of all sales transactions for Finish Line. DeFonzono testified, and provided copies of customer account statements showing, that Respondent was a customer of Finish Line and that he purchased equestrian food products from Finish Line over a period of time. DeFonzono testified, credibly, that the food Respondent purchased was delivered to him at a pari-mutuel facility in Florida. The evidence shows that Respondent often was arrears in paying his account balance with Finish Line, but that he periodically would pay part of the outstanding balance. The customer account statements show on November 30, 2015, Respondent paid $500.00 toward his outstanding account balance. After this payment, Respondent's outstanding balance was $12,915.91. Thereafter, Respondent did not make any further payments toward his customer account balance. Finance charges on the outstanding balance accrued monthly, so that by July 31, 2016, Respondent's outstanding account balance was $13,986.06. Thereafter, Finish Line filed suit against Respondent to recover the amount Respondent owed. The court entered a Default and Final Judgment by Default ("Default Judgment") against Respondent in Case No. COCE-16-019754DIV 54, ordering Respondent to pay a total of $15,458.14 to Finish Line for the outstanding principal balance of $13,986.06, plus filing, process service, and attorney fees. The Default Judgment was recorded in the Broward County public records on December 14, 2016. DeFonzono credibly testified that to date, Respondent still owes Finish Line the amount of the Default Judgment, plus accrued interest, and that Finish Line and Respondent have not discussed or entered into any repayment agreements regarding the amount Respondent owes Finish Line. Respondent does not dispute that he did not fully pay off his balance with Finish Line or that a Default Judgment was entered against him. He testified that he had been a customer of Finish Line from 2004 to 2015. His credible testimony, supported by the customer account statements, showed that he made periodic payments in an effort to reduce his outstanding balance. He testified, credibly, that he fell on bad financial times, and that a number of unfortunate events and circumstances——including having an accident, breaking his hip, losing his driver's license, becoming unemployed, and being unable to pay workers' compensation insurance for any employees he may hire——rendered him unable to revive his horse training and racing business, so that he was, and remains, unable to pay the amount he owes Finish Line. Respondent currently is unemployed and does not train or race horses at Gulfstream or any other pari-mutuel facility. Findings Regarding Alleged Violations Based on the foregoing, Petitioner has shown, by clear and convincing evidence, that Respondent hired an unlicensed person to work for him in a restricted area of Gulfstream on or about July 25, 2016. This conduct violates section 550.105(4), which makes it unlawful to take part in any way at any pari- mutuel facility without first having secured an occupational license and paid the occupational license fee. This conduct also violates rule 61D-2.005, which, among other things, prohibits a licensee from hiring any other person to engage in a violation of chapter 550. Based on the foregoing, Petitioner has shown, by clear and convincing evidence, that Respondent accumulated unpaid obligations that directly relate to the sport of racing at a pari-mutuel facility in Florida. This conduct violates section 550.105(7), which, among other things, makes a sanctionable offense the accumulation of unpaid obligations that directly relate to the sport of racing being conducted at a pari- mutuel facility in this state. Aggravating or Mitigating Circumstances There was no evidence presented showing that Respondent previously violated any laws or rules regarding pari-mutuel wagering or pari-mutuel wagering facilities in Florida. Additionally, the evidence shows that Respondent did not knowingly or willfully hire an unlicensed person. As Respondent persuasively testified, he had seen Ramos on the premises in the backside of Gulfstream working for other trainers, so assumed that he was licensed. Respondent did not know Ramos was unlicensed when he hired him. The evidence further shows that due, at least in part, to a series of significant, unfortunate events and setbacks, Respondent is unemployed, so is not in a financial position to purchase the insurance necessary for him to be able to restart his horse training business. These hardships have rendered Respondent unable to pay Finish Line the balance owed pursuant to the Default Judgment. The evidence does not show that Respondent is, or has been, financially able to pay Finish Line the balance he owes but has simply chosen not to do so.2/ The evidence also does not show that Respondent bought products from Finish Line, intending not to pay for them or knowing that he was not going to pay for them.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, enter a final order finding and concluding that Respondent violated sections 550.105(4) and 550.105(7), Florida Statutes, and Florida Administrative Code Rule 61D-2.005; imposing a fine of $100.00 to be paid over a period of six months of the date of the final order; and suspending Respondent's occupational license until such time as either: (1) Respondent has repaid his debt to Finish Line in full, or (2) Respondent has entered into an agreement with Finish Line to repay his debt and he has been in compliance with that agreement for a period of six months. DONE AND ENTERED this 8th day of May, 2018, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of May, 2018.
The Issue Whether the Petitioner has jurisdiction over the Respondent and, if so, whether Respondent committed the offenses alleged in the administrative complaint and the penalties, if any, that should be imposed.
Findings Of Fact The administrative complaint that underpins this proceeding was filed June 20, 1996. At that time, the Respondent was the holder of pari-mutuel wagering occupational license number 0541161-1081 as a trainer. This occupational license was the renewal of a pre-existing license for a period of one year that expired June 30, 1996. There was no evidence that the occupational license that expired June 30, 1996, was renewed by the Respondent. In 1986, 1987, and 1988, Dr. Douglas Slavin was the owner of thoroughbred race horses that raced in Florida. Respondent was, during those years, employed by Dr. Slavin as the trainer for his race horses. In 1988, Respondent purchased from Dr. Slavin a race horse named Political Regent. Respondent had trained Political Regent for racing at pari-mutuel facilities in Florida. This transaction occurred in Florida. In 1988, Respondent and Respondent’s son, Gregory Sacco, took to New Jersey a horse named Political Pocket. This horse was owned by Dr. Slavin and had been trained by Respondent for racing at pari-mutuel facilities in Florida. Dr. Slavin had given Respondent and his son permission to take Political Pocket to New Jersey. Without Dr. Slavin’s permission and unknown to him, Respondent and his son sold Political Pocket to a third party in New Jersey. Respondent failed to pay Dr. Slavin for Political Regent or for Political Pocket. After Dr. Slavin discovered that Political Pocket had been sold, he instituted a lawsuit in the Circuit Court in and for Dade County, Florida, against Respondent and his son, Gregory Sacco. The Case Number for this suit was 89-14563 CA 08. On June 24, 1992, a final judgment was entered against Respondent and his son, Gregory Sacco, based, in part, on the transactions involving Political Pocket and Political Regent. This judgment was entered on a joint and several basis.1 As of the time of the formal hearing, the judgment entered in Case No. 89-14563 CA 08 had not been satisfied.2
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order adopting the findings of fact and conclusions of law contained herein. It is further recommended that the final order declare Respondent to be ineligible for licensure in the State of Florida so long as his debt to Dr. Slavin remains unpaid. DONE AND ENTERED this 11th day of June, 1997, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 1997
Findings Of Fact In a letter dated April 13, 1990, the Department informed the Petitioner, Cherokee Rental And Construction Co., Inc., that it was denying the Petitioner's request for refund of the $95.00 fuel tax and civil penalty assessment it had previously paid to the Department. In a letter received by the Department on February 13, 1990, the Petitioner requested an administrative hearing to contest the Department's decision. The address included on the Petitioner's letter was the address used by the Department to notify the Petitioner of its decision to deny its request for a refund. A Notice of Assignment and Order was issued on June 1, 1990, giving the parties an opportunity to provide the undersigned with suggested dates and a suggested place for the formal hearing. The information was to be provided within ten days of the date of the Notice. This Notice was sent by United States mail to the Petitioner at the address listed in its letter requesting a formal hearing. Neither party responded to the Notice. On July 12, 1990, a Notice of Hearing was issued setting the formal hearing for 11:00 a.m., September 11, 1990. The location of the hearing was listed in the Notice. The Notice of Hearing was sent by United States mail to the Petitioner at the address listed in his letter requesting a formal hearing. The Petitioner did not appear at the place set for the formal hearing at the date and time specified on the Notice of Hearing. The Department was present at the hearing. The Petitioner did not request a continuance of the formal hearing or notify the undersigned that he would not be able to appear at the formal hearing. After waiting fifteen minutes for the Petitioner to appear, the hearing was commenced. At the commencement of the formal hearing the Department was informed that it could proceed with the formal hearing or, since Petitioner had the burden of proof in this case, move for dismissal of the case. The Department elected to make an ore tenus motion for dismissal. The Department was informed that a Recommended Order would be issued recommending dismissal of this case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a Final Order dismissing the Petitioner's request for hearing in this case for failure to appear at the final hearing. RECOMMENDED this 18th day of October, 1990, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 1990. COPIES FURNISHED: Bill Read Cherokee Rental & Construction Co., Inc. Post Office Box 850606 Mobile, Alabama 36685 Vernon L. Whittier, Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 Ben G. Watts, Secretary Attn: Eleanor F. Turner, M.S. 58 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams, Esquire 562 Haydon Burns Building Tallahassee, Florida 32399-0458
The Issue Should Petitioner's application for Class 0701 and Class 0704 Fire Equipment Dealer license and Class 0901 and Class 0904 Fire Equipment permit be granted?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency of the State of Florida charged with the responsibility of issuing licenses and permits under Chapter 633, Florida Statutes, and enforcing the provisions of Chapter 633, Florida Statutes. By Final Order dated September 8, 1993, the Department revoked all licenses and permits previously issued to Petitioner under Chapter 633, Florida Statutes, for a period of five years. During this revocation period Petitioner was prohibited from engaging in any type of business requiring a license or permit under Chapter 633, Florida Statutes. After the revocation period expired, Petitioner filed an application with the Department for the issuance of a Class 0701 and Class 0704 Fire Equipment Dealer License and a Class 0901 and Class 0904 Fire Equipment Permit. By letter of denial dated December 30, 1998, the Department advised Petitioner that the Department was denying Petitioner's application for licensure on the basis that Petitioner had conducted business contrary to the provisions of the Department's Final Order dated September 8, 1999. Subsequently, the Department moved to amend its initial letter of denial dated December 30, 1998. The motion was granted and this matter proceeded forward on the amended letter of denial. The amended denial letter provided in pertinent part as follows: Investigation of your activities during the period of revocation resulted in a determination that you have conducted business contrary to the provisions of the Department's Final Order issued September 1993, therefore your request for licensure has been reviewed and must be denied. You continued to engage in the business of servicing, repairing and inspecting preengineered systems without being licensed by soliciting companies for the purposes of servicing their preengineered systems and by making arrangements with Rogers Fire Protection of Dade City, Florida for the performance of these services, and then by receiving a payment or "kickback" for the servicing of these extinguishers and systems. You also continued to engage in the business of servicing, repairing and inspecting fire extinguishers and preengineered systems without being licensed by supervising and training employees who service, repair, inspect and/or install fire extinguishers and/or preengineered systems. The amended denial letter also advised Petitioner that such activity was in violation of Section 633.061(1), Florida Statutes. At all times pertinent to this proceeding, Petitioner was co-owner of Canady CO2 Gas Co. and Canady Fire Equipment Co.(Canady Co.) located in Lakeland, Florida. Richard Dawley was co-owner of Canady Co. with Petitioner from October 1996 through 1997. During the years 1996 and 1997, Daniel Dawley, Billy Benton, and Todd Gardner were employed by Canady Co. During the years of 1996 and 1997, all of the employees of Canady Co. and Richard Dawley were licensed by the office of the State Fire Marshall pursuant to Chapter 633, Florida Statutes which allowed all of them to engage in the business of servicing portable fire extinguishers. During the years 1996 and 1997, neither the owners nor any of the employees of Canady Co. were licensed to service, test, inspect, repair, and install preengineered fire systems. During the years 1996 and 1997, Canady Co. sold and delivered C02 cartridges. Before Petitioner's licenses and permits were revoked by Final Order dated September 8, 1993, Petitioner engaged in the business of testing, servicing, inspecting, and repairing preengineered fire systems. During this period of time, Petitioner established customers with whom he maintained contact with after his licenses and permits were revoked. During the years 1996 and 1997, Canady Co. ran an advertisement in the yellow pages which advertised "Automatic Kitchen Hood Fire Systems, Kitchen Hoods Installed W/Exhaust Fans, Kitchen Hoods & Exhaust Ducts Cleaned, and Kitchen Hood Filters." Petitioner sold this type fire equipment but was not licensed to test, install, repair, service, or inspect such equipment. There is nothing in the advertisement to indicate that Petitioner was licensed to test, install, repair, service, or inspect such fire equipment. There was no evidence that any potential customer or former customer of Petitioner would assume, based on the language of the advertisement, that Petitioner was licensed to test, install, inspect, service, or repair such equipment. Likewise, during the period of revocation, Petitioner did not advise any former customer or potential customer that he was licensed to test, install, repair, service, or inspect fire systems. During 1997, Roy Rogers, owner of Rogers Fire Protection, was licensed to test, install, repair, service, and inspect fire systems. During 1997, Roy Rogers and Petitioner entered into an agreement whereby Petitioner would refer customers to Rogers whose fire systems needed testing, repairing, servicing, or inspection. Roy Rogers would perform this work under his license and bill Petitioner for his regular fee. Petitioner would then bill his customer for the amount charged by Roy Rogers plus a referral fee. The invoice submitted by Petitioner to the customer did not indicate that Roy Rogers had performed the work or that the customer was being charged a referral fee by Petitioner. Upon being paid by the customer. Petitioner would pay Roy Rogers and retain the referral fee. By invoice number 10288 dated May 22, 1997, Rogers Fire Protection billed Canady Fire Equipment $55.00 for testing and inspecting a Range Guard 2.5 gallon Fire Suppression System for Dockside Lounge, Lakeland, Florida. By invoice number 00260 dated June 2, 1997, Canady Fire Equipment Co. billed Dockside Lounge, Lakeland, Florida $80.00 for services rendered by Rogers which included Petitioner's referral fee of $25.00. Petitioner's referral fee was not stated separately on the invoice. By invoice number 10286 dated May 22, 1997, Rogers Fire Protection billed Canady Fire Equipment $55.00 for testing and inspecting a Kiddle HDR-25 Fire Suppression System for Lakeside Baptist Church, Lakeland, Florida. By invoice number 00258 dated June 2, 1997, Canady Fire Equipment Co. billed Lakeside Baptist Church, Lakeland, Florida $80.00 for services rendered by Rogers which included Petitioner's referral fee of $25.00. Petitioner's referral fee was not stated separately on the invoice. By invoice number 10287 dated May 22, 1997, Rogers Fire Protection billed Canady Fire Equipment $55.00 for testing and inspecting a Safety First ARS-15C Fire Suppression System for Dove's Nest, Lakeland, Florida. By invoice number 10285 dated May 22, 1997, Rogers Fire Protection billed Canady Fire Equipment $55.00 for testing and inspecting a Ansul R-102 3-gallon Suppression System for Brothers Bar-B-Q, Lakeland, Florida. On May 27, 1997, Petitioner issued a check in the amount of $220.00 to Rogers Fire Equipment. Although the check does not state which invoice(s) are being paid, the amount equals the total of invoices numbers 10285 through 10288. By invoice number 10294 dated May 27, 1997, Rogers Fire Protection billed Canady Fire Equipment $55.00 for testing and inspecting a Ansul R-101 Fire Suppression System for Silver Ring Cafe, Lakeland, Florida. By invoice number 10319 dated June 13, 1997, Rogers Fire Protection billed Canady Fire Equipment $55.00 for testing and inspecting a Range Guard 6-gallon Fire Suppression System for the Elks Lodge, Lakeland, Florida. By invoice number 10320 dated June 13, 1997, Rogers Fire Protection billed Canady Fire Equipment $55.00 for testing and inspecting a Range Guard 2.5-gallon Fire Suppression System for the Plantation Café, Lakeland, Florida. By invoice number 10343 dated June 27, 1997, Rogers Fire Protection billed Canady Fire Equipment $55.00 for testing and inspecting a Range Guard 2.5-gallon Fire Suppression System for Grace Lutheran Church, Lakeland, Florida. On June 2, 1997, Canady Fire Equipment issued a check to Rogers Fire Protection in the amount of $155.00. On June 17, 1997, Canady Fire Equipment issued a check to Rogers Fire Protection in the amount of $122.50. By invoice number 10327 dated June 20, 1997, Rogers Fire Protection billed Canady Fire Equipment $105.00 for inspecting and servicing a Range Guard 2.5-gallon Fire Suppression System and for labor and material for Jackie's Caribbean Cuisine, Auburndale, Florida. By invoice number 10328 dated June 21, 1997, Rogers Fire Protection billed Canady Fire Equipment $140.00 for inspecting and servicing a Range Guard 2.5-gallon Fire Suppression System and other labor for other worked performed for Citrus Woods Property Owner's Association, Lakeland, Florida. By invoice number 00400 dated June 21, 1997, Canady Fire Equipment billed Citrus Woods Property Owner's Association $359.90 for services rendered by Rogers Fire Protection which apparently included Petitioner's referral fee. By check dated June 24, 1997, Canady Fire Equipment paid Rogers Fire Protection $245.00 which covered invoice numbers 10327 and 10328. By Fax dated May 15, 1997, Petitioner advised Rogers Fire Protection that Star Foods, Winter Haven, Florida; Chings Place, Lakeland, Florida; Touchdown Eddie's, Lakeland, Florida; Silver Ring Café, Lakeland, Florida; Dove's Nest, Lakeland, Florida; Brothers Bar-B-Q. Lakeland, Florida; and Dockside Lounge, Lakeland, Florida were systems to be serviced and invoiced to Canady Fire Equipment Co. Additionally, Petitioner advised Rogers that each of the above customers had been advised that Petitioner was sending someone to service their systems and that Rogers was to remind the customer that he was doing the work for Petitioner. Petitioner also advised Rogers that Petitioner would invoice the customers for the work. There is insufficient evidence to show that Petitioner supervised or trained employees or Richard Dawley on the servicing or repair of portable fire extinguishers during the time that he was not licensed by the Department, notwithstanding the testimony of Richard Dawley and Daniel Dawley to the contrary of which I find lacks credibility. There is insufficient evidence to show that Petitioner allowed the unlicensed employees of Canady Co to tag fire extinguishers or used another company to certify fire extinguishers, notwithstanding the testimony of Richard Dawley and Daniel Dawley to the contrary of which I find lacks credibility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Insurance enter a final order denying Petitioner's application for the issuance of Class 0701 and Class 0704 Fire Equipment Dealer license and Class 0901 and Class 0904 Fire Equipment permit. DONE AND ENTERED this 30th day of September, 1999, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1999. COPIES FURNISHED: Bill Nelson State Treasurer and Insurance Commissioner The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Daniel Y. Sumner, General Counsel Department of Insurance and Treasurer The Capitol, Lower Level 26 Tallahassee, Florida 32399-00300 Robert Paine, Esquire 914 South Florida Avenue Lakeland, Florida 33803 Mechele R. McBride, Esquire Department of Insurance and Treasurer 200 East Gaines Street Tallahassee, Florida 32399-0333
The Issue The issue is whether Respondent, Pepsico, Inc. ("Pepsi") committed unlawful employment practices contrary to section 760.10, Florida Statutes (2012),1/ by discriminating against Petitioner based on his race, color, or national origin by discharging Petitioner from his employment.
Findings Of Fact Pepsi is an employer as that term is defined in subsection 760.02(7), Florida Statutes. Pepsi manufactures and distributes snack food and beverages throughout the United States. Petitioner, a black male originally from Africa,3/ was employed by Pepsi as a delivery driver in Jacksonville from June 15, 2004, until February 21, 2012, when Pepsi terminated his employment. At the time he was hired, Petitioner received a copy of Pepsi Bottling Group's "Employee Handbook" and "General Rules of Conduct." Petitioner signed acknowledgements of receipt of each of these documents on June 15, 2004. The General Rules of Conduct provides an express list of actions that are "prohibited and may result in immediate termination," including "misrepresentation of facts or falsification of Company records or other documents." As a delivery driver, Petitioner was responsible for delivering Pepsi products to designated customers on a route provided to him by Pepsi. During the time of Petitioner's employment, all driver delivery routes were dispatched from Orlando. There were approximately 17 routes in the Jacksonville area. The routes were established and modified according to number of stops, number of cases of product delivered, and the time it took to complete the route. Because the drivers were paid on a commission basis, the dispatchers did what they could to keep the routes roughly equal in terms of stops, cases, and time. Local Jacksonville supervisors consulted with the Orlando dispatchers but had no control over route assignments. Delivery drivers must comply with U.S. Department of Transportation ("DOT) hours of service rules. See 49 C.F.R. part 395. Under the rules, drivers such as Petitioner are allowed to work up to 14 hours in one day and up to 60 hours in a seven-day period. The DOT rules are reviewed with the delivery drivers. In 2008, Petitioner signed an acknowledgement that he was subject to the DOT hours of service rules. Delivery drivers for Pepsi are responsible for clocking in and out of work each day by machine to accurately record their hours of work. They must also manually fill out and submit a DOT-prescribed grid log of their working and driving time. Drivers are also required to submit a hand-written time sheet each week. The driver is not required to manually fill in the time on the time sheet for days when the driver clocked in and out by machine. The driver must manually record his time on the time sheet for those days when the driver failed to clock in or out for some reason. On Friday, February 3, 2012, Petitioner forgot to clock in when he began his route in the morning. Delivery drivers carry handheld computers that contain all of their route information and that record the time at which the driver generates an invoice to the customer at each location on the route. The driver is not able to tamper with or alter the information contained in the handheld computer. According to Petitioner's computer, his last stop on February 3, 2012, was a Pizza Hut on University Boulevard South. The invoice generated by Petitioner indicated that he made the Pizza Hut delivery at 4:40 p.m. After completing the delivery at Pizza Hut, Petitioner returned to the Pepsi facility, where he checked in at the gate at 5:14 p.m. Petitioner then unloaded his truck, performed a post-delivery inspection, and entered the building to do a final accounting of the money he collected on his route that day. Records indicate that Petitioner generated a final settlement report for the day at 5:27 p.m. After generating his settlement report, Petitioner submitted his deposit and weekly paperwork in delivery supervisor Rich Herrmann's office.4/ The weekly paperwork included Petitioner's handwritten time sheet for the week of January 30 through February 3, 2012, and his DOT grid log. Because he had failed to clock in on the morning of February 3, Petitioner wrote both his time in and time out for the day on his time sheet. Petitioner's handwritten time sheet indicated that he began work at 4:30 a.m. and ended work at 4:30 p.m. Petitioner's DOT grid log also indicated that he worked twelve hours on February 3 and 60 hours for the week of January 30 through February 3. Delivery supervisor Christopher Quindoza testified that he was in his office working when he noticed Petitioner passing by his open door after dropping off his time sheet at Mr. Herrmann's office. Mr. Quindoza testified that it is customary in the office for the supervisor to work on time sheets on Friday afternoon so that the materials will be ready for submission on Monday morning. He had already picked up several time sheets and was working on them when he saw Petitioner pass. Mr. Quindoza went to Mr. Herrmann's office to retrieve Petitioner's time sheet. Mr. Quindoza saw that Petitioner's time sheet stated that he had worked until 4:30 p.m. He knew that this was incorrect. He stepped into the settlement room to confer with a few drivers there as to the time, then crossed out "4:30" on Petitioner's time sheet and wrote in "6:10," the time when Petitioner actually stopped work. He initialed the amendment and then signed the time sheet as Petitioner's approving supervisor. Mr. Quindoza testified that he amended the time sheet to ensure that Petitioner would be paid correctly and so that it would be correct for DOT reporting. If the time had been calculated as Petitioner submitted it, he would have been recorded as having worked exactly 60 hours for the week. Petitioner in fact worked more than 14 hours on February 3, 2012, which pushed his time for the week over the 60-hour limit imposed by DOT rule. Mr. Quindoza reported the discrepancies to his supervisor, Sales Operations Manager Kyle Lowens, who in turn notified Human Resources Manager Alex Pullen. Guided by the General Rules of Conduct and company precedent, Mr. Lowens instructed Mr. Quindoza to write up the incident as a termination of Petitioner's employment, pending approval from the human resources department. A meeting was convened on February 10, 2012. Present at the meeting were Petitioner, Mr. Quindoza, Mr. Lowens, and Mr. Pullen. Petitioner was presented with the incorrect time sheet and DOT grid log he submitted and was asked to explain why he had falsified his time records. Petitioner admitted that he did so to avoid exceeding the 60-hour DOT limit.5/ In 2007, Petitioner had received a written warning for exceeding the DOT guidelines when he worked 62.25 hours in one week. At the February 10 meeting, it was explained to Petitioner that if he had submitted his time correctly, he would have merely received another written warning or a verbal coaching for exceeding the 60-hour requirement. Petitioner was told that submitting fraudulent documents was a much more serious offense. On February 13, 2012, Petitioner was notified that he was suspended pending further investigation by the Pepsi human resources department. On February 21, 2012, Petitioner's employment was terminated for violation of the company's Rules of Conduct. At the hearing, Petitioner contended that he simply made a mistake on his time sheet and should have been allowed to correct it. He claimed that other drivers make mistakes "all the time," and that the practice had always been to give them a blank time sheet and tell them to fill it out correctly. Mr. Lowens has worked 18 years for Pepsi and has been sales operations manager for the last three. He testified that he was unaware of drivers frequently submitting incorrect time sheets and that it has never been the practice of Pepsi to do anything other than terminate employees for turning in false documents. He personally knew of two employees besides Petitioner who had been fired for submitting false time sheets. One of the fired employees was a black male, the other a white male. Petitioner's testimony regarding company practices as to errors on submitted time sheets was not credible. Mr. Lowens' testimony on that point is credited. At the hearing, Petitioner testified that Pepsi had long wanted to fire him. He claimed that a supervisor wanted to terminate him so that his route could be given to a white driver. No evidence of this conspiracy was presented beyond Petitioner's bare assertion. There was no credible evidence that Pepsi had been seeking a reason to fire Petitioner. To the contrary, in December 2010, a customer complained to Pepsi about Petitioner and requested that he not be allowed to deliver products to her place of business again. The customer complained that Petitioner had indulged in a long, loud rant against the Bush administration and the Iraq war in the presence of her own customers. Mr. Lowens testified that it is a terminable offense for a delivery driver to be banned from a customer's premises. However, he decided to first visit with the customer and try to persuade her to allow Petitioner back onto the account. Mr. Lowens and Mr. Herrmann met with the customer, who acknowledged that Petitioner did a good job and agreed to let Petitioner return to her premises provided he stop talking politics. The fact that Mr. Lowens went out of his way to save Petitioner's job indicates there was no plan afoot to terminate his employment. Petitioner claimed that Pepsi drove down his commissions by giving him more stops with fewer cases of products on his route. Also, for some reason, Pepsi did not want him to attend college, and gave him more stops to prevent him from getting off work early to attend class. He claimed that Pepsi would allow white employees to take off early for their classes. Again, Petitioner's bare assertions were unsupported by other testimony or documentary evidence. Petitioner never complained of discriminatory treatment or harassment to any supervisor at Pepsi. Petitioner offered no credible evidence disputing the legitimate, non-discriminatory reasons given by Pepsi for his termination. He simply asserted that he made a "mistake" on his time sheet that he should have been allowed to correct. The weight of the evidence is consistent with the finding that Petitioner's false time sheet was not a "mistake" but an intentional act, an attempt to dodge the disciplinary consequences of having worked more than 60 hours in one week.6/ Petitioner offered no credible evidence that Pepsi's stated reasons for his termination were a pretext for race discrimination, national origin discrimination, or discrimination because of Petitioner's color. Petitioner offered no credible evidence that Pepsi discriminated against him because of his race, color or national origin in violation of section 760.10, Florida Statutes.
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 Pepsico, Inc. did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 2nd day of April, 2013, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 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 April, 2013.
The Issue The issue to be determined in this case is whether Respondent has committed an unlawful employment practice in violation of Chapter 760, Florida Statutes, and if so, what remedy should be ordered.
Findings Of Fact Petitioners Diana Sexton and Freddie Sexton were carriage drivers for Gam-San, Inc., which was known by the fictitious name of St. Augustine Transfer Company. They conducted ghost tours and history tours in the historic district of St. Augustine. No evidence was presented regarding Mr. Sexton's race or either Petitioners' age. At the time of the incident giving rise to this proceeding, Diana Sexton had worked for Respondent for approximately one and a half years. Freddie Sexton has worked for the company in the same type of position for a shorter period of time. Petitioners are married to each other. Petitioners drove carriages pulled by horses, and gave tours to the public. They sometimes stayed overnight at the barn owned by Respondent in order to water the horses. They did not have permission to stay at the barn, but Ms. Sexton considered it to be a benefit in exchange for watering the horses at night. Diana Sexton acknowledged that Petitioners had been informed that they were expected to find another place to stay before the end of the "Nights of Lights" (although no explanation was provided regarding what time frame this entailed), but denied that Petitioners were ever told to leave or not to stay at the barn. Employees hired by St. Augustine Transfer were usually hired as carriage drivers, stall people, or barn managers. Both stall people and barn managers were paid minimum wage. Carriage drivers, like waitresses, receive tips from customers as part of their pay. Generally, with tips, drivers are the highest paid employees of the business. It would not be considered a promotion to go from a position as driver to either stall person or barn manager. Petitioners did not work on December 25, 2007. They apparently spent the night at the barn the night before and left the work premises in the morning. At some time in the evening, Petitioners returned to the business premises, ostensibly to retrieve some of their belongings that were in the barn. While they were present on the property, the police came, indicating that they had received a call complaining of a disturbance. Petitioners were believed to be the cause of the disturbance and were asked to leave. Petitioners refused to leave without speaking to Stuart Gamsey, and denied creating any type of disturbance. Eventually they left the premises at the insistence of the police. They claim they were not allowed to return to retrieve their belongings for several days, and were discharged from their jobs. The evidence is in conflict over what, if anything, was occurring on the premises of the business the evening of December 25, 2007. However, the more credible admissible evidence indicates that at least two calls were made to Stuart Gamsey, the then owner of St. Augustine Transfer Co. The calls involved complaints about Petitioners' drinking, yelling, and generally creating a disturbance on the property. One call was made by police officers on the scene. Mr. Gamsey had not given Petitioners, or any other employees, permission to stay on the premises when not working. He could not say whether there was actually a disturbance on the premises, but confirmed that in response to the calls he received, he asked the police to do "whatever it took" to get Petitioners to leave the property. His goal was simply to end whatever disturbance might be occurring. Petitioners' employment was terminated by St. Augustine Transfer. It is not entirely clear from the evidence presented whether the December 25, 2007, incident formed the basis for the termination or whether other factors were involved. It is clear, however, that Petitioners resisted leaving the premises at a time when they did not have permission to be there. Stuart Gamsey sold the business in the summer of 2008. He currently has no responsibility for the hiring practices of St. Augustine Transfer Co. or its successor. No competent, credible evidence was presented indicating that any other employee was allowed to stay on the premises outside of work hours. Petitioners also claim that Mr. Sexton was discriminated against based upon his marital status because someone, presumably another employee, left K-Y jelly in his carriage, and on one occasion, a patron tipped another employee to make sure she could ride in his carriage and engage in inappropriate behavior designed to seduce him. However, no competent, credible evidence was presented to show who placed the K-Y jelly in Mr. Sexton's carriage or for what purpose, if any, it was left. Likewise, no competent, credible evidence was presented to support the allegation that placing the patron in Mr. Sexton's carriage was for any discriminatory purpose. No evidence was presented regarding any other proceedings of any type involving Petitioners and Respondent.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing Petitioners' Petitions for Relief and denying Respondent's Motion for Attorney's Fees. DONE AND ENTERED this 20th day of January, 2009, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 20th day of January, 2009. COPIES FURNISHED: Freddie J. Sexton Diana J. Sexton Post Office Box 105 St. Augustine, Florida 32084 Regina Sargeant, Esquire 2820 US 1 South, Suite F St. Augustine, Florida 32086 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact The Marion County Board of County Commissioners ("Respondent" hereinafter) is a public employer within the meaning of Florida Statutes Section 447.203(2). Joseph Fortier was formerly an employee of the Respondent and a public employee within the meaning of Florida Statutes Section 447.203(3). Robert W. Merklein was formerly an employee of the Respondent, and a public employee within the meaning of Florida Statutes Section 447.203(3). The Charging Party is an employee organization within the meaning of Florida Statutes Section 447.203(10). Joseph Fortier was hired by the Respondent on January 27, 1975, to work as a truck driver in the Respondent's road department. Fortier's supervisors were Harmon Hall, the Respondent's Road and Bridge Supervisor; and Charles M. Brakefield, the Respondent's Director of Public Works. During the time that he was employed by the Respondent Fortier demonstrated that he was a capable truck driver; however, several incidents came to his supervisors' attention which reflected upon Fortier's judgment. During the Spring of 1975, another truck driver, Roy Bennett, reported to Hall that he was driving his truck ahead of Fortier who was also driving a truck. Fortier was following so close behind Bennett that Bennett feared an accident and pulled off the road in order to allow Fortier to pass. In July, 1975, the Department's receptionist, Betty Townsend, received a phone call from a woman who reported that two of the Respondent's trucks had been observed racing on a busy street. From the description of the trucks Hall determined that Fortier had been driving one of them. Hall himself had observed Fortier tailgating other trucks, and had received other reports which indicated that Fortier may have been driving his vehicle recklessly. On September 9, 1975, Fortier was involved in an accident. The truck he was driving collided into the rear of a car at an intersection in Ocala. The police charged Fortier with following too closely, and after pleading not guilty he was adjudicated guilty of that charge. Harmon Hall conducted an investigation of the accident on behalf of the Respondent. Fortier had contended that the brakes on his truck failed and that the truck was overloaded. These contentions were not born out by the investigation. A similar load to that which Fortier was carrying on the date of the accident was placed on the truck, and it was found to be within the vehicle's weight limitations. Furthermore, the vehicle's brakes performed properly while it was fully loaded. It is possible that the tests conducted by the Respondent were inaccurate. The load on Fortier's truck could have been heavier than the test load. Efforts were made to duplicate the load, however, and Hall and Brakefield were justified in believing that Fortier may have been operating the vehicle in a careless manner when the accident occurred. Late in the afternoon on Friday, September 19, Brakefield instructed Hall to summon Fortier to Brakefield's office. It was Brakefield's intention to discuss the unfavorable reports that he had received respecting Fortier's accident, and the various other reported incidents of reckless driving that he had received respecting Fortier. There was considerable conflict in the testimony respecting when Hall confronted Fortier. Quitting time was 4:30 p.m. At the latest Hall approached Fortier at 4:28 p.m. and told him that Brakefield wanted to see him. Fortier adamantly refused to go to Brakefield's office, saying that it was quitting time, and that his time was his own. Fortier told Hall to go to hell. Hall asked Fortier if that meant he was resigning and Fortier told him that it did not. Hall told Fortier that he was no longer employed with the Respondent. On Monday, September 22, the next working day following this confrontation, Fortier reported to work. Hall approached Fortier and told him that he was no longer employed. Fortier asked him why, and Hall reminded him of the confrontation of the previous Friday. Joseph Fortier was discharged from his employment with the Respondent as a result of his refusal to meet with Brakefield on September 19, 1975. Both Brakefield and Hall were aware that Fortier was active in a union organizing campaign. There was no evidence offered at the hearing from which it could be concluded that Fortier's union activities motivated Hall and Brakefield in discharging him. The Respondent has had other truck drivers who have had accidents that were their faults, and who were not discharged; however, neither Brakefield nor Hall had even, prior to September 19, been confronted with a refusal to obey an order. It was this refusal that motivated them to discharge Fortier. Robert Merklein was hired by the Respondent during September, 1974, to work as a truck driver in the Respondent's Road Department. Merklein was initially assigned to drive a large dump truck, but he was not able to operate that vehicle, and he was assigned to a smaller dump truck. In May, 1975, Merklein was assigned to haul lime rock. His truck got stuck in loose sand. He tried to get the truck out of the sand by applying power, which resulted in the drive shaft breaking. In October, 1975, Merklein was assigned to dump a load of lime rock into an area where there was soft sand. He got stuck in the sand. He tried to get the truck out of the sand by shifting into the lower gears and spinning the wheels. This made the truck rock back and forth; however, the axle snapped. Subsequent to this accident Harmon Hall reprimanded Merklein. Hall told Merklein "this one is on me, but the next one is on you." Hall instructed Merklein that if he got stuck in soft sand again he should wait for assistance and not apply power to the truck. Approximately one month later Merklein again got stuck in the sand. Again he tried to extricate Merklein again got stuck in the sand. Again he tried to extricate his truck by applying power in the lower gears and rocking the truck back and forth. The truck was stuck up to the axles, and the drive shaft broke. Shortly after this incident Merklein told Hall that he had made a mistake in trying to get the truck out of the sand rather than just leaving it. Investigation of the damaged truck, and the drive shaft confirmed that too much power had been applied to the vehicle while it was struck in the sand. On November 19, 1975, Merklein was called into Brakefiled's office and informed that he was discharged. Other drivers had broken drive shafts, and had been at fault, but were not terminated. Only two other drivers had had as much difficulty with drive shafts as Merklein had, and each of these drivers resigned in anticipation of being terminated. Robert Merklein was discharged from his employment with the Respondent because of driving errors that he had made which resulted in expensive damage to the Respondent's vehicles. Merklein's supervisors were aware that he was engaged in a union organizing campaign. Merklein's union activities formed no part in the decision to discharge him.
