The Issue Whether Respondent committed the violation alleged in Petitioner’s Public Accommodations Complaint of Discrimination filed by Petitioner on September 6, 2007, and if so, what relief should be provided.
Findings Of Fact Petitioner is an African-American woman living in the Jacksonville area. She is married to Wayne Benedict and is the mother of Bryan Benedict. On July 23, 2007, Petitioner went to Wal-Mart to do the family’s grocery shopping. Her son, Bryan, and his friend, Adarious Pickens, also African-American, were with her. When she arrived at Wal-Mart, she proceeded to the deli counter, where she usually begins her shopping trip. On the day in question, the numbering system in the deli was broken. When operating, the numbering system dispenses tickets with numbers on them which determine which customers arrived first and who receives service first. At the time Petitioner approached the deli counter, three Caucasian customers were present and waiting for service. After the three Caucasian customers were served, another Caucasian customer approached the deli counter and was waited upon. Because Petitioner believed that the last Caucasian customer had been served out of turn, Petitioner left the deli area to find a manager. After learning that the manager had gone for the day, she was directed to a person who was “team lead.” She complained to the team lead who apologized to Petitioner. After speaking to the team lead, Petitioner then returned to the deli department and asked one of the deli associates, Jeanne Thornton, to identify the other deli associate. Ms. Thornton identified the other associate as “Trish.” Petitioner again left the deli area. At the time of this incident, Ms. Thornton and Trish were the only two Wal-Mart associates were working at the deli counter. Petitioner acknowledges that the deli appeared to be short-staffed, as she typically sees three or four associates working behind the deli counter. Several minutes later, Petitioner returned to the deli counter and requested service. Prior to this time, Petitioner waited for service, which was not forthcoming, but did not verbally request service. Ms. Thornton then waited on Petitioner, who left the deli area after she was given the food items she requested. Ms. Thornton noticed that Petitioner was angry and upset. The deli counter in question is at least 30 feet long. The deli contains both a cold food section and a hot food section. In addition, there is a lower shelf where items are for sale, which do not require the assistance of deli associates. On any given day, associates are assigned to work in either the hot or cold food sections. At the time Petitioner approached the deli counter, Trish was assigned to the deli’s hot food section, and Ms. Thornton was in the midst of filling a large cold food order. When a deli associate is assigned to cook food in the deli department’s hot food section, it is that person’s responsibility to perform duties related to the hot food. According to Ms. Thornton, “when the food comes up, it has to be temped, logged, and put in the hot bar.” These duties of an associate assigned to the hot food section of the deli take priority over helping customers. If the hot food is not properly temped, logged, and put in the hot bar, the hot food must be thrown away. On those occasions when the numbering system is not working, the deli associates rely on customers to tell them who should be waited on next. This is, in part, because the associates often turn their backs to the customers at the deli counter while they are cutting meat, etc. Food items sold from the deli counter are not intended for on-site consumption. Petitioner did not intend to consume the items purchased from the deli on the premises of Wal-Mart. No employee of Respondent made any racially derogatory or racially related comments to Petitioner. Other than Petitioner’s firm belief that she was overlooked in favor of Caucasian customers, no evidence was presented that the actions of Respondent’s associates were racially motivated.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered that dismisses Petitioner's claim of public accommodation discrimination. DONE AND ENTERED this 19th day of November, 2008, in Tallahassee, Leon County, Florida. Barbara J. Staros 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 19th day of November, 2008.
The Issue The issue is whether Respondent, Steak n Shake Restaurant (“Steak n Shake”), violated section 760.08, Florida Statutes,1/ by discriminating against Petitioner based on his race.
Findings Of Fact Petitioner is a white male who lives in Ormond Beach, Florida. Petitioner testified that he had been a regular customer of the Steak n Shake at 120 Williamson Boulevard in Ormond Beach for about four years. Petitioner entered the restaurant on March 30, 2015, and was seated by server Amanda Hobbs, a black female. Petitioner testified that neither Ms. Hobbs nor any other server would wait on him. He saw Ms. Hobbs take the order of a black couple who came into the restaurant after he did. Petitioner complained to the manager, Mark Regoli, a male of mixed race. Petitioner testified that he told Mr. Regoli that the service had been poor for several months, and complained about not being served on this occasion. Petitioner stated that Mr. Regoli accused him of being “loud,” but explained that he is hearing-impaired and may sometimes speak in a loud voice. Petitioner testified that Mr. Regoli became angry, “got up in my face,” and blocked Petitioner from leaving the restaurant. Petitioner testified that he left the restaurant. It was only later that he learned that the police had been called by someone at Steak n Shake. Counsel for Steak n Shake did not cross-examine Petitioner. Steak n Shake called no witnesses. Steak n Shake’s documentary evidence consisted of hearsay witness statements that cannot be considered in the absence of admissible evidence that the hearsay may be said to supplement or explain. Therefore, Petitioner’s narrative is the only sworn, admissible evidence before this tribunal. Though Petitioner’s testimony was clearly a self-serving version of the events that occurred at the Steak n Shake on March 30, 2015, it is the only version of events that may be considered under the rules of evidence. Petitioner’s testimony lacks complete credibility only when one compares it with the excluded witness statements of the Steak n Shake employees. If one considers Petitioner’s testimony standing alone, as this tribunal must, the worst one can say is that it is one-sided and incomplete. This state of affairs is not the fault of Petitioner, who was under no obligation to tell anything other than his side of the story. Petitioner represented himself and so is not entitled to attorney’s fees. Petitioner may be entitled to an award of costs.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order: Finding that Respondent, Steak n Shake Restaurant, committed an act of public accommodations discrimination against Petitioner, Virgil W. Phillips; Prohibiting any future acts of discrimination by Respondent; and Awarding Petitioner his costs. DONE AND ENTERED this 29th day of April, 2016, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 2016.
The Issue The issue in this case is whether Respondent discriminated against Petitioner on the basis of race, national origin, or disability at Respondent’s place of public accommodation.
Findings Of Fact Respondent is a McDonald’s franchisee operating six McDonald’s restaurants in the Orlando area. At issue in this case is the restaurant referred to as the “Lockhart” store. The Lockhart McDonald’s is located on Orange Blossom Trail in Orlando, in a high-crime, low-income area. This McDonald’s has a history of problems with persons using the restaurant for purposes other than purchasing food and drink there to consume onsite. There has been a wide range of “other purposes” in the Lockhart McDonald’s history: sitting at the dining tables without ordering any food or drink; panhandling (asking customers if they have a spare dollar); bringing in drinks purchased elsewhere, topped off with refills stolen from the McDonald’s drink station; soliciting restaurant customers for prostitution; and using the bathrooms to ingest or inject illegal drugs, leaving behind used hypodermic needles and other paraphernalia. On two separate occasions, people overdosed on heroin in the bathrooms. To combat these problems, which hurt business, Mr. Vidler enlisted the help of his brother, an Orange County Deputy Sheriff, who conducted drug and prostitution stings to help clean up the restaurant. In addition, the Lockhart McDonald’s adopted a no-loitering policy, a no-solicitation policy, and a policy requiring that only food and drink purchased there may be consumed there. Notices of these policies are prominently displayed on signs at the restaurant. Respondent’s witnesses testified, credibly and consistently, that these policies are enforced uniformly and strictly, with the goal being to avoid the problems they have had with persons improperly using the restaurant’s facilities. As part of the enforcement procedure, if someone is observed seated at a table without any apparent McDonald’s food or drink items, after a few minutes a manager or other staff member will approach that person and politely inquire whether the person intends to make a purchase. Petitioner is a black woman who has been a customer at the Lockhart McDonald’s. She and her boyfriend, who is not black,2/ have gone there on occasion, made purchases, and enjoyed their meals, without incident. On the day in question, December 28, 2015, Petitioner and her boyfriend went to the Lockhart McDonald’s for breakfast. The restaurant was not very busy or crowded when they arrived, with perhaps one other customer in line and another customer seated at a table in the separate dining area. Petitioner went to the dining area, while her boyfriend went to the counter to place their order. The restaurant is fairly large, with physical and visual separation of the area where customers wait in line to place orders, pick up food, and get drinks at the drink station from the area where customers can go to sit at tables to consume their purchases. Behind the ordering counter on the employee side, there is a door used by employees to enter the dining area. Through a small window at the top of the door, a customer waiting in line at the counter might be able to glimpse a small portion of the dining area, but otherwise would not be able to see or hear what is going on in the dining area. Petitioner took a seat at a table by an outside window. She propped both of her feet up on the Corian window ledge and sat there gazing out the window. Eric Vidler, the operations manager of Respondent’s six restaurants, was in the Lockhart McDonald’s that morning. After Petitioner had taken her place by the window, Mr. Vidler and the Lockhart restaurant manager, Adam Allegroe, entered the dining area together to conduct a cleanliness walk-through. They saw Petitioner, taking note of her unusual positioning, with feet propped up on the windowsill,3/ staring out the window. They also noted that there was no sign of any McDonald’s food or drink purchases on the table or in her hands. After a few minutes, consistent with the restaurant’s policies and procedures, Mr. Vidler approached Petitioner and politely inquired whether she intended to make a purchase. She did not answer him.4/ Mr. Vidler and Mr. Allegroe testified that usually, when they make such an inquiry, the person will respond, but sometimes they do not respond. Since their goal is not to make a scene, offend, or embarrass anyone, under these circumstances they will usually walk away for a short period of time. If the person had no legitimate business there, then the person often will disappear at that point. Mr. Vidler and Mr. Allegroe retreated to the men’s and women’s bathrooms, where they spent three to five minutes conducting their cleanliness inspection. When Mr. Vidler and Mr. Allegroe returned to the dining area, Petitioner was still seated, positioned the same way, with her feet still propped up on the windowsill. She was still staring out the window, and still had no McDonald’s purchases on the table or in her hands. Mr. Vidler went back up to Petitioner, and following up on his prior statement to her, this time he told her, “Ma’am, if you are not going to be making a purchase today, then you are loitering and I need to ask you to leave.” Mr. Vidler testified credibly that this is how he always handles the second approach when the person does not answer his first inquiry. The message, though direct, was delivered in a calm tone. Mr. Vidler did not yell at Petitioner. He did not threaten to call the police or have her arrested. This time, Petitioner responded. She got up, flung a chair in Mr. Vidler’s direction with sufficient force so that the chair traveled some distance with all four chair legs four to six inches off the ground, until it fell against and partially on a half-wall that set off that portion of the dining area.5/ Petitioner also responded verbally, using an elevated voice to express her anger. Mr. Vidler said that she cursed, using a four-letter word. Although more than one year later he did not recall exactly which curse word or words she uttered, he did recall that her words were not nice. Mr. Allegroe corroborated Mr. Vidler’s recollection, testifying that Petitioner stood up, “slung” the chair in their direction, and “started speaking profanity.” (Tr. 83). She then left the restaurant. The testimony of Mr. Vidler and Mr. Allegroe describing their two encounters with Petitioner was corroborated by Shahanna Owensby, a guest services department manager for the Lockhart McDonald’s. Ms. Owensby was seated at a table in the dining area, working on pricing and tagging merchandise, when she noticed Petitioner. She observed Mr. Vidler and Mr. Allegroe conducting their cleanliness walk-through. She observed Mr. Vidler’s initial approach to Petitioner. She heard Mr. Vidler ask Petitioner if she was going to be making a purchase, and confirmed that Petitioner did not respond. She saw Mr. Vidler and Mr. Allegroe keep walking after that, back in the direction of the bathrooms. She observed Mr. Vidler approach Petitioner a second time, estimated at four to eight minutes later. She heard him tell Petitioner that if she was not making a purchase, he needed to ask her to leave. She saw Petitioner stand up, pick up a chair, and fling, throw, or toss it: “It was up in the air and it was off the ground, by her hand.” (Tr. 98). By the time of Petitioner’s stormy exit from the restaurant, a family--a woman with some younger children--had entered the dining area and was seated near Ms. Owensby. After Petitioner left, Ms. Owensby apologized to the family, who had witnessed the scene and had been exposed to the profanity used by Petitioner within their hearing range. After Petitioner left the restaurant, her boyfriend walked into the dining area with the food he had purchased. The boyfriend described what happened next: Jennifer, my wife, was not sitting at the table. I thought she was at the--in the bathroom. I put my tray on the opposite side of the table. I was sitting to the left, I guess, or the right. I was sitting on the other side. And that’s when I saw Mr. Vidler with a surprised face, you know, like wow-- Q. [Mr. Millan]. Uh-huh. A. --what happened here. So he approached me and he said that he didn’t know--that he didn’t know. And I asked him that he didn’t know what. He said that he didn’t know that she was my wife, that she was there with me. (Tr. 108). At that point, Petitioner (whom Robert Millan clarified is his girlfriend, not his wife) knocked on the restaurant window, signaling for him to come outside. He went out to her and asked what happened. She told him that that person [Mr. Vidler] offended her. When asked how he offended her, Robert Milan said that Petitioner responded as follows: She said he told her that what was she doing there, if she was going to buy food or if she was just going to sit there. And those were the same words that he told me that he told her.[6/] And then when I came back inside the store, I went and I asked him, you know, to explain to me what was going on. And he said that. You know, that--he said that he didn’t know that she was there with me. And he apologized to me. He asked me if he -- if he could go apologize to my wife, Jennifer. And I really told him that I think that was beyond apology because she was like, you know, angry. So he said, well here, I give you my card and you can call the office and see what, you know, we can do about it. (Tr. 109-110). For some unexplained reason (perhaps a mistake filling the order or perhaps a request for customized food), Petitioner’s boyfriend waited ten minutes at the ordering counter, where he was not able to see or hear the encounters in the separate dining area. He was not even aware that Petitioner had stormed out in anger, although he confirmed that she was, indeed, angry when he went outside. Robert Millan did call Respondent’s office, as suggested by Mr. Vidler, and spoke with the owner of the franchise. The owner also offered to apologize to Petitioner, but Robert Millan did not think she wanted to speak to anyone. The owner then offered a $50 gift card. The boyfriend said that he would ask Petitioner, but she refused the gesture. No evidence was presented of any racial statements made directly or indirectly to Petitioner, or of any racial overtones to any of the statements made directly or indirectly to Petitioner. The circumstantial evidence presented does not support an inference that Respondent intentionally discriminated against Petitioner based on her race. Instead, all of the circumstantial evidence supports an inference that Respondent did not discriminate against Petitioner on the basis of her race. Respondent has a no-discrimination, no-harassment policy that is enforced as to its employees, customers and potential customers. The Lockhart McDonald’s has a very diverse staff. A comparison of the number of restaurant employees who are members of the classes of white, black, or Hispanic, the largest category represented by the restaurant’s employees is black; the next- largest category is Hispanic; white employees are in the minority. As to gender, female employees outnumber male employees. Manager positions are spread among white and black males, and white, black, and Hispanic females. The operations manager in charge of Respondent’s six restaurants, Mr. Vidler, is a white male as is the restaurant’s manager, Mr. Allegroe. The other employee testifying at hearing, Ms. Owensby, is the restaurant’s guest services manager and she is a black female. The diversity of the restaurant’s staff is circumstantial evidence, though not particularly weighty evidence, suggesting a general absence of intent to discriminate on the basis of race.7/ More compelling circumstantial evidence was provided by Mr. Vidler, who is the individual accused of discriminating against Petitioner because she is black. Mr. Vidler testified with great sincerity that Petitioner’s accusation is not only unfounded, but it hits a particular sore spot with him. Although he is a white male, his daughter is half-black. He has experienced the pain of discrimination based on race, with unkind questions, or worse, directed to him or to his daughter, because their races do not match. This personal fact shared by Mr. Vidler is compelling circumstantial evidence giving rise to a inference that he would not intentionally discriminate against Petitioner based on her race. The evidence strongly supports a finding, and it is so found, that Mr. Vidler’s December 28, 2015, encounters with Petitioner were the reasonable implementation of Respondent’s reasonable policies for its Lockhart restaurant to ensure that persons using the restaurant’s facilities are there for the purpose of purchasing and consuming food and drink. The credible, consistent testimony of Mr. Vidler and Respondent’s other employees who testified is that the no-loitering policy is applied uniformly to all persons, regardless of race, nationality, gender, disability, or any other classification, who are not apparently customers in that they have no McDonald’s food or drink purchases. These persons are asked whether they intend to make a purchase, and if they do not respond in some fashion that they are indeed there to purchase food and/or drink, they are told that if they are not there to make a purchase, they are loitering and will have to be asked to leave.8/ Petitioner has only herself to blame for not making clear to Mr. Vidler that she was there with her boyfriend, who was in line at the counter ordering their breakfast. That would have ended the matter. That Mr. Vidler only took the action he did because he did not know Petitioner was there with her boyfriend was perhaps most convincingly established by Robert Millan’s testimony describing the utter surprise on Mr. Vidler’s face when he realized that Petitioner had, in fact, been waiting for someone who had been purchasing food. The undersigned finds as a matter of ultimate fact that Respondent did not intentionally discriminate against Petitioner based on her race (the only protected class proven at hearing) or any other classification that might have applied to Petitioner but was not proven at hearing.9/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Petitioner Jennifer M. Foster-Garvey. DONE AND ENTERED this 11th day of May, 2017, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 2017.
The Issue The issue in this case is whether Respondent, a restaurateur, unlawfully discriminated against Petitioners, who are African-Americans, by refusing to serve them based upon race.
Findings Of Fact On or about July 7, 2001, Petitioners Veronica King and Walter King (the “Kings”), who were then on vacation in Miami Beach, Florida, decided to eat dinner at La Playa de Varadero Restaurant (“La Playa”), a Cuban restaurant near their hotel.2 They entered the restaurant some time between 3:00 and 5:00 p.m. Though the dining room was full of patrons, there were a few empty tables. The Kings seated themselves. The Kings reviewed the menus that were on the table and conversed with one another. They waited for a server, but none came promptly. After waiting about 10 or 15 minutes, Mrs. King signaled a waitress, who came to their table and took their drink and food orders.3 The waitress brought the Kings their drinks without delay. The food, however, did not appear, and the Kings grew increasingly impatient and irritated. It seemed to the Kings, who are African-Americans, that other customers——none of whom was black——were being served ahead of them.4 After about a half an hour or so, having yet to be brought food, the Kings decided to leave without eating. On the way out of the restaurant, the Kings paid the cashier for their drinks. They complained to the cashier about the slow service and expressed to her their dissatisfaction at having waited so long, and in vain, for their meals.5 The Kings perceived that the cashier and other employees, including their waitress who was standing within earshot, were indifferent to the Kings’ distress. Ultimate Factual Determinations At the material time, La Playa was a “public food service establishment” within the reach of Section 509.092, Florida Statutes, and hence subject to liability for unlawful discrimination in violation of the Florida Civil Rights Act. The greater weight of the evidence fails to establish that La Playa refused to serve, or otherwise unlawfully discriminated against, the Kings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order dismissing the Kings’ Petition for Relief. DONE AND ENTERED this 19th day of February, 2003, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 19th day of February, 2003.
The Issue Whether, Respondent, Asurion Services, LLC (“Respondent” or “Asurion”), engaged in unlawful employment practices as alleged by Petitioner, Annemarie Wolny (“Petitioner”), in violation of the Florida Civil Rights Act of 1992 (“FCRA”), as set forth in section 760.10, Florida Statutes (2020).1 1 Unless otherwise noted, all statutory references are to the 2020 version of the Florida Statutes.
Findings Of Fact Based upon the credibility of the witnesses and evidence presented at the final hearing, and on the entire record of this proceeding, the following Findings of Fact are made. Asurion is a provider of electronic device insurance, warranty and support services for cellular phones, consumer electronics, and home appliances. As part of its services, Asurion provides technological support and repair services for the world’s leading mobile carriers, retail companies, and other businesses, enabling subscribers and customers to fully utilize their digital devices, applications, and equipment. Asurion is an employer as defined by the FCRA. See § 760.02(7), Fla. Stat. Petitioner was employed as a Service Advisor with Asurion’s Service Operations Program beginning on March 27, 2017. Essential job functions of the Service Advisor role include: the ability to utilize active listening skills and troubleshoot resolutions; the use of proper tone in providing information to customers and service providers; and the ability to resolve escalation and complaints, among other things. As a Service Advisor, Petitioner was responsible for working and negotiating with Asurion’s network of service providers to ensure a high level of customer satisfaction in their repair experience. Service Advisors are trained during their first week of employment, and thereafter, can access online training tools at any time during their employment. When hired, Petitioner received an electronic copy of Asurion’s Employee Handbook which contains, inter alia, Asurion’s equal opportunity employment policy prohibiting “discriminat[ion] against applicants or employees on the basis of … physical or mental disability….” The Employee Handbook also outlines Asurion’s Reasonable Accommodation policy, Attendance policy, and Customer Relations and Professional Behavior policy. During her early months of employment with Asurion, Petitioner established a reputation as a quick learner, and was eager to acquire new knowledge and skills, while maintaining a keen sense of awareness to detail. Petitioner was trained in several different departments at Asurion, and was willing to work during the holidays. During the first several months of her employment, Petitioner earned a number of accolades for quality work, including being recognized as employee of the month for December 2017. Field service managers would often recognize Petitioner’s hard work. Due to the quality of her work, Asurion auditors would frequently reach out to Petitioner and compliment her on her work. Sometimes agents from other teams would congratulate Petitioner on her work, since it made their jobs easier. On one occasion, a customer even wrote a letter to Asurion reporting the “impeccable” service they had received from Petitioner. In June of 2017, Petitioner witnessed a colleague being bullied by another colleague. The victim of this incident was crying at her desk, which made Petitioner believe that this treatment needed to be reported to her superiors. Petitioner reported the incident to her supervisor, Marie Alter. A few months later, Petitioner was reassigned to another department. On another occasion (July or August 2017), Supervisor Megan Bass confided in Petitioner her dislike for Petitioner’s African-American colleague, Ebony Shipman. Ms. Bass slandered Ms. Shipman to Petitioner, alleging that Ms. Shipman almost hurt Ms. Bass’s chance for promotion. On October 14, 2017, Petitioner and her four-year-old daughter were the victims of a violent and brutal physical attack. Following the attack, Petitioner began to display signs of mental illness, and as a consequence, began seeing a mental health counselor. This illness was diagnosed as Post Traumatic Stress Disorder (“PTSD”). Approximately three months following the October 2017 incident, Petitioner experienced a second traumatic event, which further compounded her PTSD. In an effort to continue her ability to function at work, Petitioner requested accommodations for her PTSD condition. Specifically, Petitioner requested on different occasions to have additional paid breaks during her shift, to be moved to a team that did not handle customer escalation calls, and to have intermittent leave under the Family and Medical Leave Act (“FMLA”). As a result of this request, Petitioner was approved for three 10 to 15 minute unpaid breaks. In early 2018, Petitioner witnessed harassment and discrimination towards disabled colleagues, and other colleagues. Being subjected to this inappropriate behavior triggered Petitioner’s PTSD, and so she requested a one-on-one meeting with her then-manager, Nestor Lebron, in February of 2018 to discuss her discomfort with her working conditions. At hearing, the work culture at Asurion’s Command Center was described by former and current employees as toxic and unprofessional. In addition, some employees were treated more favorably by supervisors than others. The consistency of their description of the dysfunctional workplace lends credibility to their testimony. In March or April 2018, Petitioner requested to work from home as she was becoming extremely sensitive working in a hostile work environment in which she felt she and her colleagues were being targeted for harassment. Even though Asurion had many work-at-home agents, Petitioner’s request was initially denied. On April 12, 2018, Petitioner met with Lauren Welch from Human Resources to discuss her requested work-at-home position. In this meeting, Petitioner discussed her troubling observations of the activities going on in the Command Center, including the unfair and unequal treatment that Petitioner had observed in that workplace. During this meeting, Petitioner offered to provide Asurion with medical documentation of her PTSD illness to assist with her work-at-home approval. Ms. Welch advised that documentation was not necessary. During the meeting of April 12, 2018, Petitioner made her first of many requests to be transferred to the SST Team, working with the Parts Department. Petitioner had worked on this team previously and had found it to be less stressful. Petitioner was not reassigned to this department, but subsequently learned that other agents, including Beverly Miller, Ray Legliter, and Mary Henderson, were all moved to that department following Petitioner’s request. While Petitioner was not approved for transfer to the Parts Department, her request to work from home was approved, effective April 30, 2018. Petitioner discussed her medical condition with her supervisor, Marie Alter, during a one-on-one meeting on May 11, 2018. During her first month of working from home, Petitioner was falsely accused by Ms. Alter of performing certain unprofessional actions. While Petitioner consistently maintained that she had not acted inappropriately, Ms. Alter did not relent in her accusations. Understandably, these unfounded accusations reinforced Petitioner’s belief that she was being targeted for harassment. On June 15, 2018, Petitioner received a “Final Warning” following her telephonic interaction with an employee of a contracted service center. As Petitioner explained at hearing, “I was mistreated by an employee that was contracted through Defendant. This employee works with Defendant to repair appliances. This woman was being argumentative and refused to provide the answers I needed to perform my work.” In response to the verbal abuse she was receiving, Petitioner disconnected the call. The Final Warning noted that “Your tone overall became curt, short and very defensive.” Petitioner acknowledged that she could have done a better job de-escalating the situation, and requested that she be approved for additional training, including listening in on other escalated calls. In response to Petitioner’s request for some kind of plan to help strengthen her performance in an area she struggled with, an Action Path meeting was created with Supervisor Marie Alter on June 25, 2018, for every Monday. The first meeting was scheduled for July 2, 2018, and in a follow-up email from Ms. Alter, it was explained that the meetings over the next couple of months would focus on improving Petitioner’s communications with providers and customers. However, on July 9, 2018, Petitioner’s Action Path was cancelled, without explanation. Petitioner made ongoing efforts to clearly communicate to Asurion the effects of her PTSD on her mental condition, and the impact that stress had on exacerbating her condition. Although Petitioner had made several requests to listen to a call where an agent successfully de-escalated an escalated client, she was advised Asurion could not locate any. However, in July 2018, quality analysts graded a call in front of the entire Command Center of an African-American woman, Tangia Carter. Ms. Carter received a score of 10 out of 100. No effort was made to hide the identity of the employee being graded. The employee was humiliated and embarrassed as a result. Petitioner reported this incident to her supervisor. In July 2018, another agent disconnected a call with a customer. The agent, Josh Johnson, had the same supervisor as Petitioner at the time Petitioner received her Final Warning for the same offense. However, unlike Petitioner, Mr. Johnson did not receive a Final Warning for disconnecting the call. On August 20, 2018, Petitioner sent an e-mail to Human Resources’ employee Logan Durham advising that the training verbally promised to Petitioner had not been provided. Petitioner also advised Mr. Durham that her request to listen to phone calls of highly escalated customers in an effort to better understand tone and effectively de-escalate customers had not been approved. In a September 11, 2018, Zoom meeting with Tiffany Trevino of Human Resources, Petitioner made another request to listen to highly escalated calls to gain a better understanding of tone and how to de-escalate customers effectively. Petitioner had come prepared to the meeting with concerns to discuss. However, Ms. Trevino would not allow Petitioner to speak, and asked her not to read her notes. After the meeting, Petitioner e- mailed her notes to Ms. Trevino so that it was documented that Asurion had been made aware of her concerns. Seven days following Petitioner’s conversation with Human Resources requesting that she be transferred to a less escalated team, an opportunity opened up in the Command Center. Specifically, on September 18, 2018, there was an opening on the SPT Team. This team is lower in escalations as the customers are rarely contacted, and agents only make recommendations of how to proceed with a claim. Rather than transferring Petitioner to the now-available lower-stress position, Asurion added required qualifications it knew would render Petitioner ineligible for the position. Those requirements were that an agent could not be on any corrective action (Petitioner was on a final written warning); the agent must work “brick and mortar” (Petitioner worked from home); and the agent must be performing well in quality metrics (the only area Petitioner needed improvement on was her quality metrics). The OEM Team, which is another low stress team that communicates primarily via e-mail, was created around the same time. On September 24, 2018, an e-mail was sent from Supervisor Megan Bass advising of the creation of the team, however, Petitioner was not included on the e-mail. In October 2018, Christina Oregon, another agent who had disconnected a customer call (requiring corporate involvement), was promoted to the SPT Team. On November 14, 2018, and again on January 23, 2019, Petitioner made additional requests to Human Resources for permission to listen to highly escalated calls in order to improve her de-escalation skills. In response to these requests, Petitioner was advised by Ms. Trevino that this request could not be considered training. When Petitioner again asked about being transferred to a lower-stress team, Ms. Trevino advised Petitioner that she would have to apply for the position the same way people without a disability would have to. Ms. Trevino made this statement to Petitioner even though she knew Petitioner was ineligible due to the final written warning she had received. In September of 2018, Petitioner sent in a task to be reviewed by the Audit Department. The claim was incorrectly worked by another agent, and had left a senior citizen without a working refrigerator for two weeks. Going against the company's best interest, as well as the customer’s, Supervisor Megan Bass retaliated against Petitioner, advising that the delayed process this agent took was in fact correct. Normally, when something is sent to the Audit Department, the claim is handled from there. It was not protocol to send it back to the agent who sent it in. It was Petitioner’s responsibility to report any issues she observed with workflow, and Ms. Bass’s response to Petitioner’s legitimate concern with customer service served to further harass Petitioner. Petitioner provided numerous examples of being ignored by her supervisors when requesting assistance with customer complaints and workflow concerns. In contrast, her colleagues were receiving immediate assistance from the leadership team in addressing their concerns. For example, on November 22, 2019, a customer Petitioner was working with requested to speak with a supervisor, but Petitioner was advised that none were available to assist. Throughout the duration of this claim, no supervisor called this customer back. Later, Petitioner was reprimanded for not offering the customer a gift card for his inconvenience. When Petitioner expressed her dismay about supervisors not returning calls to customers, she was again met with a reprimand for offering the customer a supervisor callback. Petitioner’s actions were correct, and were consistent with the training she had received on the company’s operating procedures. The hostile working conditions described above resulted in Petitioner experiencing a debilitating panic attack, leaving work early, and visiting a hospital emergency room on November 26, 2019. This panic attack affected Petitioner’s ability to think clearly and function normally. Pursuant to Asurion’s policy, Petitioner reported her absence from work to the AbsenceOne system, from the emergency room. The AbsenceOne system automatically notifies Asurion, including Petitioner’s supervisors, of absences via e-mail. The following morning, with the panic attack continuing, Petitioner was able to collect herself enough to explain what had happened to her supervisor, TJ Mark. In response, Petitioner received a final written warning for not contacting her supervisor immediately upon her absence from work. On April 28, 2020, Petitioner’s first day back from a week-long panic attack episode triggered by Asurion’s hostile work environment, Petitioner was terminated by Respondent for “not showing empathy” on a call. This is the area in which Petitioner had repeatedly requested additional training, or alternatively, reassignment to a lower escalated team which did not require direct customer contact. Petitioner had been belittled by this customer after issuing a denial for physical damage to his ice bucket. Per the service agreement, Asurion does not cover any failure caused by physical damage, intentional or otherwise, a result the customer was not willing to accept. Again, Petitioner’s actions on the call were consistent with her training, and were appropriate. As Petitioner credibly testified at hearing: The customer was clearly argumentative and I kept repeating, have a nice day, as I did not want to argue with him about what I was trained to do. Due to the rationale provided, I felt that I had made the best decision under the circumstances. Honestly, I was going to be retaliated against no matter what route was taken. If I offered a supervisor, I would have been in reprimand for offering a supervisor on a physically damaged ice bucket that did not affect the function of the ice maker. Following her termination, an e-mail was sent out to all employees in the Command Center advising of Petitioner’s termination and reason for termination. As a result of this email, approximately 200 employees were informed of the reason for Petitioner’s termination, which Asurion identified as “gross misconduct.” No other terminated Asurion employees were subjected to this form of public humiliation. The evidence credibly established that Petitioner was subjected to a hostile work environment, was not provided the reasonable accommodation she requested, and was retaliated against for engaging in protected behavior.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Florida Commission on Human Relations issue a final order granting Annemarie Wolny’s Petition for Relief, as follows: Finding that Respondent, Asurion, engaged in a discriminatory employment practice based on Petitioner’s disability; Awarding Petitioner back pay from the date of termination; and Awarding Petitioner reimbursement for mental health services incurred as a result of Asurion’s misconduct. DONE AND ENTERED this 28th day of June, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S W. DAVID WATKINS Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 2021. Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 Annemarie Wolny W4598 County Road RR Random Lake, Wisconsin 53072 Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 Deadrick Thaxton Asurion Suite 300 648 Grassmere Park Nashville, Tennessee 37211 Casey M. Duhart, Esquire Waller Lansden Dortch & Davis, LLP Suite 2700 511 Union Street Nashville, Tennessee 37219
The Issue Whether Respondent, Eve Management, Inc./KA and KM Development, Inc., denied Petitioners full and equal enjoyment of the goods and services offered at its place of public accommodation, in violation of sections 509.092 and 760.08, Florida Statutes (2011).1/
Findings Of Fact Parties and Jurisdiction Petitioners are African Americans who reside in the State of Ohio, who visited Orlando, Florida, in June 2011 and stayed at Lake Eve Resort beginning on June 21, 2011. Respondent, Eve Management, Inc./KA and KM Development, Inc., was the owner of Lake Eve Resort, located at 12388 International Drive, Orlando, Florida, at all times relevant hereto. Each Petitioner filed a Complaint of Discrimination with the Commission as follows: Jessica Austin – July 20, 2012 Denise Austin – July 21, 2012 Tracie Austin – January 18, 2013 (Amended Complaint)2/ Bonlydia Jones – July 11, 2012 James Austin – July 31, 2012 Dionne Harrington – August 1, 2012 Esther Hall – January 28, 2013 (Amended Complaint)3/ Boniris McNeal – March 27, 2013 Summer McNeal – March 27, 2013 Derek McNeal – March 27, 2013 In each Complaint, the Petitioner alleges that the most recent date of discrimination is June 22, 2011. On June 21, 2012, Petitioners Esther Hall, Summer McNeal, Boniris McNeal, Derek McNeal, and Dionne Harrington, each filed a Technical Assistance Questionnaire (TAQ) with the Commission. Each TAQ is signed by the named Petitioner, is stamped received by the Commission on June 21, 2012, and contains the specific facts alleged to be an act of discrimination in the provision of public accommodation by Respondent. Allegations of Discrimination On or about May 23, 2011, Petitioner, Boniris McNeal, entered into a Standard Group Contract with Lake Eve Resort (the Resort) to reserve 15 Resort rooms for five nights at a discounted group rate beginning June 21, 2011.4/ The rooms were to accommodate approximately 55 members of her extended family on the occasion of the Boss/Williams/Harris family reunion. Petitioners traveled from Ohio to Orlando via charter bus, arriving at the Resort on the evening of June 21, 2011. Erika Bell, a relative of Petitioners, drove a rental car from Ohio to Orlando. She did not arrive in Orlando until June 22, 2011. Petitioners checked in to the Resort without incident. However, one family member, John Harris, was informed that the three-bedroom suite he had reserved for his family was not available due to a mistake in reservations. He was offered two two-bedroom suites to accommodate his family. Petitioner, Boniris McNeal, dined off-property on the evening of June 21, 2011, to celebrate her wedding anniversary. Petitioner, Bonlydia Jones, left the Resort property shortly after check-in to shop for groceries. Petitioners, Dionne Harrington and Esther Hall, were very tired after the long bus trip and went to bed early on June 21, 2011. Petitioner, Denise Austin, arrived in Orlando with the family on June 21, 2011. On the morning of June 22, 2011, Ms. Jones received a call from Mr. Harris, informing her that the Resort management wanted to speak with them about his room. That morning, Ms. Jones and Mr. Harris met with two members of Resort management, Amanda Simon and Marie Silbe. Mr. Harris was informed that he needed to change rooms to a three-bedroom suite, the accommodation he had reserved, which had become available. Mr. Harris disputed that he had to change rooms and argued that he was told at check-in the prior evening he would not have to move from the two two-bedroom suites he was offered when his preferred three-bedroom suite was not available. After some discussion, it was agreed that Mr. Harris would move his family to an available three-bedroom suite. The Resort provided an employee to assist with the move. Following the meeting with management, Ms. Jones went to the pool, along with Ms. Harrington and other members of the family. After a period of time which was not established at hearing, Mary Hall, one of Ms. Harrington’s relatives, came to the pool and informed Ms. Harrington that the family was being evicted from the Resort. Ms. Harrington left the pool and entered the lobby, where she observed police officers and members of Resort management. She approached a member of management and was informed that she and her family were being evicted from the Resort and must be off the property within an hour. Ms. Harrington left the lobby and returned to her room, where her mother, Ms. Hall was sleeping. Ms. Harrington informed Ms. Hall that the family was being evicted from the Resort and instructed Ms. Hall to pack her belongings. Ms. Jones’ cousin, Denise Strickland, came to the pool and informed her that the family was being evicted from the Resort. Ms. Jones entered the lobby where she was approached by a member of management, who introduced herself as the general manager and informed her that the family was being evicted. Ms. Jones requested a reason, but was informed by a police officer that the owners did not have to give a reason. In the lobby, Ms. Jones observed that an African- American male was stopped by police and asked whether he was with the Boss/Williams/Harris reunion. He was not a family member. Ms. Jones observed that no Caucasian guests were approached in the lobby by management or the police. Ms. Austin was on a trolley to lunch off-property on June 22, 2011, when she received a call from her cousin, Ms. Strickland. Ms. Strickland informed Ms. Austin that the family was being evicted from the Resort and she needed to return to pack her things. Ms. Austin returned to the property, where she was escorted to her room by a security guard and asked to pack her belongings. Ms. McNeal was en route to rent a car and buy groceries on June 22, 2011, when she received a call from Ms. Strickland informing her that the family was being evicted and that she needed to return to the Resort to pack her belongings. Upon her arrival at the Resort, Ms. McNeal entered the lobby. There, she was approached by Resort staff, asked whether she was with the Boss/Williams/Harris reunion, and informed that the Resort could not honor the reservations and the family was being evicted. Ms. McNeal observed that Caucasian guests entering the lobby were not approached by either the police or Resort management. Ms. McNeal was escorted to her room by both a police officer and a member of management and instructed to be out of the room within 30 minutes. Ms. McNeal inquired why they were being evicted, but was told by a police officer that the Resort was not required to give a reason. Erika Bell received a call from her mother, Ms. Austin, while en route to the Resort on June 22, 2011. Ms. Austin informed Ms. Bell that the family was being evicted from the Resort and asked her to call the Resort and cancel her reservation. Respondent gave no reason for evicting Petitioners from the property. Respondent refunded Petitioners’ money.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order: Finding that Respondent, Eve Management, Inc./KA and KM Development, Inc., committed an act of public accommodation discrimination in violation of sections 509.092 and 760.08, Florida Statutes (2011), against Petitioners Jessica Austin, Denise Austin, Tracie Austin, James Austin, Bonlydia Jones, Esther Hall, Boniris McNeal, Derek McNeal, Summer McNeal, and Dionne Harrington; and Prohibiting any future acts of discrimination by Respondent. DONE AND ENTERED this 28th day of May, 2014, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 28th day of May, 2014.
The Issue This case concerns the issue of whether Respondent's beverage license should be suspended, revoked or otherwise disciplined for permitting prostitution activity on his licensed premises. At the formal hearing the Petitioner called as witnesses John Harris, Kelvin Davis, Carlos Bauxalli, Lewis Terminello, Hugo Gomez, Louis Viglione, Keith Bernard Hamilton, and Alfonso Scott Julious. Respondent called as witnesses Isaac Dweck, Gary Arthur, Irene Madden, Collins Jones, Mary Scott, Debbie Heenan, Judy Pearson, Joe E. Clements, Cecil Rolle, and the Respondent himself, Eddie Lee Pittman. Petitioner offered and had admitted a videotape which was viewed during the hearing. Respondent offered and had admitted one exhibit. Petitioner also offered a composite exhibit containing police reports relating to the licensed premises for the years 1981 and 1982. That composite exhibit was admitted as hearsay to corroborate the testimony of the police officers relating to the reputation of the licensed premises. These police records were of very limited probative value and no finding of fact was based upon these records. Neither party submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer.
Findings Of Fact At all times material to this proceeding the Respondent, Eddie Lee Pittman, was the holder of beverage license No. 23-371, Series 2-COP. The license is issued to the licensed premises at 1772 N.W. 79th Street, Miami, Dade County, Florida, and was originally issued to Respondent on October 6, 1965. On the evening of March 22, 1983, Beverage Officer Kelvin Davis visited the licensed premises, Eddie's Dive Inn, in an undercover capacity to investigate possible prostitution activity in the licensed premises. Officer Davis was accompanied by Beverage Officer Eddie Bauxalli. After entering the licensed premises Officer Davis was approached by a white female named Elnora Moore who engaged him in conversation. The conversation led to a discussion of voter registration cards and Ms. Moore stated that a voter registration card could get you out of jail on a misdemeanor charge. Officer Davis asked why she needed a card for that purpose and Ms. Moore said because of solicitation. She then asked Officer Davis if he would like to be solicited and asked how much money he had. He responded that he had twenty dollars and she said that would get him a "straight." "Straight" is slang or street language for sexual intercourse. He agreed to the price but told her he also had a friend (Officer Bauxalli). Ms. Moore offered to service both men for $100. Officer Davis and Officer Bauxalli agreed to this offer and the three of them prepared to leave. The conversation between Ms. Moore and Officer Davis took place next to the bar where the officers were seated. This was approximately three to five feet from the cash register where the bartender on duty was working. The conversation took place in a normal tone of voice. As Officers Davis and Bauxalli and Ms. Moore began to leave, a white female named Peggy Schultz yelled across the bar to Officer Bauxalli and asked where he was going. Officer Bauxalli yelled back that he was going to have a good time. In response, Ms. Schultz yelled back "How can you have a good time without a date?" Officer Bauxalli responded that he would figure something out. At this point Ms. Schultz walked over to Officer Bauxalli. Ms. Schultz asked Officer Bauxalli if he wanted a "date" and he asked what is a "date." She responded that a "date" is a "straight" for $20 or a "straight" and a "blow job" for $25. He agreed to a "date" and Ms. Schultz then told him to drive around to the back and she and Ms. Moore would meet them at the back door. She also stated that the owner did not like the girls to go out the front door. Officers Bauxalli and Davis then left the bar, drove around to the back door of the licensed premises and picked up Ms. Moore and Ms. Schultz, who were waiting just inside the back door of the lounge. While Officers Bauxalli and Davis were in the licensed premises, the bar was pretty crowded and there was a lot of noise from people talking. At the time Ms. Schultz solicited Officer Bauxalli, she spoke in a normal tone of voice while they stood approximately four or five feet from the cash register on the bar. Ms. Schultz was dressed in a low-cut blue silky dress that was made of a material which you could easily see through. She was wearing only panties underneath the dress. The owner, Mr. Pittman, was observed in the licensed premises on the evening of March 22, but there was no evidence that he observed or overheard any of the discussions between the two beverage officers and Ms. Schultz and Ms. Moore. On the evening of September 17, 1983, at approximate1y. 10:A5 p.m., Beverage Officer Louis J. Terminello went to the licensed premises in an undercover capacity. Immediately upon entering the licensed premises he was approached by a white female named Michelle Orfino. The bar was pretty crowded and there were a number of females in the bar and poolroom area who by their dress appeared to be prostitutes. These women were mingling with the men at the bar and in the poolroom area. A number of couples were exiting through the back entrance. When Ms. Orfino approached Officer Terminello, she walked up to him and asked if he was looking for a "date." He asked her what a "date" was and she said "a blow job." She then asked if he wanted one and Officer Terminello responded "yes." She told him the price would be $20 plus $5 for the room. As they had been talking Officer Terminello, accompanied by Ms. Orfino, walked into the poolroom area. After agreeing to the price, Officer Terminello took Ms. Orfino by the arm and started to walk out the front door of the lounge. She stopped him and said that they had to use the back door because Eddie does not allow them to leave through the front door. She then told him to drive around back and Officer Terminello responded that his car was just outside the back door. She then walked with him out the back entrance and into the parking lot. As they walked to his car Officer Terminello observed the Respondent, Eddie Pittman, in the parking lot. After driving away, Officer Terminello placed Ms. Orfino under arrest. Ms. Orfino was dressed in a very low-cut latex body suit. For at least three nights prior to September 17, Officer Terminello, while on surveillance, had observed a continuous pattern of a patron entering the bar, coming back out and driving his car to the rear entrance. A woman would then come out the back door, get in the car and they would drive away. Twenty minutes or so later the car would come back and the girl would get out and go back in. After the arrest of September 17, Officer Terminello returned to the bar in the early morning hours of September 18 to arrest two other women for prostitution. The Respondent had not been advised of the arrests on September 17. On the evening of September 15, 1983, Beverage Officer Louis Viglione went to the licensed premises, Eddie's Dive Inn. After entering the licensed premises he took a seat at the bar near the rear entrance. Shortly after entering, he was joined by two black females named Veronica and Angie. He purchased a beer for each of the two women and the three of them engaged in conversation about good times, good loving, and Pink House. The Pink House is a boarding house in the area where the licensed premises is located and is used by prostitutes for "dates." A "date" is a slang or street term used commonly by prostitutes to refer to sexual intercourse or other sexual acts for pay. During this conversation, Veronica stated that one hour with her would cost $40 or $50 and Angie stated that she charged $100 an hour. As an excuse, Officer Viglione then stated that he did not have enough money because he wanted two women at once. He remained in the lounge approximately one more hour and left. On this particular evening Veronica was wearing a short white dress and Angie was wearing a blue print dress with white stockings. Both were dressed in what Officer Viglione described as normal dress. Several other women in the lounge were dressed in a very provocative manner and appeared by their dress to be prostitutes. The lounge was approximately 3/4 full of patrons, but it was not particularly noisy or boisterous. There were also several women outside the front and rear entrances of the licensed premises who appeared to be prostitutes. The area where the licensed premises is located is an area which has a visible concentration of prostitutes and has a reputation as an area where prostitution is prevalent. At approximately 9:30 p.m. on September 16, 1983, Beverage Officer Keith Bernard Hamilton entered Eddie's Dive Inn. Upon entering the lounge, Officer Hamilton took a seat at the west end of the bar. There were approximately 40 or 50 male patrons in the lounge and at least 30 women. The women were scantily dressed in very revealing clothes and were observed by Officer Hamilton to be moving around the bar stopping and talking with the men. Several of the women left the bar after talking to one of the men who also left the bar. While seated at the bar, Officer Hamilton was approached by a young black female named Anna. Anna had been talking to a white male seated next to Officer Hamilton. She asked Officer Hamilton what he was interested in tonight. He asked what she had and she asked if he wanted to fuck. She also stated that for $35 plus $5 for the room she would give him a "suck and fuck." He said he would wait for a while and Anna left but returned several times during the evening. After Anna left, another woman walked up to Officer Hamilton and asked if he dated. He was short with her and she moved over and began talking to the white male seated next to him. A few minutes later, Officer Hamilton went to the bathroom and was stopped by a black female named Carol Lawrence. Ms. Lawrence stated that she needed money and asked if he could help her out. Officer Hamilton asked what did she have and Ms. Lawrence responded "a suck and fuck for $35." Officer Hamilton agreed to this but said he wanted to wait a while. She then left, but approached him at least three more times that evening. On the evening of September 16, 1983, there were three security guards at the licensed premises. They primarily remained outside where they regulated the crowd outside the lounge. One of the guards told one of the females that she shouldn't leave with a guy but should wait inside the rear door. The guard did not object to the woman and man leaving in the man's car. On this particular evening, the Respondent was present at the licensed premises until approximately 11:00 p.m. He was in and out of his office during the course of the evening. On September 17, 1983, at approximately 9:30 p.m. Officer Hamilton returned to the licensed premises, Eddie's Dive Inn. When Officer Hamilton entered the lounge, the Respondent was seated at the bar. The activity in the bar was about the same as the night of September 16, and there was a smaller crowd. There were about 20 women in the bar. These women were walking around the bar talking to the men. There was a man seated next to Mr. Pittman who was being kissed by one of the women. After kissing the man she moved on and began talking to another male patron. Shortly after entering the lounge one of the women in the lounge looked at Officer Hamilton and winked. Later, when Officer Hamilton was in the rear of the lounge near the bathrooms, be observed this same woman standing near the rear entrance. He asked her where she was going and she responded that she would be back. She then offered him a "suck and fuck" for $20 plus the cost of the room. As she walked out the rear entrance Officer Hamilton agreed to the offer. That same evening Officer Hamilton was again approached by Anna whom he had met the previous evening. She asked if he was ready and again told him the price of a "suck and fuck." He agreed and she told him to leave out the front door and she would wait around back. Officer Hamilton left the lounge and drove his car to the rear entrance where Anna was waiting just inside the screened door of the back entrance. On the evening of September 15, 1983, at approximately 9:15 p.m., Beverage Officer Alfonso Scott Julious entered the licensed premises. There were several men seated inside the bar and several women were walking around the bar. The women were dressed casually and some were wearing short dresses which were low cut in the front. After entering the licensed premises Officer Julious observed women from time to time leave the bar with a man and then come back. Each of the women exited through the rear door. At approximately 9:45 p.m. Officer Julious was approached by a white female named Gail Sylvia James. She asked if he wanted a "date" and he said what is a "date." She then said that she would "fuck him and suck him" for $30. He responded that he would be around for a while and would get back to her. Officer Julious left the lounge at approximately 10:30 p.m. During the evening Officer Julious had overheard other men being solicited and observed at least five men leave with women. On this evening Officer Julious considered the women's dress to be casual, nice dresses. Officer Julious returned to the licensed premises at approximately 9:00 p.m. on September 16, 1983. After entering the lounge he was approached by a white female named Patricia. She asked him if he wanted a "date" and he asked "what is a "date?" She then said she would fuck him for $30. Officer Julious responded that he would be around and would get back to her. Some time later in the evening Gail James, whom he had met the previous night, approached Officer Julious and asked if he was ready for a "date." She said she would go half and half, "suck and fuck" for $30. He told her he would be around for a while. Officer Julious was also approached by a woman named Mindy Jo Gelfin, who asked if he wanted a "date." He asked "What is a date?" and she responded "half and half, fuck and suck" for $40. He also did not accept this offer. Officer Julious left the licensed premises at approximately 10:45 p.m. On Saturday, September 17, 1983, Officer Julious returned to the licensed premises at approximately 9:05 p.m. The Respondent, Eddie Lee Pittman, was in the lounge. Immediately after entering the licensed premises, Officer Julious was approached by Mindy Gelfin, who asked if he was ready for a "date." Officer Julious stated that he would be around all night and Mindy said she would come back. Later, Mindy returned and asked if he was ready and he responded "yes." He asked if they could go to the Holiday Inn and she asked if he was a cop. Officer Julious said "Do I look like a cop?" She then asked if she could pat him down. He said "yes" and she patted him down. She then said that she wanted to go in a friend's car. She borrowed the car and drove to the Holiday Inn where she was arrested. At the time of her arrest Mindy Jo Gelfin was residing with Collins Winston Jones and his girlfriend. At the time of the final hearing, Mindy Gelfin was continuing to live at Mr. Jones' residence. Mr. Jones' girlfriend had allowed her to move in. Mr. Jones is the manager of Eddie's Dive Inn. On September 29, 1983, Detective Hugo Gomez of the Metropolitan Dade County Police Department went to the licensed premises, Eddie's Dive Inn. Detective Gomez was accompanied by Detectives Manny Gonzalez and Ray Gonzalez. Detective Gomez stood at the west end of the bar and his two partners sat at the bar next to him. After they ordered a beer, they were approached by a white female named Catrina Gibides. She sat down between the two officers who were seated. She asked what they were doing and told Detective Gomez he looked like a cop. He then pulled up his pants legs to show he was wearing no socks and she said "you can't be a cop" and grabbed his groin. She then began playing with Manny Gonzalez's leg and asked if they wanted a "date." She was wearing a very loose chiffon type outfit and her breasts were barely covered. The officers who were seated had been pretending not to speak English and Ms. Gibides asked Detective Gomez to ask Manny Gonzales if he wanted to go across the street to a motel with her. She said that she would perform intercourse and fellatio for $25 plus $5. She then called over another white female named Lisa Brown, who also began talking about going across the street to a motel. Lisa Brown said her price was $25 plus $5 for the room. They then discussed going in different cars. During these conversations the bar was crowded and Eddie Pittman was in the lounge approximately 8 to 10 feet from where the officers were located. It was pretty loud in the bar. There were also barmaids working behind the bar. Isaac Dweck is a regular patron of Eddie's Dive Inn. He goes there primarily on Sunday afternoons to watch football and shoot pool. He is almost never in the licensed premises after 9:00 p.m. and averages going to the lounge four or five times a month. He has never been solicited for prostitution in the lounge and has never overheard someone else being solicited. Gary Arthur goes to Eddie's Dive Inn two or three times a week and generally leaves some time between 7:30 and 9:00 p.m. Once or twice he has stayed until 11:00 or 12:00 p.m. He has never been solicited for prostitution and has never overheard anyone else being solicited. He has been going to Eddie's Dive Inn for five or six years. The Respondent has a policy against drugs, fighting, solicitation, and profanity and also has a dress code. He employs 11 full-time employees at the lounge and three or four of these employees are security guards who work at front and back doors. The Respondent has a closed circuit television system with cameras on the cash register and pool room area. The screen is in Respondent's office. Over the past 12 years the manager, Collins Jones, has barred 12 or 13 women from the bar after he heard them soliciting in the bar. In the twenty years he has operated Eddie's Dive Inn, the Respondent has barred approximately 20 women from coming into the licensed premises because of prostitution. Once the women are arrested for prostitution, they are barred from the premises. There are signs posted in the bar prohibiting soliciting. Irene Madden works as a barmaid at Eddie's Dive Inn. She has been instructed to not serve known prostitutes and that if she heard someone soliciting she should diplomatically ask them to not do that and inform Mr. Pittman or the manager. Mary Scott works as a barmaid at Eddie's Dive Inn. She has heard women solicit in the lounge for prostitution. She does not have the authority to ask someone who solicits for prostitution to leave the premises. She does have authority to ask people to leave who are in violation of the dress code. In September, 1972, the Respondent was charged in an administrative proceeding against his license with permitting prostitution on the licensed premises. He was also charged criminally with permitting prostitution. Respondent paid a $350 administrative fine and his license was placed on probation for the remainder of the license year. He pleaded guilty to the criminal charge.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered finding the Respondent in violation of Section 561.29, Florida Statutes, and imposing a civil penalty of $1,000 and suspending Respondent's beverage license for a period of ninety (90) days. DONE AND ENTERED this 9th day of November, 1983, at Tallahassee, Florida. MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 1983. COPIES FURNISHED: William A. Hatch, Esquire Gary R. Rutledge, Secretary Department of Business Department of Business Regulation Regulation 725 South Bronough Street 725 South Bronough Street Tallahassee, Florida 32301 Tallahassee, Florida 32301 Arthur M. Garel, Esquire 40 Southwest 13th Street Miami, Florida 33130 Howard Milan Rasmussen, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact Petitioner, Morton Francis, operates Francis Villa, an ACLF at 1398 Northeast 156th Street, North Miami Beach, Florida. He and his wife are the sole staff at the facility. His present license to operate that facility has an expiration date of July 30, 1981. Prior to that date Mr. Francis applied for relicensure by Respondent, Department of Health and Rehabilitative Services. On September 17, 1981 he was informed by the Department that his application for relicensure had been denied for the following reasons: (a) the location of Francis Villa is net zoned by the City of North Miami Beach for the operation of an ACLF; (b) three of the files for residents at Francis Villa lacked sufficient medical information to determine if they had received a physical examination within 30 days of their admission to the facility; (c) the facility did not have a written procedure to be followed for emergency care during evacuation in the event of a disaster; (d) the facility had no documentation indicating that the staff is free of communicable diseases; (e) the facility did not have an up-to-date diet manual approved by the Department; (f) while menus were planned and posted in a frame on the wall at the facility they were not dated and no record indicates that the menus have been kept on file for the past six months; (g) there was no thermometer in the kitchen refrigerator; (h) in the bathroom on the west side of the facility there were no non-slip safety devices or hand rails in the bathtub used by the residents; (i) in three files reviewed by the Department during its licensure survey there was no written agreement between the resident and the facility specifying the conditions when the resident would be moved to a more appropriate residential setting; and (j) the files failed to contain the demographic data required by the Department. The foregoing deficiencies given for the denial of relicensure did in fact exist on July 7, 1981 in Petitioner's facility. They were discussed with him at that time during a relicensure survey. Reinspections were conducted on August 12, 1981, September 3, 1981, and finally on November 24, 1981. The above deficiencies in Petitioner's facility were not corrected by November 24, 1981. By the time of the final hearing Petitioner had installed a thermometer in his kitchen refrigerator and had installed non-slip safety devices and hand rails in the bathtub on the west side of the facility. Petitioner is unwilling to correct the remaining deficiencies until such time as he can be assured that his facility will be relicensed. At the final hearing Mr. Francis attempted to shift responsibility for some of his facility's defects onto the Department because he allegedly lacked information about how to handle patient records, etc. The evidence reflects that the Department has held training sessions for operators of ACLF's and has prepared forms available to Mr. Francis which may be utilized by operators in maintaining the required patient records. See Section 400.452, Florida Statutes (1981).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Health and Rehabilitative Services enter a final order denying Mr. Francis' application for the relicensure of his Adult Congregate Living Facility located at 1398 Northeast 156th Street, North Miami Beach, Florida. DONE and RECOMMENDED this 17th day of February, 1982, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 1982. COPIES FURNISHED: Martha F. Barrera, Esquire Long Term Care Office Department of Health and Rehabilitative Services 1320 South Dixie Highway Coral Gables, Florida 33146 Mr. Morton Francis c/o Francis Villa 1398 Northeast 156th Street North Miami Beach, Florida 33162
