The Issue Whether Petitioner was unlawfully discriminated against by Respondent, based on his disability, in violation of chapter 760, Florida Statutes, the Florida Civil Rights Act ("FCRA"); and, if so, what is the appropriate remedy?
Findings Of Fact From October 2 through December 7, 2017, Petitioner was employed by the City as a PES in its Transportation and Mobility Department ("TAM"). Nature of the Parking Enforcement Specialist Job The role of a PES is to ensure that members of the public follow the City's parking ordinances and regulations. Job duties include patrolling an assigned area in a vehicle or on foot, inspecting for parking violations, issuing summonses and tickets to violators, and assisting the public by answering questions. A PES must be able to work independently with little or no supervisory assistance and deal courteously and fairly with the public. The PES position is governed by the Collective Bargaining Agreement ("CBA") between the City and the Teamsters' Union. Under the CBA, assignment of work shifts is based on seniority. A PES may be assigned to work night and weekend shifts. Before being assigned a shift to work alone, a newly- hired PES participates in two phases of training. Phase one consists of familiarization with equipment, systems, parking ordinances and regulations, and typically lasts four to six weeks. Phase two is focused on hands-on training and a trainee is given more opportunity to operate the vehicles and equipment. One of the purposes of phase two is to ensure that the trainee is able to appropriately handle problems and stressful situations that may arise on the job, such as dealing with irate members of the public while immobilizing a vehicle. Each phase of training is conducted by a fellow PES who is temporarily designated as a training officer under the CBA. A PES serving in the temporary designation of training officer is not considered a supervisor. The City issues each PES certain take-home equipment, including a public safety police radio, keys, flashlight, and identification card, for use while on the job. A PES takes these items home when not on the job and is at all times responsible for his or her City-issued equipment. To perform the job, a PES is also required to use a License Plate Reader ("LPR") and related systems. A LPR scans license plates and indicates when a car should be issued a citation or boot. A PES is expected to drive a City vehicle and view the screens of the machine that alert when the camera scans a vehicle with outstanding citations. When a LPR alerts a PES of a vehicle with outstanding citations, the PES must carefully pull over and turn on the caution lights to advise oncoming traffic of the stopped City vehicle. Once safely pulled over, the PES may then check whether the vehicle has outstanding citations and issue tickets. The City's Policies and Work Rules Prior to commencing employment at the City, each newly- hired employee is provided with copies of the City's written policies. The City has a Policy Concerning Persons with a Disability and Procedures for Accommodation ("ADA Policy"). It prohibits discrimination against a qualified individual because of his or her disability and states that the City will provide reasonable accommodation when necessary. It also explains the procedures for requesting accommodation and that a request may be made by contacting the City's Office of Professional Standards ("OPS"). OPS handles requests for workplace accommodation and determines whether an accommodation will be provided. On September 27, 2017, Petitioner was given a copy of the City's ADA Policy and executed a form acknowledging receipt of same. At no time during his employment did Petitioner indicate that he was a qualified individual with a disability or that he needed an accommodation for a disability or handicap from the City. In fact, at final hearing, Petitioner admitted he did not believe he had a handicap or needed an accommodation to perform his role as a PES. The City has General Employees' Work Rules ("General Work Rules"), which define Major Rule violations. Leaving the City premises during work hours without a supervisor's permission is listed as a Major Rule violation for which any employee can be discharged immediately without warning. All newly-hired employees at the City receive training on the City's General Work Rules. Each Department is required to post the City's General Work Rules in work areas. TAM posts the City's General Work Rules document in the main security office, which is where PESs check out their parking enforcement equipment and pick up the keys to their vehicles. On September 27, 2017, Petitioner was given a copy of the City's General Work Rules and executed a form acknowledging its receipt. Petitioner's Employment with PES Effective October 2, 2017, Petitioner commenced employment at the City as a probationary PES. Parking Enforcement Supervisor Bryan Greene ("Mr. Greene") was involved in the process of interviewing and hiring Petitioner for the PES position. When Mr. Greene initially contacted Petitioner to set up an interview, he asked if Petitioner would need any accommodation. Petitioner stated that he did not need any accommodation. Petitioner never told Mr. Greene that he had a disability or needed an accommodation to perform the job. Mr. Greene was not aware that Petitioner self-identified as a disabled veteran on his job application with the City. For phase one of training, Petitioner was assigned to train on the day shift. For phase two, Petitioner was assigned to train on the night-shift with fellow PES and training officer, Stephanie Sanchez ("Ms. Sanchez"). Petitioner began his night-shift training with Ms. Sanchez in November 2017. Acting Parking Shift Coordinator Jose Vazquez ("Mr. Vazquez") was the immediate supervisor of Petitioner and Ms. Sanchez. Mr. Vazquez's immediate supervisor was Mr. Greene. In the day-to-day performance of his job, Petitioner could communicate with Mr. Vazquez by phone or e-mail. Petitioner never told Mr. Vazquez or his coworker trainers that he had a disability or needed any accommodation. From time to time, Mr. Vazquez would check in with Petitioner on his progress as a regular part of the training process. Petitioner never reported any problems with Ms. Sanchez to Mr. Vazquez or Mr. Greene. On December 6, 2017, Mr. Vazquez sent Petitioner a series of routine e-mails regarding the status of various equipment and training. In one of his e-mails, Mr. Vazquez asked Petitioner if he felt comfortable with enforcement operations and procedures and to let him know if there was anything he was uncertain about. Petitioner sent a response stating, in relevant part, "Thanks Jose, I am comfortable with enforcement. Would like a little more training with the LPR and the different computer programs used in the field." Petitioner did not request to review anything else as part of training. Events Leading to Petitioner's Termination On December 7, 2017, at 12:30 p.m., Mr. Vazquez forwarded Petitioner's e-mail to Ms. Sanchez in reference to training. He instructed her to go over the LPR process and how it works with Petitioner again and told her to "[l]et him drive and control everything so that he gets a feel of it" and "[h]ave him input manual tags too so that he is aware that the LPR will not read all tags." On December 7, 2017, at 5:00 p.m., Petitioner started his shift. Ms. Sanchez let Petitioner drive the City vehicle in the parking garage while she sat in the back. They stopped, parked behind another vehicle, and turned the caution lights on so that Ms. Sanchez could review the LPR process with Petitioner as he had requested. Ms. Sanchez encouraged Petitioner to review his notes on the LPR from the night before and asked him to replicate the process to check if a vehicle was eligible for immobilization. Petitioner became angry that rather than verbally reviewing the instructions over and over with him, Ms. Sanchez directed him to review his notes. Ms. Sanchez explained that she previously had repeated the verbal instruction and wanted to be sure that Petitioner could understand his own notes because he was nearing the end of his training and would soon be on his own with nothing to rely on but his notes. At that point, Petitioner burst out at Ms. Sanchez in a raised voice, "You're aggravating me, I can't stand working with you--you just want me to fail. I'm going home." Sanchez calmly explained that she was trying to help him and reiterated that they would have to go through the steps to learn the process. Petitioner did not listen. He immediately put the City vehicle into drive and sped off to the other side of the garage with Ms. Sanchez still in the vehicle. Petitioner then parked, got out of the vehicle, and went into the main security office with his belongings. Because of Petitioner's outburst and behavior, Ms. Sanchez did not feel that it was safe for her to approach him and waited in the vehicle. After approximately five minutes, Petitioner exited the main security office. He went towards the parking elevator and left. Petitioner left his City-issued take-home equipment, including police radio, keys to access the building, and identification, inside the main security office which was unsecured. Prior to leaving, Petitioner had only been at work for about one hour. Ms. Sanchez immediately contacted Mr. Vazquez. She notified him that Petitioner left work without permission and sent him an e-mail detailing the incident that occurred while training Petitioner on use of LPR systems. Mr. Vazquez advised Mr. Greene of the incident and forwarded him Ms. Sanchez's e-mail. At no time during his December 7, 2017, shift did Petitioner communicate to any supervisor that he was leaving work or not returning that night. Mr. Greene recommended through chain-of-command that Petitioner, as a probationary employee, be terminated from City employment. He felt that Petitioner would not be a good fit for the PES position because he left work without a supervisor's permission in violation of a Major Rule and left his City-issued take-home equipment unattended in an unsecured building. This raised serious safety concerns given the sensitive nature of the equipment, which included a police radio. Additionally, Petitioner's rude, disrespectful, and troubling behavior towards Ms. Sanchez raised concerns as to his ability to appropriately deal with coworkers and members of the public. The City determined that Petitioner voluntarily resigned when he left work without contacting a supervisor and left his City-issued take-home equipment unsecured in the security office. Accordingly, the City accepted Petitioner's voluntary resignation from employment, effective December 7, 2017. Petitioner's Argument Petitioner claims that he had no intention of resigning and that his separation from employment was a termination based upon his disability or handicap. Petitioner believes that his training by Ms. Sanchez should have conformed to his preference on how to learn (repeated verbal instructions without reference to notes or the guide book) and that he was justifiably upset with her. Petitioner explained that his interaction with Ms. Sanchez triggered intestinal distress, necessitating his need to go home and change clothing. He intended to return to work that night but claims he saw an e-mail from management that if Petitioner returned to work, he was to be told to go back home. Petitioner was not copied on that e-mail nor could he explain at final hearing how he saw that e-mail prior to the initiation of his administrative complaint. Petitioner's testimony on this point is not credible. Further, Petitioner admits he did not contact a supervisor prior to leaving his shift. Despite receiving and reviewing the General Work Rules, Petitioner irrationally assumed it was management's responsibility to reach out to him to find out what was going on, rather than him requesting time off. After going home, Petitioner made no effort that evening to contact a supervisor to explain why he left the job. Petitioner's suggestion, that leaving his work equipment was not an indication of quitting, is also not credible. Petitioner claims that he left the keys and equipment in what he believed was his own mailbox, assumed no one would touch it, and that the building was secure. Petitioner cross- examined the City witnesses at final hearing in detail about where his equipment was actually left (on a desk or in his mailbox) but, ultimately, he provided no rational explanation why he left everything in an unsecured building on December 7, 2017, when after every other shift, he previously took those things home. Petitioner did not identify any handicap or disability either while employed with the City or at final hearing. Nor did he request any accommodation that would have enabled him to perform the essential functions of the PES job.
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 dismissing the FCHR Petition 2018- 04710. DONE AND ENTERED this 13th day of May, 2019, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 13th day of May, 2019.
The Issue The issue for determination at the formal hearing was whether Respondent failed to maintain good moral character by falsifying official records of the Florida Highway Patrol with intent to mislead her supervisors in violation of Section 943.1395(5), (6), Florida Statutes. 1/
Findings Of Fact Between March 13, 1987, and July 9, 1987, Respondent was a law enforcement officer certified by Petitioner. All events incident to the findings of fact in this Recommended Order occurred while Respondent was working in the ordinary course of her employment as a Florida Highway Patrol trooper in Miami, Florida. On April 7, 1987, Respondent stopped motorist Donald McCarron for driving a vehicle with an expired tag. Respondent issued Mr. McCarron a correction card for driving a vehicle with an expired tag but did not issue motorist McCarron a written warning. Respondent claimed both a correction card and a written warning as work activity in her weekly report to her supervisor. On June 23, 1987, Respondent stopped motorist James Merklein for speeding. Respondent issued Mr. Merklein a citation for speeding. Mr. Merklein did not have his vehicle registration in the car. Respondent verbally warned Mr. Merklein to carry his vehicle registration in the car, but did not issue motorist Merklein a written warning. Respondent claimed both a citation and a written warning as work activity in her weekly report to her supervisor. The existence of incidents in addition to those involving motorists Merklein and McCarron was not established by competent and substantial evidence. One or two incidents in which Respondent failed to give correction cards and written warnings to motorists is not clear and convincing evidence of lack of good moral character. 2/ Respondent admitted to Lieutenant John C. Baker that she "on occasion" writes warnings and cards, leaves them in her patrol car seat, and forgets to give them to the violator. Such occasions occur only when Respondent has given a motorist a lengthy explanation. The record does not reflect that Respondent admitted to additional incidents alleged to have been documented by Sergeants Alvarez and Pelton. Instead, in the words of Lieutenant Baker, "she did not deny the allegations in the complaint." Florida Highway Patrol trooper work activity, in the form of claimed written warnings and correction cards issued to motorists, form a significant portion of a trooper's report of weekly work performed. In order for a trooper to legitimately claim credit for written warnings or correction cards, the trooper must have given a copy of the document to the motorist in question. A Florida Highway Patrol supervisor, in formulating a subordinate performance evaluation for a given period, compiles statistics of the trooper's work activity and utilizes these statistics to rate the trooper's work performance. Evaluations form the basis of Florida Highway Patrol decisions concerning trooper retention, promotion, and salary increases. During the Respondent's June, 1986, to June, 1987, Florida Highway Patrol work evaluation cycle, her work activity, as reported by her, was considered by the Florida Highway Patrol to be in the "low satisfactory" range. Discounting the two incidents established by clear and convincing evidence in which Respondent claimed written warning and correction card work activity on her weekly report but failed to give the written warnings and correction cards to the motorist would not have caused her work activity to fall below satisfactory.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Criminal Justice Standards and Training Commission issue a Final Order finding the Respondent not guilty of the charges in the Administrative Complaint. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 20th day of March, 1990. DANIEL MANRY 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 20th day of March, 1990.
The Issue Whether Respondent Employer is guilty of an unlawful employment practice by discrimination in its failure to promote Petitioner on the basis of her race and/or gender.
Findings Of Fact Petitioner is an African-American female. Respondent is a constitutional office of local government that appraises property for tax purposes. At hearing, Petitioner claimed to have sent a written narrative of her concerns to FCHR on December 20, 2005, although she did not file her formal Charge of Discrimination until December 28, 2005.1/ At the commencement of the disputed-fact hearing, Petitioner indicated that the only issue to be determined was her entitlement to a promotion, and that no other discrimination claims were at issue in this case. Petitioner also indicated that she was challenging only two alleged promotional decisions: (1) a front counter position awarded to Valencia Scott; and (2) a sales qualifier position awarded to Mike Nichols.2/ Prior to being employed by Respondent, Petitioner had received a B.S. in criminal justice, with a minor in business administration, from Troy State University. Prior to being employed by Respondent, Petitioner worked as a substance abuse counselor with Corrections Corporation of America; as a regulatory specialist with the Florida Department of Business and Professional Regulation; as an evaluation specialist with Disc Village; as a drug treatment counselor with the Alabama Department of Corrections; and as a mental health associate with Tallahassee Memorial Hospital. During her employment with Respondent, Petitioner also worked part-time in a cleaning job. Petitioner was initially hired by Respondent approximately January 2003, as an “Other Personal Services” (OPS) employee. (Stipulated Fact). While serving as an OPS employee between January 2003, and October 2003, Petitioner was not entitled to, and did not receive, the usual benefits and emoluments of a regular, full-time employee, including but not limited to, membership in the Florida Retirement System, paid annual and sick leave, and health insurance. While employed as an OPS employee, Petitioner answered Respondent’s telephone switchboard and performed data entry duties. In approximately October 2003, Petitioner was employed in a full-time position at a higher rate of pay and full benefits. (Stipulated Fact.) In October 2003, Respondent promoted Petitioner into a newly-created full-time position of "switchboard operator." Prior to the creation of this switchboard operator position, various employees had worked the switchboard in the equivalent of four-hour shifts, because working the switchboard non-stop was monotonous in good times and was hectic and stressful due to the number of phone calls received during two peak periods each year. On some occasions prior to October 2003, part-time students also had been used for this purpose. Petitioner was offered the promotion on October 8, 2003, with an effective starting date of October 16, 2003. Upon this starting date, Petitioner was employed by Respondent in a full-time position at a higher rate of pay than she had received as an OPS employee, and began to receive retirement benefits, annual and sick leave, and health insurance. In 2003, Respondent promoted five employees. Four of the five promoted were African-American and/or female. Petitioner was one of the four African-American females promoted that year. From December 28, 2004, through December 28, 2005, none of Respondent’s employees were promoted. During this same period, Respondent had no promotional opportunities of any kind available to any employee. There also were no promotions between December 20, 2004, and December 28, 2005. (See Exhibit P-4 and Finding of Fact 11.) Petitioner received raises throughout her employment with Respondent. During busy times, she was provided additional assistance with her phone duties upon her request, because management agreed with her that the switchboard position was stressful. Petitioner consistently received excellent performance reviews. In September 2005, Petitioner asked her immediate supervisor, Shirley Eaton-Marks, where Respondent would advertise a front-counter position that was expected to become vacant. Petitioner testified that Ms. Eaton-Marks “vaguely” responded, "I am not sure. Sometimes on the Internet or in the [Tallahassee] Democrat."3/ In or about September 2005, Petitioner was provided an extended period of leave for back surgery and recovery. (Stipulated Fact.) Petitioner was on sick leave from September 28, 2005, through November 14, 2005. Respondent provided Petitioner as much leave as she needed for her surgery and recovery. When she ran out of her own accrued paid leave, sick leave was donated to Petitioner by a co-employee. During her leave of absence, food drop-offs to Petitioner’s home were coordinated by her co-employees. Hot meals were provided by co-employees to Petitioner and her family, as well as groceries. During one of these deliveries, Petitioner remarked to Michele Weathersby, Respondent's Chief Financial Officer, that Petitioner was appreciative of her co- workers’ efforts and gifts. Petitioner seemed genuinely overwhelmed by their generosity. While on sick leave, Petitioner spoke with Kathy Doolin, Assistant Property Appraiser, about working at the front counter. A sales qualifier position was not available at that time, and by all accounts, even Petitioner’s account, Petitioner never applied for, or made anyone in Respondent's office aware that she was interested in the sales qualifier position. Petitioner claims she was wrongfully denied a front- counter position. She also claims that the front counter position and sales qualifier positions constituted promotional positions for her. Petitioner’s definition of a “promotion” is moving into a position with greater job responsibility and more authority. However, she did not demonstrate what the job responsibilities and authority of the front-counter or sales qualifier positions were. Therefore, the respective responsibility and authority of the three positions cannot be compared. Petitioner has never specifically applied for any promotion while employed by Respondent. The front-counter position was filled by Valencia Scott. Ms. Scott, like Petitioner, is an African-American female. According to Michelle Weathersby, Respondent’s Chief Financial Officer, Respondent defines a “promotion” as moving an employee to a position with an increase in salary and perhaps an increase in benefits, such as a different benefits classification like “senior management” class, instead of “regular employee” class. By these standards, neither the front desk position nor the sales qualifier position would have constituted a promotion for Petitioner, and moving from a front desk position to the sales qualifier position would not have constituted a promotion for anyone. Petitioner returned from sick leave on November 14, 2005. On December 19, 2005, Petitioner requested to speak to the incumbent property appraiser. Petitioner testified that on December 20, 2005, she approached the incumbent property appraiser in his office and asked if he were aware that she was interested in promotion. She further testified that the Incumbent then stated that he was aware Petitioner was interested in promotion, but that "Speaking from the hardhat point of view, you were hired as a favor to my friend. I did not hire you to be promoted or trained in any other position." At hearing, the Property Appraiser emphatically denied making this statement or any similar statement. However, he acknowledged that he had hired Petitioner upon the recommendation of a mutual friend and that on December 20, 2005, Petitioner had come to speak to him about the stress she was feeling in her position as a switchboard operator and about her health problems. Kathy Doolin, who was present for most, but not all, of the December 20, 2005, meeting, also denied under oath that the comment described by the Petitioner had been made by the Incumbent while she was in the room. Further, she confirmed that the thrust of Petitioner's remarks in her presence were not about any promotion but were about the stress Petitioner was experiencing in her switchboard operator job. The testimony of Ms. Doolin, together with the respective narratives written by herself and Petitioner (Exhibits P-2 and P-5) immediately after the December 20, 2005, meeting strongly suggest that the incumbent property appraiser said he had done all he could to relieve Petitioner's job stress and could not transfer Petitioner to another position just because her current position was stressful, and that Petitioner heard these statements as a refusal to promote her at any future date and a lack of appreciation for Petitioner’s college degree and excellent work history. The Incumbent’s and Petitioner’s respective versions of the December 20, 2005, conversation amount to an equipoise of testimony. In other words, one says "yes," and one says "no." This type of evidence is insufficient to tip the balance of weight and credibility to Petitioner's version of events. Moreover, even if Petitioner's version of the Incumbent's December 20, 2005, statement to her, allegedly made outside Ms. Doolin’s presence, were the more credible version, which it is not, Petitioner’s version of what the Incumbent allegedly said expressed no racial or gender bias. Petitioner testified that she believed that what the incumbent property appraiser had said on December 20, 2005, and how he had said it, created a hostile work environment. However, Petitioner never filed any internal complaints with Respondent alleging that she had been subjected to a hostile work environment. In fact, she filed no internal discrimination complaints of any kind concerning the December 20, 2005, meeting, and the term "hostile work environment" did not appear until her July 6, 2006, Petition for Relief, which was filed after FCHR's "Determination: No Cause." On her lunch hour, either December 20 or 21, 2005, Petitioner telephoned her physician, because she was still upset by her perception of the December 20, 2005, meeting. Petitioner never returned to work after December 21, 2005. On December 23, 2005, Petitioner's doctor wrote a note for her to be off work from December 22, 2005, until January 2, 2006, due to undefined "significant health problems." On or about December 23, 2005, three days after the December 20, 2005 meeting, when Petitioner was no longer on the job, Mike Nichols, a Caucasian male, was transferred from the front counter into a sales qualifier position. Mr. Nichols had previously worked in Respondent's Deed Section and in its Mapping Section and had recently received his law degree from the University of Florida. Respondent considered Mr. Nichols to be a suitable candidate for the sales qualifier position. Upon transfer, Mr. Nichols did not receive a raise in his rate of pay. Petitioner never applied for the sales qualifier position (see Finding of Fact 18) and was not on the job when that position was filled. (See Finding of Fact 29.) While the duties of a sales qualifier were not developed at hearing, the job title “sales qualifier” suggests that Petitioner was arguably not as good a fit for the sales qualifier position, as was Mr. Nichols. Petitioner’s education was primarily in criminal justice, and her job experience was primarily in drug rehabilitation and answering a switchboard. Mr. Nichols’ legal education and training and his office experience with Respondent may have made him a superior candidate for the sales qualifier position. When contacted by her superiors, Petitioner gave no reason for leaving work, except that it would be "best under the circumstances." On January 4, 2006, Petitioner voluntarily resigned her employment with Respondent. (Stipulated Fact.)
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief and its subordinate Charge of Discrimination. DONE AND ENTERED this 3rd day of November, 2006, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 3rd day of November, 2006.
The Issue This matter concerns the issue of whether the Respondents' public lodging establishment license numbers 27-01381H and 27-01382H should be suspended four allowing the premises of the Coachman's Inn and the Coachman's Inn Annex to be used for prostitution On December 20, 1982, the Director of the Division of Hotels and Restaurants entered an emergency order of suspension of the public lodging establishment, license numbers 27-01382H and 27-01381H, and caused this emergency order to be personally served upon the Respondents. Simultaneous with the emergency order of suspension, the Director caused to be served upon the Respondents a notice to show cause as to why the above-referenced licenses should not be suspended or revoked for the reasons set forth in the notice to show cause. The notice to show cause specifically alleged: On or before and subsequent to November 1, 1982, to the date of this Notice, investigation has revealed that the Coachman's Inn has been established, continued and maintained as a premises or place which tends to annoy the com- munity, injure the health of the com- munity, or injure the morals and manners of the people of the community, as a premises or place of prostitution, assigna- tion, lewdness, or place or building where A any law of the state is violated contrary to F.S. 823.05 and F.S. 509.032(1) and F.S. 509.261. Since on and before November 1, 1980 and subsequent thereto the date of this Notice, investigation has revealed that the Coachman's Inn has been maintained and operated as a place for the purpose of lewdness, assignation, or prostitu- tion or a house of ill fame in violation of F.S. 796.01, F.S. 796.07, F.S. 509.032 (1) and F.S. 509.261. The Respondent was advised of his right to request a formal hearing and having filed a timely request, a formal hearing was held in this matter on December 29, 1982, at the Regional Service Center, Pensacola, Florida. The Division of Hotels and Restaurants called as witnesses, Mr. Brian Barton, a police officer for the City of Pensacola assigned to the Major Crimes Division, Vice and Intelligence. The Division also called Mr. Paul Silivos, the owner of a restaurant called Skopelo's which is located across the street from the Coachman's Inn and also called Mr. John W. Peaden, an investigator for the State Attorney for the First Judicial Circuit and assigned to the Fort Walton Beach office. The last witness called by the Division was Mr. William Snow, also of the Pensacola Police Department. The Respondent called as its witness Mr. Thomas Pelt, the previous owner of the Coachman's Inn; Mrs. Patel, the wife of the present owner; Ronald J. Stafford, a realtor in the Pensacola area; and Mr. Arvin Patel, the Respondent. In rebuttal, the Division called Mr. Steven Paul Bolyard, an investigator with the State Attorney's office of the First Judicial Circuit and assigned to the Escambia County office. Petitioner offered as exhibits a drawing of the Coachman's Inn which was admitted-as Exhibit No. 1; an order of temporary injunction dated November 24, 1982, which was admitted as Petitioner's Exhibit No. 2; and two (2) newspapers published in the Pensacola area which were marked as Petitioner's Exhibit No. 3, but not accepted into evidence. The Respondent offered six (6) exhibits consisting of: Exhibit No. 1, the sales agreement for the purchase of the Coachman's Inn; Exhibit No. 2, a promissory note executed in connection with the purchase of the Coachman's Inn; Exhibit No. 3, a bill of sale for the purchase of personal property; Exhibit No. 4, a security agreement executed in connection with the purchase of the Coachman's Inn; Exhibit No. 5, the registration cards for the Coachman's Inn and Annex since April, 1981; and Exhibit No. 6, the 1980 tax return for the Coachman's Inn. All six (6) of the exhibits offered by the Respondent were admitted into evidence without objection from the Petitioner. Counsel for both Petitioner and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that such findings of fact were not adopted in the Recommended Order, they were rejected as being irrelevant to the issues In this cause, or as not having been supported by the evidence.
Findings Of Fact The Present owner of the Coachman's Inn purchased the Coachman's Inn in April, 1981. The motel was purchased for a price of $625,000.00, with $100,000.00 of that amount being paid in cash by the present owner at or before closing. Since the purchase of the motel, the owner has made approximately $25,000.00 worth of improvements to the motel. These improvements consist of new carpet and bedding. The Coachman's Inn and Annex are located at 1801 West Cervantes Street in Pensacola, Escambia County, Florida. The motel consists of one main area adjacent to the motel office and an annex located to the west of the main area. The motel has sixty-six (66) rooms of varying sizes and prices. The motel is bordered on the west by a liquor store and across the street by a restaurant. The Coachman's Inn is located in an area which has had ongoing problems with prostitution since at least 1979. Numerous known prostitutes have operated primarily in the area in and around the Coachman's Inn and the liquor store located to the west of the Coachman's Inn. During 1982, known prostitutes were observed on numerous occasions flagging down and waving to passing motorists from the balconies and parking lot of the Coachman's Inn. Specifically, since July of 1982, police officers of the Pensacola Police Department and Investigators of the State Attorney's office observed on numerous occasions know prostitutes operating on the premises of the Coachman's Inn. They would stand in the parking lot area of the Coachman's Inn and in front of the rooms or on the balconies of the Coachman's Inn and flag down passing traffic. In July of 1982, Officer Brian Barton of the Pensacola Police Department spoke with Mr. Patel about the prostitutes and informed him that he was going to have to do something to prevent his premises from being utilized for the purposes of prostitution. He was advised at that time that his license would be in jeopardy if he did not take proper steps to eliminate the prostitution. At that time Mr. Patel acknowledged that he was aware of the prostitution problem and that the individuals who were engaged in prostitution were in fact guests in his motel. Since July of 1982, Mr. Barton has made spot checks on a weekly basis and during August and September had ongoing investigations involving the Coachman's Inn. Following his July conversation with Mr. Patel he observed no efforts on the part of the management to stop prostitution. He also observed no decrease in the prostitution activities taking place on the premises of the Coachman's Inn. The previous owner, Mr. Thomas Pelt, had problems with prostitutes operating in and around the Coachman's Inn from the time he purchased the motel in January, 1978. At the time he sold the motel to the Respondent, he informed him of the various problems he had had with Prostitution. In his first year of operation, Mr. Pelt estimated that he made at least two hundred (200) calls to the Pensacola Police Department and many times was required to make several calls in a single day in order to have the police come out and remove prostitutes from the premises of the Coachman's Inn. During that same time period he hired, for several months, a part-time security guard who was an off- duty Pensacola police officer. The security guard was allowed to wear his Pensacola police uniform and was very effective in finally helping to eliminate the prostitutes from operating on the premises of the Coachman's Inn. Mr. Pelt, as a result of his efforts, was successful in ridding the Coachman's Inn of Prostitutes operating on the premises. On September 15, 1982, Officer Barton, while working a vice operation with two (2) other officers in the area of the Coachman's Inn, was approached by a white female named Betty Salter in the parking lot area of the Coachman's Inn. This contact took place in area adjacent to Room 159 of the motel. Following a short conversation, Officer Barton was invited by Betty Salter and another white female into a room of the motel where he was solicited for prostitution. He then placed Betty Salter under arrest. On November 6, 192, Mr. Barton accompanied Officers William Snow and Perry Osborne in a vice operation in the area of the Coachman's Inn. Officer Snow's vehicle was wired with a recording device. As Officer Snow passed the Coachman's Inn he was flagged down by a female impersonator named Chris Cambria. Officer Snow pulled into the parking lot of the Coachman's Inn where he was approached by Chris Cambria and invited into a room of the motel. The room was located in the center of the horseshoe shaped area in the eastern portion of the motel. Once in the room, Officer Snow was solicited for sexual acts for pay by Chris Cambria. Mr. Cambria was then placed under arrest. At the time that Officer Snow was originally flagged down by Chris Cambria, Mr. Cambria was standing in the doorway of Room 269 which is the room located in the center of the horseshoe area to the east of the office. On November 9, 1982, Mr. John W. Peaden, an investigator with the State Attorney's Office for the First Judicial Circuit, conducted an undercover investigation at the Coachman's Inn. Prior to going to the premises of the Coachman's Inn, Mr. Peaden was briefed and shown photographs of known prostitutes in the area. Upon arriving there he saw several known prostitutes in the Darking lot and on the balconies of the Coachman's Inn. On the night of November 9, Mr. Peaden checked in as a guest. Mr. Patel and a lady who appeared to be his wife were in the lobby at the time that Mr. Peaden checked in. From the lobby, Mr. Peaden observed several known prostitutes on the premises of the Coachman's Inn. After leaving the lobby, Mr. Peaden was approached by a black female who asked if he wanted some company for the night. She followed him to the door of his room and as he opened the door, she pushed her way into the room. After entering the room, she made offers of sexual acts for pay. Prices were quoted by her and agreed upon by Mr. Peaden. Mr. Peaden then left the premises of the Coachman's Inn. When he returned to the Coachman's Inn, he spoke with Mr. Patel who told him to stay away from the black prostitutes because they were bad. Mr. Peaden then asked him about the white prostitutes and their availability. While Mr. Peaden was talking with Mr. Patel in the lobby, a white female and known prostitute named Brenda Howard came into the lobby and appeared to be disoriented and spaced out. She went up to Mr. Patel and asked for a room. At that moment Mr. Patel looked at Mr. Peaden and nodded to Mr. Peaden in a way that appeared to Mr. Peaden to suggest that this was a young lady who was available for prostitution. Mr. Patel gave the young lady Room 213 which is right next door to Room 214 which had been assigned to Mr. Peaden. The young lady wrote only her name on the card and Mr. Patel, as he pulled the card away, said that was enough. Mr. Peaden was charged approximately eighteen dollars ($18.00) for his room and Brenda Howard was charged just over twenty dollars (- $20.00) for her room. In Composite Exhibit 5, there is a registration card dated November 9, 1982, for a Brenda Howard who was assigned to Room 213 and with incomplete information on the card. After Brenda Howard left the lobby, Mr. Peaden asked Patel how he could make contact with her and Mr. Patel said she is in Room 213 and he could call her on the motel phone. Mr. Peaden returned to his room and attempted to call the young lady in Room 213 but received no answer. He then returned to the lobby of the Coachman's Inn where he contacted Mr. Patel again and informed him that he was unable to get in touch with Brenda Howard. Mr. Patel then tried to call her from the lobby but also received no answer. Mr. Peaden then asked Mr. Patel if she was okay and if there were any problems with diseases. Mr. Patel responded "no"' and said "she will be all right tomorrow, come back then." Mr. Peaden then left the premises of the Coachman's Inn. On November 10, 1982, Mr. Peaden returned to the Coachman's Inn and again observed known prostitutes on the premises of the Inn. Mr. Peaden was again solicited for sexual acts for pay by a black female L. T. Manuel. Through L. T. Manuel, Mr. Peaden also contacted Brenda Howard at Room 201 and made arrangements for Brenda Howard and several other women to provide sexual acts for pay for that night. Later in the evening of November 10, 1982, Mr. Peaden and an Officer West were approached by two (2) known prostitutes, Pat Smith and Rosa Robinson, in the parking lot of the Coachman's Inn. They offered to perform sexual acts for pay for Mr. Peaden, Officer West, and two (2) other undercover officers. It was agreed that the two (2) women would obtain two (2) other prostitutes to also perform sexual acts for the four (4) investigators. Pat Smith and Rosa Robinson returned with two (2) other women and at that time each woman was paid twenty- five dollars ($25.00) each with marked money for the sexual acts to be performed. After the money was exchanged, the four (4) women were arrested. On December 8, 1982, Officer Brian Barton observed Phyllis Ford, a known prostitute, talking to a gentleman in a black cadillac in the Coachman's Inn parking lot. She directed him to the area of Room 240 where Chris Cambria was waiting. Room 240 is in clear view of the Coachman's Inn lobby and office and Mr. Patel was in the lobby. After spotting one (1) of the undercover officers, Chris Cambria left the area of Room 240, proceeded to the lobby and was observed talking and laughing with Mr. Patel. On December 13, Mr. Peaden went with an Officer Jack Kliger to the Coachman's Inn. Upon arriving at the Inn, he again observed known prostitutes in the area. He specifically observed Phyllis Ford in the eastern most area of the Coachman's Inn and Murray Anne Hill walking down the street and into the parking lot of the western annex building of the Coachman's Inn. Both Phyllis Ford and Murray Anne Hill are known prostitutes. He observed Phyllis Ford walk out of Room 260 toward the lobby of the motel. Mr. Peaden then pulled into the parking lot in the area of Room 260. At that time Phyllis Ford was standing at the door of Room 260 and came to the passenger door of his car. She engaged him in conversation and then solicited sexual acts for pay. A price was agreed upon and Mr. Peaden asked her to get into the car to leave the area and she said no, "If you want it, you've got to come into my room." Mr. Peaden then left the area to set up a plan for arrest and upon returning to the Coachman's Inn observed Phyllis Ford in the window of Room 260. She came out of the room and saw Officer West and recognized him and then tried to go back into the room. She was then placed under arrest by Mr. Peaden. The prostitution on the premises of the Coachman's Inn was "wide open" and overt. As late as December 13, known prostitutes were still operating on the premises of the Coachman's Inn in an open and overt manner. The young ladies who were operating as prostitutes in and around the Coachman's Inn were generally dressed in a casual manner and the clothes they wore were not provocative. Room 214, Room 201 and Room 260 were rooms which were not visible from the office of the Coachman's Inn. As a part of the November 9 and 10 investigation by Mr. Peaden and the other officers, seven (7) persons were arrested. These people included Jacqueline Blount, Patricia Smith, L. T. Manuel, Brenda Sue Howard, Rosa Hawkins, Rosa Robinson, and Mr.. Patel, the owner. On November 24, 1952, Circuit Judge Joseph Q. Tarbuck entered an order of temporary injunction. That injunction provided in relevant part: The Court being advised that the parties have stipulated to entry of the below temporary injunction enjoining the defendant or agents from knowingly, intentionally or negligently allowing acts of prostitution, assignation, lewdness and violance on the premises of the Coachman's Inn, 1801 Nest Cervantes Street, Pensacola. Escambia County, Florida. It is therefore, ordered that the defendant and his agents are hereby temporarily enjoined from maintaining a nuisance on the premises of said Coachman's Inn and, further, that the defendant and his agents shall refrain from allowing acts of prostitution, assignation, lewdness or violance on said premises either knowingly, intentionally or negligently, either through lack of ability or diligent effort. Following the entry of the temporary injunction, Mr. Patel and his wife claimed that they began a policy of not allowing prostitutes to register in the motel and on four (4) or five (5) occasions, called the police and complained. On at least one (1) occasion, which was witnessed by Mr. Thomas Pelt, Mr. Patel went out into the parking lot and asked a known prostitute to leave the premises. There was no other evidence presented as to steps taken by Mr. Patel in eliminating the prostitution problem following the entry of the temporary injunction on November 24. Known prostitutes continued to operate on the premises of the Coachman's Inn after November 24, 1982. The Respondent, Mr. Arvin Patel, has a substantial investment in the Coachman's Inn and will offer severe financial losses if he is unable to continue operating the motel. Mr. Patel testified that it was his plan to make some additional improvements and attempt to sell the motel by June 1, 1983, if he were allowed to reopen. The Previous owner would be adversely impacted by Mr. Patel's inability to make the four thousand dollar ($4,000.00) per month mortgage payment to the previous owner. During 1982, MT. Paul Silivos, owner of Skopelo's Restaurant had complaints from customers regarding the prostitution at the Coachman's Inn. He observed no visible prostitution when the Coachman's Inn was owned by Mr. Felt, but described the prostitution at the Coachman's Inn during 1982, as "wide open twenty-four (24) hours a day." All of the witnesses who testified for the Petitioner, described the prostitution at the Coachman's Inn as wide open and overt. This was not denied by Mr. Patel nor did he disagree with the descriptions of these witnesses. The Respondent, Arvin Patel, was aware prior to November, 1982, that Helen Merriweather was operating as a prostitute in and about the premises of the Coachman's Inn. In approximately April, 1982, Mr. Patel claimed that he had stopped renting a room to her. Mr. Patel was aware that Rosa Robinson, Murray Anne Hill, Chris Cambria, and L. T. Manuel a/k/a Tonya Tripp were prostitutes operating on and around the premises of the Coachman's Inn. This was revealed by Mr. Patel's claim that he had attempted to stop renting to these individuals at varying times during 1982 because of their prostitution activities. On December 18, 1982, Chris Cambria was observed by Officer Barton. Chris Cambria was picked up by a white male in a pickup truck and they then drove to Room 240 of the Coachman's Inn. At the time Mr. Patel was in the parking lot of the Coachman's Inn and had a clear, unobstructed view of Room 240.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That public lodging establishment license numbers 27-01382H and 27-01381H be suspended for a period of sixty (60) days. IT IS FURTHER RECOMMENDED: That the suspension be lifted prior to the end of the sixty-day Period, upon the Division of Hotels and restaurants being assured that adequate and reasonable steps have. been taken to prevent the use of the premises of the Coachman's Inn for the purpose of prostitution, DONE and ENTERED this 19th day of January, 1983, in 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 19th day of January, 1983. COPIES FURNISHED: Harold F.X. Purnell, Esquire General Counsel January, Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 William J. Green, Esquire GREEN, DEES and FRANCE 418 North Palafox Street Post Office Box 12602 Pensacola, Florida 32574 Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Sherman S. Winn, Director Division of Hotels and Restaurants Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATION DIVISION OF HOTELS AND RESTAURANTS STATE OF FLORIDA, DEPARTMENT OF BUSINESS REGULATION, DIVISION OF HOTELS AND RESTAURANT, Petitioner, vs. CASE NO. 82-3467 H & R NOS. 27-01381H ARVIN JARAM and JAIRAM ISHWARLEL 27-01382H d/b/a COACHMAN'S INN and COACHMAN'S INN ANNEX, Respondent. /
The Issue The issue in this case is whether Respondent engaged in an unlawful employment practice by discriminating against Petitioner on the basis of handicap, in violation of section 760.10, Florida Statutes, and, if so, the appropriate remedy.
Findings Of Fact Petitioner is a 37-year-old Caucasian male. Respondent is an insurance agency registered and licensed to do business in Florida and headquartered in Boca Raton, Florida. Respondent is a direct marketer of insured products, including health insurance policies, and non-insured products, such as lifestyle benefit programs and telemedicine. Respondent uses a call center model to market insurance products. At the call center, sales agents take calls from prospective clients and are paid a "base wage" plus commission. Since sales agents are paid a base wage, they must meet minimum sales requirements to help offset the fixed costs associated with their employment. Petitioner became employed at Respondent's Miramar call center as a sales agent starting on or about September 9, 2013. His employment duties entailed calling potential sales leads and selling non-major medical insurance policies over the telephone. The position for which Petitioner was hired did not have a specified term of employment, and Petitioner and Respondent did not execute an employment contract when Petitioner was hired.1/ Petitioner's work hours were from approximately 8:00 a.m. to 5:30 p.m., five days per week. Sales agents, including Petitioner, were paid $12.50 per hour, with a guaranteed salary of $500 per week, plus a commission on sales made. In late September 2013, Petitioner became ill. His illness manifested itself as shortness of breath and coughing. By late October 2013, his illness had progressed to the point that he was experiencing acute respiratory distress episodes. Petitioner testified that he experienced shortness of breath that, at times, made it "physically impossible" to talk on the telephone. However, he also testified that "I was on the phone doing what I was supposed to be doing, making calls and talking to potential customers, and I was doing it in a way in which other agents did it, which was normal and customary."2/ During his employment tenure with Respondent, Petitioner took time off work for medical appointments related to his condition, but he could not recall how many times, or for how long. There was no evidence presented showing that Respondent was aware of the specific reason for Petitioner's medical appointments. On October 30, 2013, the day he was terminated, Petitioner experienced a respiratory distress episode and had to use the nebulizer while at work. He also had experienced a similar episode at work approximately two days before and had had to use the nebulizer. Petitioner did not inform Respondent that he was experiencing shortness of breath, respiratory distress, or any other medical condition that interfered with his ability to perform his job. The persuasive evidence establishes that Respondent's human resources representative had witnessed the acute respiratory distress episode that Petitioner suffered the day he was terminated. However, there is no direct evidence that anyone with Respondent in a position (such as supervisors or managers) to make decisions about Petitioner's employment was made aware of his shortness of breath, acute respiratory distress episodes, or use of the nebulizer while at work. On October 30, 2013, Respondent terminated Petitioner from his employment. The evidence shows that at the time Petitioner was terminated, he was informed that it was due to inadequate sales production.3/ Petitioner testified at the hearing, on rebuttal, that when he was terminated, the manager who fired him "made a comment to me that I couldn't do my job, referring to the fact that I was short of breath on the phone, not to the——to a reference of low sales."4/ There is no other evidence in the record that Petitioner was told that he was being fired because he was physically unable to do his job. Petitioner testified that he did not recall having been informed, before his termination, that he was not meeting performance expectations. He testified that he did not know how his sales performance compared to that of other agents whose employment duties were the same as his. He testified that he did not believe he was the lowest-performing sales agent at the call center. He also testified that he believed he was the only person terminated that day. However, he did not articulate any specific factual or perceptual bases for these beliefs. At the time he was terminated, Petitioner asked to be given two extra days, until Friday of that week, to allow new medications he recently had been prescribed to be given a chance to work so that he could talk on the telephone without experiencing severe shortness of breath. Respondent declined to provide him the two extra days before terminating him. Petitioner had been employed with Respondent for approximately seven-and-a-half work weeks5/ when he was terminated. Petitioner testified that as of October 30, 2013, he was "disabled,"6/ although he did not know it at that time. He testified, persuasively, that he continued to have difficulty breathing after being terminated. Sometime after he was terminated, Petitioner was determined eligible for Supplemental Security Income ("SSI") benefits from the Social Security Administration, and eligible for vocational rehabilitation services from the Florida Department of Education, Division of Vocational Rehabilitative Services.7/ Petitioner asserts that even though he did not notify Respondent that he was disabled before he was terminated, he believes that Respondent's supervisors and managers perceived him being as disabled due to his respiratory distress episodes, shortness of breath, and use of a nebulizer while at work, and that they terminated him on that basis. However, as noted above, the evidence does not show that anyone in a position to make decisions about Petitioner's employment was aware of his health condition before Respondent terminated him. At the time of Petitioner's employment, Stephen Fingal was Respondent's director of enrollment and oversaw the sales department, including the call centers. Petitioner was among the employees Fingal supervised. Fingal testified that each call center sales agent was required to make a minimum of 12 "primary" insurance policy sales per week8/ in order to cover his or her $500 per week salary,9/ as well as the cost of "leads," which are generated through Respondent's commercial advertising programs, and break down to a fixed cost of roughly $1,500 to $2,000 per week per agent. The competent, persuasive evidence, consisting of Fingal's testimony and sales logs,10/ shows that Petitioner consistently failed to meet the minimum sales performance standard over the entire term of his employment with Respondent. During Petitioner's first week of employment, he was being trained, so made no sales. He made four total sales his second week of employment; no sales his third week of employment; one total sale his fourth week of employment; 17 sales of mostly ancillary policies his fifth week of employment; no sales his sixth week of employment; nine total sales his seventh week of employment; and no sales the week he was terminated.11/ The evidence does not establish a pattern linking Petitioner's lack of productivity to any documented episodes of shortness of breath or respiratory distress. Over Petitioner's entire tenure with Respondent, he sold a total of only 33 policies. Of these, only 15 were primary health insurance policies. By contrast, using the 12-sales-per week minimum performance standard, an agent whose sales performance level was marginally adequate would have sold at least 60 primary policies over a five-week period——approximately four times more than Petitioner sold over a six-and-a-half week period. To prove this point, Respondent presented the sales productivity information for two other sales agents, whose performance was characterized as "average," for the same time period as Petitioner's employment. These agents sold approximately two times more primary policies and three times more ancillary policies than Petitioner sold during the same period. On cross-examination, Fingal characterized Petitioner's comparative sales performance as "in the lower quadrant." When asked whether it was possible that 20 to 25 percent of the sales agents performed at a lower level than Petitioner, Fingal answered "probably not." Fingal testified, persuasively, that Respondent declined to give Petitioner the requested two additional days because he asked for them when he was terminated. By that point, Respondent already had determined, based on Petitioner's consistent failure to meet minimum performance standards over his entire employment term, that Petitioner was not going to be a productive employee.12/ Respondent does not hire part-time sales agents, and at the time Petitioner was terminated, there were no sales positions that did not involve speaking on the telephone. Additionally, at the time Petitioner was terminated, Respondent did not have any available non-sales positions into which Petitioner could transfer. Moreover, even if such positions were available, there was no evidence showing that Petitioner was qualified for them. In any event, the evidence shows that Petitioner never requested to be transferred to an alternative employment position that did not entail speaking on the telephone. Petitioner did request what he characterized as an "accommodation" of two additional days, but, as discussed above, Respondent declined because it had already decided to terminate him due to his consistently inadequate performance over the term of his employment. Petitioner posited that he was not the lowest performing sales agent, but he did not present any evidence to support that supposition. He also posited that he was the only sales agent terminated that day, but, again, did not present any evidence supporting that supposition. He did not present any evidence showing that non- disabled call center sales agents who performed at or below the same level as he performed were not terminated. He presented no evidence showing that Respondent subsequently filled his position with a non-disabled person. In fact, approximately ten months after Petitioner was terminated, Respondent substantially reduced its call center sales agent work force, closed the Miramar call center, and consolidated its call center operations at its Boca Raton location, in an effort to reduce the substantial cost associated with having call centers in multiple locations. This is consistent with Respondent's assertion that Petitioner was terminated because he was not a profitable employee and that Respondent was losing money in continuing to employ him.
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. DONE AND ENTERED this 9th day of February, 2016, 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 9th day of February, 2016.
The Issue : The issue in this proceeding concerns whether the Petitioner has been the victim of a discriminatory housing practice, in alleged violation of Sections 760.20 through 760.37, Florida Statutes (2007).
Findings Of Fact The Petitioner is a physically handicapped person. He resides in a residential unit (Unit 11C) in the Sea Cabins residential complex. The Petitioner is a full-time resident at Sea Cabins and is the owner of unit 11C. The Respondent is a Florida Corporation (not for profit) and is a homeowners association, as defined by Section 720.303, Florida Statutes (2008). Sometime in early May 2007, Nancy Maconi, the Petitioner's wife, placed a number of signs around the Sea Cabins property. The Respondent purports that there were approximately 13 signs. One of the signs was a designated handicap parking space sign for unit 11C. It was erected in close proximity to the Petitioner's Sea Cabins unit 11C. Thereafter, the Petitioner sought reimbursement for the cost of the signs from the homeowners association board of directors, the Respondent. The request was denied at a meeting of the board of May 11, 2007, with the minutes reflecting that the Petitioner had not requested nor been granted permission to install any signs, hence the denial at that point. Ms. Maconi testified at the hearing that she had asked the Respondent's manager for permission to install the signs, which the manager, Willa Merriott, denied. The action of the board at the May 11, 2000 meeting, however, is not in dispute. Thereafter, on approximately June 22, 2007, the attorney for the Respondent wrote the Petitioner requesting that the designated handicap parking sign be removed since it had not been authorized by the board, nor had any formal request for the installation of the sign been made. On June 23, 2007, the Petitioner responded to that letter by requesting that the board formally authorize the handicap parking sign. A letter from the Veterans Administration was attached to that letter to the effect that the Petitioner had a service-connected disability. The specific nature of the disability was not specified, however. In any event, the Respondent association acquiesced in the handicap parking sign at issue remaining in place and use while it investigated whether the Petitioner was actually entitled to a handicap parking space. The Petitioner was advised by letter of October 11, 2007, by the Respondent, that the handicap parking sign could remain in place while his application was pending. A series of letters then passed between the parties or their representatives in October through December 2007. Pursuant to its policy concerning the granting of handicapped parking spaces and the like, the association sought information on the nature of the Petitioner's disability or handicap. The Petitioner countered by taking the position that the association already had enough information upon which to make its decision. In any event, however, through this period, the Petitioner's designated handicapped parking space and sign remained in place in the original location where Ms. Maconi had placed it. The Respondent acquiesced in its presence and in the Petitioner's use of the handicapped space. Counsel for the Respondent received a letter dated January 3, 2008, from Paul E. Brooks, a Podiatrist, revealing for the first time the specifics of the Petitioner's disability. That is, he has an orthopedic condition which limits his ability to walk. This letter was received on January 8, 2008, and considered by the board of directors at a special meeting held January 28, 2008. At that meeting the board formally granted the Petitioner's application for a designated handicap parking space and voted to allow the sign already erected by Ms. Maconi to remain permanently in place. Due to a misunderstanding between the board and its counsel as to who should notify the Petitioner of the decision, the Petitioner was not actually notified of the decision until March. By letter of March 17, 2008, counsel for the homeowners' association wrote the Petitioner of the actions of the board regarding the sign.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the subject Petition for Relief in its entirety. DONE AND ENTERED this 27th day of January, 2009, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 27th day of January, 2009.
The Issue The issue in this case is whether the Respondent's proposed award of DCPHU Bid I-90 to the Intervenor, Meyers Parking Systems, Inc., for the management of a parking facility located at 1350 Northwest 14th Street should be upheld.
Findings Of Fact For approximately the last ten years, Kinney has operated the parking lot at the Dade County Public Health Unit building located at 1350 N.W. 14th Street in Miami, Florida (the "Parking Lot") pursuant to a contract with HRS. The existing contract between Kinney and HRS for the management of the Parking Lot was entered in June 1989 and was scheduled to expire on June 30, 1990. That contract included two one-year options to renew. The contract also included a provision that allowed either party to terminate the contract upon thirty days notice. The contracts for management of the Parking Lot in previous years were substantially identical in form to the existing contract. In February of each year, a contract review committee consisting of the head of the administrative services department of the facility (the "Contract Manager') and several other employees of the facility would meet to discuss the Parking Lot contract and to determine whether to renew the contract or rebid it. (This Committee will be referred to as "Parking Lot Committee.") The Contract Manager (whose title has been recently changed to Administrative Services Director) essentially chaired the Parking Lot Committee and appointed the other employees who served on the Committee. For the last ten years the Contract Manager has been responsible for overseeing this contract. During this time, his main contacts at Kinney were Chuck Adams, who was usually at the Parking Lot on a daily basis, and Mr. Adams' supervisor, Ken Deutsch. Both Mr. Deutsch and Mr. Adams left the employ of Kinney sometime prior to February, 1990. The exact date of their departure was not established. Both Mr. Deutsch and Mr. Adams now work for Meyers. Kinney's new representative with respect to the Parking Lot contract was Tony Benyon, who assumed those responsibilities on February 1, 1990. Mr. Benyon had previously worked for Meyers and was on the job only twenty two days before the decision was made to rebid the contract. On February 22, 1990, the Parking Lot Committee met and determined not to renew the contract with Kinney. At the time this decision was made, the Contract Manager was aware that the former Kinney employees had switched jobs and were now working for Meyers. However, it does not appear that he brought the job changes to the attention of the Parking Lot Committee because at least one member of the Committee was not aware of the job changes. On or about March 23, 1990, HRS issued an invitation to bid for the management and operation of the Parking Lot (the "Invitation to Bid.") Although the evidence did not establish exactly how many time this contract had been bid in the past, it appears that bids were solicited for this contract on at least two prior occasions during the ten years that Kinney had been operating the Parking Lot. On each occasion, the Invitation to Bid form was substantially identical to the form used in March of 1990. Page 6 of the Invitation to Bid requested bidders to submit a resume of their backgrounds. Page 8 of the Invitation to Bid was entitled "Bid Sheet" and required bidders to submit the following information: "(1) Proposal for Operating the Lot; (2) Proposed Rates, (3) Proposed Net Income Distribution." The Invitation to Bid did not require the bidders to provide any documentation regarding their financial condition nor did it indicate that prior job performance would be considered in evaluating the bids. The Invitation to Bid contained a provision that "any questions concerning conditions and specifications shall be directed in writing to this office for receipt no later than ten (10) days prior to the bid opening." Between the time the Invitation to Bid was sent out and the bids were received, the Contract Manager admits that he "probably" had conversations with some of the bidders and responded to questions about the bid. The Contract Manager could not specifically recall any such discussions with potential bidders between the time the Invitation to Bid was sent out and the date the bids were submitted. However, he admitted that it was likely that some discussions took place. Kinney was never advised of any such discussions between the Contract Manager and other potential bidders. Three sealed bids (including proposals from Kinney and Meyers) were received and opened by HRS at a bid opening on April 4, 1990. A fourth bid was disqualified because it was not sealed. The members of the Parking Lot Committee and representatives of the bidders were present at the bid opening. The bid submitted by Kinney proposed a net income distribution to HRS of 82.5 percent with the remaining 17.5 percent being retained by Petitioner. The Kinney bid also contained a specific breakdown of anticipated costs, fees and expenses to be deducted from the projected gross income to achieve projected net income, a resume and a list of references regarding other-lots being managed by the Petitioner in the area. Meyers and Hi-Rise Parking Systems, Inc. ("Hi- Rise") also submitted bids. Both of those bids contained a proposed net income distribution of 90 percent to HRS. Neither the Hi-Rise nor the Meyers' bids contained a resume or a list of local references of other lots being managed by the companies nor did they contain a listing of anticipated costs, fees and expenses. At the bid opening, the Contract Manager indicated that the bids submitted by Meyers and Hi-Rise were the low bids and the Parking Lot Committee would meet to determine how to "break the tie." At this point, Kinney was effectively eliminated from consideration. By letter dated April 10, 1990, the Contract Manager requested additional information from Meyers and Hi-Rise as follows: Company background information including officers, organization and latest financial/management audit; [and] At least three references to include name of contact person, firm, mailing address and telephone number. The Contract Manager did not request any additional information from Kinney or the disqualified bidder. On or about April 16, 1990, Meyers submitted the requested information to the Contract Manager. On or about April 17, 1990, Hi-Rise submitted the requested information to the Contract Manager. Thus, it is clear that information regarding the financial condition of Meyers and Hi-Rise was not submitted until after the bids were opened. On May 1, 1990, the Parking Lot Committee met to discuss the additional information received from Meyers and Hi- Rise. At that meeting, the members of the Committee completed a "bid selection review form" that listed (1) net income distribution (2) references and (3) company management and financial condition as the criteria for evaluation of the bids. The Committee determined that Meyers and Hi--Rise were "tied" in all categories except financial condition. At best, the submitted financial information provides a cloudy picture of Meyers' financial status. The information indicates that Meyers showed an income loss for the year 1988-1989 of $3,670,000. While a large portion of this loss is apparently related to corporate restructuring, it does not appear that any members of the Parking Lot Committee understood or fully considered this financial information nor did they seek to have the submitted financial information reviewed by an accountant. Hi-Rise's financial records indicate that it is a significantly smaller company, but its records indicated a positive cash flow for the preceding year. Notwithstanding these facts, the Committee decided to award the contract to Meyers. This decision was essentially made on the recommendation of the Contract Manager. The bid selection review form stated as follows: Based on bids and additional information provided, the Parking Lot Management Bid Selection Team recommended award of DCPH Bid No. I-90 to Meyers Parking System, Inc. On May 9, 1990, HRS provided all interested parties with a notice of its selection of Meyers as the successful bidder. In the Notice of Selection, HRS indicated that Meyers had been selected based on the proposed net income distribution, references, background and financial condition. Petitioner timely filed a protest of the proposed award of the contract. The Parking Lot Committee excluded Kinney from consideration based solely upon the net income distribution percentage. However, since the Invitation to Bid did not require the bidders to specify or limit in any way the expenses that could be deducted from gross revenues prior to distributing proceeds to HRS, there was an insufficient basis to accurately evaluate the proceeds that HRS could reasonably expect pursuant to any of the bid proposals. HRS and Meyers have argued that, because HRS has many years experience and expense records relating to the operation of the Parking Lot, the information provided pursuant to the Invitation to Bid provided HRS with sufficient information to make a reasonable evaluation of the financial terms of the proposals. This contention is rejected. To permit such uncertainty and discretion to be built into the bid process would substantially undermine the integrity and dependability of the process. Item 12 on page 6 of the Invitation to Bid required that "bidders will submit a resume of their background and other local lots they are currently managing." No such resume or lists were provided by Meyers. Meyers contends that its response to Item 1 on Page 8 of 8 adequately addressed this requirement. That response provided as follows: PROPOSAL FOR OPERATING LOT. Meyers Parking System, Inc. proposes to operate the Dade County Health department's parking lot with the same high degree of professionalism that we are known for and have demonstrated to our other clients throughout the county. The facility will be managed by trained, uniformed, courteous employees and supervised regularly and closely with our field supervisors and our Regional Vice-President... This statement is not a sufficient response to Item 12 of the Invitation to Bid. During the Parking Lot Committee meeting on February 22, 1990, several complaints were made regarding Kinney's performance under the existing contract. However, no efforts were ever undertaken by HRS to terminate the existing contract with Kinney. While HRS contends that the complaints were part of the reason for deciding to rebid the contract, no steps were taken to disqualify Kinney from bidding on the new contract. In any event, most of the complaints voiced on February 22, 1990 would have been the responsibility of the prior managers of Kinney who now work for Meyers. In February and March of 1990, the disbursements to HRS under the existing contract diminished significantly. This decrease in payments was the result of embezzlement by Kinney employees. While HRS has cited this shortage to justify its decision in awarding the contract to Meyers, there is no evidence that HRS ever attempted to terminate the existing contract nor does it appear that the Parking Lot Committee considered this fact in deciding to eliminate Kinney's bid from consideration. Similarly, the evidence established that there have been problems during the months of March, April and May of 1990 with attendants failing to appear at work on time or leaving the job site. Again, however, there is no indication that HRS attempted to terminate the existing contract or that the Parking Lot Committee relied upon these factors in deciding to eliminate the Kinney bid from consideration. There have been recurring complaints made to Kinney under the existing contract regarding excessive towing of cars from the Parking Lot. The problem of parking lot attendants ordering cars towed without the permission of HRS has existed off and on for sometime. Even though HRS representatives had voiced complaints about the. towing policies, the evidence indicates that this recurring problem became worse in the late spring and early summer of 1990. Nonetheless, HRS never sought to terminate the existing contract because of the towing problems nor did the Parking Lot Committee rely upon this fact in deciding to eliminate the Kinney bid from consideration.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Secretary of the Department of Health and Rehabilitative Services enter a Final Order rejecting all bids for DCPHU Bid I-90 and issue a new Invitation to Bid. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 31 day of October, 1990. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the clerk of the Division of Administrative Hearings this 31 day of October, 1990.
The Issue The issue is whether Respondent, Wade Raulerson Pontiac,1/ committed unlawful employment practices contrary to Section 760.10, Florida Statutes (2009),2/ by discriminating against Petitioner based on his race by subjecting him to different terms and conditions than similarly situated employees outside of his protected classification, or by reducing Petitioner’s wages and ultimately discharging Petitioner from his employment in retaliation for engaging in protected conduct.
Findings Of Fact Wade Raulerson Honda and Wade Raulerson Pontiac are each an employer as that term is defined in Subsection 760.02(7), Florida Statutes. They are subsidiary companies of Morgan Auto Group, a Tampa-based company that owns eight car dealerships in Gainesville, Ocala, and the Tampa Bay area. On March 7, 2008, Petitioner, a black male, commenced employment at Wade Raulerson Honda as a detailer. In April 2008, Petitioner was promoted to detail manager. As Detail Manager, Petitioner earned a salary of $950 per week, or $49,400 per year. At the time he was hired, Petitioner received from Morgan Auto Group an “Associate Manual,” essentially an employee handbook setting forth, among other things, the parent company’s policy promoting equal employment opportunity and prohibiting discrimination or harassment based on age, sex, disability, race, color, national origin, sexual orientation, marital status, or “any other non-merit factor.” The Associate Manual also set forth a conflict resolution process for any employee complaints or grievances, including those of harassment, discrimination, or denial of equal employment opportunity. The employee was to first discuss the problem with his supervisor or department manager. If the response at the first step was not timely or satisfactory, the employee could then submit his complaint to the general manager of the dealership, or to the HR manager for the parent company. There were three employees in the Detail Department of Wade Raulerson Honda. As detail manager, Petitioner supervised the other two employees, Berton Curtis, who was black, and Matthew Luchenburg, who was white. Mr. Curtis worked for $8.50 per hour, and Mr. Luchenburg was paid $8.00 per hour. The work performed by Petitioner was termed “detailing” and was performed to prepare used cars for the showroom and sales lot. Petitioner pressure washed the engine, buffed and waxed the car, and shampooed the interior. He examined every detail of the interior and exterior of the used car to ensure that it was clean and ready to show on the lot. The bulk of the work performed by the other two employees was termed “cleaning” or “washing” and was performed on new cars and used cars already on the showroom floor. They vacuumed and dusted the interior, then ran the car through the car wash. Their work was much less exacting and time consuming than the detailing work performed by Petitioner. The evidence presented at hearing established that Mr. Curtis performed some “detailing” work, but that the great majority of the detailing performed on the premises of Wade Raulerson Honda was performed by Petitioner. In addition to paying Petitioner for detailing work, Wade Raulerson Honda also paid an outside vendor $125 per car to perform detailing on used cars. Wade Raulerson Honda also sent some of its used cars to be detailed at Wade Raulerson Pontiac for a fee. These outside sources were used because the volume of used cars was more than Petitioner could handle alone, not due to any dissatisfaction with Petitioner’s job performance. Respondent stipulated that Petitioner’s job performance was very good throughout his employment. In late 2008 and into 2009, the poor economy was especially hard on retail automobile sales. By June 2009, business was off by 40 percent at Wade Raulerson Honda, and management looked for any way possible to cut costs. Wade Raulerson Honda was organized under the headings of “fixed operations” and “variable operations.” Fixed operations comprised the Parts Department and the Service Department, which included the Detail Department. Variable operations included the Sales and the Finance and Insurance Departments. Dan Schmidt, then the general manager of Wade Raulerson Honda, explained that fixed operations are easier to control, and that when business turns down, they are the most obvious place to cut expenses. In June 2009, Mr. Schmidt, in consultation with Tom Yonkers, his Fixed Operations Director, decided to close the Detail Department and to send his used cars to Wade Raulerson Pontiac’s larger detailing facility. Petitioner’s Detail Manager position was eliminated altogether. Mr. Curtis and Mr. Luchenburg were reassigned to new positions in which they performed their washing duties as well as lot cleanup, mowing and edging, and sundry other duties that allowed Mr. Schmidt to make further cuts in maintenance and janitorial expenses. Mr. Schmidt also laid off service advisors and two lube technicians. Mr. Schmidt testified that Petitioner was a good employee, and “good employees are very hard to come by.” Mr. Schmidt sought ways to retain Petitioner’s services. He offered Petitioner a non-management position that would have essentially involved performing the type of work being done by Mr. Curtis and Mr. Luchenburg, but at a rate of $600 per week, significantly more than the other two men were paid. Petitioner declined the offer, saying he could not take such a large cut in salary. Mr. Yonkers contacted his fixed operations director counterpart at Wade Raulerson Pontiac, Charles Jones, to inquire whether Mr. Jones had any openings appropriate for Petitioner. Mr. Jones already had three detailers and was paying them $13 an hour. Two of these employees, including the detail manager, were black. Mr. Jones agreed to meet with Petitioner and to try and make a space for him. Mr. Jones testified that he was interested in grooming Petitioner for the detail manager position. He understood that Petitioner had been making around $900 per week at Wade Raulerson Honda, and believed that a productive Detail Manager would be worth that much money. On or about June 12, 2009, Petitioner met with Mr. Jones at Wade Raulerson Pontiac. They discussed the position that Mr. Jones had in mind for Petitioner and talked about money. Mr. Jones made a tentative offer to Petitioner of $17 per hour with a guarantee of 55 hours per week. He gave Petitioner a “Morgan Auto Group Pay Plan” form filled in with those terms. The form contained signature spaces to be completed by the employee, the employee’s manager, and the general manager of the dealership. Mr. Jones told Petitioner that the offer was not considered binding until all three parties had signed the pay plan. This form was never signed by management of Wade Raulerson Pontiac. Mr. Jones testified that he reported the $17 per hour offer to Mr. Dalessio, who would not agree to pay Petitioner any more money than his current detailers were receiving. Mr. Dalessio believed it was unfair to his current employees to bring in a new man at a significantly higher wage than they were making. A second Morgan Auto Group Pay Plan was prepared for Petitioner, with a pay rate of $13 per hour and no guarantee as to the number of hours per week. Petitioner initially declined this offer. On June 16, 2009, Petitioner was given a transfer notice by Wade Raulerson Honda, stating that he was transferring to Wade Raulerson Pontiac due to the closure of the Honda’s dealership’s Detail Department, “with time served and benefits not lost.” The notice also stated that Petitioner’s future wages were to be negotiated at Wade Raulerson Pontiac, not at Wade Raulerson Honda. On June 16, 2009, Petitioner happened to meet Morgan Auto Group’s HR manager, Jason Hillman, in the parking lot of the Honda dealership. Petitioner showed Mr. Hillman the $17 offer sheet and asked to discuss the matter with him. Mr. Hillman agreed to meet with Petitioner at the Pontiac dealership. They went separately to Wade Raulerson Pontiac and met with Mr. Dalessio to discuss the situation. Mr. Hillman explained that the $17 offer was not binding and that the $13 offer was the only offer on the table for Petitioner. Mr. Hillman stated, not very diplomatically, that the $17 offer sheet was “not worth the paper it was written on.” Petitioner became upset and asked Mr. Hillman to fire him so that he could collect unemployment. Mr. Hillman explained that he could not fire Petitioner because he had not yet accepted the offer from Wade Raulerson Pontiac. He further explained that if Petitioner declined the offer, he would be considered to have been laid off from Wade Raulerson Honda and that the company would not oppose his claim for unemployment benefits. Petitioner eventually accepted the $13 per hour offer from Wade Raulerson Pontiac. He worked and was paid for 12 hours over the course of two days, at the rate of $13 per hour. On June 19, 2009, Mr. Jones met with Petitioner to have him formally sign the $13 per hour pay plan. At that time, Petitioner told Mr. Jones that he could not work for those wages. He left the dealership and did not return to work. Petitioner was not fired from his position. Petitioner alleged that, subsequent to his leaving Wade Raulerson Pontiac, the dealership hired a white detailer named “Joe” at a rate of $15 per hour. However, evidence presented at the hearing established that Wade Raulerson Pontiac hired a detail technician named Joe Halliday on July 13, 2009, at a rate of $13 per hour, the same rate offered to Petitioner. Petitioner offered no evidence to establish that the terms and conditions of his employment were different than those of similarly situated persons outside of his protected classification, or that his wages were reduced or he was terminated in retaliation for engaging in protected conduct. There was no credible evidence that Petitioner ever complained or even mentioned harassment or discrimination on the basis of race to any member of management at Wade Raulerson Honda or Wade Raulerson Pontiac.3/ Petitioner offered no credible evidence that Wade Raulerson Honda or Wade Raulerson Pontiac discriminated against him because of his race, subjected him to harassment because of his race, or retaliated against him in violation of Chapter 760, Florida Statutes. Petitioner offered no credible evidence disputing the legitimate, non-discriminatory reasons given by Wade Raulerson Honda for closing its Detail Department, or by Wade Raulerson Pontiac for declining to hire Petitioner at a salary nearly equal to the amount he made as detail manager at Wade Raulerson Honda. Petitioner disputed the company’s claim that the Detail Department at Wade Raulerson Honda was itself losing money, but failed to establish that the company’s decision to make large cuts in fixed operations expenses was anything other than a rational business decision necessitated by a severe decline in sales revenue. The evidence established that Petitioner was considered a good employee and that the Wade Raulerson dealerships made every good faith effort, consistent with the economic realities of the retail automobile sales business as of June 2009, to retain Petitioner’s services during the economic downturn. The discussions between the parties turned on money, not race. Petitioner simply decided that he could not work for the amount that Wade Raulerson Pontiac offered.
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 Wade Raulerson Honda and Wade Raulerson Pontiac did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 13th day of September, 2010, 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 13th day of September, 2010.
Findings Of Fact It was stipulated that the Respondent was certified as a law enforcement officer by the Petitioner on April 1, 1978. He holds certificate number 99-002304. The Petitioner is an agency of the State of Florida charged, as pertinent hereto, with enforcing the qualification and practice standards for law enforcement officers embodied in Chapter 943, Florida Statutes. Sometime in November, 1986, Diane Bouchard was traveling north on U.S. 1 in Nassau County. She acknowledged that she was traveling in excess of the lawful speed limit and believes she was traveling at approximately 60 miles per hour. Shortly after passing a truck weighing station, she observed a Nassau County Sheriff's patrol car, which had just passed her, turn around and follow her. She observed the blue light on that vehicle illuminate, at which point she turned to the side of the road and stopped. Mrs. Bouchard knew Officer Crews and he was acquainted with her and her family, including her husband. Mrs. Bouchard testified that Respondent got out of his patrol car and approached her vehicle while she was sitting in her parked vehicle behind the wheel. He did not ask her to get out of the vehicle. She says that he asked for her driver's license and she complied, handing Respondent her license. Mrs. Bouchard then testified that Respondent, while standing approximately 4 inches from her car door, told her that he had "clocked" her speed at approximately 75 miles per hour. He remarked that there was an $80 fine for such a traffic infraction and "points" which could be assessed against her driving record for a speeding violation. She stated that while he was standing next to her car door making these remarks, he began rubbing his penis through his clothing, becoming visibly sexually aroused. At approximately this same time, Mrs. Bouchard states that the Respondent told her that "we could work something out" regarding the ticket. Mrs. Bouchard then testified that the Respondent's actions and statement were taken by her to mean that he was attempting to extort sexual favors from her in return for forbearing to issue her a traffic citation. She maintains that she became extremely frightened as a result of these actions and attempted to dissuade the Respondent by reminding him that he knew her family. She maintains that the Respondent then stood alternately looking at her and looking at her driver's license for several more minutes and then announced that he was going to "let her go." She then drove home, according to her statement. Mrs. Bouchard maintains that she became very upset at this episode and was particularly sensitive to being victimized in this way because she had been sexually abused for approximately 13 years by her stepfather, even after she was married. She was reluctant to reveal the incident to her husband, but because she began having nightmares about the incident her husband became concerned, and so she told him about the episode approximately a week after the accident. She felt, however, according to her testimony, that no one would believe her if she reported the incident to law enforcement authorities. Approximately three months after the incident, however, she did report the matter to personnel of the Nassau County Sheriff's Department. The alleged incident supposedly occurred in close proximity to a truck weighing station at which a law enforcement officer was present and in close proximity, in the other direction, to a public campground. The incident occurred during daylight hours at approximately 5:30 or 6:00 p.m. on U.S. 1, a heavily traveled highway in Nassau County. The weigh station and campground are approximately a quarter of a mile apart. A Department of Transportation patrol car was at the weigh station and both the weigh station and the campground were in sight of the place where Mrs. Bouchard was allegedly stopped. Officer Crews was in uniform in a marked, Nassau County Sheriff's Patrol car. Mrs. Bouchard conceded that she had been speeding when she was pulled over and that Officer Crews never asked her to get out of her car. She conceded that he did not threaten her, touch her or actually expose himself to her. He did not write her a ticket. Mrs. Bouchard testified the reason she thought Officer Crews was "coming on" to her was because she associated certain gestures he was making with things her stepfather had done to her in the past. Mrs. Bouchard was referring to the history of sexual molestation of herself by her stepfather which she says occurred for an approximate 13-year-period after her mother kidnapped her from her natural father and she went to live with her mother and stepfather. During this time period and during the time in which Mrs. Bouchard elected not to report this alleged conduct by the Respondent, she and her husband were working at a garage that serviced Sheriff department vehicles and at which another police officer was employed. Police officers were frequent visitors to the garage, but she waited over three months before she spoke to anyone in law enforcement concerning this incident. Captain Chuck Moser of the Nassau County Sheriff's Department testified on behalf of the Petitioner. He interviewed Mrs. Bouchard on January 6, 1987. She told him that the above-described incident had occurred approximately 3 months earlier. She described the incident to Captain Moser much in the same way in which she described it in her testimony at hearing. Captain Moser did not reveal any other knowledge concerning the incident in question, and the Respondent, other than what Mrs. Bouchard had told him. Fuller Crews testified on his own behalf. He is 58 years old and has been married for the past 16 years. He was employed by the Nassau County Sheriff's Department from April 1, 1978 to November 10, 1987. In 1986, he was a lieutenant in the civil division and a traffic patrolman. He knows Mrs. Bouchard and her family and has even been fishing with her husband. In his work with the Sheriff's office, he has made several hundred traffic stops during his career. He does not remember every person that he ever stopped for a traffic infraction, nor did he make a practice of issuing a traffic citation to every person he stopped. Officer Crews often simply told offenders that he would let them go if they promised to slow down, or otherwise warned them with a lecture, depending upon the particular offender's attitude. He has no recollection of stopping Mrs. Bouchard, but does not deny that he may have done so. He adamantly denies ever asking Mrs. Bouchard for sex in exchange for forbearing giving her a traffic citation or making gestures which implied that intent. He stated that if he made any gestures in the act of getting out of his car and walking up to Mrs. Bouchard's car, it would have been in the nature of adjusting his gun belt or brushing his cigarette ashes off his trousers. The testimony of the Respondent and Mrs. Bouchard thus conflicts. There were no other witnesses to the episode. It is found that, even if Mrs. Bouchard did indeed feel that the Respondent was making sexual advances to her in return for his refraining from writing her a traffic citation, that her impression was mistaken. In reaching this finding, the Hearing Officer is mindful of the Respondent's apparent sincerity and candid demeanor on the witness stand, his past unblemished record, including his apparent record as a decent citizen and family man, as well as the unrebutted testimony concerning his past friendly relations with Mrs. Bouchard and her family. Mrs. Bouchard, on the other hand, while she may not have overtly lied about the circumstances of the incident, was mistaken in her impression of the Respondent's demeanor and intent in confronting her about the traffic infraction. It is found, based in part of Mrs. Bouchard's own testimony, that her impression of the Officer's intent in approaching her and manner of conversing with her, during this episode, was affected by her admitted past history of being sexually molested for a long period of time by her stepfather, such that she quite likely could have mistakenly associated some gestures, movements and comments made by the officer with a sexual advance or overture, when in fact the Respondent intended no such activity. Thus, Mrs. Bouchard's opinion, however sincere she holds it, is sufficiently colored and affected by her emotional situation, arising out of her past personal history, so that it cannot be considered competent evidence against the Respondent and cannot establish that the incident occurred as she described it. There is no other substantial evidence that would establish that the Respondent failed to maintain good moral character in regard to this incident, which is the only such incident charged in the Administrative Complaint.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence of record, and the candor and demeanor of the witnesses, it is RECOMMENDED that the Administrative Complaint filed against Fuller W. Crews, Sr. should be dismissed in its entirety. DONE AND ENTERED this 4th day of December, 1989 in Tallahassee, Leon County, Florida. P. MICHAEL RUFF, 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 4th day of December, 1989. APPENDIX TO RECOMMENDED ORDER NO. 89-1400 Petitioner's Proposed Findings of Fact Accepted. Accepted. Accepted. 4 Accepted. Accepted. Accepted. 7.-17. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and as not in accordance with the clear and convincing evidence of record. 18. Accepted. Respondent's Proposed Findings of Fact 1.-13. Accepted. COPIES FURNISHED: Joseph F. White, Esquire Department of Law of Enforcement P.O. Box 1489 Tallahassee, FL 32302 Robert J. Link, Esquire Howell Lyles and Milton 901 Blackstone Building P.O. Box 420 Jacksonville, FL 32201 James T. Moore Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Jeffrey Long, Director Criminal Justice Standards Training Commission P.O. Box 1489 Tallahassee, FL 32302
