The Issue Whether Respondent, Walt Disney World, violated Section 760.08, Florida Statutes (2006), as alleged in the Petition for Relief in this matter.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Petitioner is a Caucasian male, born in Puerto Rico. He is an amateur photographer. He had visited Walt Disney World at least ten times prior to December 1, 2006. Respondent owns and operates a theme park in Orange and Osceola Counties, Florida. Respondent employs individuals with the job title, "security host," with the responsibility of maintaining security in the theme park. This category of employees is licensed by the State of Florida, and they receive training in "abnormal behavior of guests," threat analysis, surveillance, intelligence, and other job-related skills incidental to maintaining a safe environment within the theme park. Respondent has a specific protocol regarding theme park guests exhibiting "abnormal behavior." In the context of this case, taking photographs in the theme park is not an "abnormal behavior." In fact, guests are encouraged to photograph those accompanying them and various theme park characters, e.g., Mickey Mouse. However, excessive photographing of structures, "mapping or progression photography," is considered "abnormal behavior." "Mapping" consists of taking pictures in a progression, so as to familiarize someone who has never been to an area with the layout of that area and is considered very unusual behavior. Petitioner entered the Magic Kingdom, part of Respondent's theme park, on December 1, 2006. A security host observed Petitioner photographing the main entrance and security bag check. Petitioner was unaccompanied. The subject matter and manner of Petitioner's photography was considered to be "abnormal" by the security host. Once a security cast member identifies potentially abnormal behavior by a guest, the protocol requires the security host to contact a member of management (by radio) and continue to observe the guest. Petitioner moved further into the Magic Kingdom and took photographs of Main Street and City Hall. Because Petitioner was limiting his photography to structures, the security host's initial impression that Petitioner was doing something "abnormal" was reinforced and, in accordance with the established protocol, he again called management. As further dictated by Respondent's security protocol, the uniformed security host is then met by an "undercover" security host whose job-responsibility is "real-time threat analysis." The "threat-analysis" security host continued to observe Petitioner as he took what was interpreted by the security host to be "panoramic" photographs of Town Square and "mapping" photographs of the interior of the train station. He, too, assessed Petitioner's photographic activities as "abnormal." Because the "threat analysis" security host concurred with the initial determination of "abnormal," the security protocol dictates that a security manager make contact with the guest. This was done in a discreet and unobtrusive manner. The security manager identified himself as an employee of Respondent and asked Petitioner if "he could do anything to assist him." Petitioner did not respond, so the security manager repeated himself. Respondent responded that he "was not an Arab terrorist," or words to that effect. His response was louder than conversational, and he appeared to be agitated. Because Petitioner was uncooperative, the security manager called a uniformed law enforcement officer, an Orange County, Florida, deputy sheriff, as dictated by Respondent's security protocol. The deputy sheriff asked for, and received, Petitioner's driver license. After a license check revealed that Petitioner's address was valid, he was allowed to pursue his activities in the theme park. His interaction with the security manager and deputy sheriff lasted approximately 15 minutes. Petitioner then returned to his theme park photography without limitation and spent an additional two hours in the theme park, until his camera's battery pack ran down. He did not have any further interaction with Respondent's security personnel, nor was he kept under surveillance. Petitioner returned to Respondent's theme park on December 9, 27, 28, 29 and 30, 2006 (he had an annual pass), had access to all facilities without difficulty, and had no encounters with Respondent's security personnel. The incident that occurred on December 6, 2006, was a result of Petitioner's photography being identified as "abnormal." There is no evidence that it was precipitated by his national origin or that Respondent was not exercising reasonable diligence in an effort to protect theme park visitors and employees.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Jose M. Gandia, failed to present a prima facie case of discrimination based on national origin, and, therefore, this matter should be dismissed in its entirety and a determination be entered by the Florida Commission on Human Relations that Respondent, Walt Disney World, did not violate the provisions of Chapter 760, Florida Statutes, as alleged in the Petition for Relief. DONE AND ENTERED this 13th day of March, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 March, 2008. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Jose M. Gandia 3054 Holland Drive Orlando, Florida 32825 Paul J. Scheck, Esquire Shutts & Bowen, LLP 300 South Orange Avenue, Suite 1000 Post Office Box 4956 Orlando, Florida 32802-4956
The Issue The central issue in this case is whether the amended petition alleges facts sufficient to establish standing and a legal basis for a hearing pursuant to 120.57, Florida Statutes.
Findings Of Fact For the purposes of this recommended order the following substantive facts alleged by Petitioner are deemed to accurate: On May 22, 1970, the Department entered into a lease agreement with the City which, for the sum of one dollar per year, leased the right of way to the south approach to the Bakers Haulover Bridge located in Dade County, Florida. According to this lease, the property was to be used as a parking lot and remain open to all members of the motoring public. The property leased to the City was, and is, adjacent to Biscayne Bay. This bay has been designated an aquatic preserve as defined in Section 258.39(11), Florida Statutes. The Petitioner is a sport fisherman who for many years has utilized the public right of way leased to the City to gain access to fishing at Bakers Haulover Inlet. On or about July 11, 1987, the City erected a fence on the right of way which blocked Petitioner's access to the water at Haulover Cut. The fence was erected without a permit from the Department. On November 13, 1987, Petitioner and other members of the public, primarily fishermen, met with officials from the Department to complain about the fence and to attempt to reach a compromise. As a result, the City was to apply for an after the fact permit to erect the fence. Petitioner and the other protesting fishermen believed they would be given an opportunity to review and comment upon the permit application. No notice was provided to Petitioner nor any other member of the group regarding the permit application. On December 1, 1987, the Department approved the City's permit for the erection of the fence. Petitioner has not been given an opportunity to respond to the permit application submitted by the City.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Transportation enter a final order dismissing the amended petition filed by Dan Dawson. DONE and RECOMMENDED this 19th day of December, 1988, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 December, 1988. COPIES FURNISHED: Fred W. Van Vonno Suite 1750, Courthouse Tower 44 West Flagler Street Miami, Florida 33130-1808 Charles G. Gardner Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Attn: Eleanor F. Turner, Mail Station 58 Thomas H. Bateman, III General Counsel 562 Haydon Burns Building Tallahassee, Florida 32399-0450
Findings Of Fact Counsel for the respective parties stipulated to the following facts: Quayside Associates, Ltd., is a Florida limited partnership whose address is 10670 N.E. Quay Plaza, North Miami, Florida 33134. Respondent is the Department of Environmental Regulation, an agency of the State of Florida as defined in Section 120.52(1), Florida Statutes. This Petition relates to the Department's File No. DF13-28371-6E. Petitioner was the applicant for the subject permit and will, as applicant, be directly affected by a denial thereof. On February 28, 1980, Petitioner applied to the Department for approval of its Phase II Docking Facility which included an elevated walkway with wave break panels, nineteen (19) new wet slips and twenty-five (25) davits. (Exhibit "1") On March 6, 1980, a completeness review form was sent to the applicant's representative by the Department. (Exhibit "2") On March 6, 1980, the applicant's representative responded to the comments of the Department and completeness summary by letter from J. Frederic Blitstein to the Department's Subdistrict Office. (Exhibit "3") As shown by the Department letter of May 29, 1980, response to the completeness summary were received by the Department from the applicant on March 7 and 11, 1980, with final Department of Natural Resources clearance, as requested by the completeness summary, received by the Department of March 14, 1980 (see Exhibit 4). The response of the Depart- ment of Natural Resources is attached hereto as Exhibit "5". On March 20, 1980, the representative of the Department made an on-site visit to the site as shown by the Departmental Summary Permit Processing Worksheet attached as Exhibit "6". On April 9, 1980, the Department received the comments and recommendations of the Dade County Department of Environmental Resources Management which indicated that it had "no objection to the issuance of the Permit" subject to certain stipulations and conditions. (Exhibit "7") On June 25, 1980, the Department held its scheduled Biscayne Bay Aquatic Preserve Hearing in Miami, Dade County, Florida. On July 2, 1980, the Department issued a completion notice to the applicant indicating completion of the application on June 25, 1980. (Exhibit "8") On September 9, 1980, the Department issued its Letter of Intent to Deny which gives rise to the subject proceeding. (Exhibit "9") This Petition ensued and was filed with the Department on September 24, 1980. The State of Florida, Division of Administrative Hearings has jurisdiction over this matter and has jurisdiction to make an Interlocutory Ruling regarding same. This Stipulation may be utilized for interlocutory purposes or for all subsequent purposes.
The Issue Whether Respondent (“the St. Marks Stone Crab Festival” or “the Festival”) violated the Florida Civil Rights Act, chapter 760, part I, Florida Statutes (2019),1 by precluding Petitioner (“Michael Grasso” or “Mr. Grasso”) from bringing his dog onto its premises. Mr. Grasso filed a Charge of Discrimination with the Florida Commission on Human Relations (“the Commission”) on December 20, 2019, alleging that the St. Marks Stone Crab Festival discriminated against him based on his disability: I am an individual with a disability. I was discriminated against because of my disability. On October 26, 2019, I attempted to enter the St. Marks Stone Crab Festival. As I approached the table where admissions were being taken, a female who identified herself as Anna Bell told me that there was a no pet policy. I told her that I understood but my dog is a service animal for my disability and is exempt from rules for pets. This individual then asked me to produce an ID card proving he was actually a service animal. I told her that I did not have one and I tried to explain to her that the law did not require me to have one. I also told her that I would not enter if she did not want us to and I then asked her who was in charge so that I could follow up later. When I told her about the law, she proceeded to get the sheriff’s officers who were on site. The officer (Deputy Yarbrough) spoke with me and admitted that they did not know the law as it pertained to service animals and I printed it out for him. Mr. Yarbrough acknowledged that the law said that an ID was not required, but he said that since it was the rules of the Festival, he was there to enforce their rules. Mr. Yarbrough maintained that I was not allowed entrance unless I left my service animal elsewhere. I wrote a letter to Ray Stokes who sits on the city council and I called him, and he was belligerent and questioned whether I had a need for a service 1 Unless stated otherwise, all statutory references shall be to the 2019 version of the Florida Statutes. animal. Mr. Stokes refused further contact with me. On June 5, 2020, the Commission issued a Notice setting forth its determination that reasonable cause existed to believe that an unlawful practice had occurred: [Mr. Grasso] attempted to enter [the Festival] on October 26, 2019. [Mr. Grasso] alleged that [the Festival] denied him service by refusing to let him enter due to his disability and need for a service animal. The investigation supports his allegations. [Mr. Grasso] provided proof that he is disabled and requires the use of a service animal. [The Festival] acknowledged that it has a policy of requiring disabled guests with service animals to provide identification proving that the animal is a service animal. [The Festival] also acknowledged that since [Mr. Grasso] did not have documentation that his dog is a service animal, he was denied entry into the festival. This is direct evidence of disability discrimination. Mr. Grasso filed a Petition for Relief on July 6, 2020, and the Commission referred this matter to DOAH on July 7, 2020, for a formal administrative hearing. The final hearing was commenced as scheduled on August 27, 2020. Due to unforeseen circumstances, the final hearing was continued to September 17, 2020, and completed that day. Mr. Grasso called himself, Deputy Robert Standeford, and Sergeant Jeffrey Yarbrough as witnesses. Petitioner’s Exhibits 1 through 8 were accepted into evidence. The St. Marks Stone Crab Festival called Paula Bell and William M. Bishop, Jr., as witnesses and did not attempt to move any exhibits into evidence. The Transcript from the proceeding conducted on August 27, 2020, was filed on September 16, 2020, and the Transcript from the proceeding conducted on September 17, 2020, was filed on October 21, 2020. Both parties filed their proposed recommended orders prior to October 21, 2020, and those pleadings were considered in the preparation of this Recommended Order.
Findings Of Fact Based on the evidence adduced at the final hearing, the record as a whole, and matters subject to official recognition, the following Findings of Fact are made: The Parties Mr. Grasso previously worked as the CEO of a multi-million dollar company and served on the board of directors of another entity. The record evidence and testimony persuasively established that Mr. Grasso suffered a severely traumatic episode in 2007 causing him to suffer from post-traumatic stress disorder (“PTSD”) and anxiety. Mr. Grasso also has difficulty with crowds and dealing with strangers. At some point, Mr. Grasso relocated from Las Vegas to the Florida Keys, and a psychiatrist treating him at the time suggested that Mr. Grasso obtain an emotional support animal. Mr. Grasso heeded that advice and rescued Zuco, a large labrador-mastiff mix, from a shelter in May of 2016, when Zuco was one and a half years old. Mr. Grasso trained hundreds of dogs when he owned a pet store in the 1990s, and he utilized a training program he found on the internet to teach Zuco how to be a service animal. Mr. Grasso has spent many hours training Zuco, and the first step in Zuco’s training involved vigilance commands such as block and watch. The block command calls for Zuco to act as a barrier between Mr. Grasso and others. The watch command requires Zuco to monitor what is occurring behind Mr. Grasso, and Zuco’s movements will alert Mr. Grasso to the presence of potential dangers. Mr. Grasso has also trained Zuco to enter a room prior to Mr. Grasso in order to assess the situation inside. Finally, Zuco is very sensitive to changes in Mr. Grasso’s moods and will attempt to remove Mr. Grasso from a stressful situation if he becomes upset.2 Mr. Grasso moved to St. Marks, Florida in 2018. He lives on a boat docked at a local marina. Mr. Grasso works part-time doing handyman-type work for the marina owner who allows Zuco to be with Mr. Grasso while he works. Mr. Grasso has been treating with Dr. Joseph Dorn since November of 2018, and Dr. Dorn has diagnosed Mr. Grasso as suffering from PTSD. In addition, the Social Security Administration has diagnosed Mr. Grasso as a disabled individual entitled to monthly payments. According to Mr. Grasso, he can no longer engage in the type of work he performed prior to the 2007 incident because his PTSD and anxiety make it impossible for him to maintain a full-time job. The St. Marks Stone Crab Festival is a not-for-profit Florida corporation. The Festival began as a means to raise funds for the St Marks 2 Mr. Grasso described Zuco’s training as follows: “And one of the things that I taught him – you asked what I teach him. And what I teach him is vigilance commands such as ‘block’ and ‘watch.’ Like if I walk up to – if there’s people back here and I walk up to a counter to pay for something, I’ll tell him to ‘watch.’ He’ll turn around, he’ll pay attention behind me, and if anybody approaches me, his body language will let me know. He’ll either start wagging his tail first, it it’s just – if somebody’s approaching aggressively, he will immediately make – like, either bark or, you know, kind of (nonverbal utterance) like, let me know that something’s going on behind you that you need to turn around and watch. And ‘block’ is a command that you use to keep – to just put him between me and the public. If I’m walking somewhere with him, you’ll always notice that he is between me and the public all the time. Whenever somebody’s coming to approach me that I don’t know, he’s between us.” Volunteer Fire Department. Since its inception, the Festival’s mission has expanded to encompass other activities such as beautifying the City of St. Marks and funding a substantial portion of the St. Marks Fourth of July celebration. The Festival draws 10 to 12 thousand attendees a year. The Festival admits people who pay an admission fee. During the events described herein, the Festival admitted animals with documentation or vests identifying them as service animals. If the animal did not have documentation or a vest, then the Festival would not admit the animal. The Events of October 26, 2019 The Festival was scheduled to open at 10:00 a.m. on October 26, 2019, and Mr. Grasso arrived at 9:30 a.m. with Zuco in order to assess the crowd size. He had never attended the Festival before and planned to leave if he determined that the crowd would be too large. Zuco was on a leash but not wearing a vest or anything else identifying him as a service animal. When Mr. Grasso attempted to enter the Festival, he encountered Paula Bell, a Festival volunteer who was collecting admission fees from patrons. Ms. Bell relayed to Mr. Grasso that the Festival had a no dog policy and that he could enter the Festival without Zuco. After Mr. Grasso explained that Zuco was a service animal, Ms. Bell requested documentation substantiating that Zuco was a service animal rather than a pet. At that point, the conversation became heated with Mr. Grasso stating that he did not have any documentation substantiating Zuco’s service animal status and that requiring him to furnish such documentation was against the law. The Festival had retained multiple off-duty officers from the Wakulla County Sheriff’s Office to provide security. After Mr. Grasso asserted that the Festival was violating the law, he and Ms. Bell wanted to get law enforcement involved. Mr. Grasso had walked about a block-and-a-half from the location of his confrontation with Ms. Bell by the time Sergeant Jeffrey Yarbrough arrived at the scene. Upon Sergeant Yarbrough’s arrival, Ms. Bell called to Mr. Grasso, and he returned to engage in further discussions. Mr. Grasso soon left again in order to retrieve a copy of section 413.08, Florida Statutes,3 from his boat and returned within a few minutes. Mr. Grasso and Sergeant Yarbrough began a heated discussion that caught the attention of Deputy Sheriff Robert Standeford who was patrolling the Festival Grounds. Deputy Standeford intervened because the discussion between Sergeant Yarbrough and Mr. Grasso had become loud and needed to be deescalated. Deputy Standeford tried to calm Mr. Grasso so that Deputy Yarbrough could read section 413.08. After Sergeant Yarbrough read the statute, either he or someone associated with the Festival’s management decided that Mr. Grasso could stay but Zuco could not. After forcefully expressing his displeasure with that decision, Mr. Grasso headed back toward his boat. Given that people were yelling at various times during the aforementioned verbal exchanges, Deputy Standeford noticed that Zuco was understandably “a little nervous.” Nevertheless, Zuco never became aggressive, and Deputy Standeford had no concerns that Zuco was dangerous. Ultimate Findings The St. Marks Stone Crab Festival is a “public accommodation” within the meaning of section 760.02(11). The greater weight of the evidence indicates that it is a place of exhibition or entertainment.4 3 Section 413.08(3) provides that “[a]n individual with a disability has the right to be accompanied by a service animal in all areas of public accommodation that the public or customers are normally permitted to occupy.” Section 413.08(3)(b), specifies that “[d]ocumentation that the service animal is trained is not a precondition for providing service to an individual accompanied by a service animal. A public accommodation may not ask about the nature or extent of an individual’s disability. To determine the difference between a service animal and a pet, a public accommodation may ask if an animal is a service animal required because of a disability and what work or tasks the animal has been trained to perform.” 4 The Festival made no argument that it was not a “public accommodation” within the meaning of section 760.02(11). The greater weight of the evidence demonstrates that PTSD substantially limits Mr. Grasso’s ability to work. As a result, he has a “handicap” within the meaning of section 760.08. The greater weight of the evidence demonstrates that Zuco is a “service animal” within the meaning of section 413.08(1)(d). Mr. Grasso has trained Zuco to perform very specific tasks designed to help Mr. Grasso feel secure in unfamiliar surroundings and around people. The greater weight of the evidence demonstrates that the Festival violated section 413.08(2)(b) by conditioning Mr. Grasso’s entry on him producing documentation substantiating Zuco’s status as a service animal. The greater weight of the evidence demonstrates that the Festival violated section 760.08 by denying Mr. Grasso access to a public accommodation.
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: (a) finding that the St. Marks Stone Crab Festival violated the Florida Civil Rights Act by conditioning Mr. Grasso’s entry on the production of documentation substantiating that his dog was a “service animal”; and (b) prohibiting the aforementioned practice. 5 Section 760.11(7) provides that “[i]n the event the final order issued by [the Commission] determines that a violation of the Florida Civil Rights Act of 1992 has occurred, the aggrieved person may bring, within 1 year of the date of the final order, a civil action under subsection (5) as if there has been a reasonable cause determination or accept the affirmative relief offered by [the Commission], but not both.” DONE AND ENTERED this 10th day of November, 2020, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Michael Grasso 2017 Gardenbrook Lane Tallahassee, Florida 32301 (eServed) Ronald A. Mowrey, Esquire Mowrey Law Firm, P.A. 515 North Adams Street Tallahassee, Florida 32301 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
The Issue The central issue in this case is whether Petitioner is entitled to the renewal of its application for a wholesale dealer's license for its Monroe County license (WD 000988). The issues of discipline against the Monroe license and denial of the renewal of its Dade license (WD 000008) are addressed in Case No. 86-1470.
Findings Of Fact Based upon the testimony of the witness and the documentary evidence received at the hearings I make the following Findings of Fact: On January 9, 1986, Didi's Seafood Corporation pled guilty in federal court to a crime constituting a violation of Section 370.14(2)(a)(1), Florida Statutes and Title 16, U.S. Code Sections 3372(a)(2)(A) and 3373(d)(1)(B) which is known as the Lacy Act. Respondent was then convicted as charged for the offense of knowingly transporting with the intent to sell and offer for sale, and knowingly selling, in interstate commerce, approximately 400 pounds of undersized spiny lobster tails with a market value in excess of $350.00, knowing that said spiny lobster tails were possessed in violation of the law. Respondent was ordered to pay a fine of $1000.00. Didi's Seafood Corporation has been in business since 1973. Each year prior to January, 1986, Respondent had successfully renewed its wholesale dealer's licenses for Dade County (WD 000008) and Monroe County (WD 000988). The licenses did not run on the calendar year, but expired on June 30 of each year. The Monroe license (WD 000988) therefore expired on June 30; 1986. The Dade license (WD 000008) was denied renewal on April 7, 1986 and is the subject matter of a separate proceeding. On June 29, 1986, Ernesto Pichardo, the plant manager for Respondent's Monroe County business, executed an affidavit as to the wholesale dealer's law abiding reputation and attempted to renew the Monroe license. The renewal was denied based upon the conviction described in Finding of Fact paragraph 1. Any criminal acts which may have occurred took place in connection with the Dade County license (WD 000008). There is no evidence to suggest that either Ernesto Pichardo or any other person connected with Respondent's Monroe County business has been arrested or convicted of any crime. Didi's Seafood Corporation pled guilty to the federal charges described in Finding of Fact paragraph 1 to avoid the time and cost of continuing the defense of the violations. Mr. Suarez denied knowingly receiving undersized lobster tails. The lobster tails were from Nicaragua and were in transit when seized. Because about 10,000 pounds of lobster tails were seized and mixed, frozen, it was impossible to determine if any of the tails seized at Didi's plant were undersized. Respondent received payment for a portion of the alleged undersized lobsters tails since some percentage, still unknown to the parties, was of legal size. The exact number, if any, of undersized lobsters tails was not determined. The federal identification number for Respondent's Monroe County business and Dade County business is the same, ID #59-1465901.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Natural Resources enter a Final Order granting the renewal of Petitioner's Monroe County license, but placing it on probation for a period of two years. DONE and ORDERED this 1st day of October, 1987, in Tallahassee, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4512 Rulings of the Proposed Findings of Fact submitted by Respondent: The unnumbered paragraphs are accepted and, in relevant part, are addressed in finding of fact paragraph 1. The Recommended Order in Case No. 86-1470 is being issued with this Order and does, in fact, address similar questions of fact. COPIES FURNISHED: Michael I. Rose, Esquire Suite 303, Robert Building 28 West Flagler Street Miami, Florida 33130 Henri C. Cawthon, Esquire Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Douglas Building, Suite 1003 Tallahassee, Florida 32399-3000 Tom Gardner- Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Thomas G. Tomasello Esquire General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue Whether Respondent, Xencom Facility Management, LLC (Xencom), terminated the employment of Petitioners solely because the contract under which they were working ended.
Findings Of Fact Xencom provides general maintenance, landscaping, housekeeping, and office cleaning services to retail facilities. In September of 2015, Xencom entered three contracts for services with CREFII Market Street Holdings, LLC (CREFII). The contracts were to provide maintenance, landscaping, and office cleaning services for a mall known as Market Street @ Heathbrook (Market Street) in Ocala, Florida. Michael Ponds, Xencom’s president, executed the contracts on behalf of Xencom. Two individuals executed the contracts on behalf of CREFII. One was Gar Herring, identified as manager for Herring Ocala, LLC. The other was Bernard E. McAuley, identified as manager of Tricom Market Street at Heathbrook, LLC. MG Herring was not a party or signatory to the contracts. MG Herring does not own or operate Market Street. A separate entity, The MG Herring Property Group, LLC (Property Group), operated Market Street. The contracts, in terms stated in an exhibit to them, established a fixed price for the year’s work, stated the scope of services, and detailed payment terms. They also identified labor and labor-related costs in detail that included identifying the Xencom employees involved, their compensation, and their weekly number of hours. The contract exhibits also identified operating costs, including equipment amortization, equipment repairs, fuel expenses, vacation costs, health insurance, and storage costs. The contracts ended December 31, 2016. The contracts specify that Xencom is an independent contractor. Each states: “Contractor is an independent contractor and not an employee or agent of the owner. Accordingly, neither Contractor nor any of Contractor’s Representatives shall hold themselves out as, or claim to be acting in the capacity of, an agent or employee of Owner.” The contracts also specify that the property manager may terminate the contract at any time without reason for its convenience. The contracts permit Xencom to engage subcontractors with advance approval of the property manager. They broadly describe the services that Xencom is to provide. Xencom has over 80 such contracts with different facilities. As the contracts contemplate, only Xencom exerted direct control of the Petitioners working at Market Street. Property Group could identify tasks and repairs to be done. Xencom decided who would do them and how. In 2013, Xencom hired Michael Harrison to work as its Operations Manager at Market Street. He was charged with providing services for which Property Group contracted. His immediate supervisor was Xencom’s Regional Manager. In 2016, that was David Snell. Mr. Snell was not located at Market Street. Property Group also did not have a representative on site. Before Xencom hired him, Mr. Harrison worked at Market Street for Property Group. Xencom hired the remaining Petitioners to work at Market Street under Mr. Harrison’s supervision. Each of the Petitioners completed an Application for Employment with Xencom. The application included a statement, initialed by each Petitioner, stating, “Further, I understand and agree that my employment is for no definite period and I may be terminated at any time without previous notice.” All of the Petitioners also received Xencom’s employee handbook. As Xencom’s Operations Manager and supervisor of the other Petitioners, Mr. Harrison was responsible for day-to-day management of Petitioners. He scheduled their work tasks, controlled shifts, established work hours, and assigned tasks. Mr. Harrison also decided when Petitioners took vacations and time off. His supervisor expected him to consult with Property Group to ensure it knew what support would be available and that he knew of any upcoming events or other considerations that should be taken into account in his decisions. As Operations Manager, Mr. Harrison was also responsible for facilitating payroll, procuring supplies, and managing Xencom’s equipment at the site. Xencom provided Petitioners work uniforms that bore Xencom’s name. Xencom required Petitioners to wear the uniforms at work. Xencom provided the supplies and equipment that Petitioners used at work. Only Xencom had authority to hire or fire the employees providing services to fulfill its contracts with the property manager. Only Xencom had authority to modify Petitioners’ conditions of employment. Neither MG Herring, Property Group, nor Xencom held out Petitioners as employees of MG Herring or Property Group. There is no evidence that MG Herring or Property Group employed 15 or more people. Property Group hired Tina Wilson as Market Street’s on- site General Manager on February 1, 2016. Until then there was no Property Group representative at the site. The absence of a Property Group representative on-site left Mr. Harrison with little oversight or accountability under the Xencom contracts for Market Street. His primary Property Group contact was General Manager Norine Bowen, who was not located at the property. Ms. Wilson’s duties included community relations, public relations, marketing, leasing, litigation, tenant coordination, lease management, construction management, and contract management. She managed approximately 40 contracts at Market Street, including Xencom’s three service agreements. Ms. Wilson was responsible for making sure the contracts were properly executed. Managing the Xencom contracts consumed less than 50 percent of Ms. Wilson’s time. During the last weeks of 2016, Mr. Harrison intended to reduce the hours of Kylie Smithers. Ms. Wilson requested that, since Ms. Smithers was to be paid under the contract for full- time work, Ms. Smithers assist her with office work such as filing and making calls. Mr. Harrison agreed and scheduled Ms. Smithers to do the work. This arrangement was limited and temporary. It does not indicate Property Group control over Xencom employees. Ms. Wilson was Xencom’s point of contact with Property Group. She and Mr. Harrison had to interact frequently. Ms. Wilson had limited contact with the other Xencom employees at Market Street. Friction and disagreements arose quickly between Mr. Harrison and Ms. Wilson. They may have been caused by having a property manager representative on-site after Mr. Harrison’s years as either the manager representative himself or as Xencom supervisor without a property manager on-site. They may have been caused by personality differences between the two. They may have been caused by the alleged sexual and crude comments that underlie the claims of discrimination in employment. They may have been caused by a combination of the three factors. On November 21, 2016, Norine Bowen received an email from the address xencomempoyees@gmail.com with the subject of “Open your eyes about Market Street.” It advised that some employees worked at night for an event. It said that Ms. Wilson gave the Xencom employees alcohol to drink while they were still on the clock. The email said that there was a fight among Xencom employees. The email also said that at another event at a restaurant where Xencom employees were drinking, Ms. Wilson gave Ms. Smithers margaritas to drink and that Ms. Smithers was underage. The email claimed that during a tree-lighting event Ms. Wilson started drinking around 3:30 p.m. It also stated that Ms. Wilson offered a Xencom employee a drink. The email went on to say that children from an elementary school and their parents were present and that Ms. Wilson was “three sheets to the wind.” The email concludes stating that Ms. Wilson had been the subject of three employee lawsuits. On December 14, 2016, Ms. Wilson, Ms. Bowen, and Mr. Snell met at Property Group’s office in Market Street for their regular monthly meeting to discuss operations at Market Street. Their discussion covered a number of management issues including a Xencom employee’s failure to show up before 8:00 to clean as arranged, security cameras, tenants who had not paid rent, lease questions, HVAC questions, and rats on the roof. They also discussed the email’s allegations. The participants also discussed a number of dissatisfactions with Mr. Harrison’s performance. Near the end of a discussion about the anonymous email, this exchange occurred:2/ Bowen: Okay, so I know that David [Snell], I think his next step is to conduct his own investigation with his [Xencom] people, and HR is still following up with John Garrett, and you’re meeting with Danny [intended new Xencom manager for Market Street] tonight? David Snell: Yes. Bowen: To finish up paperwork, and, based on his investigation, it will be up to Xencom to figure out what to do with people that are drinking on property, off the clock or on the clock, you know, whatever, what their policy is. * * * Bowen: So, I don’t know what to make of it. I’m just here to do an investigation like I’m supposed to do and David is here to pick up the pieces and meet with his folks one-on- one, and we’ll see where this takes us. This exchange and the remainder of the recording do not support a finding that Property Group controlled Xencom’s actions or attempted to control them. The participants were responsibly discussing a serious complaint they had received, their plan to investigate it, and pre-existing issues with Mr. Harrison. The exchange also makes clear that all agreed the issues involving Xencom employees were for Xencom to address, and the issues involving Property Group employees were for Property Group to address. At the time of the December 14, 2016, meeting, the participants were not aware of any complaints from Mr. Harrison or Mr. Smithers of sexual harassment or discrimination by Ms. Wilson. On December 15, 2016, Gar Herring and Norine Bowen received an email from Mr. Harrison with an attached letter to Xencom’s Human Resources Manager and others. Affidavits from Petitioners asserting various statements and questions by Ms. Wilson about Mr. Harrison’s and Mr. Smithers’ sex life and men’s genitalia and statements about her sex life and the genitalia of men involved were attached. Xencom President Michael Ponds received a similar email with attachments on the same day. On December 21, 2016, Mr. Ponds received a letter from Herring Ocala, LLC, and Tricom Market Street at Heathbrook, LLC, terminating the service agreements. Their agreements with Xencom were going to expire December 31, 2016. They had been negotiating successor agreements. However, they had not executed any. Xencom terminated Petitioners’ employment on December 21, 2016. Xencom no longer needed Petitioners’ services once MG Herring terminated the contract with Xencom. This was the sole reason it terminated Petitioners.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order denying the petitions of all Petitioners. DONE AND ENTERED this 15th day of May, 2018, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 2018.
