04-002285 Bianca King vs. Blue Ribbon Cleaners Status: Closed Recommended Order on Wednesday, November 24, 2004.

Summary: Petitioner failed to show that Respondent employed 15 or more employees or that Respondent`s incorporation was an attempt to avoid jurisdiction.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BIANCA KING, )

)

Petitioner, )

)

vs. ) Case No. 04 - 2285

)

BLUE RIBBON CLEANERS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in the above - styled

case on September 24, 2004, by Stephen F. Dean, assigned

Administrative Law Judge of the Division of Administrative

Hearings, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Bianca King, pro se

509 East Magnolia Drive

Apartment 250 - 0

Tallahassee, Florida 32301

For Respondent: Mark S. Levine, Esquire

Levine, Stivers & Myers

245 East Virginia Street

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

Whether the Respondent is an employer within the meaning of

Chapter 760, Florida Statutes?

PRELIMINARY STATEMENT

This case arose when the Petitioner filed a complaint with

the Florida Commission on Human Relations (FCHR) alleging that

the Respondent had terminated her for fighting with another

employee, and had treated her differently from white employees.

The FCHR investigated the complaint and determined that the

Respondent did not employ enough employees to meet the statutory

definition of an employer. Based upon this finding, it issued

its determination of no cause based upon lack of jurisdiction.

Within the statutory time, the Petitioner requested a

formal hearing and the FCHR forwarded the case to the Division

of Administrative Hearings on June 30, 2004. An Initial Order

was sent to the parties on July 1, 2004, and on July 14, 2004,

the Respondent filed a response. On July 14, 2004, a Notice of

He aring was issued which set the case for hearing on

September 24, 2004, in accordance with the sole response

received.

The notice stated that the issue was whether the Respondent

was an employer, and, if so, did the Respondent engage in an

unlawful employ ment practice. Thereafter, the Respondent

requested a status conference and specifically questioned

whether the issue encompassed whether the Respondent had engaged

in an unlawful employment practice. After the status conference

and an opportunity to con sider the argument of the Respondent,

the issue was limited to whether the Respondent was an employer;

however, because of the immediacy of the hearing an order was

not issued reflecting this change although both parties were

made aware of this limitation at the status conference.

The hearing was held as noticed. The Petitioner testified

in her behalf. The Respondent called David Wallenfelsz, Timothy

Weber, and Michael Wallenfelsz to testify and introduced

Respondent's Exhibits 1 through 5 into the record . Neither

party availed themselves of the opportunity to file a post -

hearing brief.

FINDINGS OF FACT

1. Bianca King was an employee of a dry - cleaning store

located at 1660 North Monroe Street and using the trade name

Blue Ribbon Cleaners. It was manage d by Timothy Weber, who

discharged the Petitioner for a fight with a fellow employee.

The store had eight to nine employees. The Petitioner had

worked for another Blue Ribbon Cleaners store located on Capital

Circle prior to her employment at the 1660 No rth Monroe

location.

2. The Petitioner did not present any other evidence on

how many employees the Respondent had.

3. The Respondent presented the testimony of David

Wallenfelsz, who prepares the paychecks for the employees of the

several Blue Ribbon Cleaner stores in the area. He identified a

check used by the store located on North Monroe. This check

(Respondent's Exhibit 1) was imprinted with the name, Wally of

Tallahassee, Inc., and it is representative of the checks used

to pay payroll and othe r expenses at that store. Wally of

Tallahassee, Inc., is the separate corporation that owns the

North Monroe store.

4. David Wallenfelsz also identified a check used by the

Capital Circle store, which has 25 employees. This check

(Respondent's Exhibit 2) was pink in color and was imprinted

with Wallenfelsz, Inc. Wallenfelsz, Inc. is a separate

corporation, although some of the shareholders of Wally of

Tallahassee, Inc. are also shareholders of Wallenfelsz, Inc.

5. David Wallenfelsz also identified a check used by the

East Lafayette store. This check (Respondent's Exhibit 3) was

gray - green in color and is imprinted with the name Blue Ribbon

Cleaners, Inc. This store has 25 employees. Some of the

shareholders in Wally of Tallahassee, Inc. and Walle nfelsz, Inc.

are shareholders in Blue Ribbon Cleaners, Inc.

6. Timothy Weber was called to testify. Weber was the

manager of the North Monroe store who discharged the Petitioner.

He has managed that store for twelve years, and there is no one

above him. He is totally in charge of hiring and firing at that

store. The store is its own cost center. He makes independent

management decisions to include the purchase of equipment and

supplies and earns bonuses for exceeding expectations in

earnings. The num ber of its employees, about eight, are

dictated by the amount of its business.

7. Weber was not present when the fight between the

Petitioner and another employee occurred. He was told about it

when he returned. He terminated both employees, the Petitio ner,

who is black, and the other employee, who was white. He did not

clear his decision with the principal stockholders.

8. Michael Wallenfelsz was called to testify. He is a

major stockholder in all three corporations, together with his

brother, Greg. He identified documents (Respondent's Exhibit 4)

which the stores must file confirming to the state the hiring of

employees. Each store files a separate report and each store

has a separate federal identification number. He confirmed

Weber's testimony t hat each store was a separate profit center.

Each store has its own plant; each store has its own lease; and

each store has a separate manager, who is free to hire and fire

without clearing their decisions with him or his brother. The

books of account tr eat each store separately and funds from the

three operations are not commingled.

9. Employees who want to transfer from one store to

another must resign from one store and be accepted at another

store, where they lose seniority and serve a new probatio n

period.

10. Michael Wallenfelsz testified about the reasons for

operating as separate corporations. He stated that this had

nothing to do with avoiding jurisdiction of Chapter 760, Florida

Statutes. He stated, as did his father, David, that two of the

stores have about 25 employees, well within the jurisdictional

limits. There was no evidence presented to show that the method

of operation was a subterfuge to avoid jurisdiction by FCHR.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearin gs has

jurisdiction over the parties and subject matter pursuant to

Section 760.11, Florida Statutes.

12. The sole issue presented was whether the Respondent,

the Blue Ribbon Cleaners located at 1660 North Monroe Street,

Tallahassee, Florida, is an employ er within the definition of

Chapter 760, Florida Statutes.

13. As the FCHR's Determination recited, Section

760.02(7), Florida Statutes, defines an employer to be any

person employing fifteen or more employees for each working day

in each of twenty or mor e calendar weeks in the current or

preceding calendar year and any agent of such person. The

evidence presented at the hearing by the Petitioner did not

establish that the store at 1660 North Monroe had more than 15

employees. The Petitioner testified th at it had eight or nine

employees. The Petitioner did not present any evidence to show

that any of the other stores was "related" to the store at 1660

North Monroe or that the separate incorporation of the stores

was a subterfuge to avoid the jurisdiction of Chapter 760,

Florida Statutes.

14. The Respondent presented evidence that the stores were

separate businesses and that they were not separated to avoid

jurisdiction of the Commission. The Respondent admitted that

its other two stores have sufficient employees to place them

within the jurisdiction of the Commission. Weber testified that

the North Monroe store had fewer employees because it had less

business.

15. The Petitioner has the burden to show that the

Respondent falls within the jurisdiction of the Commission. She

failed to do this.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law set forth herein, it is

RECOMMENDED:

That the Commission enter its final order dismissing the

Petitioner's Petition for Rel ief.

DONE AND ENTERED this 24th day of November, 2004, in

Tallahassee, Leon County, Florida.

S

__

STEPHEN F. DEAN

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 24th day of November, 2004 .

COPIES FURNISHED :

Bianca King

509 East Magnolia Drive

Apartment 2050

Tallahassee, Florida 32301

Mark S. Levine, Esquire

Levine, Stivers & Myers

245 East Virginia Street

Tallahassee, Florida 32301

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

NOTICE O F RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions to

this recommended order should be filed with the agency that will

issue the final order in this case.