05-003608 James E. Silvey vs. Kaufman, Rossin &Amp; Co. Status: Closed Recommended Order on Thursday, May 25, 2006.

Summary: Petitioner failed to prove that he was discriminated against and terminated because of his age. Recommend that the petition be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES E. SILVEY, )

)

Petitioner, )

)

vs. ) Case No. 05 - 3608

)

K AUFMAN, ROSSIN & CO., )

)

Respondent. )

____________________________)

RECOMMENDED ORDER

A hearing was held pursuant to notice on February 22, 2006,

by video teleconference at sites in Miami and Tallahass ee,

Florida, before Administrative Law Judge Florence Snyder Rivas,

of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Loring N. Spolter, Esquire

Loring N. Spolter, P.A.

One Financial Plaza, Suite 1600

100 Southeast T hird Avenue

Fort Lauderdale, Florida 33394

For Respondent: James S. Bramnick, Esquire

Akerman Senterfitt

One Southeast Third Avenue

SunTrust International Center, 28th Floor

Miami, Florida 33131

STATEMENT OF THE ISSUE

W hether Respondent terminated Petitioner’s employment in

violation of Chapter 760 , Florida Statutes (2004), popularly

known as the Florida Civil Rights Act of 1992 (Florida Civil

Rights Act).

PRELIMINARY STATEMENT

On June 07, 2005, the Petitioner, James E . Silvey

(Petitioner or Silvey), filed a complaint with the Florida

Commission on Human Relations (FCHR). Petitioner alleged that

the Respondent, Kaufman, Rossin & Co. (Respondent or KR), had

discriminated against him on the basis of age in violation of

t he Florida Civil Rights Act when it terminated his employment

on June 15, 2004. The allegations were investigated and on

September 19, 2005, FCHR issued its determination of “no cause.”

Silvey filed a Petition for Relief on September 28, 2005.

FCHR trans mitted the case to the Division of Administrative

Hearings (Division) on October 3, 2005. The case was assigned

to Administrative Law Judge Florence Snyder Rivas under DOAH

Case No. 05 - 3608, and was set for a final hearing on January 11,

2006.

The final hearing did not go forward on that date; instead,

a continuance was granted upon a joint motion by the parties in

order to afford them reasonable time to complete discovery and

motion practice following the substantial disruption occasioned

by Hurricane Wi lma.

On January 31, 2006, Respondent filed a Motion for Summary

Final Order and Incorporated Memorandum of Law, which Motion was

directed toward the merits of Petitioner’s claims. On

February 8, 2006, Petitioner filed a Motion for First Extension

of Tim e to Respond to Respondent’s Motion for Summary Final

Order. An extension of time was granted, and Petitioner filed

his Response to Respondent’s Motion for Summary Final Order on

February 16, 2006. Upon consideration, it was determined that

disputed issu es of material fact existed and Respondent was not

entitled to judgment as a matter of law. Accordingly, the

Respondent’s Motion for Summary Final Order was denied.

The identity of witnesses, exhibits, and attendant rulings

are contained in the one - volum e transcript of the proceedings

filed with the Division on March 16, 2006. The parties sought

and were granted 30 days from the filing of the transcript to

submit proposed recommended orders. Both parties submitted

timely Proposed Recommended Orders, whi ch have been duly -

considered.

FINDINGS OF FACT

1. Petitioner is an accountant. Respondent is an

accounting firm. The parties and their four - year employment

relationship are more fully described below to the extent

relevant.

2. Petitioner was born on June 13, 1943. Petitioner was

employed by Respondent beginning May 1, 2000. At the time of

his hiring, Petitioner was 56 years old. At the time of the

alleged unlawful employment practice -- in this case the

termination of his employment effective July 1, 2004 --

Petitioner was 61 years old.

3. Respondent accounting firm was established in Miami in

1962. At that time, the firm had three employees, including

name partners James Kaufman (Kaufman) and Jay Rossin (Rossin),

both certified public accountants. Kaufman and Rossin have been

continuously employed on a full - time basis at the firm they

founded. Kaufman and Rossin were, at the time Petitioner was

hired, ages 64 and 66, respectively. Since the firm's founding,

KR has developed a national practice. At all relevant times, KR

is an employer within the meaning of the Florida Civil Rights

Act. At the time of the hearing, KR employed over 200 people;

professionals comprised approximately three - fourths of the KR

workforce.

4. At all times material to this case, KR's main office

was located in Miami, and Kaufman and Rossin held controlling

authority in the firm. Kaufman and Rossin have, since the

firm's founding, been consistently engaged with KR's day - to - day

affairs, including its growth and profitab ility. Kaufman, in

close consultation with Rossin, is at all relevant times

responsible for hiring and terminating KR employees.

5. When KR was founded, and for some time after, its

primary business was to provide basic accounting and related

services to individuals and businesses based in South Florida.

At all relevant times, KR seeks to expand and to increase its

Florida and national market share. To accomplish this goal, KR

makes efforts to hire accountants with expertise in practice

areas which are growing. In order to maintain the firm's

profitability, KR eliminates professional employees who

concentrate their practice in areas for which demand is

declining or is likely to decline in the foreseeable future.

6. Professional staff is expected to ma rket their

services. To that end, KR provides in - house marketing

personnel. The job of the marketing staff is to assist practice

areas and individual members of the professional staff to

develop a business plan to generate business for the firm and

for t hemselves. A business plan might include generating

business from in - house referrals, new engagements from existing

clients, or obtaining new clients. The responsibility to

achieve and maintain profitability remains at all times with the

professional. S ilvey had access to the firm's in - house

marketing staff at relevant times. Throughout its history, KR

exercises discretion -- primarily Kaufman's discretion -- to

terminate any professional who fails to support his "overhead"

and to achieve a profit for the f irm.

7. At the time Silvey was hired by KR, the firm reasonably

expected that Silvey would be profitable to the firm. Silvey

had substantial experience in sales and use taxation, which

experience was gained during years of public service at the

Florida D epartment of Revenue (DOR) and the Northwest Florida

Water Management District.

8. Prior to embarking upon a career in tax work, Silvey

earned a bachelor's degree in business administration from the

University of South Florida. Upon graduating in 1969, and for

several years thereafter, Silvey worked in the private sector.

His jobs included management training at J.C. Penney & Co.;

department manager at J. Byron & Associates; collection manager,

loan officer and assistant vice president for commercial lo ans

at People's Bank; and as an insurance salesman with Intagon

Finance.

9. Silvey began his employment at DOR in 1977. From this

time forward, Silvey's college education was not significant to

his job duties. In the beginning, Silvey worked as a tax

auditor. Thereafter, he held a variety of positions at DOR.

Beginning in 1989, he became supervisor of taxpayer assistance.

During his tenure in that capacity, he supervised as few as

eight and as many as eighteen taxpayer assistance employees and

spent at least three - fourths of his time on sales and use tax

issues.

10. Sometime in the 1980s, Dan Wagner (Wagner) began his

employment at DOR where he became acquainted with Silvey.

Silvey became Wagner's supervisor "somewhere around [19]'89."

Throughout Wagner's employment at DOR, he worked primarily in

the area of sales and use tax. He was involved with the writing

of Florida's sales tax regulations, as was Silvey.

11. Silvey left DOR in 1990 to accept an administrative

position for the Northwest Flo rida Water Management District.

He returned to DOR in 1992 and was assigned to dispute

resolution. In this capacity, all of his work involved sales

and use tax. In 1995, Silvey became a tax audit specialist.

While Silvey held that position, he and othe r DOR employees were

assigned to provide "lectures or teaching programs" to business

associations, field personnel, and auditors regarding general

tax issues throughout Florida. Silvey enjoyed teaching and

public speaking, and, by all accounts, was good a t it.

12. Sometime in 1997, Silvey left DOR to accept a position

as a tax manager at a large accounting firm, Price Waterhouse

(PW). Wagner had previously left DOR to accept a position at

another large accounting firm, KPMG. Approximately a year after

S ilvey joined PW, Wagner left KPMG to work at PW. At PW, sales

and use tax comprised the substantial majority of Wagner's

workload.

13. While employed at PW, Silvey and Wagner both reported

to Debbie Fowler (Fowler). Fowler was at all relevant times a

ce rtified public accountant and held a master's degree in

taxation. At PW, Silvey performed tax work in the areas of

sales and use and documentary stamps. He also developed a

specialization in telecommunications tax work. While at PW,

sales and use taxati on comprised a substantial majority of

Silvey's practice. However, during their employment at PW,

Silvey and Fowler worked to develop their expertise and

clientele in Silvey's telecommunications practice because at

that time, telecommunications was consid ered a growth area for

accounting firms.

14. Sometime in early 2000, a "headhunter" arranged for

Fowler to interview for employment at KR. Fowler interviewed

with Kaufman. Following extensive negotiations, which included

Kaufman ’s making a commitment to opening a Fort Lauderdale

office, Fowler accepted a position as a senior manager at KR.

Fowler told Silvey and Wagner of her negotiations with KR, and

at their request, Fowler made Kaufman aware of Silvey and

Wagner, both of whom she held in high regard. Following

individual and private interview(s) which Kaufman conducted with

Silvey and with Wagner, a so - called SALT (state and local tax)

practice group emerged, with Fowler as team leader and Silvey

and Wagner working under her supervision. It was anti cipated

that the bulk of the group's work would be in the area of sales

and use taxes. The SALT team and other, longer - term employees

of KR, opened a Fort Lauderdale office for the firm shortly

after the members of the SALT group began their employment at

KR.

15. In the course of Fowler's discussions with Kaufman,

Fowler indicated that she hoped to generate business in the

cruise industry and from utilities that required sales tax and

telecommunication tax expertise. She hoped, too, that with

Silvey's a ssistance she could generate substantial business in

the area of documentary stamps and telephone and sales tax

projects.

16. On March 21, 2000, Kaufman offered Silvey a job with a

starting salary of $85,000. Silvey negotiated his starting

salary upward to $92,000. The terms of employment also included

10 percent of fees billed and collected on work originated by

Silvey, plus benefits. Kaufman offered Wagner employment, as

well. Neither Silvey nor Fowler participated in the

negotiations between Kaufman and Wagner, and the terms upon

which he was offered employment at KR are not reflected in the

record. It is undisputed that KR's offers of employment to

Fowler, to Silvey, and to Wagner were independent of one

another. In other words, there was no requi rement that

employment offered to Fowler, to Silvey, or to Wagner was

predicated upon their coming to KR as a "package." Once hired,

however, the three became the KR SALT practice group , which

Fowler had discussed with Kaufman.

17. Silvey obtained some clients for KR and attempted

unsuccessfully to obtain others. Yet, he contends that his

employment status was not to be adversely affected by his

individual contribution to KR's profitability. In fact, every

professional in the firm was required to achie ve profitability

within a reasonable period of time following commencement of

employment. Professionals were likewise required, over the long

term, to maintain profitability, or otherwise add value to the

firm. If a professional could not be profitable b y performing

work on matters generated by colleagues, s/he was obliged to

obtain new business in sufficient quantity to maintain full -

time, profitable employment. Those involved in planning for

KR's SALT practice anticipated that Fowler would bear the mai n

responsibility of generating new business, but there was no

evidence that Silvey was exempt from the obligation imposed upon

all KR professionals to achieve and maintain profitability.

Silvey was aware that Fowler and Kaufman regarded him as an

integral part of Fowler's marketing efforts with respect to the

establishment of a profitable telecommunications practice.

There is no persuasive evidence that Silvey or Wagner ever

bargained for or reasonably expected that they had no

independent duty to achieve and maintain profitability. Put

another way, Silvey and Wagner did not bargain for and did not

have an agreement with KR for indefinite employment,

irrespective of whether they could, through internal or external

marketing efforts, generate profitability for the firm.

18. KR promoted the SALT practice on its website. At all

relevant times, biographies of Silvey and Kaufman were posted on

the KR website. Silvey's biography, which he had approved in

advance of its posting, represents Silvey to be an ex pert in

documentary stamps and telecommunications taxation; Wagner's

website biography represents him to be an expert in sales and

use taxation.

19. It had been hoped by KR that the SALT team would

quickly commence to generate profits for the firm, but bu siness

did not materialize in sufficient quantity to support full - time

salaries for all three members of the SALT group. Because she

headed the practice and had primary responsibility for its

development, Fowler volunteered in mid - 2001 to take a

substanti al pay cut. Fowler voluntarily resigned from the firm

in June 2002. At the time of her departure, the SALT practice

was doing well in terms of overall revenue and productivity; the

group had had a "rather decent year." With Fowler's overhead

eliminated, KR was optimistic about the year ahead. Silvey, in

particular, had substantial telecommunications projects during

fiscal year 2001 - 2002. Kaufman was "very pleased" and gave him

a bonus and raise.

20. Also in mid - 2002, Wagner was promoted to manager an d

received a $10,000 raise and an $8,000 bonus.

21. While employed as head of the KR SALT practice,

Fowler's policy was to review and approve work performed by

Silvey and Wagner prior to it s being sent to clients and others.

Following her departure, no CPA or other supervisor proofed

their work in advance of it s being sent out of the office. KR

had confidence in the quality of the work product generated by

Silvey and by Wagner and in their overall competence at their

jobs. However, KR remained concerne d regarding whether Silvey

and Wagner could produce enough billable time to achieve and

maintain profitability.

22. At some point following Fowler's departure, Mike

Custer was assigned to supervise Silvey and Wagner. Custer

spoke to both men about the n eed to develop their "productivity,

chargeability [and] obtaining new clients."

23. On April 15, 2003, KR held its traditional "end of tax

season" party at Senor Frog's bar and restaurant in Coconut

Grove. Silvey recalls that he and Kaufman had a pleasa nt

conversation, the specifics of which he does not recall. Silvey

does acknowledge, however, that the matter of his productivity

was discussed. Although Kaufman had become increasingly

concerned about Silvey's chargeability, he nevertheless promised

Sil vey that he would have a job in the fiscal year ahead in

order to give him every opportunity to develop his practice.

Subsequently, Kaufman conducted an annual performance review for

Silvey. Silvey did not receive a raise or bonus at that time.

Kaufman w as concerned that, looking forward, there was not

enough work to keep both Silvey and Wagner busy in their field

of primary expertise, sales and use tax. Moreover, the

telecommunications industry itself was contracting. With that

contraction, industry bu siness in the field where Silvey and KR

had had hoped to expand Silvey's practice was reasonably

expected to decline. There was sentiment in the firm to

terminate Silvey's employment at that time. One of the partners

who held this view was founding partn er Rossin. Kaufman

nevertheless adhered to his commitment to give Silvey an

additional year in which to develop his practice. Wagner, too,

was told at his 2003 performance review that he had to be more

chargeable.

24. At some point in the employment re lationship, Kaufman

inquired of Silvey if he had "any retirement plans." Silvey

testified that the question was asked at his 2003 performance

review session. According to Silvey, Kaufman asked him if he

"[had] any plans on retiring?" Kaufman says he ask ed the

question earlier, "probably 2001" or within a year of when

Silvey's employment began. On this and other relevant matters,

Kaufman's testimony is credited. In general, Kaufman's account

of conversations and events relating to the hiring and

employm ent history of Fowler, Silvey, and Wagner is clear;

consistent with exhibits admitted into evidence; and consistent

with the testimony of Fowler, who was the only witness not

aligned with a party. By contrast, Silvey's testimony regarding

his 2003 evalua tion meeting with Kaufman, and other relevant

events which occurred before and during his employment at KR, is

vague and/or based upon self - serving speculation. Petitioner's

contention that Kaufman perjured himself at hearing with respect

to what transpir ed at the 2003 evaluation meeting is expressly

rejected.

25. In late 2003, Custer expressed concern that Silvey's

[telecommunications] work appeared to be "drying up." Custer,

Wagner and Silvey discussed ways in which they might bring in

additional wo rk. Included in that conversation was the

possibility of generating additional work from the hotel

industry.

26. In the period of time following his 2003 performance

review, Silvey was unsuccessful in generating profits for KR.

On June 15, 2004, Kaufma n came to Silvey's Fort Lauderdale

office and told him that he "hated to do it," but had decided to

terminate Silvey's employment because Silvey had not been able

to generate an adequate amount of billable hours.

27. Silvey attempted to keep his job at W agner's expense.

Silvey told Kaufman that he was as chargeable if not more

chargeable than Wagner and that he had a "broader background" in

tax. The record does not support Silvey's view of his value in

2004 relative to Wagner's. Instead, the evidence es tablished

that by mid - 2004, Kaufman had reasonably concluded that Wagner

was the better choice to handle the sales and use tax clients KR

was serving in 2004, and that Wagner had greater potential than

Silvey to add value to the firm. Kaufman reasonably b elieved

that there was and would continue to be insufficient sales and

use taxation business to provide full - time, profitable

employment for both Silvey and Wagner. Further, Kaufman

reasonably believed that KR's business would continue to grow in

the area of sales and use tax and to contract in the area of

telecommunications tax. By 2004, substantial engagements upon

which Silvey had been working were "winding down" with no new

client prospects on the horizon. In the year prior to his

termination, Silvey generated no new business for KR. In the

six months prior to his termination, he had no engagements to

perform work in connection with any existing or new clients. At

the time of the 2004 evaluation, Wagner's experience in sales

and use tax exceeded Sil vey's by two to five years. In

addition, Wagner had more experience in analyzing sales and use

tax rules and a reputation for being more "methodical" than

Silvey. Moreover, at the time Silvey was terminated, KR

affiliates from around the country were sen ding specialized

business relating to aircraft and boat acquisition to Wagner

because he had "a reputation" in such matters, which Silvey did

not. Kaufman therefore adhered to his decision to terminate

Silvey. At the time of the final hearing, Wagner rema ined

productively employed at KR.

28. Silvey claims that in the course of terminating his

employment, Kaufman said, "well, you're getting ready to retire

anyway." Kaufman flatly denies this claim. Kaufman testified

that it is "inconceivable" he would ha ve made such a statement

because he was aware that Silvey's "economic situation was not

that comfortable"; Silvey had previously told him that he had no

plans to retire; and "I [Kaufman] wouldn't taunt or tease him

[Silvey] over the fact that he was about to retire." In

addition, Kaufman informed Silvey that he "had no objection to

[Silvey] providing service in his area to our client base, and I

[Kaufman] was going to do anything I could to help him." It is

determined that Kaufman did not believe it was S ilvey's

intention to retire in 2004 and did not make any statement which

could reasonably be deemed to be suggest that Silvey presently

had or should have an intention to retire. To be clear, it is

determined that on this occasion Kaufman made no direct o r

indirect reference to retirement, or to Silvey's age.

29. At the time Silvey was terminated, the firm employed a

fulltime accountant who was past 80 years of age. She is a

long - term employee who remains productive and adds value to the

firm.

30. In addition to Silvey, KR terminated two

professionals, ages 35 and 42, due to lack of billable work in

their fields of expertise in 2003 - 2004. In sum, KR is highly

focused on the productivity of its professional employees.

Those who generate profits ar e welcome to work as long as they

are willing and able, and those who do not generate profits are

terminated when managing partner Kaufman becomes convinced that

they will not become profitable within a reasonable period of

time. The sole reason for Silve y's termination was his failure

to achieve profitability for at least two fiscal years prior to

his termination, coupled with KR's reasonable determination that

it was unlikely he would achieve profitability in the

foreseeable future.

31. Respondent did n ot replace Petitioner’s position after

his termination.

CONCLUSIONS OF LAW

32. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57 (1), Florida Statutes (2006).

33 . The Florida Civil Rights Act, among other things,

forbids the discriminatory firing of an employee. Subsection

760.10(1)(a), Florida Statutes (2004), states:

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or to fail o r refuse to

hire any individual, or otherwise

discriminate against any individual with

respect to compensation, terms, conditions,

or privileges of employment, because of such

individual’s race, color, religion, sex,

national origin, age, handicap, or mari tal

status.

34. Respondent is an “employer” as defined in Subsection

760.02(7), Florida Statutes (2004), which provides:

(7) “Employer” means any person employing

15 or more employees for each working day in

each of 20 or more calendar weeks in the

c urrent or preceding calendar year, and any

agent of such person.

35. FCHR and Florida courts look to federal discrimination

law for guidance when construing provisions of the Florida Civil

Rights Act. See Brand v. Florida Power Corp. , 633 So . 2d. 504 ,

509 (Fla. 1st DCA 1994). Accordingly, the United States Supreme

Court’s model for employment discrimination cases set forth in

McDonnell Douglas Corporation v. Green , 411 U.S. 792, 93 S. Ct.

1817, 36 L. Ed. 2d 668 (1973) applies to claims arising under

the Florida Civil Rights Act. See Florida Department of

Community Affairs v. Bryant , 586 So. 2d 1205 (Fla. 1st DCA

1991).

36. Under the McDonnell Douglas analysis, Petitioner has

the burden of establishing by a preponderance of evidence a

prima facie cas e of unlawful employment discrimination. If the

prima facie case is established, the burden shifts to Respondent

employer to rebut this preliminary showing by producing evidence

that the adverse action was taken for some legitimate, non -

discriminatory rea son. If the employer rebuts the prima facie

case, the burden shifts back to Petitioner to show by a

preponderance of the evidence that Respondent’s articulated

reason(s) for its adverse employment decision is pretextual.

See Texas Department of Community Affairs v. Burdine , 450 U.S.

248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981).

37. The unlawful employment practice alleged in this case

is discrimination based on age. In order to prove a prima facie

case of discrimination based on age, Petitioner must p rove that

he was “(1) a member of the protected class, [in this case], by

virtue of his age; (2) qualified to do the job; (3) subjected to

adverse employment action; (4) replaced by a person outside the

protected class or suffered from disparate treatment because of

membership in the protected class.” See Kelliher v. Veneman ,

313 F.3d 1270, 1275 (11th Cir. 2002); Williams v. Vitro Services

Corporation, 144 F.3d 1438, 1441 (11th Cir. 1998); Anderson v.

Lykes Pasco Packing Co. , 503 So. 2d 1269, 1270 (Fla. 2d DCA

1986).

38. In this case, it is determined that Petitioner proved

the first three elements of a prima facie case in that he was

(1) a member of a protected class by virtue of his age at all

relevant times; (2) qualified to do the job; and (3) subjecte d

to adverse employment action, in this case, termination.

39. However, in order to establish a prima facie case of

age discrimination, Petitioner must establish the fourth

element. That is, Petitioner must also prove that a person

outside the protected class replaced him, or that he suffered

disparate treatment because of membership in the protected

class. This, he failed to do. Petitioner did not prove he was

replaced by a person outside the protected class. Instead, the

evidence established that Sil vey was not replaced. Neither did

Silvey offer persuasive evidence that he suffered disparate

treatment because of membership in the protected class. At

most, Silvey's evidence concerni ng alleged disparate treatment

established that Kaufman asked Silvey if he "[had] any plans on

retiring"; Kaufman made this inquiry on one occasion more than

two years prior to Silvey's termination. This evidence is not

sufficient to establish that Silvey suffered disparate treatment

because of membership in the protected class. Having failed to

prove the fourth element, Silvey failed to prove a prima facie

case of age discrimination.

40. Assuming arguendo that Petitioner had proved a prima

facie case of age discrimination, Respondent established that

Petitioner was termi nated due to a lack of work in those areas

of practice in which Petitioner specialized -- telecommunications

and documentary stamp tax -- and was not the most qualified member

of the SALT practice in terms of expertise in sales and use

taxation, where the firm reasonably hoped to achieve and

maintain profitability for one fulltime employee.

41. Further, even if Petitioner had established a prima

facie case of unlawful employment discrimination based on age,

Respondent rebutted any presumption of discriminati on with

persuasive evidence of legitimate, non - discriminatory reasons

for termination of Petitioner.

42. Petitioner failed to prove that the Respondent’s

reasons for terminating his employment are pretextual. Rather,

legitimate, non - discriminatory busin ess reasons for the actions

taken against the Petitioner’s employment status were proved by

preponderant, persuasive evidence. Age played no role in KR's

decision to terminate Silvey's employment; rather, he was

terminated because and only because there w as insufficient work

in areas of practice in which he specialized and because he was

not the better qualified candidate to serve and develop KR's

sales and use taxation practice, where the firm reasonably hoped

to achieve and maintain profitability for one fulltime employee.

RECOMMENDATION

Based upon 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 Petition for Relief in its

entirety.

DONE AND EN TERED thi s 25 th day of May, 2006, in

Tallahassee, Leon County, Florida.

S

____________________________________

FLORENCE SNYDER RIVAS

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 Admi nistrative Hearings

this 25 t h day of May, 2006.

COPIES FURNISHED :

Loring N. Spolter, Esquire

Loring N. Spolter, P.A.

One Financial Plaza, Suite 1600

100 Southeast Third Avenue

Fort. Lauderdale, Florida 33394

James S. Bramnick, Esquire

Akerman Senterfitt

One Southeast Third Aven ue

SunTrust International Center, 28th Floor

Miami, Florida 33131

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Cecil Howard, General Counsel

Florida Commission o n Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF 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 Recomme nded Order should be filed with the agency that

will issue the Final Order in this case.