09-000714
Joseph Deleo vs.
Properties Of The Villages, Inc.
Status: Closed
Recommended Order on Thursday, July 16, 2009.
Recommended Order on Thursday, July 16, 2009.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8JOSEPH DELEO, )
11)
12Petitioner, )
14)
15vs. ) Case No. 09-0714
20)
21PROPERTIES OF THE VILLAGES, )
26INC., )
28)
29Respondent. )
31)
32RECOMMENDED ORDER
34This cause came on for final hearing before Harry L.
44Hooper, Administrative Law Judge with the Division of
52Administrative Hearings, on May 14, 2009, in The Villages,
61Florida.
62APPEARANCES
63For Petitioner: Carla D. Franklin, Esquire
69Carla D. Franklin, P.A.
73204 West University Avenue, Suite 3
79Gainesville, Florida 32601
82For Respondent: Stephen W. Johnson, Esquire
88McLin & Burnsed
91Post Office Box 491357
95Leesburg, Florida 34749-1357
98STATEMENT OF THE ISSUE
102The issue is whether Petitioner is entitled to seek relief
112pursuant to the Florida Civil Rights Act of 1992 under the
123jurisdiction of the Florida Commission on Human Rights.
131PRELIMINARY STATEMENT
133Petitioner, Joseph DeLeo (Mr. DeLeo), during all times
141pertinent, sold real estate pursuant to the business model of
151Respondent Property of The Villages, Inc. (POV). Subsequent to
160Mr. DeLeo's claimed discharge, he filed an Employment Complaint
169of Discrimination with the Florida Commission on Human Relations
178(Commission). He claimed his discharge was based on age and
188disability discrimination. Further, he complained that having
195made an allegation of discrimination, he suffered discharge in
204retaliation.
205On January 8, 2009, the Commission made a determination
214that it lacked jurisdiction to act because POV was not
224Mr. DeLeo's employer, but rather had an independent contractor
233relationship with him, and issued a Notice of Determination: No
243Jurisdiction. On February 9, 2009, Mr. DeLeo timely filed a
253Petition for Relief. The Petition for Relief was transmitted to
263the Division of Administrative Hearings on February 10, 2009.
272At the May 14, 2009, hearing, only the question of
282jurisdiction was considered. This is because a recommended
290order finding jurisdiction, if adopted by the Commission, would
299trigger the investigation required by Subsection 760.11(3),
306Florida Statutes (2008). Or, in the alternative, a recommended
315order finding no jurisdiction, if adopted by the Commission,
324would end the case.
328As will be addressed in more detail below, the party
338asserting the Commission's jurisdiction, Mr. DeLeo, has the
346burden of proving it. If Mr. DeLeo was an employee of POV, the
359Commission has jurisdiction. If Mr. DeLeo was an independent
368contractor, the Commission does not have jurisdiction.
375At the hearing, Petitioner presented the testimony of two
384witnesses and offered four exhibits into evidence. Respondent
392presented the testimony of two witnesses and offered six
401exhibits into evidence.
404A Transcript was filed on June 19, 2009. After the
414hearing, Petitioner and Respondent filed their Proposed Findings
422of Fact and Conclusions of Law on June 29, 2009.
432References to statutes are to Florida Statutes (2008)
440unless otherwise noted.
443FINDINGS OF FACT
4461. Mr. DeLeo is a former Miami homicide detective, who
456received a disability retirement. He has held a real estate
466salesman license and real estate broker's license since about
4751986. Both licenses were issued by the State of Florida.
485Official recognition was taken that he is over 40 years of age.
4972. POV is the sales arm of a venture known as The Villages
510of Lake Sumter (The Villages). The Villages is a large
520community located south of Ocala, Florida. It is a development
530that caters to persons 55 years of age and older and provides
542recreational opportunities, including golf. Sales of new homes
550in The Villages are handled exclusively by POV.
5583. The typical real estate broker-salesperson relationship
565is clearly one of principal and independent contractor, and
574cases in Florida and elsewhere describe it thus. However, The
584Villages mass markets its concept and its properties,
592nationally, and as a result, POV's relationship with its
601salespersons is not typical.
6054. In the course of marketing its real estate, The
615Villages advertises nationally. This marketing effort attracts
622large numbers of potential buyers to visit. A guest
631coordinator, who is an employee of The Villages, books visits
641for potential buyers. When guests arrive they are greeted by
651the guest coordinator who connects them with a sales
660representative, like Mr. DeLeo.
6645. Mr. DeLeo worked in the real estate business for about
67521 years prior to becoming involved with POV. He entered into a
687contract with POV on September 30, 2004. The contract is
697entitled, "Independent Contractor Agreement" (Agreement). The
703Agreement was drafted by POV, and Mr. DeLeo had no opportunity
714to negotiate its terms. As will be discussed below, it is the
726actual relationship between the parties that controls the
734outcome of this case, not the title of the Agreement.
7446. The Agreement provided that either party could
752terminate the contract at will. Mr. DeLeo learned that he had
763been terminated on April 7, 2008.
7697. Mr. DeLeo attended an extensive training program
777provided by POV. He completed the training in February 2001 and
788thereafter began selling property pursuant to the Agreement.
7968. According to the Agreement, Mr. DeLeo could only sell
806houses marketed in The Villages. He was specifically prohibited
815from selling property not located in The Villages. He sold new
826properties owned by The Villages and property marketed by
835individuals in The Villages, in accordance with the Agreement.
844In a typical broker and salesperson relationship, the
852salesperson is not limited to selling in a geographically
861defined area.
8639. The Agreement had an attachment to it that was entitled
874Commission Structure. This set forth the details of how
883Mr. DeLeo was to receive compensation. Mr. DeLeo was satisfied
893with the commission arrangement. He received no salary. If a
903dispute arose over splitting a commission, the dispute was
912resolved by POV. Typically, disputes between real estate sales
921persons are resolved by committees of realtors acting under the
931auspices of a multiple listing service.
93710. POV provided Mr. DeLeo, as well as all salespersons,
947with an office, telephones, computer support, and all other
956items needed to complete a real estate sale except for an
967automobile which Mr. DeLeo provided. The computer provided a
976shared database which maintained information about potential
983buyers, and the information in the database was reviewed by
993management. Mr. DeLeo was required to provide liability
1001insurance, business cards, certain signs, lock boxes, and on
1010occasion, to pay the salaries of personal assistants, who are
1020provided by POV.
102311. Paragraph 4 of the Agreement recites that "The parties
1033agree that the Sales Representative is an independent contractor
1042and not an agent, joint venturer, or employee of POV or The
1054Villages, and nothing in this Agreement shall be construed to be
1065inconsistent with this relationship or status. Hours devoted by
1074the Sales Representative is [sic] entirely within the Sales
1083Representative's control, and POV will rely upon the Sales
1092Representative to work those hours that the Sales Representative
1101deems necessary to perform the job in a competent and
1111professional manner."
111312. Mr. DeLeo testified that he was required to work a set
1125schedule and that he was required to obtain permission from a
"1136team leader" prior to taking vacation time. Vacation time was
1146limited. The team leader evaluated the performance of
1154salespersons and provided feedback on ways to improve
1162performance. The team leader was a salaried employee of POV.
1172This sort of supervision is not typical in the real estate
1183business.
118413. POV asserted that they did not exercise control over
1194their salespersons with regard to working hours. However, it is
1204unlikely that The Villages would import a large group of
1214potential buyers and merely hope that sufficient staff would be
1224available to make sales. Clearly, POV required salespersons to
1233be available when needed by POV. Accordingly, the weight of the
1244evidence proves that Mr. DeLeo's work schedule was controlled by
1254POV. Therefore, the testimony of Mr. DeLeo is deemed accurate.
126414. Supervision of the team leader included accompanying
1272the salespersons to meetings with clients and listening in on
1282telephone contacts to critique the salesperson's performance.
1289The close supervision is different from the usual relationships
1298found in the real estate business. It is more controlling than
1309that found in independent contractor relationships.
131515. In late 2007, POV introduced a new sales program
1325called ValueMatch. Mr. DeLeo was required to participate in the
1335ValueMatch sales training and utilize the ValueMatch sales
1343approach. Mr. DeLeo was required to document his compliance
1352with the ValueMatch sales program via a worksheet at every
1362client contact. This requirement demonstrates that POV
1369maintained close control over its sales and marketing
1377representatives.
137816. POV provided an information packet to Mr. DeLeo and
1388other sales and marketing representatives in 2006 and again in
13982008.
139917. The 2006 version listed numerous "Essential duties and
1408responsibilities." It includes a duty to be "Present and
1417prepared for work when noted by various rotation options and/or
1427customer needs" and "Attend training opportunities, team huddles
1435and meetings."
143718. The 2008 version includes, "Present and prepared for
1446work when noted by various appointments to include Open Homes,
1456New Home showcase, 1st and 2nd Step CMA's, Resident Touches,
1466Rotation, Pre Owned Home Floor Time, and any other customer
1476opportunities. All appointments are expected to be logged in
1485the customer AS400 account allowing various members of the
1494support staff to assist in the process."
150119. The information packets present these requirements as
1509imperatives and thus exhibit an exercise of close control over
1519sales and marketing representatives.
152320. The 2006 version, under "Some Recommendations," sets
1531out a detailed dress code. The 2008 version merely requires
1541maintaining a professional appearance. It is clear that these
1550requirements are imperative in nature thus reveal the exercise
1559of close control over sales and marketing representatives.
156721. Both information packets address rotation (or work)
1575schedules that are consistent with maintaining close control
1583over the work schedules of sales and marketing representatives.
159222. Upon consideration of all of the evidence, and despite
1602the title of the contract to the contrary, it is clear that POV
1615maintained tight controls over the activities of their sales and
1625marketing representatives, and, of course, over Mr. DeLeo.
1633CONCLUSIONS OF LAW
163623. The Division of Administrative Hearings has
1643jurisdiction over the subject matter of and the parties to this
1654proceeding. §§ 120.569, 120.57(1), and 760.11, Fla. Stat.
166224. Mr. DeLeo is an aggrieved person within the meaning of
1673Subsection 760.02(10), Florida Statutes. Mr. DeLeo has the
1681burden of proof. See Balino v. Department of Health &
1691Rehabilitative Services , 348 So. 2d 349 (Fla. 1st DCA 1977).
1701The standard of proof is by a preponderance of the evidence.
1712§ 120.57(1)(j), Fla. Stat.
171625. The Florida Civil Rights Act (Act), Section 760.01 et
1726seq. , Florida Statutes, is patterned after Title VII of the
1736Federal Civil Rights Act, 42 U. S. C. Section 2000e, et seq.
1748Federal case law interpreting Title VII and similar federal
1757legislation is applicable to cases arising under the Florida
1766Act. See Harper v. Blockbuster Entm't Corp. , 139 F.3d 1385,
17761387 (11th Cir. 1998). The Act provides protection for
1785employees. It does not protect independent contractors.
179226. In Cobb v. Sun Papers, Inc. , 673 F.2d 337, 340-41
1803(11th Cir. 1982), it was asserted by plaintiff/appellant that
1812some wider net should be cast in order to find the existence of
1825an employer-employee in civil rights cases. However, the court
1834rejected that theory and held that courts should use a common
1845law analysis in deciding the question of whether plaintiff was
1855an employee or an independent contractor.
186127. The court in Cobb adopted the test explained in
1871Spirides v. Reinhardt , 613 F.2d 826 (D.C. Cir. 1979), when it
1882articulated a test requiring an analysis of the economic
1891realities of the work relationship and stated:
1898This test calls for application of general
1905principles of the law of agency to
1912undisputed or established facts.
1916Consideration of all of the circumstances
1922surrounding the work relationship is
1927essential, and no one factor is
1933determinative. Nevertheless, the extent of
1938the employer's right to control the "means
1945and manner" of the worker's performance is
1952the most important factor to review here, as
1960it is at common law . . . . If an employer
1972has the right to control and direct the work
1981of an individual, not only as to the result
1990to be achieved, but also as to the details
1999by which that result is achieved, an
2006employer/employee relationship is likely to
2011exist.
201228. The court in Spirides then listed additional factors
2021which are relevant to the consideration of this issue:
2030(1) the kind of occupation, with reference
2037to whether the work usually is done under
2045the direction of a supervisor or is done by
2054a specialist without supervision; (2) the
2060skill required in the particular occupation;
2066(3) whether the "employer" or the individual
2073in question furnishes the equipment used and
2080the place of work; (4) the length of time
2089during which the individual has worked; (5)
2096the method of payment, whether by time or by
2105the job; (6) the manner in which the work
2114relationship is terminated; i.e., by one or
2121both parties, with or without notice and
2128explanation; (7) whether annual leave is
2134afforded; (8) whether the work is an
2141integral part of the business of the
"2148employer"; (9) whether the worker
2153accumulates retirement benefits; (10)
2157whether the "employer" pays social security
2163taxes; and (11) the intention of the
2170parties.
217129. Virtually identical criteria are set forth in F. L.
2181Enterprises v. Unemployment Appeals Commission , 515 So. 2d 1340
2190(5th DCA 1987). The recently unemployed Ms. Jouben operated in
2200a slightly different relationship with her employer than did
2209Mr. DeLeo. In F. L. Enterprises it was Ms. Jouben's job to
2221approach tourists at central Florida hotels, shopping malls, and
2230the like, to arrange for them to tour particular resorts.
2240Ms. Jouben was permitted to work for other business entities and
2251did work at other business entities. Factually, F. L.
2260Enterprises is quite different from this case. She was found to
2271be an independent contractor.
227530. The court in Cobb also noted that courts must consider
2286that when "an employer has the right to control and direct the
2298work of an individual, not only as to the result to be achieved,
2311but also as to the details by which that result is achieved, an
2324employer-employee relationship is likely to exist." Cobb , 637
2332F.2d at 340. As was pointed out in VIP Tours v. State,
2344Department of Labor & Employment Security , 449 So. 2d 1307 (Fla.
23555th DCA 1984), "Of all the factors, the right of control as to
2368the mode of doing the work is the principal consideration."
2378Mr. DeLeo's work activities were closely controlled by POV.
238731. Analyzing the facts in this case in light of the
2398Spirides factors, it is found that:
2404(1) Typically a real estate salesperson
2410operates with little supervision. Mr. DeLeo
2416was a real estate salesperson, but he was
2424closely supervised by POV which was in the
2432business of developing residential areas and
2438selling homes;
2440(2) Typically a real estate salesperson
2446must, if he or she is to be successful, have
2456excellent marketing skills. Marketing
2460skills, except to a limited extent, were not
2468required of Mr. DeLeo because The Villages
2475operated a national mass marketing program;
2481(3) POV provided Mr. DeLeo with an
2488office, office equipment, data processing
2493hardware, communications, and training in a
2499specific sales technique.
2502(4) Mr. DeLeo worked for POV for less
2510than four years. The length of employment
2517in this case is not a factor in the
2526determining whether an employer-employee
2530relationship existed.
2532(5) Mr. DeLeo was not paid by the
2540hours he worked. He was paid a commission
2548based on the sales he made. Or, stated
2556another way, he was paid by the job. On the
2566other hand his availability to make sales
2573was closely controlled and his production
2579was closely monitored.
2582(6) Mr. DeLeo could end his employment
2589at will, and POV could discharge him at
2597will.
2598(7) Mr. DeLeo was required to adhere
2605to a schedule, notify a team leader if he
2614took a day off, and seek approval for
2622vacation time. Such close control is not
2629typical of the relationship between broker
2635and salesperson found in the usual case.
2642(8) Mr. DeLeo's work was an integral
2649part of the business plan of POV and The
2658Villages. Obviously, POV and The Villages
2664could not arrange for large numbers of
2671potential purchasers to arrive at The
2677Villages and merely hope that salespersons
2683would appear. Moreover, he was required to
2690work exclusively for POV.
2694(9) There is no information in the
2701record demonstrating that POV provided a
2707retirement plan for its salespersons, or
2713that it did not.
2717(10) Mr. DeLeo was provided with an
2724IRS Form 1099 each year. This indicates
2731that he was treated as an independent
2738contractor by POV. No evidence was provided
2745indicating this decision was made subsequent
2751to the submission of a properly completed
2758IRS Form SS-8, "Determination of Worker
2764Status for Purposes of Federal Employment
2770Taxes and Income Tax Withholding," which is
2777the form that the Internal Revenue Service
2784uses in order to determine whether an
2791employment relationship exists.
2794(11) The evidence of record indicates
2800that both parties intended an independent
2806contractor relationship at the time they
2812entered into the Agreement in September 30,
28192004. The intent of the parties is
2826important, just as the Agreement is
2832important, in determining the nature of the
2839relationship. However, the parties can't
"2844intend" a relationship to exist that
2850factually does not exist.
285432. A real estate agent was found to be an independent
2865contractor in the case of a workers' compensation claim. See
2875Florida Industrial Commission v. Schoenberg , 117 So. 2d 538
2884(Fla. 3d DCA 1960). Conversely, in a suit under the Florida
2895Equal Access to Justice Act, Section 57.111, Florida Statutes
2904(1990), a real estate agent was found to be an employee rather
2916than an independent contractor. See Jayne R. Phoenix vs.
2925Department of Professional Regulation, Division of Real Estate ,
2933Case No. 91-3598F (DOAH October 1, 1991).
294033. As noted by Judge Cave in Phoenix , "In the instant
2951case, the evidence establishes too many ties that bind between
2961Phoenix and Earhart Realty. She was not truly independent since
2971Earhart Realty exercised substantial control over her
2978activities." Such is the situation in this case.
298634. In the case of Golden v. A. P. Oleans, Inc. , 681 F.
2999Supp. 1100 (E.D. Pa. 1988), there was an agreement explicitly
3009reciting an independent contractor relationship between the
3016salesperson and a real estate developer. However, the actual
3025relationship in Golden was remarkably similar to the facts of
3035this case, and the court found an employment relationship.
304435. Upon consideration of the facts developed by testimony
3053and other evidence of record, it is found that Mr. DeLeo was an
3066employee of POV.
3069RECOMMENDATION
3070Based upon the Findings of Fact and Conclusions of Law, it
3081is
3082RECOMMENDED that the Florida Commission on Human Relations
3090assert jurisdiction over Petitioner Joseph DeLeo and Respondent
3098Properties of The Villages, Inc., and commence proceedings
3106pursuant to Section 760.11, Florida Statutes.
3112DONE AND ENTERED this 16th day of July, 2009, in
3122Tallahassee, Leon County, Florida.
3126S
3127HARRY L. HOOPER
3130Administrative Law Judge
3133Division of Administrative Hearings
3137The DeSoto Building
31401230 Apalachee Parkway
3143Tallahassee, Florida 32399-3060
3146(850) 488-9675
3148Fax Filing (850) 921-6847
3152www.doah.state.fl.us
3153Filed with the Clerk of the
3159Division of Administrative Hearings
3163this 16th day of July, 2009.
3169COPIES FURNISHED :
3172Carla D. Franklin, Esquire
3176Carla D. Franklin, P.A.
3180204 West University Avenue, Suite 3
3186Gainesville, Florida 32601
3189Stephen W. Johnson, Esquire
3193McLin & Burnsed
3196Post Office Box 491357
3200Leesburg, Florida 34749-1357
3203Larry Kranert, General Counsel
3207Florida Commission on Human Relations
32122009 Apalachee Parkway, Suite 100
3217Tallahassee, Florida 32301
3220Denise Crawford, Agency Clerk
3224Florida Commission on Human Relations
32292009 Apalachee Parkway, Suite 100
3234Tallahassee, Florida 32301
3237NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
3243All parties have the right to submit written exceptions within
325315 days from the date of this Recommended Order. Any exceptions
3264to this Recommended Order should be filed with the agency that
3275will issue the Final Order in this case.
- Date
- Proceedings
- PDF:
- Date: 10/02/2009
- Proceedings: Order Remanding Complaint of Discrimination to Commission's Office of Employment Investigations for Investigation filed.
- PDF:
- Date: 10/02/2009
- Proceedings: Petitioner's Responses to Respondent's Exceptions to Recommended Order filed.
- PDF:
- Date: 07/16/2009
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- Date: 06/19/2009
- Proceedings: Transcript filed.
- PDF:
- Date: 05/27/2009
- Proceedings: Letter to DOAH from C. Franklin regarding request for Right to Sue Notice filed.
- Date: 05/14/2009
- Proceedings: CASE STATUS: Hearing Held.
- PDF:
- Date: 03/24/2009
- Proceedings: Respondent`s Notice of Taking Deposition of Petitioner, Joseph DeLeo filed.
- PDF:
- Date: 02/27/2009
- Proceedings: Agency`s court reporter confirmation letter filed with the Judge.
Case Information
- Judge:
- HARRY L. HOOPER
- Date Filed:
- 02/11/2009
- Date Assignment:
- 02/12/2009
- Last Docket Entry:
- 10/02/2009
- Location:
- The Villages, Florida
- District:
- Northern
- Agency:
- Florida Commission on Human Relations
Counsels
-
Carla D Franklin, Esquire
Address of Record -
Stephen W. Johnson, Esquire
Address of Record -
Carla Dawn Franklin, Esquire
Address of Record