09-000714 Joseph Deleo vs. Properties Of The Villages, Inc.
 Status: Closed
Recommended Order on Thursday, July 16, 2009.


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Summary: Petitioner filed a complaint of discrimination. The Florida Commission on Human Relations found that he was an independent contractor and not subject to Chapter 760, Florida Statutes. The facts reveal that he was an employee, and entitled to Chapter 760.

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.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 10/02/2009
Proceedings: Respondent's Exceptions to Recommended Order filed.
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
PDF:
Date: 07/16/2009
Proceedings: Recommended Order (hearing held May 14, 2009). CASE CLOSED.
PDF:
Date: 07/16/2009
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 06/29/2009
Proceedings: Petitioner's Recommended Order filed.
PDF:
Date: 06/29/2009
Proceedings: (Respondent's Proposed) Recommended Order filed.
Date: 06/19/2009
Proceedings: Transcript filed.
PDF:
Date: 05/27/2009
Proceedings: Notice of Appearance (of C. Franklin) 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: 05/08/2009
Proceedings: Order on Joint Pre-hearing Stipulation.
PDF:
Date: 05/07/2009
Proceedings: Joint Pre-hearing Stipulation filed.
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.
PDF:
Date: 02/25/2009
Proceedings: Notice of Hearing (hearing set for May 14 and 15, 2009; 1:00 p.m.; The Villages, FL).
PDF:
Date: 02/25/2009
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 02/20/2009
Proceedings: Amended Response to Initial Order filed.
PDF:
Date: 02/19/2009
Proceedings: Joint Response to Initial Order filed.
PDF:
Date: 02/12/2009
Proceedings: Initial Order.
PDF:
Date: 02/11/2009
Proceedings: Employment Complaint of Discrimination fled.
PDF:
Date: 02/11/2009
Proceedings: Notice of Determination: No Jurisdiction filed.
PDF:
Date: 02/11/2009
Proceedings: Determination: No Jurisdiction filed.
PDF:
Date: 02/11/2009
Proceedings: Petition for Relief filed.
PDF:
Date: 02/11/2009
Proceedings: Transmittal of Petition filed by the Agency.

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

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