Conclusions Section 561.15, Florida Statutes (1983), governing Division action on license applications provides in pertinent part: "(1) Licenses shall be issued only to persons of good moral character who are not less than 19 years of age. . . . (2) No license under the Beverage Law shall be issued to any person . . . who has been convicted in the last past fifteen (15) years of any felony in this state, or any other state or the United States. . . . However, Section 112.011(1)(b), Florida Statutes (1983), provides in pertinent part: (b) A person whose civil rights have been restored shall not be disqualified to practice, pursue, or engage in any occupation, trade, vocation, profession or business for which a license, permit, or certificate is required to be issued by the state, any of its agencies or political subdivisions, or any municipality solely because of a prior conviction for a crime. However, a person who has had his civil rights restored may be denied a license, permit, or certification to pursue, practice, or engage in an occupation, trade, vocation, profession, or business by reason of the prior conviction for a crime if the crime was a felony or first degree misdemeanor and directly related to the specific occupation, trade, vocation, profession, or business for which the license, permit, or certificate is sought. In this case, parts of both statutes cover the same subject matter -- licensure of convicted criminals. They should be read together and, if possible, in harmony. But the statutes are plainly contradictory. Both cannot be given the full effect of their plain language under the facts of this case. 16 The rule of statutory construction that the more specific statute governs over the more general statute is not conclusive or even particularly helpful in determining the legislative intent of these two statutes. It is true that Section 561.15(2) deals specifically with beverage licenses while Section 112.011(1)(b) deals with all licenses. And Section 561.15(2) deals specifically with convictions within the last past fifteen (15) years while Section 112.011(1)(b) deals with all past convictions (whether or not within the last 15 years) But, on the other hand, Section 112.011(1)(b) deals specifically with convicted criminals whose civil rights have been restored while Section 561.15(2) deals with all convicted criminals (whether or not their civil rights have been restored) And Section 112.011(1)(b) deals specifically with the question whether crimes "directly relate" to the subject matter of the licensure proceeding while Section 561.15(2) does not differentiate. Therefore, each statute is more specific in some respects and more general in others. Besides, under another rule of statutory construction, a later enactment controls over an earlier enactment with which it conflicts regardless whether the later enactment is more specific or more general. Compare Berkley v. Department of Environmental Regulation, 358 So. 2d 552 (Fla. 1st DCA 1977), with Laramore v. State, 342 So. 2d 90 (Fla. 1st DCA 1977). The legislative history of these two statutes is complicated but important to the question of the legislative intent: Language substantially the same as the language of the present Section 561.15(2) was first enacted by Chapter 57-420, Laws of Florida (1957). It was slightly changed by enactment of Chapter 61-219, Laws of Florida (1961). Language substantially the same as the language of the present Section 112.001(1)(b) was first enacted by Chapter 75-115, Laws of Florida (1971). In 1972, the Legislature amended Section 561.15 without significant change. Chapter 72-230, Laws of Florida (1972). In 1973, the Legislature slightly amended the language of Section 112.011(1)(b) by enactment of Chapter 73-109, Laws of Florida (1973). In 1973, the Attorney General opined that Section 112.011(1)(b) changed the law and prohibited licensing authorities from denying a license because of a conviction unless the crime was a felony and directly related to the subject of the licensure proceedings. AGO 073-355 (1973) The Legislature did not enact any laws affecting either of the two statutes until 1977. In 1977, Section 561.15(2) was amended to delete reference to a conviction "in any other state or the United States, of any offense designated as a felony by such state or the United States" in favor of the current language referring simply to "any felony in this state or any other state or the United States." Chapter 77-471, Laws of Florida (1977). In 1977, the Legislature also amended Section 561.15(1) to change the age of majority to 18 from 21. Chapter 77-121, Laws of Florida (1977). In 1980, the age of majority in Section 561.15(1) was raised to 19 from 18. Chapter 80-74, Laws of Florida (1980) In 1981, the Legislature rewrote Section 561.15(3) and amended Section 112.011(2)(a). Chapters 51-166 and 81-24, Laws of Florida (1981) In 1984, the Legislature amended parts of Section 561.15 other than subsection (2). Chapter 54-262, Laws of Florida (1984). By the end of 1973, it must be concluded under the applicable rules of construction that Section 112.011(1)(b) was intended by the Legislature to control over conflicting pro- visions of Section 561.15(2). See Berkley v. Department of Environmental Regulation and Laramore vs. State, supra. See also Section 23.13, Sutherland, Statutory Construction (1972) (implied modification of earlier laws to the extent of any conflict with a comprehensive revision of the subject matter) In addition, the Attorney General had opined such a modification in 1973. Opinions of Attorney General, while not legally binding on courts, are persuasive and entitled to weight in construing statutes. Leadership Housing, Inc. v. Department of Revenue, 336 So. 2d 1239 (Fla. 4th DCA 1976). And between 1973 and 1977, the Legislature made no effort to express a contrary legislative intent that Section 561.15(2) should control. Meanwhile, other statutes involving the licensure of convicted criminals were being enacted in conformity with, or amended to conform with, Section 112.011(1)(b). See generally, e.g., Chapters 455 through 494 and 633, Florida Statutes (1983). But in 1977, the Legislature amended Subsection 2 of Section 561.15 without conforming it to Section 112.011(1)(b). This reenactment of Section 561.15(2) reflects a legislative intent that it should be given its full effect notwithtanding Section 112.011(1)(b). In effect, Section 561.15(2) became the later enactment and, under the rules of statutory construction, became controlling. See Berkley v. Department of Environmental Regulation, supra; Laramore v. State, supra. See also Shaver v. The Hotel Corp. of America, 144 So. 2d 813 (Fla. 1962); Kiesel v. Graham, 388 So. 2d 594 (Fla. 1st DCA 1980). The subsequent legislative history of the two statutes outlined in paragraph 17 of the Conclusions Of Law, above, does not alter the preeminence of Section 561.15(2). Since Section 561.15(2), Florida Statutes (1983) controls, no license under the Beverage Law can be issued to Pericles regardless whether the crime for which he was convicted "directly related to the specific occupation, trade, vocation, profession, or business for which the license, permit, or certificate is sought."
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Department of Business Regulation, Division of Alcoholic Beverage and Tobacco, enter a final order denying the application of petitioner John Paul Pericles, Sr., d/b/a Big John's Amoco, for an alcoholic beverage license, series 2-APS. RECOMMENDED this 28th day of February, 1985 in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1985.
The Issue Whether the Department of Revenue's denial of Petitioner's application for a Florida fuel license should be upheld.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: On or about July 22, 2002, Armando B. Yzaguirre submitted to the Department a completed Florida Fuel Tax Application, Form DR-156, seeking licensure as a private carrier and wholesaler on behalf of My Oil (the "2002 Application"). The application listed Maria Yzaguirre as the president and chairman of the board of My Oil, and listed Armando B. Yzaguirre as the vice-president and chief executive officer of My Oil. This was the second Florida Fuel Tax Application filed by My Oil. On or about June 22, 2001, Maria Yzaguirre submitted to the Department a completed Florida Fuel Tax Application, Form DR-156, seeking licensure as a private carrier and wholesaler on behalf of My Oil (the "2001 Application"). The application listed Mrs. Yzaguirre as the president and sole stockholder of My Oil. The Department's rejection of the 2001 Application was at issue in DOAH Case No. 02-0469. The rejection was based on the fact that Armando Yzaguirre, a convicted felon whose civil rights had not been restored and who was the father of Armando B. Yzaguirre and the husband of Maria Yzaguirre, appeared to be in a position to exert control over the business of My Oil. Shortly before the 2001 Application was filed, Armando Yzaguirre had filed a Florida Fuel Tax Application for Yzaguirre Oil Company Inc. ("Yzaguirre Oil"). The application listed Armando Yzaguirre as the president and sole stockholder of Yzaguirre Oil. The coincidence of the applications, and the fact that they listed many of the same assets, led the Department to suspect that My Oil would operate as a "front" for Yzaguirre Oil, which was presumptively ineligible for licensure because it was owned and operated by a convicted felon. The relevant facts found in the Recommended Order for DOAH Case No. 02-0469 are as follows: In his review of the Yzaguirre Oil and My Oil applications, [Aaron Hood, the Department's revenue specialist] discovered that the companies claimed many of the same assets. Each company listed the same two tanker trucks to be used in transporting fuel. Each company listed 211 New Market Road, East, in Immolakee as its principal business address. Each company claimed exactly $1 million in accounts receivable. The timing of the filings and the common assets led Mr. Hood to suspect that the later My Oil application was submitted under Maria Yzaguirre's name to evade the possible disqualification of the Yzaguirre Oil application because of Mr. Yzaguirre's felony convictions. In short, Mr. Hood suspected that My Oil was a "front" corporation over which Mr. Yzaguirre would exercise control. The common assets also led Mr. Hood to suspect the truthfulness and accuracy of the financial affidavits filed by Maria Yzaguirre on behalf of My Oil. While it investigated the criminal history of Mr. Yzaguirre, the Department also investigated the extent of Mr. Yzaguirre's possible control over My Oil's business activities. Armando B. Yzaguirre is the 25-year- old son of Armando Yzaguirre and the stepson of Maria Yzaguirre. Testimony at the hearing established that Armando B. Yzaguirre completed both license applications and was the driving force behind the creation of both Yzaguirre Oil and My Oil. The elder Armando Yzaguirre's chief business is farming. His tomato and melon operation earns over $1 million per year. To save money on transporting the large amounts of fuel needed for his farming operations, Mr. Yzaguirre purchased two sizable tanker trucks in 2001, a new Peterbilt with a capacity of 9,200 gallons, and a 1998 Ford with a 2,500 gallon capacity. If these trucks were used only for Mr. Yzaguirre's farm, they would sit idle much of the time. This idle capacity gave Armando B. Yzaguirre the idea of going into the fuel transport business, using his father's tankers to deliver fuel to other farms and businesses in the area. Yzaguirre Oil was incorporated to operate as a fuel transport business. The business would be operated entirely by Armando B. Yzaguirre, who was the only member of the family licensed to drive the large tanker truck. The trucks were owned by and licensed to Yzaguirre Oil. Armando B. Yzaguirre was going through a divorce at the time Yzaguirre Oil was established. He was concerned that his wife would have a claim to half of any business he owned, and wished to ensure that ownership of Yzaguirre Oil would remain in his family. Thus, Armando B. Yzaguirre placed all ownership of Yzaguirre Oil in the name of his father, though his father would have no connection with the operation of the company's business. Subsequent to incorporating Yzaguirre Oil, Armando B. Yzaguirre discussed his prospective business with his stepmother, Maria Yzaguirre. Mrs. Yzaguirre was pleased that young Armando was establishing a business for himself. They discussed the future of the six younger Yzaguirre children and ideas for businesses that could be established to eventually be taken over by the children. Ultimately, the younger Armando and Maria Yzaguirre settled on the idea of a convenience store and filling station that could be established on part of a city block in Immolakee that the senior Mr. Yzaguirre already owned. This would be the type of business that the children could learn and work at while they were still in school, then take over after their graduation. This was the genesis of My Oil. Mrs. Yzaguirre contacted a lawyer to draft articles of incorporation and later transferred $100,000 from her personal money market account into a My Oil bank account to provide start-up money. The younger Armando Yzaguirre filled out the fuel license application, using his earlier application for Yzaguirre Oil as a model. As with the earlier application, the younger Armando Yzaguirre kept his name off the corporate documents and the fuel license application to avoid any claim by his soon- to-be ex-wife to the company's assets. He anticipated that My Oil would lease the two tanker trucks from Yzaguirre Oil, and thus listed them on the application as assets of My Oil. At the hearing, Mr. Yzaguirre conceded that he made mistakes on both applications. As noted above, he listed $1 million in accounts receivable for each of the companies. These were actually accounts receivable for his father’s farming operation, and should not have been included as assets for either Yzaguirre Oil or My Oil. * * * The Department pointed to several alleged discrepancies in the My Oil application as grounds for its suspicion that the company was a "front" for Yzaguirre Oil. First, the My Oil application, filed June 20, 2001, lists a corporate asset of $100,000 in cash on deposit at an unnamed bank, when in fact the cash was not deposited in a My Oil account at Florida Community Bank until September 10, 2001. Second, the My Oil application lists the two tanker trucks as corporate assets as of the date of application, when in fact the trucks were titled in the name of Yzaguirre Oil and the anticipated lease arrangement had yet to be consummated. Third, the My Oil application claimed the property at 211 New Market Road, East, as a corporate asset as of the date of application, when in fact the property was titled in the name of the elder Mr. Yzaguirre. Fourth, the My Oil application listed $1 million in accounts receivable as a corporate asset. As noted above, Armando B. Yzaguirre admitted at the hearing that these receivables were from his father's farming operation and should not have been listed on the application as assets of My Oil. Armando B. Yzaguirre plausibly explained that My Oil anticipated leasing the trucks, but that there was no reason to spend the money to finalize that arrangement until the fuel license was obtained and My Oil could actually commence operations. Similarly, Mrs. Yzaguirre clearly had on hand the $100,000 in cash claimed as a My Oil asset, and the timing of her actual transfer of that money into a My Oil account would not alone constitute cause for suspicion, given that My Oil had yet to commence operations when the application was filed. Armando B. Yzaguirre also convincingly explained that leasing the tanker trucks from his father's company would not give Yzaguirre Oil effective control over My Oil's business. The younger Mr. Yzaguirre contemplated that the lease agreement would be an arms-length arrangement between the two companies. If the companies could not arrive at a mutually satisfactory lease agreement, or if the lease agreement should later fall through, My Oil could lease trucks from another company and continue doing business. However, no witness for My Oil offered a satisfactory explanation as to how the elder Mr. Yzaguirre's ownership of the real property would not give him some degree of control over My Oil's business. At the time of the hearing, title to the property at 211 New Market Road, East, was in the name of Armando Yzaguirre. A warranty deed for at least a portion of the property, executed by the prior owners on July 16, 1998, was in the name of Armando Yzaguirre. The Yzaguirres did not explain whether My Oil would purchase or lease the property from the elder Mr. Yzaguirre. The structure of the arrangement is critical to the issue of the elder Mr. Yzaguirre's control over My Oil. Substitutes for the tanker trucks could be obtained in short order with little or no disruption of My Oil's business. However, the physical location of the convenience store and filling station could not be changed so readily, and the elder Mr. Yzaguirre's position as owner of that property could give him great leverage over the operation of the business. The Department also raised the issue of the undisclosed participation of Armando B. Yzaguirre in the business affairs of My Oil. The testimony of Maria Yzaguirre and of her stepson strongly indicated that the younger Mr. Yzaguirre would have substantial control over the business activities of My Oil. However, because Armando B. Yzaguirre's identity was not disclosed on My Oil's application, the Department had no opportunity to conduct a review of his background and character to determine whether he met the standard set by Section 206.026, Florida Statutes. In summary, there was no direct evidence that the Yzaguirres deliberately attempted to deceive the Department or that My Oil was established as a front to obtain licensure for the presumptively ineligible Yzaguirre Oil. The evidence did establish that Armando Yzaguirre has been convicted of at least one felony, and that his ownership of the real property on which My Oil would conduct business could provide him with control of My Oil's business activities. The evidence further established that Armando B. Yzaguirre will have control over My Oil's business, and that the Department should have had the opportunity to conduct a background review to determine his fitness under Section 206.026, Florida Statutes. The relevant conclusions of law set forth in the Recommended Order for DOAH Case No. 02-0469 are as follows: Section 206.026, Florida Statutes, provides in relevant part: (1) No corporation . . . shall hold a terminal supplier, importer, exporter, blender, carrier, terminal operator, or wholesaler license in this state if any one of the persons or entities specified in paragraph (a) has been determined by the department not to be of good moral character or has been convicted of any offense specified in paragraph (b): 1. The licenseholder. The sole proprietor of the licenseholder. A corporate officer or director of the licenseholder. A general or limited partner of the licenseholder. A trustee of the licenseholder. A member of an unincorporated association licenseholder. A joint venturer of the licenseholder. The owner of any equity interest in the licenseholder, whether as a common shareholder, general or limited partner, voting trustee, or trust beneficiary. An owner of any interest in the license or licenseholder, including any immediate family member of the owner, or holder of any debt, mortgage, contract, or concession from the licenseholder, who by virtue thereof is able to control the business of the licenseholder. 1. A felony in this state. Any felony in any other state which would be a felony if committed in this state under the laws of Florida. Any felony under the laws of the United States. (2)(a) If the applicant for a license as specified under subsection (1) or a licenseholder as specified in paragraph (1)(a) has received a full pardon or a restoration of civil rights with respect to the conviction specified in paragraph (1)(b), then the conviction shall not constitute an absolute bar to the issuance or renewal of a license or ground for the revocation or suspension of a license. . . . In December 1990, Armando Yzaguirre entered a no contest plea to a second-degree felony charge of possession of more than five but not more than 50 pounds of marijuana in a Texas court. At the time of Mr. Yzaguirre's Texas conviction, Florida law listed cannabis as a Schedule I substance. Section 893.03(1)(c)4, Florida Statutes (1990). Absent licensure or other authorization, bringing cannabis into the state was a third-degree felony in 1990. Section 893.13(1)(d)2, Florida Statutes (1990). Possession of more than 20 grams of cannabis was a third-degree felony in 1990. Section 893.13(1)(f) and (g), Florida Statutes (1990). There can be little question that Mr. Yzaguirre's felony in Texas would have constituted at least one felony under Florida law, and thus that Mr. Yzaguirre has been convicted of an offense specified in Section 206.026(1)(b), Florida Statutes. Mr. Yzaguirre has not received a full pardon or restoration of civil rights, thus mooting any potential application of Section 206.026(2)(a), Florida Statutes, to this case. Mr. Yzaguirre's ownership of the real property that would hold My Oil's principal place of business would give him the ability to control the business of the licenseholder. This conclusion might have been different had My Oil presented evidence of the business relationship under which it would operate the facility on Mr. Yzaguirre's property. The extent of Armando B. Yzaguirre's involvement in My Oil was not disclosed to the Department. Testimony at the hearing established that the younger Mr. Yzaguirre would be the principal operator of My Oil for the foreseeable future. Due diligence under Section 206.026, Florida Statutes, requires the Department to conduct a background investigation of Armando B. Yzaguirre prior to the issuance of a fuel license to My Oil. In conclusion, My Oil has failed to demonstrate its entitlement to a Florida fuel license on the merits of the application it filed on June 20, 2001. The Recommended Order in DOAH Case No. 02-0469 recommended that My Oil's 2001 Application be denied, but without prejudice to My Oil's ability to file a subsequent application curing the defects of its 2001 Application. In the 2002 Application, My Oil sought to cure those defects. First, the 2002 Application listed Armando B. Yzaguirre as a principal of My Oil, providing the Department an opportunity to conduct an investigation of his background and character. The Department's background check revealed no criminal convictions or other disqualifying factors related to Armando B. Yzaguirre. The Department's background check also revealed no criminal convictions or other disqualifying factors related to Maria Yzaguirre. The 2002 Application included an executed lease agreement, dated July 19, 2002, by which Armando Yzaguirre granted to My Oil a five-year lease on the premises at 211 New Market Road, East, in Immokalee. The lease specifies that My Oil will pay rent of $1,000 per month, and that the premises are to be used for the purpose of "a convenience store and retail gasoline sales to the general public, storage, and uses related to such use . . . and for no other purpose or purposes." The lease expressly states: "Landlord shall have no control over the use of the premises by the Tenant during the period of the lease." The 2002 Application continued to list the two tanker trucks as assets of My Oil, though they remain titled to Yzaguirre Oil. Armando B. Yzaguirre testified that My Oil does have a written lease with Yzaguirre Oil for the use of the tanker trucks. Armando Yzaguirre confirmed the existence of a lease on the trucks. However, the lease was not included in the 2002 Application and was not produced at the hearing. After receiving the 2002 Application, the Department contacted Armando B. Yzaguirre to request a current balance sheet for My Oil. The balance sheet submitted by Mr. Yzaguirre purported to show the assets and liabilities of My Oil as of July 22, 2002. The balance sheet indicated a negative total equity of $5,904.43. It indicated a "credit card" debt of $101,000 to Yzaguirre Farms, and other accounts payable of $36,852.79 to Yzaguirre Farms. At the hearing, the Department produced a canceled check from Armando Yzaguirre to My Oil in the amount of $101,000, with the notation, "My Oil Operating & Payroll." Armando Yzaguirre testified at the hearing that he has taken steps to have his civil rights restored, but that the process is not yet complete and his rights have not been restored. On August 22, 2002, the Department issued its Notice of Intent to Deny the 2002 Application, which stated, in relevant part: Your organization does not qualify for this license as there is a felony conviction of an owner of interest in the license and/or an immediate family member of the owner, as outlined in Chapter 206.026(1)(a)(9)&(b), Florida Statutes. The Department based its denial on several factors. First, the family relationship between My Oil's principals and Armando Yzaguirre itself raised the potential for Armando Yzaguirre to control My Oil. In particular, the Department noted the fact that Armando B. Yzaguirre resides in a mobile home owned by his father, and located a few hundred feet away from Armando Yzaguirre's main residence on the family property. Second, the balance sheet submitted by My Oil indicated a negative equity with large debts owed to Yzaguirre Farms, controlled by Armando Yzaguirre. Third, the Department concluded that the lease on the premises at 211 New Market Road, East, would not prevent Armando Yzaguirre from exerting control over My Oil, by breaking the lease, raising the rent, selling the property, or ejecting My Oil from the premises. Fourth, no proof was offered that My Oil had leased or purchased the tanker trucks from Yzaguirre Oil, meaning that My Oil's means of transporting fuel would be directly controlled by Armando Yzaguirre. Fifth, the $101,000 constituting the startup money for My Oil appears to have come directly from the bank account of Armando Yzaguirre. Sixth, My Oil was administratively dissolved by the Department of State on October 4, 2002, for failure to file an annual report. Finally, the Department stated that, regardless of the arms-length nature of any business dealings between My Oil and Armando Yzaguirre, My Oil would not be granted a license until Armando Yzaguirre's civil rights have been restored. The close family relationship coupled with the fact that Armando Yzaguirre is the source of My Oil's startup funds, its tanker trucks, and its business location, militate against granting My Oil a license so long as Armando Yzaguirre's civil rights have not been restored. In response, My Oil insisted that its 2002 Application cured every specific deficiency noted in the 2001 Application. First, it listed Armando B. Yzaguirre as a principal so that his background and criminal history could be investigated, and the Department's investigation revealed no disqualifying offenses. Armando B. Yzaguirre testified that the July 22, 2002, balance sheet submitted at the Department's request was not an accurate My Oil balance sheet. He stated that in setting up the computer program for My Oil's accounting, he attempted to shortcut the software's lengthy setup process for new businesses by simply copying an existing Yzaguirre Farms spreadsheet, then substituting the name "My Oil" for "Yzaguirre Farms." However, he quickly discovered that his "shortcut" would require him to delete manually every balance sheet entry for Yzaguirre Farms and re-enter the correct entries for My Oil. He abandoned this effort and began a My Oil spreadsheet from scratch, but he never deleted the partially converted Yzaguirre Farms spreadsheet from his computer. Mr. Yzaguirre testified the Department's phone call to request a current balance sheet came to him on his cellular phone while he was working on his father's farm. He relayed the message to his secretary, who printed a My Oil balance sheet and faxed it to the Department. Mr. Yzaguirre stated that, until the Department rejected the 2002 Application, he did not realize that his secretary had faxed a balance sheet generated by his aborted conversion of the Yzaguirre Farms spreadsheet, rather than the actual balance sheet for My Oil. A copy of what Armando B. Yzaguirre claimed was the actual My Oil balance sheet as of July 31, 2002, was introduced at the hearing. This balance sheet indicates an opening equity of $101,000, with $92,078.02 in retained earnings and operating and payroll accounts totaling $8,921.98. The July 31, 2002, balance sheet is accepted as the actual balance sheet for My Oil. While this balance sheet refutes the Department's conclusion that My Oil is starting business with a negative balance sheet indicating over $136,000 in debts to Yzaguirre Farms, it does not refute the evidence that the entire source of My Oil's cash accounts is $101,000, provided in the form of a check from an account in the name of Armando Yzaguirre. Armando B. Yzaguirre testified that the money came from a joint money market account in the name of Armando and Maria Yzaguirre, and that Maria was the source of the funds. This testimony is inconsistent with the fact that the check in question was signed by Armando Yzaguirre, and that his name alone appeared on the account name printed on the check. The elder Mr. Yzaguirre testified that he signed the check, but also testified that the account is in his name and that of his wife, and that they both consider the $101,000 to be her investment in My Oil. Neither of the Yzaguirres offered an explanation as to why Maria Yzaguirre's name did not appear on a check they claimed was drawn on a joint account. The Department's concerns about Armando Yzaguirre, a convicted felon, being the source of My Oil's startup funding were reasonable. My Oil failed to offer evidence sufficient to allay those concerns. Despite My Oil's claims to the contrary, the $101,000 check was plainly signed by Armando Yzaguirre and drawn from an account in his name. My Oil failed to explain the terms under which it accepted this startup funding from Armando Yzaguirre. The Department's explanation of its rejection of the lease submitted by My Oil for the premises at 211 New Market Road, East, was not reasonable. The lease document is a standard, arms-length agreement between My Oil and Armando Yzaguirre. The Department offered no evidence to support its assertions that Armando Yzaguirre would break the terms of the lease, that My Oil would not exercise its legal rights should Mr. Yzaguirre violate the lease's provisions, or that the lease should be considered invalid because a contract between relatives is inherently suspect. The other concerns raised by the Department-- that Mr. Yzaguirre might raise the rent, sell the property, or evict My Oil-- are answered by the terms of the lease itself and raise no issues beyond those that would arise in any lessor/lessee relationship. As to the lease on the tanker trucks, both Armando B. and Armando Yzaguirre testified that My Oil did have a lease on the trucks, to take effect if and when My Oil receives a fuel tax license from the Department. Their testimony is credited as to the existence of the lease, though they offered no testimony specifying the terms of the lease. The fact that My Oil was administratively dissolved for failure to file an annual report should have played no part in the Department's rejection of My Oil's application. Such dissolution is an administrative matter easily cured by the filing of the report. At most, the Department should have required My Oil to provide proof of reinstatement prior to issuance of any fuel tax license. In summary, several of the particular concerns on which the Department based its decision were overstated. However, the Department's overarching concern that Armando Yzaguirre was in a position to control the business of My Oil was reasonable. Armando Yzaguirre was clearly the source of the $101,000 in startup money for My Oil, and no evidence was offered to explain the terms under which this money was provided to My Oil. The lease arrangements for the premises and the tanker trucks may be unobjectionable in themselves, but when coupled with the fact that My Oil is heavily indebted to Armando Yzaguirre, they raise entirely reasonable suspicions regarding My Oil's independence from Mr. Yzaguirre's control. The Department's position that My Oil cannot be granted a license until Armando Yzaguirre's civil rights have been restored is supported by the evidence. Armando Yzaguirre is the source of My Oil's funds, its place of doing business, and its means of transporting fuel. My Oil failed to demonstrate that these facts do not give Armando Yzaguirre the ability to control its business.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a final order denying the application of My Oil Company, Inc., for a Florida fuel license, without prejudice to the ability of My Oil Company, Inc., to file a new application upon the restoration of Armando Yzaguirre's civil rights. DONE AND ENTERED this 28th day of May, 2003, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 28th day of May, 2003. COPIES FURNISHED: J. Bruce Hoffmann, General Counsel Department of Revenue 204 Carlton Building Post Office Box 6668 Tallahassee, Florida 32314-6668 Robert F. Langford, Jr., Esquire Office of the Attorney General The Capitol-Tax Section Plaza Level 01 Tallahassee, Florida 32399-1050 E. Raymond Shope, II, Esquire 1404 Goodlette Road, North Naples, Florida 34102 R. Lynn Lovejoy, Esquire Office of the Attorney General The Capitol-Tax Section Tallahassee, Florida 32399-1050 James Zingale, Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
The Issue The issue is whether Petitioner was subjected to an unlawful employment practice as a result of retaliation.
Findings Of Fact Petitioner D'Angelo A. Sullivan is a black male who worked for Respondent from January 14, 1999, until November 2002 as a blooming onion cook at Respondent's restaurant in Pensacola, Florida. Respondent Aussie Restaurant Management is a company that operates an Outback Steakhouse in Pensacola, Florida. Respondent employs more than 15 people. In a letter dated September 6, 2002, Petitioner requested a paid vacation. Petitioner believed he was entitled to a paid vacation. He departed on vacation on September 23, 2002. Upon returning on September 30, 2002, he was told that he would not be paid during the time he was on vacation. Respondent has a policy that provides paid vacations to employees who have worked 32 hours per week for the six weeks prior to the time requested for a vacation. Petitioner averaged 30.20 hours per week for the six weeks prior to his request for a vacation. He was, therefore, not entitled to a paid vacation. On October 11, 2002, Petitioner filed a Complaint Form with the Escambia-Pensacola Human Relations Commission. In the "Nature of the Complaint" section the blocks "race" and "color" were checked. The "other" block was completed with the words "promotion, pay raise." In this complaint, Petitioner recited that he was not given paid leave, that his work schedule had been reduced, and that he had been given a $.25 per hour pay raise instead of the annual $.50 per hour pay raise that he had received in prior years. The complaint also asserted that only one black had been employed "out front" among the customers. In the complaint he alleged mistreatment by a manager identified as "Donnie." Petitioner suggested as a remedy, that Respondent cease discrimination, that Petitioner be given a pay raise, a paid vacation, and a W-4 tax form. He also suggested that he should be trained so that he could get a promotion. No evidence was offered demonstrating that Respondent was aware of the existence of the complaint. Petitioner testified that he was advised by the person who took his complaint to refrain from telling Respondent he had complained, and that he followed that advice. In November 2002, subsequent to an automobile accident, and upon the advice of the attorney representing Petitioner as plaintiff in a personal injury lawsuit arising from the accident, Petitioner determined that he should not continue to work. This decision was based in part upon his belief that working might lessen his chances of prevailing in the ongoing lawsuit. In June 2003 Petitioner approached the manager of Respondent's restaurant, Nicholas Loizos, on at least four occasions and asked to be hired as a "take away" person in the "front of the house." Although his former position of blooming onion cook was offered to him, Petitioner insisted that he wanted the "take away" position. Mr. Loizos told Petitioner that in order to be a "take away" person, he would have to take the "Front-of-the House Selection Test." Petitioner was provided the opportunity to take this test. Petitioner did not avail himself of this opportunity. No evidence was adduced that would indicate that Respondent engaged in racial discrimination against Petitioner, or any of Respondent's employees. No evidence was adduced that would prove that Respondent was aware that Petitioner had filed a discrimination complaint. Because Respondent was unaware of the discrimination complaint, Respondent could not have engaged in retaliation against Petitioner.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Petition be dismissed. DONE AND ENTERED this 16th day of March, 2005, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 16th day of March, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 D'Angelo A. Sullivan 1006 West Hayes Street Pensacola, Florida 32501 Maria A. Santoro, Esquire George, Hartz, Lundeen, Fulmer, Johnstone, King & Stevens 863 East Park Avenue Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue The issue is whether Respondent engaged in an unlawful employment practice by discharging Petitioner because of his age.
Findings Of Fact Respondent produces flexible packaging, develops technology to fill that packaging with liquids, and provides services to incorporate its flexible packaging systems into its customers' facilities. Respondent primarily produces "bag-in- box" products and manufacturing systems for customers such as Pepsi-Cola and Wendy's, as well as various customers in the milk, juice, and chemical business. Respondent operates two manufacturing facilities, one located at its headquarters in Romeville, Illinois, and another located in Union City, California. Petitioner was born on April 24, 1946. In 1996, Respondent hired Petitioner as a sales representative, and he served in that position until he was discharged on April 19, 2004. Petitioner initially was assigned to service the Upper Midwest Region and was based in Chicago, Illinois. In 1999, Respondent reassigned Petitioner to the Southeast Region. After his reassignment to the Southeast Region, Petitioner continued to live in the Chicago area for several years. However, in December 2002 or January 2003, Petitioner and Respondent mutually agreed that Petitioner would relocate to Florida. Because the move resulted from a mutual decision between Petitioner and one of Respondent's founders, Respondent paid $25,000 towards Petitioner's moving expenses. After the move, Petitioner continued to be responsible for the same geographical territory and the same customers as before the move. Joe Pranckus is Respondent's vice president of sales. At the time of Petitioner's discharge, the sales department consisted of a customer service department and four geographical sales territories: the Central, Western, Eastern and Mexico Regions. The Central and Western Regions (where Respondent's manufacturing facilities are located) each were overseen by a regional manager. The Eastern and Mexico Regions did not have regional managers. As Petitioner was located in the Eastern Region, Mr. Pranckus served as his direct supervisor. From 1999 until his dismissal, Petitioner was Respondent’s only sales representative in the Southeast. His primary responsibility was to maintain and increase Respondent’s business in that region of the country. The Rapak sales department as a whole is generally responsible for maintaining and increasing Respondent’s overall sales. This involves not only selling products and services, but also following up with customers to help them solve problems and otherwise to ensure their happiness. Because his primary responsibility was maintaining and increasing sales, Mr. Pranckus judged Petitioner almost exclusively by his year-to-date sales numbers as compared to the same period in the previous year. These numbers were calculated by Mr. Pranckus on a fiscal-year basis, from May 1st through April 30th. For the 2003-2004 fiscal year, Mr. Pranckus established a goal for Petitioner of 15 percent growth in sales. The minimum expectation was that Petitioner maintain at least the same amount of sales he had the previous year. During the 2003-2004 fiscal year, Mr. Pranckus e- mailed Petitioner his sales-versus-last-year figures on almost a monthly basis. By the end of June 2003, Petitioner had sold only 84 percent as much as he had sold through June 2002; by the end of July, only 87 percent as much as he had sold through July 2002; by the end of August, 91 percent; September, 81 percent; October, 90 percent; November, 85 percent; December, 87 percent; and by the end of March 2004 (eleven months into the fiscal year), he had sold only 88 percent as much as he had sold through the first eleven months of the 2002-2003 fiscal year. In short, as the fiscal year drew to a close, it was clear that Petitioner was going to suffer a net loss of business for the year. In late October 2003, Petitioner suffered a heart attack and underwent triple bypass surgery. Petitioner was unable to work for approximately two months while recovering from surgery. However, Petitioner returned to work in January 2004, initially working on a limited basis. Petitioner's sales numbers suffered because he lost some certain accounts owing to factors beyond his control (such as product quality and price issues). Nonetheless, Petitioner concedes that it was his job to replace his lost sales, no matter what caused his customers to switch suppliers. Mr. Pranckus typically holds one sales meeting each year for his entire staff. In February 2004, Mr. Pranckus held one of those meetings. At that meeting, Mr. Pranckus informed Petitioner that "changes would be made if [his] numbers didn't improve." In his application for unemployment compensation, Petitioner stated that Mr. Pranckus also warned him on March 10, 2004, that he needed to improve his sales numbers. Finally, Mr. Pranckus sent an e-mail to Petitioner on March 27, 2004. In that e-mail, Mr. Pranckus delivered the following written warning: Your territory is at a critical state. We can not continue along this path. Sales must be improved immediately or we will need to change. We agreed at our sales meeting to get this back on track. It is not showing up in the numbers and activity. Call me and let me know how we can help. On April 19, 2004, Mr. Pranckus discharged Petitioner because of his poor performance. His year-to-date sales figures were unacceptably low, as compared to the previous year, and Mr. Pranckus saw no evidence of plans or activity designed to improve matters. After Petitioner was discharged, he filed an application for unemployment compensation. On the application, Petitioner stated that he was discharged “for failure to achieve sales goals.” Later in that same application, in response to a request to “briefly summarize your reason for separation from this employer,” Petitioner wrote: “I did not achieve my sales goals.” Petitioner did not assert anywhere in his application for unemployment benefits that he was discharged because of his age. At the time of his discharge, Petitioner was 57 years old (almost 58). Mr. Pranckus did not know Petitioner’s exact age, but he would have guessed (based on physical appearance) that Petitioner was in his mid-50s at the time. Mr. Pranckus did not consider this to be “old.” In fact, Petitioner is not much older than Mr. Pranckus. Mr. Pranckus interviewed three individuals to fill Petitioner’s position. He ultimately selected Jim Wulff. Mr. Pranckus did not know their ages at the time of the interviews, but he would have guessed (again, by appearance) that Mr. Wulff was in his mid-50s and that the other two interviewees were in their mid- to late 40s and mid- to late 50s, respectively. In fact, Mr. Wulff was born on May 26, 1948, so he was 55 years old (nearly 56) when Mr. Pranckus hired him. Sales analysis from June 2003 showed that eight Rapak employees or representatives did not meet the 100 percent sales goal. Those listed were either Rapak non-supervising employees with direct responsibility for sales, supervising employees, or non-employee independent brokers. However, none of these employees, whether younger or older, was similarly situated to Petitioner at the time of his discharge. As an initial matter, there were four other non- supervisory employees with direct responsibility for sales: Dennis Hayes, Marvin Groom, Donald Young, and Keith Martinez. The other individuals responsible for sales were either supervisory employees or non-employee independent brokers. Because the two supervisors have management responsibilities and are responsible for their entire regions and the individuals who report to them, they are not judged primarily by whether they personally meet the 100 percent or 115 percent sales-versus- last-year objectives. Brokers, meanwhile, are not employees. Rather, they are independent contractors paid on a straight commission, so Respondent receives value from their services regardless of how much they sell. Mr. Hayes was the only other employee who performed the exact same job as Petitioner, but he reported to Regional Manager Dan Petriekis in the Central Region, not directly to Mr. Pranckus. Moreover, as of March 2004, Mr. Hayes had sold 127 percent as much as he had during the same period the previous year.1 Mr. Hayes is almost ten years older than Petitioner. Mr. Young was also responsible for sales, but he was semi-retired, serviced only one customer and received a base salary for his work. As of March 2004, however, Mr. Young had sold 115 percent as much as he had during the same period the previous year. Mr. Young is more than twelve years older than Petitioner. Finally, while Keith Martinez and Marvin Groom had some responsibility for sales, their positions were “radically different” from Petitioner’s. Whereas Petitioner could identify certain problems with Respondent’s machinery and products and would refer those problems to a service technician to assist his customers, Mr. Groom and Mr. Martinez were both originally hired as service technicians. Based on this experience, they could and did not only identify technical problems, but also performed the necessary maintenance and repair work on the spot, in addition to performing preventative maintenance. Petitioner, by contrast, has spent his entire working life as salesman. Accordingly, he was neither capable of, nor expected to, perform these additional maintenance and repair functions. As a result, Mr. Groom and Mr. Martinez received more leeway on their sales performance than Petitioner because they brought additional value to Respondent’s business that Petitioner could not offer. Nonetheless, as of March 2004, Mr. Groom was running at 100 percent versus the prior year and Mr. Martinez was running at 87 percent. Mr. Groom is roughly three years younger than Petitioner, and Mr. Martinez is 15 and one-half years younger than Petitioner. Respondent paid Petitioner $113,000 in salary and commissions during his last full calendar year of employment with Rapak. Petitioner was out of work for ten months after his dismissal. During that time, he received $8,000 in unemployment compensation from the State of Florida and $8,942.33 in severance pay from Respondent. In his new job, Petitioner projects that he will earn $100,000 in his first year but admits that he could make at least $113,000 because his compensation is once again dependent upon sales commissions.
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 finding that Respondent committed no unlawful employment practice and dismissing the Petition for Relief. DONE AND ENTERED this 26th day of July, 2006, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 26th day of July, 2006.
The Issue Whether or not on or about October 28, 1976, investigation revealed that the Zig Zag Bar, Inc., d/b/a Zig Zag Pub, failed to notify in writing, the Division of Beverages, of its change of name, 30 days in advance of such change, contrary to s. 561.33, F.S. Whether or not on or about November 4, 1976, investigation revealed that the Zig Zag Bar, Inc., d/b/a Zig Zag Pub, did fail to submit and certified copy of the minutes of the stockholders' meeting, changing corporate officers, to the Division of Beverages, in violation of Rule 7A-2.07, F.A.C. Whether or not on or about November 12, 1976, investigation revealed that the Zig Zag Bar, Inc., d/b/a Zig Zag Pub, had entered into an agreement with one Billy Gene McKinney, which agreement relinquished all or part of the management and control of the licensed premises contrary to Rule 7A-3.17, F.A.C.
Findings Of Fact The Zig Zag Bar, Inc. is the holder of license number 23-2702, series 2-COP, held with the State of Florida, Division of Alcoholic Beverages and Tobacco. This license is held to do business under the name Zig Zag Pub, located at 800 Alibaba Avenue, Opa-Locka, Florida. This case arises on the basis of an investigation conducted by Agent James P. Bates, State of Florida, Division of Alcoholic Beverages and Tobacco. On October 19, 1976 Agent Bates received information from an unidentified confidential informant that the Zig Zag Pub had been sold or leased to one Billy McKinney, a convicted felon. Having received that information, Bates took action to determine whether the Respondent, Zig Zag Bar, Inc. had entered into an agreement with Billy McKinney, which agreement possibly would have relinquished all or part of the management and control of the licensed premises contrary to Rule 7A-3.17, F.A.C. One aspect of the investigation, was the review of the records maintained by the Division of Alcoholic Beverages and Tobacco to determine if Bill McKinney was listed as one of the officers of the subject corporation. This record examination took place in October or November, 1976. This search did not show Bill McKinney being listed as a corporate officer. The corporate officers listed were Phyllis Charlene Henry, President, Sigride Kienle Sowell, also known as Sigride Kienle, Vice-President and Richard M. Knowles, Secretary- Treasurer. Agent Bates went to thee location of the Zig Zag Pub, at 800 Alibaba Avenue, Opa-Locka, Florida, on October 28, 1976. When he arrived he discovered an advertising sign in the front of the licensed premises reflecting the name "Bill's Place". On October 28, 1976 the records of the Petitioner indicated the official name of the licensed premises was Zig Zag Pub. This prompted Agent Bates to make a further inquiry into the true status of the licensed premises, on the subject of ownership and control. Agent Bates checked with the City of Opa-Locka, Florida and discovered that Bill McKinney had completed a questionnaire for an operating license to be held with the City of Opa-Locka, Florida. The license was issued to Zig Zag Pub in the name of Richard M. Knowles; however, the questionnaire application was completed by Bill McKinney who indicated that he was the owner-operator. This information is shown in Petitioner's Exhibits number 1 & number 2 admitted into evidence. Petitioner's Exhibit 1 is the questionnaire and Petitioner's Exhibit number 2 is the city license. Agent Bates also ascertained that Bill McKinney had obtained a water permit from the City of Opa-Locka for the benefit of the licensed premises. In the course of his investigation, Bates talked to Phyllis Charlene Henry, the named President of the Zig Zag Pub, Inc. Ms. Henry stated that the Zig Zag Pub, Inc. still maintained control of the licensed premises, even though the operating manager and Vice-President Sigride Kienle Sowell had left, leaving McKinney as the manager. Bates went to the licensed premises on November 12, 1976 and found Bill McKinney working behind the bar. McKinney explained that he was the manager of the licensed premises. In checking the business records of the licensed premises, a lease agreement was discovered which was signed between McKinney and Richard M. Knowles as an officer with the Zig Zag Pub, Inc. This lease agreement was a two year agreement with an option for McKinney to become a full partner in the corporation known as Zig Zag Pub, Inc. The agreement also authorized Bill McKinney to take full control to operate the business under the present licenses, one of those licenses being the license being held with the State of Florida, Division of Alcoholic Beverages and Tobacco. Petitioner's Exhibit number 3, admitted into evidence is the business contract spoken of. Agent Bates also discovered a number of checks written on an account of Bill McKinney which pertained to expenses of the Zig Zag Pub, Inc. Some of these checks are found in Petitioner's Composite Exhibits number 4 & number 5. Petitioner's Exhibit number 6 is a ledger showing expenditures of the business and reflects entries which correspond to the checks found in Petitioner's Composite Exhibit number 4. Petitioner's Exhibit number 7, admitted into evidence, is a composite exhibit containing invoices that are reflected in the ledger and shows that the invoices were made out to Bill's Place, and paid by the Zig Zag Pub or Bill McKinney. Petitioner's Exhibit number 8, admitted into evidence, is a receipt for a water bill charged to the licensed premises and paid by Bill McKinney. In following up the explanation of the sign found on the outside of the licensed premises, showing the name to be "Bill's Place," an invoice was located in the records. This invoice is Petitioner's Exhibit number 9, admitted into evidence, and shows that the sign had been delivered August 21, 1976. Another exhibit showing the connection of Bill Kinney to the licensed premises is a health inspection form made in the name of "Bill's Place" for the licensed premises and acknowledged by Bill McKinney. This is reflected in Petitioner's Exhibit number 10, admitted into evidence. Finally, there is a letter from the law firm of Bergstresser and DuVal, which indicates a request for payment of the November, 1976 rent due from the licensed premises under terms of a lease entered into by the principles of Zig Zag Bar, Inc. This letter is addressed to Bill McKinney, and is Petitioner's Exhibit number 11, admitted into evidence. While in the licensed premises on November 12, 1976, Agent Bates discussed McKinney's position with the Zig Zag Bar, Inc. McKinney indicated that he had been the manager since June, 1976. In an effort to determine McKinney's position in the corporation of Zig Zag Bar, Inc., Bates inquired of the Secretary of State, State of Florida. A teletype message was forward to Agent Bates indicating that the corporation had been cancelled for nonpayment of corporate fees. However, this message indicated that the last named officers were shown as Phyllis Charlene Henry, President, Sigride Kinele, Vice President and Richard M. Knowles as Secretary-Treasurer. This is reflected in Petitioner's Exhibit number 13, admitted into evidence. On November 19, 1976, the corporation was reinstated upon the payment of its fees. At the time the corporation was reinstated it listed Phyllis C. Henry, President, Kathlene McKinney as Vice-President and Richard M. Knowles as Secretary-Teasurer. Kathlene McKinney is the wife of Bill McKinney. Petitioner's Exhibit number 14, admitted into evidence are the documents showing the reinstatement of corporation and indicates the named officers. The Petitioner had not been made aware of the change of officers, nor received a certified copy of the stockholders' meeting held by the Zig Zag Bar, Inc., which changed the corporate officers. After discovering the change in the corporate officers, Agent Bates met with Richard Knowles and Knowles stated that Sigride Kienle Sowell had been removed as manager and McKinney had been brought in to salvage the Zig Zag Bar, Inc., from its financial difficulties in the licensed premises. Knowles was instructed that he could take action to rectify the problem that he was having and gain compliance with the laws and rules of the State of Florida, Division of Alcoholic Beverages and Tobacco. At the date of hearing, Bill McKinney was still acting as the operator of the licensed premises, and the Zig Zag Bar, Inc., had not filed a certified copy of the minutes of the stockholders' meeting changing the corporate officers, to those reflected in the November 19, 1976 reinstatement of the corporation with the Secretary of State of Florida. Furthermore, the name displayed on the sign in front of the licensed premises was "Bill's Place," and not Zig Zag Bar. After concluding his investigation, Agent Bates related his findings to his superiors and this led to the filing of the notice to show cause which is the subject of this hearing. The notice to show cause contains three counts. The first of those counts alleges that on October 28, 1976, it was shown that the Zig Zag Bar, Inc., d/b/a Zig Zag Pub had failed to notify in writing, the State of Florida, Division of Alcoholic Beverages and Tobacco of its change of name in 30 days in advance of such name change, contrary to s. 561.33, F.S. Specifically, s. 561.33(2) , F.S. states: "no licensee may change the name of his place of business without first giving the Division 30 days' notice in writing of such change." In fact, the name was effectively changed from Zig Zag Pub to "Bill's Place" as discovered on October 28, 1976 and the Petitioner had not been notified 30 days in advance of such change. The Petitioner still has not been notified of such change. The second count of the notice to show cayuse alleges that on or about November 4, 1976 it was discovered that Zig Zag Bar, Inc. d/b/a Zig Zag Pub failed to submit a certified copy of the minutes of the stockholders' meeting changing corporate officers, to the State of Florida, Division of Alcoholic Beverages and Tobacco in violation of Rule 7A-2.07, F.A.C. The pertinent provision of the Rule, is Rule 7A-2.07(2), F.A.C., which states the following: "If any corporation holding a beverage license shall change corporate officers, such corporation shall within 10 days of such change submit a certified copy of the minutes of the stockholders' meeting at which the change in officers was effected to the district office of the district of the Division of Beverage wherein the license held by such corporation is located." The Respondent had changed the Vice-President in its corporation from Sigride Kienle Sowell to Kathlene McKinney, sometime prior to November 19, 1976, as evidenced by their filing with the Secretary of State of Florida. After making this change they failed to submit a certified copy of the minutes of the stockholders' meeting changing the corporate officer to the State of Florida, Division of Alcoholic Beverages and Tobacco within the allotted 10 day requirement. This change still has not been submitted. The third count in the notice to show cause was an allegation that the investigation on November 12, 1976, revealed that the Zig Zag Bar, Inc., d/b/a Zig Zag Pub, entered into an agreement with Billy Gene McKinney which agreement relinquished all or part of the management and control of the licensed premises and alleged that this was contrary to Rule 7A-3.17, F.A.C. Rule 7A-3.17, F.A.C. contains this language: "All business conducted on the licensed premises under the beverage law shall be managed and controlled at all times by the licensee managed by or his authorized employee or employees. The term "employee," as used herein, shall mean a person who received a salary or wages for services performed, for and in behalf of a licensee, under the exclusive control and direction of the latter. It does not include a lessee, and independent contractor or any person employed by collateral agreement to independently manage and control the said business on the licensed premises. Indicia for determining whether a purported managerial contract conforms to this rule are as follows: The licensee must retain control of the operation of the business. Salary or wages must be paid by the licensee to the manager or employee for conduct of the business under the ultimate direction of the former. Social Security and workmen's compensation coverage must be paid and accounted for by the licensee. The licensee must be responsible for all debts of the business and legally entitled to all incomes therefrom. All alcoholic beverages for the business must be purchased in the licensee's behalf and under the license covering the premises. The licensed premises must be operated for all purposes in the name of the licensee or his legal trade name as distinguished from the name or names of any other person or persons. The licensee must be responsible for all conduct of the business and the license involved must be subject to suspension and revocation for any illegal acts committed on the premises or under the beverage law. Complete ultimate authority for the hiring and dismissal of all employees on the premises must rest with the licensee. The licensee must be primarily responsible for the rent, utilities and insurance covering the premises, and all other incidental expenses occasioned in the operation of the business. The licensee must remain at all times responsible for the maintenance and proper operation of equipment on the premises. The contract must contemplate the formation of the relationship of principal and agent between the licensee and the employee within the limits defined and implied by the contract. A contract wherein the so-called employee or manager pays a fixed sum to the licensee whether from net profits or not would not create the employer/employee relationship as contemplated by the rule. Any agreement woven in such language so as to clothe or disguise the true character of a contract either as a lease or a managerial contract will be shorn in order to effect the intent and purpose of the law and rule in this regard. The Pole Star which will guide the Division in determining whether or not a purported agreement is a bona fide managerial contract as distinguished from a lease will depend upon who has ultimate overall control and direction of the licensed premises under the terms of the agreement." In reflecting on the requirements contained in the Rule and comparing it to the facts shown in this case, it is clear that the Respondent has failed to comply with Rule 7A-3.17, F.A.C.
Recommendation It is recommended that the Director of the Division of Alcoholic Beverages and Tobacco suspend license number 23-2702, for a period of 20 days, but that such suspension be withheld for 15 days from the date of the recommended order to: (1) allow Bill McKinney to try to transfer the license number 23-2702 into his name and control; or allow the Respondent to make him an officer, stockholder, or employee entitled to operate the licensed premises; or allow the Respondent to remove him as the manager and operator of the licensed premises; allow application for change of name from Zig Zag Pub to "Bill's Place" or remove a sign indicating that the licensed premises is called "Bill's Place" and to allow the Zig Zag Bar, Inc., to file a certified copy of the corporate minutes of the stockholders' meeting which changed its corporate officers to the present named corporate officers. After the 15 days if the items (1) through (3) haven't been complied with the suspension shall take effect. This recommendation does not consider the acceptability of Bill McKinney as a transferee of the license held with the Division of Alcoholic Beverages and Tobacco or the propriety of the name change; nor does it address the question of possible future violations. DONE AND ENTERED this 29th day of August, 1977, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Denise LaRosa, Esquire 725 South Bronough Street Tallahassee, Florida 32304 Richard M. Knowles Secretary- Treasurer Zig Zag Pub 800 Alibaba Avenue Opa-Locka, Florida
