The Issue Whether the proposed repeal of Rule 61D-11.027, Florida Administrative Code, is an invalid exercise of delegated legislative authority because the repeal has the effect of creating or implementing a new rule or policy.
Findings Of Fact The Florida Legislature enacted Section 849.086, Florida Statutes, in 1996. The law authorized the establishment of “cardrooms” at licensed pari-mutuel facilities and dictated the parameters by which games may be conducted at such facilities. In essence, the cardrooms conduct games wherein the players compete against one another. The participants do not wager against “the house.” Instead, the house, that is, the pari-mutuel facility, conducts the games in a non-banking manner. This means the house does not have a financial interest in the outcome of the game(s). For purposes of this case, it is determined that the players who win share fractions of the “pot” created by the entry fees paid to participate in the game(s). The Petitioners in this cause are licensed facilities that have operated cardrooms. Each Petitioner holds a pari- mutuel wagering permit and a valid cardroom license. The Respondent is the state agency charged with the responsibility of administering Section 849.086, Florida Statutes (2005). Section 849.086, Florida Statutes, was amended in 2003 by Section 4, Chapter 2003-295, Laws of Florida. The 2003 amendment imposed a $2.00 bet limitation, with a maximum of three raises per round of betting. This change to the statute required the Respondent to revisit the rules governing cardrooms and, more specifically, the concept of poker “tournaments” being conducted at pari-mutuel facilities. To that end, and after extensive rule-making proceedings, the Respondent adopted rules that were incorporated in Florida Administrative Code Chapter 61D-11. The Respondent intended for the rules to address concerns regarding the $2.00 bet and raise limitations as well as how “re-buys” might affect or potentially allow a violation of such provisions. A “re-buy” describes when a card player is allowed to purchase more chips from the house during a game(s). Florida Administrative Code Rule 61D-11.027 was adopted on May 9, 2004. It was then challenged by pari-mutuel facilities who alleged the rule encompassed more than the statute authorized. Such challenge (DOAH Case No. 04-2950RX), was granted. The Final Order found that the rule (Florida Administrative Code Rule 61D-11.027(2)(a)) exceeded the Agency’s grant of rulemaking authority, modified the specific law implemented, and was arbitrary. Accordingly, the Final Order (DOAH Case No. 04-2950RX) determined that the rule violated Subsections 120.52(8)(b), (c), and (e), Florida Statutes. The Florida First District Court of Appeal affirmed the Final Order by a Per Curiam decision issued on October 28, 2005. Thereafter, the Respondent proceeded with the emergency repeal of the tournament rule in its entirety and issued an advisory letter to all cardroom license holders. The Respondent represented that it cannot reconcile the holding of the court with the explicit language of Section 849.086(8), Florida Statutes (2005). At the hearing, the Respondent represented that additional rulemaking will be necessary. The Respondent does not dispute that tournaments are permissible under the statute. Moreover, the parties agree that prior to the rule, repeal tournaments were conducted using tokens or chips that did not have value. Tournaments were played at licensed cardroom facilities during the period commencing in May 2004 through November 9, 2005. During that time (the period the rule was in effect) counties, cities, and the state received income from the monies remitted by the cardroom facilities. Additionally, the cardrooms employed persons to work the facilities to conduct the various games. After the repeal of the rule, revenues from the cardrooms decreased substantially. Similarly, the cardrooms did not need the number of employees as games were not being conducted. Tournaments at the St. Petersburg Kennel Club have not been conducted since January 17, 2006. From November 2005 through January 17, 2006, the tournaments at the St. Petersburg Kennel Club were conducted using chips or tokens that had “fractional value.” The “fraction” did not correspond to the entry fee charged for the tournament. It is not known whether or not re-buys during the tournaments were allowed. The Respondent issued a Memorandum to Pari-Mutuel General Managers at Cardroom Facilities and Cardroom Managers on January 12, 2006, that provided in part: In light of the recent ruling by the First District Court of Appeals, the Division’s administrative rules regarding tournaments have been repealed on an emergency basis, and are scheduled to be repealed permanently. The Division distributed a memorandum to all cardroom operators regarding Clarification of Cardroom Tournament Rules and Jackpots on November 9, 2005. The Division has also expressed on numerous occasions a serious concern of cardroom operators issuing chips in a fashion that does not represent an even value exchange for money in an attempt to circumvent the $2 bet and three raise limitation outlined in Chapter 849.086(8)(b), Florida Statutes. [Italics in original.] The November 9, 2005, Memorandum referred to in paragraph 14 above provided, in pertinent part: This memorandum is intended to clarify issues regarding the recent ruling by the First District Court of Appeals which affirmed an earlier ruling of the Division of Administrative Hearings (DOAH). The DOAH ruling found that various cardroom rules, which were challenged by Dania Jai Alai and Calder Race Course, are invalid. These rules addressed tournaments, jackpots, the Division’s approval of games, and gifts that enable play in an authorized game. As a result of the ruling, today the Division filed emergency rules to ensure that tournaments are played in compliance with the bet limitation of Section 849.086(8)(b), Florida Statutes. * * * The Final Order that was affirmed by the First District Court of Appeals invalidated the Division’s rules regarding entry fees, re-buys and single table tournaments. The judge held that tournament play is authorized by the cardroom statute. Therefore, cardrooms may set their own entry fees and allow re-buys in tournaments and hold single table tournaments. * * * Unauthorized activity, such as conducting wagering on tournaments that does not conform with the wagering restrictions found in Section 849.086(8)(b), Florida Statutes, or offering of jackpots or gifts that do not comply with the requirements that cardrooms be operated in strict conformity with the statute as required by Section 849.086(3), Florida Statutes, may result in disciplinary action. The memorandums identified above did not change or modify the Respondent’s position regarding whether tournaments are legal or permitted by the statute. To the contrary, the memorandums merely advised the cardroom facilities that they would be held to the statutory standard regarding wagering and that jackpots and gifts would be prohibited. Prior to the appeal of the rule, the Respondent routinely approved tournaments that were based upon the following scheme: A participant paid a $32 buy-in and paid the house $13 for the fee to conduct the tournament. Then the participant received a number of no-value chips that were used to play a multiple number of games of poker. At the end of the designated time, number of games, or whenever the designated end occurred (on the same day of play), winners were announced based upon the number of chips they held. Participants were “ranked” and awarded cash prizes from the pot of entry fees. The $32 entry fee was a mathematical calculation thought to assure that no participant would violate the statute’s bet and raise limitations. Whether or not the “all in” concept violated the statute was not considered as the chips were deemed to have no value in and of themselves. This “no value” chip was a fiction that the Respondent supported as, in theory, the $32 player buy-in comported with a mathematical calculation that was within the statutory guideline. The payouts were determined based upon the number of participants and were set by percentage with the first place person receiving the largest payout. Additionally, participants under the approved scheme were not allowed re-buys. That assured that all participants started with the same number of chips and had the same “betting” potential. Finally, winners were not paid or could not receive prizes outside the “pot” created by the entry fees. A nominal gift (such as a T-shirt) was not considered a violation. Prizes such as giant television sets or vacations were not acceptable. All winnings were to be paid from the buy-in fees and all buy-in fees were to be returned to the players in winnings.
The Issue Whether Petitioner was the subject of unlawful discrimination in the terms, conditions, privileges, or provision of services in connection with the rental of a dwelling from Respondent, based on her race, in violation of section 804(b) or 804(f) of Title VIII of the Civil Rights Act of 1968, as amended by the Fair Housing Act of 1988 and the Florida Fair Housing Act, chapter 760, Part II, Florida Statutes (2011).
Findings Of Fact Respondent owns and manages the Country Club Woods residential community in Starke, Florida. Country Club Woods is a racially-mixed community. The current residential mix includes 29 African-American families and 6 white families. County Club Woods receives low-income housing subsidies in the form of tax credits through the Florida Housing Finance Corporation. Some residents qualify for federal Section 8 housing subsidies. Petitioner is African-American. On February 4, 2011, Petitioner signed a lease agreement for a home in Country Club Woods. Rent was $698.00 per month. The home was vacant, and power and water had been turned off. Respondent asked Petitioner to activate power and water so that repairs and unit preparation could be performed, and she did so. Petitioner?s rent for February was partially prorated to account for the period during which she did not occupy the unit. The lease agreement required that all occupants of the house be listed, and provided that “[n]o other occupants are permitted.” Guests were limited to stays of no more than 14 consecutive days. Due to the status of Country Club Woods as an affordable housing community, it is subject to restrictions on the income and criminal history of its residents. Therefore, all permanent occupants are required to undergo income and background screening to ensure that the low income housing tax credit rules are being met. The failure to do so could jeopardize the tax credits. When she signed the lease, Petitioner knew what the lease required regarding the occupancy of the house. Petitioner listed Aulettia Russ and Aarian Russ, her daughter and son, as occupants with her in the home. After the lease contract was signed, Respondent performed a few repairs and updates to prepare the unit for Petitioner. Mr. Sam Baker, who performed maintenance services for County Club Woods, fumigated the house and painted some of the interior walls. He performed a minor repair to the roof, which consisted of applying tar around the cracked rubber boot of the roof drain vent. Mr. Baker moved a stove into the house from another unit because there was no stove when the lease was signed. He also replaced the toilet with a new one. Petitioner moved into the unit on February 16, 2010. She was joined by her fiancé, Kevin Sampson, and her older son, Kelsy Roulhac, neither of whom were listed as occupants. Mr. Sampson was on probation for several felony offenses. Both Mr. Sampson and Mr. Roulhac were residents for the entirety of Petitioner?s tenancy. At no time during the tenancy did Petitioner seek to add Mr. Sampson or Mr. Roulhac to the lease. Petitioner testified that Rebekkah Baker, the property manager, knew that Mr. Sampson was a permanent occupant, but had no objection. Ms. Baker denied that she consented to his occupancy, given that it would have been a violation of Country Club Woods policy against leasing to persons with a criminal history in the past seven years. Given the consequences of failing to meet the occupancy and background screening requirements, Ms. Baker?s testimony is credited. When Petitioner moved in, there were still problems with the unit. Problems noted by Petitioner included a broken dishwasher, mildew on a number of surfaces, dead insects -- likely from the fumigation -- in the cabinets, a hole in the foyer wall caused by the adjacent door?s doorknob, a ceiling stain from the roof leak, a missing shower head, a broken light fixture, and a missing smoke alarm. In addition, the carpet was stained and in generally very poor condition. Petitioner resolved the mildew problem by cleaning the affected surfaces with Tilex. Petitioner?s son, Mr. Roulhac, got rid of the dead insects and cleaned the cabinets. Petitioner replaced the showerhead on her own. Shortly after she moved in, Petitioner notified Respondent that her roof was leaking. Mr. Baker went to the house, advised Petitioner?s daughter that he was there to fix the roof, and went onto the roof. He determined that the leak was occurring at the location of his previous repair. He completed the repair by re-tarring the roof drain vent boot. Petitioner testified that the roof continued to leak after heavy rains. She indicated that she made a subsequent complaint via a message left on Ms. Baker?s telephone answering machine. Ms. Baker testified that she received no subsequent complaints, and there is no other evidence to suggest that Respondent received any subsequent complaints regarding the roof. Mr. Baker performed no further repairs. Petitioner complained that the dishwasher was holding water. She testified that Respondent never came to fix the dishwasher. Both Mr. Baker and Ms. Baker testified that Mr. Baker was tasked to repair the dishwasher, but upon arriving at the house was denied entry, with the explanation that the dishwasher had been fixed by a friend, and the problem resolved by removing a plastic fork that had clogged the drain. From the time Petitioner moved in, until the time she vacated the home, Mr. Baker fixed the hole in the foyer wall and the broken light fixture. In addition, Mr. Baker came to the house to fix the refrigerator, which was a problem that was not on the original list. From the beginning of her tenancy, Petitioner complained of the carpet. The carpet was badly stained and worn. In addition, the carpet contained a dye or some other substance that aggravated Aarian Russ?s asthma. It was Petitioner?s desire to have the carpet replaced before the time of her daughter?s graduation. Respondent agreed to replace the carpet, and had employees of a flooring company go to Petitioner?s house to measure for new carpet. The flooring company employees were allowed entry to the house by Petitioner?s daughter. They measured the rooms, except for Petitioner?s bedroom, which was locked. Respondent advised Petitioner that the measurements of the bedroom of an identical unit could be provided to the carpet company. It is not known if that was done. Due to difficulties on the part of the flooring company, the new carpet was not installed before Petitioner vacated the unit. There was no evidence offered to suggest any relationship between the failure to install new carpet and Petitioner?s race. Petitioner complained that she had not been given notice that the flooring company employees were coming, and complained that Respondent had not performed a background check on the workers. She argued that she was entitled to have a background check done on anyone providing services before she would have to allow them into her home. There is no relationship between Petitioner?s complaints regarding the lack of a background check on the workers and Petitioner?s race. The lease agreement provides that “[m]anagement will make repairs . . . after receipt of written notice.” Respondent occasionally prepared work orders describing the nature of the problem at a unit, and the work done to resolve the problem. However, the evidence demonstrates that written work orders were likely the exception rather than the rule. It appears that most problems were reported by verbal requests, and resolved by Mr. Baker?s maintenance and repairs. Most of Petitioner?s requests for repairs and maintenance were made verbally. At some point, due to the number of items, Petitioner provided Respondent with a list of items for repair. There is no evidence that any repairs at Petitioner?s home were documented with a work order. In any event, there was no evidence that the failure to document the work, which was common, was the result of Petitioner?s race. Petitioner did submit seven work orders in evidence. Six of the work orders reflected repairs made by Respondent to the homes of African-American families upon verbal requests. One of the work orders reflected repairs made by Respondent to the home of a white family upon a verbal request. Petitioner questioned why none of her repairs were memorialized in work orders. The work orders do not substantiate that Petitioner was discriminated against on account of her race, and in fact serve to indicate that Respondent provided maintenance services equally, without any consideration to the race of the person requesting such services. Petitioner complained that Mr. Baker did not have “credentials,” and questioned him regarding any education or licenses that qualified him to perform maintenance, including electrical work. Whether qualified to do so or not, Mr. Baker performed maintenance for all of the residents of Country Club Woods, regardless of their race. There is no relationship between Petitioner?s complaints regarding Mr. Baker?s credentials and Petitioner?s race. Beginning in April, 2011, Petitioner began to fall behind on her rent. Petitioner was paid bi-weekly, though how that affected her ability to plan for monthly rental payments was not clearly explained. On April 21, 2011, Ms. Baker posted a notice on Petitioner?s door demanding that the $279.60 balance of the April rent payment be made. Petitioner denied having seen the notice. However, the copy of the notice put in evidence includes the notation from Ms. Baker that “[p]romised to pay balance w/ May 2011?s rent.” On May 9, 2011, Ms. Baker posted a notice on Petitioner?s door demanding that the rent payment be made. The amount in arrears was calculated to be $1,077.60, which included a late fee. Petitioner denied having seen the notice. However, the copy of the notice put in evidence includes the notation from Ms. Baker that “pd. $698 on 5/11/11.” On June 1, 2011, Ms. Baker posted a notice on Petitioner?s door demanding that the rent payment be made. The amount in arrears remained at $1,077.60. Petitioner denied having seen the notice. On July 27, 2011, Respondent provided a notice to Petitioner indicating that due to unauthorized occupants and $1,975 in unpaid rent, Petitioner had until August 1, 2011, to vacate the premises, or Respondent would commence eviction proceedings. Petitioner admitted to having received that notice. Respondent?s resident history report indicates that by the time Petitioner vacated the home on August 31, 2011, her rent was $2,075.60 in arrears. Some of that was due to assessed late charges, but the majority reflected unpaid rent. When Petitioner vacated the unit, Petitioner?s security deposit was applied, the remaining arrearage was assigned to a collection company, and Respondent?s books were cleared. Ms. Sheila Palmer and Ms. Tynesha Epps testified at the hearing. They have been residents of Country Club Woods for 16 years and for 1 year and 3 months, respectively. Both are African-American. Both testified that they had never been refused maintenance at their homes, and that Respondent was responsive to their requests for maintenance which were generally verbal. Neither Ms. Palmer nor Ms. Epps was aware of any instance in which management of Country Club Woods had discriminated against any tenant due to their race, though neither personally knew Petitioner. Ms. Headrick, Ms. Baker, and Mr. Baker each testified that they never denied or limited repair and maintenance services to any resident of Country Club Woods account of their race. They each testified convincingly that race played no factor in their duties to their tenants. Ultimate Findings of Fact There was no competent, substantial evidence adduced at the hearing that Respondent failed or refused to provide services to Petitioner under the same terms and conditions that were applicable to all persons residing in the Country Club Woods community. There was not a scintilla of evidence that, in providing services to Petitioner, Respondent deviated from its standard practice of providing maintenance services to all residents of Country Club Woods regardless of their race, income, or any other reason. The evidence does support a finding that Petitioner materially breached the terms of the lease agreement, both by allowing undisclosed persons to reside at the house, and by failing to timely pay rent. Petitioner?s race had nothing to do with the timing or manner in which maintenance and repair services were provided to her by Respondent, and it is expressly so found. The evidence did not demonstrate that Respondent discriminated against Petitioner on the basis of her race. Therefore, the Petition for Relief should be dismissed.
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 dismissing the Petition for Relief filed in FCHR No. 2012H0004. DONE AND ENTERED this 16th day of February, 2012, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 2012. COPIES FURNISHED: Eulinda M. Russ Post Office Box 902 Starke, Florida 32091 Sean Michael Murrell, Esquire Murrell Law, LLC 4651 Salisbury Road South, Suite 503 Jacksonville, Florida 32256 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Petitioner designs, manufactures, and sells the "Little Casino" video game machine. The machine is designed to enable a player, through the insertion of either one or two quarters, to play one of four games: poker, high-low, blackjack, or craps. The machine contains two switches which enable the owner to control the cost per game, whether 25 cents or 50 cents per game. Upon deposit of the appropriate amount of money, the player of the game receives 10,000 points to play the selected game. If the operator utilizes the entire 10,000 points in less than four hands or rolls, the game is over. If, however, the operator earns or wins 100,000 points by the conclusion of the fourth hand or roll, a free fifth hand or roll is allowed. If the operator earns 200,000 points by the conclusion of the fifth hand or roll, a free sixth hand or roll is allowed. The player of the game is allowed no more than six hands or rolls in the chosen game, regardless of the number of points scored. Depending upon the game option selected, cards or dice appear on the video screen. So far as can be determined from the record in this cause, the dealing of the cards or roll of the dice is entirely determined by the programming of the machine, and the player is wholly unable to control or influence the initial selection of cards or the roll of the dice. Little Casino does not allow free replays, does not accumulate free replays, and makes no permanent record of free replays. The game is not classified by the United States as requiring a federal gambling tax stamp under any applicable provisions of the Internal Revenue Code. The machine can be set to eliminate what Respondent considers to be the objectionable fifth and sixth hands.
Findings Of Fact General. The Respondent, Cliff Hayden, Jr., served as the Executive Director of the Hillsborough Area Regional Transit Authority (hereinafter referred to as the "Authority"), from January, 1985, until January 19, 1990. Stipulated Fact I. 3. The Respondent was the Executive Director of the Authority at all times pertinent to the Complaint at issue in this proceeding. Stipulated Fact II. 4. The Authority was established pursuant to Part V of Chapter 163, Florida Statutes, which provide for the establishment of regional transportation authorities. Stipulated Fact I. 2. The Respondent was employed by the Authority for 13 years prior to his employment as the Executive Director. John King served as a member of the Board of Directors of the Authority (hereinafter referred to as the "Board"), the governing body of the Authority, from 1982 through 1987. From 1987 through 1989, Mr. King served as Chairman of the Board. Stipulated Fact I. 16. Expenditures at the Tampa Club. During the 1980's the Authority began efforts to build a bus terminal on Marion Street in Tampa, Florida. Initially, the Authority was not sensitive to the concerns about the proposed terminal of business owners on Marion Street. This insensitivity caused the Authority to have difficulties with business owners in the area which the Board believed needed to be rectified in order to effectively carry out the responsibilities of the Authority. During 1985 or 1986, as a result of the difficulties with Marion Street business owners, the Chairman of the Board, Charles Banks, suggested that a membership be established at a Tampa social club that served meals. Stipulated Fact I. 4. As a result of Mr. Banks' suggestion, the Respondent checked into the cost of joining several Tampa social clubs that served meals, including one known as the Tampa Club. See Stipulated Fact I. 4. Following discussion of the Board at a Board meeting, the Board unanimously approved the opening of an account for use by the Executive Director at the Tampa Club. Stipulation of Fact I. 4. and 5. The Board authorized and directed the Respondent to open an account at the Tampa Club. The Board also authorized and directed the expenditure of Authority funds to reimburse the Respondent for the initial membership fee of the Tampa Club, monthly charges for the membership in the Tampa Club and the cost of meals incurred by the Respondent at the Tampa Club for meals at which Authority business was discussed by the Respondent. The Respondent was authorized by the Board to use the Tampa Club for personal purposes if he reimbursed the Authority for any such expenditures. Stipulated Fact I. 7. The Respondent did not use the Tampa Club for any personal purposes. The Respondent was a member of the Tampa Club from February, 1986, until September 30, 1989, his entire term as Executive Director. Stipulated Fact I. 8. and 11. Membership in the Tampa Club was an employment benefit and part of the Respondent's economic compensation from the Authority. Stipulated Fact I. 12. This finding of fact was stipulated to by the parties, although evidence was presented by the Advocate suggesting a different conclusion. That evidence is rejected because of the agreement of the parties that Stipulated Fact I. 12. is an established fact. The Board also established and approved a public-relations account during 1985 or 1986. The public-relations account was to be used by the Executive Director and Authority Board members in furtherance of Authority business. Funds were to be paid out of this account for Authority business- related social activities, including expenditures incurred by the Respondent at the Tampa Club. Stipulated Fact I. 14. The public-relations account, like the membership in the Tampa Club, initially was established because of the difficulties with Marion Street business owners. The Respondent was directed by the Board to "hold hands" with the Marion Street business owners and to use the Tampa Club and the public-relations account for that purpose. Pursuant to the direction of the Board, the Respondent paid the Tampa Club $1,500.00 as a membership entrance fee. The Respondent was reimbursed by the Authority for this expenditure. Stipulated Fact I. 6. During the three years and seven months that the Respondent was a member of the Tampa Club the Authority paid a total of $5,854.08 for food and beverages charged by the Respondent at the Tampa Club. Stipulated Fact I. 8. and 9. The Authority also paid monthly membership charges of the Tampa Club during the time that the Respondent was a member. Monthly charges ranged from $40.00 to $65.00 per month. Stipulated Fact I. 10. Amounts expended out of the public-relations account, including amounts paid to the Tampa Club, were included in the Authority's Board-approved budget. During the fiscal year ending September, 1988, the amount of the public-relations account approved by the Board was $3,023.47. During the fiscal year ending September, 1989, the amount of the public-relations account approved by the Board was $4,215.89. Stipulated Fact I. 15. The Authority's budget was prepared by the staff of the Authority. The public-relations account was included as a separate item in the budget. The particular expenditures to be paid from the public-relations account, including amounts to be paid for the Tampa Club, were not specifically identified in the budget submitted to the Board for approval. Information concerning the specific expenditures to be covered by the public-relations account was, however, available to Board members. The weight of the evidence failed to prove that the manner in which the public-relations account was presented to the Board for approval and review was inconsistent with generally accepted accounting principles. The Board reviewed and approved the Authority's budget, including the public-relations account. Although the Board did not closely scrutinize the budget, the weight of the evidence failed to prove that any attempt was made by the Respondent or any other person on his behalf to conceal information about the public-relations account or his use of the Tampa Club from the Board or the public. The Board's failure to closely review the Authority's budget was a problem of the Board and not the Respondent. All expenditures made by the Authority out of the public-relations account, including amounts paid to the Tampa Club, were part of the records of the Authority and constituted public records available to the public and the members of the Board. Each month, approximately three to four days before each Board meeting, Board members were provided with a monthly summary of Authority expenditures. This summary included the total amount expended from the public- relations account, including amounts paid to the Tampa Club. The Board was not provided with a detailed break-down of each expenditure from the public- relations account. The weight of the evidence failed to prove, however, that the manner in which the account was reported was inconsistent with generally accepted accounting principles or that any attempt was made by the Respondent or any other person on his behalf to conceal information about the public-relations account or his use of the Tampa Club from the Board or the public. All expenditures from the public-relations account, including those for the Respondent's use of the Tampa Club, were reviewed by the Respondent. The expenditures were paid by the Authority's accounting staff after approval by the Respondent. Expenditures from the public-relations account for lunch and breakfast charges at the Tampa Club made by the Respondent were also authorized by the John King, Chairman of the Board. Stipulated Fact I. 17. In 1989, John King was alleged in Commission Complaint No. 89-58, to have misused his office by charging to a credit card issued to him by the Authority meals taken with business associates. This Complaint was dismissed by the Commission with a finding of no probable cause. Stipulated Fact I. 18. The Respondent's membership in the Tampa Club was used solely for business lunches and breakfasts by the Respondent. Stipulated Fact I. 13. The Respondent only charged food and beverages to the Tampa Club for payment by the Authority for food and beverages consumed while discussing Authority business with members of the Board and staff members, or guests of the Authority and staff members. Staff members only accompanied the Respondent to the Tampa Club if a Board member or guest of the Authority was present with the Respondent. The Respondent took Board members to the Tampa Club approximately 30% of the time and guests of the Authority approximately 70%. The weight of the evidence failed to prove that the Respondent charged any amount to the Authority for use of the Tampa Club that was not directed and authorized by the Board. Although the Respondent benefited from the food and beverages he consumed at the Tampa Club, the weight of the evidence failed to prove that the Respondent used of the Tampa Club with the intent of securing a special privilege, benefit or exemption for himself or others or that his action was taken with a wrongful intent. The Respondent was carrying out the instructions of the Board concerning how the Tampa Club was to be used. Expenditures for Golf. Randolf Kinsey is a member of the Authority's Board. Mr. Kinsey has been a member of the Board since approximately 1987. Mr. Kinsey has, as a member of the Board, been an advocate for the use of Black businesses by the Authority and the hiring of Blacks by the Authority. At times Mr. Kinsey has advocated for Blacks to the exclusion of other minorities. During all times relevant to this proceeding, Mr. Kinsey and the Respondent did not get along. A great deal of friction has developed between Mr. Kinsey and the Respondent. Following a Board or committee meeting in 1988, John King and legal counsel for the Authority met with the Respondent concerning the problems between Mr. Kinsey and the Respondent. During this meeting Mr. King, who was then the Chairman of the Board, told the Respondent to resolve the problem with Mr. Kinsey. It was suggested by Mr. King that the Respondent "get Mr. Kinsey in a more relaxed environment" and "mend the broken fences between them." The weight of the evidence failed to prove that Mr. King specifically suggested that the Respondent play golf with Mr. Kinsey. The Respondent contacted Mr. Kinsey and suggested lunch. When Mr. Kinsey declined lunch, the Respondent invited Mr. Kinsey to play golf. Mr. Kinsey accepted. On November 10, 1988, the Respondent and Mr. Kinsey played golf together at Northdale Golf Course in Tampa. Stipulated Fact II. 1. The greens fees charged to play golf for the Respondent and Mr. Kinsey totalled $69.01. Stipulated Fact II. 2. The Respondent charged the greens fees for himself and Mr. Kinsey on a credit card issued to him by the Authority. Stipulated Fact II. 4. The greens fees were ultimately paid by the Authority as a charge to the public-relations account. During the golf outing the Respondent and Mr. Kinsey discussed Authority business, including the hiring of a Black at the administrative level by the Authority. The Respondent is an avid golfer. The Respondent played golf approximately 10 to 15 times with other members of the Board. The Respondent did not, however, charge any of the fees attributable to these golf outings to the Authority. This fact supports a finding that the golf outing with Mr. Kinsey was not a social occasion. Because of the animosity between the Respondent and Mr. Kinsey, the only reason the Respondent played golf with Mr. Kinsey was to attempt to resolve their differences. This fact further supports a finding that the golf outing with Mr. Kinsey was not a social occasion. The weight of the evidence failed to prove that the Respondent attempted to conceal the fact that he had charged the golf outing with Mr. Kinsey to the Authority. The charges were public records. Although the Respondent benefited from the free golf outing, the weight of the evidence failed to prove that the Respondent played golf with Mr. Kinsey or charged the outing to the Authority with the intent of securing a special privilege, benefit or exemption for himself or others or that his action was taken with a wrongful intent. The Respondent reasonably believed that he was carrying out the instructions of the Chairman of the Board to resolve a problem between the Executive Director of the Authority and a Board member which was adversely impacting on the Authority.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics enter a Final Order and Public Report finding that the evidence failed to prove that the Respondent, Cliff Hayden, Jr., violated Section 112.313(6), Florida Statutes, as alleged in Complaint No. 89-127. DONE and ENTERED this 16th day of August, 1991, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 1991. COPIES FURNISHED: Virlindia Doss Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32399-1050 David M. Carr, Esquire 600 Madison Street Tampa, Florida 33602 Bonnie J. Williams Executive Director Commission on Ethics The Capitol, Room 2105 Tallahassee, Florida 32399
The Issue The issue for determination in this proceeding is whether Respondents purchased and applied a restricted-use pesticide without a license and whether Respondents applied the pesticide in an improper manner.
Findings Of Fact Respondent, Port Malabar Country Club, is an unincorporated 18-hole golf course located in Palm Bay, Florida, owned and operated by Raysteff Corporation ("Raysteff"). Raysteff is a Florida Corporation, wholly owned by Mr. Robert Dolci. Respondent, Robert L. McDaniel, is the superintendent of golf course maintenance at Port Malabar Country Club and has held that position since 1985. On February 26, 1992, Respondent, McDaniel, purchased a 42 pound container of Kerb 50-W herbicide ("Kerb") from Harrell's Inc., located in Lakeland, Florida. Kerb contains chemicals that are classified as restricted- use pesticides by Petitioner. The labelling on the product's package contains the following warning: RESTRICTED USE PESTICIDE Because pronamide has produced tumors in laboratory animals, this product is for retail sale to and use only by Certified Applicators or persons under their direct supervision, and only for those uses covered by the Certified Applicator's certification. On February 26, 1992, neither Respondent, McDaniel, nor any other employee, officer, or agent of Raysteff held a valid applicator's license as required by Section 487.031(7), Florida Statutes. On March 4, 1992, Mr. Jason McDaniel was an employee of Raysteff and applied all Kerb to approximately three acres of the golf course. Respondent, McDaniel, supervised the application of the Kerb. Neither Respondent, McDaniel, nor any other employee, officer, or agent of Raysteff held a valid applicator's license at the time of the application. Respondent, McDaniel, had been licensed by Petitioner in 1975 and 1976 as a certified applicator. Mr. McDaniel's license expired on October 31, 1983. Mr. McDaniel took the examination required to obtain a new license after December 5, 1991. At the time he purchased and applied the Kerb, Mr. McDaniel had not been notified that he had passed the examination. Mr. McDaniel subsequently received his current license which expires sometime in 1996. The Kerb was applied properly around tees and greens on a sunny day with little wind. The treated area was not used by golfers until after the treated area was dry. The method of application did not expose either golfers or workers directly or by drift. The method of application complied with labeling precautions on the product. Neither package labeling, Petitioner's rules, nor Petitioner's policy establishes the amount of time needed for Kerb to dry. Petitioner failed to present any evidence to explicate its assertion that Respondents failed to determine that the Kerb was dry before allowing persons into the treated area. Evidence presented by Respondents was credible and persuasive. Respondents have no history of formal administrative disciplinary action for prior offenses. Respondent, McDaniel, properly applied the Kerb after taking the examination to obtain his license as a certified applicator and subsequently received that license. No harm was caused to any individual as a result of the application of the Kerb. There was no damage which would otherwise require expense to the state to rectify. Respondents did not benefit pecuniarily as a result of applying the Kerb prior to the time Mr. McDaniel received his license. However, Mr. McDaniel knew or should have known that he did not have his license when he purchased and applied the Kerb.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued denying Petitioner's claim of unlawful discrimination. DONE AND ENTERED this 19th day of October, 1993, at Tallahassee, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of October, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2230 Petitioner did not submit proposed findings of fact. 1.-10. Accepted in substance 11.-12. Rejected as unsupported by the weight of evidence Accepted in substance Rejected as irrelevant and immaterial Respondent's Proposed Findings of Fact 1.-2. Accepted in substance Rejected as irrelevant and immaterial Accepted in substance 5.-11. Rejected as irrelevant and immaterial 12. Accepted in substance COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 John S. Koda, Esquire Florida Department of Agriculture and Consumer Services Room 515, Mayo Building Tallahassee, Florida 32399-0800 Elting L. Storms, Esquire Post Office Box 1376 Melbourne, Florida 32902-1376 Richard Tritschler, Esquire General Counsel Florida Department of Agriculture and Consumer Services Room 515, Mayo Building Tallahassee, Florida 32399-0800
Findings Of Fact Charles Edward James in the relevant period of time considered by these proceedings was an insurance agent licensed by the State of Florida in the categories of ordinary life, general lines, and disability. In that same time period Respondent was the president, director, and registered agent for Friendly Auto Insurance of Panama City, Inc., located at 704 West Eleventh Street, Panama City, Florida. He was also the president, director, and registered agent of All Auto Insurance of Quincy, which operates from 101 East Jefferson, Quincy, Florida. At various times in the critical period, Respondent had five other employees in Panama City in the Friendly Auto Insurance Agency. Among those employees was Alton McCollum, Jr., a licensed general lines agent in the State of Florida. His tenure with the Panama City office was from approximately February or March, 1982, until April, 1983. Anita Prevost worked in the Panama City operation commencing August, 1981, and was employed at the time of hearing as the office manager. Michelle Tolden started working in the Panama City office in February, 1982, as a clerk. At the time of the hearing she was excused from her employment on maternity leave. Tina Clark worked as a clerk in the Panama City office, but resigned prior to the hearing date. Carmen Browning was an employee in the business whose length of employment is unknown. McCollum, as a licensed general lines agent, had been hired by Respondent to operate the Panama City office and allow Respondent to do business in Quincy. At the time James employed McCollum, he gave no specific instructions as to how McCollum would supervise the Panama City office. James basically told McCollum that he wanted McCollum there so that McCollum's agent's license could be utilized to allow the Panama City office to remain open. McCollum spent a couple of hours a day operating the office. His time was primarily devoted to review of applications received by office employees. When he was not available in the office, McCollum could be contacted by phone by other office personnel. When he arrived, he assumed that the employees who were not agents understood how to conduct the business in the sense of giving quotes for automobile insurance over the phone and filling out the necessary forms. In the beginning, he was not familiar with the sale of motor club benefits, having never worked with that type of offering. The motor club memberships that were being sold at the time that McCollum was serving as the agent for Friendly Auto called for commissions to Friendly in the amount of 70 to 80 percent of the premium. Eventually, McCollum determined that the motor club sales through the Panama City operation were questionable. He discovered that customers were not being told that they were getting a motor club membership in addition to their requests for basic automobile insurance. In effect, what he found was that the other employees in Respondent's Panama City office were quoting a single price to customers requesting basic automobile insurance which included the cost of the basic insurance premium and the price of membership in the motor club. As McCollum realized motor club is not part of basic automobile insurance coverage in Florida. McCollum then attempted to have other employees within the Respondent's office specify to customers the particulars of what they were receiving, i.e., that motor club memberships were separate from automobile coverage. He also instructed the other employees in selling motor club memberships to explain to the customers that they were purchasing a motor club membership and specifically indicate what the cost was of that plan. As a result, Friendly Auto sold fewer auto club memberships while under the supervision of McCollum. McCollum also discovered that the other employees in the Panama City office were inappropriately filling out the applications in the sense that the name, address, driving history, and other background information were filled out but that portion related to premium costs and the break out of those costs was not being completed at the time the customer was in the office. That information was being placed in the application at a later date. The normal procedure was for the customer to be provided with a copy of the application which did not contain the specific itemized costs related to premium payments. Once McCollum discovered the problem with the applications, he instructed the employees in the office to fill out the application forms completely to include specifying the premium costs in the application and providing the customer with a completed copy of the application to include a break out of these premium charges. Tina Clark in particular did not readily accept the suggested changes for improving the integrity of the operation. McCollum had suggested that James fire this employee. Instead, Respondent decreased the hours available for that employee to work in the office based upon his belief that she would leave voluntarily and the employee left several months later, indicating that she could not accept reduced hours of work. Anita Prevost was hired by Respondent and trained by Carmen Browning. Before McCollum's involvement with the Panama City office, Prevost, in taking applications for automobile insurance, would quote a cost which included motor club membership as well as the automobile premium costs, even if the customer simply requested insurance necessary to receive a license and tag for an automobile. At the time of filling out the automobile insurance form it would be signed, the motor club membership application form would be signed, and a rejection form related to coverages not requested in the automobile policy line would be signed. Prevost and other employees would not refer to the motor club membership by that name. Instead, at most benefits of the motor club membership would be explained, such as towing, rental reimbursement, accidental death benefits, and emergency road service. The idea of explaining the coverage and not referring to the motor club membership as such was that of the Respondent. When an individual discovered that they had purchased a motor club membership, Prevost and other employees per Respondent's instructions would provide a full refund of the membership costs to that customer. Prevost, and other employees, in dealing with PIP coverage routinely filled out a deductible in the amount of $8,000 after asking a customer if they had hospitalization and without regard for the customers' response. When confronted with a customer who was not interested in that amount of deductible, they would offer a lesser deductible or no deductible. This technique was in keeping with instructions given by Respondent. Later, in dealing with the PIP purchase, Prevost and other employees in the agency would ask if the customer had hospitalization. If they said yes, an $8,000 deductible PIP would be suggested; otherwise, it would be recommended that the customer purchase the PIP coverage that did not carry a deduction. This new policy was established by the Respondent in early 1982 but was not always adhered to as seen in subsequent facts. When Michelle Tolden took applications for persons who wanted basic automobile insurance, she explained the limits of liability in the coverage; coverage related to PIP and its limitations and the benefits related to motor club memberships to include road service, rental, towing reimbursement and any accidental death benefits. The words "motor club" were not mentioned and Tolden has not deviated from the practice from this decision not to mention motor clubs. She feels that the customer understands better what is involved without mentioning the term "motor club." This technique is contrary to the instructions given by McCollum. Tolden, prior to her maternity leave, dealt with the question of the sale of $8,000 deductible PIP in the same fashion as described in the facts related to Prevost. Respondent, in his training in Port Myers, Florida, prior to coming to Panama City, had utilized the technique of packaging minimum automobile insurance coverage necessary with a ¬or club membership when a customer sought "tag" insurance. He and his employees pursued this technique at the time he operated as the general lines agent with Friendly Auto from June 1981 to March 1982. This packaging did not tell a customer specifically that the customer was purchasing an unnecessary and unrequested motor club membership. The resulting confusion and deception related to the aforementioned packaging is seen in the following factual account related to select customers mentioned in the complaint. According to James, in selling PIP $8,000 deductible the realized return was $3.00 with a cost of service of between $20 and $25. As a consequence, he decided to package automobile coverage and the motor club membership in view of the fact that the motor club paid 70 percent or better as commission for the agency in the sale of memberships. This enabled the agency to realize a profit in the combination of the sale of minimum automobile coverage and motor club memberships. The average return for commissions on automobile insurance policies generally is 15 percent. COUNT I LINDA C. SMITH In May, 1982, Linda C. Smith went to Respondent's Panama City office to purchase the necessary automobile insurance to obtain a tag. Smith desired to have PIP and liability coverage; however, in the face of a quoted cost of $79 for the insurance, she determined that she could only afford PIP. She paid $79 for what she assumed was PIP coverage upon a quote of that amount by an employee in Respondent's office. Only $29 related to automobile insurance coverage, the balance was for motor club membership. No mention was made to Smith on the subject of the purchase of a motor club membership and Smith would not have purchased it in view of the fact that she had a friend who was in the wrecker business. That friend was Robert Griffiths. Smith did sign a slip pertaining to a motor club membership which may be found as Petitioner's Exhibit 8. She does not remember seeing the membership fee of $50 reflected on that form. Subsequently, Smith discovered that she had purchased a motor club membership. Had she realized that the $50 had been spent on motor club membership, she would have utilized that payment to purchase liability insurance in lieu of the motor club membership. After complaining to the Insurance Commissioner's office in Panama City, she was contacted by Friendly Insurance and received a $50 refund related to her purchase of a motor club membership. At the time of the transaction, Smith did not read the entire explanation on documents provided to her. Smith's determination to purchase the no fault deductible in the amount of $8,000 was on the basis of the signing of a form provided by the agency which is known as a rejection of liability coverages. The particular form in question may be found as Respondent's Exhibit 11, admitted into evidence. Smith does not recall checking the block which shows the $8,000 deductible PIP. Nonetheless, one of he items on that form related to the $8,000 deductible and it indicates the significance of the deductible, in that it reduces the amount of PIP benefits paid to the purchaser or resident relatives. The form also indicates that this kind of deductible is not recommended for those persons who do not have other coverages which would respond adequately to payments for injuries received in automobile accidents. In addition to this information, the employee who assisted the customer had asked about hospitalization for the benefit of Linda Smith. Smith did have health insurance or medical insurance at the time of purchasing the automobile insurance policy. In addition that form as signed by Smith, had a portion which stated "I understand the accidental death benefit through the life insurance company is a separate item, that pays in addition to my auto insurance policy. I understand the additional charge to this coverage is included in with my downpayment." Smith did not equate this latter item with motor club membership. COUNT II JACKIE MERCER Jackie Mercer went to the Panama City office of Respondent in order to purchase necessary insurance to obtain a driver's license. This explanation was made to the employee who assisted the customer at Friendly Auto. The amount of quotation for the premium was $581, which was paid by Mercer. An automobile insurance application form was signed by Mercer and a copy of that may be found as Petitioner's Exhibit No. 13 admitted into evidence. The coverage was for one year, commencing April 17, 1982. No mention was made to Mercer of the purchase of a motor club membership and Mercer would not have knowingly accepted that unsolicited membership. Nonetheless, as part of the package of coverage, $25 was charged for each of two vehicles that were being insured for a total of $50 for membership in a motor club. The real automobile insurance policy amounts for the two cars for the one year period was $531. At the time that the purchase was made, Mercer did not understand that he had paid a separate amount for motor club, notwithstanding signing two forms which are constituted as Petitioner's composite Exhibit No. 15 indicating application for motor club membership. Mercer has no recollection of signing the forms related to motor club. Mercer spent 10 to 15 minutes in the office in applying for the insurance coverage and did not read the various documents presented to him in applying for the insurance. As related in Respondent's Exhibit No. 6, Mercer signed that aspect of the rejection of liability coverages pertaining to the fact that accidental death benefits were a separate item from the overall automobile insurance coverage for which there was an additional charge. This related to the motor club membership benefits; however, Mercer was unaware of this. The automobile insurance application, Petitioner's Exhibit No. 13, does not break down the various charges related to premium payments for insurance for the two automobiles. On the other hand, the application which was presented to the insurance company and is found as part of Petitioner's Exhibit No. 14, dated April 16, 1982, carries a quotation for the total premium payments for both cars as being $431. Eventually, Mercer was notified of the cancellation of his coverage with Protective Casualty related to the two automobiles for reason of nonpayment of additional premium. It was at that time that he learned from the Florida Department of Insurance that the overall charge of $581 made by Respondent's Panama City operation included $50 for motor club memberships which were not desired by Mercer. COUNT III RENATA DOTSON On October 26, 1981, Renata Dotson went to the Panama City office of Respondent and purchased automobile insurance by dealing directly with the Respondent. She told James that she wished full coverage and paid the $289 quoted price with the expectation of receiving six months' coverage for automobile insurance. She did not wish to purchase motor club membership which is not part of automobile insurance. The cost of auto coverage was $214. Petitioner's Exhibit No. 17, entered into evidence is a copy of the application form which was used in requesting insurance from Colonial Insurance Company This item was not filled out by Dotson. She did sign the document on the second page. Ms. Dotson did not obtain a copy of the original of the application form upon leaving the agency. Dotson also signed an application for membership in the Nation Motor Club. A copy of that application may be found as Petitioner's Exhibit No. 20, admitted into evidence. She did not fill out the other information set forth on the form. At the time of requesting automobile insurance on October 26, 1981, through James' agency, in addition to not requesting to join a motor club, she recalls no discussion of joining a motor club. She would not have desired membership in the Nation Motor Club because her parents were involved in another motor club that to her understanding would cover her car. Dotson did not understand that she had signed an application for a motor club membership. Likewise, Dotson does not recall the discussion of an $8,000 deductible PIP which eventually was written into the policy or any other discussion related to deductibles. Dotson did not carefully read all papers presented to her at the time she was in Respondent's office on October 26, 1981. Dotson later discovered that she had paid $75 for motor club membership and upon that discovery, Friendly refunded her $75. As reflected in Respondent's Exhibit No. 4, Dotson signed that aspect of the rejection of liability coverages dealing with accidental death benefits and the fact that this was a separate item promoting an additional charge for coverage. She did not equate this as being unrelated to automobile insurance requested by her and related to purchase of a motor club membership. Her understanding was that the questions related to naming a beneficiary for the accidental death benefit was part of the purchase of the automobile insurance. COUNT IV EMMETT FOWLER Emmett Fowler was interested in obtaining less expensive automobile insurance that he presently held and based upon a television advertisement, he purchased automobile insurance from Friendly Auto in Panama City. When he bought the insurance, he was of the opinion that he had paid for a full year when in fact he had paid for six months' coverage. When inquiring about this misunderstanding, it was revealed that he had purchased motor club membership. He had not understood that he had purchased that membership prior to this subsequent inquiry and would not have desired the membership in that he had been a member of another motor club for fifteen years. He was reimbursed $50 for the motor club membership when he informed Friendly that he was not interested in that benefit. The actual automobile insurance premium was $52 and he had paid $102 which had been quoted as the price of automobile insurance. The other $50 was for motor club membership. Fowler had signed the application for the automobile policy, a copy of which is found as Petitioner's Exhibit No. 26 and for the motor club membership, a copy of which is Petitioner's Exhibit No. 28. At the time of purchasing the policy, no discussion was entered into on the question of purchase of a motor club membership. The employee who assisted Fowler in the purchase of the automobile insurance indicated that in view of the fact that Fowler had retired from the military, that the $8,000 deductible on personal injury protection would make the policy cheaper. Having heard this explanation, Fowler chose an $8,000 deductible PIP. The total time involved in the purchase of the automobile insurance was 10-15 minutes. Fowler did not read the documents presented to him in this session very carefully. At the time of purchase, accidental death benefits were discussed; however, Fowler was unaware that this matter pertained to motor club membership and not the insurance policy. Fowler also signed the rejection of liability coverages form which is Respondent's Exhibit No. 7, admitted into evidence. In particular, his signature appears on that portion of the form related to the fact that accidental benefits are a separate item and that there is an additional charge for that coverage. The motor club application which is Petitioner's Exhibit No. 28, does not reflect the fact of the $50 fee related to that membership. A copy of that application produced by the Respondent from his records which is admitted as Respondent's Exhibit No. 8, shows a charge of $50. The conclusion of fact to be drawn from this discrepancy is to the effect that the $50 was placed on the application form subsequent to the time that Fowler made application and without his knowledge. COUNT V MAXIE REEDER On June 4, 1982, Maxie Reeder made an application with Friendly Auto, Panama City, for automobile insurance and paid the $200 which had been quoted as the price of the insurance. Of that $200, $175 actually pertained to the automobile insurance premium and the remaining $25 paid for membership in a motor club. Reeder purchased the insurance based upon a need to have sufficient insurance to obtain a tag for her automobile. Reeder was unaware that she had purchased a motor club membership until she received notification of her membership from the motor club. Reeder also experienced problems with trying to gain benefits of her automobile insurance coverage in that she had difficulty gaining assistance from the Respondent following an automobile accident that she had in late June. The automobile policy was not received by Reeder until August 1982. Eventually, Reeder cancelled the automobile insurance policy. She requested that Friendly Auto provide her a refund for the motor club and received a refund in the amount of $25. Petitioner's Exhibit No. 30 is a copy of the application for automobile insurance which was signed by Reeder on June 4, 1982. It does not reflect the exact cost of the various elements of the automobile insurance policy premium. Those premium amounts are broken out on Petitioner's Exhibit No. 31, which is a copy of the application as completed by someone in the Friendly Auto Insurance Agency and submitted to the insurance company after Reeder left the agency. It reflects the various charges and the total charge of $175. Through this scheme of completing the form later, Reeder was not aware that the full amount of the automobile insurance was $175, not the $200 quoted, nor did she recognize that the remaining $25 of the money that she paid was for motor club membership. Reeder would not have knowingly joined an automobile motor club because she was not financially able. The transaction for the purchase of the automobile insurance on June 4, 1983, took approximately 45 minutes and the customer did not read the documents involved carefully. Reeder was eventually paid $140 related to the automobile insurance premium which represented the amount of premium not yet used at the point of her cancellation. As reflected in Respondent's Exhibit No. 9, admitted into evidence, Reeder signed that portion of the rejection of liability coverages referred to as the accidental death benefit separate item and the fact of additional charge for that coverage. Notwithstanding that signature on the rejection of liability coverage, Reeder and all other customers in this complaint did not understand the separate nature of the automobile insurance coverage and the motor club membership. Moreover, nothing that was done by the employees at Friendly Auto had as its purpose explaining the meaning of the aforementioned statement signed by the customer and the fact that the automobile club membership was not necessary in order to obtain the so-called tag insurance. In the Reeder transaction and the others, even in the face of a separate application for motor club membership and automobile insurance and the purported identification of the separateness of automobile insurance and motor club membership found in the rejection of liability coverage form signed by the customer, the overall technique used in responding to the customer's request for automobile insurance was one of obscuring the distinction between automobile coverage and motor club membership. Actions by Respondent and his employees in dealing with Reeder and the other named customers camouflaged the fact that motor club membership was not necessary to meet the requirements of law for the purchase of a tag. By these actions, Respondent and employees at Friendly Auto were making a misrepresentation to the public related to necessary coverage for obtaining automobile tags and the cost of automobile insurance and motor club membership. COUNT VII ROBERT GRIFFITHS Based upon advertising, Robert Griffiths went to the Friendly Auto to purchase full automobile insurance coverage. This visit was on February 12, 1982. At that time, he paid Friendly Auto in Panama City $168 for what he was led to believe was automobile insurance coverage requested. The copy of the application made on February 12, 1982, may be found as part of composite Exhibit No. 72 by the Petitioner. It does not reflect the exact charges related to the automobile insurance. This is a copy which was obtained by the Griffiths when they purchased the insurance. In actuality, the cost of the insurance was less than $168 paid. Griffiths signed an item requesting an application for membership in Nation Motor Club which is part of Petitioner's composite Exhibit No. 40 admitted into evidence. Notwithstanding the fact that he signed this application form, he did not understand that he had purchased a motor club membership and would not have desired that in that he operated a wrecker and would not need the towing service provided by the motor club membership. At the time of purchase of automobile insurance in February, 1982, Mr. Griffiths and his wife thought that the motor club membership was part of the automobile insurance without charge, in that the copy of the application which was received did not indicate a membership fee. This is seen in a xerox copy of the membership application which is part of composite Exhibit No. 40 as contrasted with the agency's yellow copy of the membership application and part of the composite Exhibit No. 40. The latter item contains a $25 membership fee. It is concluded that the fee quote was placed on the application form submitted to the Nation Motor Club at a time subsequent to the Griffiths' departure from Friendly Auto on the date in February, 1982. Moreover, Petitioner's Exhibit No. 73 is a copy of the basic service contract for the motor club which was received by the Griffiths and the fee amount is whited out further leading the Griffiths to believe that there was no charge for that coverage. There was no discussion on February 12, 1982, between the employee of Friendly and Griffiths on the question of joining a motor club. In the February application process, when Robert Criffiths signed the motor club membership application form and the application for insurance he did not read those matters carefully. Griffiths also signed the rejection of liability coverage acknowledgement form, Respondent's Exhibit No. 10, admitted into evidence, related to separateness of the accidental death benefit and the additional charge for that coverage. Griffiths, in asking for full insurance coverage did not wish to have the $8,000 deductible PIP at the time of purchasing insurance in February. The automobile insurance protection which was requested on the application was shown to be worth $153 and the actual policy amount was finally determined by the insurer to be $150 including the policy fee. This is reflected in Petitioner's Exhibit No. 39, admitted into evidence which is a copy of the application for insurance policy and the statement of policy declarations. The period of coverage was for six months commencing February 13, 1982. In August, Griffiths returned to Friendly Auto Insurance to renew the automobile insurance policy. On this second visit, Griffiths' wife was with him and she concluded the transaction and Griffiths returned to work. When the application for renewal was applied for in August, 1982, and Mr. Griffiths left, he left after revealing to the employee at Friendly that his duties included that of operation of a wrecker. On this second visit in August, 1982, no discussion was entered on the question of continuing the $8,000 deductible PIP which had been purchased at the time that the automobile insurance was obtained from Friendly in February, 1982. Had Mrs. Griffiths known, she would not have applied for an $8,000 deductible PIP at the time of renewal, acting in her husband's absence. She did not feel that she could afford to pay the $8,000 deductible if the insurance was needed. In addition, the automobile insurance policy renewal was not promptly forwarded to the insured even though application was made on August 17, 1982. As a consequence, when Mrs. Griffiths had an accident on August 20, 1982, she was not covered by the policy. The problem with lack of coverage of the accident on August 20, 1982, and the deficit in the coverage related to PIP were rectified by Friendly and the motor club fee was returned. COUNT VIII BRENDA D. HENDERSHOT/BRUMFIELD On January 15, 1982, Brenda Hendershot, now Brumfield, looked the Friendly Auto Insurance Agency up in the phone book and through the telephone process received a quote for insurance and decided to purchase automobile insurance to obtain an automobile tag. The purchase price quoted of $153 included motor club membership, unknown to the customer. Petitioner's Exhibit No. 44, admitted into evidence, is a copy of the application for automobile insurance. It does not reflect a break down of the cost related to the policy, although there are spaces provided for those entries. This document was signed by Brumfield at the time of applying for the policy at the Respondent's office in Panama City. That exhibit is a copy of what was given to Brumfield when she left Respondent's office. Anita Prevost was the employee who took care of Brumfield on the date the automobile insurance was purchased. During this purchase no discussion was made of the motor club. Brumfield did sign the Nation Motor Club application form that is depicted as Respondent's Exhibit No. 2. In addition, she signed the rejection of liability coverage provided by Friendly, to include that portion of the form related to accidental death benefits, being a separate item carrying an additional charge. As with other cases spoken to in this Recommended Order, the accidental death benefit was part of the motor club membership and not part of the automobile insurance coverage requested by Brumfield. Brumfield recalls some discussion about $8,000 related to personal injury protection but did not understand from this conversation at the time of purchase that this $8,000 amount pertained to a deductible. She did not discover this fact until a subsequent time. On that same occasion, Brumfield discovered that she had purchased a motor club membership which she did not request. The copy of the application for insurance which the Respondent's agency in Panama City submitted to the insurance company as shown through Petitioner's Exhibit No. 45, admitted into evidence, reflects the various charges set forth in the premium and demonstrates that the real cost of the automobile insurance was $128 with the other $25 being related to motor club membership. The customer did not carefully consider documents by reviewing them at the time of her purchase. COUNT IX BENNY L. COON On December 31, 1981, Benny Coon went to Friendly Auto Insurance to purchase the necessary automobile insurance to satisfy legal requirements in the State of Florida. He chose this agency because it was the nearest to his residence. A quotation was made to him of $158 and he paid $158 for what he understood to be the necessary automobile insurance coverage. This quote, unknown to Coon, contained motor club charges. A copy of the application form, for automobile insurance which contains his signature, may be found as Petitioner's Exhibit No. 49, admitted into evidence. Coon's also signed an application for Nation Motor Club as shown in Petitioner's Exhibit No. 52, admitted into evidence which is the copy kept by Friendly insurance. As reflected on that exhibit, $25 was charged for motor club membership unrelated to the automobile insurance requested by Coon. Coon had not requested to join a motor club when be went to the agency, not being interested in that plan, and there was no discussion made about joining the motor club. Eventually, Coon received a copy of the declaration statement related to the automobile policy and it reflected the true charge of $133 as opposed to the $158 which Coon paid, believing that was related to the cost of automobile insurance not automobile insurance and motor club membership. Petitioner's Exhibit No. 50 is a copy of the application submitted to the insurance company and it also shows charges in an amount of $133. The break out of the charges for the automobile insurance was not reflected on the copy of the application provided to the customer on the date he made that application. See Petitioner's Exhibit No. 49. Coon had not carefully read the documents prepared at the time of requesting insurance coverage. Again this customer completed the rejection of liability coverages form which is found as Respondent's Exhibit No. 5 admitted into evidence. He signed that aspect of the form related to accidental death, i.e. death benefit being a separate item and the additional charge related. COUNT XI DAVID B. PERMENTER David Permenter went to the Friendly Auto Insurance office in Panama City on March 15, 1982, to purchase basic automobile insurance coverage required by the State of Florida. He was quoted a price with a premium of $346 and he paid that price. This price included motor club membership without his knowledge. At the time the application was made, he signed a form related to membership in Nation Motor Club and was provided the customer's copy. This is found as Petitioner's Exhibit No. 63, admitted into evidence. It does not reflect the amount of charge for this protection. He also executed an application form related to the automobile insurance, a copy of which is found as Petitioner's Exhibit No. 60. This item does not display the break out of the cost related to the automobile insurance which ultimately was determined to be $321 with the balance of the amount he paid being $25 utilized for membership in Nation Motor Club. The declarations document related to the automobile insurance policy was received by the customer subsequent to the purchase of the insurance. That document reflects the cost of automobile insurance to be $321 and it was received as evidence, Petitioner's Exhibit No. 61. At the time the automobile insurance was purchased, no request was made to join a motor club and no inquiry was made of the customer if he desired to join a motor club. The purchaser thought that he was buying automobile insurance and did not recognize that motor club membership was envisioned in the sale. He would have joined the motor club if it was part of the policy payment and not a separate charge but did not wish to pay additional money to join the motor club. Permenter did not discover that he had joined a motor club until a date subsequent to the time of the purchase of insurance. No specific discussion was entered into about the features of coverage being purchased, the principal emphasis of the sale being related to the total price. The customer was in the insurance agency for approximately 15 minutes and he did not complete the application forms other than to sign them. This customer did not read the documents carefully at the time of the purchase. The amount of money paid for the motor club membership was refunded. This customer completed a rejection of liability coverages to include a signature on that aspect of the sheet which indicated that accidental death benefit was a separate item for which a charge would be placed. This document is found as Respondent's Exhibit No. 1, admitted into evidence.
The Issue The issue for determination in this cause is whether petitioner is entitled to a refund in the amount of $6,306.32 paid into the state treasury as sales tax. More specifically, the issue is whether the registration or participation fee charged by petitioner to its members at the 1975 summer national bridge tournament is taxable as an "admission" under Florida Statutes 212.02(16) and 212.04.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The petitioner, the American Contract Bridge League, Inc., is a nonprofit corporation incorporated under the laws of New York in 1938. Its membership is approximately 200,000, representing areas all over the North American continent. Its purposes include educational, cultural and charitable pursuits. Among other things, petitioner annually sponsors three national tournaments in various areas of the United States. In August of 1975, petitioner held its summer national tournament at the Americana Hotel in Bal Harbour, Dade County, Florida. Over 1,000 tables for approximately 5,500 members were in operation for the nine-day event. Many of these 5,500 members played in two or more events. In order to participate in each event, the member was required to pay a registration fee ranging from $3.00 to $4.50. No sales tax was included by petitioner in its registration fee. While spectators at the tournament were permitted, it was not intended as a spectator event. No special provision was made for the seating of spectators, whose number rarely exceeded one hundred and who were composed primarily of relatives or friends of the actual players or participants. No admission charges were made to spectators. On previous occasions, petitioner has held bridge events in Florida. On no such occasion has the State of Florida attempted to assess the sales tax on petitioner's registration or participation fees. No other state in which petitioner has held its tournaments has assessed petitioner for sales or other taxes on this fee. The respondent Department of Revenue informed petitioner that the registration fees collected at the 1975 summer national tournament constituted a taxable event, subject to the Florida sales tax, and petitioner, under protest, forwarded a check in the amount of $6,306.32. Thereafter, petitioner applied for a refund pursuant to the provisions of F.S. 215.26. The Comptroller denied the refund application.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that petitioner's request for a refund in the amount of $6,306.32 be denied. Respectfully submitted and entered this 21st day of March, 1977, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 1977. COPIES FURNISHED: Comptroller Gerald Lewis The Capitol Tallahassee, Florida 32304 Patricia Turner, Esquire Assistant Attorney General Department of Legal Affairs The Bloxham Building Tallahassee, Florida 32304 Paul J. Levine, Esquire 2100 First Federal Building One Southeast 3rd Avenue Miami, Florida 33131
