Findings Of Fact Respondent Albert Wade Anderson holds a business degree from Washington University and a theology degree from Princeton University. After six years, he left the ministry to sell insurance. In 1965, he was licensed to sell life insurance in Minnesota, and continued selling life insurance after he moved to Fort Myers, Florida, in 1967. Respondent is licensed in Florida as an ordinary life, including disability, insurance agent and as a general lines agent. Petitioner's Exhibit No. 1. In May of 1980, Mr. Anderson, newly licensed by petitioner to sell property and casualty insurance, took a job with Atlas Insurance Agency's Fort Myers office. Atlas Insurance Agency paid respondent a weekly salary of $200 plus "$6.75 per program or deal," (T. 62), i.e., per customer. Almost invariably, respondent sold a motor club membership to any customer who bought a personal injury protection policy; Mr. Anderson could not recall with certainty a single exception. (T. 66.) "A motor club is an organization which provides certain designated services to motorists, including such things as guaranteed arrest bond certificates, towing and labor for disabled automobiles, map drawing services, often accidental death benefits, and similar related services . . . [for] motorists." Deposition of Andrew M. Beverly (Deposition), p. 6. Among motor club membership benefits are many services which are not included in "standard coverage." Deposition, p. 7. Motor club membership is "an important coverage . . . [An] insured should be made aware of this coverage." Deposition, p. 9. An insurance agent "should explain the different [motor club] coverages and options to a potential insured." Deposition, p. 19. COUNT ONE Jeanne Whyte, assistant head nurse at Lee Memorial Hospital on the 11- to-7 shift, came into the Fort Myers office of Atlas Insurance Agency on June 10, 1980. Ms. Whyte graduated from high school and has attended about a year's worth of college courses from time to time, in addition to her training as a nurse. When she went to the Atlas Insurance Agency, it was with the intent to purchase the least expensive automobile insurance available. She was already a member of the American Automobile Association. Respondent Anderson persuaded her, however, that she should also purchase liability insurance to protect her home and other assets. In explaining her potential benefits, Mr. Anderson said "something about towing, but [Ms. Whyte] didn't connect it with . . . a club or anything." (T. 27.) Before she left the office, she wrote a check for $275, and signed documents, including a membership application for American Touring Association, Inc., Respondent's Exhibit No. 1. Of the $275, $186 was used to purchase bodily injury liability, property damage liability, and personal injury protection, in the form of a combination automobile policy from Kenilworth Insurance Company, No. C-1-826686, Petitioner's Exhibit No. 3; $75 was used to purchase a membership in American Touring Association, Petitioner's Exhibit No. 4; and $14 was not accounted for by the evidence. When Ms. Whyte discovered that $75 had been used to purchase a membership in American Touring Association, she tried to obtain a refund from Atlas Insurance Agency, originally without success; but she eventually obtained a $75 refund, after contacting the Insurance Commissioner's office. This experience notwithstanding, Ms. Whyte purchased automobile insurance a year later from respondent, who by that time was employed with another insurance agency, "because [she didn't really think it was his idea to put [her] in the American Touring Club." (T. 29.) COUNT THREE When James Hanney, a high school graduate, entered Atlas Insurance Agency's office in Fort Myers, on or about August 11, 1980, he was under the impression that his parents' membership in the American Automobile Association inured to his benefit. Whether this impression was accurate was not clear from the evidence. In any case, Mr. Hanney told the woman he found in the Atlas Insurance Agency office that he wanted minimal insurance coverage. She sold him a $10,000 personal injury protection policy with an $8,000 deductible, issued by Fortune Insurance Company, No. AP 1-10-02821 with a premium of less than $50, and a membership in the Nation Motor Club for $35. Respondent and Mr. Hanney each signed the insurance policy. Petitioner's Exhibit No. 7. Among other documents, Mr. Hanney signed an application for membership in the Nation Motor Club, Inc., Respondent's Exhibit No. 2. COUNT FIVE On or about May 17, 1980, James Allen Foster, a high school graduate, went to the Fort Myers office of the Atlas Insurance Agency to buy whatever insurance was necessary to register the car he and Barbara Gonzalez (now Foster) had recently purchased. He did not ask for a motor club membership and would not have purchased such a membership if he had known it was optional. He did, however, sign an application for membership in the American Touring Association, Inc., Respondent's Exhibit No. 3, among other documents. After telling Mr. Foster and Ms. Gonzalez about potential benefits, including "towing and lost key coverage, Mr. Anderson sold them a $10,000 personal injury protection policy with an $8,000 deductible written on the American Specialty Insurance Company, No. PA 02 03 59, Petitioner's Exhibit No. 9, with a premium of $44, in addition to the membership in the American Touring Association. Howard Vogel and Kevin Cox were the principals of Atlas Insurance Agency, a Florida corporation owned by Cox, Vogel, Inc., during the time respondent Anderson worked for the agency. They instructed respondent to attempt to sell motor club memberships along with every automobile insurance policy he might sell, and told him how to go about it. The "technique was to package the benefits and quote one price," (T. 56; Testimony of Respondent), the aggregate of the motor club membership fee and the policy premium. Respondent was told by his employers "to not emphasize" the motor club memberships. Jeanne Whyte, James Hanney, and James Allen Foster each signed a form application for motor club membership, but only the application Mr. Hanney signed listed the membership fee or otherwise indicated that a separate fee or premium was being charged for the motor club membership. Respondent deliberately withheld this fact from Ms. Whyte and Mr. Foster when making his oral presentation and no document furnished to Ms. Whyte or to Mr. Foster disclosed the fact. Neither did respondent offer either of these customers a choice between memberships in different motor clubs. An insurance "agent has an absolute duty to the insured to explain to him what he is selling him and what it does for him," Deposition, p. 14, although the name of the policy is not nearly as important as the explanation of the coverage. Simply omitting the formal policy name would not fall below "the minimum standards of the business, the industry." Deposition, p. 16. "[T]he important thing is to explain to the insured he's buying something, and that what he is paying for is this." Id. Before making a sale, the insurance "agent owes it to the insured to explain each coverage and tell him he's paying for it and what the benefits of the coverage are." Deposition, p. 22. Both petitioner's recommended order to hearing officer and respondent's proposed order have been given careful consideration. Findings proposed by the parties which are not included in the foregoing findings of fact have been rejected as inconsistent with the evidence or omitted as irrelevant.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner suspend respondent's licensure under Chapter 626, Florida Statutes (1979), for a period of sixty (60) days. DONE AND ENTERED this 16th day of December, 1981, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 1981. COPIES FURNISHED: David A. Yon, Esquire Department of Insurance 428-A Larson Building Tallahassee, Florida 32301 Thomas F. Woods, Esquire Suite 112 1030 East Lafayette Street Tallahassee, Florida 32301 The Honorable Bill Gunter State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32301
The Issue Whether Respondent's beverage license should be suspended or revoked, or a civil penalty assessed, for alleged violations of Sections 562.13(3)(a)(1), and 561.20(7)(a)(3), 562.23, Florida Statutes and Rule 7A-3.19(2), Florida Administrative Code, pursuant to Section 561.29, Florida Statutes, as set forth in Notice to Show Cause issued by Petitioner.
Findings Of Fact The Florida Voluntary Roadside Improvement Association (Association) was incorporated in 1951 as a nonprofit corporation under the laws of the State of Florida by the Circuit Court of Leon County. The general objects of the Association as set forth in its certificate of incorporation are to develop and carry out a program of voluntary mutual cooperation among businesses occupying lands adjoining highways of Florida, highway users, and others concerning highway utilization. Petitioner has issued beverage licenses to the Association in several business names since 1969 at several locations in Tallahassee. In November, 1974, a Series 11-C beverage license (club license) was issued to the Association in the name of 1221 Club located at 1221 Alabama Street, Tallahassee, Florida. The license was in effect at the time of the alleged violations set forth in Petitioner's Notice to Show Cause and is presently held by the licensee. (Petitioner's Exhibits 1, 2, Testimony of Schoenfeld) The Association has rented space in a building owned by Willie Bennett at 1221 Alabama Street for several years. When he first purchased the building some seven years ago, it was rented to Alberta Walker who was then operating a place of business known as the Psychedelic Shack under a beverage license issued by Petitioner. In October, 1974, on a plea of nolo contendere, she was sentenced to eight months in the Leon County Jail by the County Court of Leon County for a violation of the State Beverage Law and another offense. Her beverage license was cancelled in May, 1974. City utilities for 1221 Alabama Street have been supplied under a contract with Walker in the name of Psychedelic Shack since 1970. (Petitioner's Exhibits 6, 10, 12, Testimony of Bennett, Schoenfeld, Connell, Walker) On June 3, 1977, Petitioner's beverage officer, Gary E. Sams, took a paid informant, Nathan Jones, to the vicinity of the 1221 Club and instructed him to enter the premises and attempt to become a member of the club and purchase alcoholic beverages there. Some 20 minutes later, Jones came out of the club and had a membership card. On several later occasions during the month of July, 1977, Jones purchased beer and vodka at the club from Walker who was tending the bar. Although Jones relied on a recent memorandum prepared by Sams to recall the precise dates of the beverage sales by Walker, his testimony concerning the incidents is deemed credible. (Testimony of Sams, Jones, Simmons, Respondent's Exhibit 1) On July 14, 1977, Sams observed Walker go to the door of the club, insert a key and enter the premises. On July 18, he observed Walker take a key from her purse, give it to Theodore Simmons, who thereafter unlocked the door. On July 19, Sams served a subpoena duces tecum upon Walker at the club premises for cancelled checks and bank statements of her personal checking account during the period January through June, 1977. She expressed no objection to turning over the required documents and did so that day. Theodore Simmons, the president of the Association, voluntarily turned over checks from the Association banking account in the Second National Bank of Tallahassee, which were variously dated in May and June of 1977. Upon comparison of the two sets of checks, a handwriting expert employed by the Florida Department of Criminal Law Enforcement found that Walker had written many of the words and figures appearing on the face of the checks, but had not signed them. (Petitioner's Exhibits 7-9, Testimony of Sams, Deposition of McCarthy (Petitioner's Exhibit 13) The bylaws of the Association provide that the membership committee inquires into the eligibility of applicants and submits findings to the board of directors who then vote on membership. The bylaws further provide that the treasurer of the organization shall have charge of the funds and deposit all monies in Association bank accounts, make disbursements, and maintain the books. In fact, two former treasurers of the Association resigned from their duties because they were given no functions to perform and never saw any books of the Association or handled any of its monies. Both individuals had become members of the Association by paying a $1.00 membership and were unaware as to whether any vote had ever been taken on their membership. Although at one time, the Association contemplated creating recreational facilities across the street from its premises, all that was accomplished was a clearing of land. Several times, the membership was solicited for funds to assist families of deceased members. The primary function of the club was social in nature. (Petitioner's Exhibit 3, Testimony of Dixie, Allen) Both Theodore Simmons and Alberta Walker testified at the hearing. Simmons was president of the Association from 1975 until a few months ago. Walker has been a member since May of 1975. During the period that Simmons was president, the Association had officers but not a board of directors. The club did not have a paid manager or employee. The practice was for Simmons to make sales of beverages and snacks during the hours of operation, and sign checks prepared by Walker for payment of rent, supplies and other Association expenses. Although Walker was not a paid employee, she possessed keys to the establishment, kept the books, handled the monies and made the periodic deposits in the club bank accounts. Simmons was aware that Walker had been convicted of a beverage violation and testified that "I didn't start the club until she came out of jail." Although Simmons wasn't paid for his work at the club, if he needed money, he would routinely take some from the club receipts. Walker testified that Simmons was her "boy friend" for five years and that she spent a lot of time at the 1221 Club to be with him and because she was unemployed. She testified that she kept the books of the Association because Beverage Officer Sams had said in 1975 that it was all right to "work there" due to the fact that her criminal conviction had been for a misdemeanor; but that he told her in August, 1977, that a 1976 state law prohibited her working as a bartender, although she could continue to keep the books. At the hearing, Sams conceded that he had informed Walker that she could continue to maintain the books of the Association. Walker claimed that the reason the utilities for the premises remained in her name was that it would cost $300 to transfer the account to the 1221 Club. Her claimed reason for making the club bank deposits was that Simmons had no motor vehicle and that the bank was located on the route to her home. She admitted selling alcoholic beverages as a consequence of Sams telling her that she could work at the club. The reason she had a key to the premises was that the one used during her operation of the Psychedelic Shack still opened the lock on the door of the premises. Her reason for filling out checks for Simmons to sign was that he was nervous and a poor speller. (Testimony of Simmons, Walker, Sams)
Recommendation It is recommended that Petitioner impose a civil penalty against Respondent, Florida Voluntary Roadside Improvement Association, in the amount of $100, pursuant to the authority granted under Section 561.29(1)(e) and (4), Florida Statutes, for violation of Rule 7A-3.19(2), Florida Administrative Code. DONE and entered this 21st day of February, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Francis Bayley, Esquire Department of Business Regulation The Johns Building 725 South Bronough Tallahassee, Florida 32304 W. R. Phillips, Esquire Post Office Box 594 Carrabelle, Florida 32322 Charles A. Nuzum, Director Division of Beverage Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32304
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
Findings Of Fact Respondent, Robert Hildreth (Hildreth), was a city commissioner for the City of Coral Gables (City) from 1983 through 1993. The Country Club of Coral Gables (Country Club) was established by City founder George Merrick, prior to the City's incorporation. Since 1929, the City which owns the land and buildings from which the Club operates, has leased the property to private entities. Since 1935, the lessee of the property has been the Country Club, a non-profit corporation run by a board of directors elected by the Country Club membership. Between 1935 and 1958, the lease underwent various modifications and extensions. In 1958, the City Commission voted to extend the lease to July 31, 1990. Under the terms of the lease, the Country Club paid three percent of its gross annual income, but in no case less than $5,000 per year, to the City as rent. In 1977, the Country Club again came before the City Commission requesting a lease extension, this time to the year 2002. There was no change in the rent amount. The request for extension was to allow the Country Club to borrow money for construction, and the request was approved. In 1978 the Country Club asked the City Commission for rezoning so that it could expand its tennis courts. This request was approved. In May, 1980, the Country Club asked the City Commission for a $23,000 loan to repair its roof. The City Attorney advised that the City could not lawfully make such a loan, and no further action was taken on the matter. In 1981 the Country Club asked to expand its tennis club facilities, and this request was approved. In 1983 a significant portion of the Country Club burned down. A request by the Country Club to support its efforts to raise funds from citizens for the Country Club, was on the July 26, 1983, City Commission agenda, but was not taken up. A discussion of the status of the building was held on that date, but no action was taken. Instead of rebuilding the burned section with the insurance money, the Country Club decided to construct an already planned new section. On November 22, 1983, representatives of the Country Club presented a plan for restoration to the City Commission, which on motion of Commissioner Kerdyk, approved the plan. On March 27, 1984, the City Commission authorized the City Manager to sign an affidavit needed by the Country Club to obtain a building permit. In April 1984, the Country Club requested extension of its lease to the year 2020. On motion of Commissioner Kerdyk, the City Commission agreed to the extension. In September 1984, the Country Club asked that the lease be reworded in order to satisfy the lending institutions from which the Country Club was borrowing money for renovations. The request was approved. When the Country Club initially undertook its restoration and remodeling plan, the Country Club leadership believed that there would be sufficient funds to accomplish both the rebuilding and the new construction. Cost overruns, diminishing membership, and other factors combined, however, to leave the Country Club with a new section, an old, burned-out section, and a significant debt. In 1987, the Country Club asked the City Commission to assist it, by contributing funds or otherwise, in overcoming that debt. On November 24, 1987, the City Commission met and discussed the problem. The only action taken was to invite the Country Club leadership to an up coming City Commission meeting to discuss proposed improvements. On January 26, 1988, the City Commission met with the Board of Directors of the Country Club to discuss the Country Club's request. The City Commissioners were informed that the Country Club's rent payments had been generating approximately $40,458.64 per year in income to the City. The Country Club vice-president proposed that the City rebuild the outside shell of the building, at a cost of $1,000,362 and the Country Club finance the remainder of the construction, about $1,900,000. The City Attorney advised that the City could not loan funds to the Country Club, because it was a private club. However, he opined that the City could participate in the rebuilding because it was the owner of the property. Action was postponed until the next meeting. On February 3, 1988, the Country Club made an offer to the City to increase its rent payment from three percent to six percent, if the City would rebuild the shell. The matter was raised at the February 9, 1988, meeting of the City Commission. Mayor Corrigan proposed that the City finance the rebuilding, but made no motion. Commissioner Wolff proposed that the City obtain funds from the Sunshine State Governmental Financing Commission and lend that money to the Country Club. The motion was seconded by Commissioner Kerdyk, and ultimately the City Commission resolved to refer the matter to the acting city manager to "work out financing without using taxpayer dollars." At the February 9 meeting, discussion was had on the issue of whether the City Commissioners had conflicts of interest, since they all had complimentary memberships to the Country Club. Mr. Zahner, the City Attorney, advised that they had no conflict. The issue of conflict of interest was again raised in subsequent meetings. Alternative proposals identified by the City Manager for funding the Country Club's rebuilding were discussed at the City Commission's March 8, 1988 meeting, but no action was taken. On June 30, 1988, the Country Club proposed that the City forgive lease payments until the year 2000. On August 30, 1988, the City Commission voted to suspend the lease payments, with the funds going instead to the maintenance and reconstruction of the facility. Membership in the Country Club is open to any person, provided they can pay the initiation fee and membership dues. At all times pertinent to this proceeding, the initiation fee was $1,000, although it sometimes was reduced to $500 during membership drives. The annual fee was $750. Membership entitles the member and his or her family to use the swimming pool, health club, tennis courts, and bar and restaurant. Members must pay for their meals. For more than twenty years the Country Club has awarded memberships to city officials and various other persons. The Country Club bylaws provide for such memberships. The bylaws provide for honorary memberships and complimentary memberships. There is only one honorary member of the Country Club, a founding member who was also at one time mayor of the City. The difference between what the Country Club calls a complimentary membership and an honorary membership is the difference in the duration of the membership. A complimentary membership is given on a year-to-year basis and ends when the person no longer holds the position which entitled him to have the free membership. Complimentary memberships run from year to year. Persons awarded complimentary memberships include the City Commissioners, Mayor, City Manager, Assistant City Managers, the City Clerk, City Attorney, Director of Public Works, Finance Director, City Architect, Fire and Police Chief, the University of Miami President, Football Coach, and Assistant Athletic Director, the Golf Pro at the City golf course, and the editor of the local social magazine. The complimentary memberships are reviewed each year and are not renewed after the recipient leaves his or her office. Hildreth has been a member of the Country Club since October 1, 1982, and was a member when he was elected to the City Commission in 1983. Subsequent to his election, Hildreth's membership was changed by the Country Club to a complimentary membership. Under the terms of the complimentary membership, Hildreth was not allowed to vote in Country Club elections or hold an office in the Country Club, but continued to retain all the other benefits he had been entitled to as a paying Country Club member. Hildreth understood that the complimentary memberships were a tradition in the City. Hildreth did not report the Country Club membership as a gift on his 1989 or 1990 financial disclosure statements. He was told by the City Attorney, Robert Zahner, that the membership was not a gift and was not required to be reported. Hildreth relied on that advice in deciding not to report the membership on his financial disclosure form. Hildreth used the Country Club for meetings of the Tenth Holer's Club, which is golf social club. In order to belong to the Tenth Holer's Club, a person must also belong to the Country Club. Hildreth also used the Country club eight times in ten years for dining purposes. He did not use the swimming pool, the workout room, the tennis courts, or the cardroom. Hildreth paid his own initiation fees. The County Court has dismissed criminal charges against Hildreth and two other members of the City Commission as well as City Attorney, Robert Zahner, concerning alleged violations of Section 2-11.1(e) of the Dade County Code. That section mirrors the provisions of Section 112.3148, Florida Statutes. Those cases are currently on appeal. The County Court refused to dismiss an identical charge against City Police Chief, Charles Skalaski.
Recommendation Based on 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 Robert Hildreth violated Section 112.313(4), Florida Statutes, for accepting a free membership in the Coral Gables Country Club and Section 112.3148, Florida Statutes for failing to disclose the free membership in 1989 and 1990 on his financial disclosure statement. I recommend a civil penalty of $750 and restitution of $750 for violation of Section 112.313(4), and a civil penalty of $1.00 for each of the failure to report violations, for a total penalty of $1502. The civil penalty is mitigated for the Section 112.313(4) violation because of the advice which Hildreth received from the City Attorney concerning a conflict of interest. The civil penalties for each of the disclosure violations is mitigated by Hildreth's seeking advice from the City Attorney on whether the membership had to be disclosed and relying on the City Attorney's advice that the membership was honorary and did not have to be disclosed. DONE AND ENTERED this 23rd day of May, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 23th day of May, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3908EC To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact: Advocate's Proposed Findings of Fact. Paragraphs 1 18: Accepted. Paragraph 19: The first sentence is rejected as unnecessary. The remainder of the paragraph is accepted in substance. Paragraph 20: The first sentence is accepted. The second sentence is accepted in substance. Paragraph 21: Accepted. Paragraph 22: The first sentence is accepted. The second sentence is accepted in substance. Paragraphs 23-26: Accepted. Paragraph 27: Accepted in substance. Paragraphs 28-33: Accepted. Paragraphs 34-35: Rejected as unnecessary. Paragraph 36: The first sentence is accepted. The remainder of the paragraph is accepted in substance. Paragraph 37: Rejected as unnecessary. Paragraphs 38-39: Accepted. Paragraph 40: The first sentence is accepted. The remainder of the paragraph is rejected as constituting argument. Paragraphs 41-42: Rejected as constituting argument. Respondent's Proposed Findings of Fact. Paragraphs 1-4: Accepted. Paragraphs 5: Rejected as subordinate to the facts actually found. Paragraph 6: Rejected as unnecessary. Paragraphs 7-8: Accepted. Paragraph 9: The first three sentences are accepted. The last sentence is rejected as unnecessary. Paragraph 10-13: Accepted. Paragraph 14: The first and third sentences are accepted in substance. The last sentence is rejected as constituting a conclusion of law. The remainder of the paragraph is rejected as not supported by the greater weight of the evidence. Paragraph 15: Accepted in substance. Paragraphs 16-17: Rejected as unnecessary. Paragraph 18: Accepted. Paragraph 19: The first two sentences are accepted. The last sentence is accepted in substance. Paragraphs 20-23: Accepted in substance. Paragraph 24: Accepted. COPIES FURNISHED: Raoul G. Cantero, Esquire Suite 1600 2601 South Bayshore Drive Miami, Florida 33133 Virlindia Doss, Esquire Department of Legal Affairs The Capitol, PL-01 Tallahassee, Florida 32399-1050 Bonnie Williams Executive Director Florida Commission On Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, Esquire General Counsel Ethics Commission 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahasee, Florida 32317-5709
Findings Of Fact At all times pertinent to the issues herein, Respondent Bisayne Menage Club, Inc., trading as Chantel Menage on the Bay, located at 2333 Brickell Avenue, Miami, Florida held 4-COP-SRX alcoholic Beverage license No 23-4231. The Respondent being a corporation, records of the Division of Business Regulation reflected that the sole corporate officer was Mitchell J. Segal who was president, secretary, and treasurer. On October 22, 1982, pursuant to an ongoing investigation, Officer Jonas Sears, in an undercover capacity, entered the Respondent's club where he met with Jose' Carballea (Coco), who he knew from some other narcotic transactions prior to this time which occurred off the licensed premises. At this time, Coco took Sears back into the kitchen area and, from a small metal key container which he had in his pocket, removed two small plastic bags containing a white powdery substance, one of which he sold to Sears for $80.00. The substance purchased by Sears then was subsequently identified as cocaine. From the access that Carballea had to all areas of the club, utilizing keys in his possesssion, and from the fact that he had advised Sears that his nephew owned the club, Sears concluded, and the evidence clearly establishes, that Core was, in some form or fashion, substantially high in the management of the operation. Sears, accompanied by Detective Ramirez, went back to the club on October 26, 1982 in the afternoon. As on the previous visit, the club was not open to the public at this time and the two officers met with Coco in the office area and then walked into the lounge. At this point Sears advised Coco he was there to buy another gram of cocaine. Coco took him to one of the offices off the kitchen where from a desk he removed a clear plastic bag containing a white powdery substance from the metal container he had used previously. He gave this bag to Sears in return for which Sears gave him $80.00. Before leaving, Sears was served a beer by Coco. The white powder substance purchased by Sears on this occasion was subsequently identified as cocaine. On November 9, Sears, again accompanied by Ramirez and another officer went to the club at 3:45 p.m. and met Coco in the kitchen. After a short discussion there, Coco took Sears into his office where he removed two plastic packages of white powder from the three that were in his metal key container. Sears gave Coco $160.00 for the two packets which were subsequently identified as containing cocaine. On this occasion, Coco indicated to Sears that consistent with the previous conversation they had had, he was interested in buying "Club" which was another name for Canadian Club whiskey. He took a piece of paper from a legal pad and wrote thereon the words, Canadian Club" and several other liquors including "J&B," "Amaretto," "Tia Maria," and "Red/Black" asking Sears if he could get the liquor the same day. This conversation transpired after Sears had asked Coco if his boss still wanted liquor. Coco had previously asked if Sears could get filet mignon. On November 18, 1982, in the afternoon, Sears, Ramirez, and a U.S. Customs agent, all in an undercover capacity, entered the club, When they arrived there, they were advised that Coco was not there. After a short wait, the officers left, returning approximately 40 minutes later. At this time, Sears came in by himself, meeting Coco in the lounge area. When Coco asked about the meat, Sears replied that none was available. However, he had the requested liquor in a friend s car parked outside. The liquor in question was liquor which had been purchased by the Miami Police Department for this operation and consisted of various liquors in case lots. It included some whiskeys that Coco had not mentioned. Coco negotiated with Ramirez in Spanish during which Ramirez allowed himself to be beaten down considerably in price from the original asking figure. Once the par ties struck the bargain the officers were instructed by Coco to carry and stack the cases in the rear office previously mentioned. This office was occupied by Letitia Thomas who was seated at a desk in the office. It was Ms. Thomas who took $245.00 from the pile of cash on her desk and paid Ramirez. Ms. Thomas was obviously an employee of the club. On the way out, Coco called Sears and Ramirez over and asked if Sears wanted to buy any more cocaine. When Sears said he did not have enough money with him, Ramirez offered to pay and Coco removed a small plastic bag containing a white powder from the small metal key container he carried and sold it to Sears for $80.00. This substance was subsequently identified as cocaine. When Sears and Ramirez went into the club again on December 3, 1982, to meet with Coco as per a prior arrangement, Coco again asked Sears if he wanted to buy cocaine. At this point, Sears said he wanted he grams. On this occasion, Coco sold Sears two packages of a substance subsequently identified as cocaine for $70.00 per package instead of the normal $80.00 per package. On December 8, 1982, Sears and Ramirez again went to the Respondent's club. They had previously discussed with Coco not only the sale of liquor and meat but also video recorders which the officers had clearly represented as being stolen. On this occasion, Coco said that his nephew wanted a recorder for his home and when this nephew, identified as Roberto Carbajal, arrived at the club, they discussed the video recorder with him. During this conversation, Carbajal indicated that he knew that the merchandise was stolen. After discussion back and forth, the parties arrived at a purchase price of $120.00 for the brand new unit. The officers were instructed by Carbajal to put the recorder in Coco's office and Carbajal paid Ramirez from his pocket. Carbajal, at this time, was a management employee of the license holder. On December 16, 1982, Sears and Ramirez went to the licensed premises as instructed by Coco. At that time, they had 56 cases of Dom Perignon champagne. Coco had told them to bring the champagne, which, he had indicated, was to be used by the club management. Their understanding with Coco was that he would buy the champagne upon delivery and would also sell them larger amounts of cocaine. When they arrived, Coco was not there and they dealt with other people in the club's employ. The man who approached them was identified as Mario Cordoves, who indicated that neither Coco nor Carbajal were there. Cordoves went off for a moment and returned a few moments later with an individual identified as John Radney who, he indicated, would be interested in buying the champagne. Radney agreed to take all 56 cases but stated that he could not take delivery at the club. He asked them to put some of it in his car. He also indicated that part of the 56 cases could be sold to someone else through his arrangement which was all right with Ramirez so long as the price remained the same. While this was going on, another individual, identified as George Kovacs, approached Ramirez and Sears, and negotiated to buy 18 of the cases of champagne for $100.00 per case. Kovacs left and came back with another individual who was to help him load the champagne into his car. All of this took place on the licensed premises attended by a bartender and two kitchen helpers in addition to Cordoves, Radney, Kovacs, and Kovacs assistant. When the deal was set, all the parties moved out into the parking lot and part of the champagne was placed into Kovacs vehicle. When this was done, Ramirez and Sears identified themselves as police officers and placed Kovacs under arrest. While this transaction was unfolding, Sears was told by Kovacs or someone at the club that the champagne would be sold in the club as part of a "Dom Perignon special" at $100.00 per bottle instead of the normal $200.00 per bottle they usually got. At the time of their arrest, Kovacs and Radney indicated they were up-front operators for the licensed club through an arrangement with Mr. Carbajal but were having difficulty with him. They indicated that Carbajal was the actual owner of the club while Mr. Segal was referred to as an attorney who was acting as registering agent for the corporation which he had set up. Neither Sears nor Ramirez ever saw Segal at the club on any of the visits they made there. Regardless of who was the beneficial owner of the stock in the corporation, Segal was listed as the sole officer and as such, was responsible for the operation.
Findings Of Fact 1. Petitioner is a corporation not for profit organized under Florida law in December of 1981, to "operate a supper club and lounge and to promote the culinary arts in Panama City, Florida, and the affording of facilities to members of the club for the enjoyment of same." Respondent's Exhibit No. 1. David McCurdy, John Diamond and Lorette Chance signed the articles of incorporation. The articles of incorporation specify that membership "shall consist of persons over the age of nineteen (19) years who shall be admitted on the majority vote of the directors of the corporation." Respondent's Exhibit No. The bylaws provide simply that "[n]ew members must be spons[o]red by a member in good standing . . . ." Respondent's Exhibit No. 2. For the first year of its existence, The Back Door Lounge and Supper Club, Inc. (the supper club) was operated solely for its members' enjoyment, on the premises of what had been the Chat 'N' Chew, a beer bar Mr. and Mrs. McCurdy had operated. Membership dues are $20.00 annually, and the supper club is open from six in the evening till six in the morning. Weekly there are covered dish suppers, and several members attested to learning about spices in connection with these suppers. Organization as a private club also discouraged "rowdyism . . . [like that to be found in some] other lounges within the P. C. area." Respondent's Exhibit No. 4 (Goss letter of 16 March 1984). In seeking to establish a private club, Mr. and Mrs. McCurdy have acted in good faith at all times and in keeping with their understanding of the legal advice they received. When Jerrold Hill, a sergeant with the Division of Alcoholic Beverages and Tobacco, was in the supper club in late 1983, he saw no difference between what was going on then and what he had earlier seen in the Chat 'N' Chew. In December of 1983, petitioner applied for the license at issue here. Eleven months earlier, there had been discussions with the local chapter of the American Cancer Society about donating money made on the suppers to the Society. On March 16, 1984, the day after one of respondent's investigators visited the supper club, petitioner gave the American Cancer Society a check for $500.00.
Recommendation It is, accordingly, RECOMMENDED: That respondent deny petitioner's application for licensure. DONE and ENTERED this 5th day of September, 1984, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 1984. COPIES FURNISHED: Sandra P. Stockwell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. David A. McCurdy Back Door Lounge & Supper Club 4130 West Highway 98 Panama City, Florida 32405 Gary Rutledge, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301 Howard M. Rasmussen, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco The Johns Building 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact The Petitioner, Florida Golfweek, Inc., was incorporated in March of 1975. During the year 1975 it began to publish "Florida Golfweek" which is a weekly publication concerning the golf industry in Florida. The Petitioner has published "Florida Golfweek" continuously since 1975, and it now has approximately 10,000 paid subscribers from every state and some foreign countries. Eighty-five to ninety percent of these subscribers are Florida residents. The Petitioner started a golf tournament called "Florida Women's Open" in 1978. This tournament was held at Errol Estate at Apopka in 1978, and in 1979, at Rolling Hills at Fort Lauderdale in 1980, at Plantation Inn in Crystal River in 1981 and 1982, and at Grenelefe Resort in Haines City in 1983. The Petitioner sets the dates for this tournament each year, and engages the golf courses. The event is publicized in its publication "Florida Golfweek," and in daily newspapers throughout the state, as well as on radio stations. Posters are printed and are circulated for display at golf courses. Entry blanks for the tournament are published in "Florida Golfweek" and these are sent to all Florida golf courses, about 60 of them. The entry blanks show the entry fee and where it should be mailed, normally to the Petitioner's address in Winter Haven, Florida. Both professionals and amateurs from the State of Florida play in this tournament, which has been established for Florida women golfers. A total of 260 played in the 1983 event. There has never been a fee charged for spectators, and the tournament has never been named anything but "Florida Women's Open." The Petitioner pays the prize money to the tournament winners, checks to the professionals and merchandise to the amateurs. It arranges for cocktail parties, and bears all of the expenses of the tournament including the golf course, carts, and green fees since 1978. The Petitioner makes a profit from this tournament, and as the field of players grows the profit potential will increase. There is a projection that a total of 400 golfers will participate in this tournament eventually. The Petitioner does not intend to abandon either the tournament or its name "Florida Women's Open." The Petitioner moves the tournament around Florida so as to return some business to golf courses and organizations which advertise in "Florida Golfweek," and also in deference to the participants, to get the event into their area. In March of 1983 the Petitioner learned that Plantation Inn at Crystal River intended to put on a similar tournament which had been named "Florida Women's Open," and that a corporation had been formed with the name Florida Women's Open, Inc. This tournament was put on by the Respondent at Plantation Inn at Crystal River in October of 1983. The Petitioner's president received a brochure about the Respondent's tournament, and he saw this brochure at a number of golf courses in Florida. He received telephone calls at the office of "Florida Golfweek" about the two opens, inquiring which is which. He also saw articles in the St. Petersburg Times publicizing the Respondent's tournament. These are the facts which have been found as a result of the Petitioner's proof. From the pleading presented by the Department of State's Division of Corporations, it is also found that the Respondent was issued Charter No. G11537 permitting the use of the corporate name Florida Women's Open, Inc., on December 3, 1982, and that on April 19, 1983, Mark Registration No. 929223 was issued to the Petitioner, Florida Golfweek, Inc., permitting the use of the trademark "Florida Women's Open" by the Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of State enter its Final Order finding that on the evidence presented the Respondent is entitled to use the corporate name Florida Women's Open, Inc., and that the Petition of Florida Golfweek, Inc., be denied. THIS RECOMMENDED ORDER entered on this 26th day of October, 1983, in Tallahassee, Florida. WILLIAM B. THOMAS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 1983. COPIES FURNISHED: Randall G. Blankenship, Esquire Post Office Box 917 Winter Haven, Florida 33882 W. T. Green, Esquire Route One, Box 403 Crystal River, Florida 32629 Carole J. Barice, Esquire General Counsel Department of State The Capitol Tallahassee, Florida 32301 George Firestone Secretary of State The Capitol Tallahassee, Florida 32301
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
