Findings Of Fact Charles J. Evans and Inez P. Hamer, t/a Nezzers, hold beverage license No. 52-00669 and held this license at all times relevant hereto. On July 13, 1983, Beverage Agents Brown and Rozar, following up on a complaint of gambling at Nezzers, visited Nezzers around 7:30 p.m. It was a quiet night in the bar. Upon entry they observed two men playing pool at Table A (Exhibit 2), which is the nearest to the bar of the four pool tables in the room. Table A is a time table and the players pay based on the time the table is used. The other three tables are coin tables which are activated for play by depositing $.50 in coins in the table for each game. Brown and Rozar each bought a beer and commenced playing pool on Table D (Exhibit 2). Some 15 to 30 minutes later two other men started playing pool at Table B (Exhibit 2). At this time, in addition to the six pool players, the only people in the bar were the bartender, Marjorie Hamer, and two or three other patrons. Brown and Rozar observed the men at Table B, later identified as Valencourt and Mosely, flip a coin to see who would break. Thereafter, the agents several times observed Valencourt and Mosely exchange money at the conclusion of a game. One would toss a bill on the pool table and the winner [presumably] would pick it up and put it in his pocket. Hayman and Foreman playing at Table A were overheard to say one or the other was "one down" or "two down" and were seen putting a bill on the end of the bar away from the cash register from where it was picked up by the other player. On several occasions the players were observed getting change from Marjorie Hamer. Table A is closer to the bar than to Table D. Accordingly, Marjorie Hamer, setting behind the bar, was in as good or better position to observe the exchange of money as were agents brown and Rozar. Marjorie Hamer, the 22-year- old daughter of Inez Hamer, has worked at establishments dispensing alcoholic beverages and is generally familiar with beverage laws prohibiting gambling at a licensed establishment. Two large signs are conspicuously posted in the room which say "NO GAMBLING." On July 13, 1983, neither of the owners was present during the time the agents were in Nezzers. Inez Hamer had worked until 6:00 p.m. when she was relieved by Marjorie. Marjorie had earlier told her mother that she did not feel well and would like not to come in on July 13, but Inez told her it would be a quiet night without much business and Marjorie came in. Marjorie Hamer concurred with the testimony of Brown and Rozar that there were three pool tables occupied and few other people were in the bar. Marjorie spent most of the evening reading the paper and testified she did not see any of the pool players give money to his opponent at the end of a game or overhear any conversation that would lead her to believe gambling was going on.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner is a Florida corporation that was at all times material to the instant case (but is no longer) in the coin-operated machine business. It owned various amusement and game machines that were placed at different locations pursuant to agreements with the location operators. Most of these agreements were not reduced to writing. In those instances where there was a written agreement, a "Location Lease Agreement" form was used, with insertions made where appropriate in the spaces provided. The form indicated, among other things, that Petitioner was "in the business of leasing, renting, servicing, maintaining and repairing of coin-operated machines" and that the agreement was "for the placement, servicing and maintaining of certain coin-operated machines" in the location specified in the agreement. In the coin-operated machine trade, the custom was for the parties to an oral or written agreement for the placement of an amusement or game machine on the property of another to treat such an agreement as involving the location operator's rental of the machine owner's tangible personal property rather than the machine owner's rental of the location operator's real property. Petitioner and the location operators with whom it contracted followed this custom of the trade in their dealings with one another. They construed their agreements as involving the rental of Petitioner's tangible personal property by the location operators and acted accordingly. Petitioner collected from the location operators the sales tax due on such rentals and remitted the monies collected to Respondent. 1/ It engaged in this practice for approximately a decade without challenge by Respondent. In late 1990 and early 1991, Respondent conducted an audit of Petitioner's records. The audit covered the period from January 1, 1988, to September 30, 1990 (referred to herein as the "audit period"). Among the records reviewed were those agreements between Petitioner and location operators that were reduced to writing. Based upon their reading of these agreements, the auditors were of the view that the agreements into which Petitioner had entered were actually for the rental of the location operators' real property, not the rental of Petitioner's machines. They therefore concluded that Petitioner, as opposed to the location operators, should have paid sales tax and that Petitioner's purchase of machines and parts should not have been treated as tax exempt. The assessment which is the subject of this proceeding thereafter issued.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Revenue enter a final order withdrawing the assessment that is the subject of the instant proceeding. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 23rd day of November, 1992. STUART M. LERNER 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 23rd day of November, 1992.
Findings Of Fact At all times material hereto, Respondent, Giraldo Gonzalez, d/b/a LaGoma Restaurant, held alcoholic beverage license number 23-03475, series 2- COP, for the premises known as LaGoma Restaurant, 9550 N.W. South River Drive, Miami, Dade County, Florida. On May 30, 1986, Petitioner, Division of Alcoholic Beverages and Tobacco (DABT), following a complaint from another agency, began a narcotics investigation at the licensed premises. On that date, DABT Investigators Carlos Baixauli and Hector Garcia, operating under cover, entered the licensed premises and seated themselves at the bar. During the course of their visit they observed the on-duty bartender, Annie, deliver money to a male patron and receive from him a matchbook containing a small plastic packet of white powder. Annie subsequently delivered the matchbook to an unidentified male who was standing outside the front door of the premises. On June 3, 1986, Investigators Baixauli and Garcia returned to the licensed premises and again seated themselves at the bar. Investigator Garcia asked the on-duty bartender, Mindy, if she could get him some "perico" (Spanish slang for cocaine) Mindy subsequently approached Investigator Garcia and, sitting on his lap, pressed a small plastic bag of cocaine into his hand. Garcia paid Mindy $50.00 for the substance. 1/ On June 4, 1986, Investigators Baixauli and Garcia returned to the licensed premises. As they seated themselves at the bar, Investigator Garcia observed two patrons playing the video poker machine and shortly thereafter saw Respondent open the machine, erase the accumulated points, and pay the patrons and unknown quantity of money from the cash register. Later, while seated at the bar, Investigator Garcia engaged the on-duty bartender, Mindy, in conversation. Mindy placed a napkin on the bar in front of Garcia, poured cocaine onto it from a plastic package she had removed from her pocket, and invited Garcia to try some "perico". At that time there were a number of patrons, including a family with small children, seated proximate to Garcia. The investigators went to the bathroom and secured the cocaine in an evidence bag. Upon their return from the bathroom, the investigators heard screaming and arguing near the bar. They observed a male patron approach another male patron, who was carrying a gym bag which he claimed contained a shotgun, and demand that he put the gun away or use it. Respondent attempted to quell the disturbance; however, the patron with the bag swung it against the other patron's head, causing a severe cut and profuse bleeding. As the two patrons wrestled to the floor among broken bottles and glass, Respondent picked up the gym bag and hid it in the kitchen. After the fight broke up, Respondent's employees immediately cleaned up the premises. When the police arrived to investigate the disturbance they found no evidence of the mayhem that had occurred, and were assured by Respondent that only a miner altercation had taken place. Contrary to Respondent's assurances, a real donnybrook had occurred, and the patron struck with the gym bag had suffered severe injuries and was, at that moment, in the hospital. After the police left, another on-duty bartender, Debra (Mindy's sister), approached the investigators while they were seated at the bar and, laughing, began talking about the fight. During the course of their conversation, Debra removed a straw from her shoe and a five dollar bill from her blouse. She unfolded the bill on the bar, revealing a white powdered substance, and snorted a portion of the substance through the straw. Several patrons, together with bartender Mindy, were present at this time. Later that evening, Mindy handed Investigator Garcia a small plastic bag of cocaine, telling him to go try some. The investigators went into the bathroom where they transferred a portion of the cocaine into a plastic bag for evidence and returned the remainder to Mindy." 2/ On June 6, 1986, Investigators Baixauli and Garcia returned to the premises, and assumed their usual seats at the bar. A patron seated next to Investigator Garcia introduced himself as Eduardo and asked Garcia if he wanted to buy some good perico. When Garcia agreed, Eduardo stood, removed a small plastic bag of cocaine from his pocket, laid it on the bar, and received $45.00 from Garcia. Several patrons, together with the on-duty bartender, Maritza, observed the transaction. Later, Investigator Baixauli asked on-duty bartender Debra if she could get him some cocaine. When Debra agreed, Baixauli gave her $50.00 and she walked over to three male patrons. Upon her return, Debra placed a plastic package of cocaine on the bar in front of the investigator. Several patrons smiled at Baixauli after observing the transaction. Following this sale, off- duty waitress Jenny approached Investigator Baixauli and told him she was sure he would like the perico since she was the supplier. Subsequently, Jenny joined a male patron seated down the bar, and the two snorted a white powder off the bar in the presence of numerous patrons. On June 9, 1986, Investigators Baixauli and Garcia returned to the licensed premises. The investigators began speaking with patron Eduardo, regarding the purchase of more cocaine. The investigators left the bar for a short time with Eduardo, but returned before him. When Eduardo entered the premises, he was carrying a large plastic bag containing approximately one ounce of marijuana. Eduardo placed the bag on the bar in front of the investigators, and told them the marijuana was on the house. On-duty bartenders Esperanza and Candy, together with Respondent, were proximate to this transaction. On June 10, 1986, the investigators returned to the premises. During the course of their visit, Investigator Baixauli observed a male patron playing the video poker machine who suddenly exclaimed "I won". Respondent told the patron to "leave it on 600 and I'll pay you". Respondent then paid the patron $150.00 from the cash register. The investigators again returned to the premises on June 12, 1986. As Investigator Garcia spoke with off-duty waitress Jenny, she removed a small change purse from her boot, which she opened to reveal several small packages of white powder. Jenny told Garcia she would sell him some for $50.00, as opposed to $60.00, if he would agree to let on-duty bartender Maritza have some. When Garcia agreed, Jenny and Haritza went to the restroom. Jenny subsequently returned and handed the packet of cocaine to Investigator Garcia. Later, a patron identified as Roger sat next to Investigator Garcia and Jenny, and purchased a packet of cocaine from her. Roger subsequently handed Jenny the packet and told her to let her friends try some. Investigator Garcia went to the restroom, secured a sample of the cocaine for evidence, and returned the remainder to Jenny. On June 16, 1986, the investigators returned to the premises and took their usual seats at the bar; on duty were bartenders Mindy and Debra. Investigator Baixauli observed Respondent standing at the video poker machine watching a patron play. When the patron had achieved a score of 400 points, he told Respondent to "credit me 50 on the machine and give me the rest". Respondent credited the machine 50 points, and paid the patron an unknown amount of money from the cash register. Meanwhile, Eduardo seated himself next to Investigator Garcia and asked if he wanted to buy some good cocaine. Garcia told Eduardo that he was a little short of cash, however, since Mindy volunteered to go halves, Garcia agreed. Garcia gave Mindy $25.00, she borrowed $10.00 from Debra, and gave Eduardo a total of $50.00 in exchange for a plastic packet of cocaine. Mindy held the packet up for Debra to see, whereupon they went to the restroom. Upon their return, Mindy placed the packet of cocaine on the bar in front of Garcia. On June 18, 1986, the investigators returned to the premises, and took their usual seats at the bar. While Garcia was seated next to, and speaking with, off-duty waitress Jenny, Jenny summoned Respondent. While Respondent was present, Garcia asked Jenny if she had a small amount of perico he could have since he was short of cash. At that point, Respondent moved about 3-4 feet away to speak with a patron. Jenny removed a plastic packet of cocaine from her pocket and placed it on the bar. As Garcia reached to pick up the packet, he observed Respondent looking in his direction. As Garcia continued to speak with Jenny, a male patron approached her and asked if she had his "stuff". Jenny handed the man a plastic packet containing a white powder and he paid her an unknown quantity of money. Investigator Garcia subsequently observed the patron snort a portion of the white powder through a rolled up dollar bill while standing in the pool room area. A number of patrons were playing pool or standing in the area during his activity. The investigators returned to the premises on June 20, 1986, and observed Respondent pay off on the video poker machine. Later in the evening, while Respondent was speaking to Sixto Gonzalez, Sixto called Mindy over and handed her a marijuana cigarette. Mindy and her sister Debra went to the service door and smoked the marijuana. On June 23, 1986, the investigators returned to the premises. After assuming their usual seats, Investigator Baixauli asked on-duty bartender Debra if she had any cocaine for sale. Debra replied that she did not, but that she could get some from another on-duty bartender, Esperanza. Baixauli gave Debra $50.00, and she secured a plastic packet of cocaine from Esperanza and delivered it to Baixauli. Several patrons, who were speaking with Esperanza at the time, observed the transaction. On June 27, 1986, the investigators returned to the premises for the last time. Seated in their usual seats, Investigator Baixauli counted out $50.00 in front of on-duty bartender Mindy. Mindy immediately picked up the money and, walking away, announced "it's perico time". Baixauli observed Mindy approach a male known as Flaco and then go the restroom. When she returned to Baixauli, she handed him a plastic packet of cocaine. Baixauli held the packet up in the presence of other patrons, and while Respondent was standing behind the bar. All of the events summarized in the preceding paragraphs took place at the licensed premises during normal business hours and at times when Respondent was present. At no time did Respondent or his employees express any concern about any of the drug transactions. In fact, all of the employees who worked in the bar portion of the licensed premises knew that marijuana and cocaine were being used and sold on the licensed premises, on a regular, frequent, and flagrant basis. Neither Respondent, nor any of his employees, took any action to prevent, discourage, or terminate the sale or use of controlled substances.
Findings Of Fact As a result of an application submitted August 11, 1986, the 2-COP license at Hollywoods Bar in St. Petersburg, Florida, was transferred from Norbert Prevost to Josephine Sauvageot (Exhibit 5). On April 17, 1987, DABT agents Ray and McQueen visited Hollywoods Bar to check the bar's records. Upon entering the bar, McQueen identified himself to Respondent and asked to look at the records. She produced only a diary. Shortly thereafter, Respondent's husband, John Sauvageot, came over to answer questions Respondent was unable to answer. Mr. Sauvageot produced additional records which the agents proposed to seize and so advised the Sauvageots. Mr. Sauvageot became loud and belligerent and appeared to be playing to the customers in the bar. He told the agents he wouldn't release the records and grabbed the records he had handed to McQueen and returned them to a locker in another room. Respondent testified that she told her husband to surrender the records to the agents, but if she did, she evidently did not have the authority to have this order carried out. An owner would be expected to have such authority. These agents returned to Hollywoods Bar on October 7, 1987, for a routine inspection. Upon entering, they went to the bar and asked the bartender who the owner was, and she pointed out John Sauvageot. The barmaid was also hired and trained by John Sauvageot. When approached by the agents and told the nature of the visit, John Sauvageot told the agents his wife Josephine Sauvageot was the owner. Inspection of records revealed a bank checking account was not used with bills being paid in cash or money order. When a list of employees was requested, one was not produced. Subsequently, Respondent, through her attorney, produced a list containing the names of eight people, four of whom were not shown to have a surname (Exhibit 7). Respondent contends that she has limited education, completing only through the fifth grade, and does not read and write well. Her husband does most of the record-keeping of the bar, helped her fill out the application for the 2-COP license, and his brother, Brett Sauvageot, loaned $6000 to start the business. Respondent testified that employees were paid in cash on a daily basis. It appears that social security taxes and workmens' compensation were not paid. At least no evidence was submitted to show that such funds were withheld and forwarded to the proper authorities to comply with applicable statutes. On an application for a loan from Sun Bank of Tampa Bay in the amount of $2000, John Sauvageot listed as income $1000 a month from Hollywoods Bar in the position of Manager (Exhibit 2). Electrical service, TV cable, telephone and sewer and water service for Hollywoods Bar was in the name of John Sauvageot at all times relevant hereto. Ads placed in the St. Petersburg Times soliciting a concessionaire to operate a food service at Hollywoods Bar were placed by John Sauvageot, and the ad directed inquiry to be directed to "John". John Sauvageot was convicted of grand larceny, a felony, in West Virginia in 1977 (Exhibit 11) and was sentenced to imprisonment from 1 to 10 years.
The Issue The Administrative Complaint, as amended, in this case alleges that Respondent engaged in or permitted gambling activity on the licensed premises in violation of Sections 849.14 and 561.29(1)(a), Florida Statutes. The issue for resolution is whether that violation occurred and, if so, what discipline is appropriate.
Findings Of Fact Petitioner is the agency responsible for issuing licenses permitting the sale of alcoholic beverages in Florida and is responsible for enforcing the beverage laws, Chapters 561-568, Florida Statutes. Respondent is a Florida corporation holding alcoholic beverage license number 15-00185, series 4COP, which authorizes it to sell alcoholic beverages at retail at the licensed premises, Bottoms Up Bar, located at 8400 US-1, South, Micco, in Brevard County, Florida. Lynette Tummolo is the president of Bottoms Up Bar, Inc. Ms. Tummolo's first bar was a restaurant and liquor bar in Palm Bay, Florida: Duke's Place. She and Robert Bench owned the bar as 50/50 partners. Duke's Place was moved to a new location after a hurricane and in August 1996, Ms. Tummolo and Mr. Bench sold their license to David Oliver. In March 1997, Ms. Tummolo started another business, a beer and wine bar, which opened in Micco, Florida. The Articles of Incorporation dated February 19, 1997, and filed with the Secretary of State for Bottoms Up Bar, Inc., list the incorporator as Lynette Tummolo, and the members of the board of directors as Lynette Tummolo and Robert Bench. The most recent annual report, dated March 23, 1998, and filed with the Secretary of State, reflects that Lynette Tummolo and Robert Bench are both directors of the corporation. In June 1997, after David Oliver defaulted on his payments for the license, Lynette Tummolo purchased back the liquor license and had it transferred to Bottoms Up Bar, Inc. Ms. Tummolo applied to the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (DABT) and had approved, a transfer of the liquor license and change of location to Bottoms Up Bar in Micco. The application submitted by Ms. Tummolo lists herself as president and 60% stockholder, Robert Bench as secretary and 40% stockholder, herself as treasurer, and Robert Bench as director. A personal questionnaire form for Robert Bench is attached to Ms. Tummolo's application. This form states that Mr. Bench is the director/manager of Bottoms Up Bar and that he was investing no funds in the business. At the hearing in this proceeding, Ms. Tummolo stated that Robert Bench was not an owner or officer of the corporation Bottoms Up Bar, Inc., but the only reason she put him on the application form was that a staff person from DABT told her that she had to put officers of the corporation and had to show a percentage of stock. Ms. Tummolo's testimony is inconsistent with her sworn affidavit at the end of the form. The testimony is also inconsistent with any established policy of DABT. Ann (Annie) Raftery works as manager of Captain Hiram's, a restaurant and lounge in Sebastian, Florida, near Micco. She regularly patronizes Bottoms Up Bar and is a friend of Robert Bench. She also sometimes helps clean up at Bottoms Up Bar after closing. In January 1998, Ms. Raftery decided on her own to start a football pool for the Super Bowl. She drew the grid and collected $20 for each square on the grid representing a wager. Individuals placing a wager wrote their names or some identification on the square they selected. Ms. Raftery carried the grid sheet around with her on a plastic clip-board. On the Friday night before Super Bowl Sunday 1998, Annie Raftery arrived at Bottoms Up Bar around 10:30 p.m. She handed the football pool sheet on the plastic clip-board, for safekeeping, to Robert Bench, who was working as bartender. He stashed it behind the bar for her. On that same Friday, January 23, 1998, in response to a complaint, Sergeant Sam Brewer (at that time, a DABT special agent) commenced an undercover investigation of Bottoms Up Bar. Late that evening he and other agents entered the bar, mingled with the crowd, played darts, and socialized. At one point, Special Agent Brewer asked an individual whether she knew of any pools for the upcoming Super Bowl football game. She responded that he would have to talk to "the boss" and pointed out Robert Bench behind the bar. Agent Brewer then sat at the bar and started talking to Mr. Bench. During the course of the conversation, Mr. Bench reached next to the cash register behind the bar and handed a plastic clip-board with the football pool sheet to a female patron sitting at the bar. This individual looked at it and handed it to another woman, later identified as Annie Raftery. Annie Raftery then gave the clip-board to Lynette Tummolo. Agent Brewer asked Robert Bench about the pool and Bench replied that it belonged to Captain Hiram's. Mr. Bench then got Ms. Raftery and directed her to Agent Brewer. Agent Brewer conversed with Ms. Raftery about the pool. She had the clip-board again and explained how to place a wager. Agent Brewer selected a square and put the name, Steve B., on the grid and paid Ms. Raftery $20. She told him she would be at Captain Hiram's or Bottoms Up Bar on Sunday, and he left, as it was closing time. Agent Brewer returned on Sunday, around half-time of the Super Bowl. He approached Mr. Bench at the bar and asked where he could see the football pool sheet to check his numbers. Mr. Bench replied that they had copies, but Ms. Raftery had the original and pointed her out at the end of the bar. Ms. Raftery showed Agent Brewer the pool sheet and he confirmed that it was the one he had marked earlier. He then made a covert telephone call to the other agents waiting outside. They, and assisting officers of the sheriff's office, arrested Mr. Bench and Ms. Raftery. They retrieved $1,200 from Ms. Raftery's car and $440 from her home. The remainder of the $2,000 she collected had already been paid out for the first quarter of the game. Ms. Tummolo is at Bottoms Up Bar every night, seven nights a week. She remembers Friday, January 23, 1998, was particularly busy. At the hearing she described a plastic clip- board kept at the bar with a sheet on which the bartenders must record the liquor they remove from the back stockroom. Ms. Tummolo insists that if she had been seen with a clip-board, it would have been the liquor record and not a football pool. Agent Brewer saw Ms. Tummolo with the football pool, however, the night he placed his wager. Bottoms Up Bar does not participate in the Responsible Vendors Program. Ms. Tummolo meets regularly with her bartenders and, at least since the Super Bowl Sunday event, she reminds them that gambling in any form is not tolerated.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the agency enter its Final Order finding Respondent guilty of violating Sections 561.29(1)(a), Florida Statutes, and 849.14, Florida Statutes, and assessing a penalty of $250.00. DONE AND ENTERED this 19th day of November, 1998, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 1998. COPIES FURNISHED: Thomas D. Winokur, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Joe Teague Caruso, Esquire 800 East Merritt Boulevard Merritt Island, Florida 32954-1271 Richard Boyd, Director Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, post- hearing memoranda and briefs, and the entire record compiled herein, thereby make the following relevant factual findings. At all times material to the allegations and charges in this proceeding, Respondent, Riviera Resort Hotel Associates, Ltd., was the holder of a valid alcoholic beverage license No. 16-615-S, Series 4-COP, located at 2080 South Ocean Drive, Hallandale, Broward County, Florida. On May 8, 1984, at about 9:30 p.m., Officer D'Ambrosia entered the licensed premises in an undercover capacity with a confidential source (CI). Based on a telephone complaint, Officer D'Ambrosia was requested by his supervisors to conduct an investigation to determine if the complaint was meritorious. The main lounge in the licensed premises has a front and back entrance. The front entrance is through the main lobby and the back door leads to a parking lot. Upon entering the premises, Officer D'Ambrosia and CI approached the main bar. Sergeant Pat Roberts was at the main bar area as a backup officer. There were approximately four other patrons at the bar. Officer D'Ambrosia and CI made contact with the on-duty bartender, Tommy Brownyard. After Brownyard served them drinks and the three of them engaged in general conversation, CI asked Brownyard if he had the "stuff" and if the price of $80.00 was still the same. Brownyard affirmed, stating that it would be in three bags, a one-gram and two half gram bags. CI then turned to Officer D'Ambrosia and stated the price of two grams would be $160.00. Officer D'Ambrosia counted out eight $20.00 bills and laid them on top of the bar counter. Brownyard left the bar area and entered the men's bathroom. After two or three minutes, Brownyard left the restroom, walked back to the bar and approached Officer D'Ambrosia and CI. Brownyard placed what looked like a pack of Marlboro cigarettes on top of the counter. Officer D'Ambrosia spread out the eight $20.00 bills on top of the counter in a manner that Brownyard could see it and Brownyard picked up the money while facing Officer D'Ambrosia and counted it behind the bar. Brownyard placed the currency in his pants pocket. Officer D'Ambrosia picked up the Marlboro box, opened it, and pulled out three clear plastic zip-lock-bags containing a white powdery substance. After looking at the bags, Officer D'Ambrosia placed them back into the box and placed a box in his shirt pocket. Sergeant pat Roberts observed the transaction. The three plastic bags which Officer D'Ambrosia purchased from Brownyard contained cocaine, a controlled substance under Chapter 893, Florida Statutes. As stated, the lounge only had, at most, four patrons besides Officer D'Ambrosia, CI and Roberts. The conversation with Brownyard about drugs occurred in a normal tone of voice. Officer D'Ambrosia did not attempt to conceal the purchase of drugs at the bar. Before Officer D'Ambrosia and CI left the bar, they spoke to Brownyard about the best time to buy more cocaine. Brownyard stated that Thursday (May 10, 1984) would be good but that Officer D'Ambrosia or CI should first call. Brownyard said that if Officer D'Ambrosia or CI wanted one gram of coke, to call and say "Is the one girl in there tonight?" and if Officer D'Ambrosia or the CI wanted two grams of cocaine, to call and ask "If the two girls are tonight." Brownyard would respond yes or no to the questions. After Officer D'Ambrosia and CI left, Sergeant Roberts had a conversation with Brownyard. Brownyard told Sergeant Roberts that he worked "directly for the owners" and that he "ran the placed" apparently referring to the lounge. On May 10, 1984, at about 9:20 p.m., Officer D'Ambrosia and CI went to the licensed premises and took seats at the bar. Officer Olive had arrived about 15 minutes earlier to be the backup officer. Officer Oliva was seated at the bar across from Officer D'Ambrosia and CI with a clear view of both D'Ambrosia and CI. There were at most five unidentified patrons at the bar on that evening. Brownyard was attending the bar. Officer D'Ambrosia and CI greeted at bar and, after approximately ten minutes, Brownyard approached Office D'Ambrosia and CI and stated "Those two girls are here if you are interested." Officer D'Ambrosia affirmed and Brownyard told Officer D'Ambrosia and CI that the cocaine would be in 2 one-gram bags. Brownyard then left the bar and walked to the area of the men's restroom. After approximately one minute, Brownyard left the area of the restroom and walked back to the bar. Brownyard approached Officer D'Ambrosia and CI. Brownyard placed a matchbox on the top of the bar and looked at Officer D'Ambrosia. Officer D'Ambrosia placed $160.00 on the bar counter and picked up the matchbox. Brownyard picked up the money and, after counting it, placed it in his pocket. Officer D'Ambrosia opened the matchbox and noticed two clear plastic zip-lock bags containing a white powdery substance. Office Olive observed the transaction. The two plastic bags bought and received from Brownyard contained cocaine. The conversation with Brownyard about drugs occurred in a normal tone of voice and Officer D'Ambrosia made no effort to conceal the sale on the premises. On May 14, 1984, at approximately 9:15 p.m. Officer D'Ambrosia entered the Riviera Resort Motel. Officer D'Ambrosia walked to the bar and sat down. Officer Wheeler had arrived before Officer D'Ambrosia as the backup officer. Officer D'Ambrosia entered into a conversation with the on-duty bartender named Janette about Brownyard. Janette stated that Brownyard had been fired. Janette told Officer D'Ambrosia that Brownyard had been fired by Chi Che, the bar manager (Arturo Muniz). At approximately 9:45 p.m., a patron later identified as Benee Scola entered the bar. Approximately 15 minutes later, Janette received a phone call from Brownyard. Janette advised Brownyard that Officer D'Ambrosia was at the bar looking for him. Brownyard told Janette that he would be at the bar in approximately 45 minutes. Janette relayed this information to Officer D'Ambrosia and at approximately 10:45 p.m., Brownyard entered the bar and sat down. D'Ambrosia and Janette approached and greeted Brownyard. Office D'Ambrosia asked Brownyard if "The two girls were around." Brownyard affirmed and stated that the price would be $80.00 per gram. Janette was in a position to hear this conversation. Officer Wheeler moved to a different part of the bar to get a better view of D'Ambrosia, Brownyard and Janette and to talk to Benne Scola. Brownyard asked D'Ambrosia if he was still interested in the "two girls" and Officer D'Ambrosia affirmed. Brownyard then obtained two matchboxes from Janette, who asked him (Brownyard) if one of the matchboxes was for her. Brownyard said yes. Brownyard left the bar and walked toward the men's restroom. Approximately two minutes, Brownyard returned and sat next to D'Ambrosia, placing a matchbox on top of the bar counter. The two clear plastic zip-lock bags containing cocaine were inside the matchbook cover. Officer D'Ambrosia pulled some currency from his pocket, counted out eight $20.00 bills and handed Brownyard the money below the bar counter. Officer D'Ambrosia picked up the matchbook, examined the contents, and placed it in his shirt pocket. Officer Wheeler did not see the exchange of money but observed the remaining portion of the transaction. On that evening, Chi Che entered the premises and set down two bar stools from Brownyard. Brownyard told D'Ambrosia that he had an argument with Chi Che about the liquor to carry at the bar and about accepting bad traveler's checks. After five or ten minutes, Chi Che left the bar. Janette asked Brownyard to watch the bar while she used the restroom. Brownyard agreed. Brownyard left the bar area after Janette returned from the restroom. D'Ambrosia states that Scola asked him (D'Ambrosia) if he knew where she could get some "blow." D'Ambrosia stated that she would have to talk to Brownyard. Brownyard returned to the bar and Scola approached him and asked about the going rate for blow. Brownyard stated $80.00 for a gram and $40.00 for a half gram. Brownyard said that he could handle a half gram right now. Scola agreed and handed Brownyard some currency. Brownyard took the currency, left the bar, existed the premises and returned approximately five minutes later. Brownyard handed Scola a small plastic baggie. Officer D'Ambrosia left the bar at approximately 7:30 and Officer Wheeler left approximately 15 minutes later. The conversations between Brownyard, Janette and Officers D'Ambrosia, Wheeler and Scola concerning the purchase of drugs occurred in normal tones of voice. Officer D'Ambrosia made no attempt to conceal the transaction. On May 18, 1984, at approximately 11:30 p.m., Officer D'Ambrosia entered the licensed premises in an undercover capacity. Janette was tending the bar. Officer Phillips was seated at the bar as the backup officer. Brownyard and Scola were also at the bar. Officer D'Ambrosia sat down and Brownyard approached him. D'Ambrosia asked Brownyard if he had any "stuff" with him tonight. Brownyard said "sure." D'Ambrosia asked if it was still the same price and Brownyard said "yes." D'Ambrosia said "OK." Brownyard left the bar and walked away from D'Ambrosia's view. About three minutes later Brownyard returned and placed a matchbox on the bar counter in front of D'Ambrosia. Officer D'Ambrosia pulled out four twenty dollar bills from his pocket and paid Brownyard. D'Ambrosia opened the match box up, lifted out a clear plastic zip lock bag containing suspected cocaine. Janette was in a position to see this transaction. Officer Phillips also observed this transaction. While tending bar, Janette spoke to Scola, "You want to go halves with me?" Scola stated that she would think about it since she had previously arranged a one half gram buy with Brownyard before officers D'Ambrosia and Phillips entered the bar. Janette later remarked that her boyfriend was later coming in with some medicine. Officer Phillips heard Scola and Janette discussing a cocaine deal. Janette told Scola it would be $35. Janette walked over to her boyfriend, Jeff Acosta, who gave her a small packet of aluminum foil. Janette gave the foil to Sonia and reminded her it was $35. Scola gave Janette two U.S. currency bills and told her to keep the rest as a tip. Janette gave Jeff the requested amount of the money. Scola later walked to the women's restroom. Officer Phillips later entered the women's restroom and observed Scola standing next to a toilet tank cover with an open packet of aluminum foil containing the suspected cocaine. Scola asked Officer Phillips to do a "line" with her, but Officer Phillips declined. Conversations at the bar area concerning the use of drugs occurred in a normal tone of voice. On May 25, 1984, at about 9:20 p.m., Officer Jenkins entered the licensed premises as a back up officer to Officer D'Ambrosia. At that time there were approximately six patrons in the bar area. Officer D'Ambrosia entered the premises approximately 9:25 and spoke to Janette about cocaine. Janette was told by Officer D'Ambrosia that the cocaine he bought from Brownyard was "poor quality" whereupon Janette allegedly admitted she was now dealing through her boyfriend Jeff. D'Ambrosia asked Janette if she would talk to Jeff about getting him some coke and she complied stating she would talk to him at about 10:10 p.m. when he (Jeff) entered the bar. D'Ambrosia approached and asked Jeff if he could get him an ounce and Jeff replied that he could. Later that night, D'Ambrosia and Jeff made a deal for one gram of coke that would be a sample for a future one ounce deal. According to D'Ambrosia, the purchase of one gram would take place on the next night, May 26, 1984. During that evening, Chi Che Muniz, the restaurant and lounge manager, entered the bar area. Officer D'Ambrosia approached Chi Che and told him that maybe Chi Che could pick up a woman if he did a couple of lines of coke. Chi Che refused. On May 26, 1984, at approximately 8:45 p.m., Officers D'Ambrosia and Jenkins entered the licensed premises. Shortly thereafter, Officer Aliva and Sergeant Roberts entered the bar. D'Ambrosia greeted Janette and had a general conversation with her. Janette asked D'Ambrosia if he had scored any cocaine and he reply "no." Janette stated that she would try and contact Jeff by phone because he had beeper. Janette made a short phone call from the bar and later told D'Ambrosia that she had left a message that he (D'Ambrosia) was at the bar. At approximately 9:30 p.m., a person later identified as Bill Hawkins entered the licensed premises. Bill approached Janette and told her that he was trying to locate some cocaine for her. Janette stated that she would buy a half from Bill for $35.00. Bill left the bar area and walked to the men's restroom. Officer Oliva went to the men's restroom. As Officer Oliva entered the restroom, he observed Bill changing clothes putting on a security uniform, complete with badge and night stick. Bill left the restroom and returned to the area. Bill told Officer D'Ambrosia that he worked part time as a security guard for Respondent on an as needed basis. At that time there were approximately 15 people in the lounge area. Bill Hawkins told Janette that the cocaine would be on the premises but that he would have to leave for a while to pick it up. Bill left for approximately 30 minutes and returned to the bar area. When he returned, he engaged in conversation with Bob Skirde. Janette later handed D'Ambrosia a small clear plastic zip-lock bag and asked D'Ambrosia to give it to Bill and tell him it was from me. D'Ambrosia complied with Janette's request. D'Ambrosia asked Bill if he had an extra half gram and Bill replied no that he could give D'Ambrosia "a nose full." Bill Hawkins then walked to the men's restroom where he found Officer Oliva who had previously arranged to buy a half gram of cocaine from Bill for $35. Bill asked Officer Olive to hold the door leading into the men's restroom while he did a line of coke. Officer D'Ambrosia observed Bob Skirde walk to the men's restroom and attempt to enter. Skirde was unable to enter the restroom inasmuch as Officer Olive was holding the door shut. Bill later approached Janette and asked her to get something to put it in. "Get me something." Janette handed Bill a napkin. Bill placed an object in the napkin, wrapped it up and gave it to Janette. Janette took the napkin and placed it in her purse. Janette later left the bar area and went to the restroom with what appeared to be the napkin she had received from Bill. Chi Che watched the bar while Janette was away. Officer D'Ambrosia states that he asked Janette "how was it?" and she replied "OK, but not as good as Jeff's." Later, Bill asked Officer D'Ambrosia to go to the men's restroom with him. Inside the restroom, Bill pulled out a clear plastic zip-lock bag containing suspected cocaine. Bill asked D'Ambrosia to do a couple of lines with him and he (D'Ambrosia) refused. D'Ambrosia asked Bill if he could purchase a half gram from him and Bill stated yes he would look into it. On June 1, 1984, at approximately 11:30 p.m., Officers D'Ambrosia and Jenkins separately entered the bar area. Officer Olive and Sergeant Roberts were there as back-up officers. D'Ambrosia talked to Jeff in Janette's presence about setting up a deal for an ounce of cocaine. Bill entered the premises and walked directly to Officer Jenkins. Bill and Officer Jenkins discussed cocaine and set up a deal for one gram to occur the next night at 7:00 p.m. On June 2, 1984, at approximately 7:10 p.m., Officer Jenkins entered the Riviera Resort Motel. Officer Jenkins asked an employee at the front desk if the bar was closed. The employee stated that it would be opened soon and suggest that she go to the patio bar. Sergeant Roberts was at the patio bar. Bill Hawkins called Officer Jenkins and they both walked to the patio bar. Janette was sitting on the patrons' side of the bar. At approximately 7:30 p.m., Janette left the patio bar to open the inside bar. Bill asked Beth, the patio bar attendant for a straw. Beth gave Bill a straw and stated that she knew Bill was not going to use it for his beer. Bill cut the straw to a length of approximately two inches and stated to Officer Jenkins "Let's go take care of business." Officer Jenkins and Bill walked to the inside bar. Janette was tending the bar and approximately two patrons were there. Officer Jenkins paid Bill $80 with money from her purse. Officer Jenkins extended the money to Bill over the bar counter and asked how the cocaine was packaged. Bill said "in a small plastic bag" and thereupon reached in his back pocket and pulled out his wallet. Bill laid the wallet on the bar counter and pulled back a flap which exposed a small clear plastic zip-lock bag containing suspected cocaine. Later analysis revealed the substance was in fact cocaine. This transaction was observed by Officer Roberts. Janette later came over to Bill and asked "if he wanted to work as a bell boy tonight because the front desk had called her." Bill was offered fond and drink for his services of helping with the luggage of the guests at the hotel. On June 4, 1984, Officer D'Ambrosia entered the Riviera Resort Motel and talked to Janette, the on-duty bartender. D'Ambrosia asked why Jeff was not at the bar. Janette replied that she would call Jeff about 10:30 or 11 p.m. and tell him that Officer D'Ambrosia was there at the bar. According to D'Ambrosia, Janette acknowledged that Jeff was to sell him (D'Ambrosia) a gram of cocaine. Officer D'Ambrosia left the bar and returned at approximately 10:45 p.m. D'Ambrosia and Jeff talked about setting up a deal for an ounce. On June 5, 1984, at about 8:10 p.m., D'Ambrosia telephoned Jeff at the Riviera Resort Motel to reschedule the drug deal to January 8, 1984 at 11:00 p.m. On June 8, 1984, at approximately 8:45 p.m., Officer D'Ambrosia arrested Tommy Brownyard outside the Rodeo Lounge. A search of Brownyard's person produced a quantity of cocaine. Between 10:00 and 10:30 p.m., Officer D'Ambrosia, Jenkins, Oliva, Wheeler, and Sergeant Roberts entered the Riviera Resort Motel and proceeded to the bar area. D'Ambrosia talked briefly with Jeff. D'Ambrosia pulled $1500 from his wallet and showed the money to Jeff. Jeff told D'Ambrosia that it would take him approximately 10 minutes to get the cocaine and he (Jeff) left. Jeff came back to the bar area in approximately 15 minutes. Jeff was then carrying a short black leather jacket over his shoulder. Sergeant Roberts observed a large clear plastic bag with cocaine stuck inside the jacket. Officer D'Ambrosia and Sergeant Roberts placed Jeff under arrest. The weight of the cocaine was determined to be 28.18 grams. The Respondent's Defense When Bob Skirde became responsible for total management of the Riviera, he inherited a security agreement with a service operated under contract with "Chief Bill Heinklein." The service provided one guard stationed at Riviera for patrol seven nights per week from 10:00 p.m. till 6:00 p.m. This service was terminated with Chief Heinklein's company on March 15, 1984 due to a seasonal decline in the occupancy in the hotel and due to unsatisfactory performance by guards supplied by Chief Heinklein. William (Bill) Hawkins was hired by the "Chief" in January of 1984 and was terminated on March 15, 1984 because he was sleeping on duty while at the Riviera. Subsequent to terminating the relationship with Heinklein's company, Robert Skirde hired security on an as needed basis when heavy occupancy was anticipated such as the Memorial Day weekend. In this regard, Walter Patskanick was hired to provide security services during that weekend. During the weekend of May 26, 1984, William Dale Hawkins was at the facility and offered to "help out" in a conversation with Chi Che in exchange for food and drink. Bill Hawkins did not receive any monetary compensation for any services he provided. Employees Chi Che hired Tommy Brownyard as a bartender on February 19, 1984. His pay was $25 per shift. His employment application indicated that he had worked as an internal revenue service agent from January, 1976 until January, 1982. On May 12, 1984, Brownyard was fired by Chi Che for failure to observe company rules and policy. On April 1, 1984, Chi Che hired Janette Hawkins to work the patio bar. Her pay was set at $25 per shift. Her employment application, as did the application of Tommy Brownyard, indicated that she had never been convicted of a crime. Following May 12, 1984, when Brownyard was fired, Janette was transferred to the inside lounge to work as bartender. Respondent denies having any knowledge of any specific work being performed by Bill Hawkins on June 1, 1984. In this regard, the evidence revealed that Bill was not on Respondent's payroll and did not receive any pay on that date. Further, Respondent denies that Bill Hawkins was an employee at any time following his termination on March 15, 1984. Upon the retention of Robert Skirde as the general manager of the Riviera Resort Motel, he (manager Skirde) immediately started to refurbish the facility and to generally upgrade the facility to serve the tourist market and to attract international tourists. The facility increased its occupancy more than 200 percent above the occupancy level that existed while the prior operator, Lodging Unlimited, operated the hotel. Manager Skirde has completely refurbished the lobby; has renovated the plumbing; has recarpeted all of the villas; has painted selected areas of the facility to "change the theme"; has repaired the south side of the roof; has spent in excess of $12,000 in landscaping has published another brochure which is being forwarded to travel agencies and, as stated earlier herein, has retained the services of the Hallandale Police Department to rid the facility of derelicts. Manager Skirde has been in the hotel business in excess of 24 years and in Florida for more than 12 years in that business. He started his employment in the Industry with the Sheraton Hotel Chain and has worked at several large tourist hotels in the area before being retained by the Respondent. Manager Skirde is the incoming President of the HSMA, a trade association of hotels and motels. Respondent has installed an electronic device which can contact police during an emergency, as needed. While Respondent used Chief Heinklein's services to provide security at the facility, manager Skirde reviewed a log book which was maintained by the security personnel, a daily basis, immediately after he got to the facility each morning. During May, 1984, occupancy declined significantly at the hotel and, for that reason, manager Skirde cut back on security and other areas until the season picks up during mid- July, 1984. Prior to that time, there had been no evidence of any drug transactions either by employees or patrons, by management or other persons involved in the operation of the Respondent's facility. During manager Skirde's tenure, he has issued several memos concerning problems with security and other means of maintaining security at the facility. At his arrival at the facility each morning, he usually "walked the property off and has instructed all employees that they can contact him on a 24- hour basis if needed." Manager Skirde has a policy of prohibiting employees from being on the property after their normal work hours have ended. Additionally, manager Skirde has instructed employees to contact him at any hint of drug activity. Manager Skirde has never overheard any conversation regarding drug use on the premises of the Riviera motel. Manager Skirde has not seen any memo published by the Petitioner as to a drug educational program for licensees. Elvis Reyes, a resident of New York City, New York, is employed by DBG properties, the owner of the Respondent's facility as an internal security officer. As part of his duties as an internal security officer, Reyes visits various properties owned by DBG properties unannounced and, in that connection, visited the Riviera Motel on May 2, 1984. Part of his instructions were not to divulge his affiliation with the parent company. During Reyes' visit to the Riviera Resort Hotel on May 2, 1984, he was there for the specific purpose of trying to find drugs on the property, either through the use by patrons or the sale of drugs in the bar areas. When Reyes went to the facility, he visited the lounge on May 2 and while in the bar lounge, there were 3 people present, 2 of whom were bartenders and 1 patron. Reyes asked the bartenders and the 1 patron if they knew where he could get some "toot" or some "blow." On each occasion, Reyes got a negative response. Reyes returned to the lounge on May 3 and again tried to buy some drugs from both the on-duty bartenders and the patrons without any success. Mr. Reyes filed a report with his superior, a Mr. Fruitbind of DBG properties in New York City, and related to him that there was no evidence of drugs being used on the premises by either patrons or employees. (Respondent's Exhibit 5.) Dr. Robert Baer is the holder of a doctorate degree in Public Affairs and Administration and is employed at Nova University in Ft. Lauderdale. Dr. Baer has extensive educational training and experience in drug detection training and experience in the installation of security measures at hotel facilities. Dr. Baer served as a police officer with the Metro-Dade County Police Bureau from 1971 through 1977. He has served as an Officer in the Narcotics Unit and in the Organized Crime Bureau. Dr. Baer was received as an expert in these proceedings in surveillance, drugs and narcotics usage in hotels. Based on Dr. Haer's interview of Respondent's management team and the security service in force at the facility, he concludes that the security at Respondent's facility is at least average or better than average. His opinion was based on his study of the area which is a low crime area, the fact that police officers frequent the area in the lounge and they regularly are seen patroling the area. Based on the following reasons, Dr. Baer felt that security at the Respondent's facility was more than adequate: The security personnel are told not to go into the bar area; The Security Director goes into the bar on a daily basis; Brownyard was fired for dereliction of duties; There was a penetration study conducted by Internal Security Officer Hayes, and Management was unaware of any problems relative to drug usage by either employees or patrons.
The Issue The issue for resolution in this case is whether Proposed Rules 8E- 4.003(3), (4), (9), (10) & (11) and Proposed Rule 8E-4.005 constitute invalid exercises of delegated legislative authority as asserted by Petitioner.
Findings Of Fact Findings based on written stipulations. On September 11, 1992, Petitioner submitted an application for certification as a "facility for a new professional sports franchise." Petitioner's application contains the information required by Section 288.1162(4)(a)-(g), Florida Statutes, but does not demonstrate that eligible costs for which funding is being sought pursuant to Section 212.20, Florida Statutes, are for costs incurred after the award of the new professional sports franchise or after the start of certification, as required in Proposed Rule 8E- 4.003(3). Due to the effect of the proposed rule on Petitioner, Petitioner is a "substantially affected person" as that term is used in Section 120.54(4)(a), Florida Statutes. Findings based on evidence at hearing. On October 30, 1992, the Department of Commerce published Proposed Rule 8E-4 in the Florida Administrative Weekly. Portions of that proposed rule are the subject of this rule challenge proceeding. The full text of the proposed rule (with the challenged portions underscored) is as follows: 8E-4.001 Purpose. This rule contains the procedure for applying for certification pursuant to s. 288.03, Florida Statutes. 8E-4.002 Application Procedures. An application for certification under s. 288.03, Florida Statutes, as a "Facility For A New Professional Sports Franchise" or a "New Spring Training Franchise Facility" shall be submitted to the Secretary of Commerce and shall comply with and conform to the following requirements: An original and 5 copies shall be submitted. Applicants shall be a "unit of local government" as defined in s. 218.369, Florida Statutes, or a private sector group that has contracted to construct or operate a professional sports franchise facility on land owned by a unit of local government. The application must be signed by an official senior executive of the applicant. Items or forms requiring certification shall be notarized according to Florida Law providing for penalties for falsification. 8E-4.003 Application Contents. An application for certification as a Facility for New Professional Sports Franchises shall include the following: Documentation that the franchise team meets the following requirements: The franchise is not based in Florida prior to July 1, 1990. The applicant has a signed agreement with a new professional sports franchise for the use of the facility for at least 5 years or more. The new professional sports franchise agreement has been approved by one of the following leagues: National League (baseball) American League (baseball) National Basketball Association National Football League National Hockey League An independent analysis or study which demonstrates that the use and operation of the professional sports franchise facility will generate revenues on transactions at the facility of $2 million or more annually by taxes imposed under Part I of Chapter 212, Florida Statutes. Documentation of the actual cost or cost estimate for new construction, reconstruction, or renovation of the facility. Such documentation of cost shall be for construction, reconstruction, or renovation of the facility incurred or to be incurred after the award of the new professional sport franchise or after the start of certification. Eligible costs also include those incurred after July 1, 1990 and prior to the granting of a franchise where the costs were a necessary part of the competitive process for the awarded franchise. The applicant shall provide a commencement date upon which new construction, reconstruction, or renovation began or will begin. Projections demonstrating that the new franchise will attract a paid attendance of more than 300,000 annually. All data sources and methodologies of the projections must be included. Documentation that the municipality in which the facility is located, or the county if the facility is in an unincorporated area, has certified by resolution after a public hearing that the application serves a public purpose. Documentation that a unit of local government as defined in s. 218.369, Florida Statutes, is responsible for the construction, management, or operation of the professional sports franchise facility, or holds title to the property on which the professional sports franchise facility is located. Documentation that the applicant has demonstrated that it has provided, is capable of providing, or has a financial or other commitments to provide more than one-half of the costs incurred or related to the improvement and development of the facility. Statement certifying that applicant will comply with s. 288.1167, Florida Statutes, relating to requirements for minority participation. Documentation of the applicant's organization structure and principals. Applicants that are private sector groups shall file a public entity crime affidavit as required by s. 287.133(3)(a), Florida Statutes. 8E-4.004 Application Contents. An application for certification as a New Spring Training Franchise shall include the following: Documentation that the baseball team franchise meets the following requirements: The franchise is not based in Florida prior to July 1, 1990. The applicant has a signed agreement with a new professional sports franchise for the use of the facility for a term of at least 15 years. The agreement is approved by either the National League or the American League of professional baseball. Projections which demonstrate that the new professional baseball spring training facility will attract a paid attendance of at least 50,000 annually. Documentation of the actual cost or cost estimate for new construction, reconstruction, or renovation of the facility. Such documentation of cost shall be for construction, reconstruction, or renovation of the facility incurred or to be incurred after the grant of certification. Eligible costs also include those incurred after July 1, 1990 and prior to the granting of a franchise where the costs were a necessary part of the competitive process for the awarded franchise. The applicant shall provide a commencement date upon which new construction, reconstruction, or renovation began or will begin. Documentation that a unit of local government as defined in s. 218.369, Florida Statutes, is responsible for the construction, management, or operation of the professional sports franchise facility, or holds title to the property on which the professional sports franchise facility is located. Documentation that the applicant has demonstrated that it has provided, is capable of providing, or has financial or other commitments to provide more than one-half of the costs incurred or related to the improvement and development of the facility. Documentation that the New Spring Training Franchise Facility is located in a county that is levying a tourist development tax pursuant to s. 125.0104(3)(b),(c),(d) and (l), Florida Statutes, at the rate of 4 percent by March 1, 1992, and 87.5 percent of the proceeds from such tax are dedicated for the construction of a spring training complex. A site map and certification that the facility is located within 20 miles of an interstate or other limited access highway system. Statement certifying that applicant will comply with s. 288.1167, Florida Statutes, relating to requirement for minority participation. Documentation of the applicant's organization structure and principals. Applicants that are private sector groups shall file a public entity crime affidavit as required by s. 287.133(3)(a), Florida Statutes. 8E-4.005 Application Processing. The Department of Commerce shall certify applications only after these rules have been published in the Florida Administrative Weekly and all requested public hearings have been held. Subsequent to this, the Department shall have two weeks following receipt of an application to notify an applicant of any deficiencies in an application. The Department will allow 30 days from the date of notification for the applicant to correct any such deficiencies. Upon determining that an applicant is or is not certifiable, the Secretary of Commerce will notify the applicant by means of an official letter of his status. If certifiable, the Secretary will notify the Executive Director of the Department of Revenue of such certification by means of an official letter. If the Department of Commerce determines that the applicant satisfies all the conditions of Section 288.1162, F.S., and this rule, certification shall be issued by the Department of Commerce no sooner than, either the date of commencement as provided by the applicant in 8E-4.003(5) or 8E-4.004(5) or 120 days following receipt of application under this rule whichever is the longer. No certification shall be issued until the Department of Commerce has verified that actual construction, reconstruction, or renovation has commenced. The Department of Revenue will begin distributing funds 60 days following certification, but no such distribution may be made prior to July 1, 1992, pursuant to s. 288.03, Florida Statutes. If and when the above-quoted proposed rule becomes an effective rule, the Department of Commerce intends to apply the provisions of the subject proposed rule in the course of determining whether to grant or deny the Petitioner's application for certification as a "facility for a new professional sports franchise." The Department of Commerce intends for the language in Proposed Rule 8E-4.003(3) and (4) to limit funding under the applicable statute to new facility construction costs or to costs of renovation of an existing facility. The Department intends to disallow the use of grant funds for existing stadium construction costs, even if such costs were expended to facilitate the future recruitment of a "new professional sports franchise." The new requirements for certification contained in Proposed Rule 8E-4.003 are considered by the Department to be substantive in nature. The purpose of the funding program created pursuant to Sections 288.1162 and 212.20, Florida Statutes (1991), is to encourage the recruitment of professional sports franchises to Florida. During the 1992 session of the Florida Legislature, amendments were proposed to Section 288.1162, Florida Statutes (1991), which would have had the effect of limiting funding under the program to a reimbursement of costs of new construction. In Senate Bill 216-H, the Legislature proposed authorizing the Department to require that information be submitted regarding cost estimates verified by the Department for the new construction, reconstruction or renovation of the facility. This estimate shall include the costs of debt service on, or the costs to fund debt service reserve funds, costs for arbitrage rebate obligations, and other costs payable with respect to, bonds issued for the new construction, reconstruction or renovation of the facility. (e.s) The amendments proposed in Senate Bill 216-H would have eliminated as an approved use of the funds payment of costs of refinancing construction bonds and would have limited the use of funds only to newly incurred costs. In addition, the proposed bill provided that upon certification of an applicant, the Department shall also certify to the Department of Revenue the amount to be paid monthly to the applicant. In the case of a professional sports franchise facility, such amount shall be the lesser of $166,667 per month for a 30 year period, or the costs of the project verified by the Department pursuant to paragraph (4)(g) [which is the language cited directly above] and amortized over a 30 year period. The statutory limitation proposed by Senate Bill 216-H is consistent with, if not identical to, the limitation intended by the Department of Commerce through the promulgation of Proposed Rule 8E-4. Senate Bill 216-H failed to be enacted into law.
The Issue Whether the state certified pool construction license number CP C008904 and the state certified general contractor's license number CG C002481 of Joaquin Vazquez should be revoked.
Findings Of Fact Division A of the Construction Trade Qualifying Board held a hearing on September 15, 1976, pertaining to ten (10) charges of violating the Dade County building code against Respondent Joaquin Vazquez. At the completion of this formal hearing, Joaquin Vazquez was found guilty of eight (8) of the ten (10) charges. Charles W. Leavitt, Jr., Clerk of the Construction Trades Qualifying Board In Metropolitan Dade County, Florida, identified the minutes of the Board Meeting held on September 15, together with the charges as set forth in letters dated May 10, 1976, and August 19, 1976. Copies of these instruments were introduced into evidence without objection. The Respondent did not deny the charges at the hearing and had not appealed the finding of guilt of eight (8) of the ten (10) charges at the conclusion of the formal hearing on September 15, 1976. Briefly the charges (spanning the term from July 1, 1975 to June 29, 1976), finds and penalties are as follows: Charge 1.: Allowing permit to be applied for and taken out in Respondent's name in order for Angela J. Stevens and/or Sparkle Blue Pools to construct a swimming pool. Found guilty - letter of reprimand. Charge 3.: Similar to Charge 1 - found guilty - certificate to be suspended for one (1) year. Charge 4.: Failure to supervise, direct and control, the construction or installation of a swimming pool taken out in Respondent's name. Found guilty - one (1) year suspension to run concurrent with any other suspensions. Charge 5.: Similar to Charge 1 - found guilty - ninety (90) day concurrent suspension. Charge 6.: Similar to Charge 4 - found guilty - ninety (90) day suspension. Charge 7.: Similar to Charge 1 - found guilty - revo- cation of certificates. Charge 8.: Similar to Charge 4 - found guilty - both certificates be revoked. Charge 10.: Allowing a permit to be applied for and taken out in Respondent's name in order for Jack Goodman and/or Precision Engineering, Inc., to construct a swimming pool. Found guilty - letter of reprimand. An Administrative Complaint was filed by the Petitioner through its executive director on November 12, 1976, citing the hearing and the charges and the finding of guilt of Respondent and stating that the results of said formal hearing show a violation of Florida Statute 468.112(2)(a), willful or deliberate disregard and violation of applicable building codes or laws of the state or any municipality, cities or counties thereof. Therefore, the Board seeks to revoke the state certified pool contractors license number CP C008904 and state certified general contractors license number CG C002481 of Joaquin Vazquez, the Respondent. The Respondent did not deny the charges but presented an attack on the character and veracity of the witness, Angela Stevens, in four (4) of the charges against him. He cited the witness Angela Stevens' failure to abide by probationary requirements imposed for her acting as a contractor without a license. Furthermore, the Respondent offered his own and a witness, Mr. Gonzalez's, testimony to the fact that he was solicitated by Angela Stevens to make false testimony to the effect that Angela Stevens was an employee of his when in fact she had never been. The charges against the Respondent were brought subsequent to the charges brought against the witness Angela Stevens. The Respondent contends that the affidavits and testimony of Angela Stevens were no more than self serving statements made in her own behalf in an attempt to cover up her criminal intentions and that the charges and finding of guilt of the Respondent were based largely on the affidavit and testimony of said witness. Respondent further offered a medical report indicating that he was unable to work in the month of May, 1975, and further his testimony was that he was out of the country in mid June and July, 1975, in order to recuperate from high blood pressure attacks. Petitioner contends: the undisputed evidence presented in the finding of guilt of the charges involved in the prior hearing are sufficient to find Respondent guilty of violating Section 468.112(2)(a), Florida Statutes, and that Respondent's license should be revoked. Respondent contends: the witness against him was self serving and an attempt to cover up her criminal intentions; that he in fact supervised some of the jobs he was found guilty of not supervising; that he was ill some of the time and did not willfully violate the code. The proposed facts and conclusions of the parties submitted after the hearing herein have been considered in this Recommended Order.
Recommendation Suspend the licenses, No. CP C008904 and No. CG C002481, of the Respondent Joaquin Vazquez for a period not to exceed six (6) months. DONE and ORDERED this 31st day of May, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: David Linn, Esquire Post Office Box 1386 Tallahassee, Florida 32302 Jerome S. Reisman, Esquire 1515 Northwest 7th Street, #106 Miami Florida 33125 J. K. Linnan Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211
Findings Of Fact The Respondent, Caldo Corporation, d/b/a Calypso Bay Club, operates a place of business in Clearwater, Florida, where consumption on the premises is permitted under license number 62-928, Series 4-COP SRX. The licensed premises consist of some 18,000 square feet. Seven permanent bars are located within the perimeter walls of the licensed premises. No interior walls separate the bars, and they are not located in separate rooms. The seven bars are located in different parts of one large, generally open room. A customer entering the Calypso Bay Club first enters a combination foyer/seating area. From this area, a customer can see throughout the area where the seven bars are located. All seven bars in the licensed premises are visible, at least in part, from the entrance foyer/seating area, although the view to some parts of the premises may be blocked. Two of the bars are located within an unobstructed, open lower level which is generally in the center of the premises. There is a dance floor in this lower level. The other parts of the licensed premises are located on deckings that are raised to varying heights above the dance floor area. One of the bars, known as the Oyster Bar or bar number 7, is located on its own decking to one side of the dance floor area (to the customer's right on entering the premises.) It is three and a half steps, or approximately 18 inches, above the dance floor level. The other bars are arrayed on deckings on the other side (to the customer's left on entering the premises). Except for a lower, middle decking, the deckings on the left side of the premises are two steps, or approximately 12 inches, above the dance floor level. In the middle of that side, the decking is slightly lower than either the decking in front of it or the decking to the rear of it. One of the bars, known as the Fufu bar or bar number 5, is located on the middle decking. The other bars on that side are on one of the two higher deckings. The bar known as Deck 1 (bar number 4) is on a decking that wraps around to the entrance foyer/seating area. The bars known as Deck 2 (bar number 3) and the Corner bar (bar number 2) are on a decking located beyond the lower, middle decking. Throughout the premises, where the flooring changes elevation, there is a wide, flat wood rail approximately 42 inches above the floor of the raised decking. The railing sits on top of, and is supported by, thick wood posts similar to posts used in the construction of docks. Thick hemp rope, consistent with a waterfront motif, also is wound around the posts and draped between them under the rails (as Christmas garland would be draped on a stairway bannister). All except in the area of the Oyster Bar (bar number 7), a smaller slat of wood about the size of a one by four also is nailed to the posts about five inches above the floor of the decking, forming a lower fence rail as well. In some places, banners are also hung from the railing. The railing separating the different elevations serves two primary purposes. First, it is for safety to prevent customers from accidentally falling from a higher to a lower floor elevation. Second, it also serves as a counter on which customers standing or sitting on the higher elevation can set drinks or ash trays. Openings in the railing permit customers to walk from one bar area to another. The deckings are accessible from the dance floor area by six fairly wide stairways. As previously mentioned, the stairway to the Oyster Bar has three steps; the others have just two steps. Nothing separates the Corner bar (bar number 2) from the Deck 2 bar (bar number 3). Likewise, there is direct access from part of the Deck 2 bar to the Fufu bar (bar number 5). To one side of the Deck 2 bar, a railing separates the two elevations, but a railed ramp in the middle of the railing connects to two areas. It also is possible to get from the Fufu bar to the Deck 2 bar, without having to descend to the dance floor level, by walking from the Fufu bar, around a wood column, and step up one step to the area of the Deck 2 and Corner bars. The Deck 1 bar (bar number 4) is the closest to the entrance foyer/seating area of the bars on that side of the premises. There are two ways to get from the Fufu bar to the Deck 1 bar. First, there is virtual direct access between the Fufu bar and the Deck 1 bar. Bar number 5 (the Fufu bar) is in an area one step lower than the other bars on that side of the dance floor area, including the Deck 1 bar. There is a short railed ramp that goes up alongside a wood column standing between the two bars. From the top of the ramp, there is direct access to the Deck 1 bar; from the bottom of the ramp, there is direct access to the Fufu bar. There also is indirect access by walking to the side opposite the ramp side into a small seating area. The seating area is separated from the Deck 1 bar by the one-step change in elevation and by a railing and two video games. There are two gaps in the railing where one can step up into the area where the Deck 1 bar is located.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order dismissing the Notice to Show Cause in this case. RECOMMENDED this 15th day of January, 1992, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 15th day of January, 1992. 1/ The Petitioner also offered in evidence Petitioner's Exhibit 7, a videotape to which the Respondent objected. At the hearing, ruling was reserved. At this time, the objection is sustained. The videotape is immaterial and irrelevant to the issue in this case, which is whether the Calypso Bay Club "has more than three separate rooms or enclosures." See Conclusion of Law 9, below. 2/ The evidence of the legislative history in this record may not be clear and complete. No such evidence was introduced at the final hearing. The Department attached to its proposed recommended order what appear to be certified copies of committee reports on the legislation. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5784 To comply with the requirements of Section 120.59(2), Fla. Stat. (1989), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-3. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. However, the lines referred to in the last sentence did not completely separate the five bars from the two bars; the drawings included the designation of steps leading from one elevation to another. Accepted but subordinate and unnecessary. There are two proposed findings 6. This addresses the first of them. Subpart d. is rejected as not proven. The "small exposed part of bar 3" is not "cordoned off," and there is no wall. It is accessible from the steps from the dance floor area closest to the bar by walking from the steps to the bar, passing between the railing along the dance floor area and the partial wall (actually more like a wood column). (There also is access from the Corner bar and from the Fufu bar.) Subpart e. is rejected as not proven. There is direct access, as well as indirect access, as stated above, subpart d. Subpart f. is rejected as not proven. The "cordoned" railing has an opening through there is access to the Deck 1 bar (bar number 4). The Deck 1 bar also is directly accessible from the Fufu bar and from the entrance foyer/seating area. Subpart g. is rejected as not proven. Bar number 5 is not enclosed. It is accessible by four alternative routes. There is direct access between part of the Deck 2 bar (bar number 3) and bar number 5. There also is access to other parts of the Deck 2 bar from the steps from the dance floor area closest to the bar, as described in subpart d., above, as well as via a ramp through an opening in the railing along the change in elevation between the two bars. Finally, bar number 5 is accessible from the Deck 1 bar as described in subpart f., above. Otherwise, the first proposed finding 6 is accepted and incorporated. The second proposed finding 6 is rejected in part as not proven. As previously stated, there is direct access between the Corner bar (bar number 2) and the Deck 2 bar (bar number 3), as well as between part of the latter bar and bar number 5 (the Fufu bar.) Otherwise, accepted and incorporated. Rejected in part as not proven. The televisions hang from the ceiling or are on a wood column, and the game machines are placed next to railings. Neither serves to form a separate barrier. The ropes do not in all cases, and in any case were not primarily intended to, separate bar areas. They are all along the upper level at an elevation change or are along steps or a ramp between two different elevations. 8.-9. Rejected as irrelevant to the question whether there are more than three "rooms or enclosures." See Conclusion of Law 9, above. Rejected in part as not proven (last sentence); in part, accepted but subordinate to facts contrary to those found (first three sentences). The evidence suggested that the railings are there for two primary purposes. See Finding of Fact 6, above. The effect of the use of the railings as a bar counter was as much to join as to separate the various parts of the bar. A customer could put a drink, food or ash tray on one of the railings, or lean on it, and observe parts of the premises on the other side of the railing. Rejected in part as argument and in part as not proven. The testimony regarding shortness of funds was part of an answer to a question on cross examination as to why there were different kinds of chairs and stools on the premises. The owner's intent and desire to increase profits does not prove liability for the additional $1,000 fee. The critical issue is the existence of more than three rooms or enclosures, a fact not proven by the evidence. Respondent's Proposed Findings of Fact. 1. Accepted but unnecessary. 2.-3. Accepted and incorporated. Rejected as being conclusion of law or argument. First sentence, rejected in part in that it is not "completely open." Third sentence, rejected in part in that there was no evidence to prove that the ramps are "fully handicap accessible." Fourth sentence, rejected in part in that there was no evidence to prove what the building code requirements were. Otherwise, accepted and incorporated. Accepted and incorporated. 7.-8. Rejected as conclusion of law. COPIES FURNISHED: Monica Atkins White, Esquire Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Harold F. X. Purnell, Esquire Oertel, Hoffman, Fernandez & Cole, P.A. 2700 Blair Stone Road Post Office Box 6507 Tallahassee, Florida 32314-6507 Richard W. Scully, Director Div. of Alcoholic Beverages and Tobacco Dept. of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Donald D. Conn, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee Florida 32399-1007
The Issue Whether Petitioner, Hassan Habibi, was subject to an unlawful employment practice by Respondent, Auto Club Group, based on his race, religion, or national origin in violation of the Florida Civil Rights Act.
Findings Of Fact The Auto Club is affiliated with the American Automobile Association (“AAA”), a national not-for-profit organization that provides its members with benefits relating to travel, emergency roadside assistance, and insurance coverage. Petitioner initiated this matter alleging that the Auto Club discriminated against him based on his race, religion, or national origin. Petitioner was born in Pakistan. He is a Muslim. On April 21, 2015, the Auto Club hired Petitioner as a temporary employee through Randstad, a third-party employee staffing firm. The Auto Club placed Petitioner in the position of a Membership Service Representative at its membership services call center in Heathrow, Florida. Generally, a Membership Service Representative is responsible for handling, processing, and resolving incoming calls from Auto Club members. Petitioner’s last day of work for the Auto Club was May 14, 2015, three and a half weeks after he began his job. Petitioner spent his first two weeks with the Auto Club in a training class learning how to properly handle and respond to service calls from Auto Club members. Petitioner’s training class consisted of approximately 15 people. His instructor was Amy Thornhill. Petitioner reported to Jeanette Wieland, Manager of the Membership Service Customer Interaction Center. At first, Petitioner sat in the back of his training classroom. However, he soon requested to relocate after he became increasingly distracted by the clicking of a pen by another trainee. Ms. Thornhill facilitated Petitioner’s request and moved him to the front of the room. She also advised the class to be respectful of the other trainees. On May 13, 2015, Petitioner was scheduled to leave the training class and begin handling live calls on the services call center floor. However, Petitioner called in sick that day and did not report to work. While he was out, Petitioner composed an e-mail for Ms. Wieland. Petitioner wrote that he believed problems that he had experienced at a job he recently held at Aon Hewitt had followed him to the Auto Club. In an attachment to his e-mail, Petitioner listed several “bizarre things” and objectionable behavior he was experiencing at the Auto Club. Petitioner believed that on either April 21 or 22, 2015, someone from Aon Hewitt had appeared at the Auto Club office and was “brainwashing” people to harass and intimidate him (the same way he was harassed at Aon Hewitt). Petitioner advised that this person might have been seeking revenge against him. Petitioner proposed that he be allowed to review the Auto Club video surveillance footage of the parking lot on April 21 and 22, 2015, with the Lake Mary Police Department, the Seminole County Sheriff’s Office, and/or Auto Club security. Petitioner believed that the video would lead to the arrest and prosecution of the perpetrators who were brainwashing Auto Club employees and had damaged his car in the Auto Club parking lot. Finally, Petitioner complained about how he was treated by several trainees in his training class including Sherry Latour, “Edgardo,” and “Judith.” Petitioner returned to work the next day on May 14, 2015. He reported to the call center floor for his first day taking live customer service calls. Unfortunately, Petitioner found his work shift extremely disconcerting. After he began handling phone calls, a man named “Terrance” sat next to him. Petitioner recounted that Terrance began loudly conversing with a nearby friend in such a disruptive and distracting manner that Petitioner could not hear the customers speaking over the telephone. Petitioner became very concerned that his quality assurance scores would decrease. Petitioner recounted that Terrence never spoke directly to him. However, Petitioner was alarmed to hear Terrance mention the e-mail that he had sent to Ms. Wieland the previous day. Terrance ignored Petitioner’s pleas for quiet. At the final hearing, Petitioner proclaimed that Terrance was intentionally placed next to him to prevent him from doing his job. Petitioner accused Ms. Wieland of deliberately using Terrance in retaliation for the complaints he raised in his May 13, 2015, e-mail. Petitioner alleged that Ms. Wieland directed Terrance to be so disruptive that Petitioner would be too scared to return to work the next day. Petitioner met with Ms. Wieland on May 14, 2015, around 5:00 p.m. during his mid-shift break. During their meeting, Petitioner repeated that he strongly believed that someone from Aon Hewitt had been brainwashing Auto Club employees to harass and intimidate him. Petitioner also complained that this person had damaged his car in the Auto Club parking lot. Petitioner again requested that he be allowed to review the Auto Club surveillance video of the parking lot to try and identify the individual. Petitioner also complained that on several occasions while he was in the Auto Club cafeteria, Edgardo and Judith threw plastic knives at his feet. Petitioner emphasized that this behavior occurred so much that Edgardo and Judith must have been acting out on purpose. Petitioner stressed that someone from Aon Hewitt was putting them up to it. Ms. Wieland advised Petitioner to go the Lake Mary Police Department if he felt threatened. In the meantime, she would check with Auto Club security regarding the surveillance videos. Ms. Wieland also requested that he let her know immediately if anything else occurred while he was working at the Auto Club. The next day, May 15, 2015, Petitioner called Randstad and explained that he had encountered several problems at the Auto Club. Consequently, he did not believe it was worth continuing his employment there. Shortly thereafter, a Randstad representative called Ms. Wieland and relayed that Petitioner did not feel safe at the Auto Club. Therefore, he would not be returning to work. On May 21, 2015, Petitioner e-mailed Ms. Wieland again. Petitioner expressed that the people who committed the “egregious acts” against him needed to be punished. Petitioner beseeched Ms. Wieland to provide him Ms. Latour’s last name so that he could file civil charges against her. Petitioner further contended that a former Randstad employee named “Victoria” may have been involved in Ms. Latour’s objectionable actions. Petitioner also indicated that two other male employees threw plastic knives and forks at his feet in the cafeteria in addition to Edgardo and Judith. Petitioner wanted these people to be punished. Finally, Petitioner declared that when he used the restroom at the Auto Club, two male employees would come into the restroom and do exactly the same thing an employee at Aon Hewitt would do. At the final hearing, Petitioner summarized the alleged discriminatory incidents that he endured during his tenure with the Auto Club to include the following: On several occasions, Petitioner encountered Ms. Latour outside the men’s restroom. Petitioner believed that she intentionally positioned herself to block his exit. Petitioner surmised that Ms. Latour was attempting to have him commit unwanted physical contact with her. On several occasions, Ms. Latour, Edgardo, and Judith stared at Petitioner while he was in the parking lot and watched him enter the office building. Ms. Latour once asked Petitioner where Edgardo and Judith were sitting on the call center floor. Ms. Latour and Ms. Thornhill held a secretive conversation of which Petitioner believed he was the subject. Edgardo did not shut the bathroom stall while he was using the restroom (just like the people at Aon Hewitt). In the Auto Club cafeteria, Edgardo and Judith dropped plastic forks and knives in front of Petitioner as he walked by. Petitioner believed that they intentionally threw the utensils at his feet to intimidate and provoke him. Petitioner believed that someone from Aon Hewitt put them up to it. An extremely noisy fan was placed next to Petitioner on the call center floor which distracted him from his customer service calls. On several occasions, a sports utility vehicle parked too close to his car in the parking lot which made opening his car door difficult. (A similar incident occurred while Petitioner worked at Aon Hewitt.) Someone scratched the bumper of his car while he was parked in the parking lot, perhaps to provoke him. Finally, Petitioner asserted that the Auto Club engaged in a “massive and elaborate effort” to cover up and conceal the discriminatory acts of Ms. Latour. Petitioner claimed that Ms. Latour was trying to blackmail or provoke him so that the Auto Club would fire him. Petitioner was also frustrated that the Auto Club would not produce video surveillance from the restroom hallway which he asserted would support his claim. Although Petitioner objected to the conduct of several individuals who worked at the Auto Club, at the final hearing, he specifically identified Ms. Latour as the only person who discriminated against him. However, Petitioner acknowledged that he never specifically complained to anyone that he was being harassed based on his race, religion, or national origin during the time he worked at the Auto Club. Neither did Petitioner ever accuse Ms. Latour, Edgardo, or Judith of discriminating against him. Petitioner never informed anyone working for the Auto Club that he was born in Pakistan. On the other hand, Petitioner did recall a conversation with one co-worker (not Ms. Latour, or Edgardo, or Judith) during which he mentioned that he was Muslim. At the final hearing, Petitioner explained that he did not realize that he was being illegally harassed until after he left the Auto Club. Petitioner asserted that Ms. Latour’s objectionable behavior must have been based on his race because he was the only person in his training class who was of Asian and Pakistani origin or a Muslim. Petitioner explained that Ms. Latour did not harass anyone else in their training class. Amy Thornhill testified at the final hearing. Ms. Thornhill stated that she had no knowledge of Petitioner’s race, religion, or national origin during the time he worked for the Auto Club. Ms. Thornhill further claimed that she never heard anyone make any comments about Petitioner’s race, religion, or national origin. Ms. Thornhill recalled that Petitioner complained about a fellow trainee who was tapping a pen during his training class. She believed that she properly addressed the situation when she allowed Petitioner to move to the front of the classroom. She also cautioned the class to be mindful of their classmates. Ms. Thornhill was aware that Ms. Latour was also in Petitioner’s training class. Ms. Thornhill testified that she never observed Ms. Latour behave inappropriately towards Petitioner. Neither did she and Ms. Latour ever discuss Petitioner’s race, religion, or national origin. Ms. Thornhill did not remember Petitioner complaining to her about discrimination or harassment. Ms. Latour, who is still employed with the Auto Club, testified at the final hearing. Ms. Latour first met Petitioner in their 2015 training class. Ms. Latour denied ever making any improper or offensive actions or comments to Petitioner. Ms. Latour denied that Edgardo or Judith encouraged her to provoke him. Ms. Latour also asserted that she did not know Petitioner’s race, religion, or national origin while he worked at the Auto Club. Ms. Latour further declared that she never blocked Petitioner’s exit from the men’s restroom. She reported that the women’s restroom is directly across the hallway from the men’s restroom and surmised that perhaps that was the reason Petitioner encountered her in the hallway. Ms. Latour also relayed that Auto Club employees routinely congregate in the hallway near the training area and the elevators. Ms. Latour denied that she participated in a conversation with Ms. Thornhill about Petitioner. Ms. Latour also rejected Petitioner’s allegation that she purposefully watched him in the parking lot. Despite the fact that Petitioner did not return to work after May 14, 2015, the Auto Club continued to investigate his complaints. Jami Mieser, a Senior Employee Relations Specialist for the Auto Club, testified at the final hearing. Ms. Mieser looked into the concerns Petitioner raised in his e-mails to Ms. Wieland in May 2015. Ms. Mieser did not find any evidence substantiating Petitioner’s claims that Auto Club and Aon Hewitt employees were intentionally provoking or discriminating against him. Ms. Mieser did not notify Petitioner of the results of her investigation in 2015. Petitioner had left the Auto Club by the time she had completed her investigation. Ms. Mieser also testified regarding the video surveillance of the Auto Club parking lot. She explained that Auto Club security only maintained the video for approximately 90 days. Therefore, the videos are no longer available to help determine whether an individual purposefully damaged Petitioner’s car in April 2015. Ms. Wieland testified at the final hearing and acknowledged that she did ask a man named Terrance to sit next to Petitioner on his first day on the call center floor. Ms. Wieland explained that she routinely places an experienced Membership Service Representative next to a trainee to assist the new employee with any issues. However, she denied instructing Terrance to disrupt Petitioner from doing his job or scare him away from the Auto Club. Ms. Wieland also stated that Petitioner never complained about Terrence during their May 14, 2015, meeting. Based on the competent substantial evidence in the record, the preponderance of the evidence does not establish that the Auto Club discriminated against Petitioner based on his race, religion, or national origin. Accordingly, Petitioner failed to meet his burden of proving that the Auto Club discriminated against him in violation of the Florida Civil Rights Act.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Respondent, Auto Club Service Group, did not commit an unlawful employment practice against Petitioner, Hassan Habibi, and dismiss his Petition for Relief. DONE AND ENTERED this 31st day of May, 2017, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 31st day of May, 2017.
