The Issue Whether Respondent violated Section 112.3148(3), Florida Statutes, by committing the acts alleged in the Order Finding Probable Cause and, if so, what penalty is appropriate.
Findings Of Fact Respondent, John Pollet (Pollet), served continuously as Mayor of Kissimmee from November 1, 1991, until he was suspended in 1995. As Mayor, Pollet was a voting member of the City Commission and signed contracts the city entered. At all times relevant to the instant case, George Geletko was employed as the Municipal Marketing Manager with Waste Management, Inc. Mr. Geletko's primary responsibility was to make sure that contracts between Waste Management, Inc., and its municipal customers were properly administered. Waste Management, Inc., had a contract with the City of Kissimmee to provide waste disposal services that was scheduled to expire in 1994. However, on September 6, 1994, the City of Kissimmee renewed its contract with Waste Management, Inc. Mr. Geletko was responsible for administering Waste Management's contract with the City of Kissimmee and was the contact person between Waste Management, Inc., and the City of Kissimmee. As the Municipal Marketing Manager for Waste Management, Inc., Mr. Geletko sought to influence or encourage the Kissimmee City Commission and Pollet to do business with his company. In order to accomplish this, Mr. Geletko, in his position with Waste Management, Inc., took actions that directly or indirectly furthered or communicated his intention to influence or encourage the Kissimmee City Commission and Pollet to do business with Waste Management, Inc. In the spring of 1994, during a telephone conversation, Pollet asked Mr. Geletko if Waste Management, Inc., had any tickets to an Orlando Magic basketball game. Mr. Geletko did not respond directly to Pollet's inquiry, but stated that "whatever we did, we would have to be in compliance with all ordinances and the State Code of Ethics." Pollet told Mr. Geletko that he would get back with him. However, no further inquiry regarding Orlando Magic tickets was made by Pollet to Mr. Geletko. At the time Pollet asked about Orlando Magic basketball tickets, he believed Mr. Geletko had taken former City Commissioner Richard Herring to a Magic game at some point prior to his inquiry. Pollet testified that the inquiry regarding Orlando Magic basketball tickets was made based on personal political considerations involving former City Commissioner Herring, who was sometimes an ally and sometimes a foe of Respondent in matters relating to City politics. However, Pollet gave no such explanation to Mr. Geletko during their conversation involving Orlando Magic basketball tickets. Based on Pollet's inquiry, Mr. Geletko felt that Pollet was asking him for tickets to the Orlando Magic game. Mr. Geletko, as a representative of Waste Management, Inc., gave gifts, including golf games and meals, to Pollet both before and after Respondent asked him about the Orlando Magic Tickets. Pollet's approach to Mr. Geletko was a solicitation for tickets. At all times relevant to the instant case, Charles Voss was a vice president with Camp, Dresser, and McKee, an environmental engineering firm. Camp, Dresser, and McKee had two contracts with the City of Kissimmee to provide engineering services. The City of Kissimmee and Camp, Dresser, and McKee entered into one such contract on November 2, 1993. Mr. Voss was responsible for marketing Camp, Dresser, and McKee's services to the City of Kissimmee. Mr. Voss sought to influence or encourage the Kissimmee City Commission and Pollet to do business with Camp, Dresser and McKee. To this end, Mr. Voss took actions that directly or indirectly furthered or communicated his intentions to influence or encourage the Kissimmee City Commission and Pollet to do business with Camp, Dresser, and McKee. In March 1993, Pollet called Mr. Voss and asked him if Camp, Dresser, and McKee had any tickets to the Nestle Invitational Golf Tournament. Mr. Voss told Pollet that his firm did not have tickets to the 1993 Nestle Invitational Golf Tournament. Based on Respondent's question, Mr. Voss thought Respondent was asking him for tickets to the golf tournament. Pollet testified that he asked about the passes because he wanted to know if Mr. Voss was going to attend the tournament. According to his testimony, Pollet thought that if Mr. Voss were going to the golf tournament, they could meet there. Notwithstanding his testimony, Pollet never asked Mr. Voss whether he was going to the tournament. In both 1994 and 1995, Pollet accepted passes to the Nestle Invitational Golf Tournament as gifts from Mr. Voss and Camp, Dresser, and McKee. Mr. Voss gave these golf tournament passes to Pollet because Pollet expressed an interest in the tournament in 1993. Pollet did not pay for the golf tournament passes he received from Mr. Voss in 1994 and 1995. Mr. Voss, as a representative of Camp, Dresser, and McKee, had given Pollet various gifts in the past. Except for partial payment for certain tickets, Pollet has never paid for any of these gifts. Respondent's approach to Mr. Voss was a solicitation for tickets to the 1993 Nestle Invitational Golf Tournament. Respondent admits he has accepted gifts from both Waste Management, Inc., and Camp, Dresser, and McKee.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order and Public Report be entered finding that Respondent, John Pollet, violated Section 112.3148(3), Florida Statutes; imposing a civil penalty of $1,000.00 per violation; and issuing a public censure and reprimand. DONE and ENTERED this 1st day of November, 1996, in Tallahassee, Florida. CARLOYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-647 Filed with the Clerk of the Division of Administrative Hearings this 1st day of November, 1996. COPIES FURNISHED: Eric S. Scott, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Mark Herron, Esquire 216 South Monroe Street Tallahassee, Florida 32301 Bonnie Williams, Executive Director 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, General Counsel 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Kerrie J. Stillman Complaint Coordinator Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue Whether Petitioner, the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, is authorized to charge and collect interest from Respondent, Florida Gaming Centers, Inc., on the unpaid value of the outsbook for the 1995-1996 meet from August 29, 1997, the date payment of the value of the outsbook was due, to September 8, 1998, the date payment was received by Petitioner.
Findings Of Fact At all times relevant hereto, the Respondent held a permit to conduct jai alai pari-mutuel wagering, under License No. 2909-D Amended, issued by the Department. Between July 1, 1995, and June 30, 1996, inclusive, Respondent held jai alai games for the purpose of conducting pari-mutuel wagering on those games. Respondent's meet for the relevant time period ended on June 30, 1996. One year and sixty days after the end of the State of Florida's (State) fiscal year of June 30, 1996, any "out" tickets that remained uncashed escheated to the State pursuant to Section 550.1645(2), Florida Statutes. Once these tickets or the value thereof escheated to the State, Respondent was required to pay the value of such tickets, as reflected on its outsbook, to the Department no later than August 29, 1997. Pursuant to the outsbook prepared by Respondent, the value of the outs for the 1995-1996 meet was $108,221.20. Nonetheless, Respondent failed to submit to the Department the value of the balance of the outsbook within the prescribed time frame and instead held these funds. On June 2, 1998, the Department served an Administrative Complaint on Respondent, alleging that Respondent had failed to timely submit the value of the outsbook to Petitioner. By letter dated September 4, 1998, Respondent submitted to the Department a check for $109,128.60 as payment for the unpaid value of Respondent's outsbook for the 1995-1996 meet. The Department received Respondent's payment on September 8, 1998. Of the total amount Respondent paid over to the Department, $108,221.20 was credited against the unpaid value of the outsbook for the 1995-1996 meet, resulting in full payment of the outstanding outsbook value. The remaining $907.40 paid by Respondent to Petitioner was an overpayment. Petitioner alleges that Respondent is responsible for interest accrued on the unpaid value of the outsbook for the period of time that amount remained unpaid. According to the Department, the interest owed by Respondent as a result of its failure to timely remit the value of the outsbook, "shall be determined at a rate per annum . . . equal to the State's average investment rate for the preceding month to the month for which interest is being calculated." The average interest rate earned on the investment of State funds as determined by the State Treasurer and/or Comptroller" for the time period of August 1997 through August 1998, was 6.73 percent. The Department determined that the interest "shall accrue on the unpaid aggregate principal amount due the State for the month(s) from the respective due date." Based on its calculations and after deducting Respondent's overpayment of $907.40, the Department asserts that Respondent owes the Department approximately $6,573.85 in accrued interest. Respondent disputes that the Department has authority to collect interest on the unpaid amount of the outsbook and alleges the powers of the Department under Section 550.0251, Florida Statutes, do not include such authority.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that (1) an administrative fine of $1,000.00 be imposed against the Respondent for the violation Section 550.1645, Florida Statutes; and, (2) Respondent shall receive a credit of $907.40 toward payment of the administrative fine. RECOMMENDED this 28th day of January, 1999, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 1999. COPIES FURNISHED: Deborah R. Miller, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William P. Cagney, III, Esquire 3400 Financial Center 200 South Biscayne Boulevard Miami, Florida 33131 Eric H. Miller, Esquire Chief Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William Woodyard Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by Lynne A. Quimby-Pennock, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Respondent’s Withdrawal of Notice and Motion to Dismiss as Moot, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED and no license will be issued to Subaru of America, Inc. and Boyland Auto Center, LLC d/b/a Subaru of South Orlando for the sale of Subaru vehicles (SUBA) at 9576 South Orange Blossom Trail, Orlando (Orange County), Florida 32837. Filed March 28, 2012 7:52 AM Division of Administrative Hearings DONE AND ORDERED this a | day of March, 2012, in Tallahassee, Leon County, Florida. v Lrloen Julie Baker, Chief Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 Tallahassee, Florida 32399 Filed in the official records of the Division of Motorist Services this_4_ day of March, 2012. ok Nalini Vinayak, Dealer Hicense Administrator NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. JB/jde Copies furnished: J. Andrew Bertron, ESquire Nelson, Mullins, Riley and Scarborough, LLP 3600 Maclay Boulevard South, Suite 202 Tallahassee, Florida 32312 Kenneth G. Turkel, Esquire Bajo, Cuva, Cohen and Turkel, P.A. 100 North Tampa Street, Suite 1900 Tampa, Florida 33602 Hayden P. Ridore, Esquire Invictus Law Group, P.L. Post Office Box 2209 Orlando, Florida 32802 Dylan M. Snyder, ESquire Dylan Snyder, P.A. 201 North Franklin Street, Suite 2880 Tampa, Florida 33602 Lynne A. Quimby-Pennock Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator
The Issue The issue is whether Petitioner has proved that Respondent employed the requisite number of employees to establish jurisdiction in the Florida Commission of Human Relations over an alleged claim of employment discrimination against Respondent.
Findings Of Fact South Florida Business Ventures, Inc. (SFBV) was incorporated about ten years ago. For the past five years, SFBV has provided telemarketing services for "Ramada Plaza Resorts." These services provide substantially all of the revenue of SFBV. For this case, "Ramada Plaza Resorts" is SFBV. A corporation known as "Ramada Plaza Resorts Orlando/Ft. Lauderdale Vacations, Inc." (RPR, Inc.) is in the business of selling timeshare units. The tradename "Ramada Plaza Resorts" enjoys wider use and not merely by RPR, Inc. or the legal owner of the tradename, if different from RPR, Inc. However, for this case, "Ramada Plaza Resorts" does not refer to RPR, Inc., or the owner of the tradename. Petitioner earlier filed a charge of discrimination directly against SFBV, which the Commission has dismissed. Petitioner did not continue to prosecute that case after its dismissal, but has instead prosecuted this case against "Ramada Plaza Resorts." Regardless of the wisdom of abandoning the case against the proper legal entity and proceeding against a fictitious name, Petitioner's present claim, as a matter of fact, is against SFBV, doing business as "Ramada Plaza Resorts" or as sales agent of RPR, Inc. To avoid confusion, this Partial Recommended Order shall refer to Respondent simply as SFBV, and not as SFBV doing business as Ramada Plaza Resorts or as agent of RPR, Inc. During 2003 and 2004, RPR, Inc., entered into contracts with several telemarketers, not only SFBV. The role of SFBV was to sell to the public three- or five-night "vacations" to Orlando, Ft. Lauderdale, or Las Vegas--essentially providing potential timeshare purchasers to RPR, Inc., which would promote its timeshare units to the "vacationers" during their "vacations." At the end of each telemarketing call that resulted in a sale by SFBV, the telemarketers transferred the call to a call center operated in Ft. Lauderdale by RPR, Inc., where a person employed by RPR, Inc., confirmed the sale and the accuracy of the material representations made by the telemarketer. In June 2004, Petitioner saw a newspaper advertisement seeking a receptionist. The advertisement states in part: "Ramada Plaza Resorts Industry leader hiring . . .." Petitioner telephoned the number listed, which belonged to SFBV, and was given an interview at an office in Boynton Beach, which was the headquarters of SFBV. Nothing in the advertisement mentioned SFBV. The office building to which Petitioner was directed bore a sign, "Ramada Plaza Resorts." Entering the office, which bore no sign indicating that it was the office of SFBV, Petitioner asked for Kelly Mincey, as she had been instructed to do by the person with whom she had spoken on the telephone. SFBV employed Ms. Mincey as its administrator. Among her duties for SFBV was human relations, including the hiring of secretaries. Ms. Mincey has worked for SFBV for four years. During the interview, Ms. Mincey explained to Petitioner that the receptionist was required to answer telephone calls, perform data entry, and fax memos to the Ft. Lauderdale office. Specifically, Ms. Mincey directed Petitioner to answer the telephone, "Ramada Plaza Resorts. How may I direct your call?" In entering data, Petitioner inputted the identification number for each buyer. In faxing memos to Ft. Lauderdale, Petitioner's testimony did not establish whether these documents went to SFBV's Ft. Lauderdale office or RPR, Inc., whose main office was in Ft. Lauderdale. Ms. Mincey gave Petitioner an employment application. It was a form that did not bear the name of the employer. After examining the completed application and performing the job interview, Ms. Mincey offered the job to Petitioner, who accepted it and, shortly after the interview, began working at the Boynton Beach office of SFBV. SFBV employed Petitioner. SFBV issued her payroll checks, which bore the name of SFBV. Petitioner's W-2 form bore the name of SFBV as her employer. Any claim of Petitioner that she was employed by some other entity alone or in conjunction with SFBV is unsupported by the evidence. The evidence supports the subordinate finding of a sales agency relationship between SFBV and RPR, Inc., so as to support the ultimate finding that "Ramada Plaza Resorts," as used in this case to identify Respondent, means SFBV. However, the evidence is not sufficient to find an employment agency relationship for the purpose of finding that Respondent was employed by RPR, Inc., or the owner of the tradename, or co-employed by RPR, Inc., or the owner of the tradename. In any event, such evidence would be irrelevant anyway because of the absence of evidence as to the number of employees, during 2003 or 2004, of RPR, Inc., or the owner of the tradename. At various times, SFBV operated offices in Boynton Beach, Delray Beach, West Palm Beach, and Ft. Lauderdale. The Ft. Lauderdale office, which was actually in Oakland Park, was open from September through December 2004. SFBV concedes that it employed Warren Izard as president, Kirk Izard as vice-president, Gabriel Izard as an operations employee, Ms. Mincey, and eight receptionists at the four offices operated during 2004. SFBV thus employed these 12 employees in 2004. The jurisdictional dispute centers around the proper classification of two other categories of workers: the persons making the telephone calls and their sales managers. SFBV contends that these persons were independent contractors of SFBV, and Petitioner contends that they were employees of SFBV. A third classification of worker--general manager was restricted to one person, Enrico Merada, so, even if he had been an employee, the total number of employees would still have been less than the jurisdictionally required 15--thus, his status is irrelevant. During 2003 and 2004, 25-100 telemarketers worked at SFBV offices at any given time. However, it is unnecessary to determine whether the telemarketers were employees of SFBV. SFBV employed more than two sales managers during 2004 so that, if they were determined to have been employees, the jurisdictional prerequisite of 15 employees over 20 calendar weeks would have been satisfied. The evidentiary basis for characterizing the sales managers as employees is largely undisputed while the evidentiary basis for characterizing the telemarketers as employees would require discrediting the testimony of SFBV's witnesses, who claimed that the telemarketers were not required to work specific shifts. Two sales managers worked at each of the four offices during 2004. At times during 2004, a total of eight sales managers worked at SFBV's offices. There was little turnover among sales managers. Mr. Merada supervised these sales managers, who, in turn, supervised the telemarketers. Interestingly, Ms. Mincey twice characterized the sales managers as employees of SBFV, distinguishing them from the telemarketers, whom she described as independent contractors. SFBV employed the sales managers and receptionists in pairs because it needed one person in each position at each office for each of the two shifts that it ran daily: a day shift and a night shift. SFBV strictly controlled the work of the sales managers, evidently in an effort to avoid misrepresentations by the telemarketers to purchasers. As required by SFBV, sales managers provided scripts to telemarketers, who were required to stick to the scripts and prohibited from certain acts, such as uttering profanities. As required by SFBV, sales managers provided telemarketers with rebuttals for certain responses from potential buyers and guidelines for what could be said. As required by SFBV, sales managers informed telemarketers that they could make no personal calls and could not sell for other companies while telemarketing for SFBV. To ensure that telemarketers complied with these rules, as required by SFBV, sales managers randomly listened in on calls made by telemarketers. As required by SFBV, sales managers helped telemarketers with the paperwork following sales and sometimes telemarketed directly to potential buyers. SFBV paid the sales managers weekly with SFBV checks and required that they perform their job duties, which included hiring and firing telemarketers, at the SFBV office to which they were assigned and during the shift to which they were assigned. SFBV paid the sales managers based on total sales, so that each sales manager made the same amount during the same pay period, provided they were scheduled for, and actually worked, the same number of shifts. Even if SFBV had operated only three offices, thus with six receptionists and six sales managers, SFBV would have employed 16 employees, if the sales managers were employees. Although at times SFBV may have had only one sales manager at an office, the evidence is clear that, during substantial parts of 2004, including at least 20 weeks, SFBV employed at least six sales managers and six receptionists, and, for the last 17 weeks of 2004, it employed eight sales managers and eight receptionists. In its proposed recommended order, SFBV states: "SFBV sometimes will monitor a Direct Seller's selling pitch " This statement implies an employer-employee relationship between SFBV and the person monitoring the calls of telemarketers, and these employee-monitors were the sales managers. A few lines later, SFBV baldly asserts that sales managers were also "Direct Sellers, not employees." But the contrasts that SFBV draws between sales managers and telemarketers suggest otherwise. Accepting strictly for the sake of discussion SFBV's characterization of its telemarketers, they were not required to work specific shifts, but sales managers had specific shifts for which they had to be in the office to monitor the calls of, and help, the telemarketers. Telemarketers were paid strictly on the basis of what they sold, but sales managers were paid on the basis of the sales during the shifts that they worked. This means that the compensation of sales managers was tied directly to the time that they were in the office working, as opposed to the compensation of the telemarketers, whose pay was not so time- dependent. The effect of this difference is obvious upon consideration that the sales managers were paid equally, if they worked an equal number of shifts, but the telemarketers were paid based on sales, not at all on the amount of time they spend working. Also, there was much churning of telemarketers, unlike the situation with sales managers. And the sales managers had a stricter dress code than did the telemarketers. For both sales managers and telemarketers, SFBV supplied the telephone and office equipment, including computers to automatically dial prospective purchasers. All of this equipment was necessary for the work to be performed. For both sales managers and telemarketers, SFBV provided the names and telephone numbers of potential buyers to be called--also crucially important to the success of the telemarketing effort. The only thing that some telemarketers routinely provided were telephone headsets, which were not necessary to perform their duties. In general, SFBV did not provide fringe benefits to sales managers. But the telemarketing work that they supervised and occasionally performed provided substantially all of the revenue of SFBV. Also, SFBV tightly governed the means by which the sales managers performed their duties. SFBV structured its contract and withholding and reporting practices so as to maximize its prospects for regulatory characterizations of its relationships with telemarketers and sales managers as those of employer and independent contractor, not employer and employee. However, at least as to the sales managers in the context of the jurisdictional requirements of the Act, these practices did not reflect the economic realities of the employer-employee relationship that actually existed between SFBV and its sales managers.
Conclusions For Petitioner: John de Leon Law Offices of Chavez & de Leon, P.A. 5975 Sunset Drive, No. 605 South Miami, Florida 33143 For Respondent: Richard W. Epstein Myrna L. Maysonet Greenspoon Marder, P.A. 201 East Pine Street, Suite 500 Orlando, Florida 32801
Recommendation RECOMMENDED that the Florida Commission on Human Relations enter a Partial Final Order determining that it has jurisdiction over the claims of Petitioner against South Florida Business Ventures, Inc., doing business as Ramada Plaza Resorts or as sales agent of Ramada Plaza Resorts Orlando/Ft. Lauderdale Vacations, Inc., and take such additional action on the claims as is required by law. DONE AND ENTERED this 11th day of August, 2006, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 2006. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 John de Leon Law Offices of Chavez & de Leon, P.A. 5975 Sunset Drive, No.605 South Miami, Florida 33143 Richard W. Epstein Myrna L. Maysonet Greenspoon Marder, P.A. 201 East Pine Street, Suite 500 Orlando, Florida 32801
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner Lee Ann Burgess was employed on March 17, 1975, as the Administrator of the Domestic Tourism Section, Division of Tourism, Department of Commerce. During her initial years of employment, Edward J. Trombetta was the Secretary of the DOC. He remained in that position from February of 1975 through December 31, 1977. The DOC then had several Divisions--one of which was the Division of Tourism--and these Divisions were broken down into Bureaus which were, in turn, composed of various Sections. Mr. Trombetta was of the opinion that only himself, his Assistant Secretary and his Division Directors were policy-makers within the DOC and that other employees simply implemented that policy. According to Mr. Trombetta, policy-making deals with personnel matters and implementation of the budget appropriated by the Legislature. Decision- making and policy-making emanated from the Secretary's office. While the Section heads or administrators might recommend ideas which would lead to "policy," they had no authority to "establish" the course of policy for their respective Divisions or Sections, according to Mr. Trombetta. The December, 1976 job description for the position of Administrator of the Domestic Tourism Section included, in part, the following duties and responsibilities: -- being a working supervisor over a majority of the promotional activities of the division -- creating, directing and supervising the approved promotional and selected advertising programs. "He must not only plan the programs, he must budget each one as well as the entire Domestic Development Section." -- recommending new markets and objectives to the Division Director and advising on all aspects of promotion, utilizing research statistical information to support such recommendations and advice -- directing a staff of promotion specialists -- maintaining a constant contact with the higher echelons of the Department of Commerce as well as other government agencies and the private sector of the travel industry -- handling personnel both within the confines of the office and those that are required to be at great distances from the office in following through on the projects -- working with publishers of travel oriented publications in creation of special sections and issues on facets of Florida tourism -- initiating and carrying through promotions with department stores, other chain stores, industry, common carriers, resort areas and many others -- recommending and coordinating publicity in conjunction with the other areas of the Department of Commerce -- representing the Division at conferences of national, regional travel organi- zations -- creating and implementing special events which insure Florida's continued growth as a site for major sports activities -- developing and recommending advertising programs which illuminate Florida's sports attractions -- preparing, editing and distributing publications on promotional tourism activities and information on sports activities and facilities within Florida. During petitioner's tenure as Administrator of the Domestic Tourism Section, she was directly responsible to her Bureau Chief, Ron Miller. At the beginning of each fiscal year, she submitted for Mr. Miller's approval a listing of appropriate functions and trade shows to attend for that year. She submitted a requested budget. On occasion, Mr. Miller would discuss with her which projects or functions would need to be rejected because of the availability of funding. All promotional functions and long-term commitments had to be approved by Bureau Chief Miller. Petitioner could not expend money without prior approval and did not feel that she had the authority to commit funds, resources or time without prior approval from her Bureau Chief. She perceived that her authority was limited to the implementation of preapproved promotional programs and functions. Once a program was approved, it was her responsibility to create a theme for that program. Her decision as to who should attend certain programs or promotions was occasionally overridden by her Bureau Chief. During petitioner's tenure, the Domestic Tourism Section was composed of an administrator, a secretary and two promotional specialists, and conducted approximately 19 to 21 promotions per year. The goal of the DOC's Division of Tourism is to increase the number of visitors and to create more trade in Florida on an annual basis. When Sidney Levin became the Secretary of the DOC in March of 1979, he contemplated a reorganization and expansion of the Division of Tourism. He anticipated that the Division would obtain a greatly increased staff and an accelerated program in the tourism sales department. It was Mr. Levin's concept that, the three section heads were, as known in the business world, "sales managers" and that an extensive marketing plan would be developed for the Division of Tourism. The three "sales managers or section heads were to be in the areas of domestic sales, international sales and convention sales. (Later, a Latin American sales section was created.) The persons occupying these positions were responsible for the management of those sections and were to be active in the creation of a marketing plan for the entire Division. The majority of the work accomplished on the marketing plan was to come from the various sections, and the section heads would have the responsibility for that function. The section heads were to generate the ideas for the overall plan, to determine what was possible and what was not possible and then to implement the plan once approved. During Secretary Levin's tenure with the DOC, the head of each Department was permitted to designate ten "policy-making" positions as exempt from the Career Service System subject to the approval of the Department of Administration. Section 110.205(2)(h), Florida Statutes (1979) (now Section 110.205(2)(i)). In accordance with his reorganization and expansion plans for the Division of Tourism, Secretary Levin, by letter dated December 12, 1979, requested approval from Secretary Nevin Smith. DOA, to exempt from the Career Service System the positions of Administrator of Tourism Development (position number 00063) and Administrator of International Tourism (position number 00067). Two other positions not relevant to the issues herein were also requested to be exempt as policy-making positions. By letter dated December 14, 1979, Secretary Smith informed Secretary Levin that the four requested positions had been exempt from the Career Service as policy-making positions. [The convention sales section of the Division of Tourism was not yet created. When that position was later created, a request for a similar Career Service exemption was granted.] At the time of the requested exemption of petitioner's position, the only written guideline in existence as to a "policy-making" position was contained in a memorandum dated July 1, 1974, to all Department heads from former DOA Secretary L. K. Ireland, Jr. That memorandum states that the DOA's Division of Personnel defined a policy-making position as one which sets a definite course of action for the unit for which the position is responsible (i.e., office, bureau, division, department) which is unit-wide in effect and will guide and determine present and future decisions of that unit measured in a time span of no less than six months. Although not contained in written form in December of 1979, it was also the DOA's policy to refuse to approve exemptions for positions which directly reported to or were responsible to a position occupied by a Career Service employee. The position formerly occupied by petitioner (position number 00063) is now entitled Administrator of Domestic Sales of the Division of Tourism. The present incumbent, Glenn Couvillon, reports to the Bureau Chief of Sales and Promotions who reports to the Director of the Division of Tourism. Mr. Couvillon was formerly a promotional specialist under the supervision of petitioner Burgess. His present duties include the preparation and submission of a marketing plan for his section to his Bureau Chief for approval and, after such approval, the implementation and staffing of different promotions in that plan. Other than the enlargement of the Domestic Sales Section, and the expansion of its budget and programs, Mr. Couvillon does not feel that the role of the section administrator has changed much since he assumed that position. The Domestic Sales Section now has a staff of eleven, including seven Development Representatives, and does approximately 54 promotions a year. The 1980 job description for position number 00063 does not differ in significant respect from the 1976 job description for that position. The differences are primarily in the usage of terminology, and not in the description of duties or responsibilities. According to Nevin Smith, the Secretary of DOA since July of 1979, the principal criteria for determining whether a position is "policy-making" has always been the same. That criteria is whether or not the position-holder plays a key advisory role to the Department head. An expert in the area of personnel management and administration, Lee Breyer, defines a "policy-maker" as "an individual who can, with a high degree of success, be able to influence the direction of a particular level of that organization." In February of 1981, the DOA promulgated a rule which defines the policies applicable to exemption of policy-making positions. Rule 22K-16.02, Florida Administrative Code, provides as follows: A position is policy-making if the incumbent's primary responsibility is the managing of a major function or the rendering of management advice to Senior Management level administrative authority. Such position can be established as policy-making only if located in the top managerial levels of a department, division, or bureau (or comparable level) and if it is typified by broad responsibility for policy implementation and extensive participation in the development of a department's goals.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that a Final Order be entered finding that position number 00063 is a policy-making position eligible for exemption from the Career Service System in accordance with Section 110.205(2)(i), Florida Statutes. Respectfully submitted and entered this 16th day of September, 1982, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of September, 1982. COPIES FURNISHED: Edward S. Jaffry, Esquire HORNE, REODES, JAFFRY, HORNE & CARROUTH Post Office Drawer 1140 Tallahassee, Florida 32302 Don W. Davis, Esquire Department of Commerce 510H Collins Building Tallahassee, Florida 32301 David V Kerns and Daniel C. Brown, General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Stuart Edgerly Secretary Department of Commerce 510C Collins Building Tallahassee, Florida 32301 Nevin G. Smith Secretary Department of Administration Room 435 Carlton Building Tallahassee, Florida 32301
The Issue The issue to be resolved in this proceeding concerns whether the Respondent set up, promoted or conducted a lottery for money or other thing of value in violation of Section 849.09, Florida Statutes.
Findings Of Fact On August 26, 1998, the Respondent, Personal Investments, Inc., d/b/a Personal Investments (Respondent) held license no. 77-00008, Series 2-COP, authorizing it to sell alcoholic beverages. On that date Mr. Stockton Hess was a corporate officer (Vice President). Mr. Hess was also a corporate officer of the Washington County Kennel Club, Inc. (WCKC) on the above date (President). The Respondent is a business regulated by the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (Division) because it sells alcohol. The Washington County Kennel Club (Club) is regulated by the same Department's Division of Pari-mutuel Wagering, because it operates a pari-mutuel wagering facility at the Ebro Greyhound Park Dog Track. The Ebro Greyhound Park is owned and operated by the Club. The Club is in the business of selling pari-mutuel tickets, programs and tip sheets. Personal Investments, Inc., sold alcohol at its concession stands and in the lounge and restaurant at Ebro Greyhound Park, located in Ebro, Washington County, Florida. The Respondent served as concessionaire for food and beverage services through its contract with the Club. The Club has held its pari-mutuel wagering permit and annual pari-mutuel licenses continuously for some forty years. They authorize greyhound racing operations at the Ebro track facility. On August 26, 1998, the Club conducted a game promotion at its greyhound track in which any person entering the facility, regardless of whether he or she paid an admission fee, was provided a split-ticket free of charge. One half of the ticket went into a drum located by the entrance way and the other half of the ticket was retained by the patron. Located next to the drum, and on the Club premises, was a wheel which contained representations of prizes such as t-shirts, magnets, key chains and so forth. Subsequent to the tenth race a Club employee, the front gate hostess, would draw a ticket and another employee, the track announcer, would announce the number drawn. The patron holding the other half of the selected ticket would then present himself to the front gate hostess to verify the number. The patron would then spin the wheel and win whatever prize was reflected at the point where the wheel stopped. The Club bought the wheel, paid for the prizes and its employees operated the game in question. Mr. Hess, an officer of both the Club and the Respondent corporation had knowledge of and intentionally participated in the running of the above-described game. On August 26, 1998, a drawing was conducted after the tenth, twelfth and thirteenth races. No patron responded to the number called out following the tenth race, but patrons responded after their announced numbers were called after the twelfth and thirteenth races. Each of those patrons presented a ticket, spun the wheel, and each won a T-shirt. The Division offered no evidence and was unaware, on August 26, 1998, or thereafter, including at hearing, whether those patrons entered the dog track premises by paying an admission ticket price. On August 26, 1998, three hundred ninety-one patrons attended the track. Two hundred eighty-eight of those patrons or approximately 75% attended the track for free, utilizing free passes made widely available by the Club throughout its market area. On a typical racing day or night in excess of 60% to 70% of the patrons entering the Ebro Greyhound Track facility enter utilizing such free passes, the availability of which is a matter of fairly common knowledge in the track's market area. In accordance with the Division of Pari-Mutuel Wagering requirements, the Club maintains a separate turnstile for patrons entering daily with free passes from those paying an admission fee. Respondent's Exhibit B in evidence is a daily report, submitted to the Division of Pari-Mutuel Wagering, of patrons entering for free as opposed to those who paid an admission fee, including the report for August 26, 1998. It was further the Club's policy that any patron who asks for a free pass at the cashier's window is given one and permitted to enter the track premises free. On August 26, 1998, Division Agent Lee went to the Ebro Greyhound Track, paid a $2.00 admission fee, and used his split- ticket to enter the game promotion. He observed the two patrons who had each won a T-shirt following the twelfth and thirteenth races. He made no attempt to obtain a free admission nor did he inquire as to whether the two patrons who won T-shirts had entered for free. Agent Lee testified that he was unaware at the time he visited the greyhound track on that date that the Club owned the track and conducted the Pari-Mutuel Wagering permit and license, despite the fact that the Division of Pari-Mutuel Wagering, a part of the same department, as the Division, was the source of the request to review the game promotion. Agent Lee thought that the Respondent, Personal Investments, Inc., was conducting the game promotion. In fact, that was not the case, the game promotion was conducted solely by the Club and its employees. Agent Lee testified that on August 26, 1998, as well as on the date of hearing, he had no knowledge or evidence that any agent, servant or employee of the Respondent had set up, promoted or conducted the game promotion or a lottery for money or "other thing of value." Agent Lee also testified that on August 26, 1998, and on the date of the hearing, he had no knowledge or evidence to offer to the effect that Personal Investments, Inc., or its agents, servants or employees attempted to operate, conduct or advertise any lottery scheme or device. Agent Lee was unaware of Division Training Bulletin 93-18 concerning game promotions. This was a memorandum to all District Supervisors of each district office of the Division noting that Section 849.094, Florida Statutes, authorizes game promotions in which the patron must be present to win, provided that the game promotion does not require an entry fee, payment or proof of purchase as a condition for entering the game promotion. Tickets to enter the game promotion are given away without charge by the Club to any patron attending the facility. It is the Division's apparent position that, since Agent Lee paid a $2.00 admission fee to the track and thereafter received his game promotion ticket, that such admission fee constitutes a fee, payment or proof of purchase required as a condition precedent to entering into the subject game promotion. Since almost 75% of the patrons attending the track on the date in question entered free, and since every person entering the track on that date received, without charge, a game promotion ticket, the game promotion ticket cannot be determined to have, as a condition precedent, any fee, payment or proof of purchase as a condition for entry into the game promotion. The "Bud Bowl '99 Sweepstakes" is a common type of game promotion used as an exemplar by the Respondent, the rules of which are depicted in Respondent's Exhibit C, in evidence. That game promotion is approved by the Florida Department of State pursuant to its authority in Section 849.094, Florida Statutes. It is a game promotion in which some but not all participants in fact pay a purchase price and, as part of the purchase, receive a game promotion ticket or piece. The rules of the game contained in Respondent's Exhibit C, reflect that of the 4,429,350, entry forms made available, approximately half are contained within specially marked packages of Anheuser-Busch beer products, which can only be obtained through purchases at stores holding alcoholic beverage licenses. However, one may also enter the "Bud Bowl '99" contest without a purchase and thus in accordance with Section 849.094(2)(e), Florida Statutes, the game promotion does not require, as a condition of entry into it, a fee, payment or proof of purchase. The Ebro game promotion did not award prizes greater than $5,000.00. Thus, unlike the "Bud Bowl '99" game promotion, it did not have to meet applicable requirements for a game promotion offering prizes in excess of such value, including registration with the Florida Secretary of State. It did, however, share the same common requirements as the "Bud Bowl '99" promotion, which is that any entry fee, payment or proof of purchase as a condition of entering the game promotion was not required. Mr. Hess, who testified at hearing for the Respondent, paid $7.48 for a twelve-pack of Anheuser-Busch beer, which contained a "Bud Bowl '99" sweepstakes game promotion ticket therein. He did so without that game promotion being in violation of Section 849.094, Florida Statutes, as determined by the Secretary of State in registration of that promotion. Similarly, Agenct Lee paid $2.00 to enter the Ebro Greyhound Track, and in doing so acquired no more or no less right and opportunity to participate in the Ebro game promotion than did the majority of patrons who entered without having to pay an admission fee. The rules of the "Bud Bowl '99" sweepstakes game promotion submitted to or approved by the Department of State clearly reflect that approximately 50% of entry fees would be contained within Anheuser-Busch product packages which can only be obtained by purchase. The remaining 50% of the entries were made available without a purchase requirement.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the pleadings and argument of the parties, it is RECOMMENDED: That the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco enter a final order dismissing the amended administrative action against Personal Investments, Inc. DONE AND ENTERED this 31st day of March, 1999, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1999. COPIES FURNISHED: Harold F. X. Purnell, Esquire 210 South Monroe Street, Suite 420 Tallahassee, Florida 32301 Bart Schneider, Esquire Department of Business and Profession Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Deborah R. Miller, Director Division of Alcoholic Beverages And Tobacco Department of Business and Profession Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Lynda Goodgame, General Counsel Department of Business and Profession Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007
