The Issue Petitioner's complaint and Petition for relief allege that she was discriminated against due to her handicap of multiple sclerosis when she was terminated by Respondents on March 9, 1990. The issue for disposition is whether that violation of Section 760.10, F.S., occurred, and if so, what relief is appropriate.
Findings Of Fact Leah Swenson-Davis was employed by Respondent, Orlando Partners, as a national sales manager from August 1989, until her termination on March 9, 1990. As sales manager she searched out new business for the hotel, maintained files and obtained repeat business from corporations and other customers. Her salary was $28,000.00 a year. Louis Evans was director of sales, and her supervisor. He hired Ms. Swenson-Davis to book conventions and also hired Barbara Hydechuk and Beth Darkshani as other sales staff. In his opinion Ms. Swenson-Davis was a "pro"; she generated substantial revenue for the hotel and her sales bookings were "much superior" to the other staff. At one point, the three women were promised new office chairs if they could generate 500 room/nights by Friday of the same week. They made their goal, with Ms. Swenson-Davis bringing in 437 out of the total, and the other women bringing in the remainder. In addition to booking hotel rooms, Ms. Swenson-Davis also was effective in selling other hotel services. She generated business from groups who had previously used the hotel but had not been reworked. Her booking packages were very detailed and thorough and she had few cancellations. In February 1990, Barbara Hydechuk was promoted to director of sales, and she took over the responsibility of national sales. Leah Swenson-Davis was hospitalized in February 1990, for what was originally thought to be a stroke. She was then diagnosed as having multiple sclerosis, a disease affecting functions in the nervous system. Hers is not a severe form of the disease and her physician released her to return to work half-time. At the hearing, no signs of illness were evident; that is, she moved and spoke in a perfectly normal manner. When she returned to work, however, Ms. Swenson-Davis was treated "like a leper". Bill Flynn and Barbara Hydechuk made her feel like she would infect them. She was kept at a physical distance. During her absence, Barbara Hydechuk had been promoted. When Ms. Swenson-Davis asked Bill Flynn why she was not informed of the promotion opportunity, he replied that he had worked with Barbara. The work atmosphere, and employees' attitudes toward Ms. Swenson-Davis were very different after her return to work. On March 9, 1990, the Friday before Ms. Swenson-Davis was to pick up her doctor's release to return to work full-time, she was informed by Barbara Hydechuk that she was "terminated immediately" due to lack of productivity in the sales department. Since her termination, Ms. Swenson-Davis has submitted approximately 300 applications with other hotels, and in other sales and marketing areas. She has been given interviews, but has not been hired as of the date of the hearing, although she is capable of working full-time. She received unemployment compensation from March until September 1990. She has accrued medical expenses in the amount of $12,602.00, in 1992, for herself and her son, which expenses would have been covered by her former employer's benefit package. She was insured through COBRA until December 1990, when the premiums went over $500.00 and she could no longer afford them.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Florida Commission on Human Relations enter its final order requiring 1) Reinstatement of Petitioner in the same or equivalent position, 2) damages of back pay computed at the rate of $28,000.00 per year from the time of discharge until reinstatement or rejection of an offer of equivalent employment, less payments received for unemployment compensation; 3) damages in the amount of $12,602.00, representing medical benefits lost; and 4) reasonable costs and attorneys fees. DONE AND RECOMMENDED this 14th day of January, 1993, in Tallahassee, Leon County, Florida. MARY CLARK 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 14th day of January, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-3920 The following constitute specific rulings on the findings of fact submitted by Petitioner: 1. Adopted in paragraph 1. 2.-3. Adopted in paragraphs 2, 3, and 4. 4. Rejected as irrelevant. 5.-6. Adopted in paragraph 6. 7. Adopted in paragraphs 2, 5, and 7. Rejected as contrary to the evidence. Petitioner asked why she was not told of the promotion opportunity. Adopted in paragraph 7. Adopted in paragraph 5. 11.-12. Adopted in paragraph 8. Rejected in part. The complaint in this case relates to wrongful termination, not failure to promote. Moreover, no competent evidence supports a finding that Petitioner would have applied for promotion or was denied promotion on account of her handicap. The other employee was promoted prior to Petitioner's return to work. Adopted in paragraph 9. Rejected as unsupported by the evidence. Basis for the computation is not apparent. Rejected as immaterial. Adopted in substance in paragraph 9, although the $200.00 expense incurred in 2/90 is rejected, as petitioner was still employed at that time. Rejected as unsupported by competent evidence. Rejected as unnecessary, although the recommendation for reinstatement is adopted. COPIES FURNISHED: James A. Kirkland Kirkland Management, Inc. 946 North Mills Avenue Orlando, Florida 32802 Percy Bell K. F. International Host, Inc. 1600 Lee Road Winter Park, Florida 32790 Raymond Rotella Kosto & Rotella, P.A. Post Ofice Box 113 Orlando, Florida 32802 Orlando Partners, Inc. d/b/a Quality Hotel Orlando Airport 3835 McCoy Road Orlando, Florida 32812-4199 Tobe Lev, Esquire Post Office Box 2231 Orlando, Florida 32802 Betsy Kushner, Claim Representative Cigna Property and Casualty Companies Post Office Box 30389 Tampa, Florida 33630-3389 Margaret Jones, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4113 Dana Baird, General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4113
Findings Of Fact Upon consideration of the evidence adduced at the hearing, the following relevant findings of fact are made: Petitioner, Division of Pari-Mutuel Wagering is the state agency charged with the administration and enforcement of the pari-mutuel wagering laws of the state of Florida. Respondent, Ronald F. Kilbride, is an individual who frequents pari- mutuel facilities in the state of Florida for the purpose of wagering. On September 26, 1992, the Respondent was present at the Sarasota Kennel Club and placed several bets on races to be run at the Calder Race Track. On that same day, Respondent placed several bets on races to be run at the Sarasota Kennel Club. On September 26, 1992, at approximately 2:45 p.m., a pari-mutuel wagering ticket, number 42 BOB C22A82A4 (the Ticket), was purchased at Sarasota Kennel Club for a wager on a horse race (race number 5) being run at Calder Race Track. The Ticket was a winning ticket for that race. At approximately 2:55 p.m. on September 26, 1992, Respondent presented what he claimed to be the Ticket, to James Ollie, Mutuel Clerk, Sarasota Kennel Club, at window number 6414 for payment. Ollie accepted the ticket presented by Respondent for payment but did not pay or explain to Respondent why he was not paying for the ticket. After a period of time had elapsed without receiving payment, the Respondent became agitated and asked for, and received, the ticket back from Ollie. There is no evidence that the ticket handed to Ollie by the Respondent at that time was in two pieces or taped together or altered in any fashion. Subsequent to his attempt to cash what Respondent claimed to be the Ticket, Respondent wrote a letter, dated September 27, 1992, to Patrick Mahony, Vice President Mutuels, for Calder Race Course, Inc., enclosing what Respondent claimed to be the Ticket and explaining the circumstances surrounding the attempt to cash that ticket. Before enclosing the ticket referred to in Finding of Fact 7 in the letter mailed to Mahony, Respondent made a copy of the letter and imposed a copy of the ticket mailed to Mahony on the bottom left hand corner of the copy of the letter (Respondent's exhibit 1). The copy of Respondent's exhibit 1 was furnished to John Foley, Investigator, Bureau of Investigation, Division of Pari-Mutuel Wagering, at the time the original letter was mailed to Mahony. The copy of the ticket shown on Respondent's exhibit 1 is a copy of the ticket mailed to Mahony by Respondent by letter dated September 27, 1992. The envelope containing the letter and the two ticket parts indicated that Mahony received the envelope in a damaged condition. Mahony's letter of October 6, 1992 advised Respondent that the ticket was received in two sections which were taped together by an employee of Calder Race Course, Inc. who handled mailed out tickets. After taping the two pieces of the ticket together and attempting to process the taped together ticket, it was discovered by an employee of the mutuel department at Calder Race Course, Inc. that the records indicated the ticket had previously been cashed at Sarasota Kennel Club. The taped together ticket was returned to Respondent. The Respondent made a complaint to the Division concerning his treatment at the Sarasota Kennel Club. As a result of that complaint, the Division commenced an investigation. As a result of that investigation, the ticket that Respondent had received back from Mahony (Petitioner's exhibit 3) was taken as evidence in the investigation. The Florida Department of Law Enforcement (FDLE) was requested by the Division to assist in the investigation by reviewing the ticket to determine if it had been altered, other than it being cut and taped back together. In comparing Petitioner's exhibit 3 with other Autotote tickets, FDLE found that the horizontal bars on the back side of Petitioner's exhibit 3 that had been cut were shorter than the horizontal bars in the same position on other Autotote tickets that had not been cut. It was the testimony of the FDLE expert that cutting a similar Autotote ticket across the horizontal bars in the same place and taping the two pieces back together would not affect the length of horizontal bars that had been cut. It is clear from the unrebutted testimony of the FDLE expert that Petitioner's exhibit 3 had been altered by cutting two Autotote tickets in a similar fashion and taping the opposite pieces of the two cut Autotote tickets together. The copy of the ticket shown on Respondent's exhibit 1 is a copy of a whole Autotote ticket that has not been cut in that there is no line indicating that the ticket has been cut and taped back together before copying or copied as two pieces not taped together. A line indicating where the ticket parts are taped to together is evident on Petitioner's exhibit 3 and the blowup of that same ticket by FDLE (Petitioner's exhibit 8). There are a series of vertical bars under the words AUTOTOTE at the top of each ticket and at the bottom of each ticket which are printed on the ticket at the time of purchase. In comparing the copy of the ticket shown in Respondent's exhibit 1 with the ticket identified as Petitioner's exhibit 3 and the blown up copy of that ticket identified as Petitioner's exhibit 8, the vertical bars at the bottom of each of the above-referenced exhibits appear to be identical. The vertical bars at the top of each of the above-referenced exhibits under the words Autotote appear to be identical starting at the top right hand side and moving left to the vertical bar under the letter "E" in the word Autotote on top left hand side. However, there are two vertical bars on the top left hand side under the letters "O" and "T" in the word AUTOTOTE on the top left hand side of the copy of the ticket shown on Respondent's exhibit 1 that do not appear on either the ticket mailed back to Respondent by Mahony (Petitioner exhibit 3) or the blowup of that ticket (Petitioner's exhibit 8). Other than the two vertical bars referred to in Finding of Fact 16, the information printed on the ticket shown on Respondent's exhibit 1 is the same as printed on the front side of the ticket returned to Respondent by Mahony and identified as Petitioner's exhibit 3 and the blow up of the front side of Petitioner's exhibit 3 identified as Petitioner's exhibit 8. Comparing the copy of the ticket shown on Respondent's exhibit 1 with the ticket identified as Petitioner's exhibit 3, it is clear that if the Respondent had somehow come into possession of the Ticket and cut off the left hand portion of the Ticket as shown in Petitioner's exhibit 3 and replaced it with a similar cut off portion from another ticket that had not been cashed, then the two vertical bars would still appear on the ticket identified as Petitioner's exhibit 3. A one page computer printout allegedly generated by the Autotote Hub entitled "Content of: Daily Ticket Cashed File" for September 26, 1992 list the Ticket as being sold at Window 6410 by Teller 5774 at a cost of $150.00 with a dividend value of $3425.00. This document does not list the window number at which the Ticket was cashed or the teller cashing the Ticket or the time the Ticket was cashed. There was no witness from Autotote to testify as to the significance of this computer printout. However, Mr. Snyder testified that the Ticket was cashed by James Ollie, Mutuel Clerk, at Window 6414, on September 26, 1992, but there was no evidence as to the time of day the Ticket was cashed. Mr. Ollie testified that the Ticket was presented to Ollie for cashing by a Mr. Dean who was referred to as "Santa Claus", for the obvious reasons of giving gifts to individuals, including employees of the track. Mr. Ollie also testified that he misplaced the Ticket after it was cashed and that he was suspended for a period of time by the Sarasota Kennel Club for carelessness. When a winning ticket is cashed by a teller or mutuel clerk the number of the window where the ticket is cashed and the amount won by the ticket holder is stamped on the blank space on the far left hand side of the ticket (the blank area to the left of information printed on the ticket at the time of purchase). This is referred to as a brand which signifies that the ticket has been cashed. After a ticket is cashed it is required that the track keep the ticket on file for, among other things, accounting purposes to the state of Florida and Internal Revenue Service. There is competent substantial evidence in the record to establish facts to show that the ticket Respondent received back form Mahony had been altered. Likewise, there is competent substantial evidence in the record to establish facts to show that the ticket Respondent mailed to Mahony was not altered at the time Respondent mailed the ticket to Mahony. The Respondent did not communicate with Thomas Hughes on September 27, 1992 by telephone or any other mode of communication at any time relevant to this proceeding for the purpose of discussing how to alter a ticket that had already been cashed and branded so that the ticket could be cashed again and did not verbally, or in any other manner, threaten Hughes with bodily harm for disclosing the alleged conversation, notwithstanding the testimony of Hughes and Shirley Griffon to the contrary. Such testimony lacks credibility. The Respondent did not verbally, or in any other manner, threaten James Ollie with bodily harm at any time relevant to this proceeding, notwithstanding the testimony of Shirley Griffon, Dwight Holloman and James Ollie and the Report of Private Ejection to the contrary. Such evidence lacks credibility. The Respondent may have been loud at times and his manner considered offensive by some of the employees at Sarasota Kennel Club. However, the Division has failed to present competent substantial evidence to establish facts to show that Respondent verbally, or in any other manner, threatened any employee of the Sarasota Kennel Club with bodily harm at any time relevant to this proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner enter a final order dismissing or rescinding Petitioner's Order of Patron Exclusion and Notice of Right to Hearing filed against the Respondent. RECOMMENDED this 15th day of October, 1993, at Tallahassee, Florida. WILLIAM R. CAVE 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 October, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1403 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the Petitioner in this case. Petitioner's Proposed Findings of Fact. The following proposed finding of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Findings of Fact which so adopts the proposed finding(s) of fact: 1(1); 2(4, except date is September 26, 1992 not 1993); 3(22-24); 4(7-9,15); 5-11(10,11,11,11,12,12,and 25, respectively) Proposed finding of fact 12-15 are not supported by competent substantial evidence in the record, but see Findings of Fact 29 - 31. Proposed finding of fact 16 and 17 are more argument than Findings of Fact. Proposed finding of fact 18 - 20 are rules and statutes and are more appropriately placed in the conclusions of law. Respondent's Proposed Findings of Fact. Respondent elected not to submit any proposed findings of fact. COPIES FURNISHED: Joseph M. Helton, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ronald F. Kilbride, pro se 5681 Westwind Lane Sarasota, Florida 34231 Jack McRay, Esquire Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William E. Tabor, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether the $124.00 penalty assessed against Respondent by the Department of Transportation is legally and mathematically correct.
Findings Of Fact The maximum legal weight allowed for vehicles traveling on a Florida state highway is 80,000 pounds. On November 18, 1991, a commercial motor vehicle owned and operated by Respondent was driving on State Road 15, also known as U.S. Highway 1, in Nassau County, Florida. At that time and place, DOT Weight Inspector R. S. Young weighed Respondent's vehicle on the pit scale at the Hilliard Weigh Station at approximately 23:32 (11:32 PM), using a "split weigh" method because the vehicle exceeded the 56 feet which the DOT scale would accommodate. Inspector Young filled out the Load Report indicating three separate axle weights of the vehicle with a total weight of 82,480 pounds, which exceeded the maximum weight restriction by 2,480 pounds. The fine imposed was $124.00, calculated at five cents per pound by which the scale weight of the vehicle exceeded the maximum weight of 80,000. Respondent paid the fine. The scale at the Hilliard Weigh Station which was used by Inspector Young on November 18, 1991 had been inspected and certified pursuant to statute by the Florida Department of Agriculture on July 24, 1991, four months before the weighing of Respondent's vehicle. On March 4, 1992, approximately five months after Respondent's vehicle was weighed, the Hilliard Weigh Station scale was again inspected and certified by the Florida Department of Agriculture. Neither time was there a discrepancy in true weight which would have materially affected the weighing of Respondent's truck on November 18, 1991. Affording Respondent's position every benefit of the doubt, it is possible, but not proven, that the Hilliard Weigh Station scale could have weighed 80 pounds heavier than the truck's true weight on November 18, 1991. Respondent contended that he had "split weighed" his loaded vehicle earlier on November 18, 1991 on a commercial Howe scale and that the Howe scale weight was accurate in showing his vehicle weighed under the 80,000 pound statutory limit, as opposed to the weight at the Hilliard Weigh Station later the same day, which weight showed the loaded vehicle weighed over the 80,000 pound statutory limit. All witnesses are agreed that if done correctly, a "split weigh" is reasonably accurate for multiple tandem, multiple axle vehicles longer than 51 feet, and it is unrefuted that many of these types of weigh-ins are done regularly at the Hilliard Weigh Station and throughout the industry. The method is specifically permitted for use by law enforcement, in this instance, by DOT. However, the expert testimony of Mr. Robert Garris, Supervisor of Weights and Measures for the State of Florida Department of Agriculture and Consumer Services, is accepted that "split weighs" on a Howe scale are "assuredly inaccurate" because such scales are not manufactured to be used with "split weighs" and that, although DOT is authorized, for law enforcement purposes, to do "split weighs", DOT's scales also are not necessarily any more accurate for use with the "split weigh" method than the Howe commerical scale. Therefore, it is found that if it could be shown by competent evidence that the Howe scale "split weigh" and the Hilliard scale "split weigh" were each done correctly and showed different weights, one weight being "over" and one weight being "under" the statutory limit, DOT could not prevail herein by a preponderance of the evidence. Respondent presented a weight ticket purportedly showing that this loaded vehicle had a gross weight of 76,600 pounds on the Howe scale at 14:29 (2:29 PM) on November 18, 1991, also achieved by a "split weigh" method. Although self-serving, Respondent's direct testimony to this effect is unrefuted, as is his direct testimony that when he weighed his loaded truck on the Howe scale, the Howe scale bore a current Florida Department of Agriculture certification seal. However, the four weights printed automatically onto the Howe scale weight ticket do not add up to the pencilled "76,600" handwritten thereon. Upon Respondent's direct testimony and supporting exhibits, it was also shown that a commercial Certified Automated Truck Scale (CAT Scale) had recorded the gross weight of Respondent's front two axles as only 19,280 pounds on October 9, 1991. The CAT scale, which renders a "full platform" gross weight, provides a more accurate gross weight than the "split weigh" method, but this weigh-in occurred approximately a month before the weighing of Respondent's truck at the Hilliard Weigh Scale on November 18, 1991 and accounted for only two axles and no load. Respondent contended that if one added together the weight of his load as stated by the shipper on his November 18 bill of lading, the manufacturer's weight of 9500 pounds as stamped on the side of the trailer, a weight he personally estimated for nylon ropes to secure the load, possible fuel intake, and the CAT weight of his vehicle's front two axles, Respondent's vehicle weight on November 18 would still have been under 80,000 pounds when it reached the Hilliard scale, and Respondent would not have been subject to an overweight assessment and fine. However, this scenario is speculative. It is speculative because of insufficient predicate for the accuracy of some of the figures named, due to the failure of the numbers on the Howe scale ticket to add up as specified by Respondent, and due to the margin for error when only two axles were weighed a month earlier on the CAT scale.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Transportation enter a Final Order ratifying the assessment and penalty of $124.00. DONE and RECOMMENDED this 17th day of September, 1992, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The De Soto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17 day of September, 1992. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 92-1872 The following constitute specific rulings, pursuant to S120.59 (2), F.S., upon the parties' respective proposed findings of fact (PFOF) Petitioner's PFOF: 1-6, 8 (There is no "6", but the unnumbered paragraph between "5" and "7" is treated as "6") Accepted. 7 Accepted in part and rejected in part because of Respondent's direct testimony which established certain facts found. Respondent's PFOF 1, 13 Accepted that some of this is what the shipper told Respondent and placed on the bill of lading, but it remains hearsay and unpersuasive on the dispositive issue of true weight in light of other exhibits and testimony. Accepted except where contrary to the probative evidence and rejected as unproven and also rejected where unnecessary, subordinate, or cumulative. Specifically, the numbers show a print out of 4 axles, not 3, or four printed items for gross, tare and net pounds. It is not clear which. Also, the total of the four figures are in excess of legal weight limits. See Exhibit R-1. Rejected as not of record and rejected as legal or persuasive argument as opposed to a proposed finding of fact; rejected as not dispositive and as not persuasive. The first sentence is accepted. The remainder is rejected as mere legal or persuasive argument. 5-6, 8-10 Accepted except where unnecessary, subordinate, or cumulative. 7,14 Rejected because much of this is not of record. Otherwise it is unnecessary, subordinate, or cumulative. 20-21, 23 Accepted, except that Mr. Garris did not testify that the Howe scale was certified or accurate. This was Respondent's testimony. 11-12 Rejected as stated because not supported by the record as a whole. Covered accurately in the RO. 15-18 These calculations are rejected as speculative and not supported by any weight ticket. Legal and persuasive arguments are also rejected as not factual proposals. 19 Accepted, but unnecessary, subordinate and cumulative. 22, 24 Rejected as legal and persuasive argument only, not factual proposals. COPIES FURNISHED: Carolyn S. Holifield Chief, Administrative Law Section Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Mrs. Thomas Bachota 201 North Shaffer Street Milford, Indiana 46542 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 ATTN: Eleanor F. Turner, M.S. 58 Thornton J. Williams, General Consel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0458
The Issue The issue posed for decision herein is whether or not the Petitioner, State Board of Independent Post-Secondary Vocational, Technical, Trade and Business Schools (Petitioner or Board), properly denied issuance of a license to Respondent to operate a school, as defined in Subsections 246.201-246.231, Florida Statutes.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying and the entire record compiled herein, the following relevant facts are found: The Board is an agency of the State of Florida charged with the administration and processing of licenses for schools falling within the guidelines of Subsection 246.215(1), Florida Statutes. On February 14, 1978, Earl R. Edwards, Executive Director of the Board issued a report on Respondent's license application for licensure, and the Board recommended denial of such based upon, inter alia, the fact that the Respondent failed to provide certain information, as required by Chapter 6F-5.01(1)(g)4,A- Specifically, the Petitioner's curriculum catalog failed to contain information relative to: A school calendar, including legal holidays, and beginning dates for courses. Chapter 6F-5.01 (1)(g)4c, Florida Administrative Code. A school policy relative to a record of progress kept by the school and available to the student. (Chapter 6F-5.01(1)(g)4f, Florida Administrative Code.) The school's refund policy, Chapter 6F-5.01 (1)(g)4, (i). As such, there is a stated failure to comply with the provisions of Chapter 6F-5.01(1) (f)11. The school's policy relative to the granting of credit for previous training as set forth in Chapter 6F-5.01(1)(g)4,1, Florida Administrative Code. The school's policy relative to granting an award for successful completion of the course. (Chapter 6F-5.01(1)(g)4,m.) Respecting the Respondent's failure to abide by a permissible refund policy, Karen Fishbaum, of Lauderhill, Florida, contacted Respondent at the subject school during December of 1977. Miss Fishbaum expressed interest in becoming a model. She was shown around the school by Mr. R.E. Denson, the school director and owner. Miss Fishbaum tendered to Mr. Denson a $75.00 check and signed a contact to enroll in the school. She was given a course outline, an introductory letter, and a receipt for the $75.00 enrollment fee. Within 72 hours, Miss Fishbaum advised the Respondent of her desire to cancel her enrollment, as provided for in the school's enrollment contact. This cancellation was effected a telephone call and a telegram to Mr. Denson prior to the expiration of the three-day grace period allowed for cancellation. Mr. Denson advised Miss Fishbaum that he was entitled to retain approximately $25.00 of the amount which she paid for tuition. Within a few days, Miss Fishbaum received a check drawn by Respondent in the amount of approximately $50.00, representing Respondent's refund of her tuition. According to Miss Fishbaum, the Respondent explained to her that her course of instruction would last approximately 30 hours. Miss Fishbaum later enrolled at the Gayle Carson Modeling School in Hollywood, Florida, during the spring of 1977. Earl R. Edwards, the Board's Executive Director, is in charge of administering exams, analyzing and otherwise approving applications for licensure by the Board. Mr. Edwards first came in contact with the Respondent, Cinderella Modeling and Finishing School, during mid-February of 1976. Respondent was notified of its necessity to file an application and receive licensure by the Board. Respondent, at that time, was given a copy of the pertinent Florida Statutes and the rules and regulations relative to licensure requirements. Despite such notice, Respondent continued to operate with a license until he was enjoined by the Circuit Court in and For Dade County, Florida. (Petitioner's Exhibit No. 7). It was based on such acts and conduct that the Board, during its March, 1978 meeting, denied granting a license to Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the action of the agency in denying licensure to the Respondent be sustained. DONE and ENTERED this 29th day of September, 1978, at Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings 101 Collins Building MAILING ADDRESS: 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 1978. COPIES FURNISHED: Gene T. Sellers, Esq. Office of the General Counsel Knott Building Tallahassee, FL 32304 R.E. Denson, School Director Cinderella Modeling and Finishing Schools of Coral Gables 276 Miracle Mile Coral Gables, FL 33134 Mr. Earl Edwards Executive Director of the State Board of Independent Post-Secondary Vocational, Technical, Trade and Business Schools Knott Building Tallahassee, FL 32304 =================================================================
The Issue Whether proposed rules 61D-7.021(5)(f) and 61D-7.021(5)(g) are invalid exercises of legislative delegated authority pursuant to Subsection 120.52(8), Florida Statutes (2004),2 and, if so, whether Petitioner is entitled to an award of costs and attorney's fees pursuant to Subsection 120.595(2), Florida Statutes.
Findings Of Fact Calder is a Florida corporation and a pari-mutuel permitholder permitted and licensed by the Department pursuant to Chapter 550, Florida Statutes. Calder seeks to challenge proposed amendments to Florida Administrative Code Rule 61D-7.021. Specifically, Calder challenges Subsection (5)(f), as noticed in the Florida Administrative Weekly, Volume 30, Number 32, August 6, 2004, and Subsection (5)(g), as noticed in the Florida Administrative Weekly, Volume 30, Number 21, May 21, 2004.3 The challenged amendments shall be referred to as the "Proposed Rules." The Proposed Rules provide: For tickets cashed more than 30 days after the purchase of the ticket, the ticket may not be cashed at any type of patron- operated machine or terminal. The totalisator system must be configured to instruct patrons on how to cash the ticket. The totalisator system must have the ability to identify such tickets and indicate to a teller that the ticket falls within this category. Calder is a licensed and permitted pari-mutuel facility which sells tickets and uses totalisator machines, and the Proposed Rules would govern the operation of such facility. The Proposed Rules have the effect of directly regulating the operation of Calder's pari-mutuel facility, and, as such, Calder is substantially affected by the Proposed Rules. The parties have stipulated that Calder "may properly challenge both Proposed Rules 61D-7.021(5)(f) and 61D-7.021(5)(g)." A pari-mutuel ticket evidences participation in a pari-mutuel pool. A winning or refundable pari-mutuel ticket belongs to the purchaser and may be claimed by the purchaser for a period of one year after the date the pari-mutuel ticket was issued. An "outs" or "outs ticket" is a winning or refundable pari-mutuel ticket which is not redeemed. If a ticket remains unclaimed, uncashed, or abandoned after one year from the date of issuance, such uncashed ticket escheats to the state unless the ticket was for a live race held by a thoroughbred permitholder such as Calder, in which case the funds are retained by the permitholder conducting the race. A totalisator machine is "the computer system used to accumulate wagers, record sales, calculate payoffs, and display wagering data on a display device that is located at a pari- mutuel facility." § 550.002(36), Fla. Stat. The Department was prompted to begin the rulemaking process for the Proposed Rules by two major cases involving fraud, one Florida case and one national case. The Florida case involved two totalisator employees named Dubinsky and Thompson, who allegedly accessed outs ticket information in the totalisator's central computer system, counterfeited outs tickets based on the information, and cashed the tickets at self-service machines at two pari-mutuel wagering facilities. The fraudulent conduct involved approximately $13,000. In the Florida case the fraudulent tickets were cashed several months after the tickets were said to have been issued. The fraud came to light when the ticketholder who held the true ticket attempted to cash the ticket, but could not because the fraudulent ticket had been cashed. The national case also involved a totalisator employee who cashed fraudulent outs tickets. In the national case, the fraudulent tickets were cashed less than 30 days after the date the tickets were purportedly issued. The purpose of the Proposed Rules is to deter the cashing of fraudulent tickets. The Department received comments from AmTote International, a totalisator company, at the rule workshop held during the rulemaking process and received written comments submitted by AmTote International after the workshop, indicating that the majority of tickets are cashed within six to nine days after the date of issuance. The older a ticket gets the less likely it becomes that the ticket will be cashed, and the less likely that it becomes that the cashing of a fraudulent ticket would be revealed by the true owner attempting to cash the ticket. Staff of the Department felt that by requiring that outs tickets older than 30 days be cashed by a live person, a thief would be deterred because he would be dealing with a person rather than a machine. The only thing that the self- service machine requires to redeem a ticket is a bar code, so it would be possible to submit a ticket containing nothing but the bar code and receive a voucher which could be submitted to a teller for money.4 If the fraudulent ticket looks different in anyway from a valid ticket, a teller may be able to spot the difference and question the transaction. Calder argues that the way to deter the fraud which has occurred is to stop totalisator employees from being able to print fraudulent tickets. However, the Department is also concerned about computer hackers potentially getting into the computer system which contains the outs tickets numbers and copying the bar code which could be submitted to a self-service machine. By regulating the method of cashing outs tickets, the Department is attempting to deter fraud by totalisator employees and others who may be able to access outs tickets information which could be used in producing counterfeit tickets. During the rule making process, the Department held a workshop, received written comments from the public, and held a hearing to receive comments from the public after the Proposed Rules were first noticed. The Department considered the comments it received and modified the Proposed Rules as noticed in the Notice of Change published on August 6, 2004, to accommodate some of the comments. Calder did not submit a good faith, written proposal for a lower cost regulatory alternative within 21 days after the notice of the Proposed Rules was published in the Florida Administrative Weekly on May 21, 2004, or after the Notice of Change was published.
Findings Of Fact Lawrence Morehouse is employed as a full time faculty member by the University of South Florida (USF). At all times material to this case, parking of vehicles on the campus is regulated by USF authorities. USF parking regulations are enforced by personnel of the USF Division of Parking Services from 8:00 a.m. to 8:30 p.m. on Monday through Thursday, and from 8:00 a.m. to 5:00 p.m. on Friday. At all other times, USF parking regulations are enforced by campus police. A campus parking regulation violation is documented by a handheld electronic ticketing device which records the information and prints a notice of the violation. The printed notice is left at the vehicle for the driver to discover. A driver who believes a citation to be unfair may immediately bring the ticket to the counter clerk at the offices of the USF Division of Parking Services. The clerk is authorized to waive the fine if the individual circumstances of the case warrant waiver. The clerk records the waiver in the Division of Parking Services database. A written notice of the waiver is provided by the clerk upon the driver's request. In addition to appeal via the counter clerk, an aggrieved driver may also meet with a University Parking Appeals Mediator to discuss the matter. The driver may also file a written appeal of the ticket. If a driver remains unsatisfied after the matter is adjudicated by the mediator or by the committee which reviews written appeals, the driver may appeal the ticket to the USF Final Appeals Committee. The committee is made up of students, faculty and staff. A late fee of $13 is added to each fine imposed if the ticket remains unpaid more than ten days after adjudication is final. On June 14, 1993, Mr. Morehouse received a ticket for parking facing the direction of the traffic, a violation of campus parking restrictions. The fine for this violation is $10. Mr. Morehouse asserts that he immediately spoke to the counter clerk about the June 14 ticket and the fine was waived. There is no documentation to support his assertion. The testimony is not persuasive. On June 20, 1993, October 6, 1993, December 8, 1993, June 2, 1994 and June 7, 1994, notices of violation were provided to Mr. Morehouse for parking without a current university tag on his car. Mr. Morehouse testified that on one of these occasions, he filed a written notice of appeal. Although a hearing was convened, Mr. Morehouse did not attend the hearing because of a scheduling conflict. He did not inform appeals committee members of the conflict or advised them that he would not attend the hearing. There is no evidence that Mr. Morehouse made any attempt to appeal the four other tickets he received for parking without a current USF tag. The six tickets remain unpaid. An additional $13 late fee has been imposed on each ticket. Delinquency notices on all the tickets were sent to Mr. Morehouse. He made no apparent effort to respond to the notices. Toward the end of 1994, the matter was referred by USF Parking Services division to the USF Division of Finance and Accounting collections manager. The collections office issued monthly bills for the sum of the fines to Mr. Morehouse for approximately six months. There is no evidence that Mr. Morehouse responded to the billing. At the close of the six month billing period, a certified letter was sent to Mr. Morehouse, stating that the amount could be deducted from his paycheck and advising of his right to a hearing. Mr. Morehouse requested a hearing.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the University of South Florida enter a Final Order deducting the lump sum of $188 from the next salary warrant issued to Lawrence Morehouse. DONE and RECOMMENDED this 26th day of September, 1995 in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 26th day of September, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2718 To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order. Respondent The Respondent did not file a Proposed Recommended Order. COPIES FURNISHED: Betty Castor, President Office of the President University of South Florida 4202 East Fowler Avenue, ADM 241 Tampa, Florida 33620 Noreen Segrest, Esquire Acting General Counsel University of South Florida 4202 East Fowler Avenue, ADM 250 Tampa, Florida 33620 Debra A. King, Esquire University of South Florida 4202 East Fowler Avenue, ADM 250 Tampa, Florida 33620 Lawrence Morehouse 2610 Drumwood Place Valrico, Florida 33594
