The Issue Whether WKDR II, Inc. (WKDR), is jurisdictionally time-barred from bringing the challenges in Case Nos. 21-0844 and 21-0845 to contest the Department of Revenue's (Department) tax assessment and subsequent freeze of WKDR's bank account to attempt to collect on the assessment.
Findings Of Fact The Department administers Florida's sales tax statutes and performs audits to ensure compliance with sales tax laws. WKDR is a Ford franchise car dealership operating as LaBelle Ford. WKDR is organized as an "S" corporation and is wholly owned by Douglas Plattner (Mr. Plattner). WKDR's address is 851 South Main Street, LaBelle, Florida 33935 (851 South Main Street). Mark Smith (Mr. Smith) is a self-employed certified public accountant (CPA) at the firm of Smith and Waggoner CPAs. He is the CPA for Mr. Plattner and WKDR. Mr. Smith's business mailing address is 115 Tamiami Trail North, Suite 7, Nokomis, Florida 34275 (115 Tamiami Trail). On or about March 21, 2019, the Department began a sales tax audit of WKDR for the period of March 1, 2016, through February 28, 2019 (audit period). WKDR was notified of the audit through a Notice of Intent to Audit Books and Records, dated March 21, 2019. Jeff Barnard (Mr. Barnard) was a tax auditor for the Department. Mr. Barnard was responsible for examining the books and records of various taxpayers for compliance with Florida tax laws. Mr. Barnard retired from the Department in May 2021. He was employed by the Department for 30 years. He spent the last 15 years with the Department as a Tax Auditor IV—the most senior tax auditor position at the Department. Mr. Barnard was responsible for the tax audit of WKDR for the audit period. On or about July 30, 2019, Mr. Smith sent the Department a fully executed Power of Attorney/Declaration of Representative form (POA form) to appear as WKDR's representative in connection with the Department's audit. The POA form was completed and signed by WKDR's owner (Mr. Plattner) and its CPA (Mr. Smith). The POA form gave Mr. Smith authority to speak and act on WKDR's behalf for the Department's audit. The POA form correctly states the mailing addresses of both WKDR and its CPA/representative, Mr. Smith. It also correctly states the e-mail address and fax number for Mr. Smith. Mr. Smith entered WKDR's address in section 1 of the POA form. The POA form included spaces for a contact person's name, telephone number, and fax number at WKDR, but those spaces were left blank in the form signed by Mr. Smith and Mr. Plattner. The POA form signed by both Mr. Smith and Mr. Plattner set forth the name, address, telephone number, and fax number of Mr. Smith’s CPA firm in section 2 of the POA form. Section 6 of the POA form provides as follows: Notices and Communication. Do not complete Section 6 if completing Section 4. Notices and other written communications will be sent to the first representative listed in Part I, Section 2, unless the taxpayer selects one of the options below. Receipt by either the representative or the taxpayer will be considered receipt by both. If you want notices and communications sent to both you and your representative, check this box. If you want notices or communications sent to you and not your representative, check this box. Mr. Smith completed section 6 by checking option "a," indicating that they wished to have notices and communication sent to both the taxpayer (WKDR) and the representative (Mr. Smith). Mr. Smith's e-mail address was added on the POA form by the Department's employee, Lisa Weems, after she called Mr. Smith's telephone number to obtain his e-mail address. All other information was added by Mr. Smith after consultation with Mr. Plattner, before they both signed the form. Throughout the audit, the Department's auditor, Mr. Barnard, primarily communicated with WKDR through its designated representative—Mr. Smith—at his mailing address and e-mail address. This included multiple requests for documents. At times, Mr. Barnard communicated directly with Mr. Plattner while copying Mr. Smith on the correspondence. Mr. Barnard sent a letter dated November 14, 2019, by regular mail, to WKDR at 851 South Main Street, with a copy to Mr. Smith at 115 Tamiami Trail. Mr. Smith testified that he received and read this letter. The November 14 letter provided WKDR and Mr. Smith with notice that, as things stood on that date, a NOPA was imminent. The letter stated, in pertinent part: On September 20th, we wrote you a letter requesting the information needed to complete the audit of WKDR II Inc. and the DR54 Formal Notice of Demand to Produce Certain Records. The letter stated that your failure to provide the information be [sic] September 27, 2019 may result in an assessment. That is, the implementation of alternative audit procedures to estimate a liability based on the best available information. As of the date of this letter you have not complied with our request. Therefore, enclosed is the Notice of Intent to Make Audit Changes (DR1215) and the audit work papers, which are an estimate based upon the best information available as provided in Section 212.12(5)(b), Florida Statutes. You have 30 days to review the audit adjustments, which expires on December 16, 2019. * * * If we do not hear from you by December 16, 2019, the audit file will be sent to Tallahassee so that the Notice of Proposed Assessment (NOPA) can be issued to you. The NOPA is the formal notice of the amount due. The NOPA will also provide the procedures for filing informal and formal protests. The Notice of Intent to Make Audit Changes, which was included with the November 14 letter, listed a "balance due through 11/14/2019" of $1,157,025.16. This sum included taxes of $801,967.01, a penalty of $200,491.75, and interest of $154,566.40. The notice also explicitly laid out WKDR's opportunities to informally protest this preliminary sum through a conference with the auditor or the auditor's supervisor. It provided that after the 30-day informal conference period expired, a NOPA would be issued. On December 20, 2019, Mr. Barnard sent an e-mail to Mr. Plattner with a copy to Mr. Smith. Attached to the e-mail was a letter of the same date. The letter provided as follows: On November 14, 2019, a Notice of Intent to Make Tax Audit Changes (DR-1215) was issued with additional tax due of $801,967.00. The 30 day informal protest period with the Service Center was up December 13, 2019.[2] Although your representative, Mark Smith, did provide some sales invoices after issuance of the DR-1215 they did not represent a full month of invoices as requested. Please be advised all sales invoices for December 2018 must be provided by January 3, 2020 for any changes in the assessment to be considered. These invoices should consist of same for all new and used vehicle sales, parts sales, service invoices/tickets, and autobody invoices for December 2018. As indicated in the December 20 letter, one month before the NOPA was issued, Mr. Barnard notified Mr. Smith and Mr. Plattner that the 30-day informal protest period expired on December 13, 2019. Mr. Smith's testimony on this matter was evasive. At first, he acknowledged that he received the December 20 letter. However, after objection from WKDR's counsel, Mr. Smith backtracked and denied receipt. His attempted denial was not credible and is not credited. The undersigned finds that Mr. Smith received the December 20 letter. Mr. Barnard sent another letter, dated January 7, 2020, by regular mail to Mr. Plattner, and by e-mail to both Mr. Plattner and Mr. Smith, which stated as follows: Please be advised the information necessary to make an adjustment to the audit results issued on November 14, 2019 has not been provided. As stated in our December 20, 2019 letter this information was sales invoices for all new and used vehicle sales, parts sales, service invoices/tickets, and autobody invoices for the entire month of December 2018. 2 The Notice of Intent to Make Tax Audit Changes sent on November 14 provided a deadline of December 13 for the 30-day informal conference period, while the e-mail sent on December 20 referenced a deadline of December 16. The discrepancy in the December 20 letter is immaterial as both deadlines (December 13 and 16) had passed by the date of the December 20 letter. The audit will be closed and a Notice of Proposed Assessment will be issued shortly. Once again, Mr. Smith’s testimony was evasive. After seemingly admitting he received and read the January 7 letter, Mr. Smith testified that he did not receive the January 7 letter. The undersigned found Mr. Smith's testimony on this point wholly untruthful. At the hearing, during cross-examination, the Department's counsel asked Mr. Smith about his actions and impressions after receipt of the January 7 letter in the following exchange: Q. Let's go to Exhibit 22, which is Bates Number 00081. This is another e-mail sent to you on January 7th, 2020 to Mr. Plattner showing a carbon copy to Mr. Mark Smith CPA POA. The third sentence states; "The audit will be closed and a notice of proposed assessment will be issued shortly." Does that mean that the audit is still open or the audit is closed? A. That, like I said, I mean, I've -- I've dealt with audits where they say they're going to do this and do that and it's taken them two years to send anything. Q. This letter dated January 7th, 2020 does not give a new deadline, does it? A. It does not appear to but -- yeah, it does not appear to. Q. In fact, it says the audit is closed. That means that it's done, right? A. No. I don't -- I -- not necessarily. Q. It also says that the notice of proposed assessment will be issued shortly. So you knew at this time, the NOPA was imminent, right? A. Not necessarily. Q. Is there any language in this letter indicating that WKDR has any more time to provide additional documents? A. I've worked with the State before and they've provided us additional time quite often. Q. In fact, the auditor did provide you a deal -- a great deal of additional time to have the audit, didn't he? A. Well, we provided him so many documents that we thought he needed more time too. The whole tenor of Mr. Smith's testimony was to acknowledge that he read and understood the January 7 letter to say the NOPA was imminent, but that he knew from his experience the NOPA was "not necessarily" imminent. Notably, when asked if he knew at that time that the NOPA was imminent, Mr. Smith did not say that he did not know that because he did not receive or read the January 7 letter when it was sent to him by e-mail. Mr. Smith provided answers to these and several other questions about what he did or did not do in response to the January 7 letter. It was not until after an objection by WKDR's counsel that, as before, Mr. Smith backtracked to say that he did not receive the letter. In making the finding that Mr. Smith was untruthful when he testified that he had not received the January 7 letter, the undersigned had the distinct opportunity to observe the demeanor of Mr. Smith during testimony on this issue. He was not credible and his belated denial is not credited. The undersigned finds that Mr. Smith received the January 7 letter, reviewed it, and hoped that he could buy more time as he had thought he might be able to. Testimony of Lisa Weems Ms. Weems is a Revenue Specialist III for the Department. She has worked for the Department, in its Compliance Standards Section, for over 15 years. In addition to other tasks, Ms. Weems is responsible for printing NOPAs to send out to taxpayers and their representatives. Ms. Weems testified in great detail about the process she uses to send out NOPAs. When a NOPA is issued, it is uploaded to the Department's system overnight and cannot be printed until the following morning. Because of this, Ms. Weems sends out NOPAs only four days a week—Tuesdays, Wednesdays, Thursdays, and Fridays. Ms. Weems prints and mails out approximately 400 NOPAs per week. On the day of the final hearing, she had mailed out 88 NOPAs. Ms. Weems has a system in place to keep track of the NOPAs she sends out. Ms. Weems clearly and credibly testified about the process she used to send out NOPAs and when and by what means she used to send the NOPA to WKDR and its representative in this case. Each NOPA is mailed out in a packet that includes four documents: the NOPA, NOPA Remittance Coupon, Tax Audit Satisfaction Survey, and a document titled How to Pay Your Audit Assessment and Notice of Taxpayer Rights. The packets are sent by USPS first-class mail. WKDR's NOPA was issued on January 13, 2020. It had to load in the Department's system overnight, so it was printed on January 14, 2020. WKDR's NOPA assessed taxes of $801,967.01, a penalty of $200,491.75, and interest of $166,431.12, for a total due by WKDR of $1,168,889.88 following the audit.3 3 The amount of the taxes assessed and penalty remained the same as was listed in the Notice of Intent to Make Audit Changes. The amount of the interest had increased. The interest listed in the Notice of Intent to Make Audit Changes was for the period up to November 14, 2019. The NOPA specified that the deadline to request a formal hearing before DOAH was May 12, 2020, or 60 days from the date the assessment becomes a final assessment. The Notice of Taxpayer Rights provided detailed instructions on how to contest the assessment and provided further details on the timelines and deadlines to do so. Ms. Weems sent WKDR and Mr. Smith copies of the NOPA by USPS first-class mail on January 14, 2020. On January 14, 2020 (the day after the NOPA was uploaded), Ms. Weems printed an original and copy of WKDR's NOPA. She placed the original NOPA and the other three documents in a window envelope, addressed to WKDR at 851 South Main Street. A copy of the NOPA, along with the three other documents, were placed in another envelope, addressed to Mark Smith, CPA, at his business mailing address, 115 Tamiami Trail. Ms. Weems testified that she created a mail log sheet, wrapped the log sheet around the envelopes, and placed both of these NOPA envelopes in the outgoing mail basket. After placing the items in the outgoing mail basket, a Department employee from Building L picks up the outgoing mail and mails it out. Ms. Weems testified that she has mailed NOPAs this way for over 10 years. Ms. Weems testified that it was her practice, and what she was taught by the Department, to send NOPAs that had assessments for over $100,000.00 by fax and e-mail, in addition to regular mail.4 WKDR's assessment was for an amount greater than $100,000.00. On January 16, 2020, Ms. Weems sent a copy of the NOPA to Mr. Smith by fax transmission. 4 It must be noted that the Department's internal policy to send NOPAs with assessments over $100,000.00 by e-mail and fax is an unadopted rule; however, it is not necessary to rely on it as the basis for the determination in this matter. See § 120.57(1)(e)1., Fla. Stat. Ms. Weems sent the fax to Mr. Smith's fax number, which was provided on the POA form. Ms. Weems used a fax coversheet when sending the fax. The coversheet recorded several important pieces of information. It provided the case number and the taxpayer's name (WKDR). Two boxes on the fax coversheet were checked—a box indicating there was a "POA" (Power of Attorney) in the file and a box indicating the NOPA was to be sent to the "POA." Ms. Weems also made some notes on the fax coversheet. She wrote: "original notice mailed 1/14/20," "email: mark@swagcpa.com," and "(8) pages." Ms. Weems testified that the reference to eight pages represented the amount of pages she faxed. These pages included the four documents sent by USPS first-class mail mentioned above. After faxing the documents to Mr. Smith's fax number, Ms. Weems received a fax transmission report. The report indicated "Results OK." The term "OK" on a fax transmission report is generally accepted as meaning that the transmission was completed successfully. On January 16, 2020, Ms. Weems also sent a copy of the NOPA and Notice of Taxpayer Rights to Mr. Smith by e-mail. Ms. Weems sent the e-mail to Mr. Smith at mark@swagcpa.com—the e-mail address she obtained from Mr. Smith's office, and which he confirmed was his through testimony at the hearing. The e-mail's subject line stated "Audit Number 200262550-010 WKDR II, INC." The e-mail stated as follows: Please respond back to me by e-mail letting me know you did receive the Notice of Proposed Assessment (Nopa) and Taxpayer Rights by Email and Fax please. Good afternoon, Mr. Smith. I'm e-mailing you the Notice of Proposed Assessment (Nopa) & Taxpayer Rights. I also faxed you the Notice of Proposed Assessment (Nopa) & Taxpayer Rights to fax number 941-866-7691. The Original Notice of Proposed Assessment (Nopa) & Taxpayer Rights was mailed out on 1/14/2020. Any questions call the Nopa Line at 850-617-8565. Thanks, Lisa Weems. The e-mail included an attachment labeled "3125_001.pdf." Ms. Weems testified that the attachment was a copy of the NOPA and Taxpayer Rights. Ms. Weems requested a "delivery receipt" and "read receipt" through her e-mail platform for the e-mail she sent to Mr. Smith. This was her customary practice when sending e-mails. A few seconds after sending her e-mail, she received a "delivery receipt" confirmation that the e-mail was delivered to mark@swagcpa.com. Shortly thereafter, Ms. Weems received a "read receipt" confirmation that her e-mail was received by Mr. Smith and was "read." The use of delivery and read receipts are not novel practices. Delivery and read receipts are used by a sender of an e-mail to confirm that the e-mail sent has been delivered to the addressee and, subsequently "read," that is, opened by the recipient. Ms. Weems keeps a monthly log of the NOPAs she sends out by fax and e-mail. Ms. Weems's monthly log for January 2020 includes entries that confirm she sent the WKDR NOPA by e-mail and fax to Mr. Smith at the contact information he provided. In addition to her personal monthly log, Ms. Weems also used SAP—a Department computer system that employees work in every day—to document her activities. On January 16, 2020, Ms. Weems made a notation in SAP that stated as follows: "I faxed the Notice of Proposed Assessment (NOPA) & taxpayer rights to Mark Smith on 1/16/20 to fax number 941-866- 7691. I e-mailed the Notice of Proposed Assessment (NOPA) and taxpayer rights to Mark Smith on 1/16/20 to e-mail address (mark@swagcpa.com). See attachments and notes." Testimony of Mark Smith Mr. Smith testified that he did not receive the NOPA by USPS first- class mail, fax, or e-mail. If the undersigned took Mr. Smith's testimony as true, all three of the Department's avenues of sending the NOPA failed. Mr. Smith testified that the NOPA, sent by USPS first-class mail, in the same fashion used for several other letters that he had received from the Department, was not received. Other than Mr. Smith's denial, WKDR provided no evidence that the NOPA and accompanying documents Ms. Weems mailed in separate packages to WKDR at its address and to WKDR's representative's address were not received. Mr. Smith testified that during the time the NOPA was sent, his business utilized an electronic faxing service called MyFax.com. Through this service, he received faxes in e-mail format, with the contents of the fax attached to the e-mail as a PDF document. Mr. Smith testified that he did not receive the fax from Ms. Weems. Mr. Smith also testified that he rarely read faxes because "90 plus percent of our faxes are payroll-related" and belonged to his business partner. Mr. Smith did not credibly explain how he comes to know about the ten percent of faxes directed to him. While perhaps his business partner screens faxes, it is inconceivable that a business firm would not ensure that incoming faxes are directed to the person to whom they are sent. That is particularly true where, as here, Mr. Smith has provided his business fax number as a means to give him notices regarding WKDR's audit. Although the Department provided documentation of a delivery and read receipt of the NOPA sent by e-mail to Mr. Smith, Mr. Smith testified that he did not receive it. Mr. Smith offered no credible explanation for the delivery and read receipts. Once again, it is not credible that a CPA who serves as the POA for taxpayer WKDR would not be reviewing e-mails delivered to his e-mail address, when his office has provided that e-mail address to the Department. Notably, he acknowledged reviewing other e-mail communications from the Department with regard to WKDR's audit. Mr. Smith's feigned ignorance of an e-mail delivered to him and opened by him is not credible and is not credited. The competent substantial evidence establishes that the Department mailed the NOPA to both Mr. Smith and WKDR at the addresses provided on the POA form. The testimony that Mr. Smith did not receive the NOPA is not credible. WKDR did not deny that it received the NOPA mailed to it; WKDR offered no testimony on the subject.5 The NOPA was mailed to the same addresses provided by Mr. Smith and Mr. Plattner on the POA form and used by the Department to successfully communicate with Mr. Smith during the audit. WKDR and Mr. Smith were on notice that a NOPA was forthcoming. The Department advised WKDR and Mr. Smith by letter through regular mail and e-mail, on at least two occasions, that a NOPA was going to be issued and that the Department anticipated an assessment of additional taxes of approximately $801,967.00. The Department provided notice of the NOPA in a manner reasonably calculated to inform WKDR and its representative of WKDR's rights and of the deadlines to take action to protect those rights. WKDR and the Department communicated frequently during the audit, but after issuance of the NOPA, communications with WKDR and Mr. Smith ceased for several months. Mr. Smith did not reach out to the Department to find out why communications ceased. The reasonable inference is that Mr. Smith was fully aware of why the previous communications during the audit stopped: because the audit had culminated 5 In its post-hearing submittal, WKDR argued that the NOPA mail should have been sent to Mr. Plattner. But the NOPA package was addressed to WKDR, the taxpayer, at the mailing address given on the NOPA. WKDR had the opportunity in the POA form to designate Mr. Plattner as the taxpayer contact person but chose not to do so. in the NOPA and it was up to WKDR to contest the NOPA in a timely hearing request. On or around February 18, 2021, the Department issued an NIL against WKDR, by which it notified WKDR that it intended to freeze funds from WKDR's bank account in the amount of $999,999.99. The NIL provided that WKDR had 21 days from the date of receipt of the NIL to dispute the matter. On February 19, 2021, WKDR submitted a petition for a chapter 120 administrative hearing to challenge the NOPA. WKDR's petition challenging the Department's NOPA was filed with the Department 403 days after the date on the NOPA (January 13, 2020) and 286 days after the deadline for filing a petition to request an administrative hearing had passed. On February 23, 2021, WKDR timely filed a petition for an administrative hearing to dispute the NIL. WKDR's dispute of the NIL is solely based on its challenge to the NOPA, and its claim that it did not receive the NOPA when issued the year before. WKDR failed to timely exercise its opportunity to protest the amount of the Department's assessment, the underlying audit findings, and the methods the Department used to reach the amount in the assessment. There is no claim by WKDR in this case that the content of the Notice of Taxpayer Rights was unclear regarding the deadline to request a hearing or the manner in which a hearing must be requested; its claim is solely that it did not receive the NOPA and the accompanying Notice of Taxpayer Rights, a claim which is not credible. In sum, the persuasive and credible evidence adduced at hearing demonstrates that the Department sent the NOPA to WKDR's representative by USPS first-class mail, e-mail, and fax, and to WKDR directly by USPS first-class mail; and that Mr. Smith received the NOPA by USPS first-class mail, e-mail, and fax, and that WKDR received the NOPA by USPS first-class mail. WKDR did not submit a timely request for hearing to dispute the NOPA.
Conclusions For Petitioner: Michael J. Bowen, Esquire Akerman LLP 50 North Laura Street, Suite 3100 Jacksonville, Florida 32202 For Respondent: J. Clifton Cox, Esquire John G. Savoca, Esquire Office of the Attorney General Revenue Litigation Bureau The Capitol, Plaza Level 01 Tallahassee, Florida 32399
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a final order dismissing DOAH Case Nos. 21-0844 and 21-0845. DONE AND ENTERED this 30th day of November, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S JODI-ANN V. LIVINGSTONE Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2021. Mark S. Hamilton, General Counsel Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 Kristian Oldham, Esquire Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 Jacek Stramski, Esquire Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 Doug Plattner 3118 Walter Travis Drive Sarasota, Florida 34240 James H. Sutton, Esquire Moffa, Sutton & Donnini, PA 8875 Hidden River Pkwy, Suite 230 Tampa, Florida 33637-2087 J. Clifton Cox, Esquire Office of the Attorney General Revenue Litigation Bureau The Capitol, Plaza Level 01 Tallahassee, Florida 32399 Allison M. Dudley, Esquire Office of the Attorney General Revenue Litigation Bureau The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 John G. Savoca, Assistant Attorney General Office of the Attorney General Revenue Litigation Bureau The Capitol, Plaza Level 01 Tallahassee, Florida 32399 Michael J. Bowen, Esquire Akerman LLP 50 North Laura Street, Suite 3100 Jacksonville, Florida 32202 James A. Zingale, Executive Director Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668
Findings Of Fact Walter and Marion Licausi are the parents of Joseph Antony "Sonny" Licausi. Walter Licausi is a contractor who works with a partner, under the name "Supreme Crafts." Among other things, Sonny Licausi, who was 39 years of age at the time of the hearing, performs as a professional musician, under the name of "Sonny Allegro." More than 12 years ago, Sonny Licausi was convicted of a felony. In recent years, Joseph Licausi and his then wife left south Florida, travelled to Gainesville, Georgia, and started a restaurant that seated 60 to 80 persons. Walter and Marion Licausi contributed some capital to this venture. When Joseph decided to accept an offer from the U.S. Army to tour Europe entertaining, his parents agreed to take over the restaurant. In June of 1977, Joseph transferred his interest in the business to his parents and they undertook all of the business' liabilities. After Joseph Licausi left for the tour, Marion Licausi ran the business. Walter and Marion Licausi lived off the income from this restaurant for three months. They sold it in 1979, to Doug Byers for some twenty-four thousand dollars. The senior Licausis retained the net proceeds of the sale; Joseph Licausi realized nothing from the sale. In the spring of 1979, Walter, Marion and Joseph Licausi were once again resident in Pembroke Pines, Florida. Joseph Licausi heard that a place called Franco's was for sale, and approached Norma Shively who took ten dollars for all the equipment still on the premises. The landlord agreed to lease the property to Joseph Licausi, who then spent one or two thousand dollars of his money on renovating what became petitioner Brothers II Restaurant & Pizza. Another one or two thousand dollars for renovation was generated by the business. As an outgrowth of the sale of the restaurant in Georgia, Walter and Marion Licausi had repossessed four-year-old equipment which had been worth seven thousand dollars when new. This equipment was installed at Brothers II Restaurant & Pizza. On or about June 28, 1979, Joseph Licausi applied to petitioner for a beverage license for Brothers II Restaurant & Pizza. He was told that he was disqualified for licensure on account of his felony conviction. On June 23, 1979, Marion Licausi signed petitioner's application for beverage license, disapproval of which eventuated in the present proceedings. On July 27, 1979, a bill of sale for one hundred dollars signed by "Joseph Allegro" was notarized, reflecting the sale to Marion Licausi of the equipment Joseph Licausi had bought from Norma Shively. At the time of the hearing, and regularly since the inception of the Brothers II Restaurant & Pizza, except for a two and one half to three month period during which she was incapacitated, Marion Licausi put in ten-hour days at the restaurant. She arrives between ten and eleven o'clock in the morning, puts money in the cash register, and begins cooking and answering the telephone. Twice weekly she goes to Fran's Produce Market. She also calls on a butcher; the other suppliers deliver to the restaurant. At two or three o'clock in the afternoon, she goes home to take care of matters there, but she returns to the restaurant between five and six o'clock and stays until closing, after which she goes to the First National Bank of Hollywood to deposit the day's proceeds. At home she tabulates receipts for the day which sometimes keeps her up until two o'clock in the morning. Joseph Licausi also works at the restaurant as does Walter Licausi; when he is between contracting jobs. Joseph Licausi's hours vary to accommodate his work as a musician and for other reasons. Generally, he is at the restaurant during the middle of the day to manage in his mother's absence. He is paid a salary of $100.00 weekly. While Marion was incapacitated, Joseph pretty much ran the business. Originally, licensees for the restaurant and agreements with the telephone and other utility companies and the like were all in Joseph Licausi's name. The original lease, however, was signed by Marion Licausi. Prior to December 17, 1979, the telephone and other utilities were in Joseph's name, but since that time, they have been in Marion's name. In the beginning, Joseph Licausi added his name to an existing checking account for the restaurant in his own name, and still later, Marion Licausi's name was added to the account. At the time of the hearing, Joseph Licausi had authority to draw against the restaurant's only checking account.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent deny petitioner's application for a beverage license, without prejudice to the refiling of the same in the event that Joseph Licausi relinquishes control of the checking account. DONE and ENTERED this 17th day of January, 1980, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Gordon Brydger, Esquire 1930 Tyler Street Hollywood, Florida 33020 Harold F.X. Purnell, Esquire General Counsel Department of Business 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact At all times material, Petitioner Leroy Battles, Jr., was a Correctional Officer I (CO I) in the Food Service Department of Putnam Correctional Institute (PCI), a closed correctional facility administered by Respondent Department of Corrections (DOC). DOC is an employer subject to the Florida Human Rights Act. Petitioner is an adult black male. In January 1990, PCI advertised the position of Corrections Officer II (CO II/Sergeant) in its Food Service Department. The four original applicants for this position were David Thomas, a black male, Mark Nelson, a white male, Petitioner Leroy Battles, Jr., a black male, and Douglas Miller, a white male. Douglas Miller withdrew his application on January 26, 1990, the day scheduled for interviews of the four applicants. Rather than re-advertise, interviews of the three remaining applicants proceeded as scheduled. The remaining three applicants were interviewed on January 26, 1990 by a three-employee panel made up of Jacqueline Johns, PCI Personnel Manager; Gregory Drake, PCI Assistant Superintendent, and Francis (Frank) Hawkins, PCI Food Service Director. All three panelists were white, but the composition of the interview panel was formed pursuant to the DOC's promotional policy manual, and there is no evidence any of the panel members were racially biased or that the racial mix of the panel members was racially motivated. There had been an argument, confrontation, or misunderstanding between Petitioner and one of the interview panelists, Officer Hawkins, prior to the January 26, 1990, interview, but it seems to have been remote in time from the interview date, and upon the credible evidence as a whole, it is found that the matter was resolved without it interfering with the interview process. 1/ The month following the award of the CO II promotion, Officer Drake served on a grievance committee involving Petitioner Battles. That subsequent experience could not have colored Drake's vote on the January 26, 1990 promotion. It is noted that Drake may have reviewed some information concerning the grievance before the grievance committee actually met, but there is no evidence he reviewed it before the promotional interviews on January 26, 1990. There is no evidence any panel member scored the interview questions or report writing sample from any personal bias. Jacqueline Johns was the PCI Personnel Manager at all times material. Her duties included oversight of all procedural matters concerned with hiring and promotions. Prior to the interviews, Mrs. Johns prepared an applicant fact sheet for the vacant position of CO II. On that applicant fact sheet, she listed the names of the applicants, their work locations, job titles, last three evaluations, dates of appointment to their present employment group (also known as employment class, rank, or grade), educational degrees, and any other relevant information and training. (See, Respondent's Exhibit 2 and Findings of Fact 19-22) Her source for this information was the applicants' respective applications and their respective personnel files. The interview panel was provided with this fact sheet. Although there is some controversy between the parties as to the accuracy of some of the material contained therein, there is no evidence that favorable substantive information about Petitioner was deliberately distorted, omitted, or minimized due to any discriminatory motivation, racial or otherwise. On the applicant fact sheet, Battles was listed as having completed two courses, 1860 hours, and Nelson was also listed as having completed two courses, 1860 hours. Actually, on January 26, 1990, Battles' two courses named on the applicant fact sheet totalled 1900 hours and he also had 1080 hours of training which was not listed because he had not gotten a certificate therefor. Likewise, Nelson's named courses should have totalled 2940 hours, instead of 1860 hours and he had 40 hours of training which were not listed because he also did not have the certificate on that date. Reading the number of hours listed on the applicant fact sheet, one would normally assume Officers Nelson and Battles each had a total of 1860 hours of training. Reading the names of the courses listed on the applicant fact sheet, a knowledgeable person might possibly glean that Battles had 1900 hours and Nelson had 2940 hours, but probably could not come to that conclusion without more explanation or interpretation from other sources, such as was provided at formal hearing. The applicant fact sheet does not convey hours or courses of training not listed there. 2/ The interview process consisted of an oral panel interview and a work sample on report writing. The oral interview consisted of panel members asking the same ten questions dealing with the Food Service Department of each of the three interviewees, separately. Before the interviews, ten questions were selected by the three panel members from a larger bank of questions and answers prepared in advance at agency headquarters in Tallahassee and published for such interviewing purposes in DOC's policy manual. This policy manual is kept under lock and key at the PCI facility so that interviewees will not know in advance the exact questions and answers they will be asked. Contrary to Petitioner's assertion, this system does not prevent applicants from adequately preparing for the interview, because applicants have their prior training and study sources upon which to rely and because the Florida Administrative Code rules cover most, if not all, of the substantive information upon which the questions are based. There is no evidence that any of the questions actually put to the three applicants by panel members on January 26, 1990, were racially biased. The interview score sheets for all three applicants have been maintained, but are subject to interpretation. Based on the score sheets as interpreted by the consistent testimony of all three panel members, it is found that Officer Nelson correctly answered more of the ten interview questions than did Petitioner Battles. No inquiry of any of the panelists was made to clarify how the other black applicant, Officer Thomas, scored on these questions. The work sample consisted of a photograph that was given to each of the three interviewees along with a sheet of paper. The accompanying instruction sheet stated that each man should write a description of the scene in the photograph and that his description would be reviewed for accuracy, completeness, and understandability. Mrs. Johns simultaneously gave each of the applicants oral instructions to prepare their reports as they had learned to do in school. The photograph provided no means by which a date and time could be accurately determined. The writing sample completed by Nelson included a date and time he made up from his imagination. Nelson used the date and time of writing out his report sample. In so doing, Nelson was following standard instructions he had received at the Correctional Academy that proper report writing should include specific dates, times, and locations. Petitioner Battles did not invent a date, time and location for his writing sample. Nelson received a higher score on his writing sample than did Petitioner, partly because of his invention of date, time, and location details and partly because of his more professional choice of the terms, "correctional officers" and "inmates," which terms Petitioner failed to use. Instead, Petitioner used the words, "guards" and "convicts" in his report writing sample. Petitioner admitted at formal hearing that the terms employed by Nelson had been the ones instructed for use from the day he, Battles, had started with DOC. Each member of the interview panel read each applicant's report writing sample and signed off on them. Exactly how the writing sample was weighed by the panel in the total scheme (that is, viz a viz the interview questions) is not clear from this record. There also is no clear indication how the other black applicant, Thomas, scored on the writing sample. However, all three panel members consistently testified that Nelson's writing sample was better than Petitioner Battles' writing sample. Officer Hawkins indicated that on average, in real life situations, Petitioner Battles wrote much better reports than his promotional sample had indicated on January 26, 1990. There is no evidence that the report writing sample or the interview questions/answers were scored by any panel member from a racially biased motivation. In the individual opinions of each panelist (Jones, Drake, and Hawkins) as testified at formal hearing, Officer Nelson was more qualified than Petitioner for promotion to the position of CO II in the PCI Food Service Department on January 26, 1990, on the basis of the interviews and writing samples. No ranking for Thomas, the other black applicant, was elicited. The actual and supposed education, training and experience of Battles and Nelson were roughly the same as to special training in food service matters. See, Finding of Fact 8. Applicant Thomas appears on the applicant fact sheet as having fewer hours of certification training (1080) than either other applicant and only one course compared with their two. Petitioner Battles' most recent three job evaluations before the interview included two "achieves standards" and one "exceeds standards." Applicant Nelson's last three job evaluations also included two "achieves" and one "exceeds." Applicant Thomas' last three job evaluations were all "achieves." All this information appears on the applicant fact sheet. Petitioner had served approximately three months longer in the Food Service Department CO I position than had Nelson, but most of this period coincided with his specialized training, so his extra three months in the Food Service Department was not substantially on-the-job training. Nelson had served longer in the rank or grade of CO I than Petitioner by approximately three months, but Nelson's extra three months in the CO I employment group were not specifically in the Food Service Department. DOC's promotional policy requires that an employee's length of time in the employment group (rank/grade/class) is to be considered with regard to promotion. The rules are silent as to any consideration to be given the length of time an applicant has served in a specific position, such as in the Food Service Department, but provides that variety of experience should be considered. (Respondent's Exhibit 5). Thomas had been a CO I longer than either Petitioner or Nelson. How long Thomas had been in the Food Service Department is not clear from this record. On January 26, 1990, the three panelists individually weighed the education, training, experience, job evaluations, and length of time in the employment group of each interviewee as it appeared on the applicant fact sheet prepared by Mrs. Johns. Each panelist essentially used his/her own personal, individual, subjective analyses of these factors. In the individual opinion of each panelist (Johns, Drake and Hawkins), as expressed at formal hearing, these factors did not alter, either up or down, any panelist's individual assessment based on the more objectively graded interview (10 questions) and report writing sample that Officer Nelson was more qualified than Petitioner Battles was for the CO II vacancy on January 26, 1990. No opinions with regard to Thomas' qualifications based on these factors were elicited from the panelists. James R. Reddish, a white male, was Superintendent of PCI at all times material. As superintendent, Reddish was ultimate supervisor of all promotional applicants and all interview panel members. Mr. Reddish had exclusive and ultimate authority with regard to hiring and promotion at PCI. Once the interview process was completed, Mrs. Johns submitted a memorandum containing the three interviewees' names, in alphabetical order of Petitioner Battles, Nelson, and Thomas, to Superintendent Reddish for the superintendent's selection of the successful CO II candidate. The memorandum also told Reddish that the interview process was completed, but the three applicants/interviewees were not ranked thereon. From that memorandum (Respondent's Exhibit-13), it may be inferred, contrary to Petitioner's assertions, that Superintendent Reddish also received the three applications and fact sheet. 3/ There is no proof that the test results or writing samples of the three applicants/interviewees was ever forwarded to Superintendent Reddish or that he considered them. Indeed, Mrs. Johns' testimony represents the contrary. There was no conversation between Mrs. Johns and Mr. Reddish regarding his decision, and she did not relate to Reddish the opinions of herself or the other panel members as to rank or qualifications of the three interviewees. Superintendent Reddish's decision- making process for the promotion was discussed with no one and there is no evidence as to what, if anything, Reddish had before him besides the alphabetical list of the names of the three interviewees, the applicant fact sheet on all three, and their respective applications when making his promotional decision. Although no witness could rule out that Superintendent Reddish's promotional decision in this instance was racially motivated, no witness could credibly say that it was, either. Superintendent Reddish appointed the only white interviewee, Officer Nelson, instead of either of the black interviewees, one of whom was Petitioner. Mrs. Johns testified that in her opinion, based on having dealt directly with Superintendent Reddish regarding all aspects of hiring and promotion concerning correctional officers at PCI from 1987 to 1991, Reddish was biased and prejudiced against blacks, exercised his racist opinion and behavior when considering promotions and hiring practices for correctional officers at PCI, consistently made racially motivated decisions regarding promotions and hiring and chronically referred to blacks as "niggers." On the other hand, Mrs. Johns also testified that on a number of occasions, Reddish had promoted blacks over whites. On January 26, 1990, there were seven correctional officers assigned to PCI's Food Service Department. Four of these correctional officers were black; one of the four was Petitioner, who was a CO I. Two of the three correctional officers who were CO II/sergeants also were black. Both of the black CO II/sergeants, Tangie Brown and Charles McGill, had been promoted by Superintendent Reddish. Other black employees promoted by Reddish during his tenure at PCI included Troy Massey to the position of Correctional Officer Supervisor I, John J. Williams and Johnnie O. Givens, to CO II/sergeant positions, and Bert Milton to Stores Manager. Mrs. Johns specifically testified that in general she was afraid of losing her job if she confronted Reddish concerning his racist practices in promotions and hiring and that on occasions she had been required by Reddish to stretch the qualifications of certain applicants because of Reddish's relationship with that person or because he wanted to hire or promote that person or to stretch the qualifications of white applicants so as to make those applicants appear more worthy than blacks. However, she further testified that in this instance, Reddish did not ask her to stretch Nelson's qualifications, and the evidence as a whole indicates that she did not do so. In general, and in this specific instance, Mrs. Johns felt that it was inappropriate for Superintendent Reddish not to interview the three applicants himself. However, no statute, rule or agency policy that requires the superintendent to personally interview applicants has been cited. While it seems an exercise in futility for the panel to engage in the elaborate interview and report writing procedure outlined in the foregoing findings of fact if it did not then forward the panel's rankings and recommendations to the ultimate decision-maker for consideration, there is no evidence this situation was contrary to DOC policy, arose out of intimidation of the panel by Mr. Reddish, was racially motivated internally within the panel, or was racially motivated by Mrs. Johns or by Mr. Reddish. Indeed, the DOC promotional policy reads in pertinent part as follows: 2. When 1 to 3 vacancies are being recruited for simultaneously, the interview panel will select the top ten (10) applicants based on Education, Performance Appraisals and work experience in the Correctional Officer Occupational Group and schedule interviews with each applicant. If there are from 4 to 10 applicants, all applicants will be interviewed. If there are three or less applicants, the position will be readvertised. . . * * * 5. After all interviews are concluded and all factors (education, performance appraisals, work experience, affirmative action goals, oral interview and work sample) are considered, the Panel will identify the top applicants as outlined below. These applications will be forwarded to the Superintendent for final selection. The Superintendent must select the applicant to fill the vacancy from the top applicants. For filling a single vacancy the top three (3) applicants will be recommended to the Superintendent. (Respondent's Exhibit 5) Therefore, although it is arguable that the withdrawal of one of the original four applicants should have required re-advertisement of the position vacancy prior to conducting interviews, the panel complied fully with DOC policy when it sent Superintendent Reddish all three names, and Reddish was entitled to appoint anyone from the list of the "top three applicants" submitted to him by the panel, provided he did not do so for discriminatory reasons. The Superintendent Reddish had seen only the scores of Petitioner and Nelson, he might have appropriately promoted Nelson as the most qualified of the two. Since no full assessment of Thomas' ranking by the panel exists in this record, it is not possible to determine whether or not if Superintendent Reddish had seen the scores of all three applicants he might still have appropriately promoted Nelson as the most qualified interviewee. However, Reddish saw only the three finalists' names, their applications (which are not in evidence) and the applicant fact sheet upon which the somewhat subjective factors of education, training, experience, job evaluations, and length of time in employment group were listed for each finalist. See, Findings of Fact 8, and 19-22. There is no direct evidence that Superintendent Reddish knew of or understood any discrepancy in the course names and 1860 hours of training listed for Battles and Nelson on the applicant fact sheet or had any knowledge of the actual hours and courses completed by any applicant, since this information was only presented and explicated at formal hearing. Superintendent Reddish was personally familiar with Officer Nelson. Prior to the promotion, Mr. Reddish had personally placed a commendation letter in Officer Nelson's personnel file for a reason Petitioner felt was inappropriate. No other witness commented on Reddish's reason for the commendation being either appropriate or inappropriate. The incident had no racial overtones. It involved the publication on a local newspaper's editorial page of a letter written by Officer Nelson calling for greater respect for correctional officers through the use of their professional titles. Whether or not Superintendent Reddish considered this commendation in his promotion of Nelson over Reddish is unknown. Approximately June 1990, Superintendent Reddish was demoted. According to consistent testimony by Johns, Hawkins, Drake, and Battles, Superintendent Reddish was demoted on the strength of a DOC investigatory report that the witnesses believed confirmed that Reddish was racially biased in hiring and promoting in the manner that was described by Mrs. Johns. See, Finding of Fact No. 27. However, the report is not in evidence here, and panel members Hawkins and Drake expressed themselves as never having read the report and being only partially in agreement with what they had heard about it. Under these conditions, the report is hearsay from which no factual or legal conclusions may be legitimately drawn. In any case, there was no suggestion by any witness that the report described any bias or discrimination by Reddish against Petitioner with regard to this particular promotion. After Nelson was promoted over Petitioner, he and Petitioner had trouble working together. On February 23, 1990, Petitioner was transferred out of the daytime shift in the Food Service Department to the less desirable "graveyard shift" in a straight security position. There is insufficient evidence to establish this transfer was retaliatory. Petitioner then filed a grievance related to his lack of promotion. It is unclear whether this was the grievance Officer Drake was requested to consider in February, 1990, or a different one. See Finding of Fact 5.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order that: Cites the Department of Corrections for an unlawful employment practice and orders it to cease and desist such practices; Orders the Department of Corrections to pay Petitioner the difference in salary and benefits between his CO I position and a CO II position, beginning January 26, 1990 and continuing; Requires the Department of Corrections to promote Petitioner into the next available CO II vacancy; and Awards reasonable attorney's fee and costs. DONE and ENTERED this 24th day of February 1992, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 24th day of February 1992.
The Issue The issue is whether Petitioner should pay a sales tax, penalty, and interest totaling $195,849.08, assessed through September 11, 2008, plus statutory interest thereafter. Exhibit 1 —— : a ey Jone - _ _ a
Findings Of Fact The Department adopts and incorporates in this Final Order the Findings of Fact contained in the Recommended Order as if fully set forth herein.
Conclusions For Petitioner: John Beebe, pro se 30-A Restaurant Group, Inc. 166 Acacia Street Santa Rosa Beach, Florida 32459 For Respondent: Warren J. Bird, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Revenue Litigation Bureau Tallahassee, Florida 32399-1050
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a final order requiring 30-A Restaurant Group, Inc., to pay to the state of Florida a sales tax, penalty, and interest totaling $195,849.08, assessed through September 11, 2008, plus statutory interest thereafter. DONE AND ENTERED this 29th day of October, 2009, in Tallahassee, Leon County, Florida. org Lengo HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 2009. COPIES FURNISHED: John Beebe 30-A Restaurant Group, Inc. 166 Acacia Street Santa Rosa Beach, Florida 32459 Warren J. Bird, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Revenue Litigation Bureau Tallahassee; Florida~-32399-1050- Marshall Stranburg, General Counsel Department of Revenue The Carlton Building, Room 204 501 South Calhoun Street Post Office Box 6668 Tallahassee, Florida 32314-6668 Lisa Echeverri, Executive Director Department of Revenue The Carlton Building, Room 104 501 South Calhoun Street Tallahassee, Florida 32399-0100
Other Judicial Opinions Any party to this Order has the right to seek judicial review of the Order pursuant to Section 120.68, Florida Statutes, by filing a Notice of Appeal pursuant to Rule 9.110 Florida Rules of Appellate Procedure, with the Agency Clerk of the Department of Revenue in the Office of the General Counsel, P.O Box 6668, Tallahassee, Florida 32314-6668 [FAX (850) 488- 7112], AND by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 Copies furnished to: Harry L. Hooper Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL. 32399-3060 Warren J. Bird Assistant Attorney General Office of the Attorney General Revenue Litigation Bureau The Capitol-Plaza Level 01 Tallahassee, Florida 32399-1050 Marshall Stranburg, General Counsel Department of Revenue The Carlton Building, Room 204 501 S. Calhoun Street Post Office Box 6668 Tallahassee, Florida 32314-6668 Lisa Echeverri, Executive Director Department of Revenue The Carlton Building, Room 104 501 S. Calhoun Street Tallahassee, Florida 32399-0100 es) STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS 30-A RESTAURANT GROUP, INC., Petitioner, vs. Case No. 08-5823 DEPARTMENT OF REVENUE, Respondent.
The Issue Whether the Respondent, as Mayor of the Town of Eatonville (Town), violated Section 112.313(6), Florida Statutes, (1) by using the Town's postage machine to backdate envelopes containing voter registration forms in an attempt to register voters after the official deadline for registration had expired; (2) by preparing or having another person prepare a fraudulent affidavit concerning the postage machine matter and directing a Town employee to forge the signature of another Town employee and to falsely notarize the document; and (3) if so, what penalty is appropriate.
Findings Of Fact At all times pertinent to this proceeding, Respondent, Anthony Grant, was Mayor of the Town of Eatonville, Florida. He was elected to this office in or about November 1994, and has served in this capacity continuously since that time. As the Mayor of Eatonville, Respondent was subject to the requirements of Part III, Chapter 112, Florida Statutes, the Code of Ethics for Public Officers and Employees (the Code of Ethics). Pursuant to Section 97.055, Florida Statutes, February 3, 1995, was the deadline for the receipt of voter registration forms in the Office of the Supervisor of Elections for those registrants to be eligible to vote in the March 4, 1995, election of Eatonville Town Council members. Registration forms were deemed received by the deadline if the postmark affixed by the United States Postal Service was February 3, 1995, or a date prior thereto. At all times relevant to this proceeding, Louise Franklin was employed as a clerk by the Town of Eatonville. In that position, Ms Franklin was responsible for operating and setting the date on the Town's postage meter machine. The duties associated with the postage meter machine were also performed by one other clerk who worked with Ms. Franklin. Typically, the date on the machine was set either the morning of that particular day or at or near the close of business the preceding business day. On Monday morning, February 6, 1995, Respondent and his secretary, Ms. Tammy Stafford, went to the office where Ms. Franklin worked to stamp six voter registration forms that were to be mailed to the Supervisor of Elections Office. The Town of Eatonville had been involved in a voter registration campaign and these registration forms had been brought to Respondent's office that morning by a local citizen. According to Respondent, after he and his secretary stamped two or three of the envelopes containing the voter registration forms, his secretary noticed that the date imprinted the envelopes was February 3, 1995, rather than February 6, 1995. Respondent further testified that after the error was discovered, he asked Ms. Franklin to show them how to change the date on the machine. Ms. Franklin showed Respondent how to set the date on the postage meter machine. At the time of Respondent's request for assistance with the postage meter machine, the Town had only recently acquired the machine, and it had been used by Ms. Franklin and the other clerk for only a short period of time. Prior to February 1995, Respondent had not used the postage meter machine. Ms. Franklin complied with Respondent's request for instructions on how to use the postage meter machine. Ms. Franklin went into the room in which the machine was located and showed the Respondent and his secretary how to use it. Ms. Franklin's instruction to the Respondent and Ms. Stafford included an explanation and demonstration of how to change the date on the postage meter machine. During the course of her explanation to the Respondent and Ms. Stafford, Ms. Franklin inserted a blank envelope in the postage meter machine to show how the machine worked. Thereafter, Ms. Franklin left Respondent and his secretary in the room where the postage meter machine was located. Ms. Franklin was unsure if the Mayor and/or Ms. Stafford stamped any of the envelopes before the Respondent came and asked for her assistance in using the postage meter machine. Ms. Franklin did not see Respondent or Ms. Stafford use the postage meter machine. Nor did Ms. Franklin actually see the date that had been imprinted on the six envelopes by the postage meter machine. However, Ms. Franklin assumed that, after she left the immediate area where the postage meter machine was located, Respondent and Ms. Stafford used the machine to stamp the envelopes that were addressed to the Supervisor of Elections Office. Later on the morning of February 6, 1995, some time after Respondent and Ms. Stafford left the area where the postage meter machine was located, Ms. Franklin noticed that the date on the postage meter machine was set to February 3, 1995. Ms. Franklin believed that during the time that she was training Respondent and Ms. Stafford on how to use the postage meter machine, the machine was set for February 6, 1995. Although Ms. Franklin had no independent or clear recollection that the postage meter machine was set for February 6, 1994, she testified at hearing that she "probably would have noticed if the date was incorrect." Ms. Franklin never observed Respondent or Ms. Stafford backdate the postage meter machine. Neither did Ms. Franklin see anyone go into the room in which the postage meter machine was located after Respondent and his secretary left that room. On the afternoon of February 6, 1995, Ms. Franklin went to Betty Golson, Acting Town Clerk, and told her that Respondent and his secretary had used the postage meter machine to stamp voter registration forms and that she had given them instructions on how to use the machine. Ms. Golson was not in or near Ms. Franklin's office or the room where the postage meter was located on the morning of February 6, 1995, when Respondent and his secretary were there. However, based on Ms. Franklin's comments, Ms. Golson felt compelled to report her perception of the incident to Betty Carter, the Orange County Supervisor of Elections, in a February 7, 1995, memorandum. The memorandum stated: [Ms. Franklin] witnessed the Mayor's secretary sending a voter's registration form through the postage meter. She also said that she witnessed the Mayor sending through the postage meter at least three (3) voter's registration forms. [Ms. Franklin] further stated that both the Mayor and his secretary asked for directions on how to change the meter's date to which she did give them both instructions on the procedures. After Respondent learned about Ms. Golson's memorandum to the Supervision of Elections, he and Mr. Harley met with Ms. Franklin. During the meeting, Respondent asked Ms. Franklin to prepare a written statement describing what occurred on February 6, 1995, when he and his secretary were in her office. However, Respondent did not tell or suggest to Ms. Franklin what she should include in the statement. Pursuant to Respondent's request, on February 8, 1995, Ms. Franklin typed and signed a statement in which she recounted the events of February 6, 1995, relative to the postage meter machine. Ms. Franklin's statement read: This is to verify that I, Louise Franklin, gave instructions to staff how to change the postage meter machine after they had sent a few pieces of mail through which reflected the date February 3, 1995. After Respondent read Ms. Franklin's February 8, 1995, statement, it was his opinion that the statement was vague. Based on this opinion, Respondent asked Ms. Franklin to write a more precise, detailed statement describing the events of February 6, 1995. In making this second request, Respondent did not tell Ms. Franklin what the statement should say. Ms. Franklin complied with Respondent's request and, on February 9, 1995, she typed and signed a second statement. The second statement provided more details and was more precise than the first statement. For example, in this statement, rather than stating that she instructed "staff" on how to use the postage meter machine, Ms. Franklin specifically noted that she provided the instruction to "the Mayor and his secretary." Furthermore, in her second statement, Ms. Franklin included the date on which the instruction occurred, a detail that was absent from Ms. Franklin's first statement. Also, in the second written statement, Ms. Franklin wrote: I demonstrated for them step-by-step, which consisted of changing the dates, months, year, etc., I even carried a blank envelope through the machine as an example. They were able to send a few pieces of mail throuth [sic] themselves. The two statements prepared and signed by Ms. Franklin in February 1995, truthfully and accurately describe the postage meter incident that occurred on February 6, 1995, and do not conflict with Respondent's version of the incident. Ms. Franklin testified that she did not know whether Respondent or Ms. Stafford ever changed the date on the postage meter machine. Moreover, Ms. Franklin acknowledged that she did not know what date was on the postage meter machine when the Respondent and his secretary finished using the machine on February 6, 1995. Finally, notwithstanding Ms. Golson's memorandum and Ms. Franklin's second statement, both of which indicated that Respondent and his secretary used the postage meter machine to stamp mail or voter registration forms, Ms. Franklin testified that she did not know whether the Respondent and/or Ms. Stafford sent any mail through the postage mater machine. After Respondent received Ms. Franklin's second statement, Respondent told Mr. Harley that he was not pleased with the affidavit and wanted it redone. Respondent then met with Mr. Harley and discussed what should be included in the affidavit. Moreover, just before or during the meeting, Respondent directed Mr. Harley "to take care of it today." Respondent's intent was to accurately and completely memorialize the incident of February 6, 1995. Catherine Williams, a clerk with the Town of Eatonville, worked in the area immediately outside the office where Respondent and Mr. Harley met to discuss the affidavit. Prior to Respondent's and Mr. Harley's entering the office to begin their meeting, Ms. Williams overheard Respondent tell Mr. Harley that he was not pleased with Ms. Franklin's second statement and that he wanted it redone. After the meeting between Respondent and Mr. Harley was over, Respondent left the office and exited the building. After Respondent left the office, Mr. Harley approached Ms. Williams, gave her a handwritten copy of an affidavit, and told her to type it. The affidavit that Mr. Harley gave to Ms. Williams was in Mr. Harley's handwriting. Once Ms. Williams typed the affidavit, Mr. Harley immediately directed her to sign Ms. Franklin's name on the affidavit, and to notarize the affidavit. In compliance with Mr. Harley's directive, Ms. Williams signed Ms. Franklin's name on the affidavit and, also, notarized the affidavit. Notwithstanding Mr. Harley's testimony to the contrary. Respondent never instructed or told Mr. Harley to direct Ms. Williams to prepare, forge or notarize the affidavit. Respondent did, in fact, instruct Mr. Harley to have a more concise affidavit prepared. However, Respondent never instructed Mr. Harley to have the affidavit prepared in a fraudulent manner. Although Respondent merely told Mr. Harley that he wanted the affidavit redone and directed Mr. Harley "to take care of it today," Mr. Harley testified that he understood this to be an order that he direct Ms. Williams to forge Ms. Franklin's signature on the affidavit and then to falsely notarize that signature. Mr. Harley's interpretation of Respondent's directive was both unreasonable and inaccurate, and his testimony in that regard lacks credibility. Mr. Harley never presented the affidavit referred to in paragraph 24 above to Ms. Franklin for her review and signature. Although Ms. Franklin never read or signed the document, the affidavit purported to be that of Louise Franklin. Furthermore, it was undisputed that Mr. Harley never gave a copy of the forged affidavit to Respondent. The affidavit written by Mr. Harley and typed, signed, and notarized by Ms. Williams was not seen or read by Respondent until December 1996, during an investigation being conducted pursuant to a complaint filed by Mr. Harley. On February 9, 1995, when Respondent and Mr. Harley met regarding the affidavit, Mr. Harley was a disgruntled employee. By his own admission, Mr. Harley was discontent while working in Respondent's administration. This was due, at least in part, to Mr. Harley's philosophical differences with Respondent over Respondent's management style. As early as December 1994, Mr. Harley approached Respondent about Harley's desire to sever his employment relationship with the Town of Eatonville. In the context of the discussion, the issue of Mr. Harley's receiving severance pay was raised. Respondent told Mr. Harley that pursuant to Harley's employment contract, he would be entitled to severance pay if he were fired, but not if he resigned. The issue of Mr. Harley's entitlement to severance pay had not yet been resolved on February 9, 1995. Mr. Harley left his employment with the Town of Eatonville in March 1996, as part of a negotiated resignation agreement. As a result of his resignation, Mr. Harley suffered a financial loss in that he did not receive severance pay when he resigned. Mr. Harley eventually received $9,000.00 in severance pay as a settlement in a lawsuit he filed against the Town of Eatonville in March 1996, after he resigned. Also, shortly after resigning from the Town of Eatonville, Mr. Harley filed a complaint against the Town with the State Attorney's Office in which he alleged approximately fifty-four instances of wrongdoing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order and Public Report be entered finding that the Respondent, Anthony Grant, did not violate Section 112.313(6), Florida Statutes. DONE AND ENTERED this 29th day of October, 1998, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1998. COPIES FURNISHED: Eric S. Scott Assistant Attorney General Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Gary R. Dorst, Esquire Post Office Box 947509 Maitland, Florida 32794-7509 Bonnie Williams, Executive Director Commission on Ethics 2822 Remington Green Circle Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Kerrie Stillman Commission on Ethics 2822 Remington Green Circle Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint and, if so, the penalties that should be imposed.
Findings Of Fact At all times material to the instant case, Respondent was licensed and regulated by Petitioner, having been issued license number 2330047. Respondent’s license authorizes Respondent to operate a public food service establishment known as La Segunda Bodegita del Medio at 833 Southwest 29th Avenue, Unit 3, Miami, Florida 33135 (the specified location). At all times material to this proceeding, Respondent was operating a public food establishment at the specified location.2 At all times material hereto, Pedro Ynigo was an experienced and appropriately trained investigator employed by Petitioner as a Senior Sanitation and Safety Specialist. Mr. Ynigo’s job responsibilities included the inspection of public food service establishments for compliance with pertinent rules and statutes. Mr. Ynigo performed two routine inspections of Respondent’s establishment during the times material to this proceeding. The initial inspection was on December 6, 2004. The follow-up inspection was on January 11, 2005. The initial inspection listed a series of violations and gave Respondent until January 6, 2005,3 to correct each deficiency. The follow-up inspection determined that the following deficiencies, which had been cited in the initial inspection, had not been corrected. Each violation is either a critical or non-critical violation. A critical violation is one that poses a significant threat to the health, safety, and welfare of people. A non-critical violation is one that does not rise to the level of a critical violation. Petitioner established that on January 11, 2005, Respondent was guilty of three critical violations and three non-critical violations. The three critical violations were as follows: Respondent’s food manager did not have a food management certificate. At the times of the inspections, Respondent’s food managers were Ormundo and Claudia Roque. Neither Mr. or Mrs. Roque had received a food management certificate. The failure of Respondent’s food managers to have his or her food management certificate constituted a violation of Section 509.039, Florida Statutes, and Florida Administrative Code Rule 61C- 4.023(1) as alleged in Paragraph 5 of Petitioner’s Administrative Complaint. Respondent could not provide proof that its employees had undergone training. This inability to produce proof of employee training constituted a violation of Section 509.049, Florida Statutes, as alleged in Paragraph 6 of Petitioner’s Administrative Complaint. Respondent’s facility had no hot water in the toilet room hand sink. The lack of hot water in the toilet room sink constituted a violation of Section 5- 202.12 of the Food Code, as alleged by Paragraph 1, of Petitioner’s Administrative Complaint. The three non-critical violations were as follows: There was no backflow preventer on the hose bibb over the mop sink. The failure to have the required backflow preventer constituted a violation of Section 5-203.14 of the Food Code as alleged by Paragraph 2 of Petitioner’s Administrative Code. The mechanical ventilation in the toilet room was not functioning. The absence of required ventilation in the toilet room constituted a violation of Florida Administrative Code 6-304.11, as alleged in Paragraph 3 of Petitioner’s Administrative Complaint. Respondent had constructed an additional seating area in its facility without submitting plans for the additional seating to Petitioner for its review. The failure to submit the plans constituted a violation of Florida Administrative Code 61C-1.002(5)(B) as alleged in Paragraph 4 of Petitioner’s Administrative Complaint.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner issue a final order finding that Respondent committed the violations alleged in paragraphs 1 through 6; disciplining Respondent for those violations by imposing a fine in the total amount of $2,600.00; and requiring Respondent's majority owner to attend, at his or her own expense, an educational program sponsored by the Hospitality Education Program. DONE AND ENTERED this 9th day of January, 2006, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 9th day of January, 2006.
