Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order: (1) declaring that Southeast Liquor Importers has not shown "good cause" under Section 565.095(5), Florida Statutes (1983), for withdrawal of the registered brand Aguardiente Antioqueno from Florida Beverage Corporation; and (2) prohibiting Southeast Liquor Importers from withdrawing Aguardiente Antioqueno from Florida Beverage Corporation. RECOMMENDED this 20th day of September, 1984 in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of September, 1984.
Findings Of Fact Davis was general manager of the Florida Food Industry Credit Union from May 31, 1980 to May 30, 1985. He was a member of the Board of Directors of the Credit Union from 1980 to May 31, 1985. Davis resigned as General Manager and Director of the Credit Union effective May 31, 1985. In his letter of resignation, Davis acknowledged that he had falsely reported delinquent loans in reports to the Board of Directors for the previous eight years (including three years before he became General Manager). These reports understated the status and amount of delinquent loans. A review of loan records of the Credit Union by the Department of Banking and Finance in June, 1985, confirmed that delinquency reports to the Board of Directors and the Department had been understated over $300,000 for at least six months of 1984. Other source documents of actual loan delinquency and reports thereof could not be located by the Credit Union. The amount of loans past due two months and over were significantly understated as follows: DATE REPORTED AMOUNT REPORTED ACTUAL AMOUNT AMOUNT UNDERSTATED 12/84 $90,117.02 $415,054.48 $324,937.46 9/84 $107,792.25 $446,224.48 $348,400.50 6/30/84 $86,378.35 $454,206.15 $367,827.80 5/31/84 $85,003.54 $492,721.49 $407,717.95 4/30/84 $80,538.85 $477,767.97 $397,299.12 The June 30, 1984, Report of Condition of the Credit Union to the Department understated loans delinquent over sixty days by $367,827. Loans past due two months and over as of April 30, 1985, Report of Examination, totaled $520,600. Of this amount $348,700 were classified by the examiner as loss and $57,400 doubtful of collection. The earned net worth of the Credit Union, as of the date of the examination, was 3.8 percent of total assets. Earned net worth, adjusted for loans classified loss and 50.0 percent of loans classified doubtful of collection, was 1.4 percent of total assets. Essentially, the loans classified loss and doubtful of collection are those that were not reported by Davis. By his response to Requests for Admissions and by his letter of resignation, Davis has acknowledged that he knowingly reported the false delinquent loan information. The understatement of delinquent loans as it relates to an inflation of earned net worth could seriously prejudice the interests of the depositors, members or shareholders of the Credit Union in that inflation of earned net worth impacts on future lending policies and declaration of dividends. The Complaint seeking formal removal of Respondent as a director and officer of Florida Food Industry Credit Union was dated and served on August 29, 1985. At the time the Department of Banking and Finance issued and served the Complaint instituting these proceedings, Respondent was not an officer, director, committee member or employee of Florida Food Industry Credit Union or of any other financial institution in the State of Florida, having resigned on May 31, 1985.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Banking and Finance enter a Final Order finding Respondent, Thomas E. Davis, guilty of violating Sections 655.037(1)(a) and (g), Florida Statutes, and prohibiting his participation in the affairs of any financial institution for a period of three years from May 31, 1985. DONE and ENTERED this 19th day of February, 1986, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1986. COPIES FURNISHED: Rodney C. Wade, Esquire Assistant General Counsel Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32301 Thomas E. Davis 1775 N. Andrews Avenue, 204W Fort Lauderdale, Florida 33311 Honorable Gerald Lewis Comptroller The Capitol Tallahassee, Florida 32301 Charles Stutts General Counsel Office of the Comptroller Plaza Level, The Capitol Tallahassee, Florida 32301 APPENDIX 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 parties to this case. Rulings on Proposed Findings of Fact of Petitioner Adopted in substance in Finding of Fact 3. Adopted in substance in Findings of Fact 2 and 3. Adopted in substance in Finding of Fact 4. Adopted in substance in Finding of Fact 5. Adopted in substance in Finding of Fact 6. Adopted in substance in Finding of Fact 7. Rulings on Proposed Findings of Fact of Respondent Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 2. Adopted in substance in Finding of Fact 10. Adopted in substance in Finding of Fact 10. Adopted in substance in Finding of Fact 3. Adopted in substance in Finding of Fact 3.
The Issue Whether the respondent is indebted to the complainant for the sale of Florida-grown agricultural products, and, if so, the amount of the indebtedness.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Mr. Rose has a grove of lychee trees on his property; each year he harvests the lychee nuts for sale, but the sale of agricultural products is not his sole source of income. In mid-June, 1996, Mr. Rose heard that the Growers Association was offering $3.50 per pound for lychees, the highest price of which he was aware. Mr. Rose took his fruit to the Growers Association on June 18, 1996. Mr. Rose had not done business with the Growers Association previously but had sold his fruit to another company. Mr. Rose received a grower's receipt showing that, on June 18, 1996, he had brought in 298 pounds of fruit, that 14 pounds were culls, and that the Growers Association had packed 27.9 ten- pound boxes of fruit. The Growers Association packed only marketable fruit. Ninety-nine percent of the tropical fruit grown in Florida is handled in pools.1 According to industry practice, the "handler" does not purchase the fruit outright but is responsible for packing, storing, selling, and shipping the fruit and for accounting for and remitting the proceeds of sale, minus expenses, to the members of the pool on a pro rata basis. The pools are composed of all growers whose fruit is packed during a designated period of time. Prices initially quoted to growers participating in a pooling arrangement are not guaranteed because the actual sales price may vary, depending on market conditions. It was the practice of the Growers Association to handle lychees under a pooling arrangement, and the receipt Mr. Rose received from the Growers Association contained the notation "P- 407LY," which designated the pool to which Mr. Rose's fruit was assigned. The Lychee P-407LY pool to which Mr. Rose's fruit was assigned consisted of fruit packed by the Growers Association between June 15 and 21, 1996. Mr. Rose was told on several occasions by employees of the Growers Association that he would receive $920.70 after expenses for the sale of his lychees. This amount was reflected in a Pool Price Report generated by the Growers Association on July 10, 1997, which also showed that a total of 107.6 pounds of fruit was included in the pool and that the Growers Association anticipated receiving a total of $4,088.65 for the sale of the fruit in the pool. The Growers Association maintained in its files a work order showing that 83 ten-pound boxes of lychees were sold to Produce Services of America, Inc., at a price of $38.00 per box and that the fruit was shipped on June 21, 1996. According to the July 10 report, the Growers Association had received payment of $932.90 for 24.55 ten-pound boxes of lychees sold to "L & V" on June 21, 1996, at $38.00 per box, but there is no indication in the report that the anticipated payment of $3,154.00 had been received from Produce Services of America. Mr. Rose repeatedly called the Growers Association during July and August to inquire about when he would receive payment for his fruit. In accordance with the information he had consistently been given by employees of the Growers Association, he expected to receive $920.70. When he received a check from the Growers Association dated August 29, 1996, in the amount of $367.48, he called the Growers Association for an explanation of why he had received that amount rather than the $920.70 he was expecting. Ultimately, he spoke with Mr. Kendall in early September, who told him that the $367.48 was all he was going to receive as his pro rata share of the pool because Produce Services of American had not paid in full for the 83 boxes of fruit it purchased. As reflected in the Pool Price Report dated September 19, 1996, the Growers Association received a total payment of only $1,847.42 for the fruit in the pool, rather than the $4,088.65 shown in the July 10, 1996, report. After the Growers Association's expenses were deducted, a total of $1,417.25 was distributed to the five growers in the pool. Although a copy of this final price report for the P-407LY pool should have accompanied Mr. Rose’s check, it did not. According to the information contained in the September 19 Pool Price Report, the shortfall in the amount received for the sale of the fruit in the pool is attributable to the Growers Association's receiving only $913.00, or $11.00 per box, for the sale of the 83 boxes of lychees to Produce Services of America, instead of the anticipated $3,154.00. The $913.00 was paid to the Growers Association by check dated August 19, 1996. Mr. Rose did not present sufficient evidence to establish that he had a contract for the outright sale of 27.9 ten-pound boxes of lychees to the Growers Association. Rather, the evidence establishes that Mr. Rose's fruit was handled by the Growers Association under a pooling arrangement and that, consistent with the practice in the tropical fruit industry, the Growers Association assumed responsibility for packing, storing, selling, and shipping the fruit. The Growers Association failed to offer any credible evidence to explain why Produce Services of America paid only $11.00 per box for the 83 boxes of fruit shipped from the pool, notwithstanding that the agreed sales price was $38.00 per box.2 Even if the fruit was damaged or in poor condition when it was delivered to Produce Services of America, the Growers Association packed 27.9 ten-pound boxes of marketable fruit on Mr. Rose’s account, and, once packed, it had complete control of the fruit in the pool. The Growers Association failed to offer any evidence to establish that it acted with reasonable care in fulfilling its responsibilities under the pool arrangement. Consequently, it bears the risk of loss rather than Mr. Rose and is indebted to him for $553.22, which is the difference between the $920.70 Mr. Rose would have received as his pro rata share of the pool had Produce Services of America paid the agreed-upon sales price of $38.00 per box and the $367.48 which the Growers Association paid to Mr. Rose by check dated August 29, 1996.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a Final Order finding that the South Florida Growers Association, Inc., is indebted to Mike Rose for the sale of agricultural products and ordering the South Florida Growers Association, Inc., to pay Mike Rose $553.22 within fifteen (15) days of the date its order becomes final. The Final Order should also provide that, in the event that the South Florida Growers Association, Inc., fails to pay Mike Rose $533.22 within the time specified, Aetna Casualty and Surety Company, as surety for the South Florida Growers Association, Inc., must provide payment under the conditions and provisions of its bond. DONE AND ENTERED this 10th day of April, 1997, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 1997.
The Issue Whether Respondent committed the violations alleged in the Emergency Order of Suspension and Notice to Show Cause and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with the responsibility of regulating licensed alcoholic beverage establishments. At all times material to the allegations in this case, the Respondent, Café Iguana, Inc., doing business as Café Iguana, held alcoholic beverage license number 23-01868 which is a series 4-COP license. At all times material to the allegations in this case, Iguana was located at 8505 Mills Drive, D-75, in Miami, Dade County, Florida. At all times material to the allegations in this case, the following persons were officers and/or shareholders of the Respondent corporation: Mark Vasu, Shannon Miller, David Lageschulte, and Gerald Joe Delaney. Prior to the issuance of the Emergency Order of Suspension which is at issue in this proceeding, the Department conducted an investigation of alleged acts of recurring illegal narcotic activity on the licensed premises. In furtherance of such investigation Special Agent Bartelt, Detective Fernandez, and Detective Robertson entered the licensed premises in an undercover capacity for the purpose of purchasing illegal substances. In this regard Special Agent Bartelt observed the two detectives as they attempted to acquire illegal substances from persons within the licensed premises. The investigation at Iguana began on March 15, 1997, and was concluded on June 12, 1997. In total, the detectives made seven purchases of a substance which was later tested and determined to contain cocaine. Respondent did not object to, nor dispute the accuracy of, the lab reports received into evidence which confirmed the substances contained cocaine. As to the purchase which occurred on March 15, 1997, Detective Fernandez approached a female bathroom attendant and represented that she wanted "to get hooked up." According to Detective Fernandez this type of language is commonly used to ask for illegal drugs. She sought cocaine, by implication in the language of such transactions. The attendant referred her to an individual known in this record as "Anthony" who was the men's restroom attendant. Standing in the doorway to the men's restroom, Detective Fernandez exchanged $20.00 for approximately one-half gram of cocaine. The cocaine was in a clear plastic zip-lock style bag that was no larger than two inches by two inches. Upon receipt of the bag, Detective Fernandez placed it in her pocket and left the restroom area. All of the transactions later described were completed in the same manner. Detective Fernandez made no effort to be noticed by the club's management. She was not conspicuous in the purchase of the illegal substance. Instead, she made every effort to mimic her perception of a drug transaction. The next purchase occurred on April 4, 1997. On this date, Detective Fernandez went back to Anthony and again requested drugs. She was told to wait. Approximately forty-five minutes later she returned to the doorway area adjacent to the men's room. At that time other females were also waiting for Anthony. After transferring $25.00 to the attendant, Detective Fernandez received approximately one-half gram of cocaine. During this purchase, Detective Fernandez believes Respondent's employees may have walked past to use the restroom but could not verify that anyone observed her transaction. Additionally, Detective Fernandez did not observe a sale of a similar type to the other females in line at the restroom corridor. On April 12, 1997, Detective Fernandez went to Anthony and asked him if she could "get a half." Noteworthy on this date was the fact that Detective Fernandez went inside the men's room to make the transaction. During her stay in the restroom she saw a bartender and a security person who were using the facility. Neither asked why she was inside the men's restroom. Neither interfered with her discussion with Anthony. Instead, Anthony introduced her to a white male who was using the telephone in the room who is identified in this record as "Juan." Anthony reported that Juan was "my man." In exchange for $40.00 Anthony delivered approximately one gram of cocaine to Detective Fernandez. There is no evidence that the bartender or the security person observed any of the transaction which took place. On May 9, 1997, Detective Fernandez again went to Respondent's club and sought illegal drugs. This time she asked a bartender how to "hook up." He referred her to the restroom. Anthony was not at the men's room, so she went to the female attendant known in this record as "Rica." Inside the female's restroom Rica exchanged approximately one-half gram of cocaine for $25.00. On May 15, 1997, Detective Fernandez purchased one-half gram of cocaine from Anthony for $30.00. Later, during the early morning hours of May 16, 1997, Detective Fernandez made a second purchase from Anthony. Although there were other patrons of the bar within the restroom, there is no evidence that any of them witnessed either of these transactions. The final purchase by Detective Fernandez was on June 11, 1997. On this date she contacted Rica and again sought to purchase drugs. She handed Rica $30.00, and the attendant left the restroom and returned a short while later with approximately one-half gram of cocaine. Although there were numerous patrons entering and exiting the facility, there is no evidence that anyone observed Detective Fernandez receive the bag of cocaine. At all times material to the allegations of this case, Iguana was a popular club which was well attended on the nights of this investigation. The audio system for the club, although especially dominating on the dance floor, distributed music throughout the licensed premises. In this regard it is uncertain if any of the conversations between the undercover officer and the parties selling drugs could be easily overheard. As to the lighting system for the club, at all times material to this investigation, lighting would have been set at its lowest levels of illumination throughout the licensed premises. Consequently, only the restrooms would have been well- lit. As a result it is uncertain as to how visible transactions occurring outside the restrooms would have been. At all times material to the allegations of this case, the restroom attendants were not employees of Iguana or its management company but were contract personnel through a third party valet service operated by David Cook. Iguana paid Cook to provide restroom attendants. This contract was terminated on June 13, 1997, when Respondent learned of the attendants' alleged involvement in the illegal transactions described above. Further, Iguana notified Cook of its intention to assist in the prosecution of such individuals. Iguana is managed by a company known as Chameleon Concepts. In order to effectively identify and minimize potential losses for Iguana, Chameleon Concepts contracted with a company whose purpose was to audit operations to ensure the overall integrity of the business operation. This auditor, a forensic fraud examiner, was to identify losses or potential losses due to fraud, embezzlement, policy or procedure violations, or other improprieties. Thus, effective October 1, 1996, Iguana was voluntarily being reviewed by an independent company, with an on-going, monthly retainer, to determine if there were any potential improprieties. The auditor for the company, John Capizzi, found no violations of policy, alcoholic beverage rules, or regulations. Prior to the investigation of this case, Iguana employees were required to participate in responsible vendor programs. Prior to the investigation of this case, Iguana managers were required to participate in responsible vendor programs. Iguana management routinely conducts meetings wherein responsible vendor practices are discussed. Iguana and Chameleon Concepts have developed written employee handbooks and policies which specifically admonish employees regarding illegal substances on the licensed premises. Iguana employees and managers are instructed to advise the management of any suspected illegal substances on the licensed premises. In the past, Iguana has participated in campaigns designed to retain false identification used by suspected underage drinkers to gain entrance to licensed premises. The testimony of Mr. Vasu regarding efforts of the company to comply with all rules and regulations of the Department has been deemed credible and persuasive regarding Iguana's position on illegal drug transactions. Management would not condone or allow illegal drug sales if it were known to them. None of the officers or shareholders of Iguana were aware of the illegal drug transactions occurring on the licensed premises. The only Iguana employee alleged to have been connected to a sale was one incident wherein a bartender referred Detective Fernandez to the restroom. Cocaine is a controlled substance, the sale of which is prohibited by Florida law. None of the purchases described herein were of such a nature or were so conspicuously transacted that a reasonable person would have known illegal sales were taking place. None of the patrons of the club who testified for Respondent were aware that illegal drug sales took place within the licensed premises. The detective making the purchases did not act in a flagrant or open manner. Moreover, the detective did not attempt to verify whether or not bartenders, security guards, or managers employed by Iguana were aware of the restroom attendants' illegal activities. At best, one bartender knew to refer the detective to the restroom. In addition to selling illegal drugs, the restroom attendants handed out towels to club patrons and offered for sale personal toiletry items at tables maintained within the restroom. For a club patron to have money to purchase such items or tip the attendant would be a reasonable assumption.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order dismissing the Emergency Order of Suspension. DONE AND ENTERED this 23rd day of July, 1997, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July 1997. COPIES FURNISHED: Miguel Oxamendi, Senior Attorney Department of Business and Professional Regulation Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-1007 Louis J. Terminello, Esquire Chadroff, Terminello & Terminello 2700 Southwest 37th Avenue Miami, Florida 33133-2728 Richard Boyd, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Petitioner Rushton is a grower of watermelons and qualifies as a "producer" under Section 604.15(5) F.S. Respondents Smith are broker-shippers of watermelons and qualify as dealers" under Section 604.15(1) F.S. Respondent South Carolina Insurance Company is surety for Respondents Smith. The amount and period of the bond have not been established. Petitioner's complaint sets out the amounts owed as follows: DATE OF SALE QUANTITY, AND PRICE PRODUCTS PER UNIT GRADE 6/7/92 Inv.#2051 43,200 lbs. AMOUNT Crimson Sweet Melons @.04 lb. $1,728.00 NWPB - 8.64 Adv. - 700.00 $1,019.36 6/10/92 Inv.#2053 43,900 lbs. Crimson Sweet Melons @3.5 lb. $1,536.50 NWPB - 8.78 Adv. - 700.00 $ 827.72 6/10/92 Inv.#2056 46,180 lbs. Crimson Sweet Melons @3.5 lb. $1,616.30 NWPB - 9.24 Adv. - 700.00 Less Payment of - 933.18 $ 907.06 $2,754.14 TOTAL $1,820.96 Regardless of the form of the complaint, Petitioner acknowledged at formal hearing that his claim relates only to Load 2051, that he did not dispute the deductions made by Respondents for NwPB or the advances paid him by the Dealer. Petitioner's complaint lumped the three loads together only because Respondent chose to cut a single check for all three loads and pay his accounts that way nearly three months after Load 2051 was shipped. With regard to Load 2051, it is not disputed that 43,200 pounds of watermelons were loaded by Dealers in Petitioner's field on June 7, 1992. The 1992 season was Petitioner's initial endeavor at growing watermelons. He was "in a bind" from the beginning of the growing season. Petitioner had originally intended to sell his watermelons to another buyer- dealer, but that person failed to send trucks to Petitioner's field. Petitioner was approached by Bobby Patton who put him in contact with Respondent Jim Smith on Saturday, June 6, 1992. Petitioner testified that Bobby Patton cut into and inspected sample melons and accepted most of his field of melons on Friday, June 5, 1992. After speaking with Petitioner by telephone on Saturday, June 6, 1992, Jim Smith went to Petitioner's field on Sunday, June 7, 1992. Petitioner and Respondents had no prior business dealings before their June 6 phone call. Jim Smith did not arrive at Petitioner's field on June 7, 1992 until the open-topped truck he had sent was half-loaded with Petitioner's melons. At that time, Smith and his employee, Dale Hires, inspected the melons on the truck and found some hollow hearts. At that time, Mr. Smith thought that the melons on the truck had been picked since Friday, but the undersigned accepts Petitioner's testimony and finds as fact that all the melons loaded into Load 2051 had been picked only since Saturday. Petitioner admitted that the melons were, "a little overripe and should have been loaded on Thursday or Friday and moved." Petitioner admitted that he and Smith then discussed that the melons were a little overripe and that they were "close" and had to be moved. Respondent Jim Smith told Petitioner there was a "potential problem," and he would let him know if a problem actually developed. Smith also said that they would try to work together and move the melons and try not to get Respondents "hurt." However, Petitioner did not specifically agree to "help" Respondent on melon loss. Petitioner later thought he was "helping" by putting a trucker up overnight in a motel at Petitioner's own expense. Smith used the phrases, "help each other" "help us" and "not hurt" to mean, "help Respondents so that Respondents would not show a loss." Petitioner testified that he had understood on June 7 that he was "not going to ride no freight" on the load. Smith concurred that this phrase he had used was mutually understood to mean that Respondents agreed to pick up the cost of freight. Respondent Smith considered the arrangement reached on June 7 to be a brokeraged deal wherein Respondent Dealers would "ride the freight" and Petitioner would "ride the melons," that is, Respondents expected Petitioner to absorb any loss occasioned by bad melons. Petitioner, on the other hand, considered all the watermelons accepted without reservation by Hires and Smith when they stepped off the half-loaded truck on June 7, 1992 and continued to load the truck with melons of questionable ripeness. Despite Petitioner's first assertion that he considered Bobby Patton's acceptance of the melons on Friday, June 5 to have been made on behalf of Respondents, that testimony is found to be contrary to his subsequent and more credible testimony that he considered Dale Hires to be acting for Respondents on June 7 and that he personally negotiated with Jim Smith on June 6 and June 7, after Bobby Patton was out of the picture. Respondents did nothing to cloak Bobby Patton, an independent contractor who "finds" melon fields, with apparent agency to negotiate the final "deal" for them with Petitioner. The "deal" between Petitioner and Respondents, such as it was, was finally and fully negotiated on June 7 between Petitioner and Respondent Jim Smith. The "deal" applied only to a certain specified segment of Petitioner's watermelon crop. Respondent Dealers thereafter handled a total of ten loads of watermelons. Respondent Dealers paid Petitioner satisfactorily on nine of the ten loads Only Load 2051, the first load, presented any problems. No agreement as to Respondents accepting all of Petitioner's field of watermelons was ever reached between the parties. Petitioner lost money with regard to the rest of his field, but that loss is in no way attributable to Respondents, despite Petitioner's expressed frustration in that regard. Petitioner heard nothing from Respondents until he requested payment and to "settle up" concerning all ten loads, approximately June 17, 1992. At that time, Jim Smith gave Petitioner settlement documents, including weight tickets and invoices for all ten loads at one time in a large envelope. Petitioner termed these documents "confirmations." At the time Smith handed Petitioner the envelope, Smith mentioned to Petitioner that one load had a problem with it. He did not give Petitioner any further information about which load had the problem. Before putting the confirmations in the envelope, Jim Smith had written across them, " * protect shipper on quality (ripe)." Petitioner testified that if this phrase had been on the documents, he did not see it, and if he had seen the phrase, he would not have understood it. Jim Smith had originally been promised $3,564.00 on Load 2051 in a telephone conversation with the ultimate recipient/receiver. He had based his June 6 offer and "deal" on June 7 with Petitioner for an expected gross to Petitioner of $1,734.04 in anticipation of the Respondents realizing the full amount of $3,564.00 from the receiver. Smith testified that when Load 2051 reached the receiver, it was rejected by the receiver due to the melons being overripe and hollow-hearted and that a federal inspection paid for by the receiver showed 15 percent to 40 percent of the samples were hollow hearted and the overall samples in the load was 25 percent, with bruising throughout but with the highest percentage in the lower layer of the piled watermelons, and some sunburn. He produced a federal inspection sheet dated June 10, 1992 (three days after the melons left Petitioner's field), covering an estimated sixteen hundred melons to the same effect. Respondent Smith had mailed this inspection sheet to Petitioner only in August 1992, with the final settlement documents and Respondents' check covering three loads, including Load 2051. The inspection sheet indicates "Midwest Marketing 2051" and "North Coast Brokerage, Cleveland, Ohio and carrier 39TR337-AL." The settlement sheets show the same trailer license number for Load 2051. (P-2) Smith also produced a bill of lading showing that North Coast Produce received carrier 39TR337 and rejected 15 melons cut for inspection, 238 melons bruised and racked, and seven decayed melons on June 10, 1992. The bill of lading shows 260 out of 1568 melons or roughly 17 percent of the load were rejected by the receiver. (R-5) Smith also produced a Norman's Brokerage invoice for shipping that trailer, for which shipping he says he paid $1,676.16, (R-4) and an invoice showing he was paid only $1,700.00 by the receiver for this load (R-2). Neither the receiver, the federal inspector, nor any trucker testified. Smith testified that after the receiver rejected some or all of Load 2051, he thought he would get at least $1,743.04 from the receiver but the receiver's check to him was rounded to only $1,700.00. The foregoing shows that Respondent Smith ultimately accepted, without dispute, the $1,700.00 paid him by the receiver which amount was less than 50 percent of the originally promised amount and which amount did not comport with a load that was at the worst only 15 percent to 40 percent bad as per the inspection report and which the bill of lading shows contained only 260 or 17 percent rejected melons. When Jim Smith totalled out the final settlement sheets for Petitioner in August 1992, Smith intended to deduct $1,676.16 for shipping and $108.00 as a "finder's fee" he had paid to independent contractor Bobby Patton from the $1,700.00 that he had actually been paid by the receiver, thus showing a net loss to Respondents on Load 2051 of $84.16. Instead, he explained Respondents' loss to Petitioner in the final August 1992 settlement documents as "original invoice $3,564.00, (meaning the originally anticipated revenues to Respondents) less actual receipts $1,743.04, (meaning the amount Smith had expected to receive after federal inspection and rejection of part of Load 2051 by the receiver, and not what Smith actually received from the receiver) for a balance of $1,820.96." Smith labelled that figure of $1,743.04 as "customer deducts" meaning it was Respondents' net loss due to actions of the receiver. He then deducted the $1,820.96 figure from the total amount owed by Respondents to Petitioner for three loads. Mr. Smith admitted he had no authority or justification per his agreement with Petitioner for deducting the finder's fee of $108.00 he paid to Bobby Patton or his additional loss of $43.04, which occurred when the recipient promised $1743.04 and paid $1700.00. He also admitted he had no authority per Respondents' agreement with Petitioner to deduct anything attributable to freight charges.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Agriculture enter a Final Order awarding Petitioner $1,820.96 on Load 2051 only and binding Respondents to pay the full amount, but which in South Carolina Insurance Company's case shall be only to the extent of its bond. RECOMMENDED this 5th day of August, 1993, 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 5th day of August, 1993. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler, Esquire General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing & Bond Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800 Greg Rushton 10940 N. Circle M Avenue Dunnellon, Florida 32630 James R. Smith Randall Smith Midwest Marketing Company Post Office Box 193 Vincennes, IN 47591 South Carolina Insurance Company 1501 Lady Street Columbia, SC 29201
The Issue A notice to show cause dated February 21, 1990, alleges that Respondent licensee sold beer to a person under the age of 21 on three occasions. The issue for determination is whether those allegations are true, and if so, what discipline is appropriate.
Findings Of Fact At all times material, Respondent, Convenience Alley, Inc. held alcoholic beverage license number 15-019272-APS, for the premises located at 5020 Minton Road NW, Palm Bay, Brevard County, Florida. On Saturday April 29, 1989, at the request of the City of Palm Bay Police Department, the Division of Alcoholic Beverages and Tobacco (DABT) participated in a joint operation with the Palm Bay police and the City of Melbourne police. The law enforcement agencies had received a series of complaints regarding the sale of alcohol to minors in the Palm Bay area. In the early evening, sometime between 6:00 p.m. and 7:00 p.m., Amy Dvorak, a 17-year old underaged operative working with Sgt. Gordon Myers, an investigator with DABT, entered Respondent's licensed premises and purchased a sealed 6-pack of Budweiser beer from the clerk, Lisa McCormick. The clerk did not ask Ms. Dvorak's age and did not request her identification. Like all other underaged operatives working with DABT, Ms. Dvorak had parental permission to participate. She wore light makeup and appeared to be under 21 years of age at the time of the operation. She was casually dressed and her face and hair were fully exposed. Ms. Dvorak was instructed to carry legitimate identification and to produce it, or respond truthfully if requested. Convenience Alley is primarily a drive-through establishment where most customers are served while they wait in their automobiles. There is a walk-in entrance, however, and Ms. Dvorak made her purchase on foot. After exiting the premises, she gave the beer to the waiting law enforcement officers. The evidence was marked and placed in the inventory of the Palm Bay Police Department, where it was later destroyed in accordance with the department's policy of destroying evidence that is over one year old. Palm Bay Police Department property report #89-08883, maintained by Officer P. Scholem, documents the disposition of the 6-pack of beer. Melbourne Police Detective Ronald King observed the sale to Ms. Dvorak. Afterwards he approached the clerk, Lisa McCormick, under direction of Palm Bay Police Detective Paul Scholem and arrested her for unlawful sale to a minor. On May 3, 1989, Sgt. Myers mailed an "official notice" to the licensee, Convenience Alley, stating that the arrest had been made and warning that future violations could result in a charge against the license. On November 21, 1989, around 6:50 p.m. Sgt. Myers revisited Convenience Alley with another underage operative, James Core, Jr. As Sgt. Myers stood outside in the shadows, the youth drove through in his own vehicle and purchased a 6-pack of Budweiser beer. James Core was 19 years old and was attending the local police academy at the time. He was clean-shaven and looked his age. As he made the purchase, the clerk laughingly said to him, "Shouldn't I be checking your I.D.?" He responded, also in a joking manner "Yes, ma'am." Nothing more was said, and Core did not offer his license. After the purchase, James Core drove into the parking lot and gave Sgt. Myers the beer and change from the $10.00 he had been given for the purchase. Sgt. Myers went into the establishment and issued an arrest citation to Valerie Britts, the clerk. DABT sent Convenience Alley a notice, titled "Final Warning" dated November 27, 1989, stating that the next violation would subject the licensee to formal revocation or suspension proceedings. On February 7, 1990, Sgt. Myers returned to Convenience Alley with George Madden, a 20 year old recruit from the police academy, also clean shaven and casually dressed. George Madden drove through in his own vehicle with two beverage agents behind him in their vehicle. He asked for the 6-pack of Budweiser. The clerk returned with the beer and asked for his identification. Madden showed his driver's license; the clerk looked at it and sold him the beer. George Madden's birthdate is 11/30/69. His driver's license reflects this, and is stamped "Under 21", across the front. The stamp, however, obscures one digit of the 11, making his birthdate appear, without close scrutiny, to be 1/30/69. The clerk, Keith Wayne Lewis, read the birthdate as January. Since the incident occurred in February 1990, Lewis figured his customer had just turned 21, notwithstanding the stamp and yellow background on the photograph. A few minutes after the sale Sgt. Myers arrested Lewis. On February 8, 1990 Sgt. Myers sent Convenience Alley a notice of intent to file a notice to show cause, citing the recent, as well as two previous arrests of employees. On each occasion noted above, the store and drive through area were well-lit. The three operatives were appropriately trained and none appeared old beyond his or her years. None had been in the premises before. The DABT has written policies and procedures, dated July 1, 1989, governing the investigation of sales to minors and the use of underage operatives. The agency generally will not proceed against a licensee until there have been three violations, unless the licensee (owner) is on the premises making the sale or observing it. The policy guide suggests that the second sale should be on a different date, time or shift than the first, and within three to eight weeks after the official notice has been issued to the licensee. The third sale should be on a still different date, time or shift than the first two sales, and within three to eight weeks after the letter of final warning has been received by the licensee. The three sales in this case do not conform to those written guidelines. Instead of three sales over a period of approximately two months, this case involves three illegal sales in approximately ten months. Linda Beard is the Vice-president/Secretary and part owner of Convenience Alley, Inc. Her sister-in-law, Barbara Thomas is Treasurer and part-owner. A third owner, Terry Loy, is President and is unrelated. None of the owners was on the premises at the time of the sales which are the subject of this proceeding. The licensee owns only this one location. One of the two women works at the store every day and closes up the premises every night. Respondent did not provide formal training to its employees in the past, but now administers the "responsible vendor" test, which it obtained in March, after the third violation. The store has always had a sign near the cash register facing the clerks, reminding them to check ID's and giving the birthdates by which persons may legally purchase alcohol and tobacco. After the first violation, Linda Beard requested that DABT send her a poster explaining the new format for driver's licenses adopted on July 1, 1988. The poster was sent, but it was a black and white photocopy, and arrived in an envelope with $.10 postage due. The agency provides such aids to licensees as a courtesy. Sgt. Myers offered training to Convenience Alley's employees, but Linda Beard felt that since they were primarily part-time, it would be difficult to schedule the training, so she did not take advantage of the offer. Instead she relied on careful recruiting. The employees were only hired on good recommendations. Keith Lewis, for example, had experience in other convenience stores and is the son of a local police officer. She also admonished the employees to check IDs and warned that no sale is worth an arrest or the loss of a license. The owners now use a colored poster to train the clerks themselves. They also point out to the employees how difficult it is to read the birthday with the "Under 21" stamp superimposed.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That a final order be entered dismissing the February 21, 1990 notice to show cause. DONE and RECOMMENDED this 8th day of October, 1990, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1990. APPENDIX The following constitute rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings Adopted in paragraph 1. Adopted in paragraph 2. Adopted in paragraphs 3-5. Adopted in paragraph 5. Adopted in paragraph 6. Adopted in paragraph 14. Adopted in paragraph 7. Adopted in substance in paragraph 18. Rejected as immaterial. Respondent obtained the poster. and 11. Adopted in paragraph 8 and 9. 12. and 13. Adopted in paragraph 14. Adopted in paragraph 9. Rejected as unnecessary. and 18. Adopted in substance in paragraph 11. Rejected as unnecessary. Adopted in paragraph 14. Adopted in paragraph 13. Rejected as unnecessary. Adopted in part in paragraph 12. The date is legible if the observer is looking for second digit; it is not in plain sight. and 25. Rejected as unnecessary. Adopted in paragraph 16. Adopted in paragraph 14. Rejected as cumulative and, as to non-misleading actions, contrary to the weight of evidence. No one lied and each operative followed the specific instructions. However, Operative Core's response was, in the context, sufficiently ambiguous as to mislead the clerk. Respondent's Proposed Findings of Fact ["Point 2"] Rejected as unnecessary. ["Point 3"] Rejected as unnecessary. ["Point 8"] Adopted in substance in paragraphs 17 and 18. ["Point 11"] Adopted in part, as to the response, in paragraph 9, otherwise rejected as unsupported by the evidence. Petitioners were not "out to get" Respondents, according to the evidence in this case. and 6. ["Point 16" and "Point 24"] Rejected as unnecessary. ["Point 26"] Adopted in paragraph 16. and 9. ["Point 33" and "Point 37"] Rejected as unnecessary, except as addressed in paragraphs 12 and 15. COPIES FURNISHED TO: Robin L. Suarez Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 Linda J. Beard, Vice-President/Secretary Convenience Alley, Inc. 5020 Minton Road, N.W. Palm Bay, FL 32907 Joseph Sole, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, FL 32399-1000 General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1000 Leonard Ivey, Director Dept. of Business Regulation The Johns Building 725 S. Bronough St. Tallahassee, FL 32399-1000
The Issue The issue is whether the Petitioner was discharged for a pretextual reason.
Findings Of Fact David Law is a black male American. Respondent Deep South Products, Inc. is a Florida Corporation doing business in Orlando, Florida. Deep South Products, Inc. employs more than 15 persons and engages in an industry affecting commerce, i.e., manufacturer of food products. Respondent at all times pertinent to this action was the employer of the Petitioner within the contemplation of the Florida Human Rights Act of 1977, as amended, Chapter 23, Part IX, Florida Statutes 1981. Petitioner David Law was hired by Deep South Products, Inc. in June 1980, and was employed as a general laborer in the Chek Beverage Plant and was receiving $5.40 per hour at the time of his discharge on October 29, 1981. Petitioner received an employee handbook when he was employed by Respondent. Petitioner was considered a capable employee with good potential. On July 15, 1980, Petitioner was reprimanded about throwing full glass bottles into the dumpster and sitting down on the bottle rack. See Respondent's Exhibit 22. On September 17, 1980, Petitioner was counseled about his job performance and a lack of interest in doing a satisfactory job. See Respondent's Exhibit 22. On November 20, 1980, the Petitioner was reprimanded for not taking his lunch break when the relief person came around to give him his lunch break and not when he felt it was time. See Respondent's Exhibit 22. On December 16, 1980, Production Manager, Mr. Jerome Thomas rated the Petitioner's attitude as "indifferent" and stated "David has the ability to do his work well but at the present time shows little concern and this is what he needs to work on." See Petitioner's Exhibit 2 and Respondent's Exhibit 12. On January 30, 1981, the Petitioner was reprimanded about punching in and out for lunch or any other time when he was leaving the Plant. See Respondent's Exhibit 22. On April 15, 1981, the Petitioner was reprimanded for a time card violation. See Respondent's Exhibit 22. On May 5, 1981, the Petitioner was reprimanded in regard to the Company's policy about uniforms. See Respondent's Exhibit 22. In July 1981, during the Petitioner's regular annual counseling, he was told by Jerome Thomas that his attitude was "poor" and he "has the ability to run most everything on the line but the only drawback is his attitude, which I hope will change soon." See Petitioner's Exhibit 3 and Respondent's Exhibit 11. On August 13, 1981, the Petitioner was issued a written Employee Action because of his attitude and insubordination toward Company policies. See Respondent's Exhibit 15. On October 29, 1981, the Petitioner started work at approximately 6:00 A.M. with a crew of five (5) other employees, two (2) black and three (3) white. These employees were supervised by Production Supervisor, Mr. Steve Pocius, who had instructed them to clean the exterior of the stainless steel sugar holding tank. At approximately 8:00 A.M. the Petitioner and the other employees received their first 15 minute rest period. Around 9:45 A.M. Mr. Pocius accompanied by Supervisor Frank Beil, proceeded to the sugar tank to inform the employees involved that they were to relieve the can line employees so the latter employees could take their break. Messrs. Pocius and Beil checked the cleaning of the tank, during which time Mr. Pocius realized two employees were missing, the Petitioner and Ricky Street. He asked the other employees if they knew where the two employees were and they said they did not know where they were. Mr. Pocius and Mr. Beil searched for the two employees by walking through the production area and then one warehouse and another warehouse, then outside to the pallet yard and came back through another warehouse ending up in the cafeteria and still not finding either the Petitioner or Mr. Street. Then, Messrs. Pocius and Beil went upstairs to the locker room and the bathroom and they found the Petitioner sitting on a bench with a newspaper in front of him. Mr. Pocius asked the Petitioner if he was using the restroom or was he on break. The Petitioner said "no". Employee Claude Hickey, a black, who was on break was also in the locker room. Mr. Pocius then asked the Petitioner to go to Mr. Thomas' office. Mr. Pocius advised Mr. Thomas that the Petitioner had left his work area without permission and that he and Mr. Beil had looked for the Petitioner for at least 15 minutes throughout the plant and outside and finally found him reading the newspaper up in the locker room. Mr. Pocius also told Mr. Thomas that Mr. Street was not in his work area. Mr. Pocius advised Mr. Thomas that he had asked the Petitioner if he was using the restroom or was on break, and the Petitioner said "no". Mr. Thomas advised Mr. Pocius that because of the Petitioner's past record and the seriousness of the offense that Mr. Pocius was to write up the Petitioner's termination. Mr. Thomas went to look for Mr. Street and found him relieving a production line forklift driver while the driver was changing his battery. Mr. Pocius went into the office where Mr. Beil and the Petitioner were present. Mr. Pocius looked at the Petitioner's file and wrote up the Petitioner's termination. See Respondent's Exhibit 16. When they were in the office the Petitioner said he was in the locker room asking an individual if he could borrow some money. The Respondent's Employee Handbook on page thirteen stated, "All employees are expected to cooperate with and comply with directives issued by the supervisors or supervisor, if at all possible. Willful failure to comply will be cause for termination." In October 1981, the Company did not have a written formalized disciplinary policy. An employee was not entitled to a certain number of warnings or written employee actions before being terminated. Instead, the extent of the penalty depended on the severity of the offense and in the case of less serious offenses, the frequency of their occurrence and the employee's overall record. A formalized disciplinary policy was implemented in September 1982, at all the Company's manufacturing plants which had certain categories of offenses with certain prescribed penalties for each offense. This policy did not exist when the Petitioner was discharged. The Respondent's records show that during the period of May 1980 through October 29, 1981, there were fourteen (14) involuntary discharges in addition to the Petitioner's. Thirteen (13) were white and one (1) was black. The Respondent's records show that during the period of 1979 to 1984, there was a total of sixty-eight (68) involuntary terminations at its Plant. Fifty-nine (59) were white, and only nine (9), or 13.2%, were black. Respondent's records show both white and black employees (e.g., Ingram, Respondent's Exhibit 19) were disciplined and were not terminated for leaving their assigned work area prior to September 1982. Bobby Jolly, white, who left his assigned work area on July 12, 1983, was not terminated but rather disciplined in accordance with the Company's formalized policy after September 2, 1982, as it did not constitute his third employee action within a twelve (12) month period. Respondent's records show Terry Scoggins, white, was terminated on July 20, 1981, and prior to his termination he only had two employee action forms. See Respondent's Exhbits 23 and 24. It gas not demonstrated that the Petitioner was subjected to different treatment for misconduct under the same factual circumstances and work rules. The stated cause for Petitioner's discharge of "uncooperativeness" summarizes a history of minor to severe infractions over a significant period notwithstanding continued counseling and other disciplinary measures. A factor in the Petitioner's discharge was Petitioner's frequent assertions that he was being discriminated against when he was counseled for misconduct. There is no evidence that Petitioner was discriminated against on the basis of race.
Recommendation Having found that the Petitioner failed to show that the actions of the Respondent were discriminatory, it is recommended that the complaint be dismissed. DONE AND ORDERED this 8th day of January, 1985, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 1985. COPIES FURNISHED: Homero Leon, Jr., Esquire Greater Orlando Area Legal Post Office Box B Orlando, Florida 32802 Kenneth G. Mall, Esquire Deep South Products, Inc. Post Office Box B Jacksonville, Florida 32203 Mr. Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F - Suite 240 Tallahassee, Florida 32303
