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 Based upon the stipulations entered into the record, the testimony of the witnesses, and the documentary evidence received at the hearing, the following findings of fact are made: The parties: The Petitioners, Buck Flowers and Ray Thornton, are commercial fishermen doing business within the State of Florida. If enacted, the proposed rules would substantially affect their business interests. The Petitioner, Organized Fishermen of Florida, Inc., is an association of commercial fishermen, fish processors, fish dealers, fish brokers, seafood restaurants, and fish retailers doing business in the State of Florida. If enacted, the proposed rules would substantially affect its interests and the interests of its membership. The Petitioner, Tim Adams, is a commercial fisherman doing business in Florida. If enacted, the proposed rules would substantially affect his interests. The Petitioner, Bird Island Fishery, is a harvester and wholesaler of fish within the State of Florida and its interests would be substantially affected by the enactment of the proposed rules. The Petitioner, Kim Gerz, is a commercial fisherman whose interests would be substantially affected by the proposed rules. The Petitioner, Goodrich Seafood, is a company that unloads and ships fresh fish in the State of Florida. Its interests would be substantially affected by the proposed rules. The Petitioner, Lee County Fisherman's Cooperative, Inc., is a company that unloads and ships fresh fish. Its interests would be substantially affected by the proposed rules. The Petitioner, Sigma International Co., is an exporter of mullet roe. If enacted, the proposed rules would substantially affect its business. The Respondent, Marine Fisheries Commission, is an entity created by statute to serve within the Department of Natural Resources and empowered with rulemaking authority as set forth in Section 370.027, Florida Statutes. The Intervenor, Florida League of Anglers, Inc., is a corporation whose purpose is to protect and enhance Florida's fisheries and their habitats. The Intervenor, Florida Conservation Association, is an affiliate of the Coastal Conservation Association, whose main interests are to protect and enhance Florida's fisheries and marine environments for recreational fishing in Florida. The Intervenor, Florida Audubon Society, is a corporation whose main purpose is to protect Florida's natural outdoor environment and wildlife. The Intervenor, Florida Wildlife Federation, is a corporation whose main purpose is to protect Florida's natural outdoor environment and wildlife. Background of the proposed rules: The Department of Natural Resources began a study of issues related to the black mullet fishery within this state in 1987. The study was to cover a five year period beginning in 1987-88. It was anticipated that the study would serve as the genesis for regulations to be imposed on black mullet fishing within the State of Florida. In 1989, the Commission adopted rules related to black mullet fishing. Those rules specified periods during which black mullet could not be fished, set gear restrictions, closed designated areas to fishing, amended qualifications to catch commercial quantities of mullet, and set recreational limits. The rules specified that during 15 weekends of the year, black mullet fishing would be closed for 30 hour periods. Another restriction, to become effective July 1, 1992, established a minimum net mesh size of three inches. In 1990, the Commission adopted additional rules related to black mullet fishing: new areas were closed to fishing, minimum net mesh size during roe season was increased to four inches, commercial fishermen were prohibited from using spotter aircraft to locate schools, and weekend closures were extended from 30 to 54 hours with the additional stipulation that the fish had to be at the dock by closing time. Further, two additional weekends were closed to fishing. In June, 1991, the Commission met to consider new, more stringent rules related to the black mullet fishery. As a result of the discussions at that meeting, proposed new rules and amendments to rules were published in the Florida Administrative Weekly, Vol. 17, No. 32, August 9, 1991. The proposed rules: Rule Chapter 46-39, as set forth in the Florida Administrative Weekly, Vol. 17, No. 32, August 9, 1991, provided, in pertinent part: MARINE FISHERIES COMMISSION RULE CHAPTER TITLE: RULE CHAPTER NO.: Mullet 46-39 RULE TITLES: RULE NOS.: Recreational Harvest Seasons 46-39.0035 Commercial Harvest, Statewide Regulations 46-39.005 Northwest Florida Commercial Harvest Restrictions 46-39.0055 Southwest Florida Commercial Harvest Restrictions 46-39.0075 East Florida Commercial Harvest estrictions 46-39.0095 PURPOSE AND EFFECT: The purpose of these proposed new rules and rule amendments is to implement additional, more stringent controls on commercial mullet harvest to begin rebuilding mullet populations over the long term to achieve a 35 percent spawning stock biomass ratio (SSBR) for the species statewide. The Commission established the SSBR goal after receiving the results of a five-year study of Florida mullet conducted by the Department of Natural Resources scientists. The state is divided into three areas (Northwest, Southwest, and East Florida) and differential rules are imposed in each area, with the Southwest area being more stringently regulated to coincide with scientific evidence showing a significantly lower SSBR in the area. Week-long closures, year-round in the Southwest and during roe season elsewhere, are considered to be more effective methods to reduce fishing mortality than roe season weekend closures, which are being eliminated. The closures will also apply to recreational harvesters, thus eliminating enforcement problems that occur during periods when recreational mullet harvest is allowed and commercial fishing is prohibited. Limiting gill and trammel nets to a maximum of 600 yards will result in a significant reduction in length of nets being fished in some areas, and may also result in a harvest reduction. Commercial daily vessel limits of 500 pounds during non-roe season are intended to reduce harvest during those periods when mullet are least highly valued. SUMMARY: New Rule 46-39.0035 establishes recreational week-long closures to coincide with commercial closures in the three areas established by new Rules 46-39.0055,46-39.0075, and 46-39.0095. The week-long closures will be during roe season in Northwest and East Florida, and year-round in Southwest Florida. A new paragraph is added to subsection (2) of Rule 46-39.005 to limit gill and trammel nets used to harvest mullet to 600 yards maximum statewide. New Rule 46-39.0055 establishes a commercial mullet closure during the 22nd through the 28th days of the months of September, October, November, and December in the Panhandle and Wakulla-Hernando Regions of the state. Also in this area, a commercial daily vessel possession and landing limit for mullet of 500 pounds is imposed during the months of January through August of each year. New Rule 46-39.0075 establishes a commercial mullet closure during the 22nd through 28th days of the each month of the year in the Pasco-Lee, Collier-Monroe Gulf, and Lake Okeechobee Regions of the state. Also in this area, a commercial daily vessel possession and landing limit for mullet of 500 pounds is imposed during the months of February through September of each year. New Rule 46-39.0095 establishes a commercial mullet closure during the 22nd through the 28th days of the months of October, November, December, and January in the East Coast and St. Johns Regions of the state. Also in this area, a commercial daily vessel possession and landing limit for mullet of 500 pounds is imposed during the months of February through September of each year. RULEMAKING AUTHORITY: Section 370.027(2), Florida Statutes. LAW IMPLEMENTED: Sections 370.025, 370.027, Florida Statutes. SUMMARY OF THE ESTIMATE OF ECONOMIC IMPACT OF THE RULES: The proposed amendments will directly affect those persons who harvest mullet for commerce. The proposal will indirectly affect wholesale dealers, retail dealers and consumers. The benefit of the measures is to ensure the sustained yield of the renewable mullet resource for human consumption and the food web. The cost of the proposal will be reduced levels of harvest and intermittent supplies of black mullet. The cost will vary regionally with the greatest reductions in the southwest Florida area. The proposed amendments will create a competitive advantage due to the differential regional regulations. The rule will not affect the open market for employment. The rule will affect small businesses. The rule will not increase paperwork or reporting requirements. Agency implementation costs for promulgation, hearings and filing will be approximately $6,500.00; enforcement costs total $38.00/hr. THE MARINE FISHERIES COMMISSION WILL CONDUCT A PUBLIC RULEMAKING HEARING ON THE PROPOSED RULES AT THE TIME, DATE AND PLACE SHOWN BELOW: TIME AND PLACE: 10:00 a.m. until 5:00 p.m., September 5, 1991; and 9:00 a.m. until 5:00 p.m., September 6, 1991 PLACE: Holiday Inn Tampa International Airport, 4500 West Cypress Street, Tampa Florida All written material received by the Commission within 21 days of the date of publication of this notice shall be made part of the official record. Subsequent to the publication of the notice described above, the Petitioners timely filed challenges to the proposed rules. Pursuant to the notice described above, the Commission met on September 5-6, 1991, for the purpose of conducting a public rulemaking hearing for the proposed new rules and proposed amendments to rules. At the meeting of September 5, 1991, members of the public were permitted to comment on the proposed rules and amendments. On September 6, 1991, the Commission allowed its staff to make a presentation regarding the options available to the Commission and deliberated the proposals before it. As a result of those deliberations, the Commission made substantial changes to the proposed rules. At that time the Commission acknowledged the challenges filed by the Petitioners herein and resolved to submit the changed proposed rules to the Governor and Cabinet for approval upon the favorable resolution of the administrative challenges. The substantially changed proposed rules were published in the Florida Administrative Weekly, Vol. 17, No. 39, September 27, 1991, and provided, in substance, for the following restrictions: 46-39.0035 Recreational Harvest Seasons--prohibits harvesting during the period of the first day and continuing through the seventh day of each month during the months of September through December of each year for the state waters from the Florida-Alabama border to the Hernando-Pasco County line; prohibits mullet harvesting during the period of the first day and continuing through the fourteenth day of each month during the months of January and September through December of each year for the state waters from the Hernando- Pasco County line to the Dade-Monroe County line, excluding state waters of the Atlantic Ocean in Monroe County and including all waters of Lake Okeechobee; and prohibits harvesting beginning on the first day of the month through the seventh day of each month during the months of January and October through December of each year in all state waters from the Florida-Georgia border to the Collier- Monroe County line, excluding state waters of the Gulf of Mexico in Monroe County and including all waters of the St. Johns River. 46-39.0055 Northwest Florida Commercial Harvest Restrictions-- prohibits harvesting mullet for commercial purposes in the Panhandle and Wakulla-Hernando Regions, as those areas are elsewhere defined, during the period beginning on the first day and continuing through the seventh day of each month during the months of September through December of each year. 46-39.0075 Southwest Florida Commercial Harvest Restrictions-- prohibits harvesting mullet for commercial purposes in the Pasco-Lee, Collier- Monroe Gulf, and Lake Okeechobee Regions, as those areas are elsewhere defined, during the period of the first day and continuing through the fourteenth day of each month during the months of January and September through December of each year. 46-39.0095 East Florida Commercial Harvest Restrictions--prohibits harvesting mullet for commercial purposes in the East Coast and St. Johns Regions, as those areas are elsewhere defined, beginning on the first day of the month through the seventh day of each month during the months of January and October through December of each year. The Commission abandoned the 500 pound trip limit previously proposed for each region but retained the limit for gill and trammel nets to 600 yards maximum, statewide. The Commission asserts that the changes to the proposed rules were generated by virtue of the written comments, public testimony, and Commission discussion contained in the record of the public hearing held on September 5-6, 1991. Scientific data: In determining an appropriate guide for managing the black mullet fishery, the Commission staff elected to utilize a system based upon a computer model commonly known as "DSPOPS." The DSPOPS model was designed by Dr. Ault, working with Dr. Mahmoudi, for use in mullet stock assessment. While Dr. Ault developed the model with the intention that Dr. Mahmoudi would use it in mullet stock assessment, Dr. Ault did not prescribe the variables to be inserted into the model or comment to Dr. Mahmoudi as to the advisability of his choices. In fact, the reliability of the model is dependent on utilizing reasonable scientific inputs where variables must be inserted. The spawning stock biomass ratio (SSBR) measures the total mature biomass or weight of the fish stock in an exploited fishery in relation to what it would be if it were unfished. The Commission determined, and the Petitioners have not challenged, that the desirable SSBR for mullet would be 35 percent. By using data from 1988 and 1989, and inserting variables into the DSPOPS model the Commission staff attempted to compute the baseline SSBR for mullet in Florida. The SSBR was calculated by region and was intended to depict the conditions of the mullet stock by each region. The use of SSBR as a tool to evaluate a fishery and propose management of it has been accepted in the past by the Commission and other entities charged with management responsibility. The target of 35 percent SSBR for mullet is a reasonable management goal. In electing which variable to plug into the DSPOPS model, Commission staff chose the conservative estimate or value for the parameter to be inserted. "Conservative" herein is used to mean that choice which would depict the "worst case scenario" and, would, therefore, in theory, err on the side of the preservation of the fish. Such selections, as will be addressed below, were not based upon the best scientific data available and constituted an improper use of the model. In utilizing the DSPOPS model, reasonable and appropriate scientific methodology dictate the use of reasonable values for the variables to be inserted into the model. When values from either extreme of the spectrum are used, the reliability of the output is diminished. That is, the less the probability of the occurrence in the real world would be. In this case, the Commission staff found in its initial stock assessment that the SSBR for mullet in the southwest region was 15.1 and 22.4 in the northwest region. That assessment required inputs in the DSPOPS model for the following parameters: recruitment function; natural mortality; fishing mortality; and sexual maturity. In choosing which input for recruitment function, the Commission staff used a Getz recruitment function. The recruitment function is intended to show the relationship among a designation of the fish population and the amount of new fish born into that population each year. Utilizing the Getz function, instead of the other available recruitment function options, consistently produces the lowest estimate of spawning stock biomass. Had the Commission staff utilized the Beverton and Holt density dependent option, the spawning stock biomass in the northwest region would have increased by 11.73 and in the southwest region by 5.29. With regard to the natural mortality parameter, the Commission staff chose a natural mortality of 0.3. The data available suggests that in Florida the mullet fishery has a natural mortality rate of 0.5. By using the lower value, the DSPOPS model calculated the SSBR at an arbitrarily lower level. Had the Commission staff used 0.43 for the natural mortality input the SSBR would have increased in the northwest region by 3.07 and by 4.79 in the southwest region. Similarly, the Commission staff used extreme variables when inputting the handling mortality. Thus, the computed spawning stock biomass was lower than a midrange option would have produced. Finally, with regard to sexual maturity, mullet achieve sexual maturity at age 4. That age is supported by competent scientific data and is established by the evidence presented in this case. Regardless, Commission staff used a sexual maturity matrix in the DSPOPS model that assumed some fish were still sexually immature at 6 and 7 years. If corrected, the SSBR results would have been increased by 10 percent. By relying on the DSPOPS modeling results for the SSBR assessment, as computed by the Commission staff, the Commission failed to consider the best available biological information regarding the mullet stock. When corrected parameters are input into the DSPOPS model, the SSBR assessment for mullet is dramatically increased. The amount of the increase depends on which parameter is changed. If midpoint values are selected and all inputs are changed, the model produces a SSBR for the northwest region of 52.74 and for the southwest region of 36.19. Economic data: Economic impact and small business impact statements were prepared for the proposed rules first published in August, 1991. Statements were not prepared for the amended proposed rules which were approved by the Commission at the September, 1991, meeting. Mullet have a shelf life of four days if handled properly. The bulk of the market demand is for fresh mullet with demand for frozen or smoked mullet being significantly smaller. Closures of longer than four days would require mullet customers to seek other markets for fresh mullet. Restaurants and other entities seeking a constant source of fresh mullet would look to other markets such as Louisiana to fill orders. If lost, such customers are hard to recapture as in the instance of the spanish mackerel market. It is anticipated that businesses relying on the fresh mullet market will lay off employees if extended closures go into effect. The economic impact statement did not estimate the number of people who would be unemployed or underemployed as a result of the closures. The monetary amounts of the lost market created by the reductions expected in the harvest of mullet was not included in the economic impact statement. The short-term and long-term values of lost market could be computed for those directly and indirectly impacted by the proposed rules. It is expected that the financial losses to commercial fishermen, fish wholesalers, and distributors will be considerable. Additionally, loss of mullet roe sales will result in loss of market since no fish stocks are available to substitute for the mullet roe. Options which would minimize the adverse economic impacts the proposed rules would cause for small businesses have not been presented or considered by the Commission. Closures of shorter duration but of more frequency would lessen the economic damage to small businesses. For example, four day closures would not result in the interruption of the availability of fresh mullet. As opposed to what is proposed, regulations which would increase the net mesh size to allow younger fish to remain uncaught would also lessen the economic damage to small businesses. An increase in the year of first capture would increase SSBR. As opposed to what is proposed, regulations setting trip limits for harvesting mullet would lessen the economic damage to small businesses. Setting net restrictions as proposed allows harvesting and lessens the economic damage to small businesses.
Findings Of Fact Because of the complexity of the structuring of the transaction at issue, the following references will be used throughout in order to assist the reader in keeping track of the various items and corporate entities involved. Taxpayer: South Florida Beverage Corp. a Florida Corporation incorporated on December 28, 1967 is the operating entity of the Pepsi Facility. Pepsi Facility: The plant and equipment located at 7777 NW 41st Street, Miami Florida from which Pepsi-Cola and other soft drink products are manufactured and distributed. Holiday: Holiday General Corporation, a Massachusetts Corporation, the sole stockholder of Taxpayer and a wholly owned subsidiary of General Cinema Corporation. GC-H: GC-H Corporation, a Delaware Corporation is the owner of the Pepsi Facility. GCC: GCC Beverages of Mass., Inc., a Massachusetts Corporation. A wholly owned subsidiary of General Cinema which functions as the Home Office for Taxpayer, Holiday and other bottling corporations throughout the country which, in the aggregate, constitute the "Beverage Division," so-called, of General Cinema. ABC: American Beverage Corporation, a Delaware Corporation, which through controlled subsidiaries previously owned and operated the Pepsi Facility and other non-Florida soft drink bottling plants. The tax assessment at issue covers the audit period between April 1, 1979 through June 30, 1983. During the latter part of the 1960's General Cinema entered into negotiations with ABC with an eye to acquiring its bottling plants and franchises. At the time, ABC owned, or through its subsidiaries controlled, the Pepsi facility and plants in Dayton, Youngstown, and Akron, Ohio. On or about March 11, 1968, after successfully reaching agreement with ABC stockholders, General Cinema caused Holiday to purchase the stock of ABC for a price of approximately twelve million dollars ($12,000,000.00). The purchase price was paid in cash. Shortly thereafter, Holiday merged with ABC and its subsidiaries and became the owner of the Pepsi Facility along with the Dayton, Youngstown, and Akron plants. With the exception of a small existing mortgage on the Pepsi Facility Holiday ended up owning all of its newly acquired assets unencumbered. In conjunction with this acquisition, Taxpayer which had recently been incorporated, was activated by an issuance of its stock to Holiday and commenced to operate the Pepsi Facility. Inasmuch as Holiday now owned twelve million dollars ($12,000,000.00) worth of highly leveragable assets virtually unencumbered, it was highly desirous of refinancing the same. To this end, it sought the assistance of Haas Financial Corporation, a large mortgage broker who routinely acted as a middle man in structuring financial arrangements between would be borrowers and institutional lenders. Haas was successful in securing financial commitments from a consortium of eight insurance companies who, in the aggregate, agreed to loan approximately eleven million seven hundred thousand dollars ($11,700,000.00). The transaction was a sale and lease-back arrangement entered into in July 1969. The main aspects of this arrangement were as follows: GC-H was created by Haas Financial Corporation and/or its principals; GC-H borrowed eleven million seven hundred thousand dollars ($11,700,000.00) from the insurance companies, GC-H used the proceeds received to "purchase" the Pepsi Facility and those in Ohio from Holiday, The assets acquired were pledged as security for the institutional loans, GC-H then leased back to Holiday under a long-term lease . . . the properties and assets involved, General Cinema guaranteed Holiday's payments under the Lease . . . GCC on behalf of Holiday and the other lessees pays to GC-H all amounts due under the Lease. GCC charges back to Taxpayer and the other corporations their pro rate share of the payments. The Pepsi Facility and the other plants are owned by GC-H. The lease assets for book purposes have been capitalized. This is the same treatment the Taxpayer uses for its other leased assets under lease-purchase agreements and is a common practice under lease-purchase arrangements. The Lease . . . covers the real estate and personal property of the Pepsi Facility and the Ohio locations. It was entered into in June, 1969 and runs for a basic term of eighteen (18) years through June, 1987. According to paragraph 2 of the Lease, the Lease may be extended, at the Lessee's option, for not more than six (6) consecutive extended terms; the first extended term to be for ten (10) years and the five subsequent extended terms to be for five (5) years each. Basic rental payments under the Lease for all of the properties are set forth in paragraph 3 of the Lease and amount to approximately $300,000.00 quarterly or $1,200,000.00 a year. The Pepsi Facility represents forty percent (40 percent) of the leased assets. Accordingly the Taxpayer is charged through inter-company billings for forty percent of the basic rent (which is forty thousand dollars [$40,000.00] a month or four hundred eighty thousand dollars [$480,000.00] a year). Pursuant to paragraph 22 of the Lease, at the end of the initial basic term the Lessee, Holiday has an option to purchase all of the properties subject to the Lease by paying to Lessor (GC-H) a purchase price in cash equal to the amount specified in said paragraph of the Lease. Pursuant to the terms of paragraph 23.3 of the Lease, if the Lessee, Holiday elects to purchase the property, the Lessor, GH-C [sic], promises to convey such property to Lessee by quitclaim deed, bill of sale and other necessary instruments and, if requested by Lessee, promises to obtain and deliver to Lessee an instrument releasing such property from the lien of the mortgage on the property. Pursuant to paragraph 36 of the Lease, there is no merger of the Lease nor of the leasehold estate created by the Lease with the fee estate in the properties or any part thereof. unless there is a written instrument effecting such merger executed as specifically provided in said paragraph 36. At all times material hereto fee simple record title to the property herein known as the Pepsi Facility was in the name of GC-H Corporation.
Recommendation Based upon the foregoing Stipulated Findings of Fact and the foregoing Conclusions of Law, it is recommended that a Final Order be entered assessing delinquent taxes against Petitioner in the amount of $32,873.18, plus penalties and interest. DONE and ORDERED this 27th day of February, 1986, at Tallahassee Florida. LINDA M. RIGOT, 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 27th day of February 1986. COPIES FURNISHED: Daniel L. Rubin, Esquire GCC Beverages, Inc. Box 500, 1300 Boyston Street Chestnut Hill, Massachusetts 02167 Linda Lettera, Esquire Department of Legal Affairs The Capitol, Suite LL04 Tallahassee, Florida 32301 William D. Townsend, General Counsel Department of Revenue 104 Carlton Building Tallahassee, Florida 32301 Randy Miller, Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32301 =================================================================
The Issue The issue in this case is whether the Respondent’s license should be disciplined; and if so, what penalty should be imposed.
Findings Of Fact The Respondent, Lashawn R. Williams, was certified by the Petitioner as a correctional officer on May 22, 2001, and was issued certificate number 197081. Eventually, the Respondent was employed as a full-time correctional officer by the Corrections Corporation of America. Sometime prior to June 20, 2004, the Respondent’s apartment received smoke damage from a fire that had occurred in the unit next to her. Because of the damage, she and her two children, ages seven and one, were required to temporarily move while repairs to her apartment were being made. She moved in with Typhrus McNeil and his father, Connie McNeil at 112 Cheri Lane, Parker, Florida. The McNeil residence is a small two-bedroom townhouse of approximately eight hundred square feet. The front door is located about twenty feet from the street. Typhrus McNeil was the Respondent’s boyfriend. At the time, they had been dating for approximately three years. Mr. McNeil was the father of the Respondent’s youngest child and occasionally took care of the Respondent’s children while the Respondent was at work. At the time, Typhrus McNeil was also under community control for a 2004 drug charge. The Respondent Knew Mr. McNeil had a past criminal history, but felt he had changed. On June 20, 2004, Officer Aaron Wilson of the Parker Police Department received a “Crime Stoppers” tip. The tip consisted of an allegation that a male and a female person living at 112 Cheri Lane in Parker were engaged in the sale of narcotics from the residence. The tip also included an allegation that the female subject was conducting hand-to-hand narcotics transactions with the occupants of vehicles that pulled up outside the residence. Over the next two weeks, Officer Wilson conducted approximately six surveillances and observed activities ongoing at the McNeil residence. During his surveillances, Officer Wilson observed the Respondent coming and going from the residence along with her two children. He observed them playing outside. Officer Wilson also observed Typhrus McNeil, whom he recognized from past arrests, and his father Connie McNeil, coming and going from the residence. He observed vehicles driving up to the residence for short stops and leaving. On occasion, he observed people from the residence talking for a short time with the occupants of the vehicles, sometimes going back into the residence and then returning a short time later to talk with the occupants of the vehicles again. The vehicle would then leave the area. Officer Wilson described such activity as indicating drug-related activity was going on at the residence. Officer Wilson only observed the Respondent talk to the occupants of a vehicle one time. During his observation, the Respondent spoke with the occupants for a short while, went into the residence and returned to speak with the occupants of the vehicle some more. The vehicle then left. Officer Wilson did not observe the exchange of any money or drugs. There was no evidence regarding who the occupants of the vehicle were or whether the Respondent knew the occupants of the vehicle. This one observation does not clearly and convincingly demonstrate that the Respondent was engaged in drug related activity. On July 1, 2004, Officer Wilson applied for and obtained a warrant from the Circuit Court in Bay County to search for controlled substances and other related items in the McNeil residence. The warrant also authorized searches of persons and vehicles present at the residence. On July 2, 2004, Officer Wilson, together with several other officers, served the search warrant at 112 Cheri Lane in Parker. Upon arrival at the residence, Officer Wilson knocked and announced his authority and purpose for being there. Present in the residence were Typhrus McNeil, Connie McNeil, the Respondent, her two children and two visitors. Officers located and seized several items in the bedroom shared by the Respondent and Typhrus McNeil. These items were in plain view lying on the headboard of the bed. These included Typhrus McNeil’s wallet, which contained $1704 in cash, another $1335 in loose cash and an open box of clear plastic sandwich bags with $13 in cash protruding from the top of the box. The cash appeared to be in denominations of $20 or less. The Respondent believed the loose cash was from Mr. McNeil’s paycheck, which he had recently cashed. Next to the bed, officers located and seized a closed shoebox on the floor. Inside the shoebox, officers found a set of electronic scales consistent with the type utilized for weighing quantities of illicit drugs for purposes of sale. Also, officers located and seized two plastic bags containing cannabis residue along with two partially burnt cannabis cigarettes in a closed dresser drawer located in the bedroom. The evidence did not demonstrate that the Respondent knew about the contents of the shoebox or the dresser drawer. None of her personal effects were in the dresser drawer. There was no evidence showing the length of time the cigarettes had been in the drawer. In the common living room of the residence, officers located and seized a cannabis cigarette lying on top of the television adjacent to a remote control. The cannabis cigarette appeared to be in plain view of the occupants of the residence. However, there was no evidence of the length of time the cannabis cigarette had been on top of the television or that the Respondent had observed the cigarette there. In fact, the Respondent denies knowing about the activity at the McNeil home or the Marijuana cigarettes in the house. During the course of the execution of the search warrant, officers also located and seized several items in the second bedroom, occupied by Connie McNeil. These items included a box found in Connie McNeil’s closet, which contained suspected cannabis seeds and two partially burnt cannabis cigarettes located inside a nightstand drawer. Officers also located and seized nineteen clear plastic bags, each containing approximately one-half ounce of cannabis. The plastic bags were under the bed in the bedroom of Connie McNeil. Together, such quantities and packaging demonstrate that Connie McNeil was engaged in illicit drug sales and not simply possession of illicit drugs. However, the evidence did not demonstrate that the Respondent was aware of the activities of Connie McNeil or the contents of his room. During the course of the execution of the search warrant, officers also located and seized five partially burnt cannabis cigarettes located inside a closed kitchen drawer. Again, the evidence did not demonstrate that the Respondent was aware of the cigarettes in the kitchen drawer, especially in light of the fact that she was only staying temporarily at the McNeil residence. The McNeils and the Respondent were arrested and charged with drug possession and sale. The Respondent was also charged with child neglect. Eventually, all the charges were dropped against the Respondent. The aggregate weight of the cannabis seized by the officers was in excess of 20 grams. However, in this case, the evidence only raises suspicions that the Respondent may have known about the possession of marijuana in the McNeil residence. At the time, the Respondent was a temporary occupant of the residence, waiting for repairs to be completed on her apartment. The evidence is neither clear nor convincing that the Respondent actually knew of such possession. Likewise, the evidence did not demonstrate that the Respondent was aware of or engaged in any drug sales during her stay at the McNeil residence. The most incriminating evidence was not found in the bedroom where the Respondent slept, but in Connie McNeil’s bedroom or in closed drawers and boxes. The one cannabis cigarette that was in a common area does not clearly or convincingly demonstrate that the Respondent knew it was there or that she knew of any drug activity at the McNeil house. Finally, the evidence did not demonstrate the Respondent criminally neglected her children when she was staying at the home of one of the children’s father. Vague testimony regarding the possibility that living in close proximity to illicit drug activity might cause danger to the occupants of the home is not clear or convincing evidence that the Respondent is guilty of criminal child neglect. Given this lack of clear evidence, the Administrative Complaint should be dismissed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found not guilty of violations of Subsection 943.13(7), Florida Statutes, and that the Administrative Complaint be dismissed. DONE AND ENTERED this 1st day of March, 2006, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 1st day of March, 2006. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Lashawn R. Williams Michael Crews, Program Director Division of Criminal Justice Professional Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Division of Criminal Justice Professional Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue for determination is whether Respondents owe Petitioner approximately $2,018.33 for a quantity of watermelons which Petitioner alleges he sold to Respondents; secondarily, 1 The name of Co-Respondent U.S. Fidelity and Guaranty Co. has been added to the style in this case and the name of the Florida Department of Agriculture deleted as a party in correction of obvious error in the previous titling of the case. resolution of this issue requires a determination of whether Respondents acted as an agent for Petitioner as opposed to a direct purchase of Petitioner's melons by Respondents.
Findings Of Fact Petitioner is a farmer who produces agricultural products, including watermelons. Respondent Southern Farms is a dealer of such products in the course of normal business activity. Respondent U. S. Fidelity and Guaranty Company is the bonding agent for Respondent Southern Farms, pursuant to Section 604.20, Florida Statutes. Petitioner’s testimony at the final hearing establishes that Respondent Southern Farms, Inc., is indebted to Petitioner for the total sum of $2,018.33 with regard to purchase of 47,350 pounds of watermelons belonging to Petitioner on or about June 17, 1996. In the absence of presentment of any evidence at the final hearing in support of the claim of Respondent Southern Farms, as set forth in Southern Farms’ “Answer Of Respondent” filed on November 1, 1996, that no business dealings had been had between Petitioner and Southern Farms, such claim is not credited.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Respondents are indebted to Petitioner for the total sum of $2,018.33 with regard to purchase of 47,350 pounds of watermelons belonging to Petitioner on or about June 17, 1996.DONE AND ENTERED this 12th day of March, 1997, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 12th day of March, 1997. COPIES FURNISHED: Bo Bass 2829 Southwest SR 45 Newberry, FL 32669 Southern Legal Farms, Inc. Legal Department Post Office Box 1975 Salisbury, MD 21802 Elizabeth Stosur US Fidelity and Guaranty Co. Post Office Box 1138 Baltimore, MD 21203-1138 Bob Crawford, Commissioner Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, FL 32399-1550 Richard Tritschler, Esquire Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, FL 32399-0810 Brenda Hyatt, Chief Bureau of Licensing & Bond Department of Agriculture Mayo Building, Room 508 Tallahassee, FL 32399-0800
The Issue The primary issue in this disciplinary proceeding is whether Respondent, which operates a restaurant where alcoholic beverages are served pursuant to a license issued by Petitioner, continued to sell alcohol after the service of full course meals had stopped, in violation of the statutes governing holders of beverage licenses. If Petitioner proves the alleged violation, then it will be necessary to consider whether penalties should be imposed on Respondent.
Findings Of Fact At all relevant times, Respondent Barrett Enterprises, Inc. ("Barrett"), d/b/a Stuart Grill & Ale ("Stuart Grill"), has held a Special Restaurant License (an "SRX license"), which authorizes the licensee to sell alcoholic beverages secondary to the service of food and non-alcoholic beverages. Consequently, Barrett is subject to the regulatory and disciplinary jurisdiction of Petitioner Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (the "Division"). Barrett employs approximately 50 people to work at Stuart Grill, which is an establishment located in Martin County, Florida. Stuart Grill grosses nearly $2 million annually on food sales. In 2007, Barrett collected and remitted roughly $100,000 in sales tax on revenue from its food service operation. It sells 60,000 pounds, more or less, of chicken wings each year. In short, Stuart Grill is a bona fide restaurant.2 On two occasions——once on September 20, 2007, and again on October 19, 2007——four agents of the Division visited Stuart Grill late in the evening, around 11:00 p.m. They were conducting an investigation to determine whether "full course meals" (a term of art that will be discussed below) were available at all times when the restaurant was serving alcoholic beverages. (One of the conditions of holding an SRX license is that the licensee must make full course meals available while selling alcohol.) The two investigative visits followed the same pattern. Each time, the agents seated themselves at a booth in the main dining room, which was not crowded. The waitress (a different one each time) informed the agents that the kitchen was closed and, therefore, that they would need to order from the "Late Nite Menu," which was provided. The Late Nite Menu contained a limited number of items, namely: mozzarella sticks, beer battered "veggies" (mushrooms or onion rings), chicken strips, dolphin bites, conch fritters, fried critters (clam strips or grouper strips), fried calamari, smoked fish dip, and chicken wings. Each time, an agent tried to order a hamburger and was told that hamburgers were not available. Both times, the agents ordered (and were served) chicken wings, a couple of sodas, and beer.3 Neither visit lasted more than roughly half an hour. Dean Barrett, one of the restaurant's owners, testified credibly that the Late Nite Menu which was given to the agents was actually a bar menu; patrons in the main dining room should not have been instructed that they could order only from the Late Nite Menu, as apparently happened when the Division's agents went to Stuart Grill in September and October 2007. The undersigned accepts Mr. Barrett's testimony in this regard as truthful and finds that the waitresses (neither of whom was identified) who served the agents did not act in accordance with their employer's directives on those occasions. Regardless of that, however, the evidence fails to establish that "full course meals" were not available. As will be seen below, the term "full course meal" is defined for this purpose as a meal consisting of a salad or vegetable, an entrée, a beverage, and bread. When the Late Nite Menu is reviewed with this definition in mind, the factual determination is inescapable that the agents could have ordered such entrées as chicken strips, chicken wings, or fried calamari. They also could have ordered a vegetable ("beer battered veggies") from the Late Nite Menu. Half of the items (entrée and vegetable) constituting a "full course meal," in other words, appeared on the face of the Late Nite Menu. No beverages were listed in the Late Nite Menu. The agents, however, ordered (and were served) sodas and beer. The evidence thus establishes that non-menu items were, in fact, available when the agents visited. Moreover, it is found, the "beverage" requirement for a "full course meal" plainly was met. The only item needed to complete a "full course meal" is bread.4 There is no direct evidence that bread was not available. Perhaps it might be inferred, based on the absence of an obvious bread item on the Late Nite Menu, that no bread could be had. The undersigned declines to draw such an inference, however, because (as found above) other non-menu items were available upon request. Nor would the "fact" that the "kitchen was closed" (which it was not) be a sufficient basis for the undersigned to infer that bread was unavailable. Without more evidence than was adduced in this case, there is not a sufficiently convincing reason for the undersigned to infer that some slices of bread or a few rolls, for example, could not have been found in the restaurant, were a patron to have requested bread with his order of, say, chicken strips (entrée), onion rings (vegetable), and a soda (beverage). The problem with the Division's case, at bottom, is that the agents did not do enough to establish, affirmatively, the negative proposition that the Division must prove, i.e. that a full course meal was not available.5 Because it was (or should have been) clear to the agents that a vegetable, entrée, and beverage were available, they should have asked, specifically, for bread. They did not. The only off-menu item which the agents requested (other than drinks) was a hamburger. The evidence being insufficient to prove that a "full course meal" could not be had on the occasions in question, it must be concluded, as a matter of ultimate fact, that Barrett is not guilty of serving alcohol without simultaneously making full course meals available, as charged in the Administrative Action [Complaint].
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order finding Barrett not guilty of the instant charge. DONE AND ENTERED this 13th day of May, 2008, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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.stae.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of May, 2008.
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
