The Issue Whether the respondent committed the violations alleged in the Administrative Complaint dated December 19, 1995, and, if so, the penalty which should be imposed.
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: The Criminal Justice Standards and Training Commission is the state agency responsible for certifying and revoking the certification of correctional officers. Section 943.12(3), Florida Statutes. Ms. Davis was certified by the Commission on May 18, 1993, and was issued Corrections Certificate Number 137735. She is currently certified as a corrections officer. Incident at the Royal Palm Beach K-Mart. In the Administrative Complaint, the Commission charged that On or about September 16, 1994, the Respondent, Dorothy B. Davis, did knowingly obtain, use, or did endeavor to obtain or to use a bread maker and a breadmixer of the value of $300.00 or more, the property of K-Mart, with the intent to either temporarily or permanently deprive the owner of a right to the property to her own use. On the morning of September 16, 1994, Timothy Meyers, a K-Mart employee of 16 years, was working as manager of the Royal Palm Beach K-Mart. Mr. Meyers observed Ms. Davis in the kitchen appliance aisle of the store with a shopping cart containing a Black and Decker bread maker and a Kitchen Aide mixer. The bread maker was priced at about $160.00 and the mixer at about $200.00. Moments later, Mr. Meyers observed another woman and a man push a shopping cart into the kitchen appliance aisle and, without looking at the various models available, put into their cart the same model Black and Decker bread maker and the same model Kitchen Aide mixer that Ms. Davis had in her cart. Mr. Meyers found it unusual that a shopper would choose these items without looking at the prices or at the other models available because the items were so expensive. Consequently, he followed the couple to the front of the store, where he observed them pay for the two items with cash. Mr. Meyers observed the couple leave the store by the front exit and put the bread maker and the mixer into a blue Ford Bronco. The man handed the woman what appeared to be the sales receipt for the bread maker and the mixer, and he then got into the Bronco and drove to the west side of the shopping center parking lot. Mr. Meyers observed the woman return to the store. She located Ms. Davis and handed her a piece of paper which Mr. Meyers believed was the receipt for the bread maker and the mixer. Mr. Meyers observed Ms. Davis push the cart containing the Black and Decker bread maker and the Kitchen Aide mixer toward the garden center, which is located on the east side of the store and has a separate exit and check-out register. He asked another store employee to follow Ms. Davis, and he went out the front exit to a location where he could observe the garden center exit but could neither see inside the garden center nor be seen by someone inside the store. When Mr. Meyers saw Ms. Davis push the cart containing the bread maker and the mixer through the garden center exit and onto the ramp leading into the parking lot, he stepped out and stopped her. He asked her if she had paid for the items in her cart at the front register, and she said yes and handed him a receipt for items of the same make and model as those she had in her cart. Mr. Meyers looked at the receipt, told Ms. Davis that she had not paid for the items, and told the cashier in the garden center to call the police. At this point, Ms. Davis left the cart on the sidewalk and walked away. Although Mr. Meyers told her to stop, she continued walking until she reached the Taco Bell restaurant located on the east side of the parking lot, about two hundred feet from the K-Mart store, where she waited until the police arrived. The K-Mart cash register detail tapes, which are the records of every transaction at the store, were checked and showed that, on the morning of September 16, 1994, only one Black and Decker bread maker and one Kitchen Aide mixer were sold. The evidence presented is clear and convincing that, on September 16, 1994, Ms. Davis took property belonging to K-Mart out of the store without paying for it. The property was valued at more than $300. These acts fall within the definition of grand theft found in section 812.014(1) and (2)(c)1, Florida Statutes, which constitutes a third degree felony pursuant to section 812.014(2)(c)1. Incidents involving Sandra Carey. In its Administrative Complaint, the Commission alleged that On or about October 18, 1994, Respondent, Dorothy B. Davis, did unlawfully commit a battery upon Sandra Carey, by actually touching or striking her or intentionally causing bodily harm to her against her will. On or about October 26, 1994, Respondent, Dorothy B. Davis, did unlaw- fully commit an assault upon Sandra Carey, by threatening by word or act to do violence to said person, coupled with an apparent ability to do so, and by doing an act which created a well- founded fear in Sandra Carey that said violence was imminent, by swerving toward her with deadly weapon, to wit: a motor vehicle. On or between October 20 and October 26, 1994, Respondent Dorothy B. Davis, did unlawfully commit an assault upon Sandra Carey, by threatening by word or act to do violence to said person, coupled with an apparent ability to do so, and by doing an act which created a well-founded fear in Sandra Carey that said violence was imminent, by throwing at her or in her direction a deadly weapon, to wit: beer bottles. On or between October 20 and October 26, 1994, Respondent Dorothy B. Davis, did knowingly use intimidation or physical force, threats, or attempts thereto, or offered pecuniary benefit or gain to Sandra Carey with intent to influence that person’s testimony or to cause or induce that person to withhold testimony from an official proceeding or be absent from an official proceeding to which such person has been summoned by legal process. On or between October 20 and October 26, 1994, Respondent, Dorothy B. Davis, did unlawfully, with intent to place Sandra Carey in reasonable fear of death or bodily injury, willfully and maliciously, follow or harass said person and make a credible threat, by assaulting her with a motor vehicle, throwing beer bottles at her, and/or making verbal threats of bodily harm, which caused said person substantial emotional distress and served no legitimate purpose. (The allegations in the Administrative Complaint are set out in paragraph form for clarity.) On October 18, 1994, in Belle Glade, Florida, a fight took place in or near a grocery store parking lot in the 400 block of Southwest Avenue B Place between an unidentified man and a woman named Shirkia Webb. Ms. Webb was apparently not the winner of this fight, and the fight apparently ended when Ms. Webb was knocked to the ground. Ms. Davis drove into the parking lot at about the time Ms. Webb was knocked to the ground. She was driving her Ford Bronco, and her children, including her seven- month-old baby, were in the back seat. When Ms. Davis stopped the car and opened the door, Ms. Webb ran over to her and began talking to her. Ms. Davis then left her children in the vehicle and walked into the grocery store, leaving the keys in the ignition. While Ms. Davis was in the grocery store, Ms. Webb got into the Bronco and ran it into the vehicle owned by the unidentified man with whom she had been fighting. This vehicle was apparently parked in the grocery store parking lot at the time. When Ms. Davis came out of the grocery store, a crowd of people had gathered. She saw that her Bronco had been involved in an accident, and she learned that Ms. Webb had been driving the vehicle. She spoke with one of the police officers on the scene and told him that Ms. Webb had stolen her Bronco with her children inside. She later filed grand theft charges against Ms. Webb. Ms. Carey either overheard Ms. Davis telling the police officer that Ms. Webb had stolen her Bronco or someone told Ms. Carey that Ms. Davis had done so. Ms. Carey then went to one of the police officers and told him that Ms. Davis had given Ms. Webb her Bronco knowing that Ms. Webb intended to use it to hit the man’s vehicle. Someone in the crowd told Ms. Davis what Ms. Carey told the police officers. Ms. Davis was upset at the time because her children were in the Bronco when Ms. Webb hit the other vehicle. When she learned that Ms. Carey told the police that she had given Ms. Webb permission to drive the Bronco, she rushed up to Ms. Carey and struck her in the chest, yelling at her to stop telling lies. This incident was observed by several police officers, and Ms. Davis does not deny that she struck Ms. Carey on this occasion. On October 20, 1994, Ms. Davis was driving her Bronco down 5th Street in Belle Glade, and she speeded up when she saw Ms. Carey crossing the street ahead of her. Ms. Carey was carrying her child, whom she had just picked up from the baby sitter, and she hurried across the street because she believed Ms. Davis would hit her if she did not move out of the way of the Bronco. Ms. Carey reported this incident to the police on October 20. In a second incident, Ms. Carey was at the Glades Wash House when Ms. Davis pulled up in her Bronco and told Ms. Carey she was going to “mess her up” for telling the police that she had given Ms. Webb permission to drive her Bronco during the altercation which took place on October Ms. Carey reported this incident to the police on October 21, 1994. On October 26, 1994, Ms. Davis was driving her Bronco on 4th Street in Belle Glade and she swerved toward Ms. Carey as she was walking along the side of the road. Ms. Carey moved out of the way to avoid being hit; Ms. Davis was laughing as she drove past Ms. Carey. Ms. Carey reported this incident to the police on October 26, 1994. Ms. Carey feared that Ms. Davis would hurt her or her baby, and she experienced some emotional distress until after the October 26 incident. After this incident, she did not think about it anymore and went on with her life because she had no further contact or problem with Ms. Davis. The evidence presented is clear and convincing that Ms. Davis struck Ms. Carey in the chest on October 18, 1994. This act falls within the definition of battery found in section 784.03(1), Florida Statutes, which constitutes a first degree misdemeanor pursuant to section 784.03(2). The evidence presented is clear and convincing that Ms. Davis threatened Ms. Carey with bodily harm both by trying to run her down on the street on October 20 and October 26 and by her words at the wash house on October These threats fall within the definition of assault found in section 784.011(1), Florida Statutes, which constitutes a second degree misdemeanor pursuant to section 784.011(2).1
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, issue a final order finding that Dorothy B. Davis has failed to maintain good moral character and revoking her certification as a corrections officer. DONE AND ENTERED this 6th day of February, 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 6th day of February, 1997.
The Issue At issue in this proceeding is whether the Department of Environmental Protection (Department), Division of Recreation and Parks' (Division) existing Rule 62D-2.014(18), Florida Administrative Code (Rule), is an invalid exercise of delegated legislative authority. Specifically, the issues are whether the Division has exceeded its grant of rulemaking authority and whether the Rule is vague, fails to establish standards for Division decisions, and vests unbridled discretion in the Division.
Findings Of Fact Frandsen Frandsen is a citizen of the state of Florida who is interested in free speech activities in state parks that advance the cause of naturist activities, including recreation. Frandsen is a physicist and works for the United States Air Force, essentially as a defense scientist. Frandsen's original challenge in this proceeding was directed, in part, to the Division's application of the Rule and the validity of agency statements as rules and as applied to him. Frandsen has deleted these from his challenge. This Final Order does not decide whether the Division has properly applied the Rule to Frandsen nor whether any agency statements are invalid, nor whether the Rule is constitutionally infirm either on its face or as applied. Frandsen's cause, with respect to the state park system, is to see limited, designated areas within state parks open to "clothing optional recreation, particularly beachfront recreation, where someone can sunbathe," "socialize," and "swim nude in the ocean and on the beaches as the human race has for eternity." Frandsen is aware of the anti-nudity rule, Rule 62D- 2.014(7)(b), but is challenging the right to be able to advocate changing the rule which prohibits nudity. For Frandsen, "[t]he issue [here] is [his] ability to exercise free speech to communicate with the public to advocate for [his] cause," in a state park. Conversely, "[t]his action does not deal with the issue of whether [Frandsen has] a constitutional right to incorporate nudity into a communication." His main concern is the absence of standards in Rule 62D-2.014(18) to channel the Division's exercise of discretion relating to time, place, and manner restrictions placed on free speech activities and also the threat of arrest if the restrictions are not complied with. The Department stipulated that Frandsen has standing to challenge Rule 62D-2.014(18) as an invalid exercise of delegated legislative authority. Department and Division The Department is an agency of the state of Florida, which manages and operates state parks under its jurisdiction, pursuant to Chapter 258, Part I, Florida Statutes, through its Division of Recreation and Parks. The Division has the duty "to supervise, administer, regulate, and control the operation of all public parks " Section 258.004(1), Florida Statutes. Additionally, the Division "shall preserve, manage, regulate, and protect all parks and recreational areas held by the state . . .." Section 258.004(2), Florida Statutes. It is the policy of the Division "[t]o promote the state park system for the use, enjoyment, and benefit of the people of Florida and visitors . . . administer the development, use and maintenance of these lands and render such public service in so doing, in such a manner as to enable the people of Florida and visitors to enjoy these values without depleting them . . .." Section 258.037, Florida Statutes. "The division has authority to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement provisions of law conferring duties on it, and the violation of any rule authorized by this section shall be a misdemeanor and punishable accordingly." Section 258.007(2), Florida Statutes. State Parks The Division manages 155 state parks, which comprise over a half a million acres. The term "state parks" is generic and includes historic sites, beach areas, river parks, parks with swimming pools, geological sites, archeological sites, and recreation areas. The parks are very diverse and offer different opportunities for visitors. The parks can range in size from just a few acres to over 25,000 acres. Florida's state park system is the fourth largest in the nation. Over 16 million people visited the parks last year, which was an increase of 13 1/2 percent from the previous year. The state park system is divided into five districts, each of which includes 20 to 30 parks. The Division employs over 1,000 full-time employees and approximately 300 to 500 part-time, OPS help. Each district is under the supervision of a district bureau chief who is responsible for that district's employees, visitors, volunteers, and parks. Individual parks or groups of parks are under the direct supervision of a park manager. Honeymoon Island State Park, which is located on the west coast of Florida in Pinellas County, is one of six main parks all managed by the same park manager. It is part of a GEO (Geographically Efficient Operation) park, which includes 15 properties, both submerged lands and uplands, and extends through 3 counties. Not every park is staffed with Division personnel at all times. For example, District 4 has approximately 25 parks with 17 park managers. In parks which are not staffed, the telephone numbers of the park manager and assistant manager are posted within the park at various locations including near the restrooms, pay phones, concessions, or camp grounds. Various activities are enjoyed in state parks including: swimming, camping, hiking, boating, biking, horseback riding, wildlife viewing, snorkeling, guided tours, and picnicking. Each park offers a different number and combination of these activities. The Division's primary mission is to enable the public to enjoy outdoor-based resource recreation. Through its rules, the Division regulates many activities in state parks to ensure the safety of visitors and to protect park resources, including the speed of vehicles, parking, boating, fishing, the consumption of alcoholic beverages, bathing and swimming, domestic animals, hunting, merchandising, aircraft, and commercial photography. See Rule 62D-2.014(4), (6), (7), (8), (9), (10), (12), (13), (14), (15), and (17), Florida Administrative Code. The Rule Rule 62D-2.014(18), Florida Administrative Code, provides: Free Speech Activities. Free speech activities include, but are not limited to, public speaking, performances, distribution of printed material, displays, and signs. Free speech activities do not include activities for commercial purposes. Any persons engaging in such activities can determine what restrictions as to time, place, and manner may apply, in any particular situation, by contacting the park manager. Free speech activities shall not create a safety hazard or interfere with any other park visitor's enjoyment of the park's natural or cultural experience. The park manager will determine the suitability of place and manner based on park visitor use patterns and other visitor activities occurring at the time of the free speech activity. Rule 62D-2.014 pertains to "activities and recreation." Section 258.007(2), Florida Statutes, is cited as the specific authority for Rule 62D-2.014, including Subsection (18). Rule 62D-2.014, including Subsection (18), implements Sections 258.004, 258.007(1)-(3), 258.014, 258.016, 258.017, and 258.037, Florida Statutes. The Rule was adopted in 1996 to inform the public that free speech activities are welcome in state parks. It sets broad guidelines and standards for park managers to ensure that the public's First Amendment rights are respected and not infringed. The Division felt the need for a rule "to put park staff on notice that [First Amendment activity] is okay and it is allowable and it is acceptable." No permits have been issued for free speech activities since the mid-1990's as a result of a federal court order. See The Naturist Society, Inc. v. Fillyaw, 858 F. Supp. 1559 (S.D. 1994). The Rule was not intended to be all encompassing because of the diversity of the parks. Most activities in the parks include some form of free speech activity. The term "include, but are not limited to" means anything that is covered by the First Amendment, whether it be oral, written, or symbolic conduct. The Rule applies to even a single individual wishing to engage in free speech activities as defined by the Rule, including, but not limited to the activity of "displays" and "signs." The Rule states that free speech activities shall not interfere with any other park visitor's enjoyment of the park's natural or cultural experience. This means that people are free to conduct any activity they choose so long as the manner in which they do it does not infringe on other park visitors' purpose for coming to the park. For example, if an area of a particular park were known for bird watching, it would be inappropriate for someone to walk through that area playing loud music or shouting. The Rule contemplates that the Division will be diligent in protecting visitor enjoyment and safety. The Rule states that free speech activities shall not create a "safety hazard." Safety hazards vary depending on the activity, area, and park involved. They can range from the dangers inherent to a large assembly of people, which would be the same in any park, to the dangers of holding a particular activity in a specific area of a specific park. The types of safety hazards a manager must consider will vary significantly with the type of activity and the park in which it takes place. Park managers also consider "visitor use patterns" when determining the suitability of the time, place, and manner of a particular activity. Visitor use patterns are the different activities, which typically occur in a particular park. They vary by time of the day and the season and are therefore different day-by-day and park-by-park. For example, a visitor may tour the Gamble Plantation as a historic site, but not swim. At Honeymoon Park, people use the beach and swim. Moreover, during the summer, the use patterns at Wakulla Springs State Park for swimming are heavy, whereas the pattern for swimming decreases rapidly during the winter. Different safety concerns arise given the nature and use(s) of each park. A person or group wishing to engage in free speech activities are not always able to access a park manager to determine applicable time, place, and manner restrictions because the park manager may not be on duty during all hours and days when the park is open. The Division does not decide in advance and publicly post or otherwise publicly provide generic time, place, and manner restrictions. Beyond the Rule, there are no written documents, handbooks, guidelines, and policies of general application to provide guidance to the Division park managers to determine what time, place, and manner restrictions may be applied. Each determination of time, place, and manner restrictions by the Division, including the resources, which may be needed to be expended to accommodate a free speech activity, is made on a case-by-case basis based upon the criteria in the Rule. Because of the number of parks, their diversity, staffing issues, and the varying attendance on particular days or in particular seasons, it would be impracticable to develop a set of standard time, place, and manner restrictions for every possible activity, which may occur in every park. The Rule contemplates that a park manager may consult with other personnel with the Department and the Division regarding the application of the Rule. Park managers have consulted with legal counsel prior to responding to a request or, in some cases, request legal counsel to respond directly to the requesting person. This procedure is the norm regarding requests for "clothing optional demonstration[s]." The Department's "Office of General Counsel is consulted on all nudity issues that may involve free speech to ensure compliance with all current laws" and responses are given on a case-by-case basis in light of counsel's interpretation of the Rule, reached in conjunction with First Amendment case law. The Rule does not require contact with a park manager prior to engaging in a free speech activity. The Rule contemplates that the public may contact a park manager to ensure that a planned activity will not create a safety hazard or conflict with other planned activities. For example, weddings are welcomed in the state parks, although prior notification is not required. But, notification can be helpful to the park manager to determine the number of people involved and the time of day to ensure, for example, that parking is available. Although the Rule does not state a time in which park managers must respond to a request for any applicable time, place, and manner restrictions, the Rule contemplates that these decisions will be made within a reasonable time. The Division expects their park managers to respond in an expeditious manner. The Division's typical practice is to respond within a 2 or 3 week period. There have been exceptions to this expectation. The level of complexity of the inquiry may lengthen the time to respond. Generally, any person dissatisfied with a response from the park manager may contact various levels of responsibility throughout the Division and Department. This process is not referred to as "an official administrative appeal." Nevertheless, any decision regarding an interpretation of a park rule or a response to an inquiry results in the formulation of agency action. Any person substantially affected by the agency action should be given a point of entry to challenge the agency action pursuant to and consistent with the procedural requirements of the APA. See Department's Proposed Final Order, page 10, paragraph 46.
Findings Of Fact Petitioner is a department of state government headed by the Florida Citrus Commission. Petitioner collects various excise taxes on boxes of citrus fruit. When taxes are collected, they are deposited in a bank account in Lakeland, Florida. The next day the funds are transferred to the state general revenue account in Jacksonville, Florida. This account is administered by Respondent. Such transactions are accomplished daily. The funds deposited in the state account accrue interest for the State's general revenue, but not for Petitioner's specific use. When Petitioner does not have an immediate need for money that it has deposited in the state account, it advises the Respondent to transfer the funds to accounts administered by the State Board of Administration for investment in bonds. Interest derived from these investments accrues for the benefit of the Petitioner, except that the Board of Administration imposes a charge for its services. When Petitioner needs money, it advises the Board of Administration to transfer funds back to the state account. Respondent imposes a two percent fee upon money deposited by Petitioner in the state account. After investments by the State Board of Administration were first authorized in 1965, the Respondent developed a policy of imposing its fee on interest income generated by the State Board of Administration's investments. Thus, when Petitioner's money was transferred back from the State Board of Administration to the general state account, Respondent would impose a two percent deduction on the interest income. On November 19, 1979, the Office of the Attorney General issued a formal opinion that the interest generated by investments of the State Board of Administration were not subject to the Respondent's fees. Respondent thereafter refunded fees that had been collected on that basis to Petitioner. Respondent filed its Rule 3A-40.101, Florida Administrative Code, with the Office of the Secretary of State on March 2, 1981. The rule reestablishes Respondent's former policy of imposing a deduction on interest income earned and reported on investments by the State Board of Administration. Respondent has implemented the rule and imposed its two percent fee upon Petitioner's interest income. Petitioner has initiated the instant rule challenge proceeding contending that Respondent lacks authority to impose the deduction on the interest income, and that the rule therefore constitutes an invalid exercise of delegated legislative authority.
The Issue Is it in the public interest to place Petitioners, Paradies Shops, Inc. and Paradies Midfield Corporation (Paradies Shops and Paradies Midfield) on the State of Florida Convicted Vendor List maintained by Respondent State of Florida Department of Management Services (the Department)? Section 287.133, Florida Statutes (1996 Supp.).
Findings Of Fact The corporate headquarters of Paradies Shops is located at 5950 Fulton Industrial Boulevard, Atlanta, GA 30336. Paradies Shops is conducting business with several Florida public entities in the form of airport retail concession contracts. Paradies Shops owns 65 percent of Paradies Midfield. Paradies Shops owns 75 percent of Paradies-Ft. Lauderdale. Paradies-Jacksonville, Paradies-Sarasota and Paradies-Daytona Beach are all Sub-Chapter S corporations, for tax purposes; therefore, Paradies Shops does not own any stock in these three corporations. The Paradies family and Richard Dickson own, on an individual basis, 75% to 85% of the Sub- Chapter S affiliates. The remaining stock is owned by the Disadvantaged Business Enterprise (DBE) partners of Paradies Shops in these ventures. Paradies Shops and Paradies Midfield do not operate through divisions. Paradies Midfield has one subsidiary, Paradies Country Stores, Inc. All of the corporate addresses for other Paradies Companies, in addition to Paradies Shops, are at 5950 Fulton Industrial Boulevard, Atlanta, GA 30336. The subsidiaries, affiliates, limited liability companies and Florida leases of Paradies are as follows: Subsidiaries Paradies-Chicago, Inc. Paradies-Fort Lauderdale, Inc. Paradies-Hartford, Inc. Paradies-Louisville, Inc. Paradies Midfield Corporation Paradies Pugh, Inc. PAS Group, Inc. Affiliates Mercaro Gifts-TPS, Inc. Paradies-Concessions II-Arch, Inc. Paradies-Dayton, Inc. Paradies-Huntsville, Inc. Paradies-Jacksonville, Inc. Paradies-Knoxville, Inc. Paradies-LaGuardia, Inc. Paradies-Metro Ventures, Inc. Paradies-Orange Co., Inc. Paradies-Sarasota, Inc. Paradies-South, Inc. Paradies-Toronto, Inc. Paradies-Daytona Beach, Inc. Paradies-Vancouver, Inc. PGA Tour Licensing Limited Liability Companies Paradies & Associates, L.L.C. Paradies-Colorado Springs, L.L.C. Paradies-Madison, L.L.C. Paradies-Desert House, L.L.C. Paradies-Phoenix, L.L.C. Current Florida Leases Company Name Paradies Southwest Florida Intl. Lee County Port Ft. Myers, Florida Authority Paradies Palm Beach Intl. Airport Palm Beach West Palm Beach, FL County Paradies Tallahassee Regional Airport City of Tallahassee, Florida Tallahassee Paradies Orlando Intl. Airport Greater Orlando Orlando, Florida Aviation Authority Paradies Ft. Lauderdale Intl. Airport Broward County Ft. Lauderdale, Florida Paradies Jacksonville Intl. Airport Jacksonville Port Authority Paradies Sarasota/Bradenton Intl. Sarasota-Manatee Sarasota, Florida Airport Authority Paradies Daytona Beach Intl. Airport County of Volusia Daytona Beach, Florida The following constitutes the Florida business registrations for Paradies, to include the company name and the Florida registration number: Company Florida Registration # Parent Paradies, Inc. 826058 Subsidiaries Paradies-Ft. Lauderdale, Inc. M11773 Sub-S Affiliates Paradies-Jacksonville, Inc. P30174 Paradies-Sarasota, Inc. P27093 Paradies-Daytona Beach, Inc. F92000000397 Pursuant to Section 287.133, Florida Statutes (1996 Supp.), the Department is responsible for investigating and prosecuting cases involved with persons or affiliates that it has reason to believe have been convicted of a public entity crime. This responsibility is as a means to maintain a list of the names and addresses of those persons or affiliates who have been disqualified from the public contracting and purchasing process engaged in with Florida public entities subject to that statute. Daniel M. Paradies, Paradies Shops and Paradies Midfield, were charged with public entity crimes as defined within subsection 287.133(1)(g), Florida Statutes (1996 Supp). That case was tried before a jury in January, 1994 (U.S. v. Ira Jackson, et al., Case No. 1:93:CR-310, U.S. District Court for the Northern District of Georgia, Atlanta Division.) On January 22, 1994 the jury returned a verdict of guilty. On April 15, 1994, the U.S. District Court for the Northern District of Georgia, Atlanta Division, entered judgments of conviction for 83 counts of mail fraud against Daniel M. Paradies, Paradies Shops and Paradies Midfield, for violations of Sections 1341 and 1346 of Title 18, United States Code. Daniel M. Paradies was also convicted of one count of conspiracy to commit bribery in violation of Section 371 of Title 18, United States Code. These judgments and convictions of Daniel M. Paradies, Paradies Shops and Paradies Midfield constituted convictions for public entity crimes as defined within Subsections 287.133(1)(g) and 287.133(3)(e), Florida Statutes (1996 Supp.). Further information concerning the judgments of conviction may be found in Exhibits M, N, O and P to the joint stipulation of facts by the parties. The nature and details of the public entity crimes for which judgments of conviction were entered against Daniel M. Paradies, Paradies Shops and Paradies Midfield may be found in Exhibit P to the stipulation by the parties. As well, that exhibit speaks to the culpability of the persons or affiliates proposed to be placed on the Convicted Vendor List. Section 287.133(3)(e)3b. and c., Florida Statutes (1996 Supp.). On September 23, 1996, the United States Court of Appeals for the Eleventh Circuit affirmed all convictions of Daniel M. Paradies, Paradies Shops and Paradies Midfield. The Eleventh Circuit denied rehearing on December 26, 1996, but stayed its mandate pending a Petition for Writ of Certiorari in an Order entered January 22, 1997. By seeking a stay of the Eleventh Circuit's mandate, the Paradies companies announced their intention to file a Petition for Writ of Certiorari in the United States Supreme Court within thirty (30) days after the mandate had been stayed. A copy of the Eleventh Circuit order granting the motion to stay pending a Petition for Writ of Certiorari is found as Exhibit A to the fact stipulation by the parties. The Petition for Writ of Certiorari has been filed. In consideration of the requirements of Section 287.133(e)3.d, Florida Statutes (1996 Supp.), requiring consideration of "prompt or voluntary payment of any damages or penalty as a result of the conviction" for a public entity crime, no restitution was required by the final judgment in that case. A fine and special assessment against Paradies Shops were payable over a five year period, once the judgment becomes final. Because the Eleventh Circuit order stayed issuance of the mandate pending United States Supreme Court's ruling for the Petition for Writ of Certiorari to be filed by Mr. Paradies, Paradies Shops and Paradies Midfield, the fine and special assessment are not due at this time. The Paradies Shops has established a reserve for payment of the fine and that reserve is reflected in its audited balance sheet. In the event the Supreme Court denies the Petition, Paradies Shops and Paradies Midfield intend to pay the full amount of the fine and the special assessment within thirty (30) days of a final judgment. A copy of "the Paradies Shops, Inc., its Subsidiaries and its Affiliates Consolidated and Combined Financial Statements June 30, 1996 and 1995," demonstrating the availability of the funds is attached to the fact stipulation by the parties as Exhibit D. In accordance with Section 287.133(3)(e)3.e, Florida Statutes (1996 Supp), Paradies Shops and Paradies Midfield cooperated with the state and federal investigations and federal prosecution of the public entity crime consistent with their good faith exercise of constitutional, statutory or other rights during the investigation or prosecution of the public entity crime, to the extent that: Paradies Shops and Paradies Midfield at all times cooperated with the federal government with its investigation. Paradies produced tens of thousands of pages of documents and made all of its employees available for appearance before the Federal Grand Jury. In addition, several Paradies Shops' employees were called by the government to testify at trial. Paradies Shops and Paradies Midfield, fully cooperated with the Department in connection with this investigation initiated pursuant to Section 287.133, Florida Statutes, and supplied the Department with all requested documents concerning the Atlanta proceeding. In association with Section 287.133(3)(e)3.f, Florida Statutes (1996 Supp.), the following acts of "disassociation from any person or affiliates convicted of the public entity crime" have transpired: Paradies Midfield and Paradies Country Store ceased all operations on March 31, 1995. In May, 1994, Dan Paradies resigned as President and Director for Paradies Shops and is no longer employed in any capacity with any company. Mr. Paradies has placed in a blind irrevocable trust all of the stocks he owns in Paradies Shops and its affiliates (including the companies operating in Florida). Mr. Paradies does not have any control over the stock in the blind irrevocable trust and cannot vote any of that stock. In regards to his capacity within the company, Mr. Paradies has no involvement nor any control over any of the Paradies companies. He is not employed in any capacity with any of the companies nor is he an officer or director of any of the companies. Paradies Shops and Paradies Midfield were held responsible based on the ownership and control of Mr. Dan Paradies. Charges were not brought against any other officer, director or employee of Paradies. The government did charge Mack Wilbourn, a director of Paradies Midfield, but he was acquitted. In association with Section 287.133(3)(e)3.g, Florida Statutes (1996 Supp.), "prior or future self-policing by the person or affiliate to prevent public entity crimes" has been shown to the extent that: Following the convictions Paradies Shops engaged the international accounting firm of Coopers & Lybrand to review and evaluate all DBE business relationships of Paradies Shops. These reviews were completed in May of 1994, and found no evidence of any improper activities. These reviews are found as Exhibit E to the fact stipulation by the parties. Paradies Shops has adopted a Code of Business Practices that is designed to provide officers and all management of the Company a guide to the basic principles to be applied in conducting the company's business. The failure on the part of a covered employee to abide by the provision of the Code is grounds for immediate dismissal. This code also directs employees to report any suspected violations of the law or other misconduct. The Code has been read and executed by all employees in the home office in Atlanta and all managers in all locations around the country. All future new employees at the home office and new management level employees are required to read and agree to follow the Code. The Company requires all covered employees to certify, on at least an annual basis, that they have reviewed the Code and that they will continue to abide by its terms. A copy of Paradies Code of business practices, which includes a blank certification form, is Exhibit F to the fact stipulation by the parties. In accordance with Section 287.133(3)(e)3.h, Florida Statutes (1996 Supp.), consideration is given any "reinstatement or clemency in any jurisdiction in relation to the public entity crime at issue in the proceeding." To that extent: No debarment proceedings have been initiated against Paradies by any state as a result of the Atlanta conviction. Paradies has not been debarred by any state as a result of the Atlanta conviction. The fact stipulation relates that: Since the convictions, Paradies has won thirteen (13) new contracts through competitive proposals and received the extensions of fourteen (14) existing contracts. Additionally, Paradies has been awarded five (5) off-airport contracts since the conviction to include a long-term contract with the World Golf Village, currently under development south of Jacksonville, Florida, and scheduled to open March of 1998. In addition, in 1996, the PGA TOUR has extended the Paradies exclusive license to operate the PGA TOUR Shops for an additional five (5) years. These representations in the fact stipulation are not found to relate to the factor to be considered by the undersigned which is Section 287.133(3)(e)3.h, Florida Statutes (1996 Supp.). Section 287.133(3)(e)3.i, Florida Statutes (1996 Supp.) makes it incumbent upon the person or affiliate who is convicted of a public entity crime applicable to that person or affiliate of that person to notify the Department within 30 days of the conviction of the public entity crime. Without necessity the parties stipulated that: On July 9, 1993, the same day the indictment was returned, Paradies Shops notified all airports at which Paradies Shops (or its subsidiaries or affiliates) operates, including all airports in Florida of the indictment that was returned by the Federal Grand Jury in Atlanta. Copies of the indictment were sent to all airports in Florida along with the notification. Copies of the notice of indictment sent to all Florida Airports at which Paradies Shops operated are attached and incorporated in the fact stipulation as Exhibit G. As contemplated by the statute and stipulated to by these parties: On January 24, 1994, the first business day after the conviction, Paradies Shops notified all such airports in Florida (and elsewhere) of the guilty verdicts returned by the jury in Atlanta. Copies of the Notices of Convictions sent to all Florida airports at which Paradies operated are attached and incorporated into this stipulation as Exhibit H. On April 15, 1994, the same day as the sentencing, Paradies Shops notified all such airports in Florida (and elsewhere) that the District Court had denied the Motion for Judgment of Acquittal or New Trial. Copies of the notices reporting Denial of the Motionfor Judgment of Acquittal or new trial sent to all Florida airports at which Paradies Shops operated are attached and incorporated into this stipulation as Exhibit I. Additionally, the parties stipulated that "the Department of Management Services has been informed of all subsequent developments and decisions." This refers to circumstances following the notification to the Florida airports that the District Court had denied the Motion for Judgment of Acquittal or New Trial. It is not clear from the fact stipulation upon what basis the Department was informed of the judgments of convictions within 30 days after the conviction of the public entity crime applicable to the subject persons or affiliates nor has it been shown that any public entity (Florida airports) which received the information that a person had been convicted of a public entity crime had transmitted that information to the Department in writing within 10 days after receipt of that information as contemplated by Section 287.133(3)(b), Florida Statutes (1996 Supp.). Nonetheless, the parties have stipulated that pursuant to Section 287.133(3)(b), Florida Statutes (1996 Supp.), Paradies Shops made timely notification to the Department of the conviction of public entity crimes applicable to persons or affiliates of that person and provided details of the convictions and that communication was direct. Section 287.133(3)(e)1., Florida Statutes (1996 Supp.), was complied with by the Department through its Notice of Intent to Paradies Shops and Paradies Midfield in writing indicating the intent to place those persons on the Convicted Vendor List. This notification occurred on April 29, 1997. A copy of the Notification is included with the parties fact stipulation as Exhibit B. On April 29, 1997, in accordance with Section 287.133(3)(e)2, Florida Statutes (1996 Supp.), Paradies Shops and Paradies Midfield timely filed a Petition for Administrative Hearing pursuant to Section 120.57(1), Florida Statutes (1996 Supp.) to determine whether it is in the public interest for Paradies Shops and Paradies Midfield to be placed on the State of Florida Convicted Vendor List. A copy of the petition for Formal Administrative Hearing is attached and incorporated in the parties fact stipulation as Exhibit C. Section 287.133(3)(e)3.j, Florida Statutes (1996 Supp.), calls for consideration of "the needs of public entities for additional competition in the procurement of goods and services in their respective markets." The parties have not stipulated concerning that criterion. Therefore, no factual basis exists for determining the needs of public entities for additional competition in the procurement of goods and services in the respective markets. Section 287.133(3)(e)3.k, Florida Statutes (1996 Supp.), addresses "mitigation based upon any demonstration of good citizenship by the person or affiliate." In responding to that factor the parties have stipulated to the following: Paradies Shops was rated the 'Best Airport Retail Concessionaire for 1995' by an expert group of Concessionaires, and Consultants and Airport Managers. Paradies Shops was also chosen as the 'concessionaire with highest regard for customer services'. These awards were reported in the December 20, 1995 edition of 'World Airport Retail News', a publication based in West Palm Beach, Florida. A copy of this report is attached and incorporated into the stipulation as Exhibit J. In addition, Paradies Shops has supplied letters from 26 airport authorities attesting to the good citizenship of Paradies Shops. Copies of such Supplied Letters are attached and incorporated into the stipulation as Exhibit K. Paradies Shops was rated the 'Best Airport retail concessionaire for 1996' by an expert group of concessionaires, and Consultants and Airport Managers. Paradies Shops has now won this award for the past two (2) consecutive years. In each year, Paradies Shops was honored with this Award by a separate panel of experts. Additionally, Paradies Shops was granted the following awards in 1996: 'Best Airport Retailer', 'Concessionaire with Highest Regard for Public Service', 'Best New Specialty Retail Concept', and 'Most Visually Attractive, Engaging Retail Store Front in an Airport'. Notice of these awards appeared in the February 20, 1997 edition of 'World Airport News', a copy of which is attached and incorporated into the stipulation as Exhibit L'. Having considered the fact stipulations and Exhibits J, K, and L, it is concluded that these facts and exhibits do not relate to demonstration of good citizenship as described in Section 287.133(3)(e)3.k, Florida Statutes (1996 Supp.).
Findings Of Fact Foster and Kleiser are the owners of signs located on I-275 at the off- ramp of 54th Avenue, Pinellas-Hillsborough Cloverleaf. These signs are 198 feet from the beginning of the pavement adjacent to the signs and 15 feet from the right of way. The location is in an unincorporated portion of Pinellas County. On December 22, 1972, Ace Outdoor Advertising Co., Inc., the predecessor in interest of Foster and Kleiser as regards this sign, sought and received a permit for the construction of a sign located at "I-75. . .five miles north of St. Petersburg." These permit numbers have been renewed every year until the present with Foster and Kleiser succeeding in interest to Ace Outdoor Advertising Co., Inc. through purchase in 1976. In late 1972, two members of the Department of Transportation, a Mr. Boger (an outdoor advertising inspector now deceased) and Mr. Moran along with Mr. Arthur Hempel, the President of Ace Outdoor Advertising Co., Inc. looked over the area in Pinellas County where the sign was intended to be constructed. At that time Mr. Hempel showed Mr. Boger and Mr. Moran the general area in which the sign would be erected, said area being a strip of approximately 1500 feet fronting I-275 just north of the 54th Avenue North cutoff. No specific site for the sign was stated to Mr. Moran or Mr. Boger and it was pointed out by the DOT personnel that a zoning change would have to be accomplished to permit any sign to be constructed. This rezoning was later made by the County Commission and the land in question was changed from A-1 (agricultural) to CP (Commercial Parkway) in 1973. The sign in question was not erected until on or about June 21, 1977, and is located approximately 198 feet north of the widening for the beginning of the off-ramp at the 54th Avenue North interchange of Interstate 275 in Pinellas County. Prior to the promulgation of Rule 14-10 the Department used as its rule and regulation regarding spacing of signs the Agreement between the Governor of the State of Florida and the United States Department of Transportation, which is now set forth verbatim in Rule 14-10.06 which was adopted in April 1977. The Agreement was enforced by the Department prior to 1976 when it was adopted as a rule. On or about July 27, 1977, the Department cited Respondent Foster and Kleiser for a violation of F.S. 479.02 and Rule 4-10.06 for having erected an outdoor advertising sign within 500 feet of the widening of the pavement at the exit from I-75.
Recommendation For the reasons stated above and in the light of the applicable law, since the sign in question is nonconforming and since currently valid permits have not been issued for the site at which it was erected in June, 1977, it is illegal, cannot be permitted and should be removed. DONE and ORDERED this 28th day of March, 1978, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 1978. COPIES FURNISHED: John A. Rimes, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Horace A. Andrews, Esquire 602 Florida National Bank Building St. Petersburg, Florida 33701 Mr. O. E. Black, Administrator Outdoor Advertising Section Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 ================================================================= AMENDED AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION FLORIDA DEPARTMENT OF TRANSPORTATION, Petitioner, vs. CASE NO. 77-1430 FOSTER AND KLEISER, Respondent. /
Findings Of Fact On or about June 18, 1981, the Department issued permit numbers AE654-10 and AE655-10 to the Respondent, Bill Salter Advertising, Inc., authorizing the erection of a sign on the north side of I-10, 1.2 miles west of U.S. 29 in Escambia County, Florida. Prior to the issuance of the permits in 1981, the site was field inspected and approved by a Department inspector. The Respondent's representative who submitted the permit applications designated on these applications that the sign location was in an unzoned area within 800 feet of a business. This representative also certified on the applications that the sign to be erected would meet all of the requirements of Chapter 479, Florida Statutes. Attached to these applications was a sketch prepared by the Respondent depicting the proposed sign location, and designating the business that was within 800 feet of this location to be a junkyard. This junkyard as it was characterized on the sketch accompanying the Respondent's applications was a business activity that was in operation in 1981. It was within 660 feet of the right-of-way of I-10, and the sign site proposed by the Respondent was within 800 feet of the business activities. The Department's outdoor advertising inspector who approved the applications found the site where the business was located, as well as the activities being conducted there, to have been visible from the main-traveled way of I-10 in 1981. The Respondent and one of its representatives, who viewed the site in 1981, also found that the business activities were visible from I-10 in 1981. Two Department witnesses who viewed this location in 1985 testified that they could not see either the business or the business activities from the main-traveled way of I- However, neither of these Department representatives testified that they viewed the site in 1981, and their testimony has thus been rejected as less persuasive than the testimony of those who viewed the site in 1981. The more substantial competent evidence in this record supports a finding of fact that the business activities were visible from the main-traveled way of I-10 in 1981 when the applications were submitted and approved, and it is so found. Although the sketch accompanying the Respondent's applications designated the business that was in proximity to the proposed sign location as a junkyard, the evidence is inconclusive relative to what the nature of the business activities actually were at this site. The Department contends that the sign was permitted solely on the basis of the junkyard depicted on the Respondent's sketch, but the inspector who approved the permits testified that there may have been something else within 800 feet of the sign site other than the junkyard. He was tentative and indefinite when asked if his approval of the permits was based on anything other than what the sketch depicted. There was "a bunch of automobiles" on the business grounds in 1981 according to the Department inspector who visited the site in 1981. The Respondent's representative who submitted the applications and who prepared the sketch saw some tools, old cars and parts on the site. He called it a junkyard, but it could have been an auto parts business. Another Respondent witness characterized the business being conducted there as an auto repair business, and he has seen autos being repaired there. He has also seen a customer making payment for a repaired vehicle. He has seen the occupational license of the business operator, and it shows a retail business being conducted. Thus, there is insufficient evidence to support a finding of fact that a junkyard was being operated in the area where the Respondent's sign was permitted. In addition, Section 339.241(3), Florida Statutes, requires that junkyards located within 1,000 feet of interstate highways be screened from view from the highway. The business being conducted at the site where the subject sign was permitted is not so screened now, and was not screened in 1981. In summary, the weight of the evidence detailed above supports a finding that the business activity which the Respondent indicated on its applications qualified the proposed sign site as an unzoned commercial area, was within 660 feet of the Interstate and within 800 feet of the proposed sign site, and that the business activities were visible from the main-traveled way of I-10 in 1981. The weight of the evidence further supports a finding that in 1981 the business being conducted at this site was not a junkyard. Prior to February of 1985, the site was inspected by the Department's Right-of-Way Administrator who determined that the permits had been issued in error because he could see no visible commercial activity within 800 feet of the sign. He testified that a junkyard would not qualify a site as an unzoned commercial area because of the requirement in Section 339.241(3), Florida Statutes, that a junkyard be screened from view from the interstate. However, there is no evidence that this witness viewed the area in 1981. Thus, his testimony has less persuasive force than that of the Department inspector who viewed the site in 1981, and who could see the commercial activity from I-10. The Right-of-Way Administrator also testified that the requirement that a junkyard be screened from the interstate is part of the Highway Beautification Act of 1965. However, this requirement is not a part of the Florida Outdoor Advertising Act, Chapter 479, Florida Statutes. Although the Respondent certified on the applications that the sign to be erected would meet all the requirements of Chapter 479, Florida Statutes, the Respondent did not certify that the proposed sign would meet the requirements of the Highway Beautification Act of 1965, or that it would meet the requirements of any of the other statutes of Florida. This is not required. In February of 1985, the Department issued a Notice of Violation advising the Respondent that the subject permits were being revoked because the sign had not been erected in a zoned or unzoned commercial area due to the lack of any business activity that was visible from the roadway.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department's violation notice seeking revocation of the Respondent's permits and removal of the Respondent's sign on the north side of I-10, 1.2 miles west of U.S. 29 in Escambia County, Florida, be dismissed, and that permit numbers AE654-10 and AE655-10 remain in effect. THIS RECOMMENDED ORDER entered this 21st day of August, 1985, in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 1985. COPIES FURNISHED: Maxine F. Ferguson, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064 Mr. Bill Salter, President Bill Salter Advertising, Inc. Post Office Box 422 Milton, Florida 32570 Mark J. Proctor, Esquire Post Office Box 12308 Pensacola, Florida 32581 Hon. Paul A. Pappas Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32031
The Issue Whether Petitioners' request to negotiate or competitively bid for a concession for amusement devices at service areas on the Florida Turnpike should be granted, pursuant to Section 340.091, Florida Statutes. This proceeding arose as a result of Respondent Department of Transportation's denial of the request of Petitioners Florida Sunshine Parkway Citrus, Inc. and Joe A. Chambliss to negotiate or competitively bid for a concession to install and operate video amusement machines at the various service plazas of the Florida Turnpike. Sunshine Parkway Restaurants, Inc. petitioned for leave to intervene in the proceedings and was granted status as an intervenor. Posthearing submissions by the parties in the form of proposed recommended orders have been fully considered, and those portions thereof not adopted herein are considered to be either unnecessary, irrelevant, or unsupported in law or fact.
Findings Of Fact On June 1, 1982, Petitioner Florida Sunshine Parkway Citrus, Inc. entered into two agreements with Respondent Department of Transportation under which Petitioner was granted a five-year license to manage and operate the citrus products shops located at the Pompano and Fort Pierce service plazas on the Florida Turnpike, pursuant to Section 340.091, Florida Statutes. The agreements provided that the shops would be used for the sale of products "relating to Florida citrus and/or goods promoting the State of Florida, including but not limited to all Florida products and tropical juices." Petitioner was awarded the contracts as a result of a competitive bidding process. Petitioner Joe A. Chambliss is the president of Florida Sunshine Parkway Citrus, Inc. Chambliss also is a sub-lessee of two Texaco Service Stations at the Fort Pierce and Snapper Creek service plazas. (Testimony of Chambliss; Respondent's Exhibits 10-19, Joint Exhibit 1 (Stipulation)) On November 29, 1978, Respondent entered into an agreement with Intervenor Gladieux Food Services, Inc. and Canteen Corporation (Gladieux) whereby Respondent leased certain portions of buildings at eight service plazas on the Sunshine State Parkway (Florida Turnpike) for a period of ten years to operate and manage food and related facilities at the leased premises. Sunshine Parkway Restaurants, Inc. is a joint venture of Gladieux/Canteen. The lease provided that Gladieux would have the exclusive use of the areas designated as restaurants for the purposes of serving food, nonalcoholic beverages and "related merchandise." The agreement provided that Gladieux would have non- exclusive use, but maintenance responsibilities for parking areas, restrooms, and the lobby and vending areas. The agreement further provided that Respondent would have the exclusive right to approve the items to be sold, and required Gladieux to furnish all vending machines required for operating a vending center in designated vending areas. Gladieux was awarded the contract as a result of a competitive bidding process. (Testimony of Owen, Petitioner's Exhibit 9, Respondent's Exhibit 1, Joint Exhibit 1 (Stipulation)) In addition to the agreements with petitioner to operate citrus products shops, other contracts for such shops at the other service plazas are operated by licensees as a result of a competitive bid process. Similarly, all contracts for the sale of motor fuel at the various service plazas were awarded as the result of competitive bids. Respondent also has an existing license agreement with Florida Folder Distributing Company to operate an information leaflet rack at six of the seven service plazas where informational material promoting facilities and points of interest in the state are made available to the public. This agreement also was entered into after competitive bidding. The information racks are located in the lobby or corridor areas of the service plazas. (Testimony of Owen, Petitioner's Exhibits 5-8, Joint Exhibit 1(Stipulation)) Vending machines are operated by Gladieux at the various service plazas of the Turnpike. They include food and drink machines, machines that produce wax figures, and photograph machines. Most of the vending machines are located in the restaurant areas, but those at the Pompano and West Palm Beach plazas are placed in the "common areas" of the plazas. (Testimony of Chambliss, Owen, Petitioner's Exhibits 5-6, Respondent's Exhibits 2 g and h) In 1981, Section 340.091(1), Florida Statutes, was amended to permit the granting of concessions on the Turnpike for amusement machines which operate by the application of skill. Gladieux submitted a proposal to Respondent to install video game machines in appropriate areas under its lease. Respondent's General Counsel advised Mr. C. H. Owen, Deputy Director of Maintenance, in June, 1981, that Chapter 340, Florida Statutes, did not require competitive bidding for such a concession. Respondent's Turnpike engineer advised Owen, in November, 1981, that Gladieux's proposal to install and operate some 35 machines for a 12-month trial period at an acceptable rental fee should be accepted, and that the program should be evaluated at the expiration of the trial period. He further told Owen that if a satisfactory rental fee could not be negotiated at a satisfactory fee at the end of the one-year trial period, the operation should be offered for public bidding. Respondent and Gladieux thereafter on December 20, 1981, entered into an agreement whereby Respondent was granted the right to install and operate 35 amusement devices at individual locations to be designated by Respondent. The agreement was for one year and provided that Gladieux would pay Respondent 22.51 percent of the gross revenue from the operation of the devices, plus 4 percent tax. The agreement stated that the operation of the amusement devices was on an experimental basis and contained the statement that "Operator is currently lessee of the only space suitable for the installation of such devices and is prepared to cooperate with the department." Respondent's reason for negotiating with Gladieux was due to the fact that it "controlled" the vending machine and foyer areas under the lease, and that the video game machines were "vending" machines within the vending machine provisions of the lease. However, it was recognized that the lease provisions were originally intended only to apply to food and drink vending machines. Further, Respondent's General Counsel had opined prior to the 1981 amendment to Section 340.091(1) that a contract to install pinball machines or other electronic games on the Turnpike was specifically prohibited by that provision. Expert opinion testimony was received at the hearing that a video game machine is a "vending" machine because it is a coin-operated device that dispenses either goods or services. Although Respondent's officials were of the view that the provision of video machines was within the purview of the vending machine provisions of the lease, it entered into a separate agreement because it wanted a one-year trial period to determine the public's acceptance of the machines, and also to determine if they would be detrimental from the standpoint of congestion and noise level. Respondent preferred that the machines be located in the restaurant areas, where possible. This was a major reason for contracting with Gladieux because it controlled the restaurant areas under its lease. Another reason was that Gladieux operated the restaurants 24 hours each day and thus its personnel were always available to handle maintenance problems. (Testimony of Owen, Mizerski, Petitioner's Exhibits 11-12, Respondent's Exhibits 3-4, 8) Gladieux proceeded to place video machines pursuant to the agreement and with the approval of Respondent in the various service plazas along the Turnpike. Most were placed in the restaurant areas, but in several service plazas the machines were placed in the vending areas outside of the restaurants. (Testimony of Owen, Petitioner's Exhibits 5-6, Respondent's Exhibits 2 g and h, 9) Chambliss was aware in early 1981 that video games had been placed in several of the Turnpike service plazas, and later became aware that Respondent had a one-year experimental agreement with Gladieux. By letter of September 13, 1982, Chambliss requested that Respondent provide him the opportunity to contract for installing electronic game machines on the Turnpike. Respondent's Turnpike engineer informed him that a decision would be made in November, 1982, as to whether to eliminate or extend the current contract, but that he would be kept apprised as to the matter. Also, by letter of October 18, 1982, Gladieux requested that its agreement with Respondent be extended to the termination date of its existing restaurant lease in 1988, and pointed out that it had made a substantial investment of about $135,000 in providing the video machines and game rooms. Respondent thereafter determined that the experimental operation of video games had been successful, and advised Gladieux on November 19, 1982, that it would entertain a formal proposal to continue operation of the machines by an addendum agreement to its existing restaurant lease. (Testimony of Owen, Chambliss, Petitioner's Exhibits 1-2, 10, 13-15) Chambliss submitted a proposal to Respondent on November 29, 1982, to either compete with Gladieux for a contract to operate amusement devices at all service plazas, or to allow him to operate machines at the Pompano and Fort Pierce plazas where he held citrus shop licenses. On December 17, 1982, Respondent denied the request as being improper because of the provisions in the one-year agreement with Gladieux to extend the period for operation of machines if the one-year trial period proved successful, and also because the restaurant contract with Gladieux included all the areas in the service plazas except for citrus product shops and service stations. The letter informed Chambliss of his right to file a notice of protest within 72 hours. Chambliss proceeded to do so on December 22 and thereafter filed its petition for hearing. On December 29, 1982, Respondent and Gladieux entered into an extension to its one-year agreement to January 20, 1983, pending resolution of Chambliss' protest. However, negotiations with Gladieux are still in progress concerning the percentage of revenues to be paid by Gladieux under any subsequent amendment to its lease with regard to the video game operations. (Testimony of Owen, Chambliss, Petitioner's Exhibits 3-4, 16-20)
Recommendation It is recommended that Respondent deny the amended petition of Petitioners Florida Sunshine Parkway Citrus, Inc. and Joe A. Chambliss. DONE and ENTERED this 9th day of June, 1983, in Tallahassee, Florida. THOMAS C. OLDHAM 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 9th day of June, 1983. COPIES FURNISHED: Honorable Paul A. Pappas Secretary, Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Ronald C. LaFace, Esquire Jeffrey H. Abrams, Esquire 101 East College Avenue Post Office Drawer 1838 Tallahassee, Florida 32302 Mark Linsky, Esquire Legal Department Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Philip S. Blank, Esquire Suite 320 - Lewis State Bank Building Tallahassee, Florida 32301
Findings Of Fact Findings on general matters The Respondent was certified by the Criminal Justice Standards and Training Commission on June 15, 1982, and issued certificate number 02-31243. The Respondent was employed as a law enforcement officer by the Riviera Beach Police Department from March 29, 1982, to July 31, 1988. He was re-employed by that police department on March 11, 1991, and was so employed as of the date of the formal hearing. At the time of all of the events described in the findings of fact which follow, the Respondent was a certified law enforcement officer. Findings regarding the Mangonia Park incident During the evening hours of May 17, 1987, the Respondent, while off duty, unarmed, and dressed in civilian clothes, ventured into the town limits of the Town of Mangonia Park where he became involved in a fracas with a uniformed, armed, on-duty police officer of that town, Officer James C. Carr. The fracas had its inception shortly after the Respondent stopped his automobile in the outside lane of a city street that had three lanes in each direction in order to watch what Officer Carr and another Mangonia Park police officer (Officer Combs) were doing with a young black male civilian they had just stopped in the median strip of the same street. Officer Carr shouted to the Respondent that the latter should move his car. The Respondent took no action in response to that directive from Officer Carr. Annoyed by the lack of response, Officer Carr began to walk towards the Respondent's automobile as he repeated his directive to the Respondent using coarse, vulgar, confrontational words which included what are commonly referred to as "swear" words, as well as references to the Respondent's race, which is black. 2/ Officer Combs also walked towards the Respondent's automobile. The Respondent protested the manner in which Officer Carr was speaking to him and also offered the mistaken 3/ observation that his automobile was in the City of West Palm Beach, outside of Officer Carr's jurisdiction. Annoyed by the Respondent's comments and his continued failure to leave as directed, Officer Carr continued his invective. Annoyed by Officer Carr's abusive language, the Respondent addressed Officer Carr in a coarse and vulgar manner as he began to try to get out of his automobile. Officer Carr interrupted the Respondent's efforts to exit the automobile by pushing against the automobile door, thereby catching the Respondent's foot between the door and the side of the automobile. The Respondent continued to address Officer Carr in a coarse and vulgar manner and continued to struggle to get out of his automobile. Officer Carr continued to prevent his exit. Momentarily the Respondent was successful in exiting the automobile and he and Officer Carr stood face to face shouting at each other. Officer Carr made at least one verbal threat to do physical violence to the Respondent, threatened to throw the Respondent in jail, and also made threatening gestures with a baton towards the Respondent. The Respondent asked if he was under arrest and told Officer Carr not to touch him if he was not under arrest. In response to Officer Carr's further threatening gestures with the baton, the Respondent said to Officer Carr: "Don't hit me with that baton, okay? If you hit me with that baton and I'm not under arrest, I'm going to blow your brains out!" The Respondent did not take any aggressive physical action towards either Officer Carr or Officer Combs. At about this point, Officer Combs stepped in between Officer Carr and the Respondent in an attempt to keep things from getting worse. At about the same time, other off-duty police officers arrived on the scene and joined in Officer Combs' efforts. After Officer Carr and the Respondent had cooled down, it was agreed by all concerned that it was just an unfortunate misunderstanding and the participants apologized to each other. Findings regarding the Lt. Wiesen incident On November 20, 1987, the Respondent got into an argument with Lt. Steven Wiesen, one of his supervisors, regarding the latter's announced intention to recommend that the Respondent be given a suspension for abuse of sick time. The Respondent felt that he was being wrongly accused and continued to argue with Lt. Wiesen about the matter. The argument escalated to the point that Lt. Wiesen decided to go see a superior officer about the matter. As Lt. Wiesen and the Respondent were walking up the stairs to the Assistant Chief's office, the Respondent said to Lt. Wiesen words to the effect of: "This is the kind of shit that, like the post office, you know, makes somebody want to come to work and kill everybody." 4/ Lt. Wiesen's response to that comment was to ask if the Respondent was threatening him. The Respondent answered, "I don't make threats." At the time of these comments the Respondent was walking in front of Lt. Wiesen. The Respondent did not take any aggressive physical action towards Lt. Wiesen. The Respondent and Lt. Wiesen both told the Assistant Chief their respective versions of what they were arguing about and the Assistant Chief told them to both put it in writing. Findings regarding the Chief Walker incident During the evening hours of May 5, 1988, the Respondent, while off duty, unarmed, and dressed in civilian clothes, attended a meeting of the Civil Service Board at the Riviera Beach City Hall. The subject of the meeting was whether the decision of then Police Chief Frank Walker to demote the Respondent from Sergeant to Patrolman should be upheld or reversed. The Respondent's parents also attended the meeting. At the conclusion of the meeting the Civil Service Board voted to uphold the Respondent's demotion. The Respondent and his parents all felt that the Respondent had been treated unfairly by both the Civil Service Board and by Chief Walker. Shortly after the conclusion of the Civil Service Board meeting, the Respondent's mother approached Chief Walker and began telling him how she felt about the matter. She was very upset and was crying. The Respondent approached his mother and told her not to talk to the Chief any more and to come along home. He also said words to her to the effect of, "He's going to end up getting a bullet put in his head anyway." Chief Walker apparently heard part of what the Respondent had said to his mother and asked the Respondent what he had said. The Respondent replied: "I said, sir, it is my opinion that if you continue to treat people the way you do, somebody's going to put a bullet in your head." Immediately following that statement, the Chief walked away in one direction and the Respondent and his mother walked away in another. The Respondent did not take any aggressive physical action towards Chief Walker.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a Final Order in this case dismissing all charges in the Administrative Complaint. DONE AND ENTERED this 28th day of December, 1995, at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 1995.
