The Issue The issue for determination at final hearing was whether Petitioner should be certified as a minority business enterprise by the Office of Minority Business Advocacy and Assistance.
Findings Of Fact Richard Pitman has been a shareholder and employee of Rap Technical Corporation since its incorporation 13 years ago. He owns 51 percent of the stock of the company. The corporation is licensed to do electrical and instrumentation contracting work for industrial plants and facilities. Douglas Pitman, his brother, owns 45 percent of the common stock of Petitioner and holds a valid license as an electrical contractor. Richard Pitman and Douglas Pitman have been aware of their Indian heritage throughout their lives. Because of past prejudice against their culture they were instructed by their parents and grandparents to deny this heritage to avoid prejudicial treatment and undeserved shame. The evidence did not demonstrate to which Indian tribe the Pitman’s parents or grandparents referred. However, because of this advice Richard Pitman felt he had to hide his Native American heritage to retain a job that he had. Their children have witnessed the prejudice as evidenced by their questions concerning the manner in which other people have ridiculed and criticized their grandmother's superstitious ways and activities stemming from her Native American heritage. Again which Indian heritage was not shown by the evidence. In fact, many of the relatives of the Pitman brothers have traditionally denied their Indian heritage. Following the death of their grandmother, two of their aunts finally admitted their Indian descent. Over the years Richard Pitman and Douglas Pitman have become proud of their Indian heritage and are active in local Native American cultural activities, primarily related to the Lower Muscogee Creek. They have participated in local clan matters and have worked to promote Native American culture in schools and other community organizations. They have instructed their children in their Native American heritage and culture and have encouraged them to participate in tribal ceremonies and activities. The evidence was not clear about which Indian culture such instruction and participation has occurred. Recently, Petitioner has mailed letters to companies with whom their company has done business. The letters informed these other businesses that Rap Technical Corporation was a minority business and was proceeding with the certification process for MBE status. Since the time that these letters were mailed, Petitioner has not received any work from the companies that were sent one of these letters. However, the evidence did not show whether any work was available or the reasons why Petitioner was not hired by these companies for such work if it had been available. The Pitmans claim Cherokee descent from John West Sr., their great, great, great-grandfather. Their descent is as follows: Richard Pitman and Douglas Pitman are the sons of Marcus Dee Pitman and Dorothy Alline MaBire. The parents and Richard Pitman are listed as white on the birth certificate of Richard Pitman. Douglas Pitman's birth certificate was not submitted into evidence. Marcus Dee Pitman is the son of Ada West Pitman and Marcus Dee Pitman (Sr). Ada West was the daughter of George West and Ida Newsome. George West was the son of John West, Jr., and Anna Jane (West). John West, Jr., was the son of John West, Sr., and Jane Fulton. Prior to 1835 the Cherokee Indian lands covered an area east of the Mississippi and included parts of Tennessee, Alabama, Georgia, and North Carolina. The western part of the territory located in Georgia was bordered by several Georgia counties, of which Hall County, Georgia, is relevant to this case. The eastern part of the territory located in Alabama was bordered by several Alabama Counties of which Blount County is relevant to this case. Historical records reflect that Benjamin West was probably a white man who was born in Maryland. Records do not reflect Benjamin West’s race. However, the place of his birth is most strongly consistent with a person of Caucasian descent. He eventually resided in North Carolina. He served in the military while in North Carolina. He also was married in North Carolina to Nancy. Around 1823 both he and his wife moved to Hall County, Georgia. A bible record reflects that Benjamin and Nancy West had many children, two of whom were John West, born October 16, 1790, and Nancy West, born March 11, 1801. Benjamin West died in Hall County, Georgia, on November 25, 1842, at the age of 83. Benjamin West’s son, John West, would have been 35 years old in 1825, 45 years old in 1835, and 50 years old in 1840. Nancy West would have been 12 years old in 1813, 24 years old in 1825, 34 years old in 1835, and 39 years old in 1840. Historical documents also reflect that a John West, Sr., and Jane Fulton were married in Hall County, Georgia, on September 24, 1825. The marriage certificate does not reflect the race of either individual. The fact that these two individuals were married under the civil laws of the United States, at the time a foreign nation in relation to the Cherokee Nation, would tend to indicate that the Wests were white. However, many people of Cherokee descent would undergo both a Cherokee and United States marriage ceremony since they lived in both communities and wanted the marriage recognized in both communities. Several historical texts have been written about the early families of Hall County, Georgia. These texts were Some Georgia County Records, Reprint Land Lottery 1827, Vol. 6 p. 108 (publication date unknown); The History of Hall County, Georgia, 1818-1900, by James E. Dorsey, Vol. 1 Magnolia Press 1991; and The Families of Hall County, 1817-1849, by Robert S. Davis, Jr., Magnolia Press 1991. The parts of these texts introduced into evidence consisted of multiple lists of names found in various County records of Hall County. Of relevance to this case were references in these texts to a John West’s participation in the land lottery of 1827 and receipt of property from that lottery consisting of lot 24, District 5, Section 4. Other winners in the lottery were Benjamin West (referenced two times) and Nancy West (referenced one time). Testimony from genealogical experts at the hearing was in disagreement as to whether the qualifications for participating in the land lottery of 1827 would preclude a person of Cherokee descent who had served in the war from participating in the lottery; in short, whether only Caucasians could participate in the lottery. Suffice it to say that the references to which the experts drew their opinions were unclear on the issue. Therefore, no conclusion can be drawn on whether the John West who participated in the land lottery of 1827 was white or a Cherokee Indian who served in the war. Additional references in these texts show a John West purchasing property sometime between 1815 and 1824, a John West (presumably over 21) acting as the guardian of Nancy West, aged 12 around 1825, a John West and Celia West (presumably minors) being taught as poor school children in 1830, and an estate of John West on the 1849 Hall County tax digest being administered by William West. These texts do not show the race of the persons referenced in them. Clearly however, these references show multiple individuals named John West since, given the dates and ages of the individuals, it would be impossible for these people to be the same person. For example, the guardian John West does not appear to be the same person as the John West, son of Benjamin West. The son of Benjamin West had a sister named Nancy. However, that Nancy West would have been at least 24 years old in 1825. A significant age difference from the 12- year-old Nancy West referenced in the text. Additionally, the 1849-deceased John West may well have been the son of Benjamin West since that John West did have a younger brother named William West who could have served as the administrator of his estate. The 1835 Cherokee census was taken to determine the members of the Cherokee tribe who would be eligible to receive payment for improvements they had made to tribal land. The payments were made by the United States pursuant to the Cherokee removal treaty of 1835 that constituted the first waive of removal of members of the Cherokee tribe from the Indian Territory to Oklahoma. The Indian Territory was eventually divided into counties among the various states bordering the territory. The 1835 Cherokee census lists John West, as a male Native American and a farmer over the age of 18. In the listing referencing John West the census reflects, as part of the West household, a Cherokee female over the age of 16, who may have been his wife or a spinster living with John West, and two “quadroon” (1/4 Cherokee) children who were members of his family. The record also reflects that there were 2 descendants, referring to the two children. All were living in his home on a “Creek Path” in “Blount Cty.” The 1835 census does not reflect the names of the children, the female over 16 or the spinster, if she is separate from the female over 16. Additionally, the 1835 census does not reflect the meaning of the terms “Creek Path” or “Blount Cty” in the 1835 census of Cherokee Indians. The term “Creek Path” could refer to a footpath along an unknown creek or to the Cherokee trading road known as the Creek Path. Likewise, the term “Blount Cty” is unclear as to whether it stands for Blount City or Blount County. Between 1830 and 1835 historical documents regarding Cherokee emigration records show a John West and his family relinquished their rights to property owned by them in the Well’s Creek, Alabama, area to the government as a part of the first wave of removal of the Cherokee Tribes to the Oklahoma Territory. The property consisted of improvements of one good and two tolerable houses with useful appurtenances and good fences. The West family was paid only for improvements to the land they farmed and not for the land itself since the land belonged to the tribe and not to individual members of the tribe. The location of Well’s Creek is unknown. Importantly however, the John West who appears on the emigration records is located in Alabama. The Alabama location would place this John West on the other side of the Indian territory from the ancestors of Petitioner located in Hall County, Georgia. The Alabama location would be consistent with the “Blount Cty” reference in the 1835 Cherokee census if that reference was to Blount County, Alabama. Taken together, these records would show that the John West listed on the 1835 Cherokee census is not the ancestor of Petitioner. Allegedly, after relinquishing their property rights the West family moved to Oklahoma. However, it is just as likely the family did not move or moved and returned as many Cherokees did during this time period. There are no concurrent historical records of the Cherokees who actually made it to Oklahoma. There are two after-the-fact records of persons who were paid for their property by the United States and moved to Oklahoma. These records are referred to as the Old Settlers Roll prepared around 1895-1896 and the Drennan Roll prepared around 1851. The Old Settlers Roll consists of two documents titled the Old Settler Cherokee Census Roll, 1895 and the Index to Payment Roll of the Old Settler Cherokee, 1896. The Old Settlers Roll was developed by a commission consisting of 5 members from the Cherokee Old Settlers party and agents of the Union Agency, pursuant to the provisions of the Treaty of August 6, 1846 (9 Stat. 871). The 1846 treaty provided for the payment of “shares” from funds established by the treaty with the Cherokee Nation of 1835 to Cherokees who sold their property and moved to Oklahoma. This list of settlers comprises the Old Settlers Roll. An actual record of payment to these individuals does not exist. However, the index to the record of payment exists and is the index referred to above. The Drennan Roll is a list of Cherokee people who arrived in Oklahoma after the Cherokee removal in 1839. It was prepared around 1851 for essentially the same purpose as the Old Settlers Roll. The two sets of documents also inter-relate to a certain degree. Both sets of documents reflect a family of Wests, including a John West and John West, Jr., emigrating to Oklahoma. The John West listed on the Drennan Roll died without issue. What is unclear in these documents is when the family moved to Oklahoma, the ages of the individuals who made the move or whether some of these individuals returned. Most likely, these rolls reflect the John West family from Alabama who, the emigration records discussed above indicate, sold their property and abandoned it to the United States around 1835. The evidence does not demonstrate that this family of Wests are the ancestors of Petitioner. The 1840 census for Hall County, Georgia, list only one John West and his family. All individuals were listed as white rather than as Indians. However, prior to 1870, census takers listed all persons other than persons of African descent as white, including Native Americans. The family consisted of one white male between 40 and 50 years old (John West); one white male between 15 and 20 years old; two white males between 5 and 10 years old; one white female between 30 and 40 years old; one white female between 15 and 20 years old; two white females between 10 and 15 years old; and two white females between 5 and 10 years old. The age given for John West would have been consistent with the age of Benjamin West’s son, John West. None of the names of the family members are given in the 1840 census. Therefore, it is impossible to conclude that the male family member between the 15 and 20 years old is the John West described below in the 1850 census for Baker County, Georgia. The 1850 census roll for Baker County, Georgia reflects John West aged 28. The members of his family were Jane West, aged 24, James West, aged 5, Elijah West, aged 3 and John West, aged 6 months. Baker County is one county away from the Florida line and well south of Hall County, Georgia, which is in the northern part of Georgia. These Wests are the ancestors of Petitioner. The 1850 census records of Fayette County, Georgia, list an Ann Jane West, aged 44, from North Carolina. Fayette County is about two counties south of Hall County, Georgia. It is unclear whether this is the same Anna Jane who married John West, Sr. The record does not list either John West or John West, Sr., as living in Fayette County, Georgia, at the time of the 1850 census. The 1860 census for Mitchell County, Georgia (created from part of Baker County, Georgia), again lists John West and his growing family. The census reflects John West, aged 35; Anna J. West (a.k.a. Jane West), aged 33; James West, aged 14; Elijah West, aged 11; Homer West, aged 9; Susan West, aged 5; and Ida West, aged 8 months. Apparently John West the 6-month-old son in 1850 had died. Also listed separately in the 1860 census for Mitchell County was Anna J. West from North Carolina aged 60. The 1870 census for Mitchell County, Georgia, lists John and Jane West as well as their children who remain at home: Homer; Ida; John D[sic] aged 8; George W., aged 4; and William W., aged 18 months. Anna Jane West from North Carolina is also listed separately in the 1870 census. The 1880 census of Mitchell County, Georgia, reflects similar information, except the wife of John West is listed as Elizabeth, aged 40. Anna Jane West from North Carolina is not listed on the portions of the census submitted into evidence. From this point forward the line of descent for the owners of Petitioner is not in question. The problem is that the only tie of that descent to a claim of Cherokee ancestry is based on a listing of a John West on the Cherokee census of 1835. The evidence did not demonstrate short of speculation that the 1835 John West was the distant relative of Petitioner. There is simply a gap in the historical record connecting the 1835 John West to Petitioner’s lineage. In short, the evidence did not reflect enough pertinent information, such as age or number of children, about the 1835 John West and the John West, Sr., associated with Petitioner’s owners to permit the conclusion that they were the same individual. Therefore, after reviewing all of the historical documents submitted into evidence and the conflicting expert opinions on the conclusions that can be drawn from these documents, it must be concluded that Petitioner has not established by a preponderance of the evidence that he is of Cherokee descent and his application for certification as a MBE should be denied.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, RECOMMENDED: That the Petition be dismissed and certification as a Minority Business Enterprise be denied. DONE AND ENTERED this 19th day of November, 1997, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 19th day of November, 1997. COPIES FURNISHED: Joseph L. Shields, Esquire Commission on Minority Economic and Business Development 201 Collins Building 107 West Gaines Street Tallahassee, Florida 32399-2005 G. Thomas Smith, Esquire Smith and Sauer, P.A. 510 East Zaragoza Street Pensacola, Florida 32501 Edward A. Dion, Esquire Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Douglas L. Jamerson, Secretary Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152
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 At all times material hereto, the Respondent, Larry Lyles, was the holder of Florida Beverage License No. 26-2105, license series 2ABS. The licensed premises to which this license was issued is Larry and Gail's Pool Hall, 306 West Eighth Street, Jacksonville, Florida. On August 11, 1982, Mr. Keith Bernard Hamilton, a beverage officer for the Division of Alcoholic Beverages and Tobacco, went to the licensed premises pursuant to an assigned drug investigation. Officer Hamilton, after entering the licensed premises, purchased a beer from Gail Thomas a/k/a Patricia Ann Thomas. Gail Thomas was tending bar. After purchasing the beer, Officer Hamilton sat in a chair approximately 20 feet from the bar, and a few minutes later, approached a young man named Larry and asked about buying some smokes". "Smokes" is a term commonly used to refer to marijuana. Larry asked him how much he wanted and whether he had the money with him. Officer Hamilton stated he wanted two (2) bags and that he did have the money. Officer Hamilton then gave Larry $10 and Larry walked over to a young man named Hamp. Larry handed Hamp the $10 in currency and Hamp handed Larry two small manila envelopes. This exchange took place approximately five feet from the bar in the presence of Gail Thomas. Gail Thomas was one of the owners of the bar. The conversation between Officer Hamilton and Larry was in a normal tone of voice and could have been easily overheard by Gail Thomas and others in the bar. After receiving the two () manila envelopes from Hamp, Larry handed them to Officer Hamilton. Later, lab analysis revealed that these two envelopes contained cannabis, a controlled substance under Chapter 893, Florida Statutes. On August 20, 1982, Officer Hamilton returned to the licensed premises. After entering, he purchased a beer from Gail Thomas and began playing pool. When Gail Thomas began cleaning a table near the pool table, he asked her if anyone had "smokes". She said no but that someone next door might. She then indicated she was going next door to get change. She left, and upon returning, she informed Officer Hamilton that a man next door had some "smokes". She then asked if he wanted her to get some for him. He said yes and gave her $20 in currency. She left and came back with two manila envelopes and two $5.00 bills as change. Later, lab analysis revealed that the two manila envelopes contained cannabis, a controlled substance under Chapter 893, Florida Statutes. On August 21, 1982, Officer Hamilton again visited the licensed premises, and upon entering, purchased a grape soda from Gail Thomas. He saw the young man named Hamp shooting pool and walked over to him and asked him about purchasing some smokes. Hamp said he had some real good stuff and that if he didn't like it, he would buy it back. Officer Hamilton then purchased one manila envelope from Hemp. The exchange took place in the presence of Gail Thomas, who was nearby cleaning tables. After the exchange, Hemp suggested to Officer Hamilton that he try some of the material in the envelope there in the bar. Officer Hamilton declined and Hamp told him "It's okay, Gail doesn't care". Later, lab analysis revealed that the envelope purchased from Hemp contained cannabis, a controlled substance under Chapter 893, Florida Statutes. At the time of each of the purchases on August 11, 20, and 21, 1982, Gail Thomas was the only bartender or person actually working in the licensed premises. Officer Hamilton never observed another employee or person supervising or maintaining in any way the licensed premises.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Respondent's alcoholic beverage license be revoked. DONE and ENTERED this 30th day of June, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, 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 30th day of June, 1983. COPIES FURNISHED: James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Larry Lyles 306 West Eighth Street Jacksonville, Florida R. R. Caplano, Captain Division of Beverage Post Office Box 5787 Jacksonville, Florida 32202 Mr. Gary Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Howard M. Rasmussen Executive Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact Upon consideration of the parties' joint stipulation of facts, the following relevant facts are found: The Seminole Indian Tribe is a federally recognized tribe organized under the Indian Reorganization Act of June 18, 1934, (25 U.S.C. Section 475) with an adopted and approved constitution and bylaws. Pursuant to ordinance all cigarette sales are conducted by retail outlets licensed and taxed by the Seminole Tribe of Florida. These retail outlets lease property from the Seminole Tribe on lands which are part of the Seminole Indian Reservation. This is Federal Indian Reservation land held in trust for the Seminole Tribe and managed by the Bureau of Indian Affairs. The Florida Seminole Indian Tobacco Association is a nonprofit association of Seminole Indian merchants who operate cigarette shops on the Seminole Indian Reservation in the State of Florida. These merchants buy cigarettes from wholesalers and sell them at retail to the general public. The members of the association do not collect or pay any cigarette tax to or for the benefit of the State of Florida. In early 1977 certain enrolled members of the Seminole Tribe of Florida contacted the respondent, through the agency hear, Charles A. Nuzum, with respect to the Indian Smoke Shops' sale of untaxed cigarettes to members of the public. At that time the respondent agreed that such sales were legal and were not taxable. The relevant portions of Chapter 210, Florida Statutes, relating to cigarette taxes were then identical to Chapter 210 as it exists today, with the exception of Section 210.05(5), effective June 29, 1979. Prior to 1979, the cigarettes sold to the public by the Indians were shipped in by common carrier from the State of Alabama. The respondent knew that such cigarettes sold to the general public did not bear indicia of the payment of the Florida cigarette excise or privilege tax and knew that the tax was not collected or remitted by the retail dealers or by the Seminole Tribe of Florida. Nor was the tax collected or remitted by wholesalers outside of the State of Florida. The respondent was sued in the Circuit Court of Leon County, Florida, in the case of Vending Limited, Inc., d/b/a Ace Saxon, a Florida corporation, and Edward J. Stack, Plaintiffs, v. State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, and Charles A. Nuzum, Director, Defendants; Case No. 77-1933. The legal position of the Department in that case was that no cigarette tax was due. Senate Bill 981 was introduced in the Florida Legislature on April 20, 1979. It subsequently passed the House and Senate, was approved by the Governor on June 29, 1979, and became Chapter No. 79-317, Laws of Florida. Relevant portions of Chapter 79-317, Laws of Florida, are now codified as Section 210.05(5), Florida Statutes, 1979, which reads as follows: 210.05 Preparation and sale of stamps; discount.-- * * * (5) Agents or wholesale dealers may sell stamped but untaxed cigarettes to the Seminole Indian Tribe or to members thereof, for retail sale. Agents or wholesale dealers shall treat such cigarettes and the sale thereof in the same manner, with respect to reporting and stamping, as other sales under this chapter, but agents or wholesale dealers shall not collect from the purchaser the tax imposed by s. 210.02. The purchaser hereunder shall be responsible to the agent or wholesale dealer for the services and expenses incurred in affixing the stamps and accounting therefor. Prior to the enactment of this statute, Florida wholesalers were prohibited from offering for sale or use any cigarettes which did not bear a stamp indicating payment of the required state tax. During the time that Senate Bill 981 was pending in the Legislature and after it became law, the respondent interpreted its language to provide that licensed Florida wholesalers could sell stamped but untaxed cigarettes to Seminole Indian retailers. The Respondent knew that such cigarettes would be resold to the general public. Pursuant to its interpretation of Section 210.05(5), Florida Statutes, the Department initiated rulemaking proceedings and adopted Rules 7A-10.26(1) through (7), Florida Administrative Code. Those rules provide that licensed Florida wholesalers can sell stamped but untaxed cigarettes to Seminole Indian retailers. The Division knew at the time the rules were adopted and knows now that such cigarettes would be resold to the general public. Since the enactment of Section 210.05(5), Florida Statutes, and Rules 7A-10.26(1) through (7), Florida Administrative Code, Seminole Indian retailers, with the full knowledge and agreement of the Department, have purchased cigarettes from Florida wholesalers bearing a stamp and the replica of an Indian heard indicating that no tax had been paid on these cigarettes. The cigarettes were stamped and records were kept in order to prevent bootlegging of untaxed cigarettes. Department personnel trained Seminole Indian retailers in the proper record-keeping procedures to be sued by said retailers to ensure that the cigarettes actually received by the Indian retailers were commensurate with the amount of cigarettes listed on the wholesalers reports forwarded to the Department. The number of retail cigarette dealers on the Seminole Indian Reservation has increased from the one initial dealer in 1977 to 18 dealers now licensed by the Seminole Tribe of Florida. The number of cartons sold by said Indian dealers has increased from an average of approximately 120,000 cartons per month in 1977 to approximately 4000,000 cartons per month at the present time. Petitioner Barone Sales Company has been licensed by the respondent as a wholesale dealer of cigarettes in the State of Florida and, since the enactment of Section 210.05, Florida Statutes, has sold stamped but untaxed cigarettes to the Seminole Indian Tribes located in Florida for resale. During this period of time, Barone Sales Company has not remitted any cigarette taxes to the respondent as a result of the sale of cigarettes to the Indians, even though many of the cigarettes were being sold to members of the general public by the Indians. Furthermore, the respondent has not requested Barone Sales Company to remit an cigarette taxes on these sales. Said sales were made with the full knowledge of the respondent. During this same period of time, the Seminole Indian Tribes have sold these cigarettes at retail to Indians and to the general public without collecting any taxes on such sales. The respondent has not requested or demanded that they do so. Said sales were made with the full and complete knowledge of the respondent. Since Section 210.05(5), Florida Statutes, became law and since the adoption of current Rule 7A-10.26(1) through (7), Florida Administrative Code, there has been no change in the Florida statutory law relevant to this matter; there has been no change in Florida case law relevant to this matter; and there have been no factual changes relevant to this matter. On June 10, 1980, the Supreme Court of the United States rendered its decision in the case of Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. , 65 L. Ed. 2d 10, 100 S. Ct. 2069, 48 U.S.L.W. 4668. This decision by the United States Supreme Court is the sole motivating factor for the Respondent's decision to amend Rule 7A-10.26, Florida Administrative Code, as now proposed.
The Issue Whether Respondent has committed a discriminatory act with respect to public accommodations in violation of Chapter 760, Florida Statutes, and if so, what remedy should be provided.
Findings Of Fact Petitioner is an African-American woman living in the Gainesville area. She is married and has children. On November 15, 2006, Petitioner went to the Days Inn at 7516 Newberry Road to make a reservation for her mother and sister. She was dressed casually and had her children with her. When she arrived at the Days Inn, she spoke with John Osley, who was later identified as the manager of the hotel, and asked if all the rooms were entered from the outside. He told her that the Newberry Road hotel had outside rooms only but that the Days Inn on Archer Road had internal corridors. Mr. Osley asked what dates she wanted to reserve. She told him November 23-24, which was Thanksgiving Day and the day after. Mr. Osley told her there were no rooms available those days because the hotel was the host hotel for a race-car event. She asked about cancellations and he told her to call back closer to the dates she needed the room to see if there were any. He gave her a business card for a person at the front desk. Upon her request, he allowed her to look at one of the rooms. Petitioner thanked Mr. Osley and left. After she left the hotel, she felt that she had not been treated appropriately. That evening, she checked on the Days Inn internet website to see if any rooms at the Newberry Road location were available online for November 23-24. She was able to make a reservation for the desired days via the internet. Ultimately, her mother opted to stay at another hotel. As a result, the reservation at the Days Inn was canceled. Petitioner was angry because she felt she had been mistreated at the hotel, and wrote to Joseph Kante, whom she identified as being in a management position for Days Inn. She also e-mailed him and within 24-hours, she received an apology from him. However, according to Petitioner, Mr. Kante indicated that each Days Inn is responsible for itself and the person she needed to speak to regarding the Days Inn on Newberry Street was John Osley. Petitioner returned to the Days Inn on Newberry Road in an effort to speak with Mr. Osley, and also called the hotel. Each time, Mr. Osley was not present and she never spoke with him about her concerns. After her attempts to reach him were unsuccessful, she filed her complaint with the Commission. No evidence was presented regarding any other person of any race seeking a room at the same time as Ms. Henderson who was able to reserve a room when she could not. No evidence was presented indicating that Mr. Osley was not being truthful when he stated that no rooms were available when Ms. Henderson originally sought to reserve a room.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered that dismisses Petitioner's claim. DONE AND ENTERED this 27th day of September, 2007, in Tallahassee, Leon County, Florida. S Hearings Hearings LISA SHEARER NELSON Administrative Law Judge Division of Administrative 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 this 27th day of September, 2007. COPIES FURNISHED: Burnita Henderson 5010 Southwest 63rd Boulevard Gainesville, Florida 32608 John Osley Days Inn I-75 7516 Newberry Road Gainesville, Florida 32606 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Should Petitioner be certified as a minority business enterprise (MBE) by the Minority Business Advocacy and Assistance Office of the Department of Labor and Employment Security?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Petitioner is a sole proprietor seeking certification as an MBE under the minority status of Native American (Indian). Also in his application seeking MBE certification, Petitioner claimed the category of Hispanic American but did not attempt to prove this category at the hearing. Petitioner is seeking certification as an MBE qualified to perform building maintenance, grounds maintenance, painting, cleaning, landscaping, and clearing and grubbing. Petitioner’s great-grandmother was a full-blooded Cherokee Indian (Native American) who lived her life as an Indian. However, Petitioner presented no evidence that his great-grandmother was a member of any federally recognized Indian Tribe, as that term is defined by Rule 38A-20.001(17), Florida Administrative Code. Petitioner was at one time a member of the American Cherokee Confederacy of Georgia. However, Petitioner resigned from the American Cherokee Confederacy of Georgia and no longer claims any ties to that group. The American Cherokee Confederacy of Georgia is not a federally recognized Indian Tribe as that term is defined by Rule 38A-20.001(17), Florida Administrative Code. Petitioner is not a member of any federally recognized Indian Tribe as that term is defined by Rule 38A-20.001(17), Florida Administrative Code. Respondent stipulated at the hearing that its denial was based solely on the fact that Petitioner had failed to present sufficient evidence to prove that he was a minority person as that term is defined in Section 288.703(3)(d), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner's application for Minority Business Enterprise status be denied. DONE AND ENTERED this 20th of June, 2000, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 2000. COPIES FURNISHED: Calvin W. "Bill" Wood 10577 Schaefer Lane Lake Wales, Florida 33853 Joseph L. Shields, Esquire Department of Labor and Employment Security The Hartman Building, Suite 307 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2189 Mary Hooks, Secretary Department of Labor and Employment Security The Hartman Building, Suite 303 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Sherri Wilkes-Cape, General Counsel Department of Labor and Employment Security The Hartman Building, Suite 307 2012 Capital Circle, Southeast Tallahassee, Florida
The Issue Whether Delphin J. Acosta, petitioner's preident, is a minority person within the meaning of Section - 288.703(3)(b), Florida Statutes.
Findings Of Fact The petitioner is a Florida corporation and small business within the definition of Subsection 288.703(1), Florida Statutes. Delphin Acosta is the president of the petitioner. He owns at least 51 percent of the company and controls the management and daily operation of the company. If Delphin Acosta is a "minority person," the petitioner meets all the criteria for certification as a minority business enterprise. Mr. Acosta's maternal grandparents were born in Italy and his mother was born in the United States. Mr. Acosta's paternal grandmother was born in the United States and his father was born in the United States. Mr. Acosta's claim to be an Hispanic American, as defined by Section 288.703(3)(b), Florida Statutes, is based on his paternal grandfather, Delpfin Acosta. Mr. Acosta does not know where his paternal grandfather's parents (his great-grandparents) were born. Mr. Acosta's grandfather was born in the Canary Islands in 1889. The Canary Islands are a group of islands in the Atlantic Ocean off the northwestern coast of Africa, comprising two provinces of Spain. The Canary Islands are not part of Mexico, South America, Central America, or the Caribbean. When Mr. Acosta's grandfather was a little oy, his parents either took him or sent him to Cuba. Apparently, Mr. Acosta's great-grandparents traveled back and forth between Cuba and the Canary Islands, and Mr. Acosta's grandfather had siblings that were born in Cuba. Mr. Acosta's grandfather grew up in Cuba and attended school there; however, when Mr. Acosta's grandfather was about 14 years old he left Cuba and went to Key West. In 1910 he moved to Tampa, where Mr. Acosta's father was born. Mr. Acosta's grandfather died in Tampa in 1957. At the time of his death, one of Mr. Acosta's grandfather's sisters still lived in Cuba. Mr. Acosta was born in Tampa in a hospital in Ybor City. Mr. Acosta grew up as part of the pre-Castro Cuban culture in Tampa. When he was six years old, he and his parents went to Cuba to visit relatives who still lived there. Mr. Acosta went to schools in Tampa where the majority of students were of Cuban- American origin. He graduated from Jefferson High School, an inner city school identified with the Latin population in Tampa. Although his grandfather happened to be born in the Canary Islands, rather than Cuba, Mr. Acosta noted that "[t]here isn't a separation between a Spanish Hispanic and a Cuban Hispanic for the people that discriminate. The Department of General Services (DGS) does not dispute that Mr. Acosta is a person of Spanish culture. However, the statutory definition of an Hispanic American is "a person of Spanish or Portuguese culture with origins in Mexico, South America, Central America, or the Caribbean, regardless of race." Section 288.703(3)(b), Florida Statutes. The Department of General Services has never interpreted this provision or defined the meaning of "origins" by rule. However, the policy of the DGS has been that a person claiming to be an Hispanic American must establish that he has "origins" in one of the designated geographic areas and that a person can have "origins" in the geographic area only if he can establish that an ancestor was born there. Notwithstanding this policy definition of "origin," the DGS has not required persons claiming to be black Americans to establish that an ancestor was born in Africa, even though the statutory definition of black American is "a person having origins in any of the black racial groups of Africa." As to black Americans, the DGS has accepted documentation which simply identifies the applicant as black.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that Delphin J. Acosta is not an Hispanic American as defined by Section 288.703(3)(b), Florida Statutes, and denying petitioner's request for certification as a minority business enterprise. DONE AND ENTERED this 30th day of June, 1988, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS 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 30th day of June, 1988. APPENDIX Rulings on proposed findings of fact: Petitioner's: First and third sentences accepted; however, the second sentence states that Mr. Acosta's grandfather immigrated to Cuha in 1903, which would have mean that the grandfather was 14 when he went to Cuba. The evidence at the hearing was that he went from Cuba to Key West when he was about 14. Accepted generally. Accepted generally and to the degree relevant. Rejected as stated as not supported by the evidence. Rejected as stated as not support by the evidence presented. Rejected. G-H. Accepted generally as to DGS policy. Respondent's: Accepted generally. 2-4. Accepted. Accepted generally. Accepted. Accepted generally. Omitted. Rejected as stated, although accepted that Mr Acosta failed to present sufficient evidence of having origins in the Caribbean. COPIES FURNISHED: Delphin J. Acosta, President The Urban Studio Post Office Box 1588 Tampa, Florida 33607 Sandra E. Allen, Esquire Office of the General Counsel Department of General Services 452 Larson Building Tallahassee, Florida 32399-0955 Ronald W. Thomas Executive Director Department of General Services Room 133, Larson Building Tallahassee, Florida 32399-0955 Susan Kirkland, Esquire General Counsel Department of General Services 457 Larson Building Tallahassee, Florida 32399-0955
Findings Of Fact On or about September 21, 1981, Respondent, Ft. Myers Banana Boat, Inc., d/b/a Banana Boat, applied to enter the drawing for eight new quota liquor licenses for Lee County to be held on December 16, 1982. The application disclosed that Dykes J. Riggs and James G. Kincaid each owned fifty percent of the stock of the Respondent and served as president and secretary, respectively. On or about January 5, 1983, Respondent was notified that it had been selected in the drawing as one of the preliminary applicants. In late February or early March 1983, Respondent filed its application for licensure. The application again disclosed Dykes Riggs as president and James Kincaid as secretary. It added that Kincaid also served as treasurer. It omitted any reference to stock ownership. On or about July 22, 1983, Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division), issued Respondent license number 46-1146, Series 4-COP, for the address 9100 South Cleveland Avenue, Ft. Myers. Because the location was unsuitable, Respondent, by letter dated August 5, 1983, requested the Division to place its license in escrow, and the escrow was "finalized" on or about January 31, 1984. The license remained in escrow until on or about November 30, 1984. While the license was in escrow, Riggs began to have serious doubts about the trustworthiness of Kincaid. In addition to their interests in Respondent, Riggs and Kincaid also had interests in two other licensed businesses--Boca Banana Boat, Inc., and The Banana Boat of Pompano, Inc. (A third individual, Don Litzenberger, also had an interest in the Boca Banana Boat, Inc.) Kincaid was suffering from acute alcoholism and was in heavy debt. Riggs was concerned that Kincaid would transfer his interest in Respondent or one of their other licensed businesses in order to satisfy a portion of his debts. Riggs was concerned about having a substitute business associate with whom he would have to work. Although not his primary concern, Riggs also was concerned that, by transferring his interest in Respondent, Kincaid would be violating Section 561.32(4), Florida Statutes (1983), and that Respondent would lose its license. Riggs also was concerned because Kincaid had told him of the pendency of administrative proceedings against Kincaid in connection with two other licenses in which Kincaid had an interest. Subsequently, Riggs learned that Kincaid had given a creditor named Wagner a power of attorney over all Kincaid's interests. Riggs did not like Wagner and suspected that Wagner was of bad moral character and may not be qualified for licensure by the Division. If disqualified for licensure, Wagner's interests in Respondent and the other licensed businesses in which Riggs and Kincaid had interests would jeopardize the licenses. In addition, a transfer of interest in Respondent from Kincaid to Wagner would violate Section 561.32(4), Florida Statutes (1983). During this period, Riggs also suspected that Kincaid was stealing money from the operation of The Banana Boat of Pompano, Inc. To deal with all of these business problems with Kincaid, Riggs had Kincaid's name taken off all bank accounts of the three licensed businesses in which they shared interests and refused to allow Kincaid any further say in the operation or the businesses or to review the books and records of any of the corporations through which the businesses were operated. Kincaid sued Riggs, Respondent and Boca Banana Boat, Inc., for damages. Riggs consulted with his attorney, Ernest Alexas, and decided to enter into a Settlement Agreement with Kincaid on or about June 29, 1984. Under the Settlement Agreement, Riggs would pay Kincaid $10,000, and Kincaid would "execute all necessary stock transfers, releases and other documents necessary" to "assign [to Riggs] all of his right, title and interest" in the three corporations through which Riggs and Kincaid operated licensed businesses, including Respondent. The documents were to be held in escrow by Alexas pending payment of $106,000 to Kincaid. The agreement then provided that the documents in escrow would be "delivered" to Riggs or the three corporations. The agreement also provided that Kincaid would dismiss his damage suits against Riggs, Respondent and Boca Banana Boat, Inc., and that Kincaid would resign "from all offices and positions as director held by him" in the three corporations, including Respondent. By September 18, 1984, the parties had performed all of the obligations under the June 29, 1984, Settlement Agreement. Kincaid had dismissed the damage suits. Boca Banana Boat, Inc., had pledged assets to secure a loan of $106,000, which was paid to Kincaid and Wagner. However, acting upon the advice of his attorney, Alexas, Riggs decided to instruct Alexas to continue to hold the documents in escrow for the time being. No decision was made whether Kincaid's stock should be placed in Riggs' name individually, placed in Respondent's name as treasury stock, placed partially in the name of Boca Banana Boat, Inc., or retired. In any case, Alexas advised Riggs that no violation of Section 561.32(4), Florida Statutes (1983), would occur unless the stock were transferred within the statutory three-year time period which was due to expire in approximately August 1986, to someone other than Riggs or to a corporation or partnership in which someone other than Riggs held an interest. Riggs himself was unclear exactly what Kincaid's relationship to Respondent was after September 18, 1984. Riggs' purpose in settling with Kincaid was to eliminate any and all control Kincaid might have over Respondent and the other corporations involved in the settlement. At the same time, Riggs thought Kincaid still should be obligated personally for his share of the debts of the corporations. Riggs hoped that, by leaving the documents in escrow and by not changing officers and directors on the corporate books, this would be accomplished. In November 1984, Riggs began the process of applying to have Respondent's license taken out of escrow and issued to a location at 865 San Carlos Boulevard, Ft. Myers Beach. On the application which Riggs signed, Riggs was listed as fifty percent stock owner and president. James G. Kincaid still was listed as fifty percent stock owner and secretary/treasurer. The Division took the license out of escrow, placed it at the new address and changed it to a Series 3-PS license. However, the Division did not prove that Riggs intended to mislead personnel of the Division in the performance of their official duty by referencing Kincaid on the application. First, the evidence was that Riggs was following the advice of his lawyer, Alexas, which he trusted and believed, that the elimination of Kincaid did not violate Section 561.32(4), and Riggs did not think there was any reason to mislead the Division by not disclosing the Settlement Agreement. Second, the evidence was that Division personnel helped Riggs' wife complete the application using information on prior applications, including Kincaid's interest. Finally, the evidence was that Riggs himself did not really know or understand Kincaid's precise legal status in relation to Respondent as of November 30, 1984.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a Final Order dismissing the Notice to Show Cause against Respondent, Ft. Myers Banana Boat, Inc., d/b/a Banana Boat, in this case. RECOMMENDED this 20th day of January 1987 in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 20th day of January 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2307 To comply with Section 120.59(2), Florida Statutes (1985), rulings are made on the parties proposed findings of fact. Petitioner's Proposed Findings Of Fact. 1-10. Accepted and incorporated to the extent not subordinate or unnecessary. But as to the second paragraph of proposed finding 4, only the date the application was filled out was in error in all likelihood; the substance and rest of Mrs. Riggs' testimony is accepted as true. Respondent's Proposed Findings Of Fact. 1-7. Accepted and incorporated to the extent not subordinate or unnecessary, except that the first two-and-one-half lines of proposed finding 4, including the date "October of 1984," are rejected as contrary to the greater weight of the evidence and facts found. Subordinate. Rejected as contrary to the greater weight of the evidence and facts found. Accepted and incorporated to the extent not subordinate or unnecessary except the date probably was November 29, 1984. First two sentences rejected as contrary to the greater weight of the evidence and facts found. Sarnonski filled out part of the application and advised Mrs. Riggs how to fill out the rest, including the references to Kincaid, by reference to information in the prior application. Third sentence accepted but subordinate and unnecessary. 12.-14. Subordinate and unnecessary. 15. Accepted and incorporated. COPIES FURNISHED: Louisa E. Hargrett, Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927 Leslie T. Ahrenholz, Esquire Post Office Box 2656 Ft. Myers Beach, Florida 33931 James Kearney, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927 Thomas A. Bell, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301-1927 =================================================================
The Issue Whether the Respondent is guilty on six counts of charging an advance fee for the listing of time-share estates for sale, in violation of Section 721.20(4), Florida Statutes.
Findings Of Fact Respondent is a corporation organized under the laws of Arkansas and was authorized by the Florida Secretary of State to transact business in the State of Florida from November 1991 through December 1997. Respondent's main office is now located in Mountain Home, Arkansas. Respondent's credit card terminals are in Arkansas. Respondent has an escrow and operating account in Mountain Home, Arkansas. Respondent hired Jack McClure to open and operate its Florida office. Jack McClure held a Florida real estate broker's license. National Resort Mart conducted business from its Florida office in Kissimmee, Florida, until McClure's death in December 1997. Respondent opened and maintained escrow and operating accounts in Florida from 1992 through 1997 for its Florida business. The Florida office was limited to the activities of time-share real estate sales. The Respondent did not list time- shares, nor collect any advance fees for listing time-shares at its Kissimmee, Florida, branch office. Global Title Company of Naples, Florida, conducts the closings for Respondent for the majority of their Florida time- share sales. Respondent advertised its Florida office in its direct mail brochure, sent to Florida time-share owners, with the statement: "Our Orlando office is situated only seven miles from Disney World." Ms. Valnecia Williams of Madison, Florida, owns a time- share unit at Cypress Point Resorts in Central Florida. Williams received a mailed "brochure" from Respondent's home office which advised her that Respondent was in the business of buying and selling time-shares. Based on the Respondent's direct mail flyer, Williams called the Kissimmee, Florida, telephone number to find out information related to her listing. Apparently, the call was automatically switched to the home office. She received some initial information. Several weeks later she called the Respondent's Arkansas office and talked to a different salesperson. Williams agreed to list her time-share, Cypress Pointe Resort, Unit 5206, Week 37, with Respondent on March 5, 1997, at an asking price of $12,9000 in an open listing for a period of a year. Consideration was in the form of a seven percent of gross sale of the unit, or a $750 minimum commission, to be paid to Respondent at the closing of the sale. Respondent charged an advance fee of $439 from Ms. Williams of Madison, Florida, at the time she listed her Florida time-share period at Cypress Point Resort for sale with Respondent. Williams authorized Scott Fisher, Respondent's salesperson in Arkansas to charge the refundable advertising and marketing fee of $439 to Williams' USAA Federal Savings Bank charge card. Williams was not pleased with the service provided by Respondent and, on or about July 28, 1997, demanded a refund from the Respondent. Sometime within the next two months Respondent complied with the request and refunded the fee by crediting Williams' charge card with the same amount. Kim Collins of Faith, North Carolina, owns a time-share unit at Westgate Lakes, Orlando, Florida. Collins received brochures from Respondent's home office seeking a listing for her time-share unit in Florida, approximately one year later. Collins called Respondent at an "800" number which was automatically forwarded to Respondent's main office in Arkansas. Eventually, Collins decided to use Respondent's services and borrowed the money from her mother to pay the advance fee and sign the listing contract. Respondent collected an advance fee from Mr. and Mrs. Richard Collins of Faith, North Carolina, of $439 at the time they listed their Florida time-share period at Westgate Lakes, Orlando, for sale with Respondent, by mail and check to the Respondent's main office in Arkansas. Collins' time-share has been listed for sale with Respondent since July 1, 1996. Dan Coffey of Jacksonville, Florida, owns a time-share unit at Orange Lake in Central Florida. Coffey received a brochure from Respondent's home office and called for more information. Coffey agreed to list his unit for sale with Respondent on October 14, 1996, at a negotiable price of $12,900. Respondent collected an advance fee from Mr. and Mrs. Daniel Coffey of Jacksonville, Florida, of $439 at the time they listed their Florida time-share period of Orange Lake Resort, Orlando, Florida, for sale with Respondent. In like manner, Respondent collected an advance fee from Mr. and Mrs. Rick Rogers of Maumee, Ohio, at the time they listed their Florida time-share period with Respondent. Respondent also collected an advance fee from Mr. and Mrs. Donald Gordon of Pensacola, Florida, at the time they listed their Florida time-share period with Respondent. Respondent collected an advance fee from Mr. and Mrs. William Budai of Duquesne, Pennsylvania, of $539 at the time they listed their Florida time-share period at Westgate Villas, Kissimmee, Florida, for sale with Respondent. The contract signed by each complainant was titled "Listing Agreement." The Listing Agreement between the time- share owner of the Florida unit and Respondent was for the listing of their time-share for sale for a percent of gross sale of the unit to be paid at the closing, with an advance fee payable immediately. All transactions between the owners and Respondent were made through the Respondent's home office in Arkansas. No advance fee was collected within the boundaries of the State of Florida. Complainants Collins and Coffey did not receive refunds of the advance fees they paid to Respondent.
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 Florida Land Sales, Condominiums and Mobile Homes, enter a final order that: Finds Respondent guilty of six violations of Section 721.20(4), Florida Statutes. Respondent pay a penalty of $10,000 per violation for each of the six violations, to be paid within thirty (30) days of the entry of the final order. That Respondent refund $439 each to Kim Collins and Daniel Coffey, to be paid within thirty (30) days of the entry of the final order. That Respondent cease and desist from collecting advance fees for the listing of time-share periods for Florida residents and/or Florida time-share units. DONE AND ENTERED this 20th day of May, 1999, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 20th day of May, 1999. COPIES FURNISHED: Mary Denise O'Brien, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 James H. Gillis, Esquire James H. Gillis Associates, P.A. 8424 Pamlico Street Tallahassee, Florida 32817-1514 William Woodyard, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Philip Nowick, Director Division of Florida Land Sales, Condos, and Mobile Homes Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
