The Issue The issue is whether Mr. Harrison's response to question 8 on the General Contractor's Examination given on October 3, 1985 was incorrectly graded. If Mr. Harrison were given credit for his answer to that question, he would pass the examination. The examination was correctly graded, however, and the petition filed by Mr. Harrison should be dismissed.
Findings Of Fact Mr. William D. Harrison took the Florida Construction Industry Licensing Board's General Contractor's Examination on October 3, 1985. According to his grade report his grade was 68.65. A total grade of 69.01 is necessary to pass the examination. Rule 21E-16.05, Florida Administrative Code. If he were given credit for the answer he gave to question number 8 on the portion of the examination given the afternoon of October 3, 1985, he would pass the examination. The question at issue sought an estimate of the amount of concrete necessary to construct entrance steps for a hypothetical building. The Department of Professional Regulation, Office of Examination Services had prepared drawings for a building consisting of 14 different sheets showing various elevations, aspects or other details of the building. These drawings were used in answering the examination questions. Question 8 read: The total volume of concrete to place the concrete entrance steps (only) is cubic yards. Select the closest answer. (A) 4.7 (B) 5.9 (C) 6.5 (D) 7.0 Mr. Harrison chose answer (A). The correct answer is answer (D). Sheet 4 of 14 of the drawings shows the first floor plan for the building. There are a total of four 11'6" spans of concrete entrance steps to the covered entry on the north and south sides of the building. The detail of the steps on sheet 4 of 14 shows that they generally have a 6" rise and are 1' in depth. According to the same sheet of the drawings, there are also other concrete steps to be constructed on the east and west sides of the building of 11' spans. In the northwest and southeast corners of the building there are enclosed stairwells serving the four floors of the building. The steps in these stairwells also contain concrete as an element in their construction. Mr. Harrison contends that the question is phrased in a misleading manner. In his view only the north and south entrance steps should be included in the calculation of the amount of concrete needed for "entrance steps (only) ." According to his calculations, placing those entrance steps would require 4.889 cubic yards of concrete. The closest answer available is 4.7, answer (A), which he gave. By reference to a dictionary of construction terms, Mr. Harrison argues that a building's area excludes uncovered entrances, terraces and steps. He believes he correctly excluded the covered steps on the east and west sides of the building from the calculation of "entrance steps," treating them as part of the building area, not entrances. The Departments contends that the question is specifically constructed to test the level of detail with which examinees read the drawings. On sheet 4 of 14 the symbol "A/4" appears, with a line cutting perpendicularly through the western steps. That symbol points out to examinees that a detailed drawing for the construction of the concrete entrance steps appears on that sheet. That perpendicular line through the western steps demonstrates that the eastern and western steps are "entrance steps" in the plans, and must be included in the calculation required in question 8. Answer (A), chosen by Mr. Harrison, is a distractor specifically designed to determine whether examinees have included the east and west steps in their calculation. If excluded, the calculation yields an answer of exactly 4.7 cubic yards of concrete (Mr. Harrison's calculation of 4.889 is slightly off). If all four spans of entrance steps are included, the correct answer of 7.0 cubic yards is obtained. The phrase "entrance steps (only)" appears in question 8 to make clear to examinees that the concrete allocable to the steps of the enclosed northwest and southeast stairwells is not part of the calculation. After an examination is graded, but before the grade reports are distributed, the Department does a statistical analysis of the patterns of responses to all examination questions to determine whether those patterns reveal a problem such as a general misreading of any questions. If a question performs badly, it can be deleted from the grading process before the grade reports are distributed to examinees. The analysis done on the answers to question 8 shows that of the 887 examinees, 180 of those who ultimately scored in the upper 27 percent of the examination overall answered the question correctly with answer (D); of those scoring in the middle 46 percent on the overall examination, 148 gave the correct answer; of those examinees scoring in the lower 27 percent overall, only 69 gave the correct answer. Among those choosing answer (A), as Mr. Harrison did, 36 of those who scored in the upper 27 percent overall gave that answer, 116 of those in the middle 46 percent chose the answer, and 102 of those scoring in the lower 27 percent chose that answer. Statistically, the question performed well. The evidence shows that answer (A) acts as the distractor which it was designed to be. Those who do not read the drawings carefully select the answer which would be correct if only the north and south steps are included in the calculation. Given the specificity of the drawing showing the east and west steps as entrance steps, however, Mr. Harrison's objection to the grading of his answer to question 8 is not well founded. Mr. Harrison had also raised, in his letter challenging his grade, an objection to another test question. At the hearing, however, he abandoned that challenge.
Recommendation It is recommended that the petition for regrading of the General Contractor's Examination given in October 1985 by the Construction Industry Licensing Board be DENIED. DONE AND ORDERED this 28th day of April 1986 in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY, JR. 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 28th day of April, 1986. COPIES FURNISHED: Mr. Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 H. Reynolds Sampson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. William D. Harrison 3490 Artesian Drive Lantana, Florida 33462
Findings Of Fact Petitioner, Jack D. Osborn (Osborn), a resident of Longwood, Seminole County, Florida, applied to Respondent, Office of the Comptroller, Department of Banking and Finance (Agency), for licensure as a mortgage broker. On the face of the application, and by an attached narrative explanation, he properly revealed that three Department of Professional Regulation (DPR, now Department of Business and Professional Regulation) complaints were pending against his contractor's licenses. The administrative complaint in DPR Case #89-6241 alleges that Osborn received $4,620.00 for construction of an in-ground spa, but abandoned the job. The complaint in Case #90-2647 alleges that Osborn failed to pay suppliers and subcontractors in a pool construction job, resulting in a lien being filed, and he abandoned the job. The complaint in Case #89-12623 alleges that Osborn failed to pay subcontractor DeSilva on several pool construction jobs, failed to complete several jobs, and failed a couple of local building department inspections in the jobs. The three administrative complaints were filed by the DPR in August and September 1990 and all three relate to jobs undertaken by Osborn in 1989. The three complaints allege violations of section 489.129(1)(k), F.S. (abandoning a construction project); section 489.129(1)(j), F.S. (failure to supervise); section 489.129(1)(m), F.S. (fraud, deceit, gross negligence, incompetency or misconduct); section 489.129(1)(h), F.S. (mismanagement or misconduct), and section 489.129(1)(d), F.S. (code violations in work completed). None of the complaints has gone to hearing, or been referred to the Division of Administrative Hearings. All three were still pending as of the date of the hearing in this case. In March 1991, an attorney with DPR sent Osborn's attorney a letter offering a stipulation, subject to approval by the Construction Industry Licensing Board, that the department would dismiss all charges except failure to supervise, in return for a $1,000 fine and probation, should the license be reactivated later. Osborn credibly explains that his business, Bright Water Pools, Inc., was placed in serious financial jeopardy by the embezzlement, over time, of approximately $100,000 by a former bookkeeper employee, Joann Camp. A 106-count Information, dated October 5, 1992, in Eighteen Judicial Circuit case #G88-2709 CFA, State of Florida v. Joann Camp, alleges forgeries and petit and grand theft with the intent to injure or defraud Jack Osborn and various named banks. (See Petitioner's Exhibit #1) The resolution of the criminal case is unknown. The impact on the company was devastating. It was forced to pay bills slowly, causing higher prices for labor and materials; rumors of the firm's financial viability affected sales. In an effort to save the company, Osborn refinanced his home and took out a corporate bank loan for which he is personally liable. The business failed, and the difficulties reflected in the allegations of the DPR complaints are a result of the failure. The sole basis of the agency's intended denial of Osborn's mortgage broker's license application is the pendency of the DPR complaints alleging fraud or dishonest dealing. The agency's procedure is to deny licensure whenever there is such an unresolved complaint. This policy applies without regard to the age of the complaint.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: that the agency enter its final order granting Jack D. Osborn's application for registration as a mortgage broker. DONE AND ENTERED this 5th day of August, 1994, in Tallahassee, Florida. MARY CLARK 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 Division of Administrative Hearings this 5th day of August, 1994. COPIES FURNISHED: Cassandra A. Evans, Esquire Assistant General Counsel Office of Comptroller Department of Banking & Finance The Capitol, Suite 1302 Tallahassee, Florida 32399-0350 Jack DeWayne Osborn 303 Pickering Court Longwood, Florida 32779 Honorable Gerald Lewis, Comptroller The Capitol, Plaza Level Tallahassee, Florida 32399-0350 William G. Reeves, General Counsel Department of Banking & Finance Room 1302, The Capitol Tallahassee, Florida 32399-0350
Findings Of Fact 1. Emmons was a Residential Services Supervisor who had a predetermination/liberty interest (name clearing) hearing held on August 24, 2012. After that hearing, he was terminated effective at the close of business on August 24, 2012 and notified of that fact via correspondence dated August 27, 2012. (See, e.g., Exhibit 4). 2. On September 4, 2012, Emmons submitted a written request to ECUA’s Director of Human Resources and Administrative Services (hereinafter “HR Director”) appealing disciplinary action taken against him in his employment with ECUA. 3. That same date, ECUA requested the services of an Administrative Law Judge (hereinafter “ALJ”) from the Florida Division of Administrative Hearings (“DOAH”) to conduct an evidentiary hearing and issue a Recommended Order to ECUA’s Executive Director pursuant to the Administrative Law Judge Services Contract previously entered into between ECUA and DOAH. 4. DOAH assigned an ALJ to preside over the matter, who in turn issued a Notice of Hearing scheduling an evidentiary hearing to take place beginning at 10:00 a.m. on October 15, 2012 in ECUA’s Board Room. 5. ECUA was present and ready to proceed with the evidentiary hearing at the appointed time and place, yet neither Emmons nor anyone acting on his behalf appeared. Furthermore, no one had heard from Emmons. 6. After waiting fifteen (15) minutes after the designated start-time for the hearing, neither Emmons nor anyone acting on his behalf had been heard from. 7. Thereafter, the ALJ called the hearing to order, and ECUA proffered witness testimony and admitted exhibits into the record. The record established the following: a. Emmons was a Residential Services Supervisor in ECUA’s Sanitation Department. b. On March 28, 2012 Emmons was notified by a Sanitation Equipment Operator under his supervision that his truck (Truck #43B), had broken down. After Emmons arrived on the scene in ECUA Truck #11C, he went to sleep while on duty. c. Emmons slept for approximately twenty to thirty minutes, and his vehicle, Vehicle #11C, was idling with the air conditioner on throughout this time. d. While Emmons slept, an ECUA employee photographed him. e. This was not the first time Emmons had slept while on duty; instead, in the Summer of 2011 Emmons was observed sleeping in his ECUA-assigned vehicle by another ECUA employee. f. Furthermore, within the past twelve months Emmons was observed by ECUA employees reclined with his eyes closed for an extended period of time on two other occasions during the past twelve months. g. Additionally, in 2010 a photograph of Emmons apparently sleeping on duty was brought to one of his superiors’ attention. In this instance, Emmons was cautioned that it was completely unacceptable for a supervisor to be sleeping anywhere 3 at any time while on duty and that if this were to happen again disciplinary action would be imposed. h. ECUA issued a written notice of predetermination hearing to Emmons on August 21, 2012 regarding contemplated disciplinary action for violations of Section B-13A(4), [Conduct Unbecoming an ECUA Employee], Section B-13A(18) [Loafing], Section B-13A(21) [Neglect of Duty], Section B-13A(25) [Sleeping on Duty], and Section B-13A(33) [Violation of ECUA rules or policies] of ECUA’s Human Resources Manual. i. Section B-37(A) of ECUA’s Human Resources Manual additionally provides that ECUA employees shall avoid unnecessary vehicle idling and prohibits allowing a vehicle to idle solely to operate the air conditioner for the comfort of the vehicle’s occupants. j.._ Emmons knew of the above-referenced provisions of ECUA’s Human Resources Manual by virtue of the fact that he had received it, as well as the fact that the substantive provisions of it applicable to his sleeping on duty had been previously discussed with at least one of his superiors. k. Upon proper notice a predetermination hearing was held on August 24, 2012, and thereafter a written notice of disciplinary action was issued to Emmons on August 27, 2012 notifying him that his conduct violated Sections B-13A(4), (18), (21), (25), and (33) of ECUA’s Human Resources Manual. 8. The hearing was closed at approximately 10:27 a.m. 9. Based upon a review of the record, the evidence shows that Emmons’ conduct was violative of Sections B-13A(4) [conduct unbecoming an ECUA employee], 4 Section B-13A(8) [loafing], Section B-13A(21) [neglect of duty], Section B-13A(25) (sleeping while on duty], Section B-13A(33) [violation of ECUA rules or policies], and Section B-37 [vehicle and equipment idle reduction] of ECUA’s Human Resources Manual. (See ECUA ex. 5, 6). The evidence further shows that you were aware of these provisions within the Human Resources Manual. (See ECUA ex. 7). 10. Two days later, on September 17, 2012, R. John Westberry, Esq., entered an appearance on behalf of Emmons and filed a Notice of Voluntary Dismissal on his behalf. In neither of these filings was any justification proffered for Emmons’ having failed to appear at the scheduled evidentiary hearing. Additionally, good cause was not shown for Emmons’ attorney having failed to appear at the hearing (although it is unclear whether the attorney had been retained at that time). 1. Nevertheless, on October 18, 2012 the ALJ rendered an Order Closing File ostensibly dismissing the matter.
Conclusions Petitioner, Emerald Coast Utilities Authority (hereinafter either "ECUA" or “Petitioner”), terminated Respondent, Michael A. Emmons (hereinafter either "Emmons" or “Respondent”), from his employment with ECUA effective at the close of business on August 24, 2012. Emmons timely requested a hearing in order to appeal his termination, and his case was forwarded to Florida Division of Administrative Hearings to conduct a hearing and issue findings of fact and recommended conclusions of law. After being properly noticed, a formal hearing was held in this cause on October 15, 2012 in Pensacola, Florida, before Diane Cleavinger, Administrative Law Judge with the Florida Division of Administrative Hearings, which Emmons elected not to attend. . Three days later, on October 18, 2012, Judge Diane Cleavinger submitted an Order Closing File, which for reasons set forth below is deemed a Recommended Order. Pursuant to Section 120.57(1)(10, Florida Statutes, the Parties had 15 days within which to submit written exceptions to the Recommended Order. That time-frame has expired, with only Petitioner’s having filed a submission. Emmons also filed no response to Petitioner’s exceptions. See Rule 28-106.217(3), Florida Administrative Code (affording a party 10 days from the filing of the other party’s exceptions to respond to those exceptions).
The Issue Whether Petitioner's responses to Question 10 and to Question 19 on the October 1990, general contractor's examination were incorrectly scored.
Findings Of Fact Petitioner sat for the general contractors licensing examination administered by Respondent in October 1990. The overall examination consisted of three parts. Petitioner has passed Parts I and III of the examination, but he failed Part II of the examination. Petitioner received a score of 67 on Part II of the examination while a score of 69.01 is required to pass that part of the examination. Petitioner initially challenged nine questions on Part II of the examination. Prior to hearing, Petitioner abandoned his challenges to all questions except for questions 10, 19, and 20. Evidence as to all three questions was presented by the parties at the formal hearing. In his post- hearing submittal, Petitioner abandoned his challenge to question 20. Consequently, only the challenges to Questions 10 and 19 need to be resolved. Question 10 and Question 19 are each worth four points. If Petitioner is given additional credit worth 2.01 points, he will have passed Part II. The challenged questions are multiple choice questions with only one response being considered by Respondent to be the correct response. For each challenged question, Petitioner selected a response other than the response Respondent considered to be the correct response. For each of the challenged questions, Petitioner received a score of zero. Question 10 requires the candidate to make certain calculations to determine the cost of a change order for a construction project. Petitioner contends that the question is unfair because of the narrow band between the possible answers. Respondent established that the question contained all information necessary to make the required computations. While Petitioner is correct in that some other questions may be less difficult because of the greater margin of error in the calculations required by those less difficult questions, his answer to Question 10 is nevertheless incorrect. Petitioner is entitled to no credit for his incorrect answer to Question 10. Question 19 provides certain information in the stem of the question and pertains to the time constraints on the service of a notice to owner by a subcontractor under the Florida Mechanics Lien Law. From the information provided in the stem of the question, the candidate can determine the date the subcontractor first furnished materials or labor. The stem of the question also informs the candidate of the date on which final payment was made to the contractor in reliance on the final contractor's affidavit. The answer to the question contains four multiple choice dates from which the candidate is to choose his answer. Preceding the answers is the following: "According to the Florida Construction Law Manual, in order to meet the requirements of the Mechanics Lien Law, concerning proper filing of the Notice to Owner, the concrete subcontractor's Notice to Owner must be served to the owner no later than:". The pertinent portions of the Florida Construction Law Manual provide as follows: Notice to the owner must be served on the owner within the earliest of the following time periods: One, before or within 45 days of the first commencement to furnish labor and materials on the job site, or within 45 days of starting to make specialty manufactured materials. Two, before final payment is made in reliance on the final contractor's affidavit. 1/ Petitioner contends that Question 19 is ambiguous because the stem of the question does not identify whether the contract referred to in the stem of the question is between the contractor and the owner or between the contractor and the subcontractor. Petitioner is correct in his contention that the question refers to the date that a contract was signed without identifying whether the contract was that between the owner and the contractor or that between the contractor and the subcontractor. The absence of that information is not fatal because the question enables the candidate to determine the date the subcontractor started work and provides the date of final payment was made to the contractor, which is the information necessary to correctly answer the question. Petitioner also contends that Question 19 is ambiguous because the answer considered by Respondent to be the correct answer is not the last date upon which the notice to owner can be served upon the owner. The correct response to Question 19 from the dates provided as possible answers to the question according to Respondent is the day before final payment was made to the contractor in reliance on the affidavit. The day that the final payment was made was not one of the four possible answers. Petitioner argues in his post- hearing submittal (but not at the formal hearing) that the question is misleading because the notice to owner could have been served on the day of final payment if the notice was served prior to the final payment by the owner. While the date of the final payment may arguably be a better choice than the date preceding the date of final payment, the date of final payment is not one of the choices. Of the choices offered the date preceding the date of final payment is clearly the best possible response. Petitioner's response to Question 19 was based on the statutory provision permitting the subcontractor to perfect service within 45 days of the date the subcontractor first furnished labor or material. The question informed the candidate that final payment to the contractor was made in reliance on a final contractor's affidavit six days prior to the date selected by Petitioner. Petitioner's answer to Question 19 was clearly wrong because a notice to owner from a subcontractor must be served before final payment to the contractor. The question is not misleading or unfair. Petitioner is entitled to no credit for his incorrect response to question 19.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which denies Petitioner's challenges to questions 10 and 19 of the October 1990 general contractor's examination. RECOMMENDED this 10th day of February, 1992, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 10th day of February, 1992.
Findings Of Fact Pursuant to Section 310.011, Florida Statutes, the Board of Pilot Commissioners (Board) was established within the Department of Professional Regulation (Department). The Board, in conformance with Section 310.061, has the authority to determine the number of pilots needed for a given port. To fill those numbers, the Department examines all applicants for the position of pilot or deputy pilot and, if found qualified, appoints and licenses as a pilot or appoints and certifies as a deputy pilot the number prescribed by the Board. See: Section 310.081, Florida Statutes. On December 8, 1986, the Department held an examination to fill two deputy pilot positions at Port Canaveral. Petitioner and Intervenors, Captain John M. Boltz and Captain Earl R. McMillin were among the candidates examined. A total of twenty-two candidates took the examination. The facets of the examination were as required by Rule 21SS-5.13(1), Florida Administrative Code. That rule requires that the examination include the following subject areas: International Rules of the Road. Inland Rules of the Road and the Pilot Rules. Seamanship, Shiphandling and other Subjects Relating to Piloting. Aids to Navigation. Local or specific knowledge of the port area for which being examined. Chartwork of the port area for which being examined, with detailed information of the port area required to be charted. A general examination concerning matters pertaining to a candidates knowledge of federal and state pilotage, fitness and ability to undertake the duties of a certified deputy pilot in the port for which being examined, and such other related information as may be deemed pertinent to the examination process, to determine whether the applicant is qualified to pilot all classes of vessels liable to enter the port and is familiar with the waters, the channels, the harbor and the port. Rule 21SS-5.13(2), Florida Administrative Code, mandates that: In order to achieve a passing grade on the examination a candidate must score 90 percent on the subject areas in subsections (1)(a) and (b), and a score of 75 percent on the subject areas in subsection (1)(c), (d), (e), (f) and (g). A failure to attain the required percentage in any of the seven subject areas renders the candidate unsuccessful. Of the twenty-two candidates who took the examination, only four candidates attained a passing score on each of the seven subject areas. Of these four, Captain McMillin was first with an overall score of 94.74 percent, Captain Boltz was second with an overall score of 92.76 percent, and Petitioner was third with an overall score of 92.62 percent. The Department, in accordance with standard practice, ranked the candidates by overall score, and appointed the top two candidates, Captain McMillin and Captain Boltz, to the two available positions. Following disclosure of his score, Petitioner reviewed his examination and offered a timely objection to question 117. That question reads: The reaction of a ship known as "squat" results in a change in trim. generally varies in direct proportion to the speed. Only I is a correct statement. Only II is a correct statement. Both I and II are correct statements. Neither I nor II is a correct statement. As originally keyed, the only correct response to question 117 was answer A. However, after reviewing the test results, the Department decided to rekey the acceptable responses to the question and accord credit for answer A and C. Petitioner objects to the Department's decision to accord credit for answer C, which he asserts is a technically incorrect response. Significantly, had the Department not rekeyed the responses to the question, Petitioner, who elected response A, would have achieved a better overall score than Captain Boltz, who elected response C. Question 117 was developed by Captain John C. Hanson, the Department's consultant, from Shiphandling For The Mariner, by MacElrevey; a source recommended to all candidates prior to the examination. Pertinent to this case, MacElrevey teaches: As a ship begins to make way through the water she undergoes a change in mean draft known as sinkage. This change may occur equally forward and aft or may be greater at the bow or the stern, the resulting change in trim being known as "squat." When passing through the water the ship displaces an amount of water equal to her own weight. This water must move outward from and around the hull in all directions. The water so displaced moves primarily along and under the hull and returns astern of the ship to "fill" the space left by the ship as she moves on. Naturally, the faster the ship is moving the greater the velocity of this flow under and along her hull, and the greater the corresponding pressure drop as a result of that increased velocity. Depending upon where the greatest drop in pressure occurs along the length of the hull, this reduced pressure will result in greater sinkage (increase in draft) at the bow or stern, although the draft increases to some degree all along the length of the ship. As the ship enters shallow water the flow of water becomes increasingly restricted due to the reduced clearance both under and on one or both sides of the hull. The degree of restriction or "blockage factor" is dependent upon several variables . . . Consider first the effect of ship's speed since this is the factor over which the mariner has the greatest control. It has been found, based upon observations of both actual ships and models, that squat varies in proportion to the square of the speed. If ship's speed is doubled, squat increased by a factor of four. With today's large ships and minimal underkeel clearances it becomes immediately obvious why speed and resulting squat must be very much on the shiphandler's mind. (Emphasis added) The question developed by Captain Hanson was designed to test the candidate's knowledge of squat and the effect of speed on squat, which is important information for a pilot who must navigate through shallow waters or confined channels. The correct technical response to question 117 as posed, and as intended by Captain Hanson, was answer A. Answer C was an incorrect response because squat does not technically vary in direct proportion to speed but, rather, in proportion to the square of the speed. 1/ Notwithstanding the fact that answer A was the intended and only technically correct response to question 117, the Department's Office of Examination Services decided to also afford credit for answer C. This decision was predicated on its conclusion, after a review of the responses to the question, that the phrase "direct proportion" could logically have been interpreted by the candidates in a non-technical sense to mean: that squat is directly related to speed (i.e., if speed increases/decreases, squat increases/decreases). If so interpreted, answer C would also have been a correct response to question 117. Accordingly, the Department concluded that it would afford credit for answer C, as well as answer A. The proof accords logic and reason to the Department's decision. The twenty-two candidates who took the examination were experts in seamanship and shiphandling. A review of the responses to question 117 by these twenty-two candidates revealed that: three chose answer A, one chose answer B, and 18 chose answer C. Of the four who attained a passing score, two chose answer A and two chose answer C. Notably, 82 percent of the candidates in both the upper and lower half of the class chose answer C. Because of its poor statistical performance, Ms. Lila Quero-Munoz of the Office of Examination Services, an expert in psychometrics, was of the opinion that the question needed close review. In Ms. Quero-Munoz' opinion, which is credited, when 18 of 22 qualified people select a response other than the one that was keyed, there is good reason to suspect that there is something in the phrasing of the question that is subject to misinterpretation. Upon review of question 117, Ms. Quero-Munoz and Martin Persampieri, also of the Office of Examination Services, were of the opinion, which opinion is credited, that the phrase "direct proportion" could have logically been interpreted as meaning that squat is directly related to speed, instead of its technical or mathematical definition. Therefore, the Department's decision to afford credit for answer C had a logical and reasonable basis. /2 The testimony of Captain Hanson, Petitioner, Captain McMillin and Captain Boltz lends support to the conclusion that the Department acted logically and reasonably when it decided to rekey the answers to question 117. Captain Hanson, when he prepared the question, did not intend it to be a trick question. Yet, Petitioner and Captain McMillin, both of whom responded with answer A, thought the question to be tricky and applied the technical or mathematical definition of "direct proportion." Captain Boltz was not familiar with the technical definition of "direct proportion" and ascribed to it the general proposition that squat is directly related to speed. Notably, the term "direct proportion" was not defined anywhere in the sources recommended by the Department to the candidates. The Department, in carrying out the examination process, is charged with the responsibility of ensuring that the examination for deputy pilot adequately and reliably measures a candidate's ability to practice the profession of deputy pilot. Further, it must ensure that the examination questions are a reliable measurement of the general areas of competence specified in Rule 21SS-5.13(1), Florida Administrative Code. These responsibilities were adequately addressed by the Department in this case.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the examination challenge filed by Petitioner be DISMISSED. DONE AND ENTERED this 21st day of October, 1987, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 October, 1987.
The Issue The issue for disposition is whether Mary McCarty, Respondent in a complaint to the Florida Commissions on Ethics, is entitled to costs and reasonable attorney's fees from the complainant, Leslie F. McDermott, pursuant to Section 112.317(8), F.S.
Findings Of Fact Mary McCarty has resided in Delray Beach, Florida for approximately twenty years. She is politically active as a Republican; she served as a Delray Beach city commissioner from 1987 until 1990, and now currently serves as chairperson of the Palm Beach County Commission. William (Bill) Andrews, also a Republican, was elected to the Delray Beach City Commission approximately one year after Ms. McCarty. The two worked together on certain issues, including an issue regarding the firing of the city manager, and more often than not, they voted on the same side. Leslie F. McDermott lives in Lake Worth, Palm Beach County, Florida. He has never resided in Delray Beach. He is employed as an engineer for a computer company and is well known and respected in the community as an active member of the NAACP. He served as president of the south county branch of the NAACP for seven or eight years until recently, and now serves on the executive board of that local branch. Jeanette (Jay) Slavin is a "grass roots" political activist in the south county area. As a Democrat she has been very involved in political campaigns and has openly supported candidates and issues in heated opposition to Mary McCarty. Malcolm Byrd, a Republican, served on the Delray Beach City Commission from 1979 until 1987, and was city manager from 1989-90. At first he supported Mary McCarty, but as city manager he had differing views of how the city should proceed and how the city manager should function. In early 1990, Malcolm Byrd learned that Bill Andrews had attended a Republican fund-raiser in Orlando, with transportation by chartered jet and limousine provided by a third party. Bill Andrews openly discussed the trip and how lavish it was. Andrews displayed a photograph of himself at the event with President Reagan or other noted Republicans. Malcolm Byrd became aware that Andrews had not reported that trip on his financial disclosure form, and shared that information with Jay Slavin. There was also some talk that Mary McCarty had attended the fund-raiser, as Andrews referred to "we" when discussing the trip. Mary McCarty's financial disclosure form for 1990 did not reflect the alleged gifts related to the trip. Jay Slavin had lunch with Leslie McDermott and urged him to file ethics complaints against both Andrews and McCarty. Ms. Slavin had obtained the requisite forms from the commission. She felt that Leslie McDermott's complaint would have more credibility as she, Slavin, was known to be politically opposed to Andrews and McCarty. Leslie McDermott was reluctant at first to file the complaint against McCarty, as the only basis that Jay Slavin gave him was that Bill Andrews said "we" went on the trip, and everyone knew that Mary McCarty frequently attended fund-raisers and political events. Leslie McDermott drafted the complaint based on information from Jay Slavin, and Ms. Slavin typed it for his signature, as he has a visual handicap. Before sending the complaint, McDermott spoke with Malcolm Byrd, who told him that he did not have the evidence on McCarty that he had on Andrews and that he could not encourage him to file on McCarty. McDermott heard rumors from other people who believed she had attended the function, but no one told him they had personal knowledge of the trip or had actually seen McCarty. At the hearing, and during the investigation by the commission, Leslie McDermott refused to divulge the names of those other persons who told him they believed Mary McCarty took the trip. After sending the complaints, McDermott gave Jay Slavin permission to give them to three newspapers which he specified: the Palm Beach Post, the Sun Times and the Fort Lauderdale Sentinel. He personally called the papers and told them that the matters in the complaints needed to be investigated. He also told the reporters that the complaints had no official connection with the NAACP. He considered the three papers to be responsible, non-sensational publications and he had experience in the past with issuing press releases. On February 6, 1992 the Sun-Sentinel published a story with the headline, "ETHICS COMPLAINTS FILED", stating that an NAACP official filed ethics complaints alleging that Mary McCarty and Bill Andrews attended a $1000 a plate fund-raiser paid for by a group of bond brokers, and failed to disclose the gifts. Mary McCarty contacted the NAACP, and Leslie McDermott was chastised for involving the organization. He did not call the newspaper to demand a corrective article as he did not want to "add fuel to the fire". He avowed distress, however, that people associated the issue with the NAACP. Meanwhile, the Ethics Commission conducted its investigation and found that, indeed, Mary McCarty did not attend the event. That was a conclusion that should have been reached by Mr. McDermott prior to his filing the complaint. Instead, on the complaint form, he signed the following statement under oath: COMPLAINT THAT THE COMMISSIONER NAMED ABOVE, THEN A DELRAY BEACH CITY COMMISSIONER DID VIOLATE FLORIDA STATUTE 112 IN THAT THE COMMISSIONER ACCEPTED GIFTS VALUED IN EXCESS OF $100.00 AND FAILED TO REPORT SAME IN ACCORDANCE WITH STATE LAW. THE GIFTS WERE PROVIDED BY MEMBERS OF A BOND UNDERWRITING GROUP HEADED BY SMITH BARNEY. THEY INCLUDED: ROUND TRIP TRANSPORTATION ON A CORPORATE JET FROM WEST PALM BEACH TO ORLANDO AND BACK; AND, ROUND TRIP LIMOUSINE SERVICE FROM THE ORLANDO AIRPORT TO THE ORANGE COUNTY CONVENTION AND CIVIC CENTER AND RETURN TO THE AIRPORT; AND, A TICKET TO ATTEND THE $1000 PER PERSON FUND RAISER DINNER BENEFITING GOV. MARTINEZ AND FEATURING PRESIDENT GEORGE BUSH. THE FOREGOING GIFTS HAVE AN ESTIMATED VALUE OF $1350 TO 1500 WELL IN EXCESS OF THE REPORTING REQUIREMENTS. THE COMMISSIONERS FINANCIAL DISCLOSURE FORM FOR THE CALENDAR YEAR 1990 WHICH COVERS THE DATE OF THE SUBJECT EVENT ON FRIDAY APRIL 20 1990 SHOWS NO GIFTS RECEIVED. IN ADDITION TO COMMENTS MADE TO VARIOUS INDIVIDUALS ABOUT THE DETAILS OF THE TRIP, INCLUDING THE FACT THAT ALL EXPENSES HAD BEEN PAID BY THE BOND BROKERS, THE COMMISSIONER WAS OBSERVED AT THE EVENT BY NUMEROUS LOCAL OFFICIALS AND RESIDENTS. (Exhibit 1, Complaint dated February 2, 1992) Leslie McDermott did not ask Bill Andrews or Mary McCarty whether she attended the function. He did not contact anyone, including the sponsor of the event, who would likely have personal knowledge of her attendance. Instead, he relied on rumors and indirect reports, all which he knew were based on these tenuous connections: Bill Andrews used the term "we" in bragging about the trip. Mary McCarty frequently attended political events and was politically active. Mary McCarty and Bill Andrews, both Republicans (but not the only Republicans on the city council), often voted alike. Some unnamed persons overheard conversations which made them believe that Bill Andrews and Mary McCarty were on the trip together. Leslie McDermott's explanation that he released the complaint to the press so that an investigation could be conducted is simply not persuasive. He is an educated, articulate and experienced individual. He knew or should have known that public exposure of his complaint would injure the reputation of Ms. McCarty. Despite his own initial misgivings, Mr. McDermott allowed himself to be used by individuals who could only benefit from that injury. His failure, due to hubris or extraordinarily bad judgment, to make a reasonable attempt to check the veracity of the rumors, constitutes the reckless disregard by which malicious intent may be proven. In defending against the complaint and in pursuing relief in this proceeding, Mary McCarty has incurred costs and attorneys fees in the total amount of $12,876.55. Exhibit #4a), b), and c) appropriately itemizes the 50.9 hours and $2696.55 costs incurred. The hourly rate of $200.00 was stipulated as reasonable. Leslie McDermott contests the reasonableness of any time spent and costs incurred after the commission's order finding no probable cause was issued. Based upon the unrefuted testimony of Robert V. Romani, Esquire, an experienced litigator, past-president of the Palm Beach County Bar Association and member of the Board of Governors of the Florida Bar; and after considering relevant case law discussed below, I find that the hours and costs both before and after dismissal of the complaint are reasonable.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Commission on Ethics issue its final order awarding fees and costs in the total amount $12,876.55 to Mary McCarty from Leslie McDermott. DONE AND RECOMMENDED this 23rd day of August, 1993, in Tallahassee, Florida. MARY CLARK 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 23rd day of August, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5168EC The findings of fact proposed by both parties are substantially adopted here, with the exception of the following findings proposed by Leslie McDermott. Paragraph 13. The "reasonable" appearance or belief as to Ms. McCarty's guilt is rejected as unsupported by the weight of evidence. Paragraph 15. The reason Mr. McDermott presents for signing the complaint is rejected as not credible, in the face of his inconsistent action in presenting the complaint to the press. Paragraphs 16-18 are rejected as contrary to the weight of evidence. COPIES FURNISHED: Bonnie Williams, Executive Director Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006 Phil Claypool, General Counsel Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006 Kenneth D. Stern, Esquire Post Office Box 3878 Boca Raton, Florida 33427-3878 James K. Green, Esquire One Clearlake Centre 250 South Australian Avenue West Palm Beach, Florida 33401
The Issue Whether Petitioner’s transactions regarding capital purchases and improvements, gift shop lease payments, concessionaire revenues, purported office lease payments, and 11 gaming equipment (leased and purchased) are subject to Florida sales or use tax during the audit period and whether Petitioner is entitled to the resale exemption for food purchased and provided to its customers during the audit period. Finding of Fact 46 During the audit period, the Petitioner sold tickets to its cruises generally for $25 (most cruises) and $30 (weekend, evening, and Sunday brunch cruises). In general, the cost of its food during the audit period was $7.50 per passenger. It is undisputed that the petitioner did not pay sales tax on the food it purchased for later consumption by its passengers. Finding of Fact 92 During the audit period Mr. Genden requested, but could not receive, records pertaining to register tapes and ship documents that would show how and when the registers were opened and closed, and ship policies concerning when registers were opened and closed. The requested records had been destroyed by the inadvertent activation of the Vessel’s sprinkler system. The Recommended Order, subject to the modifications stated above, is adopted and attached below. 12 DONE AND ENTERED in Tallahassee, Leon County, Florida this_ 244 day of November, 2001 STATE OF FLORIDA DEPARTMENT OF REVENUE < Zingge xecutive Direct, Certificate of Filing J HEREBY CERTIFY that the foregoing FINAL ORDER has been filed in the official records of the Department of Revenue this day of 1 nueeben >, 2001. wit : 4 Al FENCY CLERK Copies furnished to: Kenneth M. Hart, Esquire Nicole M. Nugan, Esquire Gunster, Yoakley & Stewart, P.A. 777 South Flagler Drive, Suite 500, East Tower, West Palm Beach, Florida 33401 William L. Hyde, Esquire Gunster, Yoakley & Stewart, P.A, 215 South Monroe Street, Suite 830 Tallahassee, Florida 32301 13
Conclusions This cause came before the Department of Revenue for the purpose of issuing a final order. The Administrative Law Judge assigned by the Division of Administrative Hearings issued a Recommended Order, sustaining the Department’s assessment. A copy of the Recommended Order is attached to this Final Order. Petitioner timely filed exceptions to the Recommended Order and a copy of that filing is attached to this Final Order. For the reasons expressed herein, the Department adopts the Administrative Law Judge recommendations and specifically incorporates the Recommended Order except for Finding of Facts 46 and 92, which are modified as reflected below. Rulings on Petitioner’s exceptions are also set forth below. Petitioner’s Exception to Finding of Fact 17 Petitioner asserts that it is a misrepresentation that its ship, the Palm Beach Princess (the Vessel), travels “just far enough” to engage in gambling activities without violating state laws. Petitioner further avers that its Captain, Hrovj Michl, testified that the Vessel “travels into international waters on each of its cruises.” The Record clearly indicates that the Vessel travels exactly three miles out from port on each of its cruises-to-nowhere, whereupon gambling activities commence for a period lasting until preparations are made for the Vessel’s return to port. During gambling activities the Captain stems the tide at a point three miles off shore, which is exactly beyond the extent of Florida’s territorial waters. As per Presidential Proclamation No. 5928, Dec. 24, 1988, the Territorial Limits of the United States extend 12 miles from shore, whereupon international waters commence. Therefore, based upon testimony provided by Petitioner’s own witness, the Vessel travels just far enough to leave Florida’s territorial waters, but remains 9 miles inside of the territorial limits of the United States. Petitioner, at the hearing or in its exceptions, provides no contrary authority that expressly contradicts Presidential Proclamation 5928. As such, the Administrative Law Judge’s finding stands. Petitioner’s exception to Finding of Fact 17 is hereby rejected. Petitioner’s Exception to Finding of Fact 39 Petitioner asserts that it misstates the facts to find that “[t]he sole source of the Petitioner’s income during the audit period was in connection with business conducted in the U.S.” The Petitioner further claims that “Section 863(c) of the Internal Revenue Code contains a per se rule that treats [Petitioner’s] transportation income as derived from sources within the United States" even when Petitioner was engaged in foreign commerce. Petitioner deems that “compliance with an income source tule in the Internal Revenue Code [should not be] determinative of whether [Petitioner] is engaged in foreign commerce. The Record clearly indicates that Petitioner’s federal tax returns show income derived from a business conducted in the United States. The Record also indicates that Petitioner maintained an office located within the State of Florida, it exclusively operated its Vessel from a port within the State of Florida, and, as discussed in the preceding Exception, its Vessel never traveled into international waters or the territorial waters of any other state. With no connection to any other taxing authority within the United States and with no evidence of commerce conducted with a foreign entity, Petitioner's argument must fail as it concerns this Finding of Fact. Petitioner’s exception to Finding of Fact 39 is hereby rejected. Petitioner’s Exception to Finding of Fact 41 Petitioner asserts that its Vessel is engaged in foreign commerce because the Vessel travels, with passengers aboard, to a point slightly more that 3 miles off the coast of Florida. Section 1331 of Title 43 of the United States Code state that the “territorial sea of the United States henceforth extends to 12 nautical miles from the baselines of the United States determined in accordance with international law.” Because Petitioner’s Vessel travels only 3 miles offshore, the Vessel never reaches international waters. Additionally, to be engaged in commerce in the manner in which the Petitioner contends it occurs, Petitioner needs to “transport” passengers or property from one point to another. The Record clearly indicates the Vessel leaves from port and returns to the same port with no intervening stops. Thus, Petitioner’s claim fails on this point as well. Petitioner’s exception to Finding of Fact 41 is hereby rejected. Petitioner’s Exception to Finding of Facts 86, 90, and 99 Petitioner excepts to the finding “that at all times material to the audit period, [Petitioner] maintained an office in Boca Raton, Florida.” Petitioner further avers that payments for the office space were in the form of “advances for payments due under a management agreement between [Petitioner] and [its management company].” These contentions are without merit as the Record is replete with sufficient, competent documentary evidence substantiating the existence of Petitioner’s Boca Raton office and the manner in which rent payments were made is immaterial to that finding. Petitioner’s exceptions to Finding of Facts 86, 90, and 99 are hereby rejected. Petitioner's Exception to Finding of Facts 87 and 89 Petitioner excepts to the findings that sales tax is due on photography and gift shop licenses and on its lease of gambling equipment. Petitioner bases its entitlement to an exemption on the claim that all of its resulting income “is attributable to the transportation of persons or property in foreign commerce under § 212.08, Florida Statutes... .” As discussed in Petitioner’s Exception to Finding of Fact 41, Petitioner does not engage in foreign commerce as described in under § 212.08, Florida Statutes, therefore Petitioner’s argument on these points fails. Petitioner’s exceptions to Finding of Facts 87 and 89 are hereby rejected. Petitioner’s Exception to Finding of Fact 88 Petitioner claims it is entitled to an exemption for the cost of food used in preparing the buffet meal served on its Vessel. In support of this contention, Petitioner points to Finding of Fact 46, which states: “[I]t is undisputed that the Petitioner did not pay sales tax on the food it purchased for resale to its passengers.” This claimed exemption would be properly granted if Petitioner’s purchase of food was indeed for “resale.” The Record, however, clearly shows that admission to Petitioner’s Vessel comes in the form of a lump-sum charge, which entitles patrons to all amenities offered on board the Vessel to include food, gambling, and other related services. The Administrative Law Judge in Paragraphs 44 and 45 of her Recommended Order discusses these facts. Since the Petitioner is providing a taxable admission, and since the cost of all goods and services, including meals, is included with that admission, Petitioner can not claim in this instance to be providing food for resale. Petitioner’s exception to Finding of Fact 88 is hereby rejected and Finding of Fact 46 is modified to accurately portray the character of Petitioner’s food purchase. Petitioner’s Exception to Finding of Fact 92 Finding of Fact 92 reads that the Department requested, but did not receive, certain records during the conduct of the Department’s audit. Petitioner, in its exception, acknowledges that the records were not provided, but adds that the requested records had been inadvertently destroyed by the ship’s water sprinkler system. Although the Finding of Fact makes no allegation of inappropriate or non-compliant behavior on the part of the Petitioner, there exists sufficient evidence in the Record detailing Petitioner’s cooperation during the audit process to warrant modification of this Finding of Fact. Petitioner’s exception to Finding of Fact 92 is hereby accepted in part and the Finding of Fact will be modified to reflect the reason for Petitioner’s non-production of tecords. Petitioner’s Exception to Finding of Facts 93 - 97 Petitioner’s objections to the Findings in Paragraphs 93 — 97 revolve around the contention that if one were to concede that the Vessel “‘stems the tide” on its cruises to nowhere [this could be] fundamentally inconsistent with the conclusion that the [Vessel] travels 34 miles during such voyages.” Petitioner avers that the Administrative Law Judge failed to consider contrary testimony and appears to have given substantial weight to the fact that Petitioner did not contest mileage figures until the time of the hearing. Petitioner also objects that “the determination of the mil[eJage traveled on a cruise to nowhere in this case should not have been based on determinations made prior to the instant proceeding, but should have been based solely upon the evidence in the record.” During testimony at his deposition and again while testifying at trial, Petitioner’s witness, Captain Hrvoj Michl, consistently confirmed the accuracy of the voyage reports offered into evidence at the hearing. These records clearly support the Department’s reliance upon the figure used to calculate portions of the assessment at issue and are at variance with the mileage proffered by the Petitioner in its Exceptions. The voyage reports clearly and consistently document that the Vessel traveled in excess of 30 miles on each of its cruises-to-nowhere. Petitioner’s exceptions to Finding of Facts 93 — 97 are hereby rejected. Petitioner’s Exception to Finding of Fact 93 Petitioner specifically objects the finding that the Department’s auditor relied on a mileage figure he received from on of the Petitioner’s ship captains during a telephone conference call arranged by Petitioner’s vice president. Petitioner, however, failed to produce the vice president [who was the only other participant in this conversation] at the hearing to contest the auditor’s claim. Additionally, as discussed in the preceding paragraph, there exists substantial evidence in the Record supporting the veracity of the auditor’s claim and his subsequent reliance on the mileage figure. Petitioner’s exception to Finding of Fact 93 is hereby rejected. Petitioner’s Exception to Finding of Fact 94 Petitioner specifically claims that there is nothing in the Record to substantiate that “records associated with the mileage issue were not reviewed further because the auditor did not realize the figure would be later disputed.” As recorded on Pages 48 and 49 of the hearing transcript, the department’s auditor testified that he first heard of the mileage figure during a meeting with one of the Petitioner’s executives. The auditor added that he subsequently viewed voyage records, prepared by the Petitioner’s captain, which supported this figure. Also, in answer to a direct question, the auditor testified that none of Petitioner’s employees disputed this figure while the audit work was being performed. These finding are consistent with the department’s tax conferee’s recollection, found on Pages 78 — 79, that no one from the Petitioner’s company raised an issue as to the mileage figure used. Based upon this testimony alone, there is substantial evidence supporting the Administrative Law Judge’s finding on this issue. Petitioner’s exception to Finding of Fact 94 is hereby rejected. Petitioner’s Exception to Finding of Fact 96 Petitioner, once again, excepts to the finding regarding the mileage figure produced at the Hearing. As previously discussed, the Administrative Law Judge correctly based this finding on figures produced by the Petitioner in Petitioner’s Voyage Report, and the accuracy of this report was verified by Petitioner’s witness under sworn testimony. Petitioner’s exception to Finding of Fact 96 is hereby rejected. Petitioner’s Exception to Finding of Facts 97 and 98 In addition to other exceptions already presented and analyzed in this Final Order, Petitioner argues that it “did not become aware of the DOR auditor’s erroneous conclusion regarding the correct travel distance of each voyage until the discovery process in the DOAH hearing.” In a Joint Pre-Hearing Stipulation files by the parties, it was agreed that the Department of Revenue issued a Notice of Proposed Assessment in this matter on March 12, 1999. The Department also issued a Notice of Decision pertaining to the assessment on June 12, 2000. The assessed amounts were based on the 34-mile figure in both instances, and both events preceded the complaint that initiated this DOAH proceeding. As evidenced by the information presented at the Hearing, evidence that verified the auditor’s use of the mileage figure, there exists sufficient documentation to support the Administrative Law Judge’s Finding of Fact. Petitioner’s exception to Finding of Facts 97 and 98 are hereby rejected. Petitioner’s Exception to Conclusion of Law 101 Petitioner argues that it has met its burden in proving that the assessment is incorrect. For reasons set forth in the Department’s responses to Petitioner’s Exceptions, and based upon the findings in the Administrative Law Judge’s Recommended Order, it is determined that there is ample documented evidence in this Record to refute Petitioner’s claim. Petitioner’s exception to Conclusion of Law 101 is hereby rejected. Petitioner’s Exceptions to Conclusion of Law 116 and 118 Petitioner iterates the exceptions that were discussed in its Exceptions to Finding of Facts 17, 41, 87, and 89. The analysis previously provided supports the Administrative Law Judge’s findings in these instances as well. Petitioner’s exceptions to Conclusions of Law 116 and 118 are hereby rejected. Petitioner’s Exceptions to Conclusions of Law 120, 123, 124, 129 and 132 Petitioner excepts to the conclusion that it exercised control over tangible personal property in Florida and it restates its claim that certain assessed items were non- taxable because of their use “in the stream of foreign commerce.” For reasons cited earlier, Petitioner’s claim of engaging in foreign comrnerce while conducting cruises-to-nowhere is rejected. The Record also contains substantial documented evidence to support the Department’s contention that Petitioner exercised control over tangible personal property while the Vessel was docked in Florida. Also, in recognition of this country’s 12-mile territorial limit, Petitioner’s claim for proration of the miles traveled beyond Florida’s 3-mile is deemed inappropriate as it misidentifies the starting point of international waters. Petitioner’s exception to Conclusions of Law 120, 123, 124, 129 and 132 are hereby rejected. Petitioner’s Exceptions to Conclusions of Law 126 and 127 Petitioner’s claim of entitlement to a resale food exemption is based on the proposition that the meal consumed by its passengers is “an essential element of the entertainment package purchased....” The Administrative Law Judge, having toured the ship, and having been briefed by both parties as to the applicable case law on this subject, considered this argument and rejected it. In review, the evidence supports this determination. Petitioner’s exceptions to Conclusion of Law 126 and 127 are hereby rejected. Petitioner’s Exceptions to Conclusions of Law 131 Petitioner reargues its contention that it did not lease or rent office space in Florida and it adds, that if it were deemed to have rented office space, “[it] is entitled to 10 credit for the sales tax [that] has already been paid....” As previously discussed, the Administrative Law Judge made her findings of fact and conclusions of law based upon competent and substantial evidence. In this conclusion, the Administrative Law Judge states, “[t]he Petitioner is responsible for the sales tax that was not paid during the period of its occupancy of the real property....” (Emphasis supplied) The matter of whether Petitioner is, or is not, entitled to a credit is not at issue, nor is there any finding or conclusion that would prevent Petitioner from seeking a refund or credit through proper legal means. As such, Petitioner’s exception falls outside the scope of this Conclusion. Petitioner’s exception to Conclusion of Law 131 is hereby rejected. Adoption and Modification of the Recommended Order The Statement of the Issues is modified as set forth below to more accurately reflect the issues addressed by the Administrative Law Judge. The Preliminary Statement as set forth in the Administrative Law Judge’s Recommended Order is adopted in its entirety. The Department adopts and incorporates the Findings of Fact set forth in paragraphs 1 through 45, 47 through 91, and 93 through 99 of the Recommended Order. Findings of Fact 46 and 92 are modified as presented below. The Department also adopts and incorporates Conclusions of Law set forth in paragraphs 100 through 132 of the Recommended Order.
