The Issue This matter concerns the issue of whether the Respondents' public lodging establishment license numbers 27-01381H and 27-01382H should be suspended four allowing the premises of the Coachman's Inn and the Coachman's Inn Annex to be used for prostitution On December 20, 1982, the Director of the Division of Hotels and Restaurants entered an emergency order of suspension of the public lodging establishment, license numbers 27-01382H and 27-01381H, and caused this emergency order to be personally served upon the Respondents. Simultaneous with the emergency order of suspension, the Director caused to be served upon the Respondents a notice to show cause as to why the above-referenced licenses should not be suspended or revoked for the reasons set forth in the notice to show cause. The notice to show cause specifically alleged: On or before and subsequent to November 1, 1982, to the date of this Notice, investigation has revealed that the Coachman's Inn has been established, continued and maintained as a premises or place which tends to annoy the com- munity, injure the health of the com- munity, or injure the morals and manners of the people of the community, as a premises or place of prostitution, assigna- tion, lewdness, or place or building where A any law of the state is violated contrary to F.S. 823.05 and F.S. 509.032(1) and F.S. 509.261. Since on and before November 1, 1980 and subsequent thereto the date of this Notice, investigation has revealed that the Coachman's Inn has been maintained and operated as a place for the purpose of lewdness, assignation, or prostitu- tion or a house of ill fame in violation of F.S. 796.01, F.S. 796.07, F.S. 509.032 (1) and F.S. 509.261. The Respondent was advised of his right to request a formal hearing and having filed a timely request, a formal hearing was held in this matter on December 29, 1982, at the Regional Service Center, Pensacola, Florida. The Division of Hotels and Restaurants called as witnesses, Mr. Brian Barton, a police officer for the City of Pensacola assigned to the Major Crimes Division, Vice and Intelligence. The Division also called Mr. Paul Silivos, the owner of a restaurant called Skopelo's which is located across the street from the Coachman's Inn and also called Mr. John W. Peaden, an investigator for the State Attorney for the First Judicial Circuit and assigned to the Fort Walton Beach office. The last witness called by the Division was Mr. William Snow, also of the Pensacola Police Department. The Respondent called as its witness Mr. Thomas Pelt, the previous owner of the Coachman's Inn; Mrs. Patel, the wife of the present owner; Ronald J. Stafford, a realtor in the Pensacola area; and Mr. Arvin Patel, the Respondent. In rebuttal, the Division called Mr. Steven Paul Bolyard, an investigator with the State Attorney's office of the First Judicial Circuit and assigned to the Escambia County office. Petitioner offered as exhibits a drawing of the Coachman's Inn which was admitted-as Exhibit No. 1; an order of temporary injunction dated November 24, 1982, which was admitted as Petitioner's Exhibit No. 2; and two (2) newspapers published in the Pensacola area which were marked as Petitioner's Exhibit No. 3, but not accepted into evidence. The Respondent offered six (6) exhibits consisting of: Exhibit No. 1, the sales agreement for the purchase of the Coachman's Inn; Exhibit No. 2, a promissory note executed in connection with the purchase of the Coachman's Inn; Exhibit No. 3, a bill of sale for the purchase of personal property; Exhibit No. 4, a security agreement executed in connection with the purchase of the Coachman's Inn; Exhibit No. 5, the registration cards for the Coachman's Inn and Annex since April, 1981; and Exhibit No. 6, the 1980 tax return for the Coachman's Inn. All six (6) of the exhibits offered by the Respondent were admitted into evidence without objection from the Petitioner. Counsel for both Petitioner and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that such findings of fact were not adopted in the Recommended Order, they were rejected as being irrelevant to the issues In this cause, or as not having been supported by the evidence.
Findings Of Fact The Present owner of the Coachman's Inn purchased the Coachman's Inn in April, 1981. The motel was purchased for a price of $625,000.00, with $100,000.00 of that amount being paid in cash by the present owner at or before closing. Since the purchase of the motel, the owner has made approximately $25,000.00 worth of improvements to the motel. These improvements consist of new carpet and bedding. The Coachman's Inn and Annex are located at 1801 West Cervantes Street in Pensacola, Escambia County, Florida. The motel consists of one main area adjacent to the motel office and an annex located to the west of the main area. The motel has sixty-six (66) rooms of varying sizes and prices. The motel is bordered on the west by a liquor store and across the street by a restaurant. The Coachman's Inn is located in an area which has had ongoing problems with prostitution since at least 1979. Numerous known prostitutes have operated primarily in the area in and around the Coachman's Inn and the liquor store located to the west of the Coachman's Inn. During 1982, known prostitutes were observed on numerous occasions flagging down and waving to passing motorists from the balconies and parking lot of the Coachman's Inn. Specifically, since July of 1982, police officers of the Pensacola Police Department and Investigators of the State Attorney's office observed on numerous occasions know prostitutes operating on the premises of the Coachman's Inn. They would stand in the parking lot area of the Coachman's Inn and in front of the rooms or on the balconies of the Coachman's Inn and flag down passing traffic. In July of 1982, Officer Brian Barton of the Pensacola Police Department spoke with Mr. Patel about the prostitutes and informed him that he was going to have to do something to prevent his premises from being utilized for the purposes of prostitution. He was advised at that time that his license would be in jeopardy if he did not take proper steps to eliminate the prostitution. At that time Mr. Patel acknowledged that he was aware of the prostitution problem and that the individuals who were engaged in prostitution were in fact guests in his motel. Since July of 1982, Mr. Barton has made spot checks on a weekly basis and during August and September had ongoing investigations involving the Coachman's Inn. Following his July conversation with Mr. Patel he observed no efforts on the part of the management to stop prostitution. He also observed no decrease in the prostitution activities taking place on the premises of the Coachman's Inn. The previous owner, Mr. Thomas Pelt, had problems with prostitutes operating in and around the Coachman's Inn from the time he purchased the motel in January, 1978. At the time he sold the motel to the Respondent, he informed him of the various problems he had had with Prostitution. In his first year of operation, Mr. Pelt estimated that he made at least two hundred (200) calls to the Pensacola Police Department and many times was required to make several calls in a single day in order to have the police come out and remove prostitutes from the premises of the Coachman's Inn. During that same time period he hired, for several months, a part-time security guard who was an off- duty Pensacola police officer. The security guard was allowed to wear his Pensacola police uniform and was very effective in finally helping to eliminate the prostitutes from operating on the premises of the Coachman's Inn. Mr. Pelt, as a result of his efforts, was successful in ridding the Coachman's Inn of Prostitutes operating on the premises. On September 15, 1982, Officer Barton, while working a vice operation with two (2) other officers in the area of the Coachman's Inn, was approached by a white female named Betty Salter in the parking lot area of the Coachman's Inn. This contact took place in area adjacent to Room 159 of the motel. Following a short conversation, Officer Barton was invited by Betty Salter and another white female into a room of the motel where he was solicited for prostitution. He then placed Betty Salter under arrest. On November 6, 192, Mr. Barton accompanied Officers William Snow and Perry Osborne in a vice operation in the area of the Coachman's Inn. Officer Snow's vehicle was wired with a recording device. As Officer Snow passed the Coachman's Inn he was flagged down by a female impersonator named Chris Cambria. Officer Snow pulled into the parking lot of the Coachman's Inn where he was approached by Chris Cambria and invited into a room of the motel. The room was located in the center of the horseshoe shaped area in the eastern portion of the motel. Once in the room, Officer Snow was solicited for sexual acts for pay by Chris Cambria. Mr. Cambria was then placed under arrest. At the time that Officer Snow was originally flagged down by Chris Cambria, Mr. Cambria was standing in the doorway of Room 269 which is the room located in the center of the horseshoe area to the east of the office. On November 9, 1982, Mr. John W. Peaden, an investigator with the State Attorney's Office for the First Judicial Circuit, conducted an undercover investigation at the Coachman's Inn. Prior to going to the premises of the Coachman's Inn, Mr. Peaden was briefed and shown photographs of known prostitutes in the area. Upon arriving there he saw several known prostitutes in the Darking lot and on the balconies of the Coachman's Inn. On the night of November 9, Mr. Peaden checked in as a guest. Mr. Patel and a lady who appeared to be his wife were in the lobby at the time that Mr. Peaden checked in. From the lobby, Mr. Peaden observed several known prostitutes on the premises of the Coachman's Inn. After leaving the lobby, Mr. Peaden was approached by a black female who asked if he wanted some company for the night. She followed him to the door of his room and as he opened the door, she pushed her way into the room. After entering the room, she made offers of sexual acts for pay. Prices were quoted by her and agreed upon by Mr. Peaden. Mr. Peaden then left the premises of the Coachman's Inn. When he returned to the Coachman's Inn, he spoke with Mr. Patel who told him to stay away from the black prostitutes because they were bad. Mr. Peaden then asked him about the white prostitutes and their availability. While Mr. Peaden was talking with Mr. Patel in the lobby, a white female and known prostitute named Brenda Howard came into the lobby and appeared to be disoriented and spaced out. She went up to Mr. Patel and asked for a room. At that moment Mr. Patel looked at Mr. Peaden and nodded to Mr. Peaden in a way that appeared to Mr. Peaden to suggest that this was a young lady who was available for prostitution. Mr. Patel gave the young lady Room 213 which is right next door to Room 214 which had been assigned to Mr. Peaden. The young lady wrote only her name on the card and Mr. Patel, as he pulled the card away, said that was enough. Mr. Peaden was charged approximately eighteen dollars ($18.00) for his room and Brenda Howard was charged just over twenty dollars (- $20.00) for her room. In Composite Exhibit 5, there is a registration card dated November 9, 1982, for a Brenda Howard who was assigned to Room 213 and with incomplete information on the card. After Brenda Howard left the lobby, Mr. Peaden asked Patel how he could make contact with her and Mr. Patel said she is in Room 213 and he could call her on the motel phone. Mr. Peaden returned to his room and attempted to call the young lady in Room 213 but received no answer. He then returned to the lobby of the Coachman's Inn where he contacted Mr. Patel again and informed him that he was unable to get in touch with Brenda Howard. Mr. Patel then tried to call her from the lobby but also received no answer. Mr. Peaden then asked Mr. Patel if she was okay and if there were any problems with diseases. Mr. Patel responded "no"' and said "she will be all right tomorrow, come back then." Mr. Peaden then left the premises of the Coachman's Inn. On November 10, 1982, Mr. Peaden returned to the Coachman's Inn and again observed known prostitutes on the premises of the Inn. Mr. Peaden was again solicited for sexual acts for pay by a black female L. T. Manuel. Through L. T. Manuel, Mr. Peaden also contacted Brenda Howard at Room 201 and made arrangements for Brenda Howard and several other women to provide sexual acts for pay for that night. Later in the evening of November 10, 1982, Mr. Peaden and an Officer West were approached by two (2) known prostitutes, Pat Smith and Rosa Robinson, in the parking lot of the Coachman's Inn. They offered to perform sexual acts for pay for Mr. Peaden, Officer West, and two (2) other undercover officers. It was agreed that the two (2) women would obtain two (2) other prostitutes to also perform sexual acts for the four (4) investigators. Pat Smith and Rosa Robinson returned with two (2) other women and at that time each woman was paid twenty- five dollars ($25.00) each with marked money for the sexual acts to be performed. After the money was exchanged, the four (4) women were arrested. On December 8, 1982, Officer Brian Barton observed Phyllis Ford, a known prostitute, talking to a gentleman in a black cadillac in the Coachman's Inn parking lot. She directed him to the area of Room 240 where Chris Cambria was waiting. Room 240 is in clear view of the Coachman's Inn lobby and office and Mr. Patel was in the lobby. After spotting one (1) of the undercover officers, Chris Cambria left the area of Room 240, proceeded to the lobby and was observed talking and laughing with Mr. Patel. On December 13, Mr. Peaden went with an Officer Jack Kliger to the Coachman's Inn. Upon arriving at the Inn, he again observed known prostitutes in the area. He specifically observed Phyllis Ford in the eastern most area of the Coachman's Inn and Murray Anne Hill walking down the street and into the parking lot of the western annex building of the Coachman's Inn. Both Phyllis Ford and Murray Anne Hill are known prostitutes. He observed Phyllis Ford walk out of Room 260 toward the lobby of the motel. Mr. Peaden then pulled into the parking lot in the area of Room 260. At that time Phyllis Ford was standing at the door of Room 260 and came to the passenger door of his car. She engaged him in conversation and then solicited sexual acts for pay. A price was agreed upon and Mr. Peaden asked her to get into the car to leave the area and she said no, "If you want it, you've got to come into my room." Mr. Peaden then left the area to set up a plan for arrest and upon returning to the Coachman's Inn observed Phyllis Ford in the window of Room 260. She came out of the room and saw Officer West and recognized him and then tried to go back into the room. She was then placed under arrest by Mr. Peaden. The prostitution on the premises of the Coachman's Inn was "wide open" and overt. As late as December 13, known prostitutes were still operating on the premises of the Coachman's Inn in an open and overt manner. The young ladies who were operating as prostitutes in and around the Coachman's Inn were generally dressed in a casual manner and the clothes they wore were not provocative. Room 214, Room 201 and Room 260 were rooms which were not visible from the office of the Coachman's Inn. As a part of the November 9 and 10 investigation by Mr. Peaden and the other officers, seven (7) persons were arrested. These people included Jacqueline Blount, Patricia Smith, L. T. Manuel, Brenda Sue Howard, Rosa Hawkins, Rosa Robinson, and Mr.. Patel, the owner. On November 24, 1952, Circuit Judge Joseph Q. Tarbuck entered an order of temporary injunction. That injunction provided in relevant part: The Court being advised that the parties have stipulated to entry of the below temporary injunction enjoining the defendant or agents from knowingly, intentionally or negligently allowing acts of prostitution, assignation, lewdness and violance on the premises of the Coachman's Inn, 1801 Nest Cervantes Street, Pensacola. Escambia County, Florida. It is therefore, ordered that the defendant and his agents are hereby temporarily enjoined from maintaining a nuisance on the premises of said Coachman's Inn and, further, that the defendant and his agents shall refrain from allowing acts of prostitution, assignation, lewdness or violance on said premises either knowingly, intentionally or negligently, either through lack of ability or diligent effort. Following the entry of the temporary injunction, Mr. Patel and his wife claimed that they began a policy of not allowing prostitutes to register in the motel and on four (4) or five (5) occasions, called the police and complained. On at least one (1) occasion, which was witnessed by Mr. Thomas Pelt, Mr. Patel went out into the parking lot and asked a known prostitute to leave the premises. There was no other evidence presented as to steps taken by Mr. Patel in eliminating the prostitution problem following the entry of the temporary injunction on November 24. Known prostitutes continued to operate on the premises of the Coachman's Inn after November 24, 1982. The Respondent, Mr. Arvin Patel, has a substantial investment in the Coachman's Inn and will offer severe financial losses if he is unable to continue operating the motel. Mr. Patel testified that it was his plan to make some additional improvements and attempt to sell the motel by June 1, 1983, if he were allowed to reopen. The Previous owner would be adversely impacted by Mr. Patel's inability to make the four thousand dollar ($4,000.00) per month mortgage payment to the previous owner. During 1982, MT. Paul Silivos, owner of Skopelo's Restaurant had complaints from customers regarding the prostitution at the Coachman's Inn. He observed no visible prostitution when the Coachman's Inn was owned by Mr. Felt, but described the prostitution at the Coachman's Inn during 1982, as "wide open twenty-four (24) hours a day." All of the witnesses who testified for the Petitioner, described the prostitution at the Coachman's Inn as wide open and overt. This was not denied by Mr. Patel nor did he disagree with the descriptions of these witnesses. The Respondent, Arvin Patel, was aware prior to November, 1982, that Helen Merriweather was operating as a prostitute in and about the premises of the Coachman's Inn. In approximately April, 1982, Mr. Patel claimed that he had stopped renting a room to her. Mr. Patel was aware that Rosa Robinson, Murray Anne Hill, Chris Cambria, and L. T. Manuel a/k/a Tonya Tripp were prostitutes operating on and around the premises of the Coachman's Inn. This was revealed by Mr. Patel's claim that he had attempted to stop renting to these individuals at varying times during 1982 because of their prostitution activities. On December 18, 1982, Chris Cambria was observed by Officer Barton. Chris Cambria was picked up by a white male in a pickup truck and they then drove to Room 240 of the Coachman's Inn. At the time Mr. Patel was in the parking lot of the Coachman's Inn and had a clear, unobstructed view of Room 240.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That public lodging establishment license numbers 27-01382H and 27-01381H be suspended for a period of sixty (60) days. IT IS FURTHER RECOMMENDED: That the suspension be lifted prior to the end of the sixty-day Period, upon the Division of Hotels and restaurants being assured that adequate and reasonable steps have. been taken to prevent the use of the premises of the Coachman's Inn for the purpose of prostitution, DONE and ENTERED this 19th day of January, 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 19th day of January, 1983. COPIES FURNISHED: Harold F.X. Purnell, Esquire General Counsel January, Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 William J. Green, Esquire GREEN, DEES and FRANCE 418 North Palafox Street Post Office Box 12602 Pensacola, Florida 32574 Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Sherman S. Winn, Director Division of Hotels and Restaurants Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATION DIVISION OF HOTELS AND RESTAURANTS STATE OF FLORIDA, DEPARTMENT OF BUSINESS REGULATION, DIVISION OF HOTELS AND RESTAURANT, Petitioner, vs. CASE NO. 82-3467 H & R NOS. 27-01381H ARVIN JARAM and JAIRAM ISHWARLEL 27-01382H d/b/a COACHMAN'S INN and COACHMAN'S INN ANNEX, Respondent. /
The Issue The parties entered into a stipulation which was read into the record and acknowledged by both parties. This stipulation and the testimony presented resolved the factual issues. The primary issue is the legal issue, whether a sign owned by a business, related to services furnished by the business, and not more than 100 feet from the business is exempted from the provisions of Section 479.11(6), Florida Statutes.
Findings Of Fact The State of Florida owns the right-of-way in question. The State obtained tie right-of-way when the property was outside tie city limits of any incorporated area and before construction of the East Gate Motor Inn. The property of East Gate Motor Inn, together with the signs and lamp posts in question, are now and were at the time of the Notice of Violation within the city limits of Kissimmee. Federal regulations require the State of Florida to obtain a wider right-of-way in connection with federal-aid primary highways in unincorporated areas. East Gate Motor Inn owns the sign and two posts with lights in question. The structures are located within the right-of-way of State Road 500 (US Highway 192), which is a federal-aid primary highway. The structures involved are used solely in connection with the merchandise, services and entertainment furnished by the East Gate Motor Inn and are not more than 100 feet from the parking area routinely used in its business. The parties stipulated to the introduction into evidence of Exhibits 1 through 5.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends to the agency head that a final order be entered directing that the signs in question be removed from the State's right-of-way. DONE and ORDERED this 10th day of October, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 John L. O'Donnell, Jr., Esquire Suite 1475, Hartford Building 200 East Robinson Street Orlando, Florida 32801
The Issue Whether Petitioner is entitled to a refund for sales taxes paid by Petitioner to Respondent on valet parking transactions for the period May 1, 1997 through April 30, 2002.
Findings Of Fact The Department is the agency of the State of Florida charged with implementing the state tax statutes. The Sheraton operates a full service hotel, the Sheraton Bal Harbour, located at 9701 Collins Avenue, Bal Harbour, Florida. The Sheraton is licensed as a hotel under the provisions of Chapter 509, Florida Statutes (2004). The Sheraton’s principal business is providing lodging, food, and other services to the guests of its hotel. The Sheraton provides valet parking to its hotel guests and visitors. Upon arrival at the Sheraton, a guest or visitor arriving by motor vehicle provides his or her vehicle and the vehicle keys to the parking attendant. The parking staff provides the guest or visitor with a valet parking ticket. The parking attendant collects the valet parking fee upon departure or charges it to the guest room. The Sheraton’s parking is located in a building on the Sheraton’s grounds that is secure. No hotel guests, visitors, or members of the general public are allowed in the parking building. No guest or visitor to the Sheraton can park his or her vehicle on the Sheraton’s grounds without using the valet parking. There are no self-parking spaces on the Sheraton’s grounds. No member of the valet parking staff and no member of the hotel staff is authorized to use a guest’s or visitor’s vehicle for any activity other than to park and return the vehicle to the guest or visitor at his or her request. There is no time when the vehicle would not be delivered to the guest or visitor upon request. The Sheraton’s guest or visitor may request his or her automobile at any time and it is delivered.1 The Sheraton’s guest may go in and out and request the vehicle several times a day or night without a separate charge. (This may not apply to a visitor to the Sheraton.) There are not very many public overnight parking spots near the Sheraton. The Bal Harbour Shops2 are located across the street from the Sheraton. The Bal Harbour Shops has its own paid self- parking and valet parking services available. The Sheraton, on a regular basis, utilizes the Bal Harbour Shops’ parking spaces for its valet parking when there is overflow from the parking available on its premises. The Sheraton pays a per space charge to the Bal Harbour Shops for these parking spaces, and sales tax is included in this charge. The Sheraton’s fee for valet parking services is a flat fee and does not identify a separate charge for valet services, for a parking space, or for sales tax. The Sheraton advises its guests and visitors that it is not responsible for damages to the vehicle parked by the valet parking except through its staff’s negligence. The Sheraton does pay on a regular basis for fixing cars that are damaged while in its possession. The Sheraton’s valet parking ticket and signs posted at its entrance contain terms and conditions for the valet parking, which include the following: Vehicle is accepted for parking only. We (Sheraton) assume no liability for fire, theft, vandalism, flood, or damage in any case except through our own negligence. We are not bailees and are not responsible for loss or damage of any article left in vehicle including but not limited to radar detectors, cellular phones, money, etc. The owner of the vehicle acknowledges that he is in constructive possession and control thereof at all times. [3] No notification was made by the Sheraton to its guests or visitors regarding any sales tax on valet parking during the period at issue in this proceeding. Through internal accounting records, the Sheraton allocated a portion of the parking fees collected to sales tax and remitted that amount to the Department. Sales tax was not stated on any invoice nor did the Sheraton’s valet parking signs posted at the hotel’s entrance mention sales tax. During the period from May 1, 1997 through April 30, 2002, the valet parking charges ranged from $12.00 to $18.00 per day for overnight valet parking. On a monthly basis, during the refund period from May 1, 1997 through April 30, 2002, the Sheraton paid to the Department sales taxes on valet parking in the total amount of $329,497.20. On or about July 9, 2002,4 the Sheraton applied to the Department for a refund in the amount of $329,497.20 for the sales taxes it paid during the refund period. On June 11, 2003, the Department denied the refund request. On August 4, 2003, the Sheraton filed a protest with the Department. On April 27, 2004, the Department issued a Notice of Decision sustaining the denial of the refund. The Sheraton thereafter timely filed the Petition for Administrative Hearing which initiated this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order denying the subject application for a refund. DONE AND ENTERED this 4th day of October, 2004, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 4th day of October, 2004.
Findings Of Fact Lawrence Morehouse is employed as a full time faculty member by the University of South Florida (USF). At all times material to this case, parking of vehicles on the campus is regulated by USF authorities. USF parking regulations are enforced by personnel of the USF Division of Parking Services from 8:00 a.m. to 8:30 p.m. on Monday through Thursday, and from 8:00 a.m. to 5:00 p.m. on Friday. At all other times, USF parking regulations are enforced by campus police. A campus parking regulation violation is documented by a handheld electronic ticketing device which records the information and prints a notice of the violation. The printed notice is left at the vehicle for the driver to discover. A driver who believes a citation to be unfair may immediately bring the ticket to the counter clerk at the offices of the USF Division of Parking Services. The clerk is authorized to waive the fine if the individual circumstances of the case warrant waiver. The clerk records the waiver in the Division of Parking Services database. A written notice of the waiver is provided by the clerk upon the driver's request. In addition to appeal via the counter clerk, an aggrieved driver may also meet with a University Parking Appeals Mediator to discuss the matter. The driver may also file a written appeal of the ticket. If a driver remains unsatisfied after the matter is adjudicated by the mediator or by the committee which reviews written appeals, the driver may appeal the ticket to the USF Final Appeals Committee. The committee is made up of students, faculty and staff. A late fee of $13 is added to each fine imposed if the ticket remains unpaid more than ten days after adjudication is final. On June 14, 1993, Mr. Morehouse received a ticket for parking facing the direction of the traffic, a violation of campus parking restrictions. The fine for this violation is $10. Mr. Morehouse asserts that he immediately spoke to the counter clerk about the June 14 ticket and the fine was waived. There is no documentation to support his assertion. The testimony is not persuasive. On June 20, 1993, October 6, 1993, December 8, 1993, June 2, 1994 and June 7, 1994, notices of violation were provided to Mr. Morehouse for parking without a current university tag on his car. Mr. Morehouse testified that on one of these occasions, he filed a written notice of appeal. Although a hearing was convened, Mr. Morehouse did not attend the hearing because of a scheduling conflict. He did not inform appeals committee members of the conflict or advised them that he would not attend the hearing. There is no evidence that Mr. Morehouse made any attempt to appeal the four other tickets he received for parking without a current USF tag. The six tickets remain unpaid. An additional $13 late fee has been imposed on each ticket. Delinquency notices on all the tickets were sent to Mr. Morehouse. He made no apparent effort to respond to the notices. Toward the end of 1994, the matter was referred by USF Parking Services division to the USF Division of Finance and Accounting collections manager. The collections office issued monthly bills for the sum of the fines to Mr. Morehouse for approximately six months. There is no evidence that Mr. Morehouse responded to the billing. At the close of the six month billing period, a certified letter was sent to Mr. Morehouse, stating that the amount could be deducted from his paycheck and advising of his right to a hearing. Mr. Morehouse requested a hearing.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the University of South Florida enter a Final Order deducting the lump sum of $188 from the next salary warrant issued to Lawrence Morehouse. DONE and RECOMMENDED this 26th day of September, 1995 in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 26th day of September, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2718 To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order. Respondent The Respondent did not file a Proposed Recommended Order. COPIES FURNISHED: Betty Castor, President Office of the President University of South Florida 4202 East Fowler Avenue, ADM 241 Tampa, Florida 33620 Noreen Segrest, Esquire Acting General Counsel University of South Florida 4202 East Fowler Avenue, ADM 250 Tampa, Florida 33620 Debra A. King, Esquire University of South Florida 4202 East Fowler Avenue, ADM 250 Tampa, Florida 33620 Lawrence Morehouse 2610 Drumwood Place Valrico, Florida 33594
The Issue Whether Petitioner was unlawfully discriminated against by Respondent, based on his disability, in violation of chapter 760, Florida Statutes, the Florida Civil Rights Act ("FCRA"); and, if so, what is the appropriate remedy?
Findings Of Fact From October 2 through December 7, 2017, Petitioner was employed by the City as a PES in its Transportation and Mobility Department ("TAM"). Nature of the Parking Enforcement Specialist Job The role of a PES is to ensure that members of the public follow the City's parking ordinances and regulations. Job duties include patrolling an assigned area in a vehicle or on foot, inspecting for parking violations, issuing summonses and tickets to violators, and assisting the public by answering questions. A PES must be able to work independently with little or no supervisory assistance and deal courteously and fairly with the public. The PES position is governed by the Collective Bargaining Agreement ("CBA") between the City and the Teamsters' Union. Under the CBA, assignment of work shifts is based on seniority. A PES may be assigned to work night and weekend shifts. Before being assigned a shift to work alone, a newly- hired PES participates in two phases of training. Phase one consists of familiarization with equipment, systems, parking ordinances and regulations, and typically lasts four to six weeks. Phase two is focused on hands-on training and a trainee is given more opportunity to operate the vehicles and equipment. One of the purposes of phase two is to ensure that the trainee is able to appropriately handle problems and stressful situations that may arise on the job, such as dealing with irate members of the public while immobilizing a vehicle. Each phase of training is conducted by a fellow PES who is temporarily designated as a training officer under the CBA. A PES serving in the temporary designation of training officer is not considered a supervisor. The City issues each PES certain take-home equipment, including a public safety police radio, keys, flashlight, and identification card, for use while on the job. A PES takes these items home when not on the job and is at all times responsible for his or her City-issued equipment. To perform the job, a PES is also required to use a License Plate Reader ("LPR") and related systems. A LPR scans license plates and indicates when a car should be issued a citation or boot. A PES is expected to drive a City vehicle and view the screens of the machine that alert when the camera scans a vehicle with outstanding citations. When a LPR alerts a PES of a vehicle with outstanding citations, the PES must carefully pull over and turn on the caution lights to advise oncoming traffic of the stopped City vehicle. Once safely pulled over, the PES may then check whether the vehicle has outstanding citations and issue tickets. The City's Policies and Work Rules Prior to commencing employment at the City, each newly- hired employee is provided with copies of the City's written policies. The City has a Policy Concerning Persons with a Disability and Procedures for Accommodation ("ADA Policy"). It prohibits discrimination against a qualified individual because of his or her disability and states that the City will provide reasonable accommodation when necessary. It also explains the procedures for requesting accommodation and that a request may be made by contacting the City's Office of Professional Standards ("OPS"). OPS handles requests for workplace accommodation and determines whether an accommodation will be provided. On September 27, 2017, Petitioner was given a copy of the City's ADA Policy and executed a form acknowledging receipt of same. At no time during his employment did Petitioner indicate that he was a qualified individual with a disability or that he needed an accommodation for a disability or handicap from the City. In fact, at final hearing, Petitioner admitted he did not believe he had a handicap or needed an accommodation to perform his role as a PES. The City has General Employees' Work Rules ("General Work Rules"), which define Major Rule violations. Leaving the City premises during work hours without a supervisor's permission is listed as a Major Rule violation for which any employee can be discharged immediately without warning. All newly-hired employees at the City receive training on the City's General Work Rules. Each Department is required to post the City's General Work Rules in work areas. TAM posts the City's General Work Rules document in the main security office, which is where PESs check out their parking enforcement equipment and pick up the keys to their vehicles. On September 27, 2017, Petitioner was given a copy of the City's General Work Rules and executed a form acknowledging its receipt. Petitioner's Employment with PES Effective October 2, 2017, Petitioner commenced employment at the City as a probationary PES. Parking Enforcement Supervisor Bryan Greene ("Mr. Greene") was involved in the process of interviewing and hiring Petitioner for the PES position. When Mr. Greene initially contacted Petitioner to set up an interview, he asked if Petitioner would need any accommodation. Petitioner stated that he did not need any accommodation. Petitioner never told Mr. Greene that he had a disability or needed an accommodation to perform the job. Mr. Greene was not aware that Petitioner self-identified as a disabled veteran on his job application with the City. For phase one of training, Petitioner was assigned to train on the day shift. For phase two, Petitioner was assigned to train on the night-shift with fellow PES and training officer, Stephanie Sanchez ("Ms. Sanchez"). Petitioner began his night-shift training with Ms. Sanchez in November 2017. Acting Parking Shift Coordinator Jose Vazquez ("Mr. Vazquez") was the immediate supervisor of Petitioner and Ms. Sanchez. Mr. Vazquez's immediate supervisor was Mr. Greene. In the day-to-day performance of his job, Petitioner could communicate with Mr. Vazquez by phone or e-mail. Petitioner never told Mr. Vazquez or his coworker trainers that he had a disability or needed any accommodation. From time to time, Mr. Vazquez would check in with Petitioner on his progress as a regular part of the training process. Petitioner never reported any problems with Ms. Sanchez to Mr. Vazquez or Mr. Greene. On December 6, 2017, Mr. Vazquez sent Petitioner a series of routine e-mails regarding the status of various equipment and training. In one of his e-mails, Mr. Vazquez asked Petitioner if he felt comfortable with enforcement operations and procedures and to let him know if there was anything he was uncertain about. Petitioner sent a response stating, in relevant part, "Thanks Jose, I am comfortable with enforcement. Would like a little more training with the LPR and the different computer programs used in the field." Petitioner did not request to review anything else as part of training. Events Leading to Petitioner's Termination On December 7, 2017, at 12:30 p.m., Mr. Vazquez forwarded Petitioner's e-mail to Ms. Sanchez in reference to training. He instructed her to go over the LPR process and how it works with Petitioner again and told her to "[l]et him drive and control everything so that he gets a feel of it" and "[h]ave him input manual tags too so that he is aware that the LPR will not read all tags." On December 7, 2017, at 5:00 p.m., Petitioner started his shift. Ms. Sanchez let Petitioner drive the City vehicle in the parking garage while she sat in the back. They stopped, parked behind another vehicle, and turned the caution lights on so that Ms. Sanchez could review the LPR process with Petitioner as he had requested. Ms. Sanchez encouraged Petitioner to review his notes on the LPR from the night before and asked him to replicate the process to check if a vehicle was eligible for immobilization. Petitioner became angry that rather than verbally reviewing the instructions over and over with him, Ms. Sanchez directed him to review his notes. Ms. Sanchez explained that she previously had repeated the verbal instruction and wanted to be sure that Petitioner could understand his own notes because he was nearing the end of his training and would soon be on his own with nothing to rely on but his notes. At that point, Petitioner burst out at Ms. Sanchez in a raised voice, "You're aggravating me, I can't stand working with you--you just want me to fail. I'm going home." Sanchez calmly explained that she was trying to help him and reiterated that they would have to go through the steps to learn the process. Petitioner did not listen. He immediately put the City vehicle into drive and sped off to the other side of the garage with Ms. Sanchez still in the vehicle. Petitioner then parked, got out of the vehicle, and went into the main security office with his belongings. Because of Petitioner's outburst and behavior, Ms. Sanchez did not feel that it was safe for her to approach him and waited in the vehicle. After approximately five minutes, Petitioner exited the main security office. He went towards the parking elevator and left. Petitioner left his City-issued take-home equipment, including police radio, keys to access the building, and identification, inside the main security office which was unsecured. Prior to leaving, Petitioner had only been at work for about one hour. Ms. Sanchez immediately contacted Mr. Vazquez. She notified him that Petitioner left work without permission and sent him an e-mail detailing the incident that occurred while training Petitioner on use of LPR systems. Mr. Vazquez advised Mr. Greene of the incident and forwarded him Ms. Sanchez's e-mail. At no time during his December 7, 2017, shift did Petitioner communicate to any supervisor that he was leaving work or not returning that night. Mr. Greene recommended through chain-of-command that Petitioner, as a probationary employee, be terminated from City employment. He felt that Petitioner would not be a good fit for the PES position because he left work without a supervisor's permission in violation of a Major Rule and left his City-issued take-home equipment unattended in an unsecured building. This raised serious safety concerns given the sensitive nature of the equipment, which included a police radio. Additionally, Petitioner's rude, disrespectful, and troubling behavior towards Ms. Sanchez raised concerns as to his ability to appropriately deal with coworkers and members of the public. The City determined that Petitioner voluntarily resigned when he left work without contacting a supervisor and left his City-issued take-home equipment unsecured in the security office. Accordingly, the City accepted Petitioner's voluntary resignation from employment, effective December 7, 2017. Petitioner's Argument Petitioner claims that he had no intention of resigning and that his separation from employment was a termination based upon his disability or handicap. Petitioner believes that his training by Ms. Sanchez should have conformed to his preference on how to learn (repeated verbal instructions without reference to notes or the guide book) and that he was justifiably upset with her. Petitioner explained that his interaction with Ms. Sanchez triggered intestinal distress, necessitating his need to go home and change clothing. He intended to return to work that night but claims he saw an e-mail from management that if Petitioner returned to work, he was to be told to go back home. Petitioner was not copied on that e-mail nor could he explain at final hearing how he saw that e-mail prior to the initiation of his administrative complaint. Petitioner's testimony on this point is not credible. Further, Petitioner admits he did not contact a supervisor prior to leaving his shift. Despite receiving and reviewing the General Work Rules, Petitioner irrationally assumed it was management's responsibility to reach out to him to find out what was going on, rather than him requesting time off. After going home, Petitioner made no effort that evening to contact a supervisor to explain why he left the job. Petitioner's suggestion, that leaving his work equipment was not an indication of quitting, is also not credible. Petitioner claims that he left the keys and equipment in what he believed was his own mailbox, assumed no one would touch it, and that the building was secure. Petitioner cross- examined the City witnesses at final hearing in detail about where his equipment was actually left (on a desk or in his mailbox) but, ultimately, he provided no rational explanation why he left everything in an unsecured building on December 7, 2017, when after every other shift, he previously took those things home. Petitioner did not identify any handicap or disability either while employed with the City or at final hearing. Nor did he request any accommodation that would have enabled him to perform the essential functions of the PES job.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the FCHR Petition 2018- 04710. DONE AND ENTERED this 13th day of May, 2019, in Tallahassee, Leon County, Florida. S MARY LI CREASY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of May, 2019.
Findings Of Fact The Bid The Department, through an Invitation to Bid (ITB), sought to secure a contract for the management of the Dade County Public Health Unit parking lot located at 1340 N.W. 14th Street, Miami, Florida. By April 1, 1986, the bid opening date, bids had been filed with the Department on behalf of Kinney, Floyd, and LaSalle Parking, Inc. (LaSalle). The Department's selection team reviewed the bids and recommended that the contract be awarded to Kinney. Consistent with the selection team's recommendation, by letter of April 2, 1986, the Department advised the unsuccessful bidders that the contract had been awarded to Kinney and advised them of their right to protest the award. Floyd filed a timely protest of the award and alleged, inter alia, that Mr. Shera, the Department's Business Manager, had outlined the criteria to be used in evaluating the bids as including a consideration of the bidder's ability to: Provide parking services to . . . employees and clients for the lowest monthly rate. 3/ Upon receipt of Floyd's protest, the Department reevaluated the bids and the ITB specifications, and concluded that the ITB specifications contained an ambiguity which had resulted in a lack of uniform bid response. Therefore, the Department rejected all bids and rebid the contract. 4/ Pertinent to this case the bid specifications provided. SPACES AVAILABLE: 13 Uncovered Reserved, present rate $10.50/ month. 22 Covered Reserved, present rate $10.50/ month. 115 Reserved for Health Department Employees, present rate $7.35/month. 3 Handicapped 45 Daily rental 45 Daily rental 198 TOTAL CURRENT RATE: Reserved Parking $10.50/month. Health Department Employees $7.35/month Health Department Clients 50 percent discount on daily rates. Daily rates: 1st hour $1.00 Additional 1/2 hour $.50 All day $2.50 3:00 P.M. 7:00 P.M. $1.50. MANAGERIAL RESPONSIBILITIES: 3. That in consideration for such services, the OWNER will allow the MANAGER the exclusive right to charge, collect the established fees for all those wishing to have their cars parked upon the parking premises. All fees must be approved by the owner. And, the mandated Bid Sheet required a response to three proposals: PROPOSAL FOR OPERATING THE LOT: PROPOSED RATES: PROPOSED NET INCOME DISTRIBUTION: Kinney's response to the ITB proposed to retain the current rates and offered a net income distribution of 25% to Kinney and 75% to the Department. Floyd's response to the ITB proposed rates of: RESERVED PARKING : $9.35/MONTH HEALTH DEPARTMENT EMPLOYEES: $6.24/MONTH HEALTH DEPARTMENT CLIENTS : 50% DISCOUNT ON DAILY RATES DAILY RATES : 1ST HOUR $1.00 EACH ADDITIONAL 1/2 HR. $.50 : MAXIMUM ALL DAY $2.50 : 3PM - 7PM $1.50 and a net income distribution of 30% to Floyd and 70% to the Department. While it was the Department's intent to maintain the current rates and to evaluate the bids primarily on a net income distribution basis, the bid specifications were ambiguous and subject to an interpretation which would permit a bid based on different parking rates, as well as a variable distribution basis. Accordingly, because of the ambiguity in the bid specifications, all bids submitted in response to the initial letting should be rejected. The Rebid On rebid, the Department amended its bid specifications to clarify its intent that the current rates would remain in effect, and delineated the "determining factors for bid award. Specifically, the rebid specifications provided: SPACES AVAILABLE: 13 Uncovered Reserved, present rate $10.50/ month. 22 Covered Reserved, present rate $10.50/ month. 115 Reserved for Health Department Employees, present rate $7.35/ month. 3 Handicapped. 45 Daily rental CURRENT RATES: Reserved Parking $10.50/month Health Department Employees $7.35/month Health Department Clients 50% discount on daily rates. Daily rates: 1st hour $1.00 Additional 1/2 hour $.50. All day $2.50 3:00 P.M. - 7:00 P.M. $1.50 The rates will remain the same. The owner will have full jurisdiction in raising or lowering said rate any time during the contract period. * * * Determining Factors for Bid Award: Unarmed parking attendant (outline measures to be taken to secure vehicles in lot). Experience (outline number of years in parking business as parking lot management firm.) Proposed net income distribution (percent split). Provide bilingual parking attendant (Spanish and English, French desirable but not mandatory). By May 14, 1986, the rebid opening date, Kinney, Floyd and LaSalle were the only bidders to respond to the ITB. The Department's selection team reviewed the bids and again recommended that the contract be awarded to Kinney. Accordingly, by letter of June 6, 1986, the Department advised the unsuccessful bidders of its decision to award the contract to Kinney and of their right to protest the award. Floyd filed a timely notice of protest and formal written protest of the proposed award. Floyd's formal protest, filed June 6, 1986, asserted that: Floyd & Associates Protection Corp. submitted the lowest responsive, responsible bid, and should be awarded this contract - Bid No. DCPHU 4/86. We protest the recommendation of the Parking Lot Management Bid Selection Team that Kinney Systems, Inc. be awarded this contract. The bidding process is supposed to protect small companies from the powers of a large company. At all times, the purchasing officers should operate with integrity and fairness to all suppliers. Floyd & Associates has a proven track record and should not be looked upon as inferior because we haven't been in business as long as Kinney. However, if you judge us on an equal and unbiased basis, Floyd should be awarded this contract. We have enclosed exhibit A as a true comparison as to the merits of both companies. 5/ Floyd & Associates should be awarded this contract; we deserve a piece of the American Dream. The Reevaluation Floyd's charge of racial discrimination, planted by Floyd's first protest and tacitly reasserted by it's second protest, was not lost on the Department. Notwithstanding the unsubstantiated nature of Floyd's charge, the Department, without notice to Kinney, purportedly reevaluated the bids. By letter of July 2, 1986, the Department advised Kinney, without explanation, that based on the "selection team's" recommendation the contract had been awarded to Floyd. 6. Kinney filed a timely notice and formal protest of the Department's action. The Department contends that Section 120.53(5)(d), Florida Statutes, authorized its reevaluation of the bid to amicably resolve the protest. The Department's reliance on section 120.53(5)(d), as permitting its unilateral decision to vitiate its prior award of the contract to Kinney, is misplaced. Section 120.53(5), Florida Statutes, establishes a statutory framework for resolution of protests arising from the contract bidding process. Pertinent to this case, section 120.53(5) provides: Upon receipt of a notice of protest which has been timely filed, the agency shall stop the bid solicitation process or the contract award process until the subject of the protest is resolved by final agency action, unless the agency head sets forth in writing particular facts and circumstances which require the continuance of the bid solicitation process or the contract award process without delay in order to avoid an immediate and serious danger to the public health, safety and welfare. The agency, on its own initiative or upon the request of a protestor, shall provide an opportunity to resolve the protest by mutual agreement between the parties within 7 days, excluding Saturdays, Sundays, and legal holidays, of receipt of a formal written protest. If the subject of a protest is not resolved by mutual agreement within 7 days, excluding Saturdays, Sundays and legal holidays, of receipt of the formal written protest and if there is no disputed issue of material fact, an informal proceeding shall be conducted pursuant to s.120.57(2) and applicable agency rules before a person whose qualifications have been prescribed by rules of the agency. If the subject of a protest is not resolved by mutual agreement within 7 days, excluding Saturdays, Sundays, and legal holidays, of receipt of the formal written protest and if there is a disputed issue of material fact, the agency shall refer the protest to the division for proceedings under s. 120.57(1). Under the provisions of section 120.53(5)(c), the Department was bound, absent circumstances not present here, to stop the bid solicitation process pending resolution of Floyd's protest by final agency action. Under the framework of 120.53(5)(d), final agency action could only occur through mutual agreement of the parties; an informal proceeding pursuant to Section 120.57(2) Florida Statutes, or a formal proceeding pursuant to Section 120.57(1), Florida Statutes. See: Cianbro Corp. v. Jacksonville Transportation Authority, 473 So.2d 209 (Fla. 1st DCA 1985). The provisions of section 120.53(5)(d), which provide an opportunity to resolve a protest by "mutual agreement between the parties," is not an invitation to the Department to unilaterally reevaluate its decision. Such resolution can only occur "between the parties"; which must include, at a minimum, the successful bidder, the protestant, and the Department. Since Kinney did not participate or concur in the Department's action, and there existed disputed issues of material fact, Floyd's protest could only be resolved by a formal 120.57(1) proceeding. Accordingly, the Department's subsequent decision to award the contract to Floyd was improper. 7/ The Bidders Kinney, which has operated the subject parking lot under contract with the Department for the past 6 years, is one of the world's largest parking companies, with over 50 years of experience in parking lot operations. Kinney presently parks approximately 20,000,000 automobiles annually in facilities it owns, leases or operates under contract. These facilities range in size from fewer than 50 spaces to those with thousands of spaces. Currently, Kinney operates 20 lots in south Florida, which contain 16-17,000 spaces and generate in excess of $20,000,000 in annual receipts. The proof establishes that Kinney has the requisite experience to operate the subject facility, properly supervise its operations, and accurately account for the proceeds generated by the parking operation. Kinney's rebid proposed to operate the subject parking facility predicated on a net income distribution of 25% to Kinney and 75% to the Department. The protestant, Floyd, was established in August 1982 and, until approximately November 1985, had been exclusively involved in providing security services. In November 1985, Floyd received a contract from the Immigration and Naturalization Service (INS) to manage its parking garage in Miami, Florida; which accounts for Floyd's total experience in parking lot management. Under Floyd's agreement with INS, it still operates as basically an unarmed security service. Since the majority of patrons utilizing the INS garage are clients of INS, no fees are collected. In the unusual event that the patron's ticket is not validated by INS and a fee is due, Floyd's simply collects the money and immediately gives it to an INS official. Floyd offered no evidence that it has any experience operating an in-and-out lot similar to the subject parking lot, or that it has any established or proposed methods of management, supervision and accounting controls necessary to service the Department's parking lot. Floyd proposed, however, to operate the subject parking lot based on a net income distribution of 20 percent to Kinney and 80 percent to the Department. 8/ The Department's selection team evaluated the responses of Kinney and Floyd, and recommended that the contract rebid be awarded to Kinney even though the net income differential proposed by Floyd would facially generate more income for the Department. The selection team's recommendation was premised on its conclusion that given the experience of Kinney, juxtaposed with the inexperience of Floyd, it could expect a greater return from Kinney even with the lower net income differential. Of the 198 spaces in the Department's parking lot, only 45 are reserved for daily rental. The balance of the spaces are reserved on a fixed monthly rate for Department and other employees. Accordingly, the ability to maximize revenue in the lot is directly dependent upon the operator's supervision and control of the 45 daily spaces. Kinney has demonstrated its ability to insure that those spaces remain open for their intended purpose, to collect and accurately account for all funds collected, and to maximize revenues. Floyd on the other hand has no such experience and offered no evidence that it had any inkling of what was required to operate such a parking lot or any plans to acquire such expertise. The selection team's recommendation was therefore reasonable, and the Department's decision to award the contract to Kinney was premised on an honest exercise of its discretion. At hearing, Floyd chose not to participate and, accordingly, offered no evidence discrediting the Department's award to Kinney or supporting its entitlement. The Department did offer evidence, however, to support its decision to "re-award" the contract to Floyd and thereby vitiate its initial decision. The thrust of the Department's evidence was two fold: a claim of mismanagement by Kinney of the subject parking lot and a claim that the selection team incorrectly assumed Floyd was not properly licensed. The Department's assertions lack substance and conviction. The Department's claims of mismanagement are founded on losses occasioned in the operation of the parking lot from June through November 1985, the theft of a car from the parking lot, and alleged damages to four cars caused by the mechanical arm which controls ingress to the lot. The losses in revenue were not, however, the fault of Kinney. These losses resulted from Kinney's inability to use the 45 daily spaces because the Department had issued over 250 gate cards for its employees. Despite Kinney's protests, it was not until December 1985 that the Department cooperated in solving this problem by limiting the number of gate cards, and the severe over crowding in the lot was eliminated. The only other factor bearing on lost revenue was some theft by a Kinney gate guard; however, Kinney, consistent with its routine practice, used "shoppers" to police the integrity of its employee, and the employee was caught and discharged. Rather than reflect unfavorably on Kinney, its discovery of the theft is evidenced of its good supervision. The Department's remaining claims of mismanagement are equally without merit. The one car stolen from the lot during Kinney's tenure was that of a Department employee who had left her keys in the car. The damage, if any (none was shown), to four cars by the mechanical arm, was occasioned by one car following another car too closely into the lot. The mechanical arm was not shown to function improperly. The foregoing facts, together with the assurances of Mr. Shera, the Department's local manager, that Kinney and the Department have enjoyed a very favorable working relationship over the past six years, renders the Department's assertions of mismanagement not credible. The Department's final basis to vitiate its award to Kinney is predicated on its assertion that its selection team incorrectly concluded that Floyd did not hold an occupational license to operate a parking lot. Again, the Department's assertion is not credible. The proof is that Floyd's licensure was not the motivating factor in the selection team's award of the contract to Kinney. The team's decision was premised on Kinney's superior qualifications and perceived ability to generate more revenue for the Department, compared with the team's well founded concerns of Floyd's ability to perform. As importantly, Kinney advised Mr. Shera by letter of May 15, 1986, of its protest to Floyd's qualifications because of Floyd's purported failure to have an occupational license at the time of bid submittal. Mr. Shera, on behalf of the Department, awarded the contract to Kinney by letter of June 5, 1986, and did not disqualify Floyd. Accordingly, the evidence supports the conclusion that the Department did not incorrectly exclude Floyd because of any licensure requirement. The totality of the evidence, including the demeanor of the witnesses, compels the conclusion that the Department's decision to support Floyd's bid was occasioned by its desire to avoid any appearance of discrimination, as opposed to a fair exercise of its discretion. Such conduct is arbitrary and capricious. Accordingly, the evidence supports the award of the subject contract to Kinney.
Findings Of Fact Petitioner, Aaron Attias ("Attias"), worked for the town of Bay Harbor, Florida, from June, 1977 to April, 1992, as a tollman in Bay Harbor Island. Pursuant to a rule of the town of Bay Harbor, Attias was required to collect a thirty-five cent toll per automobile. Uniformed police officers in marked police cars were exempt from the toll; however, police officers not in uniform and in unmarked cars were charged the toll. In April, 1992, a woman pulled up to Attias' toll booth and told him she had just been robbed and she had no money to pay the toll. Attias paid her toll, told her to pull over to the side of the road, and called the Bay Harbor Police. Allen Block, a police officer, for Bay Harbor, was dispatched to the toll facility to investigate the robbery. He learned that the crime occurred in North Miami and, thus, should be investigated by the North Miami Police. A uniformed, female police officer in a marked police car pulled up to the toll booth. The officer was not a Bay Harbor police officer. Attias allowed her to pass without paying the toll because she was in uniform and in a marked car. Approximately twenty minutes later, a motorist in an unmarked car pulled up to the toll booth and identified himself as a police officer. Attias charged him the thirty-five cent toll. The officer paid the toll; however, based on the motorist's demeanor, Attias felt that he didn't like having to pay the toll. Attias gave the officer a receipt. Later, Officer Block and Sergeant Bateman came to the toll facility and spoke with Attias' supervisor and advised him they were there to arrest Attias. Attias' supervisor advised him the police wanted to see him. Attias put his money box in the vault and met the police officers in the hallway leading to the main toll facility. There is conflicting testimony concerning what happened after Officer Block and Sergeant Bateman met with Attias. According to Officer Block, Attias refused to speak to the police, grabbed Sergeant Bateman and pushed him with both hands against the wall. Officer Block and Sergeant Bateman informed him he was under arrest for obstruction of justice. This charge was because Attias had charged the North Miami police officer the thirty-five cent toll. According to Attias, he asked the policemen what they wanted, they began to crowd him, and his shoulder touched Sergeant Bateman. Attias testified that he did not push Sergeant Bateman. Having judged the demeanor and the credibility of the witnesses, I find that Attias did push Sergeant Bateman with both hands, knocking him against the wall. The pushing was not done in self-defense or in defense of another. On August 12, 1993, Attias applied for a Class "D" Security Officer license with the Department of State (Department). By letter dated November 24, 1993, the Department denied his application, citing as grounds Section 493.6118(1)(j), Florida Statutes. Other than his arrest for the incident at issue, Attias has never been arrested.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Aaron Attias' application for a Class "D" Security Officer license. DONE AND ENTERED this 18th day of April, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 18th day of April, 1994. APPENDIX TO RECOMMENDED ORDER CASE NO. 93-7159S To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the Petitioner's proposed finding of fact: Petitioner's Proposed Finding of Fact. Petitioner's unnumbered finding of fact on page 2 of his proposed recommended order is rejected as not supported by the greater weight of the evidence. COPIES FURNISHED: Alan S. Fishman, Esquire Fishman & Goldstone Suite 202 2300 West Sample Road Pompano Beach, Florida 33073 Henri C. Cawthon, Esquire Division of Licensing The Capitol, MS-4 Tallahassee, Florida Honorable Jim Smith Secretary of State The Capitol 32399-0250 Tallahassee, Florida 32399-0250 Phyllis Slater General Counsel Department of State The Capitol, PL-02 Tallahassee, Florida 32399-0250
