Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that respondent, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order in this case denying the application of Petitioner, Lee County Liquors, Inc. for a quota alcoholic beverage license. RECOMMENDED this 9th day of August, 1985 in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 1985.
The Issue The issues to be determined in this proceeding are: (1) whether any of the following alleged agency statements as articulated by Petitioner, Florida Standardbred Breeders and Owners Association, Inc., are unadopted rules, and (2) if so, whether the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, relied on any of the unadopted rules as a basis for issuing the summer jai alai permit at issue in Case No. 18-6339 to PPI, Inc.2: 2 On January 16, 2019, Petitioner filed the Petition Challenging Agency Statement as an Unadopted Rule and Motion to Consolidate with Pending Case No. 18-6339 ("Rule Challenge Petition") that gave rise to this case. The Rule Challenge Petition was filed pursuant to sections 120.57(1)(e) and 120.56(4), and articulated ten statements that Petitioner alleges constitute unadopted rules on which the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, relied in issuing the summer jai permit to PPI, Inc. The Rule Challenge Petition had the effect of amending the Petition for Formal Administrative Hearing Involving Disputed Issues of Material Fact that was filed with the agency on November 16, 2018, and referred to DOAH on December 3, 2018, to add a charge that the agency had relied on one or more unadopted rules as the basis of its decision, in violation of section 120.57(1)(e)1. That notwithstanding the provisions of section 550.0745(1)[Florida Statutes], the Division will approve an application for a summer jai alai permit without regard to whether there is an eligible permitholder in an eligible county that has had the smallest play or total pool within one of the applicable counties, Miami-Dade or Broward, for two consecutive state fiscal years; That notwithstanding the provisions of section 550.0745(1), a summer jai alai permit was created in Broward County in association with the consecutive state fiscal years 2006/2007 and 2007/2008 notwithstanding that there was no eligible permitholder in Broward County that had the smallest play or total pool in Broward County for both of said consecutive fiscal years, 2006/2007 and 2007/2008; That notwithstanding the provisions of section 550.0745(1), the Division approved PPI's application for a summer jai alai permit without regard to the fact that there was no eligible permitholder in Broward County that had the smallest play or total pool in Broward County for both of the two consecutive state fiscal years identified in PPI's application, to-wit: 2006/2007 and 2007/2008; That notwithstanding the provisions of section 550.0745(1), a summer jai alai permit was created in Broward County in association with the consecutive state fiscal years 2004/2005 and 2005/2006, notwithstanding that there was no eligible permitholder in Broward County that had the smallest play or total pool for both of said consecutive state fiscal years, 2004/2005 and 2005/2006; That notwithstanding the provisions of section 550.0745(1), the Division approved PPI's application for a summer jai alai permit without regard to the fact that there was no eligible permitholder in Broward County that had the smallest play or total pool in Broward County for both of the two consecutive state fiscal years identified in the Division's calculation chart attached as Exhibit F [to the Rule Challenge Petition], to-wit: 2004/2005 and 2005/20063; That notwithstanding the provisions of section 550.0745(1), the Division, in making the calculations required by section 550.0745(1) for the purposes of determining the availability of a summer jai permit, improperly and erroneously excludes from such calculations the pari-mutuel handle generated by each of the pari-mutuel permitholders in Broward County on the following wagering pools/categories, to-wit: [i]ntertrack wagering handle as a guest; [i]ntertrack wagering as a host on "ITW rebroadcasts;" and "[s]imulcast handle as a guest;" That notwithstanding the provisions of section 550.0745(1), the Division approved PPI's application for a summer permit after improperly and erroneously excluding from the calculations required by section 550.0745 the pari-mutuel handle generated by each of the pari-mutuel permitholders in Broward County on the following wagering pools/categories, to-wit: [i]ntertrack wagering handle as a guest; [i]ntertrack wagering as a host on "ITW rebroadcasts;" and "[s]imulcast handle as a guest;" That notwithstanding the provisions of section 550.0745(1), the Division, in making the calculations required by section 550.0745(1) for the purposes of determining that the Bet Miami permit had the smallest pari- mutuel handle in Broward County for the consecutive fiscal years 2004/2005 and 2005/2006, improperly and erroneously excluded from such calculations all of the pari-mutuel handle generated by the Bet Miami permit during said consecutive state fiscal years, 2004/2005 and 2005/2006, and instead erroneously pro-rated the handle between the two leased locations at which the Bet Miami permit operated during said fiscal years; That notwithstanding the provisions of section 95.11 or any similar statute that imposes a statute of limitation on the taking or initiation 3 Rule Challenge Petition Exhibit F contains the same information as Exhibit B to the parties' Amended Joint Pre-hearing Stipulation, which has been incorporated in Finding of of any particular action, the Division will approve an application for a summer jai alai permit notwithstanding that the application was filed outside either the four-year period described in section 95.11 or outside the applicable limitation period if not section 95.11.
Findings Of Fact The Parties Respondent Division is the state agency charged under section 550.0251, with regulating and administering the pari-mutuel industry in Florida, pursuant to chapter 550 and the rules implementing that statute. The Division also regulates cardroom activities, pursuant to section 849.086, Florida Statutes, and slot machine gaming pursuant to section 551.104, Florida Statutes. The Division is authorized to issue summer jai alai permits pursuant to section 550.0745. The Division issued the summer jai alai permit that has been challenged in this proceeding. Petitioner FSBOA is the statewide trade association that represents the interests of the majority of the breeders, owners, trainers, and drivers of harness racing horses involved in the Florida standardbred horse industry. FSBOA has challenged the summer jai alai permit at issue in this proceeding. Intervenor PPI is the applicant for the permit at issue in Case No. 18- 6339. PPI's business address is 1800 Southwest 3rd Street, Pompano Beach, Florida. Facts Stipulated By The Parties The parties stipulated to the facts set forth in paragraphs 7 through 61 herein, proof of which was not required to be provided at the final hearing. For purposes of this Final Order, the undersigned has grouped the facts stipulated in the parties' Amended Joint Prehearing Stipulation, as supplemented by the parties' Addendum to the Joint Prehearing Stipulation and corrected by the parties' Joint Notice of Scrivener's Error, according to the specific topic that the specific stipulated fact addresses. Application And Issuance of Permit PPI owns Pompano Park, a pari-mutuel facility that has an associated cardroom and casino, located in Pompano Beach, Broward County, Florida. Pompano Park has hosted pari-mutuel activities since 1964. PPI, which does business as "Pompano Park Racing," is a pari-mutuel permitholder situated in Broward County. PPI is authorized by the Division to conduct pari-mutuel pools on exhibition sports in Broward County. PPI owns permit #430, which authorizes it to conduct standardbred horse harness racing. PPI also owns permit #535, which authorizes it to conduct quarter horse racing. On April 13, 2018, PPI filed an application with the Division, seeking issuance of a summer jai alai permit, pursuant to section 550.0745. PPI's application was accompanied by a cover letter stating that the application was for the "most-recently available" summer jai alai permit in Broward County. The letter stated that H&T Gaming, Inc. ("H&T"), had the smallest play or total pool in Broward County for state fiscal years 2006/2007 and 2007/2008. At all times material to this proceeding, PPI was a qualified applicant for the summer jai alai permit at issue in this proceeding. On or before October 26, 2018, the Division deemed PPI's application complete and in compliance with all statutory requirements and agency rules. As noted above, the Division issued the summer jai alai permit on October 26, 2018. Permit #141 - Background And Current Circumstances 831 Federal Highway Acquisition Holding, LLC ("831 Acquisition"), which does business as The Big Easy Casino, is the permitholder of permit #141, a greyhound racing permit situated in Miami-Dade County and authorized by the Division to conduct pari-mutuel pools on exhibition sports in Broward County. 831 Acquisition operates and conducts the pari-mutuel pools authorized to be conducted in Broward County under permit #141, at a leased facility in Broward County that is owned by a corporation affiliated with 831 Acquisition. By way of background, in 1996, Biscayne Kennel Club, Inc., d/b/a Biscayne Kennel Club, transferred permit #141 to two entities—Investment Corporation of South Florida Inc. ("Investment Corp."), a division of H&T, d/b/a as Hollywood Greyhound Track; and West Flagler Associates, Ltd., d/b/a Flagler Greyhound Track. Each entity owned 50 percent of permit #141. In 2001, Investment Corp. was merged into Hartman and Tyner, Inc. ("Hartman and Tyner"), with the latter as the surviving corporation. In state fiscal years 2004/2005 and 2005/2006, Hartman and Tyner and West Flagler, d/b/a Bet Miami Greyhounds ("Bet Miami") were the owners and operators of permit #141, a pari-mutuel permit authorized by the Division to conduct pari-mutuel pools in Broward County. In 2007, West Flagler Associates, d/b/a Flagler Dogs & Poker ("West Flagler"), transferred its 50-percent interest in permit #141 to Hartman and Tyner, d/b/a Mardi Gras Racetrack and Gaming Center. At that point, Hartman and Tyner owned a 100-percent interest in permit #141. In 2008, Hartman and Tyner transferred ownership of permit #141 to H&T, d/b/a Mardi Gras Gaming. H&T owned and operated permit #141 between 2008 and 2018. In 2018, H&T transferred ownership of permit #141 to 831 Acquisition, d/b/a Big Easy Casino. From approximately 1996 to 2008, permit #141 was situated in Miami- Dade County and was authorized by the Division to conduct pari-mutuel pools on exhibition sports in Miami-Dade County and in Broward County. From 2008 through present, permit #141 has been authorized by the Division to conduct pari-mutuel sports only in Broward County. Determination of Summer Jai Alai Permit Availability In Broward County At all times material to this proceeding, Miami-Dade County and Broward County each have had five or more pari-mutuel permits issued to conduct pari-mutuel wagering within that county. The Division reviewed PPI's application and correctly determined that PPI was a qualified applicant for issuance of a summer jai alai permit pursuant to all applicable Florida Statutes and rules. Upon determining that PPI was a qualified applicant for a summer jai alai permit, the Division next determined whether a summer jai alai permit was available in Broward County. In determining the availability of a summer jai alai permit in Broward County, the Division reviewed its records, including a chart containing calculations of the play and total pool of permitholders in Broward County for state fiscal years 2006/2007 and 2007/2008. The Division's calculations of play or total pool of permitholders in Broward County utilized live wagers, intertrack wagers,7 and simulcast export wagers. Based on these calculations, the Division concluded that Bet Miami had the smallest play or total pool for state fiscal years 2006/2007 and 2007/2008, and, therefore, a summer jai alai permit was available in Broward County. Based on the determinations that PPI was a qualified applicant and that a summer jai alai permit was available in Broward County for state fiscal years 2006/2007 and 2007/2008, the Division approved PPI's Application and issued the Permit to PPI. On December 9, 2018, counsel for FSBOA sent an email to the Division, advising that Bet Miami only operated in Miami-Dade County in state fiscal year 2006/2007. Upon reviewing its records, the Division determined that it had made an error regarding the locations at which Bet Miami had operated for the state fiscal years of 2006/2007 and 2007/2008. The chart of play or total pool in Broward County on which the Division relied in determining there was an available summer jai alai permit in Broward County contained play or total pool calculations incorrectly attributed to Bet Miami for state fiscal year 2006/2007. The Division revised the chart by removing the incorrectly-attributed play or total pool for state fiscal year 2006/2007, and then determined, based on the dates on and locations at which Bet Miami operated during state fiscal years 2004/2005 and 2005/2006 and the wagering types used in the Division's 7 FSBOA refers to the wagers counted toward play or total pool as "intertrack wagers as host." This is because the Division only counts intertrack wagers toward the pari-mutuel wagering pool of the track hosting the live event that is broadcast to a guest track. The Division does not agree with this terminology, but FSBOA and the Division stipulated that this type of wager was included in calculating the play or total pool of the host track only. calculation of play or total pool, that Bet Miami had the smallest play or total pool in Broward County for state fiscal years 2004/2005 and 2005/2006. The Division's chart reflecting play or total pool in Broward County for those years excludes pari-mutuel wagers made from or received by Bet Miami in Miami-Dade County for state fiscal years 2004/2005 and 2005/2006.8 On December 21, 2018, the Division provided a response to FSBOA's letter, acknowledging that it had erred in determining that Bet Miami had the smallest play or total pool for state fiscal years 2006/2007 and 2007/2008, but stating that upon review of its records, it was determined that Bet Miami had the smallest play or total pool for state fiscal years 2004/2005 and 2005/2006. In state fiscal year 2004/2005, Bet Miami operated from September 1, 2004, to October 16, 2004, in Miami-Dade County; from December 1, 2004, to December 31, 2004, in Broward County; and from May 1, 2005, to May 31, 2005, in Broward County. In state fiscal year 2005/2006, Bet Miami operated from September 1, 2005 to October 15, 2005, in Miami-Dade County; from December 1, 2005, to December 31, 2005, in Broward County; and from May 1, 2006 to May 31, 2006, in Broward County. In state fiscal year 2006/2007, Bet Miami operated for the full fiscal year in Miami-Dade County. When Bet Miami conducts live performances in Broward County, it leases a facility in Hollywood, Florida, where it conducts pari-mutuel pools on exhibition sports, pursuant to its authorization by the Division, under chapter 550, to conduct pari-mutuel pools in Broward County. Bet Miami did not apply to convert permit #141 to a summer jai alai permit following state fiscal years 2004/2005 and 2005/2006. 8 As discussed in greater detail below, FSBOA asserts that it is error to exclude wagers made at, or received by, Bet Miami in Miami-Dade County from the calculation of play or total pool for the Bet Miami permit (permit #141) in this case. Other than PPI, no other permitholders have been awarded a summer jai alai permit in Broward County for state fiscal years 2004/2005 and 2005/2006. Summer Jai Alai Permit Availability Before Repeal of Section 550.074 Pompano Park was the owner and operator of permit #535, a pari- mutuel permit authorized to conduct pari-mutuel pools in Broward County on quarter horse racing for state fiscal years 1990/1991 and 1991/1992. In state fiscal years 1990/1991 and 1991/1992, permit #535 had the smallest live wagering handle in Broward County. Following state fiscal years 1990/1991 and 1991/1992, Pompano Park did not apply to convert permit #535 to a summer jai alai permit for state fiscal years 1990/1991 and 1991/1992. If a summer jai alai permit was created due to permit #535 having the smallest play or total pool for state fiscal years 1990/1991 and 1991/1992, it was created in Broward County and was not claimed.9 Broward County had five pari-mutuel permitholders in state fiscal years 1986/1987 and 1987/1988. Pompano Park was the owner of permit #535, a pari-mutuel permit authorized to conduct pari-mutuel pools on quarter horse racing in Broward County for state fiscal years 1986/1987 and 1987/1988. In state fiscal years 1986/1987 and 1987/1988, permit #535 had the smallest live wagering handle in Broward County. Following state fiscal years 1986/1987 and 1987/1988, Pompano Park did not apply to convert permit #535 to a summer jai alai permit for state fiscal years 1986/1987 and 1987/1988. 9 The parties dispute whether any summer jai alai permit that may have been made available before the repeal of section 550.074 would still exist for purposes of being available to be claimed. If a summer jai alai permit was created due to permit #535 having the smallest play or total pool for state fiscal years 1986/1987 and 1987/1988, it was created in Broward County and was not claimed.10 Wager Types The Division Counts In Determining Play Or Total Pool The Division includes wagers placed at the facility of a guest- permitholder in calculating the host-permitholder's play or total pool. For purposes of this case, this type of wager is referred to as intertrack wagering as a host. The Division does not include wagers placed at the facility of a guest- permitholder toward the pool of a host-permitholder in calculating the guest- permitholder's play or total pool. For purposes of this case, this type of wager is referred to as intertrack wagering as a guest. The Division does not include wagers placed at the facility of an in- state guest-permitholder toward the pool of an out-of-state track's live event in calculating the in-state guest-permitholder's play or total pool in Broward County. For purposes of this case, this type of wager is referred to as simulcast import.11 The Division does not include wagers placed at the facility of an in- state guest-permitholder toward the pool of an out-of-state track's live event that is being rebroadcast from another in-state permitholder's track to the in- state guest permitholder's facility in calculating the in-state guest- permitholder's play or total pool in Broward County. For purposes of this case, this type of wager is referred to simulcast intertrack as a guest or simulcast rebroadcast as guest. The Division does not include wagers placed at the facility of an in- state guest-permitholder toward the pool of an out-of-state track's live event that is rebroadcast from another in-state host-permitholder's track to the in- 10 Refer to note 9, above. 11 This type of wager also is referred to as simulcast as guest. state guest permitholder's facility in calculating the in-state host permitholder's play or total pool in Broward County. For purposes of this case, this type of wager is referred to simulcast intertrack as host or simulcast rebroadcast as host. Stipulations Relating To FSBOA's Standing PPI could run a full schedule of harness racing performances and offer pari-mutuel wagering on summer jai alai performances to patrons, and FSBOA would not suffer injury. PPI has not submitted an application for renewal of its slot machine license indicating that PPI's summer jai alai permit is the permit to be associated with its slot machine license. PPI has not submitted an application for renewal of its cardroom license indicating that PPI's summer jai alai permit is the permit to be associated with its cardroom license. Stipulation To Wagering Handle Calculations The parties stipulate to the wagering handle calculations on the chart attached as Exhibit B to the Joint Pre-hearing Stipulation. This chart has been incorporated in Finding of Fact No. 149. Findings of Fact Based On Evidence Adduced At Final Hearing As set forth in the stipulated findings of fact and reiterated at the final hearing, the parties have stipulated that PPI is qualified to hold a pari- mutuel permit. Accordingly, the only issue in this proceeding is whether a summer jai alai permit was made under section 550.0745(1). At the time of the final hearing in these consolidated cases, Broward County and Miami-Dade County were the only two counties in Florida in which five or more pari-mutuel permits had been issued to permitholders within each county. Pompano Park Pari-Mutuel Operation And Summer Jai Alai Permit Application As stated above, Pompano Park is a pari-mutuel facility with an associated cardroom and casino, located on 220 acres of land in Pompano Beach, Broward County, Florida. As stated above, PPI owns and operates Pompano Park, and is authorized by the Division to conduct pari-mutuel pools on exhibition sports in Broward County. Pursuant to section 849.086(5)(a), PPI is required to conduct pari- mutuel wagering activities in order to hold a cardroom license and operate a cardroom at Pompano Park. The cardroom license must annually be renewed. § 849.086(5)(b), Fla. Stat. Pursuant to section 551.104(3), PPI is required to conduct pari-mutuel wagering activities in order to hold a slot machine license and conduct slot machine gaming at Pompano Park. The slot machine license must annually be renewed. § 551.105, Fla. Stat. As stated above, PPI owns permit #430, which authorizes it to conduct standardbred horse harness racing, and PPI also owns permit #535, which authorizes it to conduct quarter horse racing. PPI conducts harness racing at Pompano Park 126 days per year pursuant to permit #430 and its annual licenses issued by the Division pursuant to section 550.0115. PPI and FSBOA have entered into an agreement, currently in effect and set to expire on June 30, 2020, that establishes the mutually-agreed terms and conditions under which FSBOA's members engage in pari-mutuel harness racing at Pompano Park. Prior to expiration of the agreement, PPI and FSBOA will engage in negotiations regarding renewal of the agreement. As stated above, on April 13, 2018, PPI filed its application with the Division, seeking issuance of a summer jai alai permit. As stated above, on or before October 26, 2018, the Division deemed the application complete and in compliance with all pertinent statutory requirements and agency rules. The Division issued the summer jai alai permit to PPI on October 26, 2018. Thereafter, FSBOA informed the Division, and the Division agreed, that the permitholder on which the Division had based its determination regarding smallest play or total—Bet Miami, permit #141—did not conduct pari-mutuel pools in Broward County during state fiscal year 2006/2007, so did not have the smallest play or total pool in Broward County for consecutive state fiscal years 2006/2007 and 2007/2008. Accordingly, the Division determined that a new summer jai alai permit had not been made available under section 550.0745(1) for purposes of PPI applying for, and being issued, the summer jai alai permit. The Division corrected its calculations and, based on those corrected calculations, determined that the same permitholder in Broward County— Bet Miami, permit #141—had the smallest play or total pool in Broward County for state fiscal years 2004/2005 and 2005/2006. Bet Miami did not apply to convert its pari-mutuel permit to a summer jai alai permit in Broward County immediately following state fiscal years 2004/2005 and 2005/2006. Because PPI had applied for the "most recently available" summer jai alai permit in Broward County—which had been made available by Bet Miami not converting its pari-mutuel permit to a summer jai alai permit immediately following state fiscal years 2004/2005 and 2005/2006—the Division determined that PPI was entitled to issuance of the permit. Notably, the summer jai alai permit issued to PPI does not identify any specific two-consecutive-state-fiscal-year period on which its issuance is predicated. According to Pompano Park's vice president and general manager, Troy Buswell, PPI applied for a summer jai alai permit because it wanted to "explore all of [its] options at that point" regarding the type of pari-mutuel activity in which it would engage in order to continue operating its cardroom and slot machine gaming facility at Pompano Park. Buswell testified that none of the pari-mutuel activities, standing alone, actually make money for the permitholder, but acknowledged that the permitholder likely would lose less money by conducting summer jai alai, rather than horse racing, as its required pari-mutuel activity, because "it's a shorter meet . . . I don't have horses to deal with or large purses to deal with." PPI has entered into an agreement with the Cordish Group, a developer of multi-venue hospitality developments, to prepare a redevelopment plan for Pompano Park. According to Buswell, there are different versions of the redevelopment plan that include, and, alternatively, do not include a horse racing track. According to Buswell, "we're master planning the property, so nothing is off the table." The evidence establishes that subsequent to Buswell's testimony, David Cordish, president of the Cordish Group, presented the Pompano Park Masterplan Phase II redevelopment plan ("Redevelopment Plan") to the City Commission for the City of Pompano Beach at a public meeting. The Redevelopment Plan did not depict a horse race track as part of Pompano Park's redevelopment.12 No evidence was presented that, as of the final hearing, the City of Pompano Beach had approved the Redevelopment Plan or had granted any other approvals for the redevelopment of Pompano Park as depicted on the Redevelopment Plan. 12 Dein Spriggs, FSBOA's president, testified regarding a public meeting he attended on April 30, 2019—only six days after Buswell testified in this case—at which the Redevelopment Plan was presented to the City Commission for the City of Pompano Beach. Spriggs was not listed as a witness in FSBOA's case-in-chief; however, FSBOA presented Spriggs' testimony to impeach Buswell's testimony that "nothing [was] off the table" with respect to the inclusion of a horse race track in the Pompano Park redevelopment plans, and the testimony was admitted for that purpose. Furthermore, PPI deposed Spriggs on June 6, 2019, before he testified on June 12, 2019, so PPI was not unfairly surprised by his testimony. Buswell testified that PPI intends to conduct harness racing and summer jai alai in state fiscal years 2019/2020 and 2020/2021. Permit #141 Is Correctly Included In Determining Smallest Play or Total Pool In Broward County For State Fiscal Years 2004/2005 And 2005/2006 Permit #141 was issued to Biscayne Kennel Club, Inc., in Dade County, Florida, on August 11, 1931. As discussed above, in 1996, Biscayne Kennel Club transferred permit #141 to Investment Corp. and to West Flagler, which, at the time, was doing business as Flagler Greyhound Track. At that time, Investment Corp. and West Flagler each owned a 50-percent interest in permit #141. As discussed above, Investment Corp. subsequently was merged into Hartman and Tyner. By 2004, West Flagler had begun doing business as Bet Miami Greyhounds, also known as "Bet Miami." As stated above, from approximately 1996 to 2008, permit #141 was situated13 in Miami-Dade County, and was authorized by the Division to conduct pari-mutuel pools on exhibition sports in Miami-Dade County and in Broward County. As stated above, in state fiscal years 2004/2005 and 2005/2006, Hartman and Tyner and West Flagler, doing business as Bet Miami, were the owners and operators of permit #141.14 As stated above, during state fiscal years 2004/2005 and 2005/2006, Bet Miami, permit #141, was authorized by the Division to conduct pari- mutuel pools in Broward County. Specifically, in state fiscal years 2004/2005 and 2005/2006, Bet Miami conducted pari-mutuel pools on exhibition sports at a leased facility in 13 The term "situated" is not defined in statute or rule, and appears to be the vernacular that the parties have used in this proceeding to refer to the location of a pari-mutuel permit under section 550.054. 14 Consistent with the parties' use of terminology in this proceeding, this Final Order uses "permit #141" and "Bet Miami" interchangeably, as the context requires. Hollywood, Broward County, Florida, pursuant to its annual licenses issued by the Division pursuant to section 550.0115. This leased facility is expressly identified in the annual licenses issued for state fiscal years 2004/2005 and 2005/2006 as the location at which Bet Miami was authorized to conduct pari-mutuel pools on greyhound racing in Broward County. FSBOA contends that permit #141 is a "Miami-Dade County permit" that should not be considered a "Broward County permit" for purposes of comparison to other pari-mutuel permitholders conducting pari-mutuel pools in Broward County for purposes of determining smallest play or total pool in Broward County pursuant to section 550.0745(1). As grounds for this position, FSBOA asserts because permit #141, as issued in 1931, was located in then-Dade County and has not been modified to change that location, it is a "Miami-Dade County permit" rather than a "Broward County permit." FSBOA also asserts that Bet Miami cannot be considered a Broward County permit because it leases, rather than owns, a facility in Broward County, so that its location is not "fixed" in Broward County for purposes of being a permitholder in Broward County. The plain language of section 550.0745(1) only requires that a permitholder be "authorized by the [D]ivision to conduct pari-mutuel pools on exhibition sports" in that county to be eligible to convert to summer jai alai if it has the smallest play or total pool in that county for two consecutive state fiscal years. Such authorization to conduct pari-mutuel pools in the particular county is conferred by the annual license issued pursuant to section 550.0115. For purposes of conducting pari-mutuel pools under section 550.0745(1), the statute does not require the permitholder's pari-mutuel permit to be "fixed" or "located" in that county, nor does it require the pari- mutuel permitholder to own, rather than lease, the facility in the county at which it is authorized to conduct pari-mutuel pools. Here, the stipulated facts and undisputed evidence establish that permit #141 was "authorized by the [D]ivision," pursuant to annual licenses, to conduct pari-mutuel pools in Broward County during state fiscal years 2004/2005 and 2005/2006. Accordingly, it is found that Bet Miami was "authorized to conduct pari-mutuel pools" in Broward County in state fiscal years 2004/2005 and 2005/2006 for purposes of being determined eligible to convert permit #141 to a summer jai alai permit in Broward County immediately following that qualifying two-consecutive-state-fiscal-year period. Geographic Allocation of Wagering Handle For Permit #141 As part of its responsibilities in regulating pari-mutuel wagering in Florida, the Division keeps track of every permitholder's annual license for purposes of determining where that permitholder operated, as well as the amount of handle generated by a specific type of wager taken in by the permitholder, pursuant to its annual license, for each state fiscal year. As stated above, from approximately 1996 to 2008, permit #141 was situated in Miami-Dade County, and was authorized by the Division to conduct pari-mutuel pools on exhibition sports in Miami-Dade County and in Broward County during those years. As stated above, during state fiscal years 2004/2005 and 2005/2006, permit #141 was authorized by the Division to conduct pari-mutuel pools in Broward County. Specifically, pursuant to its annual operating licenses, Bet Miami was authorized to conduct, and conducted, pari-mutuel pools on exhibition sports at a leased facility in Hollywood, Broward County, during state fiscal years 2004/2005 and 2005/2006. During state fiscal year 2004/2005, Bet Miami conducted pari-mutuel pools, pursuant to its annual operating license, in Hollywood, Broward County, between December 1 and December 31, 2004, and between May 1 and May 31, 2005. During state fiscal year 2004/2005, Bet Miami conducted pari-mutuel pools, pursuant to its annual operating license, at Flagler in Miami-Dade County, between September 1 and October 16, 2004. During state fiscal year 2005/2006, Bet Miami conducted pari-mutuel pools, pursuant to its annual operating license, in Hollywood, Broward County, between December 1 and December 31, 2005, and between May 1 and May 31, 2006. During state fiscal year 2005/2006, Bet Miami conducted pari-mutuel pools, pursuant to its annual operating license, at Flagler in Miami-Dade County, between September 1 and October 15, 2005. At no time during state fiscal years 2004/2005 and 2005/2006 was Bet Miami ever authorized to conduct, nor did it conduct, pari-mutuel pools in both Broward County and Miami-Dade County on the same dates. Thus, Bet Miami was only authorized to conduct—and only conducted—pari-mutuel pools in Broward County on certain dates during each state fiscal year, as specified in its annual licenses for state fiscal years 2004/2005 and 2005/2006. Likewise, Bet Miami was only authorized to conduct—and only conducted—pari-mutuel pools in Miami-Dade County on certain dates during each state fiscal year, as specified in its annual licenses for state fiscal years 2004/2005 and 2005/2006. Stated another way, Bet Miami was not authorized by its annual licenses for state fiscal years 2004/2005 and 2005/2006 to conduct pari- mutuel pools in Miami-Dade County on the dates on which it was authorized to conduct pari-mutuel pools in Broward County. Likewise, Bet Miami was not authorized by its annual licenses for state fiscal years 2004/2005 and 2005/2006 to conduct pari-mutuel pools in Broward County on the dates on which it was authorized to conduct pari- mutuel pools in Miami-Dade County. Thus, permit #141 only generated pari-mutuel wagering handle from its operations in Broward County on certain dates during state fiscal years 2004/2005 and 2005/2006, as specifically authorized by its annual operating licenses for those years. The Division generates, on a daily basis, reports for each permitholder conducting pari-mutuel pools pursuant to annual license. These reports address, among other things, the amount of handle generated by the permitholder for each specific type of wager for a particular day. FSBOA's position that wagering handle generated by permit #141 in Miami-Dade County in state fiscal years 2004/2005 and 2005/2006 also must be included, along with the wagering handle generated by permit #141 in Broward County in those state fiscal years, for purposes of determining the smallest play or total pool in Broward County for those fiscal years, is not supported by the evidence. Thus, it is found that the only handle that should be included in calculating the play or total pool for permit #141 in Broward County for state fiscal years 2004/2005 and 2005/2006 was the handle generated by permit #141 on pari-mutuel pools conducted in Broward County for those state fiscal years, pursuant to the annual operating licenses issued to Bet Miami for those state fiscal years. Play or Total Pool For State Fiscal Years 2004/2005 And 2005/2006 In Broward County The Division uses a financial record management system, the Central Management System ("CMS"), to, among other things, track wagers made at each permitted pari-mutuel facility in Florida. The CMS creates daily totalisator—or "tote"—reports, which show, among other things, all wagers made at pari-mutuel facilities into all pari- mutuel pools. These reports enable the Division to determine the tax liability for each permitholder, and also enable the Division to keep track of the handle15 generated by that permitholder's pari-mutuel facility, for each type of wager. The Division reconciles each pari-mutuel facility's tote reports on a monthly basis. Each facility also remits a monthly financial report and yearly financial statement, and these submittals are reconciled with the tote reports. In determining play or total pool pursuant to section 550.0745(1), the Division uses the tote reports to calculate the total amount of wagering handle, by each specific type of wager, that is pooled by a pari-mutuel facility in a state fiscal year. Handle is not synonymous with the revenue generated by, or profitability of, a pari-mutuel wagering facility, and a facility's revenue is not the same as calculating its play or total pool under section 550.0745. The term "play or total pool" is not defined in chapter 550. However, the term "pari-mutuel wagering pool" is defined, and means "the total amount wagered on a race or game for a single result." § 550.002(24), Fla. Stat. Pursuant to case law, the terms "pari-mutuel pool" and "play or total pool" are used interchangeably under section 550.0745.16 There are several different "types" of pari-mutuel wagers authorized under chapter 550, depending whether the wager is placed at the pari-mutuel facility at which the live race is conducted, or is placed at a remote pari- mutuel facility which receives or re-transmits a signal from the pari-mutuel facility at which the live race is conducted.17 15 Handle is defined as the aggregate contributions to pari-mutuel pools. § 550.002(13), Fla. Stat. 16 See West Flagler Assocs. v. Fla. Dep't of Bus. Reg., 219 So. 3d 149, 154 (Fla. 3d DCA 2017), quoting S. Fla. Racing Ass'n v. Fla. Dep't of Bus. Reg., 201 So. 3d 57, 61 (Fla. 3d DCA 2015)("[a]lthough 'total pool' is not statutorily defined, the term 'pari-mutuel wagering pool' is defined to mean 'the total amount wagered on a race or game for a single possible result'"). 17 For purposes of this Final Order, references to "types" of pari-mutuel wagers refers to whether the wager is live on-track, intertrack as host, intertrack as guest, simulcast export, simulcast import, simulcast rebroadcast as host, or simulcast rebroadcast as guest. It does Live on-track wagers are wagers placed at the permitholder's pari- mutuel facility at which the live race is conducted. In calculating a permitholder's play or total pool pursuant to section 550.0745(1), the Division counts live on-track wagers—i.e., wagers that are placed at a permitholder's facility on its own live race—toward that permitholder's total pool.18 The permitholder that conducts the live race is the host of that race. An "intertrack wager" is a wager accepted at a pari-mutuel facility on a race that is performed live at and transmitted from another in-state pari- mutuel facility, or that is simulcast rebroadcast from another in-state facility. See § 550.002(17), Fla. Stat. The "host track" is the track "conducting a live or simulcast race . . . that is the subject of an intertrack wager." § 550.002(16), Fla. Stat. The "guest track" is the "track receiving or accepting an intertrack wager." § 550.002(12), Fla. Stat. As stated above, in calculating a permitholder's play or total pool pursuant to section 550.0745(1), the Division does include, with respect to intertrack wagers, the wagers placed at the facility of an in-state guest- permitholder toward the pool of the in-state host-permitholder in calculating the in-state host-permitholder's play or total pool. For purposes of this case, this type of wager is referred to as "intertrack wager as host."19 not refer to betting odds, such as whether bets are for win-place-show, daily double, trifecta, quinella, or other odds combinations with respect to a particular bet. 18 By way of example, if Facility A conducts a live race, and a wager is placed at Facility A on that race, that wager is a "live on-track wager." That wager is counted toward the total pool of Facility A. 19 By way of example, if Facility A conducts (i.e., hosts) a live race, and a wager on that race is placed at Facility B, which has received, from Facility A, a signal transmitting the race that is being conducted live at Facility A, the wager placed at Facility B on the live race conducted at Facility A is counted toward the pool of Facility A and it is not counted toward the pool of Facility B. This is because Facility B is not authorized to conduct its own pool on the race, which is being conducted live—and the wagers are being pooled—at Facility A. This type of wager is an intertrack wager, and for purposes of pool assignment, is referred to as "intertrack wager as host" for Facility A and "intertrack wager as guest" for Facility B. As stated above, the Division does not include, with respect to intertrack wagers, those wagers placed at the facility of an in-state guest- permitholder toward the pool of an in-state host-permitholder in calculating the in-state guest-permitholder's play or total pool. For purposes of this case, this type of wager is referred to as "intertrack wager as a guest."20 "Simulcast wagers" are wagers that are: (1) placed at an in-state pari-mutuel wagering facility on a live race conducted at that facility and broadcast to an out-of-state facility; or (2) placed at an out-of-state facility on a live race conducted at that facility and broadcast to an in-state pari-mutuel wagering facility. See § 550.002(32), Fla. Stat. As stated above, for purposes of calculating a permitholder's play or total pool pursuant to section 550.0745(1), the Division does include, with respect to simulcast wagers, wagers placed at an out-of-state facility toward the pool of the in-state host-permitholder at whose facility the live race is conducted, in calculating the in-state host-permitholder's play or total pool.21 This type of wager is referred to as "simulcast export."22 As stated above, the Division does not include wagers placed at the facility of an in-state guest-permitholder toward the pool of an out-of-state facility's live race in calculating the in-state guest-permitholder's play or total pool. This type of wager is referred to as "simulcast import."23 20 Refer to the example in note 19. 21 By way of example, if Facility A conducts a live race, and a wager on that race is placed at Facility C, an out-of-state facility, the wager placed on the live race conducted at Facility A is counted toward the pool of Facility A, and is not counted toward the pool of Facility C. This is because Facility A is authorized to conduct pari-mutuel pools on the race, and Facility C is not authorized to conduct pari-mutuel pools on the race. 22 See West Flagler Assocs. v. Fla. Dep't of Bus. Reg., 219 So. 3d 149, 154 (Fla. 3d DCA 2017)(holding that simulcast export wagers are to be included in calculating a pari-mutuel facility's play or total pool). 23 By way of example, if Facility C, an out-of-state-facility, conducts a live race, and a wager on that race is placed at Facility A, an in-state facility, the wager placed on the live race conducted at Facility C is not counted toward the pool of Facility A. This is because Facility As stated above, the Division does not include, with respect to simulcast rebroadcast wagers, wagers placed at the facility of an in-state guest-permitholder toward the pool of an out-of-state track's live event that is rebroadcast from another in-state host-permitholder's track to the in-state guest permitholder's facility in calculating the in-state host permitholder's play or total pool.24 For purposes of this case, this type of wager is referred to "simulcast rebroadcast as host."25 As stated above, the Division also does not include, with respect to simulcast rebroadcast wagers, those wagers that are placed at the facility of an in-state guest-permitholder toward the pool of an out-of-state track's live event that is rebroadcast from another in-state permitholder's track to the in- state guest permitholder's facility in calculating the in-state guest- permitholder's play or total pool in Broward County.26 For purposes of this case, this type of wager is referred to "simulcast rebroadcast as a guest."27 Only live on-track wagers, intertrack wagers as host, and simulcast export wagers are correctly included in calculating a permitholder's play or total pool under section 550.0745(1). The common theme for determining the permitholder's play or total pool is that, for purposes of section 550.0745(1), pari-mutuel pools are only formed at the host-permitholder's track where the A is not authorized to conduct a pari-mutuel pool on the race that being conducted live at Facility C. 24 By way of example, if a live race is conducted at Facility C, an out-of-state facility, and is transmitted by signal to Facility A, an in-state facility, which, in turn rebroadcasts the race conducted at Facility C to Facility B, another in-state facility, and a wager is placed at Facility B on the race conducted at Facility C, the wager is not pooled at either Facility A or Facility B, because neither facility is authorized to conduct a pool on the race that is being conducted live at Facility C. For Facility A, this type of wager is a "simulcast rebroadcast as host." For Facility B, this type of wager is a "simulcast rebroadcast as guest." The key point with respect to simulcast rebroadcast wagers, as either host or guest, is that the wager placed at Facility B is not pooled either at Facility A or Facility B. 25 As stated above, this type of wager is also known as simulcast intertrack as a host. 26 Refer to the example in note 24. 27 As stated above, this type of wager also is known as simulcast intertrack as a guest. live race is conducted, pursuant to the annual license that authorizes that permitholder to conduct pari-mutuel pools in that county.28 Conversely, intertrack wagers as guest, simulcast import wagers, simulcast rebroadcast as a host wagers, and simulcast rebroadcast as a guest wagers are not to be included in calculating a permitholder's play or total pool under section 550.0745(1). The common theme is that those wagers are placed on races that are conducted, and pools formed, at facilities that are not those of that permitholder. Here, the parties do not dispute that permit #141 had the smallest play or total pool for state fiscal years 2004/2005 and 2005/2006 if the determination of play or total pool correctly only includes live on-track wagers, intertrack as host wagers, and simulcast export wagers. Rather, the parties dispute, as a fundamental matter, which types of wagers are correctly included in determining a permitholder's play or total pool for purposes of section 550.0745. Specifically, FSBOA contends that the handle of all of the different types of wagers—i.e., live on-track, intertrack as host, intertrack as guest, simulcast export, simulcast import, simulcast rebroadcast as host, and simulcast rebroadcast as guest—should be included in the calculation of play or total pool of each permitholder—both host and guest—at whose facility a wager is placed, regardless of where the race is conducted. The basis for FSBOA's position is that in any wager, regardless of whether the track at which the wager is made is the host or the guest, both the host and guest tracks "make money" on the wager. FSBOA reasons that 28 As more fully discussed in the Conclusions of Law, the Division applies the plain language of the first sentence of section 550.0745(1) in determining that a pari-mutuel pool is formed only at the permitholder's pari-mutuel facility where the live race is conducted pursuant to annual license. Otherwise, as discussed below, wagers would be double-counted for purposes of calculating play or total pool, contrary to the statutory definition of pari-mutuel wagering pool. because both the host and guest tracks "make money"29 on a wager regardless of the type of wager, and because one of the espoused purposes of allowing conversion to summer jai alai is to assist a struggling permitholder in staying in business by allowing it to convert to a less-costly form of pari-mutuel activity, every type of wager should be included in calculating both the host- permitholder's and guest-permitholder's play or total pool under section 550.0745(1). Here, using FSBOA's approach to calculating play or total pool for the permitholders in Broward County for state fiscal years 2004/2005—while assuming that permit #141 is appropriately considered a "Broward County permit" for purposes of comparison with other Broward County permitholders, and including all of the different types of wagering handle generated by permit #141 at the time it was operating in Broward County— still would result in permit #141 having smallest play or total pool30 in Broward County for state fiscal year 2004/2005, even though its play or total pool would be larger than if intertrack as guest, simulcast export, and simulcast rebroadcast, wagers were excluded. Similarly, using FSBOA's approach to calculate play or total pool for the permitholders in Broward County for state fiscal years 2005/2006—while assuming that permit #141 is appropriately considered a "Broward County permit" for purposes of comparison with other Broward County permitholders, and including all of the different types of wagering handle generated by permit #141 at the time it was operating in Broward County— 29 The amount each track makes on a wager varies depending on numerous variables, such as takeout rates, rights fees, statutory conditions on certain types of wagers, terms of agreements between host and guest tracks, amounts wagered on any given race, types of bets placed on a race, and other factors. 30 FSBOA calculated the play or total pool for permit #141 for state fiscal year 2004/2005 as $25,664,909—approximately $3.5 million more than the Division's calculation, which excluded intertrack wagers as guest, simulcast import wagers, and simulcast rebroadcast wagers. still would result in permit #141 having the smallest play or total pool31 in Broward County for state fiscal year 2005/2006, even though its play or total pool is larger than if intertrack as guest, simulcast export, and simulcast rebroadcast wagers were excluded. The evidence supports the Division's approach in only including live on-track wagers, intertrack wagers as host, and simulcast export wagers in determining the permitholder's total play or pool in calculating play or total under section 550.0745. This is because if the other types of wagers were included in determining play or total pool, the handle for the various wager types would be counted at both the host and guest tracks—that is, the handle be would counted twice, or "double-counted." Double-counting wagering handle would result in the Division substantially overestimating the amount of handle taken in by permitholders. As a result, the state would not have accurate information for purposes of assessing taxes and fees to be paid by permitholders and projecting pari-mutuel wagering revenue for use in preparing its statutorily- required annual reports regarding pari-mutuel wagering in Florida. Further, as more fully discussed in the Conclusions of Law, counting the handle for the various wager types placed at both host and guest tracks— i.e., double-counting the handle—would conflict with the first sentence of section 550.0745(1), which provides that pari-mutuel pools are formed where the permitholder is "authorized to conduct pari-mutuel pools"—that is, where that particular race on which wagers are placed is conducted pursuant to annual license—which is where the race is conducted live. Additionally, as more fully discussed in the Conclusions of Law, double-counting the handle for the various types of wagers would conflict with section 550.002(24), which defines "pari-mutuel wagering pool" as the 31 FSBOA calculated the play or total pool for permit #141 for state fiscal year 2005/2006 as $23,484,380—approximately $10.6 million more than the Division's calculation, which excluded intertrack wagers as guest, simulcast import wagers, and simulcast rebroadcast wagers. "total amount wagered on a race or game for a single possible result." Id. (emphasis added). Clearly, if wagers were counted both at the host track and also at the guest track, the amount counted toward a pari-mutuel pool would exceed the "total amount wagered on a race or game for single result." Here, the Division determined, for each permitholder authorized to conduct pari-mutuel pools in Broward County, that permitholder's play or total pool in Broward County for state fiscal years 2004/2005 and 2005/2006. In calculating each permitholder's play or total pool in Broward County for those state fiscal years, the Division correctly included only live on-track handle, intertrack as host handle, and simulcast export handle for the permitholder—i.e., wagers on races conducted at that permitholder's track, regardless of where the wagers were placed. For the reasons discussed above, the Division correctly did not include, in its calculations, intertrack wagers as guest, simulcast import wagers, simulcast rebroadcast as host wagers, or simulcast rebroadcast as guest wagers for that permitholder—i.e., wagers on races not conducted at that permitholder's track. As set forth on the chart titled "Summer Jai Alai: Created for FY 2004/2005 -2005/2006, the Bet Miami permit, permit #141, had a play or total pool of $15,053,496 for state fiscal year 2004/2005—by far the smallest play or total pool for that fiscal year. As set forth below on the chart, below, titled "Summer Jai Alai: Created for FY 2004/2005 -2005/2006," the Bet Miami permit, permit #141, had a play or total pool of $12,451,325 for state fiscal year 2005/2006—also the smallest play or total pool for that fiscal year. As previously stated, the parties stipulated that the numbers on the chart attached to this Final Order, and hereby incorporated into this Finding of Fact, were accurately calculated.32 32 To reiterate, although the parties do not dispute the accuracy of the actual numeric calculations themselves, they do dispute the correctness of these numbers based on the types Based on the foregoing, it is found that permit #141 had the smallest play or total pool in Broward County for state fiscal years 2004/2005 and 2005/2006. Summer Jai Alai Permit Availability In Broward County For State Fiscal Years 2004/2005 And 2005/2006 Because permit #141 had the smallest play or total pool in Broward County for state fiscal years 2004/2005 and 2005/2006, Bet Miami was eligible to convert its pari-mutuel permit for greyhound racing to a summer jai alai permit, pursuant to section 550.0745(1). Bet Miami did not file an application to convert its pari-mutuel permit to a summer jai alai permit in Broward County in state fiscal year 2005/2006.33 FSBOA contends that under section 550.0745(1), even if Bet Miami had the smallest play or total pool in Broward County for state fiscal years 2004/2005 and 2005/2006, a summer jai alai permit was not made available for those two consecutive state fiscal years because Bet Miami did not "affirmatively decline" to convert its greyhound racing pari-mutuel permit to a summer jai alai permit. In other words, FSBOA asserts that for a summer jai alai permit to be made available under the second sentence of section 550.745(1), the permitholder having the smallest play or total pool for the immediately preceding two consecutive years—here, Bet Miami—must actively notify the of wagering handle included in calculating play or total pool, and whether wagering handle from Bet Miami's pari-mutuel operations in Miami-Dade County should be included in calculating Bet Miami's play or total pool in Broward County. As discussed above, the undersigned has determined that FSBOA's approach to calculating play or total pool is not supported by the evidence or the applicable statutes. 33 As further discussed in the Conclusions of Law, under the first sentence of section 550.0745(1), the permitholder having the smallest play or total pool for the two consecutive years "next prior"—which has been judicially interpreted to mean "immediately preceding"— may apply to the Division to convert its pari-mutuel permit to a summer jai alai permit. The "two consecutive years next prior" language effectively creates a one-year period for the permitholder who had the smallest play or total pool in the immediately-preceding two- consecutive-year period to file an application to convert. Division that it is not going to convert its permit to a summer jai alai permit, and that only after such notification is a summer jai alai permit made available in the county. In support of its position, FSBOA presented the testimony of David Romanik regarding the Division's purported past practice regarding "declination" by permitholders eligible to convert to summer jai alai under section 550.0745(1). Romanik testified that in 2005, the then-chief counsel for the Division told him, in the course of a telephone conversation, that a permitholder eligible to convert to summer jai alai "had to decline" in order for a summer jai alai permit to be made available. He also testified that the Division sent, to a permitholder eligible to convert to summer jai alai, a letter giving that permitholder "30 days in which to convert their quarter horse permit into a summer jai alai permit, or else it would be deemed declined." Romanik also testified that he sent a letter to the Division on behalf of a permitholder, "affirmatively declining" to convert that permitholder's pari- mutuel permit to summer jai alai. This anecdotal evidence (which, in part, also is uncorroborated hearsay) is insufficient to establish that the Division ever had a formal practice, policy, or requirement under which an eligible permitholder had to "affirmatively" notify the Division that it was declining to convert its permit to summer jai alai in order for a new summer jai alai permit to be made available pursuant to the second sentence of section 550.0745(1). Based on the evidence, and for the reasons more fully discussed in the Conclusions of Law, it is determined that an "affirmative declination" by a permitholder eligible to convert to summer jai alai is not required for a new summer jai alai permit to be made available pursuant to the second sentence of section 550.0745(1). Furthermore, even if an "affirmative declination" were required, the evidence shows that Bet Miami filed an application, and was granted an annual license, to conduct greyhound racing in the year following state fiscal years 2004/2005 and 2005/2006—thereby actively notifying the Division that it did not intend to convert its greyhound racing permit to a summer jai alai permit. Therefore, in any event, Bet Miami did "affirmatively decline" to convert its pari-mutuel permit to a summer jai alai permit in those state fiscal years. Because Bet Miami declined to convert its greyhound racing permit to a summer jai alai permit, a new summer jai alai permit was made available in Broward County for state fiscal years 2004/2005 and 2005/2006. FSBOA also contends that the statute of limitation in section 95.11(3)(p), Florida Statutes, applies to extinguish, after four years, any summer jai alai permits that historically were made available pursuant to the second sentence of section 550.0745(1). Thus, FSBOA contends, even if a summer jai alai permit was made available for state fiscal years 2004/2005 and 2005/2006, that permit was extinguished by operation of law after four years, so was not available for issuance to PPI. For the reasons addressed in the Conclusions of Law, it is determined that the statute of limitation set forth in section 95.11(3)(p) does not apply to the creation of new summer jai alai permits under the second sentence of section 550.0745(1). Accordingly, it is determined that a summer jai alai permit was made available following state fiscal years 2004/2005 and 2005/2006, and was in existence in 2018, when PPI filed its application for issuance of a summer jai alai permit. FSBOA's Standing As discussed above, FSBOA is the statewide trade association created for the broad purpose of promoting the standardbred horse breeding industry and harness racing in Florida and around the country. It represents the interests of the majority of the standardbred breeders, owners, trainers, and drivers of harness racing horses in all aspects of the Florida standardbred horse industry. FSBOA has over 300 members, all of whom are engaged in the standardbred horse industry in Florida, and approximately 100 of whom also engage in standardbred horse racing-related activities out of state. FSBOA represents the majority of the standardbred breeders, owners, trainers, and drivers of standardbred horses engaged in standardbred harness racing as a licensed pari-mutuel activity at Pompano Park. As found above, PPI is the owner of Pompano Park, a pari-mutuel facility that operates an associated cardroom and casino pursuant to annual licenses. As found above, PPI is required by law to conduct licensed pari- mutuel wagering activities as a condition of holding its cardroom and slot machine licenses and operating a cardroom and slot machine gaming at Pompano Park. Those licenses must be annually renewed. Currently, PPI conducts harness racing at Pompano Park pursuant to pari-mutuel permit #430 and its annual license, as its legally-required pari-mutuel wagering activity in order to hold its cardroom and slot machine licenses and operate a cardroom and slot machine gaming. Pompano Park is the only pari-mutuel facility in Florida at which standardbred harness racing is conducted as a pari-mutuel activity. PPI and FSBOA have entered into an agreement addressing, among other things, the provision of insurance covering drivers, trainers, and sulkies engaged in harness racing at Pompano Park; the payment of purses from pari-mutuel activities and cardroom operations at Pompano Park; and the payment, to FSBOA's members participating in harness racing at Pompano Park, of non-statutory purse enhancements from slot machine gaming. The term of the Agreement commenced on October 24, 2017, is effective for three racing seasons, and ends on June 20, 2020. The third-year racing season under the Agreement commenced on July 1, 2019, and ends on June 30, 2020. The Agreement provides that PPI and FSBOA must "agree to meet to discuss either extending the term of this Agreement or entering into a new Agreement for a contract of a minimum of three racing seasons no later than January 1 of 2020." The parties presented evidence that they intend to perform this term of the Agreement. PPI also holds pari-mutuel permit #535, which authorizes it to conduct quarter horse racing as a pari-mutuel wagering activity at Pompano Park. Currently, PPI does not conduct quarter horse racing at Pompano Park. As stated above, PPI has applied for a summer jai alai permit to authorize it to conduct summer jai alai as a pari-mutuel wagering activity at Pompano Park. That permit is the subject of this proceeding. In order for PPI to conduct summer jai alai as its legally-required pari-mutuel activity in connection with its cardroom and slot machine licenses at Pompano Park, those licenses must be changed, either through modification or at annual renewal, to identify summer jai alai as the pari- mutuel wagering activity conducted in connection with those licenses. Florida Administrative Code Rule 61D-11.008(1)(b) governs renewal of cardroom licenses. The cardroom license renewal requirements entail paying a $500 license fee and completing Form DBPR PMW-3135, a business occupational license renewal form, which requires the renewing licensee to provide updated information regarding the business name, address, and telephone number; whether the connected pari-mutuel wagering license has been revoked, suspended, or voluntarily relinquished in lieu of prosecution; whether there are any pending disciplinary or enforcement actions against the business or its owner; and whether the business entity has been convicted of a crime. Rule 61D-14.003 governs renewal of slot machine licenses. The slot machine license renewal requirements entail paying an annual license fee and a compulsive or addictive gambling prevention regulatory fee, and completing Form DBPR PMW-3405, which requires the renewing licensee to provide updated information regarding the business name, address, and telephone number; changes to the officers, directors, and shareholders of the business; whether the connected pari-mutuel wagering license has been revoked, suspended, or voluntarily relinquished in lieu of prosecution; whether there are any pending disciplinary or enforcement actions against the business or its owner; and whether the business entity has been convicted of a crime. As of the final hearing date, PPI had not filed cardroom or slot machine license renewal applications identifying the summer jai permit at issue in this proceeding as the pari-mutuel permit to be associated with its cardroom and slot machine licenses. Cardroom and slot machine licenses are renewed if the pertinent fees are paid and informational requirements are met. The rules make clear that the cardroom and slot machine license renewal is ministerial and does not involve discretionary decision-making by the Division in determining whether the licensee is entitled to renewal of either license. The parties stipulated that if PPI were to conduct pari-mutuel wagering on a full season schedule of harness racing performances and were also to conduct pari-mutuel wagering on summer jai alai performances, FSBOA's members would not suffer injury. The evidence establishes that summer jai alai would be conducted during the summer months pursuant to section 550.0745, and harness horse racing would be conducted during the fall and winter, so the performances of these two pari-mutuel activities would not overlap or compete with each other. As found above, PPI is evaluating its redevelopment options for Pompano Park. In early 2019, PPI's developer, the Cordish Group, presented a Redevelopment Plan to the City of Pompano Beach that did not depict a horse racing track as part of the redeveloped facility. As found above, PPI's manager acknowledged that, in conducting the required pari-mutuel activity, summer jai alai would likely result in PPI losing less money than horse racing. FSBOA has challenged issuance of the summer jai alai permit to PPI because it fears that if PPI is authorized to conduct summer jai alai, it will cease conducting harness horse racing as its required pari-mutuel activity at Pompano Park. Because Pompano Park is the only pari-mutuel facility in Florida at which harness racing is conducted as a pari-mutuel activity, if PPI ceases conducting harness horse racing as its pari-mutuel activity at Pompano Park, a substantial number, if not all, of FSBOA's members will lose their jobs and income, and no longer would have pari-mutuel harness horse racing opportunities in Florida. This would result in substantial loss of jobs, income, and, potentially, livelihood, for FSBOA's members engaged in pari-mutuel harness racing in Florida. FSBOA also contends that it, as an entity, also would be injured if PPI ceases harness racing at Pompano Park because the revenue from pari- mutuel harness racing at Pompano Park is FSBOA's only revenue source. In that scenario, FSBOA would be unable to pay breeders' awards, owners' awards, stallions' awards, and other purses and prizes, as required by section 550.2625(4). As evidence that these alleged injuries reasonably could result from issuance of the summer jai alai permit to PPI, FSBOA relies on Buswell's testimony regarding the greater cost-effectiveness of summer jai alai as compared to horse racing; a recently-issued declaratory statement determining that another similarly-situated pari-mutuel permitholder is legally entitled to substitute summer jai alai for horse racing as its permitted pari-mutuel activity; and the Pompano Park Redevelopment Plan presented to the City of Pompano Beach that did not show a horse racing track as part of the redevelopment. Based on this evidence, it is found that the injuries that FSBOA alleges to its members' substantial interests, and to its own substantial interests as an entity, are not speculative and reasonably can be expected to occur as a result of issuance of the summer jai alai permit to PPI. Notification Letter To The Division Regarding Alleged Unadopted Rules FSBOA sent a letter to the Division, dated December 5, 2018, identifying the alleged agency statements that FSBOA contends are unadopted rules, and notifying the Division that the letter constituted the 30- day notification required by section 120.595(4), and that FSBOA would file an unadopted rule challenge regarding the alleged agency statements unless the Division initiated rulemaking pursuant to section 120.54.
Findings Of Fact On or about September 30, 1980, petitioner mailed its application to respondent for registration of the trademark "Cachet". Accompanying the application were a check for fifteen dollars ($15.00) and shoe insoles stamped "Cachet", each bearing an escutcheon and the legend "MADE IN SPAIN". On October 14, 1980, respondent returned petitioner's application, declining to register "Cachet" as a trademark in the absence of consent by Cachet, Inc., an unrelated active Florida corporation for profit with a Miami address, duly registered with respondent. Cachet, Inc. has not registered any trademark with respondent, and does not sell shoes. Ms. Nettie Sims, chief of respondent's bureau of corporate records and an employee of respondent for 27 years, testified that this action was in keeping with respondent's policy going back as far as she could remember.
The Issue Whether Respondent Department of Revenue is entitled to intercept $1,000 in proceeds won in the Florida Lottery by Petitioner and to apply the proceeds to reduce an outstanding administrative debt owed to the Florida Department of Revenue.
Findings Of Fact Mr. James is a resident of Jacksonville who, prior to June 11, 2003, won $1,000 in one of the Department of Lottery's games of chance. The Department is an agency of the Florida government and is charged with enforcing court orders relating to child support, in addition to other duties. As a result of a Complaint to Determine Paternity filed in the Circuit Court of the Eighth Judicial Circuit in and for Baker County, Florida, a case where Mr. James was named as defendant, a Final Judgment of Paternity for Plaintiffs was entered on October 29, 1992. The Judgment, among other things, required Petitioner to pay to the State of Florida $192.00, no later than six months from the date of the Judgment. In an Order of Contempt entered in the Circuit Court of the Eighth Judicial Circuit in and for Baker County, Florida, dated October 12, 1994, nunc pro tunc to September 26, 1994, Petitioner was ordered to pay to the State of Florida $662.03 within 12 months, which included the amount of $352.00 previously ordered and unpaid. In an Order of Arrearages entered in the Circuit Court of the Eighth Judicial Circuit in and for Baker County, Florida, dated June 28, 1995, nunc pro tunc to June 6, 1995, Petitioner was ordered to pay to the State of Florida $882.09, within twelve months. This order recited that the $882.09, amount, included the amount of $772.06, previously ordered but not paid. In an Order of Contempt entered in the Circuit Court of the Eighth Judicial Circuit in and for Baker County, Florida, dated November 20, 1995, nunc pro tunc to October 25, 1995, Petitioner was again ordered to pay to the State of Florida $882.09. This order required payment no later than June 31, 1995. In an Order of Commitment for Contempt Commencement Deferred entered in the Circuit Court of the Eighth Judicial Circuit in and for Baker County, Florida, dated October 19, 1998, Petitioner was ordered to pay the sum of $300.00 to the State of Florida within 180 days of the order. In an Order of Commitment for Contempt Commencement Deferred entered in the Circuit Court of the Eighth Judicial Circuit in and for Baker County, Florida, dated December 7, 1998, Petitioner was ordered to pay the sum of $110.03 to the State of Florida within 180 days of the order. In a Money Judgment entered in the Circuit Court of the Eighth Judicial Circuit in and for Baker County, Florida, dated December 7, 1998, Petitioner was ordered to pay the sum of $130.03 to the State of Florida within 180 days of the order. The documentary evidence, which was elucidated by the testimony of Ms. Ash, indicates that Petitioner is currently in debt to the State of Florida in the amount of $1422.15, and that amount has not been paid. The debt was in connection with Petitioner's failure to pay sums incurred as part of the effort to collect child support from Petitioner. Petitioner was notified that his debt was $1,307.14. Both the sum he was advised was due and owing, and the sum found by the evidence in this Recommended Order, are greater than the $1,000 won by Petitioner. It is appropriate that the proceeds of. Mr. James' good luck inure to the benefit of the State of Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department retain the $1,000.00 won by Mr. James. DONE AND ENTERED this 24th day of November, 2003, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 24th day of November, 2003. COPIES FURNISHED: Joseph James 4121 Clyde Drive Jacksonville, Florida 32208 Chriss Walker, Esquire Department of Revenue Child Support Enforcement Post Office Box 8030 Tallahassee, Florida 32314-8030 Bruce Hoffmann, General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 James Zingale, Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100 David Griffin, Secretary Department of Lottery 250 Marriott Drive Tallahassee, Florida 32301 Ken Hart, General Counsel Department of Lottery 250 Marriott Drive Tallahassee, Florida 32301
The Issue Whether Petitioner, the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, is authorized to charge and collect interest from Respondent, Florida Gaming Centers, Inc., on the unpaid value of the outsbook for the 1995-1996 meet from August 29, 1997, the date payment of the value of the outsbook was due, to September 8, 1998, the date payment was received by Petitioner.
Findings Of Fact At all times relevant hereto, the Respondent held a permit to conduct jai alai pari-mutuel wagering, under License No. 2909-D Amended, issued by the Department. Between July 1, 1995, and June 30, 1996, inclusive, Respondent held jai alai games for the purpose of conducting pari-mutuel wagering on those games. Respondent's meet for the relevant time period ended on June 30, 1996. One year and sixty days after the end of the State of Florida's (State) fiscal year of June 30, 1996, any "out" tickets that remained uncashed escheated to the State pursuant to Section 550.1645(2), Florida Statutes. Once these tickets or the value thereof escheated to the State, Respondent was required to pay the value of such tickets, as reflected on its outsbook, to the Department no later than August 29, 1997. Pursuant to the outsbook prepared by Respondent, the value of the outs for the 1995-1996 meet was $108,221.20. Nonetheless, Respondent failed to submit to the Department the value of the balance of the outsbook within the prescribed time frame and instead held these funds. On June 2, 1998, the Department served an Administrative Complaint on Respondent, alleging that Respondent had failed to timely submit the value of the outsbook to Petitioner. By letter dated September 4, 1998, Respondent submitted to the Department a check for $109,128.60 as payment for the unpaid value of Respondent's outsbook for the 1995-1996 meet. The Department received Respondent's payment on September 8, 1998. Of the total amount Respondent paid over to the Department, $108,221.20 was credited against the unpaid value of the outsbook for the 1995-1996 meet, resulting in full payment of the outstanding outsbook value. The remaining $907.40 paid by Respondent to Petitioner was an overpayment. Petitioner alleges that Respondent is responsible for interest accrued on the unpaid value of the outsbook for the period of time that amount remained unpaid. According to the Department, the interest owed by Respondent as a result of its failure to timely remit the value of the outsbook, "shall be determined at a rate per annum . . . equal to the State's average investment rate for the preceding month to the month for which interest is being calculated." The average interest rate earned on the investment of State funds as determined by the State Treasurer and/or Comptroller" for the time period of August 1997 through August 1998, was 6.73 percent. The Department determined that the interest "shall accrue on the unpaid aggregate principal amount due the State for the month(s) from the respective due date." Based on its calculations and after deducting Respondent's overpayment of $907.40, the Department asserts that Respondent owes the Department approximately $6,573.85 in accrued interest. Respondent disputes that the Department has authority to collect interest on the unpaid amount of the outsbook and alleges the powers of the Department under Section 550.0251, Florida Statutes, do not include such authority.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that (1) an administrative fine of $1,000.00 be imposed against the Respondent for the violation Section 550.1645, Florida Statutes; and, (2) Respondent shall receive a credit of $907.40 toward payment of the administrative fine. RECOMMENDED this 28th day of January, 1999, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 28th day of January, 1999. COPIES FURNISHED: Deborah R. Miller, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William P. Cagney, III, Esquire 3400 Financial Center 200 South Biscayne Boulevard Miami, Florida 33131 Eric H. Miller, Esquire Chief Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William Woodyard Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue for determination in this cause is whether petitioner is entitled to a refund in the amount of $6,306.32 paid into the state treasury as sales tax. More specifically, the issue is whether the registration or participation fee charged by petitioner to its members at the 1975 summer national bridge tournament is taxable as an "admission" under Florida Statutes 212.02(16) and 212.04.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The petitioner, the American Contract Bridge League, Inc., is a nonprofit corporation incorporated under the laws of New York in 1938. Its membership is approximately 200,000, representing areas all over the North American continent. Its purposes include educational, cultural and charitable pursuits. Among other things, petitioner annually sponsors three national tournaments in various areas of the United States. In August of 1975, petitioner held its summer national tournament at the Americana Hotel in Bal Harbour, Dade County, Florida. Over 1,000 tables for approximately 5,500 members were in operation for the nine-day event. Many of these 5,500 members played in two or more events. In order to participate in each event, the member was required to pay a registration fee ranging from $3.00 to $4.50. No sales tax was included by petitioner in its registration fee. While spectators at the tournament were permitted, it was not intended as a spectator event. No special provision was made for the seating of spectators, whose number rarely exceeded one hundred and who were composed primarily of relatives or friends of the actual players or participants. No admission charges were made to spectators. On previous occasions, petitioner has held bridge events in Florida. On no such occasion has the State of Florida attempted to assess the sales tax on petitioner's registration or participation fees. No other state in which petitioner has held its tournaments has assessed petitioner for sales or other taxes on this fee. The respondent Department of Revenue informed petitioner that the registration fees collected at the 1975 summer national tournament constituted a taxable event, subject to the Florida sales tax, and petitioner, under protest, forwarded a check in the amount of $6,306.32. Thereafter, petitioner applied for a refund pursuant to the provisions of F.S. 215.26. The Comptroller denied the refund application.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that petitioner's request for a refund in the amount of $6,306.32 be denied. Respectfully submitted and entered this 21st day of March, 1977, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 1977. COPIES FURNISHED: Comptroller Gerald Lewis The Capitol Tallahassee, Florida 32304 Patricia Turner, Esquire Assistant Attorney General Department of Legal Affairs The Bloxham Building Tallahassee, Florida 32304 Paul J. Levine, Esquire 2100 First Federal Building One Southeast 3rd Avenue Miami, Florida 33131
The Issue Whether the Respondent, the Florida Department of the Lottery, discriminated against the Petitioner, Oscar Jacobs, on account of his race in denying him equal opportunity for training, compensation, use of new equipment, time off from work, leave, retention and advancement?
Findings Of Fact The Parties. The Petitioner, Oscar Jacobs, is an Afro-American. His race is black. The Respondent, the Florida Department of the Lottery (hereinafter referred to as the "Department"), is an agency of the State of Florida. District 2 of the Department. In the fall of 1987 the Department created a district office in Panama City, Florida. The Panama City office of the Department was part of District 2 (hereinafter referred to as the "District"). The District consisted of Bay, Calhoun, Gulf, Jackson, Holmes and Washington Counties. Steve Sumner was hired as the District Manager for the District in October of 1987. Mr. Sumner hired the staff of the District in November of 1987. The District had the following type of positions: District Manager. The District Manager was in charge of the District office and was the immediate supervisor of the employees in the District. Among other things, the District Manager was responsible for: (1) the assignment of the geographic areas LSRs were responsible for including the designation of retailers located therein that the LSRs were to service; (2) the approval of leave; and (3) the assignment of vans. Lottery Sales Representative II (hereinafter referred to as an "LSR II"). LSR IIs were responsible for inventorying lottery ticket stock sold at retail locations, settling accounts with retailers for all lottery tickets sold, ordering lottery ticket books, reviewing settlement calculations, training retailers, completing paperwork necessary for retailers to become a lottery outlet, completing paperwork upon the termination of a retailer as a lottery outlet, ensuring that retailers operated within Department rules, soliciting, conducting and monitoring retailer promotions and recruiting new retail accounts. See Petitioner's exhibit 4 for a complete description of an LSR II's job description. Lottery Sales Representative I (hereinafter referred to as an "LSR I"). LSR Is were responsible for delivering lottery tickets, picking up redemption envelopes from retailers and comparing them with issuance/settlement forms, assisting retailers, maintaining paperwork and daily activity reports and filling in for, and assisting, LSR IIs. See Petitioner's exhibit 4 for a complete description of an LSR I's job description. Each LSR I was assigned to work with one particular LSR II. Storekeepers. Storekeepers were responsible for receiving, verifying and sorting incoming orders for lottery tickets, receiving and verifying ticket redemption envelopes and ticket returns, and insuring that materials were distributed. See Petitioner's exhibit 4 for a complete description of a Storekeeper's job description. A Receptionist. An Accountant I. An Administrative Assistant I. Clerical positions. Relevant History of Mr. Jacobs' Employment at the District. In November of 1987, Mr. Sumner hired three LSR IIs (Sandra Doll, Linda Gray and Debra Chason). All three are white. Mr. Sumner also hired two LSR Is. On November 15, 1987, Mr. Sumner hired the Mr. Jacobs as an LSR I. John Stevens was the other LSR I. Mr. Stevens is white. Danny Edwards was hired in 1987 as the Storekeeper, and Mary Jane Silcox was hired as an Administrative Assistant. Mr. Edwards and Ms. Silcox are white. At the time that Mr. Jacobs was hired, he was married. Mr. Jacobs' wife's race is white. Although Mr. Jacobs subsequently separated and eventually obtained a divorce from his wife, Mr. Sumner was not aware of these events until sometime after he had hired Mr. Jacobs. Mr. Sumner was responsible for evaluating Mr. Jacobs' performance. For the fiscal years November 16, 1987 to November 16, 1988, November 16, 1988 to November 16, 1989 and November 1989 to November 1990, Mr. Sumners rated Mr. Jacobs' performance with an overall rating of "Exceeds At Least One Standard." The possible ratings, from lowest to highest, were "Below Standards," "Achieves Standards," "Exceeds at Least One Standard," "Exceeds Most Standards," and "Sustained Superior Performance." In April of 1988, Mr. Edwards was promoted by Mr. Sumner from Storekeeper to LSR I. In May of 1988, Larry Kissinger was hired by Mr. Sumner as the Storekeeper. Mr. Sumner also hired Hannah Davis as an LSR I. Mr. Kissinger and Ms. Davis are white. In March of 1990, one of the LSR IIs, Sandra Doll, went on maternity leave. Mr. Sumner selected Mr. Jacobs to fill the LSR II position of Ms. Doll during her absence. Mr. Jacobs was selected out of the three LSR Is then working for the District. Mr. Sumner arranged for Mr. Jacobs to receive a 10 percent increase in pay. The increase in pay was to be payable while Mr. Jacobs temporarily filled the LSR II position. At about the same time that Ms. Doll went on maternity leave, another LSR II, Ms. Gray, resigned. Mr. Sumner assigned Ms. Gray's duties jointly to one of the other LSR Is, Ms. Davis, and the Storekeeper, Mr. Kissinger. Ms. Davis and Mr. Kissinger did not receive any increase in pay for their services. During the time that Mr. Jacobs served as a temporary LSR II, he performed satisfactorily, with assistance from other District staff. Prior to August of 1990, Ms. Doll resigned. In August of 1990, Mr. Sumner decided to promote Mr. Jacobs permanently to the position of LSR II. The Department's Personnel Office, however, informed Mr. Sumner that Mr. Jacobs did not appear to meet the minimum qualifications for the position. Therefore, Mr. Sumner assisted Mr. Jacobs to supplement his resume by expanding the description of his prior sales experience in order for Mr. Jacobs to meet the minimum requirements. Mr. Jacobs was subsequently determined to be qualified and Mr. Sumner's decision to promote Mr. Jacobs was accepted. Mr. Jacobs' salary was reduced to the amount he had been paid before he was given the temporary 10 percent increase. Mr. Sumner recommended, and Mr. Jacobs received, a permanent 7 percent increase, the maximum pay increase he could be awarded upon his permanent promotion to LSR II. As of August of 1990, Mr. Jacobs became the highest paid LSR II in the District. Mr. Jacobs remained the highest paid LSR II while he was employed as an LSR II and as an LMR. Mr. Kissinger, the Storekeeper, was promoted in August of 1990 to fill the LSR I position vacated by Mr. Jacobs. Ms. Davis was promoted in September of 1990 to fill the other LSR II position. Ms. Silcox, the Administrative Assistant, was promoted to fill Ms. Davis' LSR I position in September of 1990. Charles Frederick, whose race is black, was hired by Mr. Sumner in February of 1991, as the Storekeeper. In December of 1990, Mr. Jacobs remarried. The woman that Mr. Jacobs married in December of 1990 was white. From the time that Mr. Sumner hired Mr. Jacobs until approximately May of 1991, Mr. Sumner was satisfied with Mr. Jacobs' performance. In March of 1989 Mr. Sumner nominated Mr. Jacobs to the Department as the District employee of the month. In approximately May of 1991, however, Mr. Sumner began to lose faith in Mr. Jacobs. Mr. Jacobs believes that Mr. Sumner's attitude toward him began to change in 1991 and he attributes this change to the fact that he had married a white woman in December of 1990. Mr. Jacobs' belief is not, however, supported by the record. In light of the fact that Mr. Jacobs was married to a white woman when Mr. Sumner initially hired him and during at least part of the time that Mr. Sumner found Mr. Jacobs' performance to be satisfactory, Mr. Jacobs' belief is unfounded. A more logical explanation for the change in the relationship of Mr. Sumner and Mr. Jacobs is Mr. Jacobs' decline in performance and Mr. Sumner's criticism of Mr. Jacobs' performance as an LSR II. After being promoted to the permanent LSR II position, Mr. Sumner found Mr. Jacobs' performance to be lacking. In September of 1990, Mr. Sumner wrote four critical memorandums to Mr. Jacobs. Mr. Jacobs, based upon these memoranda and other comments from Mr. Sumner, began to believe that Mr. Sumner was treating him unfairly. This combination of lesser performance and criticism at least contributed to the rift between Mr. Sumner and Mr. Jacobs. By approximately May of 1991 Mr. Sumner concluded that Mr. Jacobs' performance had noticeably deteriorated and he seemed to lose interest in his job. In September of 1991 Mr. Jacobs and his wife became foster parents of two infants. The infants both suffered from severe medical problems. Mr. Jacobs' relationship with Mr. Sumner became more strained as a result of the stress on Mr. Jacobs caused by the children's condition. In the summer of 1991, a new sales director for the District was hired by the Department. SEE 23. For the November, 1990 to November, 1991 fiscal year, Mr. Sumner evaluated Mr. Jacobs' performance as "Achieves Standards." This rating was one rating lower than the previous ratings Mr. Jacobs had received from Mr. Sumner. The rating was for Mr. Jacobs' first full year as an LSR II and reflected the drop in his performance as an LSR II. The following comment, among others, was made by Mr. Sumner on the evaluation: Over the past years Jake has been an enthusiastic and productive worker. This previous year has seen a deterioration of skills that he is normally capable of doing. I feel this maybe [sic] in part to environmental pressures outside of work. Many changes have been made to improve work environment, yet employee doesn't appear to enjoy his work. This change became more evident after first full year as an LSR II. Petitioner's exhibit 11. At the time of the 1990-1991 evaluation of Mr. Jacobs, Mr. Sumner was not aware that changes in the number of LSR positions in the District would be made by the Department in 1992. Effective January 1, 1992, the Department eliminated the LSR I and LSR II classifications. A single classification, Lottery Marketing Representative (hereinafter referred to as "LMR"), was created. The evidence failed to prove that Mr. Sumner was involved in the decision to make this change. Mr. Jacobs, Ms. Chason and Ms. Gray were reclassified from LSR II to LMR. Mr. Edwards, Mr. Kissinger and Ms. Silcox were reclassified from LSR I to LMR. In March of 1992 Mr. Sumner was notified by the Department that the sales staff of the District was being reorganized. As a consequence, the District LMR positions were to be reduced from six positions to four. As a part of the reorganization, the District was to receive one new position: a Telemarketing Representative, a newly created employee classification. As a result of the reorganization, Mr. Sumner was faced with reclassifying/demoting one LMR and possibly terminating one LMR. Mr. Sumner was only given two weeks to make the changes. In order to minimize the impact of the reorganization on employees of the District, Mr. Sumner successfully convinced the Department to locate the new Telemarketing Representative position at the District office. Mr. Sumner informed the LMRs of the reorganization and sought volunteers to take the Telemarketing Representative position in a meeting of all LMRs. Ms. Silcox subsequently volunteered to take the Telemarketing Representative position. At the time that Mr. Sumner was deciding how to comply with the Department's reorganization, the Administrative Assistant position in the District became vacant. Ms. Silcox subsequently agreed to take the Administrative Assistant position when Mr. Sumner asked her to. As a result of Ms. Silcox taking the Administrative Assistant position, Mr. Sumner did not have to terminate any LMR. The person in the other LMR position eliminated could move into the Telemarketing Representative position. Mr. Sumner spoke to the remaining four LMRs seeking a volunteer to take the Telemarketing Representative position. Mr. Edwards indicated that he would consider taking the position but delayed a decision over night. Mr. Jacobs did the same. Ultimately, none of the remaining five LMRs volunteered to take the Telemarketing Representative position. Mr. Sumner was required to select one of the five LMRs (Ms. Chason, Mr. Edwards, Ms. Gray, Mr. Jacobs or Mr. Kissinger) to be placed in the Telemarketing Representative position. Mr. Sumner decided that Mr. Jacobs should be reassigned/demoted to the Telemarketing Representative position. Mr. Jacobs was informed of the decision and was given the choice of accepting the Telemarketing Representative position with no reduction in salary or moving to Gainesville or Tampa as an LMR. Mr. Jacobs elected to take the Telemarketing Representative position so that he would not have to move. Mr. Jacobs was placed in the Telemarketing Representative position and continued to be paid the same salary he was receiving as an LMR. Mr. Jacobs received no reduction in pay or benefits. The Basis for Mr. Sumner's Decision to Reassign/Demote Mr. Jacobs. Mr. Sumner's decision to place Mr. Jacobs in the Telemarketing Representative position was based on his perception of the performance of the four other remaining LMRs (after Ms. Silcox had agreed to take the Administrative Assistant position) under Mr. Sumner's supervision compared to Mr. Jacobs' performance. Mr. Sumner took into account the past performance of each of the five LMRs and their progress in the various positions they had held under Mr. Sumner's supervision. Mr. Sumner did not base his decision on or consider seniority. Mr. Sumner selected Mr. Jacobs based upon the decline in Mr. Jacobs' performance since being promoted to LSR II, and his perception of the relatively slower development of Mr. Jacobs' abilities as an LSR II when compared with the other LMRs. All of the LMRs (while employed in the various positions under Mr. Sumner's supervision) had experienced problems in their performance and had been criticized by Mr. Sumner. There were no exceptions. Except for Mr. Jacobs, all of the LMRs had received consistently high evaluations of "Exceeds at Least One Standard" or "Exceeds Most Standards" each year while under Mr. Sumner's supervision. These ratings were based on their overall performance and the evidence failed to prove that the ratings were not reasonable. Only the rating given to Mr. Jacobs for his last evaluation period prior to his assignment to the Telemarketing Representative position had declined below those ratings. Two of the five LMRs had held LSR positions for a shorter period of time than Mr. Jacobs: Mr. Edwards: Storekeeper from 1987 to April of 1988, LSR I from April of 1988 to January of 1992, and LMR from January of 1992; and Mr. Kissinger: Storekeeper from May of 1988 to August of 1990, LSR I from August of 1990 to January of 1992 and LMR from January of 1992. Mr. Edwards and and Mr. Kissinger were not selected to be placed in the Telemarketing Representative position because of their consistently high evaluations and because they had both continued to progress and improve in their performance consistently after being employed in the District. Mr. Jacobs had not continued to progress and improve. The Impact of Routes on Mr. Jacobs' Performance. In the fall of 1987, the District was divided into three geographic areas (hereinafter referred to as "Routes"), by Mr. Sumner. Each LSR II was assigned to one of the three Routes and was responsible for servicing the retailers located therein. Each of the three Routes contained a part of Panama City, the largest city in the District, and a part of the rural areas of the District. Ms. Doll was assigned the eastern portion of the District, Ms. Gray was assigned the western portion and Ms. Chason was assigned the rest. Mr. Jacobs was assigned to work with Ms. Chason on the Route assigned to her. When Ms. Doll left the District and Mr. Jacobs was temporarily assigned to replace her, Mr. Jacobs took over Ms. Doll's Route plus a part of Ms. Gray's Route. Mr. Jacobs satisfactorily performed his duties as an LSR I on Ms. Chason's Route and while temporarily replacing Ms. Doll as an LSR II on Ms. Doll's Route. These Routes did not adversely affect Mr. Jacobs' performance. In September of 1990, when Mr. Jacobs was permanently promoted to LSR II and Ms. Davis was promoted to an LSR II position, the Routes were restructured by Mr. Sumner. Mr. Jacobs continued to serve the eastern portion of the District previously serviced by Ms. Doll and by him as a temporary LSR II, Ms. Chason was assigned Panama City Beach and the accounts along part of the Florida border with Georgia and Alabama, and Ms. Davis was assigned the western portion of the District. All three Routes continued to include portions of the greater Panama City area (Lynn Haven, Parker, Callaway and Springfield). The accounts on Panama City Beach were more productive during the summer months. The accounts along the Florida border also tended to be more productive. Ms. Chason was assigned these more productive accounts because she had evidenced greater skills in sales/marketing than the other LSR IIs. Not because she was white. The Routes were not totally restructured again until the January, 1992 consolidation of LSR positions. Prior to January of 1992 changes were, however, made to the Routes. These changes were made because of frequent changes in retailers participating in lottery sales and, on a few occasions, when Mr. Sumner was requested to make changes by the LSR IIs, including Mr. Jacobs. The Route assigned to Mr. Jacobs in September of 1990 was more rural than the other Routes and Mr. Jacobs was required, on average, to drive more miles than the other LSR IIs. The last relevant restructuring of Routes took place in January of 1992 after the consolidation of LSR I and II positions. At that time, the three Routes served by the LSR IIs were divided essentially in half, creating six Routes, one for each LMR. Each LSR II was allowed to select the half of the Route he or she was previously responsible for and the other half was assigned to the LSR I that had previously been assigned to the Route. Immediately prior to January of 1992, Mr. Jacobs was assisted by Ms. Silcox. When their Route was divided, Mr. Jacobs selected the half of the Route he desired and Ms. Silcox was assigned the other half. The evidence failed to prove that Mr. Sumner's evaluation of Mr. Jacobs was unfairly affected by the Route he was assigned to or that Mr. Sumner treated Mr. Jacobs unfairly in the assignment of Routes based upon his race. Sales figures contained on evaluations performed by Mr. Sumner were not always seen by Mr. Sumner when he completed an evaluation. In at least one year, those figures were added to the evaluation after Mr. Sumner completed his part of the evaluation. The suggestion that Mr. Jacobs' Route adversely impacted his evaluations was contradicted by the fact that for three years, Mr. Jacobs and Ms. Chason, who allegedly had the most favorable Route, received the same overall evaluation: "Exceeds at Least One Standard." In the first full year that Mr. Jacobs served as an LSR II, although his overall evaluation declined, the "Other Category," which included Route statistics, on Mr. Jacobs' evaluation was rated "Exceeds at Least One Standard." The suggestion that some LSRs were able to dictate their Routes was also not supported by the evidence. All of the LSRs had some input into the Routes that they handled. For example, Mr. Jacobs and Ms. Davis both requested the assignment of retailers near the Florida border. These requests were honored by Mr. Sumner. Mr. Jacobs was assigned Bascom and Malone, Florida, and Ms. Davis was assigned Campbellton, Florida. Mr. Jacobs accepted the new accounts despite the fact that the mileage he was required to travel increased. All of the LSRs were also allowed to choose between half of their prior Routes in 1992. These incidents did not prove that white LSRs were allowed to select their Routes. Sales generated in each Route had minimal impact on Mr. Sumner's evaluation of Mr. Jacobs or the other LSR's performance. No sales quotas were established and LSRs were not compensated on the basis of their sales during the period of time relevant to this proceeding. While sales had to be taken into account to some extent, performance was evaluated based upon each person's general marketing skills and efforts. Sales goals were established during the summer of 1991 by the new sales director. Each LSR was assigned a sales quota based upon a percentage increase from their last year sales figures. If an LSR failed to meet the quota, there was no consequence. Employees were commended if they did achieve their quota. LSRs were given quotas of new retailers they were to attempt to add each month. All LSR Is were given a quota of one new retailer and all LSR IIs were given a quota of two new retailers. Recruitment of retailers was not necessarily a product of the length of a Route. See Petitioner's exhibit 36. The evidence failed to prove that the Routes assigned to Mr. Jacobs adversely impacted Mr. Sumner's evaluation of his ability to recruit. Based upon the weight of the evidence, Mr. Jacobs failed to prove that the assignment of Routes was made in a discriminatory manner or that Mr. Jacobs' Routes adversely affected his performance because of difficulty caused by the Routes in meeting sales or recruitment quotas. Leave Policies. Mr. Sumner's policy concerning requests for annual leave made was that District employees should request approval at least two weeks in advance of when the employee intended to be off work. The two week notice policy was well known to all employees, including Mr. Jacobs. Mr. Sumner issued several memoranda setting out the policy. Mr. Sumner also notified employees that a telephone call was all that was necessary to take annual leave if there was an emergency. Mr. Sumner's policy concerning giving two weeks notice was not strictly adhered to or enforced. Mr. Sumner recognized there were reasonable circumstances when an employee was not able to request permission to take annual leave two weeks or more in advance. As long as an employee made a reasonable effort and the operation of District would not, in Mr. Sumner's opinion, be harmed by an employee's absence, Mr. Sumner approved leave even when two weeks notice was not given. The two week notice requirement was waived for virtually every employee, including Mr. Jacobs. On one occasion Mr. Sumner denied a request by Mr. Jacobs for annual leave. The evidence failed to prove that Mr. Sumner denied the request without just cause or based upon Mr. Jacobs' race. During the period between April of 1990 and April of 1992, Mr. Sumner approved approximately 400 hours of leave, annual and sick, for Mr. Jacobs. The evidence failed to prove that Mr. Jacobs was treated differently because of his race with regard to leave requests he made while employed by the Department. Part of the leave taken by Mr. Jacobs was attributable to the illness of his two foster care infants. Mr. Jacobs had taken time off on numerous occasions due to their poor health. Mr. Jacobs had been required to take annual leave, rather than sick leave, for the infants because the Department's personnel office had informed Mr. Sumner and Mr. Jacobs that State leave policies did not allow sick leave for foster care children. Mr. Sumner did not strictly enforce the notice policy for annual leave when Mr. Jacobs took annual leave for the foster care children. Nor did Mr. Sumner give Mr. Jacobs any reasonable reason to expect that Mr. Sumner would not approve the use of annual leave when the children were ill because Mr. Jacobs had not given two weeks advance notice. Nor was it reasonable for Mr. Jacobs to not realize that a simple telephone call to the office to inform the office of an emergency with the children would not be sufficient. Between March 17, 1992 and March 18, 1992, one of Mr. Jacobs' foster care infants became extremely ill. This was not the first time that the child had experienced the type of problem experienced at that time, but the problem was more severe. Although Mr. Jacobs could have simply telephoned the office the next morning and reported that there was an emergency, Mr. Jacobs reported to work. Mrs. Jacobs took the infant to a hospital where it was to be determined whether the child would be admitted to the hospital. After arriving at the office, Mr. Jacobs, who was visibly shaken, spoke with Mr. Sumner. What took place during that discussion was disputed by Mr. Jacobs and Mr. Sumner. Mr. Jacobs testified that Mr. Sumner was clearly informed that he wanted to go to the hospital to be with the child but was told he had to attend to his Route first. Mr. Sumner testified that Mr. Jacobs did not specifically request time off, that he had indicated he might be require to go to the hospital sometime during the day, and that Mr. Sumner told Mr. Jacobs to service his five biggest accounts scheduled for that day and then take the rest of the day off even if it was not necessary for him to go to the hospital. Shortly after the conversation between Mr. Sumner and Mr. Jacobs, and after Mr. Jacobs had left on his Route, the child died. Mr. Jacobs was informed at his first stop and he left for the hospital. Based upon the weight of the evidence, it is concluded that Mr. Jacobs, who was tired from the events of the night before and under a great deal of stress because of his concern for the child, was not denied approval of leave by Mr. Sumner to immediately go to the hospital and was not told that he had to complete his Route. At most, there appears to have been an unfortunate miscommunication between Mr. Jacobs and Mr. Sumner about the urgency of the situation. Mr. Sumner's belief that the matter was not as urgent as it turned out to be was supported by the fact that the infants had experienced similar difficulties in the past; the fact that the child had not been taken to the hospital earlier; the fact that Mr. Jacobs had come to the office that morning instead of telephoning; and the fact that Mr. Mr. Jacobs did not insist on going to the hospital immediately. Assignment of Department Vehicles. LSRs were assigned Department vehicles, (vans) for use in servicing Routes. In approximately November of 1987, the District was temporarily assigned one less van than needed. Mr. Jacobs volunteered to drive his personal vehicle, for which he was reimbursed by the State. Mr. Jacobs drove his personal vehicle until approximately December 24, 1987, when he received a new van. Other LSRs were required to use their personal vehicles on occasion, for which they were also reimbursed by the State. Pursuant to a replacement schedule instituted by the Department, 1/3 of all vans were to be replaced every year. In this way, every van would be used a maximum of three years. This schedule was based upon estimates of the time necessary for vans to have accumulated sufficient mileage (80,000 miles) to warrant replacement. To insure that a van was ready for replacement at the end of three years, it was Department policy to assign vans with lower mileage after a year or two years use to high mileage drivers. In November of 1991, five vans in the District exceeded 80,000 miles and were to be replaced with new vans. The District, however, only received three new vans. The other two vans were replaced with two lower mileage vans scheduled to be replaced the next fiscal year. Consistent with Department policy Mr. Sumner was suppose to assign the new vans to persons who drove less miles and the older vans should have been assigned to persons who drove greater miles. In November of 1991, the mileage driven in the previous year by each LSR was as follows: Silcox 16,327 miles Chason 16,426 miles Davis 21,000 miles Jacobs 23,717 miles Edwards 24,000 miles Kissinger 30,000 miles Pursuant to Department policy, the new vans should have been assigned to Ms. Silcox, Ms. Chason and Ms. Davis. The new vans, however, were assigned to Ms. Chason, Ms. Davis and Mr. Kissinger. The vans assigned to Ms. Chason and Ms. Davis were assigned consistent with Department policy. Ms. Silcox, Mr. Jacobs and Mr. Edwards were assigned older vans. The assignment of an older van to Ms. Silcox was inconsistent with Department policy. The assignment of older vans with less mileage to Mr. Jacobs and Mr. Edwards was consistent with Department policy. Had Department policy been followed completely and the third new van had been assigned to Ms. Silcox and not Mr. Kissinger, Mr. Jacobs would still not have received a new van. Mr. Sumner asked Mr. Kissinger and Mr. Edwards if they would drive to another district to pick up two vans. Mr. Sumner indicated that one of the new vans would be assigned to one of them if they agreed. They agreed, and Mr. Sumner awarded a new van to Mr. Kissinger. Mr. Sumner did not give Mr. Jacobs or Ms. Wilcox the opportunity to pick up the two vans located in another district. Marketing Promotions. LSRs, as part of their marketing responsibility, could conduct various types of promotions at retailers intended to increase sales of lottery tickets. LSRs were expected to conduct promotions. Quotas were assigned to each LSR II. They were expected to conduct one promotion per month. Promotions generally did not require much of a financial investment by the retailer and smaller retailers were generally as interested in conducting promotions as larger retailers. The evidence failed to prove that the Route assigned to Mr. Jacobs adversely affected his ability to conduct promotions. The evidence also failed to prove that Mr. Sumner's evaluations of Mr. Jacobs' performance while supervised by Mr. Sumner were adversely impacted by a lack of promotions caused by Mr. Jacobs' Route. Mr. Sumner believed that Mr. Jacobs performed a sufficient quantity of promotions but that he was slow about doing them. Conducting some promotions required overtime. Overtime, however, was required to be requested and approved in writing. Approval of overtime came from the Department and not Mr. Sumner. Mr. Jacobs was aware of this requirement. In December of 1991, Mr. Jacobs requested permission to conduct a promotion which involved the giving away of coffee mugs with the Department logo on them to each customer that bought a minimum number of lottery tickets. This promotion did not involve overtime and none was requested by Mr. Jacobs. Mr. Jacobs claimed that the promotion was changed to one that would require overtime, and that he was told by Mr. Sumner that approval would be obtained from the Department. The weight of the evidence failed to support this claim. In August of 1991, Ms. Chason sought approval to conduct a promotion at a seafood festival to be held in October of that year. The festival required overtime for two employees plus Ms. Chason. Ms. Chason asked for volunteers and accepted the first two persons. Mr. Jacobs did not volunteer and, consequently, was not one of the two persons selected by Ms. Chason. The evidence failed to prove that Mr. Sumner was involved in the failure to select Mr. Jacobs, that the failure to select Mr. Jacobs was somehow unfair or that Mr. Jacobs was not selected by Ms. Chason because of his race. Mr. Jacobs also claimed that he was not given credit for two new retailers he obtained because the forms signing up the retailers were lost. The evidence, however, proved that, although the retailers were lost as Department customers, Mr. Jacobs was given credit for signing them up by Mr. Sumner. The evidence failed to prove that Mr. Sumner was involved with the loss of the forms signing up the retailers or that they were lost to cause Mr. Jacobs to fail to meet his quota for new retailers. The evidence failed to prove that Mr. Sumner or the Department awarded bonuses or that Mr. Jacobs was denied bonuses because of his race. Miscellaneous Charges. The evidence failed to prove that Mr. Jacobs was denied training provided to white employees because of his race. The evidence failed to prove that Mr. Jacobs was denied the use of new equipment provided to white employees because of his race. Mr. Jacobs' Charge of Discrimination. Mr. Jacobs filed a Charge of Discrimination against the Department with the Florida Commission on Human Relations. Mr. Jacbos alleged that he had been discriminated against based upon his race. On March 29, 1993, the Commission issued a "Determination: No Cause" finding "no reasonable cause to believe that an unlawful employment practice has occurred " Mr. Jacobs filed a Petition for Relief with the Commission requesting a formal administrative hearing. In the Petition for Relief filed with the Commission Mr. Jacobs alleged, in response to questions 3, 4 and 5 on the Petition for Relief, the following: Respondent has violated the Human Rights Act of 1977, as amended, in the manner specifically described below: My supervisor, Steve Sumner has systematically and intentionally denied me equal opportunities because of my race (black) for training, compensation, use of new equipment, time off from work, leave and retention and advancement in my position as an LSR. See the attached charge of discrimination incorporated herein. The disputed issues of material fact, if any, are as listed below: Mr. Sumner allowed every other LSR (all who are white) to pick their own routes which were the best routes, leaving the most difficult to me. He has also allowed other LSR's to work for bonuses during promotions but has not allowed me to do so. Mr. Sumner has misplaced some new applications for lottery retailers that I obtained so that my quotas of achievement would be lower. Mr. Sumner retained a coworker in the LSR position when he had been promoted to LSR long after me. Mr. Sumner denied my taking leave when one of my foster children was critically ill and the child died while I was at work. The ultimate facts alleged and entitlement to relief are as listed below: I wish to have a formal post-investigative proceeding. I wish to be reinstated in my LSR position with seniority back to the date of my demotion or receive adequate compensation for the harms I have suffered and reasonable attorneys fees and costs. I am a member of a protected class and Mr. Sumner has singled me out for arbitrary and negative treatment based on my race (black). All the responses Mr. Sumner has provided are pretextual or simply not true. The Commission requested that the Division of Administrative Hearings assign a Hearing Officer to conduct the hearing requested by Mr. Jacobs. At the commencement of the proceeding, Mr. Jacobs indicated that he was seeking a "general injunction", an apology from the Department, monetary compensation for damages in the form of payment for pain and suffering, attorney fees and reinstatement as an LSR II. Alleged Race Discrimination. The evidence in this case failed to prove that any action of Mr. Sumner or the Department was based upon Mr. Jacobs' race. He was not held to any standard or requirement based upon his race and he was not treated in a manner different from the treatment afforded employees of other races. The evidence proved that Mr. Sumner had hired Mr. Jacobs, that Mr. Sumner had given him high evaluations for the first three years he worked, he had temporarily promoted Mr. Jacobs to a higher position with a temporary increase in pay not afforded white employees, he had promoted him with a permanent increase in pay which made Mr. Jacobs the highest paid employee in his class at the District, and he had assisted Mr. Jacobs in insuring that he was qualified for the promotion. Only after Mr. Jacobs' performance began to decline did Mr. Sumner take actions which were somewhat adverse to Mr. Jacobs. Those actions did not take place until after three years of working together. The reasons for taking those actions were reasonably explained by Mr. Sumner and the Department. Mr. Jacobs was unable to explain the foundation for his belief that Mr. Sumner began treating him differently in 1991 on the basis of his race.
The Issue Whether the Department of Transportation properly denied Petitioner’s permit application for a proposed outdoor advertising sign to be erected adjacent to US 98, 0.817 miles west of State Road 87, in Santa Rosa County, Florida, pursuant to Chapter 479, Florida Statutes.
Findings Of Fact On April 3, 1998, Lamar submitted an application for new sign permits for a proposed outdoor advertising sign along US Highway 98, 0.817 miles west of State Road 87 in Navarre, Santa Rosa County, Florida (new permits) to DOT. The new permits were to be located within 2000 feet of existing permitted signs for which Lamar already possessed permits (the existing permits). The existing permit numbers were AE682-6 and BL256-35. Santa Rosa County’s Land Development Code Section 8.07.00 provides that no off-premise advertising sign, such as involved here, can be located within 2000 feet of any other off-premise sign on the same side of the street right-of- way. Since Lamar's existing permitted sign and the proposed location of the new permitted sign was within 2000 feet of each other, Lamar wished to cancel the existing permits conditioned upon the approval of the new permits. The practice is known as conditional cancellation. Prior to and during 1998, DOT had an established non- rule policy of conditional cancellation for existing sign permits. Conditional cancellation could occur when applying for new permits that would potentially conflict with existing permits. An applicant could simultaneously submit a cancellation certification for the existing permits together with the application for new permits. The old permits would not be canceled until new permits were issued. The exact process for requesting a conditional cancellation was not shown to be uniform throughout the state. However, the policy of allowing conditional cancellations to be made by permittees was accepted statewide. The policy and process for conditional cancellation are now codified in Rule 14-10.004, Florida Administrative Code, after the application in this case had been processed. In this case and in conjunction with the submission of Lamar's new permit application, Lamar submitted a copy of the cancellation certification for its existing permitted signs to the regional District Three DOT office in Chipley, together with its application for the new permits. Simultaneously, on April 3, 1998, Lamar submitted the original cancellation certification to the central office of DOT. The instructions on the certification of cancellation require the cancellation form to be submitted to the Tallahassee office of DOT. Neither the cancellation form nor letter from Lamar indicated that the cancellation was conditional. There was no place on the form to make such an indication. Lamar had been following the above-filing practice when requesting conditional cancellation since 1995. Because of its practice Lamar believed that it had properly notified DOT that cancellation of its existing permits was conditioned upon approval of its application for new permits. Lamar never considered that one office of DOT might not know what occurred at another office of DOT or that one office of DOT might not communicate with another office of DOT. On the other hand, the regional office of DOT in Chipley only recognized that an applicant had requested a conditional cancellation of existing permits when the original and not a copy of the cancellation form was submitted with the application for new permits. Lamar was unaware of the distinction between the filing of an original cancellation form with its application and the filing of a copy of the cancellation form with its application. More importantly, this distinction was not a rule and does not appear to have been communicated to anyone save the officials at the Chipley office of DOT. Consequently, Lamar relied on its established practice when seeking a conditional cancellation. A practice that DOT had recognized on earlier conditional cancellations by Lamar. Lamar reasonably believed, based on its previous experience with the policy of conditional cancellation, that existing permits would not be cancelled until the new permits were granted. Shortly after the filing of Lamar’s application, District Three returned Lamar's permit application without action because it was incomplete. The application was not considered filed by DOT because it was incomplete and the entire application package, including the copy of the cancellation form was returned to Lamar. The application was not logged into the Department’s computer. The Chipley office, even though it knew the old permits were to be cancelled, did not notify the Tallahassee office of the return of Lamar’s application or the lack of approval of that application. On April 7, 1998, the Tallahassee office of DOT processed the cancellation form it had received from Lamar on the existing permits. The existing permits were cancelled and the cancellation was logged into the Department’s computer. Because the Department did not follow its policy of conditional cancellation on which Lamar had relied for a number of years and the Department had knowledge of Lamar’s application for new permits which clearly conflicted with the cancelled permits, the existing permits should not have been cancelled and should have remained in effect since the application had not been approved by DOT. The fact that the knowledge resided in different offices of DOT is irrelevant. On April 10, 1998, Bill Salter Advertising (Salter) submitted an application for sign permits. The proposed sign would be located 0.36 miles west of State Road 87 on the same side of US 98 as the existing permit location for Lamar. The Salter permits would be within 2000 feet of Lamar’s existing permits and not be approved by DOT if the existing Lamar permits were still in effect. On May 6, 1998, Lamar resubmitted its complete application for the new permits. Upon inspection of the site for Lamar’s new permits, it was discovered that a spacing conflict existed with the Bill Salter application site. On May 10, 1998, DOT tentatively denied Salter’s application for incorrect information on the sketch of the site it had submitted with its application. On May 28, 1998, Salter amended its application with a corrected site sketch. By letter dated June 5, 1998 the Department advised Lamar that its application would be held pending resolution of the prior application filed by Salter. On June 26, 1998, DOT granted Salter’s application. On July 6, 1998, permits BU595-55 and BU596-55 were issued to Salter. On August 26, 1998, DOT denied Lamar’s applications. The denial was based on Section 479.15, Florida Statutes, which prohibits DOT from granting a permit which would conflict with a county ordinance such as the Santa Rosa County Land Development Code sign spacing requirements. No other basis for denial of the subject permits exists.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Transportation reinstate the Lamar Advertising Company’s existing permits AE682-6 and BL256-35. DONE AND ENTERED this 7th day of October, 1999, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of October, 1999. COPIES FURNISHED: G. R. Mead, II, Esquire Clark, Partington, Hart, Larry Bond, Stackhouse & Stone 125 West Romana Street, Suite 800 Pensacola, Florida 32591-3010 Sheauching Yu, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Thomas F. Barry, Secretary Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue Whether Respondent violated Section 112.3148(3), Florida Statutes, by committing the acts alleged in the Order Finding Probable Cause and, if so, what penalty is appropriate.
Findings Of Fact Respondent, John Pollet (Pollet), served continuously as Mayor of Kissimmee from November 1, 1991, until he was suspended in 1995. As Mayor, Pollet was a voting member of the City Commission and signed contracts the city entered. At all times relevant to the instant case, George Geletko was employed as the Municipal Marketing Manager with Waste Management, Inc. Mr. Geletko's primary responsibility was to make sure that contracts between Waste Management, Inc., and its municipal customers were properly administered. Waste Management, Inc., had a contract with the City of Kissimmee to provide waste disposal services that was scheduled to expire in 1994. However, on September 6, 1994, the City of Kissimmee renewed its contract with Waste Management, Inc. Mr. Geletko was responsible for administering Waste Management's contract with the City of Kissimmee and was the contact person between Waste Management, Inc., and the City of Kissimmee. As the Municipal Marketing Manager for Waste Management, Inc., Mr. Geletko sought to influence or encourage the Kissimmee City Commission and Pollet to do business with his company. In order to accomplish this, Mr. Geletko, in his position with Waste Management, Inc., took actions that directly or indirectly furthered or communicated his intention to influence or encourage the Kissimmee City Commission and Pollet to do business with Waste Management, Inc. In the spring of 1994, during a telephone conversation, Pollet asked Mr. Geletko if Waste Management, Inc., had any tickets to an Orlando Magic basketball game. Mr. Geletko did not respond directly to Pollet's inquiry, but stated that "whatever we did, we would have to be in compliance with all ordinances and the State Code of Ethics." Pollet told Mr. Geletko that he would get back with him. However, no further inquiry regarding Orlando Magic tickets was made by Pollet to Mr. Geletko. At the time Pollet asked about Orlando Magic basketball tickets, he believed Mr. Geletko had taken former City Commissioner Richard Herring to a Magic game at some point prior to his inquiry. Pollet testified that the inquiry regarding Orlando Magic basketball tickets was made based on personal political considerations involving former City Commissioner Herring, who was sometimes an ally and sometimes a foe of Respondent in matters relating to City politics. However, Pollet gave no such explanation to Mr. Geletko during their conversation involving Orlando Magic basketball tickets. Based on Pollet's inquiry, Mr. Geletko felt that Pollet was asking him for tickets to the Orlando Magic game. Mr. Geletko, as a representative of Waste Management, Inc., gave gifts, including golf games and meals, to Pollet both before and after Respondent asked him about the Orlando Magic Tickets. Pollet's approach to Mr. Geletko was a solicitation for tickets. At all times relevant to the instant case, Charles Voss was a vice president with Camp, Dresser, and McKee, an environmental engineering firm. Camp, Dresser, and McKee had two contracts with the City of Kissimmee to provide engineering services. The City of Kissimmee and Camp, Dresser, and McKee entered into one such contract on November 2, 1993. Mr. Voss was responsible for marketing Camp, Dresser, and McKee's services to the City of Kissimmee. Mr. Voss sought to influence or encourage the Kissimmee City Commission and Pollet to do business with Camp, Dresser and McKee. To this end, Mr. Voss took actions that directly or indirectly furthered or communicated his intentions to influence or encourage the Kissimmee City Commission and Pollet to do business with Camp, Dresser, and McKee. In March 1993, Pollet called Mr. Voss and asked him if Camp, Dresser, and McKee had any tickets to the Nestle Invitational Golf Tournament. Mr. Voss told Pollet that his firm did not have tickets to the 1993 Nestle Invitational Golf Tournament. Based on Respondent's question, Mr. Voss thought Respondent was asking him for tickets to the golf tournament. Pollet testified that he asked about the passes because he wanted to know if Mr. Voss was going to attend the tournament. According to his testimony, Pollet thought that if Mr. Voss were going to the golf tournament, they could meet there. Notwithstanding his testimony, Pollet never asked Mr. Voss whether he was going to the tournament. In both 1994 and 1995, Pollet accepted passes to the Nestle Invitational Golf Tournament as gifts from Mr. Voss and Camp, Dresser, and McKee. Mr. Voss gave these golf tournament passes to Pollet because Pollet expressed an interest in the tournament in 1993. Pollet did not pay for the golf tournament passes he received from Mr. Voss in 1994 and 1995. Mr. Voss, as a representative of Camp, Dresser, and McKee, had given Pollet various gifts in the past. Except for partial payment for certain tickets, Pollet has never paid for any of these gifts. Respondent's approach to Mr. Voss was a solicitation for tickets to the 1993 Nestle Invitational Golf Tournament. Respondent admits he has accepted gifts from both Waste Management, Inc., and Camp, Dresser, and McKee.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order and Public Report be entered finding that Respondent, John Pollet, violated Section 112.3148(3), Florida Statutes; imposing a civil penalty of $1,000.00 per violation; and issuing a public censure and reprimand. DONE and ENTERED this 1st day of November, 1996, in Tallahassee, Florida. CARLOYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-647 Filed with the Clerk of the Division of Administrative Hearings this 1st day of November, 1996. COPIES FURNISHED: Eric S. Scott, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Mark Herron, Esquire 216 South Monroe Street Tallahassee, Florida 32301 Bonnie Williams, Executive Director 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, General Counsel 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Kerrie J. Stillman Complaint Coordinator Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue The ultimate issue for determination is whether Respondent discriminated against Petitioner on the basis of her age by failing to provide equal raises in October 1994 and equal termination benefits in August 1995, in violation of Section 760.10(1), Florida Statutes (1997). (All statutory references are to Florida Statutes (1997) unless otherwise stated).
Findings Of Fact Petitioner did not appear at the administrative hearing and did not submit any evidence. Respondent seeks attorney fees and costs incurred as a result of Petitioner's failure to comply with the Discovery Order. It is uncontroverted that Petitioner is a female born on November 17, 1929, and a member of a protected class. Respondent employed Petitioner up to her dismissal on August 1, 1995. Petitioner filed a Charge of Discrimination with the Commission on or about August 31, 1995. The Commission's date stamp on the Charge of Discrimination is legible only for the month and year of filing. August 31, 1995, is the deemed date. Petitioner's Charge of Discrimination contains two allegations of age discrimination. First, Petitioner alleges that Respondent discriminated against Petitioner on August 1, 1995, by terminating Petitioner's employment without the same severance pay that Respondent paid to one of Petitioner's co- workers. Second, Petitioner alleges that in October 1994 Respondent failed to give Petitioner the same raise as Respondent gave Petitioner's co-workers in the same position, i.e., a laboratory technician. Time Limits The Charge of Discrimination was timely filed in accordance with the requirements of Section 760.11(1). The filing date of August 31, 1995, fell within 365 days of the earliest alleged discrimination on October 1, 1994. Section 760.11(3) authorized the Commission to issue a determination of reasonable cause within 180 days of August 31, 1995, when the Charge of Discrimination was filed. Counting September 1, 1995, as the first day of the 180-day time limit, Section 760.11(3) authorized Commission to determine reasonable cause no later than February 27, 1996. Section 760.11(7) required Petitioner to file a request for hearing within 35 days of February 27, 1996. Counting February 28, 1996, as the first day of the 35-day period and assuming for the benefit of Petitioner that February 1996 had only 28 days, Section 760.11(7) required Petitioner to file a request for hearing no later than April 3, 1996. Petitioner did not timely file her request for administrative hearing. Petitioner first requested an administrative hearing in the Petition for Relief filed on September 10, 1997. Petitioner filed her request for hearing approximately 525 days late and 560 days after the expiration of the 180-day time limit prescribed in Section 760.11(3). Section 760.11(7) statutorily bars Petitioner's claim. Section 760.11(7) expressly provides, in relevant part: If the aggrieved person does not request an administrative hearing within the 35 days, the claim will be barred. Fees and Costs The Commission referred the request for hearing in the Petition for Relief to DOAH on October 16, 1997. On November 3, 1997, Respondent filed its Answer and Affirmative Defenses and its Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted and Alternative Motion for More Definite Statement with Incorporated Memorandum of Law in Support Thereof (respectively, the "Motion to Dismiss" and "Motion for More Definite Statement"). On October 17, 1997, Respondent served Petitioner with copies of the Motion to Dismiss and Motion for More Definite Statement by United States Mail. Petitioner did not file a response to the Motion to Dismiss and Motion for More Definite Statement within 12 days of the date of service, or anytime thereafter. On November 18, 1997, an Order to Show Cause required Petitioner to file no later than December 15, 1997, a written response stating why the relief requested by Respondent should not be granted. A Notice of Hearing issued on the same date scheduled the administrative hearing for February 9, 1998. On December 8, 1997, Petitioner filed her written response to the Order to Show Cause but did not serve a copy on Respondent. On December 30, 1997, a Notice of Ex Parte Communication provided Respondent with a copy of Petitioner's written response and reminded each party to serve the opposing party with copies of any documents filed with DOAH. On January 15, 1998, Respondent filed a renewed Motion to Dismiss and Motion for More Definite Statement and requested a continuance of the administrative hearing on the ground that Respondent had not received a copy of Petitioner's response to the Order to Show Cause until the first week in January. Petitioner did not respond to either of the renewed motions or to the motion for continuance. On February 3, 1998, the ALJ continued the hearing to a date to be agreed upon by the parties during a telephone hearing scheduled for February 9, 1998. The telephone hearing was scheduled to hear oral argument on Respondent's pending motions and as a case management conference. At the outset of the telephone conference conducted on February 9, 1998, Petitioner stated that she did not wish to proceed without counsel. Petitioner represented that she had been attempting to obtain counsel, without success, and requested additional time in which to obtain counsel. Attorney Robert Hosch, Petitioner's nephew, participated in the motion hearing on February 9, 1998, for the limited purpose of representing that he would assist Petitioner in obtaining counsel. The ALJ granted Petitioner's request for additional time; reserved ruling on Respondent's pending motions for disposition after hearing oral argument during a telephone conference rescheduled for March 2, 1998; instructed Petitioner to have her attorney file a notice of appearance no later than February 19, 1998, and a response to Respondent's renewed Motion to Dismiss and Motion for More Definite Statement no later than March 2, 1998. Pursuant to the agreement of the parties during the telephone conference, the ALJ scheduled the administrative hearing for April 28, 1998. On February 23, 1998, an Order Continuing and Rescheduling Formal Hearing memorialized the foregoing matters. On March 2, 1998, the parties and Mr. Hosch participated in another telephone conference concerning Respondent's Motion to Dismiss and Motion for More Definite Statement. Mr. Hosch stated that he did not represent Petitioner but was assisting her in obtaining counsel. Petitioner requested additional time in which to obtain counsel. The ALJ required Petitioner to file a more definite statement and a notice of appearance from her attorney, if any, no later than March 12, 1998. The ALJ instructed the parties and Mr. Hosch that failure to file a more definite statement and any notice of appearance on or before March 12, 1998, would result in dismissal of the proceeding. On March 6, 1998, an Order Granting Motion for More Definite Statement memorialized the rulings and instructions entered during the March 2 telephone conference. On March 13, 1998, Petitioner filed a one-page letter purporting to be a more definite statement. On March 16, 1998, the undersigned entered a Recommended Order of Dismissal. On April 5, 1999, the Commission entered an Order Remanding Case to Administrative Law Judge for Further Proceedings on the Merits (the "Remand"). In relevant part, the Remand concluded that the Recommended Order of Dismissal denied Petitioner her right to represent herself and that it was an abuse of discretion to do so. The Remand stated, in relevant part: An examination of the DOAH file discloses that Petitioner attempted to file a more definite statement by letter dated 3/11/98, and received by DOAH 3/13/98. It is not known why the Judge does not refer to this letter in his Order. Perhaps it was ignored because it was received one day late. If so, this only strengthens the Commission's finding that the Petitioner was deprived of an essential due process requirement of Florida law, and the Judge abused his discretion. . . . it is necessary that there be a finding that the conduct upon which the order is based was equivalent to willfulness or deliberate disregard of the order. Petitioner's argument . . . is probably strong enough by itself to remand the Recommended Order, at least on the issue of willful or deliberate default. Remand at fourth unnumbered page. On April 19, 1999, an Order Reopening File required the parties to file a status report no later than May 17, 1999. The Order expressly stated that failure to timely file a status report would result in the dismissal of the case. Neither party timely filed a status report. On May 20, 1999, Respondent filed Respondent's Status Report requesting rulings on the original and renewed Motion to Dismiss and Motion for More Definite Statement and requesting the administrative hearing to be scheduled after January 1, 2000. Petitioner never filed a status report and did not respond to Respondent's request for rulings on the pending motions. On June 9, 1999, the ALJ entered an Order Denying Dismissal. The Order denied Respondent's original and renewed Motion to Dismiss and Motion for More Definite Statement. On the same date, a Notice of Hearing scheduled the administrative Hearing for September 28 and 29, 1999, and a Prehearing Order required the parties to comply with several requirements incorporated herein by this reference. On June 25, 1999, Respondent filed Respondent's Motion for Continuance of the hearing scheduled for September 28-29, 1999, on the ground that counsel for Respondent was scheduled for a four-week trial in circuit court beginning September 21, 1999. Petitioner never responded to the Motion for Continuance. An order dated July 13, 1999, rescheduled the administrative hearing for January 20 and 21, 2000. On November 16, 1999, Respondent served Petitioner with Respondent's First Set of Interrogatories and Respondent's First Request for Production of Documents. Petitioner neither objected to nor answered either discovery request. On November 30, 1999, Respondent served Petitioner with a Notice of Taking Deposition Duces Tecum on December 16, 1999. On December 1, 1999, Petitioner filed a letter requesting a continuance of the administrative hearing and an extension of time to respond to discovery and to attend the deposition. In relevant part, the letter stated that Petitioner continues: . . . to have difficulty finding counsel who will assist me on a contingency fee basis . . . . At this time, it would be impossible for me to pay an attorney for his or her time in assisting me. For the same reason, I am requesting that each of the parties' discovery efforts be halted for a short period of time, in order that I might find counsel to help me with my responses and to attend my deposition. I do understand that the Respondent has a right to gather information about my claim and I plan to fully cooperate with those efforts. However, I need the assistance of an attorney in preparing my case and representing me at deposition and at the hearing. I am diligently trying to secure counsel and I only seek a reasonable continuance of the hearing and of pending discovery. . . . Please allow at least a few extra months before the hearing date and allow me at least an additional month to respond to the Respondent's discovery requests and to attend my deposition, which is currently scheduled for mid-December, 1999. . . . On December 10, 1999, Respondent filed Respondent's Objection to Petitioner's Request for Continuance and Rescheduling of Formal Hearing and Request for Stay of Discovery. On December 14, 1999, Respondent filed Respondent's Limited Withdrawal of Objection to Continuance and Amended Response to Request for Continuance. Respondent agreed to a continuance of the hearing for one month but objected to any extension of the time for responding to discovery requests or for taking the deposition. An order dated December 17, 1999, rescheduled the administrative hearing for February 28 and 29, 2000, and denied Petitioner's request to stay discovery while she sought counsel. Counsel for Respondent made reasonable efforts to conduct discovery at Petitioner's convenience. Subsequent to November 30, 1999, when Respondent's counsel scheduled Petitioner's deposition for December 16, 1999, Petitioner contacted Respondent's counsel to reschedule the December 16 deposition because Petitioner was recovering from a cold. Respondent's counsel rescheduled the deposition for January 4, 2000, and specifically obtained Petitioner's approval of the January 4th-deposition date. During the week of December 27, 1999, Petitioner contacted Respondent's counsel and represented that Petitioner was scheduled to have surgery to remove cancer from Petitioner's mouth on January 3, 2000. Petitioner stated that she would not be able to talk for several weeks and would not be able to appear at the January 4th deposition. Respondent's counsel agreed to reschedule the deposition if Petitioner would provide written confirmation of the scheduled surgery from Petitioner's physician. Petitioner never provided the written confirmation. Respondent's counsel re-noticed Petitioner's deposition for January 17, 2000. Respondent's counsel obtained Petitioner's specific approval of the new deposition date before scheduling the deposition. Petitioner failed to appear for her deposition on January 17, 2000, and Respondent's counsel rescheduled the deposition for February 2, 2000. Respondent's counsel made several requests by telephone to obtain Petitioner's answers to interrogatories and Petitioner's response to the request to produce. Both discovery requests had been served on November 16, 1999. Petitioner never objected to or answered Respondent's interrogatories and never objected to or produced the requested documents. On January 10, 2000, Respondent's counsel filed a Motion to Compel and Motion for Sanctions; and Respondent's Motion to Compel Appearance at Deposition and Responses to Discovery and Motion for Sanctions. The Discovery Order (dated January 28, 2000) reserved ruling on the request for sanctions until an evidentiary hearing could be conducted during the administrative hearing scheduled for February 28, 1999. However, the Discovery Order granted the request to compel Petitioner's appearance at the deposition scheduled for February 2, 2000; required Petitioner to bring to the deposition her answers to interrogatories and any documents in response to Respondent's request to produce; and required Petitioner to file her Prehearing Statement in accordance with the requirements of the Prehearing Order entered on June 9, 1999. On January 28, 1999, the administrative assistant for the ALJ telephoned Petitioner and read paragraphs 1-7 of the Discovery Order. On the same date, Respondent's counsel caused a copy of the Discovery Order to be hand-delivered to Petitioner's residence. Petitioner was not home, and the courier posted the Discovery Order on the front door of Petitioner's residence. On January 29, 2000, Respondent's counsel personally hand-delivered a copy of the Discovery Order to Petitioner at Petitioner's residence and informed Petitioner of the Order's contents. On February 2, 2000, Petitioner failed to appear for her deposition. Petitioner never filed her answers to interrogatories, never filed the documents sought in Respondent's request to produce, and never filed a Prehearing Statement. Respondent's counsel telephoned Petitioner to confirm that Petitioner would be attending a prehearing conference that had been previously scheduled in accordance with the requirements of the Prehearing Order entered on June 9, 1999. Petitioner stated that she would not attend the prehearing conference. When Respondent's counsel asked why Petitioner would not attend the prehearing conference, Petitioner hung up without explanation. When counsel for Respondent made additional attempts to coordinate a prehearing conference, Petitioner refused to speak to counsel for Respondent. Petitioner's refusal to appear at deposition, answer interrogatories, produce documents, and participate in a prehearing conference individually and collectively prejudiced Respondent's ability to prepare a defense. Petitioner's refusal denied Respondent relevant and material information including the identity of Petitioner's witnesses and exhibits as well as Petitioner's current employment and earnings. Petitioner's refusal deprived Respondent's counsel of the ability to fully perform her duties and responsibilities to her client. Respondent incurred attorney's fees and costs as a result of Petitioner's refusal to appear at deposition, answer interrogatories, and produce documents. Respondent incurred court reporter costs of $169.15 as a result of Petitioner's refusal to appear at any of her depositions. Respondent incurred attorney's fees of $499.75 as a result of Petitioner's refusal to appear at her first deposition. Respondent incurred attorney's fees of $1,870.50 as a result of Petitioner's failure to appear at her second deposition, answer interrogatories, and produce documents; and as a result of various motions filed to obtain Petitioner's attendance at deposition and Petitioner's responses to discovery requests. Petitioner willfully and deliberately disregarded the requirements of the Discovery Order. In relevant part, paragraph 6 in the Discovery Order stated: In the absence of competent and substantial evidence of good cause submitted by Petitioner, the failure of Petitioner to timely comply with the requirements of this Order shall be "equivalent to willfulness or deliberate disregard of the order [quoting from the Remand]." Upon Respondent's timely motion and showing of good cause for imposing sanctions, such failure by Petitioner shall subject Petitioner to the imposition of appropriate sanctions including the assessment of fees and costs, the preclusion of evidence, and the dismissal of this proceeding. Petitioner had adequate notice of the terms of the Discovery Order and the opportunity to show good cause for her failure to comply with the Discovery Order. On January 28, 2000, the administrative assistant for the ALJ read to Petitioner over the telephone the contents of paragraphs 1-7 of the Discovery Order. Petitioner received a copy of the Discovery Order on January 28 and 29, 2000. On January 29, 2000, Respondent's counsel explained the Discovery Order to Petitioner. Petitioner chose not to comply with the Discovery Order. Petitioner neither appeared at the administrative hearing to present evidence to prove the merits of her case nor appeared to present evidence to show why the sanctions requested by Respondent should not be granted. Monetary sanctions are appropriate in this case and commensurate with the offense. Dismissal and the preclusion of evidence are neither appropriate nor adequate sanctions because Petitioner did not appear at the administrative hearing and did not present any evidence. Respondent's counsel was required by law and the rules of ethics to make every reasonable effort to prepare an adequate defense of her client for presentation at the administrative hearing. Dismissal is not appropriate for other reasons. The Commission reversed a previous dismissal in this case and remanded the case in an effort to ensure Petitioner's right to represent herself. After the remand, Petitioner sought additional time to obtain counsel. Relevant orders allowed Petitioner additional time to obtain counsel; afforded Petitioner the right to represent herself during discovery, in accordance with the purpose of the Remand; and attempted to balance the competing interests of the parties.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order dismissing this proceeding as untimely filed; finding that Respondent did not discriminate against Petitioner; denying Petitioner's Charge of Discrimination and Petition for Relief; and imposing monetary sanctions against Petitioner in the aggregate amount of $2,539.40. DONE AND ENTERED this 6th day of April, 2000, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 6th day of April, 2000. COPIES FURNISHED: Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road, Building F Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road, Building F Tallahassee, Florida 32303-4149 Janet M. Courtney, Esquire Lowndes, Drosdick, Doster, Kantor and Reed, P.A. 215 North Eola Drive Post Office Box 2809 Orlando, Florida 32802 Margaret H. Wilson 5532C Cinderlane Parkway Orlando, Florida 32808
