Findings Of Fact In his application for registration as a real estate salesman submitted August 21, 1972 (Exhibit 1), Respondent, in response to Question 9 which asked if he had ever been arrested for, or charged with, the commission of an offense against the laws of any municipality, state or nation, answered yes and listed "1958 W. Va--traffic, 1964 So. Carolina-Traffic, 1/16/70 Fla--Traffic, 6/2/71 Fla--Traffic, and 9/17/71 Fla-- Traffic." In his application for registration as a real estate broker submitted February 4, 1972 (Exhibit 3), Respondent answered the same Question 9 exactly as he had done on his application for salesman. Court records from South Carolina (Exhibit 2) show that Ernest Clyde Bourne, Jr., was arrested on a warrant charging him with stealing a boat and trailer of the value of more than $200; that on November 30, 1964, he posted an appearance bond in the amount of $9,000; that he was indicted on March 3, 1965, on an indictment alleging that Bourne, on August 12, 1964, at Georgetown, S.C., feloniously did steal, take and carry away one 25 foot Bertran boat and one six wheel trailer of the value of more than fifty dollars the proper goods and chattels of Earnest Mohler, Jr.; and that on September 21, 1965, he pleaded nolo contendere to receiving stolen goods, the Court entered judgment that he be confined for six months or pay a fine of $500, and that the fine was paid on September 21, 1965. In his defense, Respondent testified that, prior to acquiring the boat he was charged with stealing, he had owned two or three boats, the last of which was destroyed in a fire while at a Princeton, West Virginia, storage during the winter of 1964; and that he was looking for a replacement for the boat. While enroute from his home in Princeton to Myrtle Beach, South Carolina, he stopped at Columbia, South Carolina, to visit a boat yard and, while looking at a boat, was approached by a person representing himself as a salesman. The salesman told him that he knew of a 25 foot Bertram boat in an estate that may be for sale. When Bourne showed interest, he advised that he would know in about a week and Bourne was to call him. In due course, Bourne called the "salesman" who said he had the boat and arranged for Bourne to pick up the boat at Columbia. The address at which Bourne came for the pick up was a corner containing a Texaco station and a wrecked car lot. After inspecting the boat Bourne paid $5,000 cash and executed a lien on a trailer for $2,300. No record was subsequently found that the lien had been recorded and Bourne retained no copy. Bourne towed the boat and trailer to his home in West Virginia where the boat was registered and used by Bourne during the remainder of the summer. At this time Bourne was enrolled at Stetsen Law School in Florida, where his mother resided. Bourne returned to West Virginia in November, 1974, and enroute back to Florida with the boat in tow, he was stopped by the police and arrested at Orangeburg, South Carolina, and charged with larceny of the boat. The sheriff from Georgetown, South Carolina, picked up and drove Bourne to Georgetown where he spent the weekend in jail awaiting the posting of bond. At his trial in September, 1965, Bourne appeared, represented by his lawyer from West Virginia, and a South Carolina attorney. The attorneys arranged for a nolo contendere plea which Bourne entered under the impression he was pleading to an attempt to commit a misdemeanor. Exhibit 4, the deposition of the attorney who represented Bourne at the trial, confirmed that Bourne pleaded nolo contendere to an attempt to commit a misdemeanor in a negotiated plea worked out with the prosecuting attorney. Although the attorney characterized the charge to which Bourne pleaded as "no offense," the negotiated settlement included a $500 fine. This was described in the deposition as a forfeiture of a $500 bond (apparently connected to the $5,000 appearance recognizance previously entered to get Bourne released from jail) and as "the [law] firm check in the amount of $500 which was left with the clerk of the court when the clerk presented a blank form for Bourne to sign. It is presumed the "blank form" subsequently became the judgment page of Exhibit 2 on which Bourne plead nolo contendere to receiving stolen goods and the judge signed the sentence to be confined at hard labor for six (6) months or pay a fine of five hundred dollars ($500).
The Issue The issue presented is whether Petitioner's application for certification as a minority business enterprise should be granted.
Findings Of Fact Petitioner Omni Outdoors, Inc., a for-profit corporation located in Coral Springs, Florida, is engaged in the business of commercial landscaping and irrigation. It was incorporated on September 19, 1995, by Bruce Reeb. When incorporated, Petitioner issued its 100 shares of stock as follows: 24 shares to Bruce, 26 shares to his wife Terry, 24 shares to Kevin McMahon, and 26 shares to Kevin's wife Michele. Accordingly, the Reebs and the McMahons each own 50 percent of the business. Both Reebs and both McMahons became the 4-member Board of Directors. Bruce became the president and the secretary of the corporation, and Kevin became the vice-president and the treasurer. According to the corporation's By-laws, the President is the chief executive officer of the corporation, responsible for the general supervision of its business. Bruce is a certified general contractor in the State of Florida and is the qualifier for Petitioner. Kevin holds an irrigation license and is the qualifier for Petitioner in that area. Bruce handles estimating, pricing, and proposal preparation and presentation. Kevin runs the field operations and purchasing of materials. In October 1996 Terry quit her job as a flight attendant to begin working for Petitioner, handling accounting and personnel matters. Her name was added to the corporation's bank accounts as an authorized signature. Bruce and Kevin remain as authorized signatures on the accounts, and only one signature is required for the corporation's checks. She was given the title "chief executive officer" of the corporation in January 1997, a position authorized by an amendment to the By-laws in March 1997. She was given a smaller salary than Bruce or Kevin, who were paid the same amount. Kevin's wife Michele has never been involved in the day- to-day activities of the corporation. She has never received a salary from the business. In January 1997 Terry filed an application with Respondent for the corporation to be certified as a minority business enterprise, under the status of "American Woman." Around the time the corporation filed its application, Terry's salary was increased to $600 per week so she would be making the same as Kevin, and Bruce's salary was decreased to $400 per week. Even after Terry's full-time employment by the corporation, the signatures of her husband or of Kevin continue to appear on corporate obligations, such as an indemnity agreement and corporate promissory notes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner's application for certification as a minority business enterprise. DONE AND ENTERED this 8th day of April, 1998, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 1998. COPIES FURNISHED: Terry M. Reeb, Chief Executive Officer Omni Outdoors, Inc. 1742 Northwest 112 Terrace Coral Springs, Florida 33071 Joseph L. Shields, Esquire Department of Labor and Employment Security 2012 Capital Circle, Southeast The Hartman Building, Suite 307 Tallahassee, Florida 32399-2189 Edward A. Dion, General Counsel Department of Labor and Employment Security 2012 Capital Circle, Southeast The Hartman Building, Suite 307 Tallahassee, Florida 32399-2189 Douglas L. Jamerson, Secretary Department of Labor and Employment Security 2012 Capital Circle, Southeast The Hartman Building, Suite 303 Tallahassee, Florida 32399-2189
The Issue The following issues were presented in this cause: Did the Respondent properly qualify New World Homes? Did the Respondent make fraudulent misrepresentations related to contracting? The Petitioner submitted post hearing findings of fact in the form of a proposed recommended order. To the extent that the proposed findings of fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.
Findings Of Fact The Respondent, Carey L. Hendrix, is a registered residential contractor holding license number RR 0027167 issued by the Construction Industry Licensing Board through the Department of Professional Regulation. At the hearing, the Respondent admitted to the violations alleged in Count I of the Administrative Complaint, in that he failed to register as qualifying agent for New World Homes, a business entity under which he was conducting his contracting business on or about September 21, 1980. Respondent's failure to properly register was an unintentional oversight on his part. The allegations of fraud and misrepresentation in the profession of contracting arise from a letter dated April 22, 1982, addressed to Lane Hendrix at 2712 Fifteenth Avenue, West, Bradenton, Florida 33505, from Scott M. Brownell, attorney for Barbara Sailors (Petitioner's Exhibit 1). The Administrative Complaint specifically alleges that by failing to perform the jobs set forth in this letter in paragraphs numbered 1 through 10, the Respondent made false representations in the course of contracting. The letter (Petitioner's Exhibit 1), which is the subject of this controversy, was an offer by Brownell to settle a dispute between the Respondent and Ms. Sailors relating to a home Respondent had built for Sailors. The last paragraph of the letter states, "If this recitation of our agreement in any way differs from your understanding, please contact me at once." The Respondent did not contact Brownell regarding the agreement. The letter (Petitioner's Exhibit 1) recites that part of the consideration for Respondent's performing the jobs was withdrawal by Ms. Sailors of her complaint with the Department of Professional Regulation. While Ms. Sailors could have withdrawn her complaint, this would not have affected the Board's consideration of the matter. Her offer was of no value. On page two of the subject letter, unnumbered paragraph four states that after the estimates have been received and the supplies have been purchased by Ms. Sailors, "my clients will contact you and will expect, within two (2) weeks, an appointment be made for the completion of this work." The record does not reflect that Sailors contacted the Respondent as required in the above- quoted paragraph. Further, although not contacted by Ms. Sailors as indicated in Petitioner's Exhibit 1, the Respondent did send two employees to Sailors' house on or about May 24, 1982. Upon their arrival at the Sailors' house, these employees found that another contractor had been engaged by Ms. Sailors to replace certain portions of the deck and railing at the house (Item 9 of Petitioner's Exhibit 1). At that time, Ms. Sailors prepared a list of items of work (Petitioner's Exhibit 5) to be done by the Respondent in lieu of Item 9, as set forth in Petitioner's Exhibit 1. Respondent's employees repaired a few items on the list but were unable to do many of them because of the work being performed by the other contractor. The employees returned to Respondent, advised him of the presence of another contractor on the job, and presented to him the new list of repair items given to them by Ms. Sailors (Petitioner's Exhibit 5). The Respondent called Jim McGuirt, an investigator for the Department of Professional Regulation, regarding the situation which his employees had encountered. McGuirt advised the Respondent that if another contractor were on the job the Respondent would not have to do anything. No evidence was introduced that any of Respondent's work, which was the subject of Petitioner's Exhibit 1, was substandard or contrary to the codes. Evidence was received that the construction was inspected by local building authorities and a certificate of occupancy issued. As of the date of hearing, Ms. Sailors resided in the subject residence.
Recommendation Having found the Respondent, Carey L. Hendrix, guilty of one offense of violating Sections 489.129(1)(g) and (j), Florida Statutes, by violating Sections 489.119(2) and (3), Florida Statutes, it is recommended that the Respondent receive a letter of reprimand and be assessed a civil penalty of $300. DONE and RECOMMENDED this 8th day of September, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 8th day of September, 1983. COPIES FURNISHED: John O. Williams, Esquire 547 North Monroe Street, Suite 204 Tallahassee, Florida 32301 Carey L. Hendrix 7712 South Avenue, NW Bradenton, Florida 33529 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
The Issue The central issue in this case is whether Respondent is guilty of the violation alleged in the Administrative Complaint; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: At all times material to the allegations, Respondent was a licensed pilot in the State of Florida having been issued License No. 0000025. On January 15, 1986, Respondent boarded the ship Act 5 as her state pilot for approaching an intended berth at Port Everglades. The Act 5 was over 700 feet long, had a single handed screw, a single rudder and was equipped with bow thrusters. The ship drew 34 feet at her stern on the date in question. The ship had a bulbous bow which protruded outwardly under the forward waterline. A tugboat, the Captain Nelson, captained by John A. Cummings was beside the Act 5 to assist in the berthing maneuver. The approach to Port Everglades is negotiated through a narrow canal. Vessels seeking berth proceed through the canal, past a jetties area, and into a turning basin. Once inside the basin a turn is required in order to bring a ship parallel to the intended berth. On January 15, 1986, the Act 5 was to be berthed at a location on pier 3 identified as berth 17. In order to approach berth 17 a sweeping turn to port must be made. On that date the Captain Nelson was positioned off the starboard bow during the Act 5's swing to port. Once this swing had been initiated, the Respondent ordered the tug to proceed to the port stern quarter. It was intended that the tug would assist to breast the ship beside the docking area. After the tug had begun its trip from starboard bow to stern, Respondent realized that the ship's swing would not be sufficient to bring her parallel to the dock. Accordingly, the Respondent ordered the tug to hook up and to pull at full throttle to slow the ship and bring her parallel. Additionally, since it was apparent the ship might collide with the dock, the despondent ordered the Act 5 to reverse at full throttle. Despite the corrective efforts, the Act 5 did not swing sufficiently to port and her bulbous bow struck the underplatting of the dock at berth 17. The platting cracked and the fill behind it washed out. When the fill washed out, the road built on top collapsed and the dock eroded. Approximately sixty feet of dock surface was destroyed. Unpredictable surface and subsurface currents in Port Everglades very dramatically affect docking procedures. The tides, which are repetitive, also affect docking maneuvers. Given the fluctuating tides and currents within the Port Everglades turning basin, it is not uncommon for a ship's handling to be predictable. Given the tide and current conditions known to Respondent on the date at issue, the collision was unpredictable and unforeseeable by a reasonably prudent pilot. Given the times and speeds noted in the Act 5's "bell book," the Respondent approached the intended berth under prevailing standards used by other pilots at Port Everglades.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Professional Regulation, Board of Pilot Commissioners enter a Final Order dismissing the Administrative Complaint against Respondent. DONE and RECOMMENDED this 26th day of May, 1988, in Tallahassee, Florida. JOYOUS D. PARRISH 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 26th day of May, 1988. APPENDIX Rulings on Petitioner's, DPR/Board of Pilot Commissioners, proposed findings of fact: Paragraphs 1, 2, and 3 are accepted. With regard to paragraph 4, the times and speeds noted in the Act 5's bell book are estimates which are within a reasonable range for approaching berth at Port Everglades. Distances are in unsubstantiated estimates and should not suggest Respondent used excessive speed. Three witnesses testified the ship approached at a reasonable rate. Such direct evidence controls over speculative estimates. Accordingly, paragraph 4 is rejected. Paragraphs 5 and 6 are accepted. Paragraphs 7 and 8 are accepted. With regard to paragraph 9, the cause of the collision is unknown. The ship did not swing to port sufficiently to become parallel to the dock. This lack of swing, coupled with the forward movement of the ship, resulted in the collision. As to why the ship did not continue its swing is speculative. Surface tides and currents as well as subsurface currents interfere with docking maneuvers and may have inhibited the swing. With regard to paragraph 10, the tides and currents noted were only surface ones. The subsurface currents which run deeper and which might effect a ship the size and draw of the Act 5 were not measured or charted. With that clarification, paragraph 10 is accepted. With regard to paragraph 11, it logically follows that Respondent's unforeseeable encounter would then serve as a warning to pilots involved in future docking procedures. That such pilots have benefitted from Respondent's incident does not suggest Respondent should have prejudged the problems. Accordingly, paragraph 11 is rejected as immaterial, irrelevant, and unnecessary. Rulings on Respondent's proposed finding of fact: Paragraphs 1-51 are accepted. Paragraph 52 is rejected as argumentative. Paragraph 53 is rejected a unnecessary, irrelevant or immaterial. Paragraphs 54-58 are rejected as unnecessary, irrelevant, immaterial, or argumentative. Paragraphs 59-62 are accepted. With regard to paragraphs 63 and 64, the Act 5 did collide with the underplatting at berth 17. The impact was felt by the tug Captain. Whether the dock was poorly maintained (and should have withstood the impact) or whether the fenders should have absorbed the shock is speculative but the touching was established. However, such touching was not caused by excessive speed or conduct falling below acceptable standards of safe pilotage. With that clarification, the paragraphs 63 and 64 are accepted. Paragraph 65 is accepted. COPIES FURNISHED: H. Reynolds Sampson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Margaret Mathews, Esquire One Tampa City Center Suite 2600 201 N. Franklin Street Tampa, Florida 33602 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Pat Guilford, Executive Director Department of Professional Regulation Board of Pilot Commissioners 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Petitioner, Jim Neel & Associates, Inc., a Florida corporation, applied to the Department of Transportation (DOT) for certification as a Disadvantaged Business Enterprise. The majority stockholder of Jim Neel & Associates, Inc., is Jim Silver Eagle Neel. On his mother's side Jim Neel is a direct descendant of Creek Indians Who were enrolled in the 1832 Census for that Tribe. Additionally, his father's family is known to be descended from the Cherokee Tribe. In terms of blood lines it is estimated that Mr. Neel is one-quarter American Indian. However, Mr. Neel has the features of a Native American. However, Mr. Neel has actively participated in the activities of the Lower Creek Muskogee Tribe since the beginning of 1986. 1/ He is considered by the National and local Creek Indian Tribes to be a member of their group. Additionally, Petitioner has been recognized by the federal Bureau of Indian Affairs as being a member of the Creek Indian Tribe. Such recognition enables Petitioner to participate in the Eastern Creek Judgment Fund which was awarded against the federal government for treaty violations to members of the Eastern Creek Tribe. Prior to the beginning of 1986, Mr. Neel did not maintain any direct affiliation with a tribe. To the best of his knowledge, his mother did not maintain any direct affiliation with a tribe. However, the evidence did show his mother kept in contact with local Creeks on an informal basis. Additionally, when Mr. Neel was young, his mother would tell him stories about his Indian heritage, but advise him not to reveal the fact of his Indian heritage to others. When Mr. Neel was growing up it was not wise to declare one's Indian heritage due to the racial prejudice which would be inflicted on that individual. In fact, Mr. Neel did not feel he could freely declare his heritage until about ten years ago. Mr. Neel was raised on a poor rural farm in northwest Florida. His mother, due to her Indian heritage, was uneducated. She could not read or write and, therefore could not obtain above menial wages to support her family. The entire family, including Petitioner, existed under an economic as well as social disadvantage. Through sheer determination, Petitioner literally pulled himself up by his own bootstraps. Around 1948 he became an auto/truck mechanic. Around 1955 he began as a service manager for an Oldsmobile dealer. Because the wages of a mechanic were low at that time, Mr. Neel changed careers and joined the Panama City Police force. He was a city police officer for the next fifteen years. In 1972 he was employed by the Panama City Airport Authority as a security officer. He rose by promotion to become the Airport Manager from 1980 through 1987. At present he is a consultant to the Airport Authority. No evidence was presented by the Department which would be sufficient to demonstrate that Mr. Neel had not suffered social and economic disadvantage on an individual basis.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered granting the application of Jim Neel and Associates, Inc. for certification as a Disadvantaged Business Enterprise. DONE and ENTERED this 19th day of April, 1989, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1989.
Findings Of Fact The applicant proposes to construct a concrete boat ramp on the south bank of the Eau Gallie River in Brevard County. The Eau Gallie River is a tributary of the Indian River and is a Class III water body as defined in Chapter 17-3, Florida Administrative Code (F.A.C.). 1/ The ramp would be 17 feet wide and 64 feet long. Approximately half the length would extend into waters of the Eau Gallie River over which DER has. Jurisdiction under Chapters 403 and 253, F.S. The construction would involve the removal of 47 cubic yards of soft bottom material waterward of ordinary high water and the filling of 35 cubic yards of compacted material also waterward of ordinary high water. In addition, 38 cubic yards would be excavated landward and 72 cubic yards would be filled landward of ordinary high water. The boat ramp is to be a private facility not once to the general public. The applicant sought this permit in conjunction with the upland development of its river front property. The applicant's property extends for approximately one-half mile along the north bank of the Eau Gallie River. At build out, the applicant estimates that the property will contain several hundred apartment units which may eventually be converted to condominiums. The lessees or condominium owners would have access to the proposed boat ramp. Petitioner, Tom Hall, is an adjacent property owner who is concerned that increased boat traffic on the Eau Gallie River in the vicinity of the boat ramp would adversely impact manatee and other wildlife and marine resources. At various times of the year, manatees can be observed in the Eau Gallie River in the vicinity of the proposed boat ramp. The river also contains a variety of fish and supports a local population of water fowl. The river in the vicinity of the proposed boat ramp is generally not more than one to two feet in depth. The boat ramp is designed to launch only small craft such as canoes, rowboat or jonboats with small trolling motors. The application does not request the issuance of a permit to dredge a navigational channel to enable the beat ramp to accommodate larger power craft. The testimony of DER's expert witness established that the small craft which could be launched from the boat ramp would not pose a threat to the manatees that frequent the area. Rather, it is the larger power boats that endanger this marine mammal. There are no other wildlife or marine resources which would be impacted significantly by the construction of the boat ramp. Additionally, it should be noted that this project would benefit the several hundred residents of Brevard County who would eventually have access to the boat ramp. The testimony of DER's expert witness established that there would be no long-term violations of DER water quality standards as a result of the construction and use of the boat ramp. Short-term impact during construction would be minimal since turbidity screens are to be employed. Thus, the applicant has provided reasonable assurance that the short-term and long-term effects of the construction and use of the boat ramp will not result in violation of DER's water standards. It is important to note that, as long as no dredging of filling is involved, there is no legal impediment preventing riparian landowners from launching boats from their river front property or engaging in recreational boating activities in the portion of the boat ramp could cause continuous turbidity problems and damage valuable habitat along the river front. By confining the alteration of the littoral zone to such a small area as that involved in the application and thus guaranteeing adequate, comfortable access for the riparian owner, the survivability of the remaining littoral in its natural state would be significantly enhanced. Petitioner Hall theorizes that boats who would otherwise use downstream public boat ramps will instead launch at the site of the proposed ramp. However, there was no evidence submitted to support this theory. Given the ease with which small boats could be launched without any ramp at this site, it does not appear that the ramp itself would generate additional activity involving canoes and other small craft. Since the launching of power boats is not feasible because of the shallow river depth, such traffic is not likely to be affected by construction of the proposed ramp.
Findings Of Fact Petitioner Haul-It, Inc., is a trucking company in the business of hauling road building materials. It owns 19 trucks and 13 trailers worth about $106,000; and owes between $75,000 and $79,000 to a bank. Occasionally petitioner engages additional trucks and drivers. All but eight of its 15 or 16 employees are truck drivers. Haul-It, Inc., was organized in 1973. Jack Taylor and his father started the business but later sold out to Hubert E. Real, the president, half- owner and operator of Columbia Paving, and Wiley Jinwright, a 24-year employee of Columbia Paving. Mr. Jinwright became president of Haul-It, Inc., and Jack Taylor stayed on as truck foreman. Messrs. Real and Jinwright each owned 20 shares of stock, representing half interest in petitioner. Columbia Paving itself has never held any of the 40 shares of stock that petitioner has issued. In November of 1980, Mr. Real conveyed all 20 of his shares to his wife, Helen Real; and Mr. Jinwright conveyed one share to Mrs. Real. Both transfers of stock to Mrs. Real were gratuitous. She knew at the time that her ownership might help Haul-It, Inc., qualify as a minority business enterprise. In addition, Mr. Real "had had a couple of heart attacks" (T. 14) and Mrs. Real "thought it would be nice to have a related [to Columbia Paving] business." (T. 14.) The evidence did not reveal whether Mr. Real has spent more, less, or the same amount of time with petitioner's affairs since his divestiture as before. Mr. Real remains active as president of Columbia Paving. From November of 1980 to the time of hearing, Mrs. Real has owned 52.5 percent of petitioner's stock and Mr. Jinwright has owned 47.5 percent. Petitioner's only offices are housed in a trailer located on land owned by Columbia Paving. Haul-It, Inc., pays Columbia Paving rent for the land on which its office trailer, trucks, and other equipment are parked. At the time of the hearing, between 70 and 80 percent of Haul-It, Inc.'s work was being performed under contract to Columbia Paving. As far as the evidence showed, petitioner has always performed most of its services under contract to Columbia Paving. Although it has had other customers, Columbia Paving is petitioner's only regular customer. (T. 27.) Petitioner uses Columbia Paving's computer to keep its books and shares a bookkeeper with Columbia Paving. Each company pays the bookkeeper a separate salary. Mrs. Real sits on Columbia Paving's board of directors. Neither Columbia Paving nor any other entity uses petitioner's hauling equipment unless it has contracted to do so. When Haul-It, Inc., "bid[s] through Columbia Paving" (T. 39) in response to invitations by the Department of Transportation, Columbia Paving personnel check the bid over to make sure that it "fits whatever plan or whatever estimates they feel are in order." (T. 40.) Soon after she became owner of a majority of petitioner's Stock, Mrs. Real became petitioner's vice-president, secretary, and treasurer, even though she had had no prior experience in the trucking business. Mr. Jinwright remains president of Haul-It, Inc. It was also in November of 1980 that Haul-It, Inc., applied for certification as a minority business enterprise. At that time and for some months afterward, Mrs. Real was not working for Haul-It, Inc., on any regular schedule. On the basis of the information petitioner furnished with its application, respondent, in November of 1980, "certified them for 12 months, on the condition that an on-site review would be conducted and at that time the decision would be made as to the ownership and control and whether this minority business enterprise should be continued as certified." (T. 61.) In April of 1981, respondent's Mr. Nath conducted an on-site review. At that time, Mr. Nath requested additional documents which petitioner eventually mailed to respondent. In September of 1981, respondent for the first time communicated to Haul-It, Inc., its intention to disqualify petitioner as a minority business enterprise. After receiving this news, Mrs. Real began going to work for petitioner daily. She has an office in the trailer that she shares with Mr. Jinwright, whose role in Haul-It, Inc., was reduced to cosigning checks when Mrs. Real began working full time. Most of Mr. Jinwright's time is now spent as Superintendent of Columbia Paving's four asphalt plants. Even so, he still draws a salary from Haul-It, Inc., equal to Mrs. Real's salary. Despite their respective titles, both Mr. Jinwright and Mrs. Real act on the assumption that she, rather than he, has ultimate authority in the conduct of Haul-It, Inc.'s business. Mrs. Real has full authority to hire and fire, authority which she has delegated, in the case of the truck drivers, to Jack Taylor. She has the final say on all questions of policy and operations that arise in the business. Haul-It, Inc., cannot borrow money or make expenditures without her permission. Jack Taylor and two other employees buy for Haul-It, Inc., but she cosigns all checks with Mr. Jinwright. She has not learned how to prepare a written bid for the Department of Transportation, although she is involved with bidding. Mrs. Real relies heavily on Jack Taylor's bidding expertise, as have petitioner's other owners. Petitioner's proposed findings of fact and conclusions of law and respondent's proposed findings of fact, conclusions of law, and recommendation reflect the good work done in this case by counsel on both sides. To the limited extent proposed findings have not been adopted, they have been deemed immaterial or unsupported by the evidence.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent deny Haul-It, Inc., certification as a minority business enterprise. DONE AND ENTERED this 3rd day of March, 1982, in Tallahassee, Florida. ROBERT T. BENTON, II 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 3rd day of March, 1982. COPIES FURNISHED: Patrick E. Hurley, Esquire Post Office Drawer 1049 Tallahassee, Florida 32302 Vernon L. Whittier, Jr., Esquire Ella Jane P. Davis, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Paul A. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
The Issue At issue herein is whether or not the Petitioner, Kelly Boat Service, Inc.'s and Cape Kennedy Charter Boats, et al's activities fall within the admissions tax liability imposed by Section 212.04, F.S. (1973). Based upon the pleadings filed herein, the documentary evidence introduced during the course of the hearing, the other evidence of record including the arguments of counsel, the following relevant facts are found.
Findings Of Fact In the instant matter, the Department of Revenue issued two sales tax assessments. The first such assessment is against Cape Kennedy Charter Boats and covers the audit period of March 1, 1973, through February 29, 1976. The Department also assessed Kelly Boat Service, Inc., in a series of three separate assessments covering the audit periods August 1, 1970, through January 31, 1976. Based on such assessments, a tax liability resulted in the amount of $25,072.37. Of this amount, $10,000 was paid by the tax payer on July 21, 1976 (Respondent's Composite Exhibit No. 1). The remaining tax liability plus interest which has accrued from July 21, 1976, is outstanding and continues to accrue. During the course of the hearing, the parties agreed that the specific liabilities as set forth in the assessment were not at issue. Rather, Petitioner solely challenged the legal authority of the Department of Revenue to impose the assessments in question. The Petitioners are owners and operators of a fleet of deep sea fishing boats in and around Destin, Florida, which, for a fee, carry individual fishermen to certain fishing banks which lie beyond the three-league limit in the Gulf of Mexico. While there, the Petitioners sell food and drinks to the fishermen and rent them fishing equipment. The fishing is done at the snapper banks in the Gulf of Mexico or in the vicinity of those banks. The fishing equipment and tackle used on these trips are mainly used beyond the three-league limit in the waters of the Gulf of Mexico; and most, if not all, of the food and drinks sold at the galley of the refreshment stand on the boat was outside the three-league limit of the State of Florida. In an earlier summary final judgment, the Circuit Court of Appeal declared, as authorized by Chapter 86, Florida Statutes, 1973, the liability of Kelly Boat Services, Inc., for payment of the admissions tax by Section 212.04, F.S., 1973, from which the Department of Revenue filed an appeal. In that decision, the Court held that Kelly, whose boats take on passengers at Destin for fishing in the Gulf of Mexico beyond the territorial limits of Florida, is taxable at the statutory rate on the admission fare charged at the dock, but that the State is foreclosed from assessing Kelly for taxes that should have been paid between August, 1970, and the first day of August, 1973, the period in which the Department demanded the production of Kelly's records for audit. Section 212.14(6), F.S., 1973. Kelly cross-appealed and urged that its activities were not subject to the tax, citing Straughn v. Kelly Boat Service, Inc., 210 So.2d 266 (Fla.App. 1st 1968). In its decision, the First District Court of Appeal in Dept. of Revenue v. Kelly B Boat Service, Inc., 324 So.2d 351 (Fla. 1976), indicated that the trial court was correct in its reading of its decision in Dept. of Revenue v. Pelican Ship Corp., 257 So.2d 56 (Fla.App 1st 1972), Cert. Denied, 262 So.2d 682 (Fla. 1972), Cert. Dismissed, 287 So.2d 93 (Fla. 1974), and in hold that Kelly's commercial activities, as evidenced by the record, render it liable to assessment for the admissions tax. The Court noted that the trial court was incorrect, however, in foreclosing the Department of Revenue from making the assessment for the full three-year period authorized by Subsection 212.14(6), F.S., 1973. The decision goes on to read that the State is not foreclosed by reason of the Court's 1968 decision in Straughn v. Kelly Boat Service, Inc., or otherwise to assert that on the facts evidenced by record, Kelly should satisfy its full tax liability incurred three years prior to August 1, 1973. North American Company v. Green, 120 So.2d 603 (Fla. 1960); Jackson Grain Company v. Lee, 139 Fla. 93, 190 So. 464 (1939). Based on the above decision of the First District Court of Appeal, the Department's assessment, which the parties admit is factually correct, is valid both as to the August 1, 1970, through July 31, 1973, and the August 1, 1973, through January 31, 1976, audit periods. Since this matter has previously been adjudicated, the same is res judicata as to the legal validity of the Department's assessment. Further, since the assessment relative to Cape Kennedy Charter Boats is based upon the same factual circumstances and legal authority as the one against Kelly Boat Service, Inc., which was upheld as aforementioned in the case of the Dept. of Revenue v. Kelly Boat Service, Inc., supra, there is no factual challenge to the validity of the Department's assessment and there being no assertion by the Petitioner that any rules of law other than those enunciated by the District Court of Appeal in Dept. of Revenue v. Kelly Boat Service, Inc., supra, are applicable, such assessment must likewise be upheld. I shall so recommend. 1/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, hereby, RECOMMENDED: That the Department of Revenue's assessment in the instant matter against the Petitioners be UPHELD. Additionally, in view of the Petitioners' letter of April 11, 1979, Petitioners' motion to treat this matter as a class action is hereby DISMISSED. RECOMMENDED this 31st day of May, 1979, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
The Issue Whether the Florida Fish and Wildlife Conservation Commission (“Respondent” or “the Commission”) correctly determined that a vessel owned by Robert Sweeney (“Petitioner”) was a “derelict vessel” or an “abandoned vessel” within the meaning of section 823.11, Florida Statutes (2020), and, therefore, subject to the provisions of sections 823.11, 705.101(3), 376.15(3)(a), and 705.103, Florida Statutes (2020).
Findings Of Fact Based on the competent substantial evidence adduced at the final hearing, and the record as a whole, the following Findings of Fact are made: Mr. Sweeney is the registered owner of a 37-foot sailboat, Islander 37, registration number FL4412SK (“sailboat”), found in the public waters of Manatee County, Florida. The Commission is empowered to remove, or cause to be removed, derelict vessels from the waters of Florida. §§ 376.15(3)(a) and 823.11(3), Fla. Stat. A vessel is considered to be “derelict” if it is left, stored, or abandoned “[i]n a wrecked, junked, or substantially dismantled condition upon any public waters of Florida.” § 823.11(3), Fla. Stat. Lieutenant McCorkle is a sworn law enforcement officer (“LEO”) with 14+ years of experience with the Commission. His training in derelict vessel investigations includes over 50 hours of derelict vessel identification and investigation. Major Rowe is a sworn LEO and 22-year employee of the Commission. He began his career as a water patrol officer and worked his way through the ranks of lieutenant, captain, and is now a major. He developed and fine-tuned the Commission’s derelict vessel training program, and is now in the Commission’s mentoring program to become a lieutenant colonel. In mid-November 2020 (after Tropical Storm Eta passed through Florida), Lieutenant McCorkle saw the sailboat in the Manatee River in Manatee County, Florida. He initiated a derelict vessel investigation. Lieutenant McCorkle observed the sailboat to be in a wrecked condition, grounded on submerged lands, and listing (leaning) to the port (left) side. He observed the keel, the elongated protrusion on the bottom of the sailboat that provides stability to the vessel, to be “imbedded” (or stuck) in submerged land. Because the sailboat was stuck on submerged land, it could not be moved “without some kind of mechanical assistance.” Lieutenant McCorkle located the sailboat’s registered owner, Mr. Sweeney, at his residence. Mr. Sweeney acknowledged he was the owner of the sailboat. On November 17, 2020, Lieutenant McCorkle hand-delivered a “derelict vessel packet” to Mr. Sweeney. This packet provided that the Commission had determined that the sailboat was in a derelict condition and provided the following description: The above vessel is being stored, left or abandoned in a wrecked condition upon public waters of this state. The vessel is currently aground as a result of TS Eta at N 27° 31.9771 W 082°38.4427. In Lieutenant McCorkle’s presence, Mr. Sweeney acknowledged receipt for the “derelict vessel packet.” Lieutenant McCorkle understood that Mr. Sweeney did not have the financial resources to remove the sailboat at that time. In November 2020, Lieutenant McCorkle took a series of three pictures of the sailboat. These pictures confirmed that Mr. Sweeney’s sailboat was on the public waters of Florida in Manatee County. The pictures showed the sailboat’s registration number, its rudder was partially submerged, the keel was imbedded in submerged lands, and the sailboat was listing to the port side, with the starboard side hull exposed to the air. The lines to the sails appeared to be connected to the mast or appropriate cleats. At that time, Lieutenant McCorkle placed the Commission’s notice of derelict vessel on the sailboat’s starboard bow, such that it was visible from the navigable waterway. Approximately two weeks before the hearing, Lieutenant McCorkle again observed the sailboat in the same location and in a similar condition, listing to the port side. Lieutenant McCorkle took two more photographs of the sailboat which remained in the location where it was first observed, stuck in the submerged lands, and listing to the port side. Additionally, the sailboat appeared to be deteriorating, in that some of the lines were no longer connected to cleats, but were hanging from the mast and now dangling down towards the water. Lieutenant McCorkle found the sailboat to be in a wrecked condition, and considered it a derelict vessel. Major Rowe did not participate in the investigation of this sailboat. Further, he did not discuss the sailboat investigation with any of the LEOs involved. Major Rowe did review the two sets of pictures taken, and based on his years of experience and training testified that this sailboat was a “classic example of a wrecked vessel,” and thus a derelict vessel. The testimony of Lieutenant McCorkle and Major Rowe was unrefuted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Fish and Wildlife Conservation Commission issue a Final Order deeming the sailboat to have been a “derelict vessel” within the meaning of section 823.11(1)(b)1. and that the Commission is authorized under section 376.15(3)(a) to relocate or remove it. DONE AND ENTERED this 27th day of April, 2021, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 2021. COPIES FURNISHED: Brandy Elaine Elliott, Esquire Florida Fish & Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399 Eric Sutton, Executive Director Florida Fish & Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 Robert Sweeney 104 26th Street Northwest Bradenton, Florida 34205 Emily Norton, General Counsel Florida Fish & Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600
