The Issue The issue in this case is whether Petitioner owes additional sales and use tax, plus penalties and interest, on the purchase of bowling equipment during the audit period August 1, 1987 to July 31, 1992.
Findings Of Fact The Parties. Petitioner, Beverly Hills Bowl, Inc., is a Florida corporation. Petitioner was formed by Charles and Evelyn Gill, the shareholders of Petitioner. Petitioner was formed to own and operate a bowling alley. Respondent is an agency of the State of Florida charged with, among other things, responsibility for assessing and collecting sales and use taxes in Florida pursuant to Chapter 212, Florida Statutes. The Respondent's Audit. Between July 23, 1992 and October 8, 1992, Respondent performed a sale and use tax audit of Petitioner for the period August 1, 1987 through July 31, 1992. Respondent concluded that Petitioner's books and records were reasonable except for documentation to support the payment of sales and use tax on a purchase by Petitioner of bowling equipment. Respondent issued a Notice of Proposed Assessment on October 29, 1992. Respondent proposed the assessment of $31,609.05 in sales and use tax. Petitioner paid $8,137.05 of the additional tax. The parties stipulated that the additional tax liability at issue in this proceeding amounts to $23,472.00. Respondent also assessed a penalty of $7,888.96 and interest of $5,264.15. Disputed Purchase. Petitioner purchased bowling lane equipment from United Bowling Products, Inc. (hereinafter referred to as "United"), a Florida corporation, during the audit period. Petitioner paid $391,200.00 to United for bowling lanes and equipment described on Petitioner's exhibit 1. Before consummating an agreement to sale bowling lanes to Petitioner, United gave Petitioner a "Proposal" offering to sell bowling lanes to Petitioner for $391,200.00. See Petitioner's exhibit 1. The Proposal states, among other things, the following: * WE OFFER THE ABOVE EQUIPMENT FOR $16,300.00 PER LANE INCLUDING INSTALLATION, FREIGHT, AND FLORIDA SALES TAX. . . . [Emphasis added]. Petitioner accepted the Proposal and purchased the bowling lanes for $391,200.00. Oral communications between Petitioner and United were also consistent with the Proposal concerning the inclusion of sales tax in the purchase price. No written documentation of the agreement between United and Petitioner was entered into. Petitioner received the bowling lanes and paid United $391,200.00. No written documentation or invoices were provided Petitioner by United upon consummation of the sale. The additional assessment at issue in this case is attributable to this sale of bowling equipment by United to Petitioner. Respondent's Treatment of the Purchase. Respondent concluded that, since the amount of sales tax was not separately stated on the Proposal, additional documentation of the payment of the sales tax by Petitioner to United was required. Respondent requested additional documentation but Petitioner was unable to provide it to Respondent's satisfaction. Respondent concluded that Petitioner was responsible for the payment of use tax on the equipment because it could not be proved to Respondent's satisfaction that sales tax had been paid to United. Respondent is also attempting to collect sales tax on the purchase from the primary dealer responsible for the collection and remittance of sales tax.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the assessment dated October 29, 1992 against Beverly Hills Bowl, Inc. DONE AND ENTERED this 26th day of September, 1995, in Tallahassee Florida. LARRY J. SARTIN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 1995. APPENDIX The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Petitioner's Proposed Findings of Fact Accepted in 2-3, 5-6 and 11. Accepted in 9-11. Accepted in 1, 10 and 12. See 14. What Mr. Aliff may have said during the hearing may not form the basis of a finding of fact. Mr. Aliff was not sworn and did not testify. See 13. Respondent's Proposed Findings of Fact 1 Accepted in 1. 2-3 Accepted in 3. Accepted in 4. The last sentence is a conclusion of law. Hereby accepted. Accepted in 9-10 and 12. Hereby accepted. See 12-13. What the Citrus County Property Appraiser may have reported is hearsay. Accepted in 5. Not relevant. COPIES FURNISHED: Peter C. Johnston, CPA, P.A. 6 Beverly Hills Boulevard Beverly Hills, Florida 34465 Mark T. Aliff Assistant Attorney General Tax Section, Capitol Building Department of Legal Affairs Tallahassee, Florida 32399-1050 Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100 Linda Lettera, Esquire Department of Revenue Legal Office 204 Carlton Building Tallahassee, FL 32399-0100
The Issue Whether the Respondent's Proposed Rule 61D-11.012(5)(d) constitutes an invalid exercise of delegated legislative authority pursuant to Section 120.52(8)(c) and (e), Florida Statutes, as set forth in the Petition Challenging the Validity of Proposed Rule 61D-11.012(5)(d) filed March 14, 2008.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the Agreed Facts included in the parties' Pre- Hearing Stipulation, and on the entire record of this proceeding, the following findings of fact are made: The Parties The Division is authorized to administer cardrooms; to regulate the operation of cardrooms; and to adopt rules governing the operation of cardrooms. See § 849.086(4), Fla. Stat. (2007).1 Hartman and Tyner owns a pari-mutuel facility doing business as Mardi Gras Racetrack and Gaming Center, located at 831 North Federal Highway, Hallandale Beach, Florida 33009. Hartman and Tyner holds two pari-mutuel permits to conduct greyhound racing at this pari-mutuel facility, the BET Miami permit and the Mardi Gras permit. Pursuant to these permits, the Division issued Hartman and Tyner two current licenses to conduct pari-mutuel wagering at this pari-mutuel facility: License #141, which was issued under the BET Miami permit; and License #144, which was issued under the Mardi Gras permit. Pursuant to Section 849.086(5), Florida Statutes, Hartman and Tyner applied for, and the Division issued on June 28, 2007, two cardroom licenses allowing the operation of a cardroom with a maximum of 40 tables during the 2007/2008 season at its pari-mutuel facility. One cardroom license was issued in conjunction with the BET Miami permit, and the other cardroom license was issued in conjunction with the Mardi Gras permit. Hartman and Tyner computes the monthly gross receipts separately for the BET cardroom license and for the Mardi Gras cardroom license in calculating the 10 percent monthly tax imposed by Section 849.086(13)(a), Florida Statutes, and for purposes of the four percent monthly greyhound purse supplement imposed by Section 849.086(13)(b), Florida Statutes. Gulfstream Park holds two pari-mutuel permits to conduct thoroughbred and quarter horse racing at a pari-mutuel facility located in Broward County, Florida. Pursuant to Section 849.086(5), Florida Statutes, Gulfstream Park applied for, and the Division issued, a cardroom license in conjunction with its permit to conduct thoroughbred horse racing. Both Hartman and Tyner and Gulfstream Park are subject to regulation by Proposed Rule 61D-11.012(5)(d). The challenged proposed rule, relevant statutes, and legislative history. Section 849.086, Florida Statutes, which was first enacted in 1996, authorizes a person holding a pari-mutuel wagering permit to obtain a license to operate a cardroom at a pari-mutuel facility and sets forth the conditions under which such cardrooms are to operate.2 The legislative intent in enacting Section 849.086, Florida Statutes, is set forth as follows: LEGISLATIVE INTENT.--It is the intent of the Legislature to provide additional entertainment choices for the residents of and visitors to the state, promote tourism in the state, and provide additional state revenues through the authorization of the playing of certain games in the state at facilities known as cardrooms which are to be located at licensed pari-mutuel facilities. To ensure the public confidence in the integrity of authorized cardroom operations, this act is designed to strictly regulate the facilities, persons, and procedures related to cardroom operations. Furthermore, the Legislature finds that authorized games as herein defined are considered to be pari-mutuel style games and not casino gaming because the participants play against each other instead of against the house. Section 849.086(2), Florida Statutes, contains the following definitions which are pertinent to this proceeding: (c) "Cardroom" means a facility where authorized games are played for money or anything of value and to which the public is invited to participate in such games and charged a fee for participation by the operator of such facility. Authorized games and cardrooms do not constitute casino gaming operations. * * * (f) "Cardroom operator" means a licensed pari-mutuel permitholder which holds a valid permit and license issued by the division pursuant to chapter 550 and which also holds a valid cardroom license issued by the division pursuant to this section which authorizes such person to operate a cardroom and to conduct authorized games in such cardroom. Proposed Rule 61D-11.012 sets forth the duties of licensed cardroom operators at pari-mutuel facilities and is one of a number of proposed rules dealing with cardrooms at pari- mutuel facilities included in the Notice of Proposed Rule published by the Division on March 14, 2008, in Volume 34, Number 11, of the Florida Administrative Weekly. These rules were intended to implement changes to Section 849.086, Florida Statutes, enacted during the 2007 legislative session and effective July 1, 2007. Proposed Rule 61D-11.012(5), which contains the subsection that is the subject of this challenge, provides as follows:3 The cardroom operator must display the hours of operation in a conspicuous location in the cardroom subject to the following terms and conditions: Days and hours of cardroom operation shall be those set forth in the application or renewal of the cardroom operator. Changes to days and hours of cardroom operation shall be submitted to the division at least seven days prior to proposed implementation; Pursuant to Section 849.086(7)(b), F.S., a cardroom operator may operate a licensed facility any cumulative 12-hour period within the day; Activities such as the buying or cashing out of chips or tokens, seating customers, or completing tournament buy- insurance or cash-outs may be done one hour prior to or one hour after the cumulative 12-hour designated hours of operation; The playing of authorized games shall not occur for more than 12 hours within a day, regardless of the number of pari-mutuel permitholders operating at a pari-mutuel facility. Subsection(5)(d) was added to Proposed Rule 61D-11.012(5) at the end of February 2008, to "fix the Mardi Gras 24 hour cardroom issue."4 In the Notice of Proposed Rule for Proposed Rule 61D- 11.012, the Division identified its rulemaking authority as Section 550.0251(12) Florida Statutes, and Section 849.086(4) and (11), Florida Statutes. Sections 550.0251(12) and 849.086(4), Florida Statutes, both give the Division the authority to adopt rules governing, among other things, the operation of cardrooms at pari-mutuel facilities.5 These grants of rulemaking authority are sufficient to authorize the Division to promulgate Proposed Rule 61D-11.012. The Division stated in the Notice of Proposed Rule that Section 849.086, Florida Statutes, is the law implemented by Proposed Rule 61D-11.012. The only section of Proposed Rule 61D-11.012 challenged by Hartman and Tyner is Section (5)(d), which reflects the Division's interpretation of Section 849.086(7)(b), Florida Statutes. Section 849.086(7)(b), Florida Statutes, provides: "Any horserace, greyhound race, or jai alai permitholder licensed under this section may operate a cardroom at the pari- mutuel facility on any day for a cumulative amount of 12 hours if the permitholder meets the requirements under paragraph (5)(b)." Prior to the 2007 amendment, Section 849.086(7)(b), Florida Statutes (2006), provided in pertinent part: A cardroom may be operated at the facility only when the facility is authorized to accept wagers on pari-mutuel events during its authorized meet. A cardroom may operate between the hours of 12 noon and 12 midnight on any day a pari-mutuel event is conducted live as a part of its authorized meet. . . . Application to operate a cardroom under this paragraph must be made to the division as part of the annual license application. This version of the statute was enacted in 2003 and amended the original Section 849.086(7)(b), Florida Statutes (1997), which provided: A cardroom may be operated at the facility only when the facility is authorized to accept wagers on pari-mutuel events during its authorized meet. A cardroom may begin operations within 2 hours prior to the post time of the first pari-mutuel event conducted live at the pari-mutuel facility on which wagers are accepted and must cease operations within 2 hours after the conclusion of the last pari-mutuel event conducted live at the pari-mutuel facility on which wagers are accepted. Section 849.086(7)(b), Florida Statutes, requires that a pari-mutuel wagering permitholder must meet "the requirements under paragraph (5)(b)." Section 849.086(5), Florida Statutes, governs the issuance of cardroom licenses and provides that cardrooms may be operated only by persons holding valid cardroom licenses and that these licenses may be issued only to licensed pari-mutuel wagering permitholders. Section 849.086(5)(b), Florida Statutes,6 provides in pertinent part: After the initial cardroom license is granted, the application for the annual license renewal shall be made in conjunction with the applicant's annual application for its pari-mutuel license. If a permitholder has operated a cardroom during any of the 3 previous fiscal years and fails to include a renewal request for the operation of the cardroom in its annual application for license renewal, the permitholder may amend its annual application to include operation of the cardroom. In order for a cardroom license to be renewed the applicant must have requested, as part of its pari-mutuel annual license application, to conduct at least 90 percent of the total number of live performances conducted by such permitholder during either the state fiscal year in which its initial cardroom license was issued or the state fiscal year immediately prior thereto. If the application is for a harness permitholder cardroom, the applicant must have requested authorization to conduct a minimum of 140 live performances during the state fiscal year immediately prior thereto. If more than one permitholder is operating at a facility, each permitholder must have applied for a license to conduct a full schedule of live racing. Section 849.086(5)(b), Florida Statutes, was not changed by the 2007 amendments to Section 849.086, Florida Statutes, but, pertinent to this proceeding, the final sentence of the subsection was added by amendment in 2003. The effect of this amendment was described in the 2003 House of Representatives and Senate Staff Analyses as follows: "If more than one permitholder operates at a shared cardroom facility, each permitholder must apply for a license to conduct a full schedule of live racing." When introducing the bill that contained the 2007 amendment to Section 849.086(7)(b), Florida Statutes, to the Florida House of Representatives Jobs & Entrepreneurship Council, Representative Holloway, the sponsor of the House of Representatives bill, explained that the "cardroom bill . . . allows cardrooms to operate during live events, and the hours have changed from 12 hours a day . . . from a, from 12 Noon to 12 Midnight to 12 hours a day cumulative." In response to a question, Representative Holloway stated that the bill did not expand gambling in Florida, "[i]t is just re-arranging current provisions." In a similar vein, Senator Fasano, when he submitted a floor amendment to the Senate bill containing an amendment to Section 849.086(7)(b), Florida Statutes, stated that his amendment "limits the hours of operation of a cardroom to a cumulative amount equal to 12 hours in any day if the permit holder has met the requirements for licensure to operate a cardroom." Based on this legislative history and on the various iterations of the statute, the Division enacted Proposed Rule 61D-11.012(5)(d) to reflect its interpretation of the 2007 amendment to Section 849.086(7)(b), Florida Statutes, as limiting the operation of a cardroom at a pari-mutuel facility to a "cumulative amount of 12 hours." In the Division's view, the Legislature did not intend for the 2007 amendment to expand the number of hours a cardroom could operate but was intended only to allow a cardroom operator greater flexibility in setting the hours of operation. In promulgating Proposed Rule 61D- 11.012(5)(d), the Division made explicit its rejection of an interpretation of the 2007 amendment that would allow two pari- mutuel wagering permitholders licensed to operate a cardroom and sharing a pari-mutuel facility both to operate the cardroom at the pari-mutuel facility for a "cumulative amount of 12 hours" a day. The Division rejects such an interpretation because it could result in the operation of a cardroom at a pari-mutuel facility for 24 hours per day, exceeding what the Division considers the limitation on cardroom operation at a pari-mutuel facility to "a cumulative amount of 12 hours." § 849.086(7)(b), Fla. Stat.
Findings Of Fact At all times material hereto, Respondent, John R. Misiak, was a registered pool contractor, having been Issued license No. RP0033942. Respondent acted as the qualifying agent for Pool Masters, Inc., and also sewed as president of that company. On or about August 21, 1979, Respondent, on behalf of Pool Masters, Inc. , contracted with Mr. and Mrs. Rolf Schneider to construct a pool at the contract price of $9,400 at their residence at 4253 Sugar Pine Drive, Boca Raton, Florida. Pursuant to the terms of that contract, Pool Masters, Inc., guaranteed completion of the pool within eight weeks from the date of issuance of a building permit. On August 23, 1979, the Schneiders paid Pool Masters, Inc., a down payment of $948 On September 23, 1979, Respondent obtained a building permit for the pool and commenced construction. Thereafter, the Schneiders made two additional equal payments to Pool Masters, Inc., of $2,820 on October, 30, 1979, and November 4, 1979, respectively. After receipt of these payments, a remaining unpaid balance on the contract of $2,892 resulted. Work progressed on schedule through November 4, 1979, when Pool Masters, Inc., applied "shot crete" to the pool, and the Schneiders made their last payments of $2,820 as indicated above. Thereafter, work did not progress according to schedule, and the Schneiders became concerned about completion of their pool. There ensued a series of correspondence no conversations between the Schneiders, Respondent, and other officers of Pool Masters, Inc., concerning completion of the pool. Actual work on the pool continued through early December of 1979. At some time between December 4 and December 14, 1979, rough plumbing was installed in the pool. The rough plumbing was inspected and approved by the Palm Beach County Building Department on December 14, 1979. Pool Masters, Inc., had experienced financial difficulty as earl as August of 1979. Negotiations between the company and its creditors continued through late 1979 in the company's attempts to remain in business. In late November of 1979, Respondent spoke with Mrs. Schneider and informed her that the company was experiencing financial difficulties and might not be able to complete construction of the pool. On December 12, 1979, an officer of Pool Masters, Inc., spoke with Mr. Schneider, and informed him that the company would not be able to complete construction of the pool and further would be unable to refund their money. Respondent attempted to arrange completion of the Schneider's pool through another company. Under the proposed arrangement, the pool would have completed at the second company's cost, and Pool Masters, Inc., would have contributed $1,000 toward completion. At the time Respondent proposed this arrangement for completion of the pool, it appears from the record that the the pool could have been completed for approximately $2,000 above the original contract price. The Schneiders refused any offer or completion that would have exceeded the original contract price Pool Masters, Inc., was unable to make satisfactory financial arrangements with its creditors. As a result, the company filed a Voluntary Petition Under Chapter 7 of the Bankruptcy Code on January 29, 1980. No work was performed by Pool Masters, Inc., on the job after the period of December 4 through December 14, 1979. There is no evidence of record in this proceeding from which a conclusion can be drawn that any of the monies paid by the Schneider to Pool Masters, Inc., was applied other than in the partial construction of the pool pursuant to the contract. The Schneiders subsequently contracts with another firm for completion of the pool at a cost substantially in excess of the original contract price. The Schneiders also filed a civil suit for damages against Pool Masters, Inc. Respondent, and other corporate officers. In the course or that proceeding, the Schneiders recovered $1,750 from one of the corporate officers.
Findings Of Fact At all times material hereto, Respondent was employed by Petitioner under a professional service contract as a physical education teacher at Seminole Middle School in the Pinellas County school system. Respondent holds a regular teaching certificate number 555676, issued by the State of Florida, Department of Education. On March 18, 1988, Respondent was conducting a physical education class at Seminole Middle School. The class consisted of both male and female students, and was being held indoors since it was raining on that day. Respondent was directly supervising a group of students who were engaged in a "bowling" activity. This activity consisted of the students rolling a reduced- size bowling ball, approximately four inches in diameter but made of regular bowling ball material, at pins which were set up at one end of the floor. There was no alley or lane, as such, but there was a distance of approximately twenty feet between the students and the pins. Respondent would set up the pins after each student rolled the bowling ball. While Respondent was still bending over to set up the pins after a previous student had rolled the ball, John Ondich, a fourteen year old student, threw the bowling ball very hard in the direction of Respondent and the pins. Respondent looked up as the ball was approaching him, and saw that it was about to strike him in the face. He blocked the ball with his hands, causing it to graze off the wall in back of the pins. Thereupon, Respondent retrieved the ball, and threw it at Ondich in a three-quarters over hand motion, with what Respondent termed some intensity." The ball missed Ondich, but struck Anjeanette Milone in the mouth, causing it to bleed. She was treated at the school clinic with ice to reduce swelling, but no stitches were required. Respondent immediately apologized to Milone and expressed concern for her. Based upon the testimony of students present during this incident, as well as Respondent's own testimony and a statement he made to his principal, C. W. Mock, about this incident, it is found that Respondent threw the bowling ball at Ondich in anger, and with the intent of hitting Ondich. Respondent was angered by the manner in which Ondich had thrown the bowling ball while he was still setting up the pins. Based upon the testimony of C. W. Mock and Steven Crosby, who were accepted as experts in education, Respondent's action on March 18, 1988, impairs his effectiveness as a teacher due to the loss of respect among students and parents which has resulted. He failed to exercise good professional judgment, and instead his actions caused embarrassment and physical injury to one of his students. This conduct by a teacher impairs the teaching profession as a whole. Corporal punishment is specifically prohibited at Seminole Middle School. By proper notice to Respondent, petitioner sought to impose a three day suspension without pay as a result of this incident, and Respondent has timely sought review of this Proposed action.
Recommendation Based upon the foregoing, it is recommended that Petitioner enter a Final Order imposing a three day suspension without pay upon Respondent. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of October, 1988. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2289 Rulings on Petitioner's Proposed Findings of Fact: Petitioner did not timely file a Proposed Recommended Order containing Proposed findings of fact. Rulings on the Respondent's Proposed Findings of Fact: 1-2. Adopted in Findings of Fact 1 and 7. Adopted and Rejected, in part, in Findings of Fact 3, 5. Rejected as irrelevant and unnecessary. COPIES FURNISHED: Scott Rose, Ph.D. Superintendent of Schools Post Office Box 4688 Clearwater, Florida 34618 Bruce P. Taylor, Esquire Post Office Box 4688 Clearwater, Florida 34618 Charleen C. Ramus, Esquire Post Office Box 75638 Tampa, Florida 33675 Commissioner Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by William F. Quattlebaum, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Respondent’s request for dismissal, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED and no license will be issued to TT of Orlando, inc. d/b/a Maserati of Orlando to sell Maserati automobiles manufactured by Maserati (MASE) at 4225 Millenia Boulevard, Orlando, (Orange County), Florida 32839. Filed December 1, 2011 4:03 PM Division of Administrative Hearings DONE AND ORDERED this 36 day of November, 2011, in Tallahassee, Leon [s SandraC. Lambert, Director Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 County, Florida. Filed with the Clerk of the Division of Motorist Services this _20%l>day of November, 2011. NOTICE OF APPETITES =m" Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. SCL:jde Copies furnished: C. Everett Boyd, Esquire Nelson, Mullins, Riley and Scarborough LLP 3600 Maclay Boulevard South, Suite 202 Tallahassee, Florida 32312 Robert Craig Spickard, Esquire Kurkin Forehand Brandes, LLP 900 North Calhoun Street, Suite 1B Tallahassee, Florida 32301 John F. Walsh, Esquire AMSI-Automotive Management Services, Inc. 505 South Flagler Drive, Suite 700 West Palm Beach, Florida 33401 Donald St. Denis, Esquire St. Denis and Davey 1300 Riverplace Boulevard, Suite 101 Jacksonville, Florida 32207 William F. Quattlebaum Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator
Findings Of Fact At all times relevant hereto Scarlett P. Faulk and Scarlett Faulk and Associates, Inc. were licensed as a broker and corporate broker, respectively, by the Florida Board of Real Estate. Lily Nelson, broker at Sandpiper Realty, managed property at 1800 Gulf Boulevard, Bellaire Shores, owned by Larry and Sheena Bowa, who resided out of state. This property consisted of a residence which Ms. Nelson rented on behalf of the Bowas. Scarlett Faulk owned a residence located at 1720 Gulf Boulevard which she had purchased in June, 1986. In late June, 1986, Faulk telephoned Lily Nelson to ask if the Bowas were interested in selling their property at 1800 Gulf Boulevard as she might have a client interested in the property. Ms. Faulk's brother, Mac Phillips, was planning to move to Clearwater and was looking for a residence. Also, Faulk had another client, Clarence Trice, to whom she had sold several properties over the past few years. At the time, Trice was contemplating the purchase of property at 1420 Gulf Boulevard and had asked Faulk to join him in a joint venture to purchase this property. Faulk declined, but suggested that her brother, Mac Phillips, might be interested. On June 25, 1986, Phillips wired $62,500 to Faulk to participate in this purchase, but Trice opted to purchase the property by himself. Faulk held these funds in her escrow account (Exhibit 2). Mrs. Bowa told Lily Nelson that she would talk it over with her husband and call back. When she did call back to say they were interested in selling, she inquired about prices in the neighborhood. Mrs. Bowa then agreed to have the property listed for $600,000. This was communicated to Ms. Faulk who passed the information to Phillips. Phillips made an offer of $500,000 for the property, and Bowa countered with $525,000 which Phillips accepted. The contract to purchase the property at 1800 Gulf Boulevard was executed by the buyer on July 1, 1986, and by the sellers on July 7, 1986. Rebecca Watson, at all times relevant, was registered as a real estate sales person and associated with the Respondent. Ms. Watson had a client, Scane Bowler, whose wife was interested in having a house built on a lot facing the Gulf of Mexico. Lots on the west side of Gulf Boulevard face the Gulf of Mexico. Rebecca Watson asked Respondent Faulk if she could show the Bowlers the residence at 1720 Gulf Boulevard that Faulk had recently purchased. Faulk agreed, met Watson and her client, and allowed Watson to show the house. This was the occasion on which Faulk first met the Bowlers. This meeting occurred June 27, 1986, the day the Bowlers departed to attend the tennis matches at Wimbleton. Bowler told Watson the price Faulk was asking, $725,000, was more than the $600,000 he was willing to pay for gulf front property. Bowler asked Watson to keep looking and he would contact her when they returned from Wimbleton in about ten days. When Bowler returned to Clearwater from Wimbleton on July 10, 1986, he contacted Watson to inquire if any lots had become available. Watson showed the Bowlers 1800 Gulf Boulevard and told them that Phillips, the brother of Faulk, had a contract to purchase the property. The Bowlers liked the property and inquired if Phillips would sell the contract to them. Following some negotiation, Phillips sold the contract to the Bowlers for $100,000, and Bowler was the grantee on the deed executed by Bowa. When Bowa learned from Bowler that Bowler was paying $625,000 for the property for which Bowa was getting only $525,000, Ms. Bowa wrote a letter to the Florida Board of Real Estate. After the closing, Bowler instituted civil proceedings against Faulk.
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Respondent’s Notice of Filing withdrawing its Notice of Intent to Establish Additional Dealership, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File and Relinquishing Jurisdiction as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED and no license will be issued to Genuine Scooters, LLC and Boca Scooters, LLC to sell Genuine Scooters-manufactured by Motive Power Industry Co., Ltd. (MOTI) and LML Limited (LMLL) at 389 Northwest 1 Avenue, Boca Raton (Palm Beach County), Florida 33432. Filed June 19, 2014 7:43 AM Division of Administrative Hearings DONE AND ORDERED this 1 day of June, 2014, in Tallahassee, Leon County, Florida. Filed in the official records of the Division of Motorist Services this day of June, 2014. Wal» On c Nalini Vinayak, Dealer License Administrator Copies furnished to: Nalini Vinayak Dealer License Section Kenneth L. Paretti, Esquire Quinton and Paretti, P.A. 80 Southwest 8" Street, Suite 2150 Miami, Florida 33130 kparetti@quintonparetti.com Trey Duren Genuine Scooters, LLC 5400 North Damen Avenue Chicago, Illinois 60625 Cobur Julie Baker, Chief Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 Tallahassee, Florida 32399 Colton Ralston Boca Scooters, LLC 389 Northwest 1st Avenue Boca Raton, Florida 33432 Robert E. Meale Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure.
The Issue The issue for determination in this proceeding is whether Respondents purchased and applied a restricted-use pesticide without a license and whether Respondents applied the pesticide in an improper manner.
Findings Of Fact Respondent, Port Malabar Country Club, is an unincorporated 18-hole golf course located in Palm Bay, Florida, owned and operated by Raysteff Corporation ("Raysteff"). Raysteff is a Florida Corporation, wholly owned by Mr. Robert Dolci. Respondent, Robert L. McDaniel, is the superintendent of golf course maintenance at Port Malabar Country Club and has held that position since 1985. On February 26, 1992, Respondent, McDaniel, purchased a 42 pound container of Kerb 50-W herbicide ("Kerb") from Harrell's Inc., located in Lakeland, Florida. Kerb contains chemicals that are classified as restricted- use pesticides by Petitioner. The labelling on the product's package contains the following warning: RESTRICTED USE PESTICIDE Because pronamide has produced tumors in laboratory animals, this product is for retail sale to and use only by Certified Applicators or persons under their direct supervision, and only for those uses covered by the Certified Applicator's certification. On February 26, 1992, neither Respondent, McDaniel, nor any other employee, officer, or agent of Raysteff held a valid applicator's license as required by Section 487.031(7), Florida Statutes. On March 4, 1992, Mr. Jason McDaniel was an employee of Raysteff and applied all Kerb to approximately three acres of the golf course. Respondent, McDaniel, supervised the application of the Kerb. Neither Respondent, McDaniel, nor any other employee, officer, or agent of Raysteff held a valid applicator's license at the time of the application. Respondent, McDaniel, had been licensed by Petitioner in 1975 and 1976 as a certified applicator. Mr. McDaniel's license expired on October 31, 1983. Mr. McDaniel took the examination required to obtain a new license after December 5, 1991. At the time he purchased and applied the Kerb, Mr. McDaniel had not been notified that he had passed the examination. Mr. McDaniel subsequently received his current license which expires sometime in 1996. The Kerb was applied properly around tees and greens on a sunny day with little wind. The treated area was not used by golfers until after the treated area was dry. The method of application did not expose either golfers or workers directly or by drift. The method of application complied with labeling precautions on the product. Neither package labeling, Petitioner's rules, nor Petitioner's policy establishes the amount of time needed for Kerb to dry. Petitioner failed to present any evidence to explicate its assertion that Respondents failed to determine that the Kerb was dry before allowing persons into the treated area. Evidence presented by Respondents was credible and persuasive. Respondents have no history of formal administrative disciplinary action for prior offenses. Respondent, McDaniel, properly applied the Kerb after taking the examination to obtain his license as a certified applicator and subsequently received that license. No harm was caused to any individual as a result of the application of the Kerb. There was no damage which would otherwise require expense to the state to rectify. Respondents did not benefit pecuniarily as a result of applying the Kerb prior to the time Mr. McDaniel received his license. However, Mr. McDaniel knew or should have known that he did not have his license when he purchased and applied the Kerb.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued denying Petitioner's claim of unlawful discrimination. DONE AND ENTERED this 19th day of October, 1993, at Tallahassee, Florida. DANIEL MANRY 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 October, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2230 Petitioner did not submit proposed findings of fact. 1.-10. Accepted in substance 11.-12. Rejected as unsupported by the weight of evidence Accepted in substance Rejected as irrelevant and immaterial Respondent's Proposed Findings of Fact 1.-2. Accepted in substance Rejected as irrelevant and immaterial Accepted in substance 5.-11. Rejected as irrelevant and immaterial 12. Accepted in substance COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 John S. Koda, Esquire Florida Department of Agriculture and Consumer Services Room 515, Mayo Building Tallahassee, Florida 32399-0800 Elting L. Storms, Esquire Post Office Box 1376 Melbourne, Florida 32902-1376 Richard Tritschler, Esquire General Counsel Florida Department of Agriculture and Consumer Services Room 515, Mayo Building Tallahassee, Florida 32399-0800
