Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the respondent Division of Beverage issue the type 11-C license to petitioner without further delay. Respectfully submitted and entered this 24th day of March, 1976, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Charles A. Nuzum Division of Beverage Johns Building. Tallahassee, Florida
The Issue The Department adopts and incorporates in this Final Order the Statement of Issues contained in the Recommended Order.
Findings Of Fact Respondent has submitted two (2) exceptions to the Hearing Officer's Findings of Fact in the Recommended Order. These two exceptions are rejected for the reasons set forth below. Respondent's First Exception-- Finding of Fact No. 5: The Hearing Officer's finding that Rebos Club does not control the hot-line is supported by substantial competent evidence. Testimony indicated that Rebos Club does not provide counseling training to the employees or volunteers that answer the phone. Volunteers or employees handle each call using their own discretion-- they do not follow procedures or guidelines established by Rebos Club. This exception is therefore rejected. Respondent's Second Exception-- Finding of Fact No. 5: The statement as to the nature of "12th step calls" is not relevant, and is therefore rejected. RULINGS ON EXCEPTIONS TO CONCLUSIONS OF LAW Respondent has submitted two (2) exceptions to the Hearing Officer's Conclusions of Law in the Recommended Order. These two exceptions are rejected for the reasons set forth below. Respondent's First Exception-- Conclusion of Law No. 32: The Hearing Officer's findings that Rebos Club itself does not provide counseling services to alcoholics or their families, and that it does not offer active intervention has been revised in this Final Order's modification of the Hearing Officer's Conclusion of Law Number 32. This exception therefore, now is not relevant. Respondent's Second Exception- Conclusion of Law No. 34: The Hearing Officer's findings that Rebos Club does not provide the direct services required by statute and does not spend in excess of 50 percent of its expenditures directly towards a referenced charitable concern has been revised in this Final Order's modification of the Hearing Officer's Conclusion of Law Number 34. This exception is now, therefore, not relevant.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Pinellas Rebos Club's application for reissue of a sales tax exemption certificate be granted. RECOMMENDED this 8th day of February, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 8th day of February, 1996. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 95-1800 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Accepted and incorporated herein. Accepted. - 8. Accepted and incorporated herein. Accepted. - 12. Accepted and incorporated herein. 14. - 17. Accepted and incorporated herein. 18. - 22. Accepted and incorporated herein. First clause rejected. Balance accepted. Accepted and incorporated herein. - 28. Accepted and incorporated herein. Accepted and incorporated herein. Not a proper Finding of Fact. More a statement of agency rule interpretation. FOR THE RESPONDENT: Accepted and incorporated but also a statement of the law. & 3. Accepted and incorporated herein. Not a proper Finding of fact but more a comment on the nature of the evidence. Accepted and incorporated herein. & 7. Accepted and incorporated herein. Accepted but not of major evidentiary import. & 10. Accepted and incorporated herein. Accepted and incorporated herein. & 13. Accepted and incorporated herein. 14. & 15. Accepted. COPIES FURNISHED: Nancy Francillon, Esquire Olivia P. Klein, Esquire Office of the Attorney General The Capitol - Tax Section Tallahassee, Florida 32399-1050 Carl A. Schuh, Esquire 256 3rd Street North St. Petersburg, Florida 33701 Larry Fuchs Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100 Linda Lettera General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Petitioner, John's Island Club, Inc. (petitioner or the club), is a not-for-profit corporation which owns and operates a private country club facility in the John's Island residential development in Indian River County, Florida. It provides a variety of recreational facilities to its members. Among the amenities are three golf courses, nineteen tennis courts, a tennis building, a beach club, a club house, a swimming pool, and dining facilities. Respondent, Department of Revenue (DOR), is a statutorily created agency charged with the administration of the state revenue laws, including Chapter 212, Florida Statutes, and rules promulgated thereunder. As a result of an amendment made in 1991 to Subsection 212.02(1), Florida Statutes, DOR is authorized by law to impose an admissions tax on "dues and fees" paid to private membership clubs providing recreational facilities. As a private membership club, petitioner is subject to this tax. Beginning on July 1, 1994, petitioner made an assessment on each member to raise capital for the purpose of repairing and replacing many of its physical facilities. During the six month period ending December 31, 1994, $10,441,897 was collected from the members and made available to the club. Rule 12A- 1.005(d)1.b., Florida Administrative Code, which was adopted by DOR in December 1991 to implement the admissions tax on dues and fees, imposes a tax on "(a)ny periodic assessment (additional paid-in capital) required to be paid by members of an equity or non-equity club for capital improvements." Under the authority of that rule, DOR required that petitioner pay the applicable sales tax on the assessment collected through December 31, 1994, or $730,932.79, and that it continue to pay the tax as other similar assessments are made in the future. Claiming that the rule exceeds DOR's grant of rulemaking authority, and it modifies, enlarges, and contravenes the law implemented, petitioner filed a petition for administrative determination of invalidity of existing rule. DOR denies all allegations and asks that the validity of its rule be upheld. The Club and the Assessment The composition of the club The club began operation in 1969 but was purchased by its members in 1986. It is an equity private membership club but issues no stock. The club has two types of memberships: golf and sports social. Currently, the cost of a golf equity membership is $85,000 while the cost of a sports social membership is $30,000. After payment of these fees, the member receives a membership certificate, which represents his or her equity ownership interest in the club. At the present time, there are 1125 golf memberships and 257 sports social memberships. Of the 1125 golf memberships, the original developer still owns 67. In addition to having to purchase a membership, members must also pay annual dues. A golf member pays $4,875 in annual dues while a sports social member pays $2,760 in annual dues. A sales tax is also collected on these dues. The dues are used to cover operating expenses such as insurance, administrative costs, staff salaries, and maintenance costs. In addition, members pay fees for additional services such as golf cart use, golf bag storage, locker room use, and golf and tennis lessons. When a member decides to resign or retire from the club, he or she may resell the membership to the club (but not a third party) and receive the greater of (a) the initial amount paid by the retiring member, or (b) 80 percent of the current membership cost (with the remaining 20 percent retained by the club in a separate capital improvement account). The assessment In 1992, the club began studying the feasibility of repairing and replacing many of its physical facilities. The total cost of the proposed work was set at $16,372,000. By majority vote taken in the spring of 1994, the members decided to raise capital for the work by imposing a capital assessment on each current member. It was agreed that the capital contribution would be $12,000 from each golf member and $11,150 from each sports social member. However, the payment of the capital contribution was not intended to, and did not result in any, decrease in the dues which members were required to pay for the use of the club's facilities. A failure to pay the assessment would result in suspension from the club. Three different options were made available to the members for the manner of payment of the capital contribution. The options included (a) a single payment, (b) payment over a three-year period, or (c) payment of interest only until such time as the member either sold the membership or left the club. After making payment in full, the member would be issued a certificate of capital contribution. It is noted that the developer was required to pay the capital contribution for his 67 golf memberships. Further, any person joining the club after the imposition of the assessment would likewise be required to pay the assessment. Beginning in July 1994, the club began collecting the capital contribution from its members. From July through December 1994, some $10,441,897 was collected. A total sales tax of $730,932.79 has been paid on those collections. Shortly thereafter, petitioner opted to file this rule challenge. The Rule and its Origin Rule 12A-1.005(5)(d)1.b. provides as follows: (d)1. Effective July 1, 1991, the following fees paid to private clubs or membership clubs as a condition precedent to, in conjunction with, or for the use of the club's recreational or physical fitness facilities are subject to tax. * * * b. Any periodic assessments (additional paid in capital) required to be paid by members of an equity or non equity club for capital improvements or other operating costs, unless the periodic assessment meets the criteria of a refundable deposit as provided in sub-subparagraph 2.e. below. * * * Under the terms of the rule, the capital contri- bution assessed by the club does not qualify as a refundable deposit. This is because any difference between the amount collected by the club upon the sale of a membership to a new member, and the amount which was paid to the retiring member, is retained by the club. Because Rule 12A-1.005, Florida Administrative Code, covers a wide array of items subject to taxation, the DOR cites Sections 212.17(6), 212.18(2), and 213.06(1), Florida Statutes, as the specific authority for adopting the rule, and Sections 212.02(1), 212.031, 212.04, 212.08(6) and (7), 240.533(4)(c), and 616.260, Florida Statutes, as the law implemented. There is no dispute between the parties, however, that in adopting sub-subparagraph 1.b., which contains the challenged language, the agency was relying principally on Subsection 212.02(1), Florida Statutes, as the law being implemented. That subsection defines the term "admissions" for sales tax purposes. Although the parties did not specifically say so, DOR relies on Section 212.17(6), Florida Statutes, as its source of authority for adopting the rule. That subsection authorizes DOR to "make, prescribe and publish reasonable rules and regulations not inconsistent with this chapter . . . for the enforcement of the provisions of this chapter and the collection of revenue hereunder." For the purpose of assisting DOR in administering the Florida Revenue Act of 1949, which imposes a sales and use tax on various transactions, Section 212.02, Florida Statutes, provides definitions of various terms used in the chapter, including the term "admissions." Prior to the 1991 legislative session, subsection 212.02(1) read in pertinent part as follows: The term "admissions" means and includes . . . all dues . . . paid to private clubs and membership clubs providing recreational or physical fitness facilities, including, but not limited to, golf, tennis, swimming, yachting, boating, athletic, exercise, and fitness facilities. During the 1991 legislative session, the definition of the term "admissions" was expanded by the addition of the following underscored language: The term "admissions" means and includes . . . all dues and fees . . . paid to private clubs and membership clubs providing recreational or physical fitness facilities, including, but not limited to, golf, tennis, swimming, yachting, boating, athletic, excercise, and fitness facilities. Thus, the legislature added the term "fees" to the term "dues" for those amounts "paid to any private clubs and membership clubs" which would be subject to the admissions tax. Prior to the above change in substantive law, rule 12A-1.005(5), as it then existed, provided that dues paid to athletic clubs which provided recreational facilities were taxable. However, subparagraph (5)(c) of the rule also provided that (c) Capital contributions or assessments to an organization by its members are not taxable as charges for admissions when they are in the nature of payments made by the member of his or her share of capital costs, not charges for admission to use the organization's recreational or physical fitness facilities or equipment, and when they are clearly shown as capital contributions on the organization's records. Contributions and assessments will be considered taxable when their payment results in a decrease in periodic dues or user fees required of the payor to use the organization's recreational or physical fitness facilities or equipment. Therefore, capital contributions were not taxable unless they resulted in decreased dues. That is to say, if a club levied an assessment on members and concurrently lowered its monthly dues, the assessment would be deemed to be taxable and in contravention of the rule. Thus, the effect of the rule was to prevent a club from renaming "dues" as "capital contributions" or "assessments" in order to avoid paying a tax on the dues. After the change in substantive law, the DOR staff began preparing numerous drafts of an amendment to its rule to comply with the new statutory language. At one stage of the drafting process, a DOR staffer recommended that, because the legislature had not provided a definition of the term "fee," the DOR should adopt a rule which provided that capital contributions be "not taxable if assessed under an equitable membership." Relying on what it says is the legislative intent, the DOR eventually proposed, and later adopted, the rule in its present form. In doing so, the DOR relied upon the terms "capitalization fees" and "capital facility fees" which are found in certain legislative history documents pertaining to the new legislation. Legislative History of the Law Implemented Although a number of bills related to the subject of a sales tax on admissions, the bill enacted into law was identified as Committee Substitute for House Bill 2523 (CS/HB 2523). The legislative history of the various bills relating to this subject has been received in evidence and considered by the undersigned. In early 1991, the House and Senate considered bills which addressed amendments to the sales tax on admissions. The first time the issue was addressed was at a meeting on February 21, 1991, of the Subcommittee on Sales Tax of the House Committee on Finance and Taxation. The discussion at the meeting indicated that the intent of the bill was to close a loophole that allowed physical fitness facilities to change their pricing structure to charge a higher initiation fee, which was not taxable, and thereby reduce their monthly dues, which were taxable, so as to reduce the revenue below that originally anticipated by this tax on admissions. This is corroborated by the bill analysis of the proposed committee bill that was offered, PCB FT 91-3A, which summarized the problem and solution as follows: Section 212.02(1), F. S. was amended during the 1990 Legislative Session to include in the definition of admissions those "dues" of "membership clubs" providing "physical fitness" facilities. Some clubs have attempted to avoid the tax (on dues) by shifting a substantial portion of the members' payments from "dues" to "initiation fees." Section 212.02(1), F. S., is amended to include "fees" as well as "dues" in the definition of admissions. All fees, including initiation fees and capitalization fees, paid to private clubs and membership clubs providing recreational or physical fitness facilities would be subject to the sales tax on admissions. It is unclear, but likely, that PCB FT 91-3A became House Bill 2417 (HB 2417). The bill analysis and economic impact statement on HB 2417, which was prepared by the House Committee on Appropriations, contained identical language to that in the bill analysis on PCB FT 91-3A. At the same time, the Senate was considering Senate Bill 1128, which later became Committee Substitute for Senate Bill 1128 (CS/SB 1128). On March 14, 1991, a staff analysis and economic impact statement on CS/SB 1128 was prepared by the Senate Committee on Finance, Taxation and Claims. It provided that: Section 212.02(1), Florida Statutes, defines "admissions" for sales and use tax purposes. Monthly fees of clubs with major facilities such as tennis courts, a swimming pool or a golf course have always been subject to the sales tax. During the 1990 Legislative Session this statute was amended to include dues on membership clubs providing physical fitness facilities, and not having these other major facilities. According to the DOR, such clubs have attempted to avoid payment of this tax by shifting a substantial portion of the members payments from dues to initiation fees which are not taxed. Accordingly, the purpose of the proposed statutory amendment was "to include initiation fees as well as dues in the definition of admissions." HB 2417 was passed by the House on April 17, 1991, and was sent to the Senate, where it was referred to the Committee on Finance, Taxation and Claims. HB 2417 died in that Committee. CS/SB 1128 was passed by the Senate on April 4, 1991, and was sent to the House, where it died in messages. A separate bill, Committee Substitute for House Bill 2523, which addressed similar issues to those addressed in HB 2417 and CS/SB 1128, was passed by the House on April 4, 1991, and was sent to the Senate where it was passed with amendments. The Bill was then returned to the House where further amendments were adopted. The Bill was again sent to the Senate with a request for the Senate to concur with the House amendments. The Senate refused to concur and the Bill was sent to a conference committee. The conference committee on finance and taxation met on April 19, 1991. The entirety of the discussion of the committee on this issue is as follows: Senator Jenne: The - - going down to number 21, admissions, initiation fees. The House includes capitalization fees. Representative Abrams: Which is this? Mr. Weiss: The Senate bill just states initiation fees are additionally included. The House bill, I believe, says that it's just all fees, which would include whether they called them initiation fees or capital facility fees or whatever. Representative Abrams: Because we are using something other than initiation - - Mr. Weiss: It's a fee that is going to be included. Representative Abrams: Yes, they were using - - they were breaking down categories of fees to avoid the tax, I think is what the deal was there. That gets us how much? Senator Jenne: Okay, well, it doesn't matter, because you can do it. Representative Abrams: Okay, good. Although the terms "capital facility fees" and "capitalization fees" were used during the discussion, contrary to DOR's assertion, it is far from clear that the intent of the amendment was to make taxable all capital contributions and assessments paid by members of private clubs providing recreational facilities. When placed in context with the prior debate before the committees and their staff analyses, it is much more likely that the intent was to close a loophole then used by physical fitness clubs who were renaming dues as fees in order to avoid taxes. The report of the conference committee was received by both houses on April 30, and CS/HB 2523 was passed by both houses the same day. The conference committee report for the bill contains only the following language describing the sales tax on admissions/initiation fees: Includes all recreational or physical fitness facility fees in the definition as admissions. The official conference committee report contains no reference to the terms "capitalization fees" or "capital facility fees." Neither does it make reference to the terms "assessment" or "paid in capital," which are the terms used by DOR in its rule. In the final bill analysis and economic impact statement prepared by the House Committee on Finance and Taxation for CS/HB 2523 on June 12, 1991, or 43 days after the bill was passed, the analysis states that subsection 212.02(1) was amended to include: "fees" as well as "dues" in the definition of admissions. All fees, including initiation fees and capitalization fees, paid to private clubs and membership clubs providing recreational or physical fitness facilities would be subject to the sales tax on admissions . . . This amendment should also limit further attempts to avoid taxation by renaming the fees collected from members. The staff analysis was obviously not available to members of the House or Senate when they voted on the bill on April 30, 1991. Although the final bill analysis used the term "capitalization fees," no where in any of the legislative history is there evidence of any legislative consideration of what was actually meant by that term. This is also true of the term "capital facility fees" which surfaced on one occasion prior to the passage of the bill. Capitalization Fees and Their Significance The sole basis for the DOR including the tax on assessments for capital improvements was the appearance in the legislative history of the terms "capitalization fees" and "capital facility fees." Neither term has any meaning to tax accountants. However, the accounting witnesses for both parties agreed that, from an accounting perspective, the phrase "capital facilities" would be understood to be assets having a life longer than one year. A capital contribution is typically a one time payment for the purchase of assets. It does not entitle the member to use the club. It is an equity transaction, not an income transaction, and it represents an intent to make an investment to improve the value of the membership assets separate and apart from the payment of annual expenses for the receipt of some service. "Dues" are a member's contribution to the operating costs of a club. They are assessed over an annual period and they are recurring. They also represent the payment that a member pays for admission to the organization. A capital contribution paid by a member of an equity membership club is not "dues." "Fees" as applied to a club are user charges. They are voluntary so that a member can decide whether or not to incur the charge based on whether the member uses the particular service to which it relates. A capital contribution is not a "fee."
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 Respondent's beverage license should be suspended or revoked, or a civil penalty assessed, for alleged violations of Sections 562.13(3)(a)(1), and 561.20(7)(a)(3), 562.23, Florida Statutes and Rule 7A-3.19(2), Florida Administrative Code, pursuant to Section 561.29, Florida Statutes, as set forth in Notice to Show Cause issued by Petitioner.
Findings Of Fact The Florida Voluntary Roadside Improvement Association (Association) was incorporated in 1951 as a nonprofit corporation under the laws of the State of Florida by the Circuit Court of Leon County. The general objects of the Association as set forth in its certificate of incorporation are to develop and carry out a program of voluntary mutual cooperation among businesses occupying lands adjoining highways of Florida, highway users, and others concerning highway utilization. Petitioner has issued beverage licenses to the Association in several business names since 1969 at several locations in Tallahassee. In November, 1974, a Series 11-C beverage license (club license) was issued to the Association in the name of 1221 Club located at 1221 Alabama Street, Tallahassee, Florida. The license was in effect at the time of the alleged violations set forth in Petitioner's Notice to Show Cause and is presently held by the licensee. (Petitioner's Exhibits 1, 2, Testimony of Schoenfeld) The Association has rented space in a building owned by Willie Bennett at 1221 Alabama Street for several years. When he first purchased the building some seven years ago, it was rented to Alberta Walker who was then operating a place of business known as the Psychedelic Shack under a beverage license issued by Petitioner. In October, 1974, on a plea of nolo contendere, she was sentenced to eight months in the Leon County Jail by the County Court of Leon County for a violation of the State Beverage Law and another offense. Her beverage license was cancelled in May, 1974. City utilities for 1221 Alabama Street have been supplied under a contract with Walker in the name of Psychedelic Shack since 1970. (Petitioner's Exhibits 6, 10, 12, Testimony of Bennett, Schoenfeld, Connell, Walker) On June 3, 1977, Petitioner's beverage officer, Gary E. Sams, took a paid informant, Nathan Jones, to the vicinity of the 1221 Club and instructed him to enter the premises and attempt to become a member of the club and purchase alcoholic beverages there. Some 20 minutes later, Jones came out of the club and had a membership card. On several later occasions during the month of July, 1977, Jones purchased beer and vodka at the club from Walker who was tending the bar. Although Jones relied on a recent memorandum prepared by Sams to recall the precise dates of the beverage sales by Walker, his testimony concerning the incidents is deemed credible. (Testimony of Sams, Jones, Simmons, Respondent's Exhibit 1) On July 14, 1977, Sams observed Walker go to the door of the club, insert a key and enter the premises. On July 18, he observed Walker take a key from her purse, give it to Theodore Simmons, who thereafter unlocked the door. On July 19, Sams served a subpoena duces tecum upon Walker at the club premises for cancelled checks and bank statements of her personal checking account during the period January through June, 1977. She expressed no objection to turning over the required documents and did so that day. Theodore Simmons, the president of the Association, voluntarily turned over checks from the Association banking account in the Second National Bank of Tallahassee, which were variously dated in May and June of 1977. Upon comparison of the two sets of checks, a handwriting expert employed by the Florida Department of Criminal Law Enforcement found that Walker had written many of the words and figures appearing on the face of the checks, but had not signed them. (Petitioner's Exhibits 7-9, Testimony of Sams, Deposition of McCarthy (Petitioner's Exhibit 13) The bylaws of the Association provide that the membership committee inquires into the eligibility of applicants and submits findings to the board of directors who then vote on membership. The bylaws further provide that the treasurer of the organization shall have charge of the funds and deposit all monies in Association bank accounts, make disbursements, and maintain the books. In fact, two former treasurers of the Association resigned from their duties because they were given no functions to perform and never saw any books of the Association or handled any of its monies. Both individuals had become members of the Association by paying a $1.00 membership and were unaware as to whether any vote had ever been taken on their membership. Although at one time, the Association contemplated creating recreational facilities across the street from its premises, all that was accomplished was a clearing of land. Several times, the membership was solicited for funds to assist families of deceased members. The primary function of the club was social in nature. (Petitioner's Exhibit 3, Testimony of Dixie, Allen) Both Theodore Simmons and Alberta Walker testified at the hearing. Simmons was president of the Association from 1975 until a few months ago. Walker has been a member since May of 1975. During the period that Simmons was president, the Association had officers but not a board of directors. The club did not have a paid manager or employee. The practice was for Simmons to make sales of beverages and snacks during the hours of operation, and sign checks prepared by Walker for payment of rent, supplies and other Association expenses. Although Walker was not a paid employee, she possessed keys to the establishment, kept the books, handled the monies and made the periodic deposits in the club bank accounts. Simmons was aware that Walker had been convicted of a beverage violation and testified that "I didn't start the club until she came out of jail." Although Simmons wasn't paid for his work at the club, if he needed money, he would routinely take some from the club receipts. Walker testified that Simmons was her "boy friend" for five years and that she spent a lot of time at the 1221 Club to be with him and because she was unemployed. She testified that she kept the books of the Association because Beverage Officer Sams had said in 1975 that it was all right to "work there" due to the fact that her criminal conviction had been for a misdemeanor; but that he told her in August, 1977, that a 1976 state law prohibited her working as a bartender, although she could continue to keep the books. At the hearing, Sams conceded that he had informed Walker that she could continue to maintain the books of the Association. Walker claimed that the reason the utilities for the premises remained in her name was that it would cost $300 to transfer the account to the 1221 Club. Her claimed reason for making the club bank deposits was that Simmons had no motor vehicle and that the bank was located on the route to her home. She admitted selling alcoholic beverages as a consequence of Sams telling her that she could work at the club. The reason she had a key to the premises was that the one used during her operation of the Psychedelic Shack still opened the lock on the door of the premises. Her reason for filling out checks for Simmons to sign was that he was nervous and a poor speller. (Testimony of Simmons, Walker, Sams)
Recommendation It is recommended that Petitioner impose a civil penalty against Respondent, Florida Voluntary Roadside Improvement Association, in the amount of $100, pursuant to the authority granted under Section 561.29(1)(e) and (4), Florida Statutes, for violation of Rule 7A-3.19(2), Florida Administrative Code. DONE and entered this 21st day of February, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Francis Bayley, Esquire Department of Business Regulation The Johns Building 725 South Bronough Tallahassee, Florida 32304 W. R. Phillips, Esquire Post Office Box 594 Carrabelle, Florida 32322 Charles A. Nuzum, Director Division of Beverage Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32304
The Issue Whether Petitioners' request to negotiate or competitively bid for a concession for amusement devices at service areas on the Florida Turnpike should be granted, pursuant to Section 340.091, Florida Statutes. This proceeding arose as a result of Respondent Department of Transportation's denial of the request of Petitioners Florida Sunshine Parkway Citrus, Inc. and Joe A. Chambliss to negotiate or competitively bid for a concession to install and operate video amusement machines at the various service plazas of the Florida Turnpike. Sunshine Parkway Restaurants, Inc. petitioned for leave to intervene in the proceedings and was granted status as an intervenor. Posthearing submissions by the parties in the form of proposed recommended orders have been fully considered, and those portions thereof not adopted herein are considered to be either unnecessary, irrelevant, or unsupported in law or fact.
Findings Of Fact On June 1, 1982, Petitioner Florida Sunshine Parkway Citrus, Inc. entered into two agreements with Respondent Department of Transportation under which Petitioner was granted a five-year license to manage and operate the citrus products shops located at the Pompano and Fort Pierce service plazas on the Florida Turnpike, pursuant to Section 340.091, Florida Statutes. The agreements provided that the shops would be used for the sale of products "relating to Florida citrus and/or goods promoting the State of Florida, including but not limited to all Florida products and tropical juices." Petitioner was awarded the contracts as a result of a competitive bidding process. Petitioner Joe A. Chambliss is the president of Florida Sunshine Parkway Citrus, Inc. Chambliss also is a sub-lessee of two Texaco Service Stations at the Fort Pierce and Snapper Creek service plazas. (Testimony of Chambliss; Respondent's Exhibits 10-19, Joint Exhibit 1 (Stipulation)) On November 29, 1978, Respondent entered into an agreement with Intervenor Gladieux Food Services, Inc. and Canteen Corporation (Gladieux) whereby Respondent leased certain portions of buildings at eight service plazas on the Sunshine State Parkway (Florida Turnpike) for a period of ten years to operate and manage food and related facilities at the leased premises. Sunshine Parkway Restaurants, Inc. is a joint venture of Gladieux/Canteen. The lease provided that Gladieux would have the exclusive use of the areas designated as restaurants for the purposes of serving food, nonalcoholic beverages and "related merchandise." The agreement provided that Gladieux would have non- exclusive use, but maintenance responsibilities for parking areas, restrooms, and the lobby and vending areas. The agreement further provided that Respondent would have the exclusive right to approve the items to be sold, and required Gladieux to furnish all vending machines required for operating a vending center in designated vending areas. Gladieux was awarded the contract as a result of a competitive bidding process. (Testimony of Owen, Petitioner's Exhibit 9, Respondent's Exhibit 1, Joint Exhibit 1 (Stipulation)) In addition to the agreements with petitioner to operate citrus products shops, other contracts for such shops at the other service plazas are operated by licensees as a result of a competitive bid process. Similarly, all contracts for the sale of motor fuel at the various service plazas were awarded as the result of competitive bids. Respondent also has an existing license agreement with Florida Folder Distributing Company to operate an information leaflet rack at six of the seven service plazas where informational material promoting facilities and points of interest in the state are made available to the public. This agreement also was entered into after competitive bidding. The information racks are located in the lobby or corridor areas of the service plazas. (Testimony of Owen, Petitioner's Exhibits 5-8, Joint Exhibit 1(Stipulation)) Vending machines are operated by Gladieux at the various service plazas of the Turnpike. They include food and drink machines, machines that produce wax figures, and photograph machines. Most of the vending machines are located in the restaurant areas, but those at the Pompano and West Palm Beach plazas are placed in the "common areas" of the plazas. (Testimony of Chambliss, Owen, Petitioner's Exhibits 5-6, Respondent's Exhibits 2 g and h) In 1981, Section 340.091(1), Florida Statutes, was amended to permit the granting of concessions on the Turnpike for amusement machines which operate by the application of skill. Gladieux submitted a proposal to Respondent to install video game machines in appropriate areas under its lease. Respondent's General Counsel advised Mr. C. H. Owen, Deputy Director of Maintenance, in June, 1981, that Chapter 340, Florida Statutes, did not require competitive bidding for such a concession. Respondent's Turnpike engineer advised Owen, in November, 1981, that Gladieux's proposal to install and operate some 35 machines for a 12-month trial period at an acceptable rental fee should be accepted, and that the program should be evaluated at the expiration of the trial period. He further told Owen that if a satisfactory rental fee could not be negotiated at a satisfactory fee at the end of the one-year trial period, the operation should be offered for public bidding. Respondent and Gladieux thereafter on December 20, 1981, entered into an agreement whereby Respondent was granted the right to install and operate 35 amusement devices at individual locations to be designated by Respondent. The agreement was for one year and provided that Gladieux would pay Respondent 22.51 percent of the gross revenue from the operation of the devices, plus 4 percent tax. The agreement stated that the operation of the amusement devices was on an experimental basis and contained the statement that "Operator is currently lessee of the only space suitable for the installation of such devices and is prepared to cooperate with the department." Respondent's reason for negotiating with Gladieux was due to the fact that it "controlled" the vending machine and foyer areas under the lease, and that the video game machines were "vending" machines within the vending machine provisions of the lease. However, it was recognized that the lease provisions were originally intended only to apply to food and drink vending machines. Further, Respondent's General Counsel had opined prior to the 1981 amendment to Section 340.091(1) that a contract to install pinball machines or other electronic games on the Turnpike was specifically prohibited by that provision. Expert opinion testimony was received at the hearing that a video game machine is a "vending" machine because it is a coin-operated device that dispenses either goods or services. Although Respondent's officials were of the view that the provision of video machines was within the purview of the vending machine provisions of the lease, it entered into a separate agreement because it wanted a one-year trial period to determine the public's acceptance of the machines, and also to determine if they would be detrimental from the standpoint of congestion and noise level. Respondent preferred that the machines be located in the restaurant areas, where possible. This was a major reason for contracting with Gladieux because it controlled the restaurant areas under its lease. Another reason was that Gladieux operated the restaurants 24 hours each day and thus its personnel were always available to handle maintenance problems. (Testimony of Owen, Mizerski, Petitioner's Exhibits 11-12, Respondent's Exhibits 3-4, 8) Gladieux proceeded to place video machines pursuant to the agreement and with the approval of Respondent in the various service plazas along the Turnpike. Most were placed in the restaurant areas, but in several service plazas the machines were placed in the vending areas outside of the restaurants. (Testimony of Owen, Petitioner's Exhibits 5-6, Respondent's Exhibits 2 g and h, 9) Chambliss was aware in early 1981 that video games had been placed in several of the Turnpike service plazas, and later became aware that Respondent had a one-year experimental agreement with Gladieux. By letter of September 13, 1982, Chambliss requested that Respondent provide him the opportunity to contract for installing electronic game machines on the Turnpike. Respondent's Turnpike engineer informed him that a decision would be made in November, 1982, as to whether to eliminate or extend the current contract, but that he would be kept apprised as to the matter. Also, by letter of October 18, 1982, Gladieux requested that its agreement with Respondent be extended to the termination date of its existing restaurant lease in 1988, and pointed out that it had made a substantial investment of about $135,000 in providing the video machines and game rooms. Respondent thereafter determined that the experimental operation of video games had been successful, and advised Gladieux on November 19, 1982, that it would entertain a formal proposal to continue operation of the machines by an addendum agreement to its existing restaurant lease. (Testimony of Owen, Chambliss, Petitioner's Exhibits 1-2, 10, 13-15) Chambliss submitted a proposal to Respondent on November 29, 1982, to either compete with Gladieux for a contract to operate amusement devices at all service plazas, or to allow him to operate machines at the Pompano and Fort Pierce plazas where he held citrus shop licenses. On December 17, 1982, Respondent denied the request as being improper because of the provisions in the one-year agreement with Gladieux to extend the period for operation of machines if the one-year trial period proved successful, and also because the restaurant contract with Gladieux included all the areas in the service plazas except for citrus product shops and service stations. The letter informed Chambliss of his right to file a notice of protest within 72 hours. Chambliss proceeded to do so on December 22 and thereafter filed its petition for hearing. On December 29, 1982, Respondent and Gladieux entered into an extension to its one-year agreement to January 20, 1983, pending resolution of Chambliss' protest. However, negotiations with Gladieux are still in progress concerning the percentage of revenues to be paid by Gladieux under any subsequent amendment to its lease with regard to the video game operations. (Testimony of Owen, Chambliss, Petitioner's Exhibits 3-4, 16-20)
Recommendation It is recommended that Respondent deny the amended petition of Petitioners Florida Sunshine Parkway Citrus, Inc. and Joe A. Chambliss. DONE and ENTERED this 9th day of June, 1983, in Tallahassee, Florida. THOMAS C. OLDHAM 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 June, 1983. COPIES FURNISHED: Honorable Paul A. Pappas Secretary, Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Ronald C. LaFace, Esquire Jeffrey H. Abrams, Esquire 101 East College Avenue Post Office Drawer 1838 Tallahassee, Florida 32302 Mark Linsky, Esquire Legal Department Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Philip S. Blank, Esquire Suite 320 - Lewis State Bank Building Tallahassee, Florida 32301
Findings Of Fact Culmer Place Tenants Association and Allapattah Tenant Association are not-for-profit corporations chartered by the State of Florida (Exhibits 1 and 2). Allapattah has received IRS tax-exempt status as a publicly supported corporation. Culmer Place has applied for such status but has not as yet received the IRS designation. Both Culmer Place and Allapattah are tenant associations at Housing and Urban Development (HUD) projects in Miami, Florida. These HUD projects are low- income residences sponsored and managed by HUD. The principal source of funds for each Petitioner is HUD. The Associations submit a budget to HUD and receive funds semiannually. Culmer Place received $453 from HUD in 1980 and Allapattah received a slightly less amount. The Associations sponsor activities in their projects principally oriented towards children. These projects, which have been presented by both Petitioners, are the Easter project, family picnic on July 4, Christmas project, community movies, and trips to the circus or other attractions. In addition, one or both Associations have sponsored dances and held rummage sales. Allapattah is currently proposing the establishment of a softball team if funds can be obtained. The Easter project consists of purchasing candy and eggs, getting volunteers to dye the eggs and putting these treats in bags which are given to the children who participate. At Culmer they have an Easter egg hunt but lack of space for hiding the eggs requires the bag approach at Allapattah. The Christmas project is similar to the Easter project in that the Petitioners use the money provided by HUD to purchase candy, fruits and stockings which are taken around and given to the children who live in the project. At the family picnic on July 4, barbeque is provided, as is other food and drinks. It appears that the Associations primarily provide "refreshments" at the projects they sponsor. No picnic was held in 1981 because funds were not available. Other activities sponsored by the Associations include cleanup campaigns at which the young people are assembled to pick up trash and generally "clean up" around the projects. The Associations provide refreshments for the workers and HUD provides the funds to pay these youngsters for their cleanup work. The money for the refreshments is budgeted by the Associations and provided by HUD. The summer lunch program is carried out at these projects with the food for the participants provided by the City, County, or HUD. The volunteers who supervise the serving of the food and activities that accompany this project are members of the Associations and are paid by HUD for the three hours they are so engaged each day. Movies are occasionally shown at the projects. The film is usually rented and the residents are invited by "flyer" to attend. Sometimes cartoons are obtained to show to the children. Occasionally, free tickets to the circus or to some local attraction are obtained by the Associations who arrange the transportation for the children and supervisors to participate in these field trips. These-projects and activities are provided free to the participants and participation is not limited to children, or others, who live in the Petitioner organizations. "Flyers" advertising these projects are prepared and delivered to the residents, placed on the bulletin boards at the housing project office, and some flyers are distributed outside the housing projects by putting them on poles, in stores (that permit) and in washerettes.
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact Respondent Raymond C. Riddles has been certified as a law enforcement officer since September 1, 1971. He holds certificate number 090171. November 3, 1976 On November 3, 1976, Joseph A. Vi11ar, at the time a policeman with the Pensacola Police Department, arrested respondent Riddles at the wayside park off Gregory Street, near the northern end of Pensacola Bay bridge. In November of 1976, travelers, fishermen and other members of the public regularly made use of the park and the public bathrooms there. The park featured a double picnic table and ten or twelve other picnic tables. The old bridge across Pensacola Bay had been halved, and the park was near the end of one of the halves used as a fishing pier. The park had also gained notoriety as a meeting place of homosexuals: on two nights in 1974 police arrested 18 persons on various charges. On the night of November 3, 1976, Mr. Villar, wearing blue jeans and a pullover to disguise the fact that he was a policeman, entered the men's room in the park, after respondent Riddles called him into the bathroom. In the bathroom, Mr. Riddles beckoned Mr. Villar to a stall and, from the adjoining stall, asked if he wanted to "fool around." The partition between the toilet stalls had been to some extent removed; Villar's view of Riddles was unimpeded. Riddles first addressed Villar with his back to him, then turned around, penis in hand, continuing to masturbate. At this point, Mr. Villar placed him under arrest. Eventually Mr. Riddles stood trial on charges arising out of the incident, and was found guilty of lewd and lascivious behavior in a public place. September 12, 1984 In September of 1964, complaints that men were romping through the woods in various states of undress at a place called the Old Chimney, an abandoned steam plant site near the Scenic Highway, reached the Pensacola Police Department. As a result, on September 12, 1984, Jim Leath, a supervisor with the Pensacola Police Department, in charge of the vice unit, visited the site. Numerous persons of various sexual persuasions had come to use the area as a park. Vehicles were parked along the road, including one in which Mr. Leath spotted a Florida Highway Patrolman Auxiliary cap. Walking down a footpath, Mr. Leath came to respondent Riddles at about one o'clock in the afternoon. He recognized Mr. Riddles as someone he had seen before and remembered the cap he had noticed through the window behind the back seat in a vehicle parked in the area in which he himself had parked. Mr. Riddles stood next to a tree. A conversation arose between the two men, during which Mr. Riddles rubbed his crotch. Mr. Riddles said that he came to the Old Chimney on a regular basis to meet people, then turned away, withdrew his penis from his trousers and turned back, displaying his semi-erect penis. Only seconds had elapsed when Mr. Riddles heard someone else approach, left off stroking his penis, tucked himself in, and zipped his trousers up. Mr. Leath returned to the parking lot and made a note of the license tag number of the vehicle with the cap. He later determined that the vehicle was registered to Mr. Riddles, and located a photograph of Mr. Riddles. Eventually he obtained a warrant and arrested Mr. Riddles. In due course, Riddles pleaded nolo contendere to lewd and lascivious behavior, and to exposure of sexual organs. He was adjudicated guilty of these offenses and placed on six months' probation, on conditions including that he pay $20 a month and stay out of the area of the Old Chimney.
