The Issue Each of the Respondents have been charged with violations of the Florida Securities and investor Protection Act, Chapter 517, Florida Statutes. The following violations were described in the Administrative Complaint dated August 30, 1990: Whether Respondent Baum, in his capacity as a Branch Manager for the Boca Raton branch office of First Eagle, Inc., offered for sale and sold securities from an unregistered branch office. Complaint, Paragraph 20A Whether Respondent Baum, in his capacity as a Branch Manager for the Boca Raton branch office, offered for sale and sold from the branch securities which were neither exempt from registration nor registered with the State of Florida. Complaint, Paragraph 20B Whether, while serving as branch manager, Respondents Baum, Canouse and Bergelt failed to have a registered options principal in the Boca Raton branch office for First Eagle, Inc., but permitted options trades, which the Department alleges is a violation of Rule 6E- 600.013(1)(p), Florida Administrative Code, and Article III, Section 33, Appendix E, Section 20(c), of the National Association of Securities Dealers Rules of Fair Practice. Complaint, Pagagraphs 20F, 21F Whether Respondent Baum, in his capacity as Branch Manager of the Boca Raton branch office of First Eagle, Inc., failed to maintain statements for the customers' accounts which involved option transactions in violation of Rule 6E-600.013(1)(p), Florida Administrative Code, and Section 33, Appendix E, Section 17(b), of the National Association of Securities Dealers Rules of Fair Practice. Complaint, Pagagraph 20G. Whether all Respondents functioned as the Branch Manager and in that capacity permitted the sale of securities by unregistered persons and concealed trading by unregistered persons in violation of Section 517.301, Florida Statutes. Complaint, Paragraph 21A Whether the Respondents failed to conduct their business so as to provide an audit trail for all of their transactions, in violation of Rule 6E-600.014(7), Florida Administrative Code. Complaint, Paragraph 21C Whether the Respondents engaged in and concealed the activity of splitting commissions between registered and unregistered sales persons in violation of Section 517.301(1)(c), Florida Statutes, and Rule 3E-600.13(2)(f), Florida Administrative Code. Complaint, Paragraph 21D Whether the Respondents failed to observe just and equitable principles of trade in violation of Rule 6E-600.013(1)(p), Florida Administrative Code, and Article III, Section I, of the National Association of Securities Dealers Rules of Fair Practice. Complaint, Paragraph 21E.
Findings Of Fact Exception No. 1: The Department's first exception is to footnote No. 1 in Finding of Fact No. 2 of the Recommended Order wherein the Hearing Officer stated: Current Rule 3E-600.004(3)(a), Florida Administrative Code (1991), gives the impression that a branch office registration filed on Department forms and accompanied by the fee prescribed would be effective on filing, not at some later date. Whether that was true in October 1987 cannot be determined from the current codification of the rules. The Department contends that this statement is an erroneous interpretation of an agency rule which completely ignores the Department's authority to review applications for licensure pursuant to Section 517.12, Florida Statutes, and would, if allowed to stand, render the Department's regulatory function "nugatory." Pursuant to Section 120.57(1)(b)10., Florida Statutes, the Department has the authori y to reject a Hearing Officer's conclusions of law and interpretation of administrative rules. Since the Hearing Officer has incorrectly interpreted Rule 3E-600.004(3), Florida Administrative Code, the Department's exception to above quoted statement is hereby accepted and footnote No. 1 in Finding of Fact No. 2 of the Recommended Order is accordingly rejected. Exception No. 2 and No. 3: The Department's second and third exception is to Finding of Fact No. 4 wherein the Hearing Officer found that "[t]he Boca Raton branch conducted no trades, but sent order tickets to Denver for review, approval and execution. New stock or options accounts were not opened directly in Boca Raton. The forms were filled out and Baum or another supervisor signed them after checking them for completeness and sent them to Denver for acceptance." The Department contends that acceptance of the Hearing Officer's conclusion would result in unregistered persons and branch offices conducting business in every state under the pretense that their main office is licensed. Section 517.12, Florida Statutes, provides in part: No dealer, associated person, or issuer of securities shall sell or offer for sale any securities in or from offices in this state, or sell securities to persons in this state from offices outside this state, by mail or otherwise, unless the person has been registered with the department pursuant to the provisions of this section. (5) No dealer or investment adviser shall conduct business from a branch office within this state unless the branch office is registered with the department pursuant to the provisions of this section. Section 517.021, Florida Statutes, defines the terms "offer to sell" and "sale" as follows: (12) "Offer to sell," "offer for sale," or "offer" means any attempt or offer to dispose of, or solicitation of an offer to buy, a security or interest in a security, or an investment or interest in an investment, for value. (16) "Sale" or "sell" means any contract of sale or disposition of any investment, security, or interest in a security, for value.... Finding of Fact No. 4 involves both factual findings and conclusions of law. Section 517.12(1), Florida Statutes, proscribes the "sale" or "offer for sale" of any securities unless the dealer, associated person, or issuer is registered with the Department Section 517.12(1), Florida Statutes, does not use the terms "conduct," "execute," or "trade." While it may be true that the Boca Rattan office did not actually "conduct" or "execute" securities trades, that office did engage in the offering and selling of securities as defined by Sections 517.021(12) and (16), Florida Statutes. The Boca Raton office solicited customers, filled out new account forms, and wrote up order tickets for the purchase or sale of securities. To the extent that the Hearing Officer's conclusion in Finding of Fact No. 4 implies that the Boca Raton office was not in violation of Sections 517.12, Florida Statutes, that conclusion is rejected as clearly erroneous and not Supported by competent, Substantial evidence. Exception No. 4: The Department'5 fourth exception is to Finding of Fact No. 5 wherein the Hearing Officer found that the Department's evidence that Joseph Canouse was a branch manager of the Boca Raton branch office was unpersuasive. The Department contends that competent, substantial evidence was presented at hearing to support findings that Mr. Canouse was a branch manager. In Heifetz v. Department of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985), the district court of appeal explained the respective roles of hearing officers and state agencies in deciding factual issues as follows: Factual issues susceptible of ordinary methods of proof that are not infused with policy considerations are the prerogative of the hearing officer as the finder of fact. McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). It is the hearing officer's function to consider all the evidence presented, resolve conflicts, judge credibility of witnesses, draw Permissible infer- ences from the evidence, and reach ultimate findings of fact based on competent, substantial evidence. State Beverage Department v. Ernal, Inc., 115 So.2d 566 (Fla. 3rd DCA 1959). If, as is often the case, the evidence presented supports two inconsistent findings, it is the hearing officer's role to decide the issue one way or the other. The agency may not reject the hearing officer's finding unless there is no competent, substantial evidence from which the finding could reasonably be inferred. The agency is not authorized to weigh the evidence pre- sented, judge credibility of witnesses, or otherwise interpret the evidence to fit its desired ultimate conclusion. Id. at 1281 Having reviewed the transcript of hearing, the exhibits and pleadings in this matter, it cannot be determined that there is no competent, substantial evidence to support the Hearing Officer's finding. Although evidence was presented at the hearing to show that Mr. Canouse did act as branch manager, the Hearing Officer weighed that evidence and determined that it was unpersuasive. Since there is some competent, Substantial evidence in the record to support the Hearing Officer's finding, this finding cannot be rejected by the undersigned, and the Department's fourth exception is accordingly rejected. Heifetz, supra. Exception No. 5: The Department's fifth exception is to Finding of Fact No. 7 wherein the Hearing Officer found that William Baum could not be held liable for violations of Section 517.12(5), Florida Statutes, because he did not "know" that the branch office's registration was not effective when he became branch manager on October 24, 1987, that he had "no responsibi1ity at First Eagle to register offices at any time before he was appointed branch manager, and that registration were handled by the compliance officer at the First Eagle office in Denver, Colorado. Finding of Fact No. 7 involves both factual findings and conclusions of law. While it may be true that Mr. Baum did not "know" that the branch office was not registered with the Department on the day he was hired to be the branch manager, this does not exonerate him from violating Section 517.12, Florida Statutes. Section 517.12(8), Florida Statues, makes "any principal, manager, supervisor, or person exercising similar functions responsible for the acts of the associated persons affiliated with a dealer or investment adviser." There was no dispute that Mr. Baum was the branch manager of the Boca Raton office as of October 24, 1987. By agreeing to accept the position of branch manager of the Boca Raton office, Mr. Baum also accepted the responsibility to ensure that the branch office was operating in accordance with the provisions of Chapter 517, Florida Statutes, and the rules promulgated thereunder. The Hearing Officer's finding that Mr. Baum could not be held liable for the operation of the branch office prior to the effective date of registration with the Department is hereby rejected as an erroneous conclusion of law. Scienter, or knowledge, is not required to make out a violation of Section 517.12, Florida Statutes. State v. Houghtaling, 181 So.2d 636 (Fla. 1965). The Hearing Officer also found that the branch office application was received by the Department on October 2, 1987, and that the record did not explain what caused the delay in the effective date of registration which was based on that application. This finding is also rejected based upon the Hearing Officer's erroneous interpretation of Rule 3E-600.004(3), Florida Administrative Code, as previously discussed in the ruling on the Department's first exception. Exception No. 6: The Department's sixth exception is to Finding of Fact Nos. 10 and 13. 1/ The Department contends that the Hearing Officer erred in finding that Mr. Baum "was not responsible for determining whether stock in the inventory of First Eagle, Inc. was exempt from the registration provisions of Florida law. The compliance officer at the home office of First Eagle had that responsibility. " The Department contends that the Hearing Officer also erred in concluding that the Department failed to show a duty on the part of branch managers to ensure an exemption from registration exists prior to the offer or sale of an unregistered security and that the liability for this type of violation is attributable to the compliance officer in the Denver office. Although labelled a "finding of fact," the Hearing Officer's determination that liability for the sale of unregistered securities lies with the compliance department of First Eagle in Denver is, in reality, a "conclusion of law." The Hearing Officer's conclusion that the Department failed to show a duty on the part of a branch manager to ensure that an exemption from the registration requirements exists is contrary to the law and is hereby rejected. Section 517.171, Florida Statutes, provides: It shall not be necessary to negate any of the exemptions provided in this chapter in any complaint, information, indictment, or other writ or proceeding brought under this chapter; and the burden of establishing the right to any exemption shall be upon the party claiming the benefit of such exemption. [e.s.] The Department was not required to prove that there is an affirmative duty on associated persons to independently verify the exemption status of securities that they are offering for sale or selling. Section 517.171, Florida Statutes, places the burden of proof on the person claiming the benefit of any such exemption. The Respondents failed to provide any competent, substantial evidence that the Shogun Oil, Ltd. securities were entitled to an exemption, and the Hearing Officer found that those securities did not qualify for exemption in Finding of Fact No. 12. The Department rejects the conclusions in Finding of Fact No. 10 as a clearly erroneous interpretation of the provisions of Section 517.221, Florida Statutes. Moreover, the Department rejects the Hearing Officer's conclusions in Finding of Fact No. 13 that the sale of unregistered Securities by the Boca Raton office was "more properly attributable to the compliance division of First Eagle than to Baum personally" and that "Baum's reliance on the compliance division of the Denver home office was reasonable." As stated earlier, there was no dispute that Mr. Baum was the branch manager of the Boca Raton office. As the branch manager, he was responsible for the operation and supervision of the activities of that office which would include verifying the exemption status of securities that were being offered and sold by that office. Exception No. 7 and 8: The Department's seventh and eighth exceptions are also to Finding of Fact No 13 wherein the Hearing Officer stated that there was no evidence of any consumer complaints or consumer losses arising out of the sale of unregistered securities and that such violations Section 517.07, Florida Statutes, are "fairly characterized as technical violations." The Department asserts that evidence of consumer complaints or consumer losses is not a prerequisite to finding a violation of Section 517.07, Florida Statutes, and that the sale of an unregistered security is not a technical violation. Section 517.07, Florida Statutes, states in part: No securities except of a class exempt under any of the provisions of s. 517.051 or unless sold in any transaction exempt under any of the provisions of s. 517.061 shall be sold or offered for sale within - this state unless such securities have been registered, as hereinafter defined, and unless prior to each sale the purchaser is furnished with a prospectus meeting the requirements of rules adopted by the department. The department shall issue a permit when such registration has been granted by the department. [e.s.] Section 517.171, Florida Statutes, provides: It shall not be necessary to negate any of the exemptions provided in this chapter in any complaint, information, indictment, or other writ or proceedings brought under this chapter; and the burden of establishing the right to any exemption shall be upon the party claiming the benefit of such exemption. [e.s.] Section 517.211, Florida Statutes, provides in part: (1) Every sale made in violation of either s. 517.07 or s.517.12 may be rescinded at the election of the purchaser; and the person making the sale and every director, officer, partner, or agent of or for the seller, if the director, officer, partner, or agent has personally participated or aided in making the sale, is iointly and severally liable to the purchaser in an action for rescission, if the purchaser still owns the security, or for damages, if the purchaser has sold the security.... Section 517.302, Florida Statutes, provides in part: (1) Whoever violates any of the provisions of this chapter is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. The Department accepts the seventh and eighth exceptions filed by the Department and rejects the Hearing Officer's findings in Paragraph 13 of the Recommended Order as clearly erroneous interpretations of the above cited provisions of Chapter 517, Florida Statutes. Section 517.07, Florida Statutes, clearly proscribes the sale or offer of securities in this state unless such securities have been registered with the Department or unless such securities are exempt pursuant to Section 517.051 or Section 517.061, Florida Statutes. Section 517.171, Florida Statutes, clearly and unequivocably places the burden of establishing an exemption from the provisions of Section 517.07, Florida Statutes, on the person claiming the benefit of such exemption. Section 517.211, Florida Statutes, provides for rescission and an action for damages for purchasers of securities that have been offered or sold in violation of the registration provisions of Sections 517.07 and 517.12, Florida Statutes. Moreover, Section 517.302, Florida Statutes, makes any violation of the provisions of Chapter 517, Florida Statutes, a felony of the third degree. In Skurnick v. Alnsworth, 591 So.2d 904 (Fla. 1991), the Florida Supreme Court stated that "[t]he intent of section 517.12 is to protect purchasers and, if that section has been violated, damages are automatic in accordance with the provisions of section 517.211". It seems ludicrous that the Legislature would provide civil remedies and criminal sanctions for a "technical" violation of law. The Hearing Officer's conclusions in Finding of Fact No. 13 that the sale of unregistered securities is a "technical" violation is clearly erroneous and is hereby rejected. Likewise, the Hearing Officer's finding that there was no evidence of any consumer complaints or consumer losses arising from the sale of unregistered securities is also rejected as irrelevant to the determination whether unregistered securities were sold. Exception No. 9: The Department's ninth exception is to Finding of Fact No. 19 of the Recommended Order. The Department takes exception to the Hearing Officer's finding that "in a transaction for customer John George, who resided in Maryland and who called the Boca Raton office, registered representative JoAnne Blain had Mr. Baum place the order for the trade," The Department contends that the Hearing Officer's finding that Mr. George telephoned First Eagle is clearly erroneous. Having reviewed the transcript of hearing, the exhibits and pleadings in this matter, it cannot be determined that there is no competent, substantial evidence to support the Hearing Officer's finding. There is conflicting evidence in the record as to whether Mr. George telephoned the Boca Raton office or was solicited by that office. Accordingly, under Heifetz, this finding cannot be rejected by the undersigned and this portion of the Department's exception is rejected. The Department's ninth exception also contends that the Hearing Officer's finding that Ms. Blain was registered in the State of Maryland at the time Mr. Baum paid her the commission for the George transaction (which commission was originally credited to Mr. Baum) is irrelevant and that the effect of this finding would Sanction the dividing or otherwise splitting of commissions between associated persons. The Department agrees and accepts the Department's exception to that extent. This violation will be considered in increasing the penalty as more particularly set forth hereinafter. To the extent that the Hearing Officer's finding would authorize the splitting of commissions between associated persons, this finding is rejected as a clearly erroneous interpretation of the provisions of Rule 3E-600.013(2)(f), Florida Administrative Code. This matter is further addressed in the rejection of Paragraph 7 of the Hearing Officer's Conclusions of Law, infra. Exception No. 10: The Department's tenth exception is to Finding of Fact No. 20 of the Recommended Order. The Department contends that even if the Department failed to prove that Mr. Braum spoke to customer, Mr. Rahamie, the Hearing Officer's finding that Mr. Baum reduced his commission on the Rahamie trade by $250.00 and paid it to Kevin Hale would constitute a violation of Rule 3E-600.013(2)(f), Florida Administrative Code. The Department agrees and the Department's exception is accepted. This violation will be considered in increasing the penalty as more specifically stated hereafter. To the extent that the Hearing Officer's finding would sanction the splitting of commissions between associated persons, this finding is rejected as a clearly erroneous interpretation of the provisions of Rule 3E-600.013(2)(f), Florida Administrative Code. Exception No. 11 and 12: The Department's eleventh and twelfth exceptions are to Finding of Fact No. 21 of the Recommended Order wherein the Hearing Officer found that the Department's proof in attempting to show similar practices in splitting commissions on the Deeter, Narkiewicz and Shannon accounts was unpersuasive, The Department contends that it presented evidence to support findings that commissions were paid to unregistered persons and that Mr. Baum tried to conceal such payments. Having reviewed the transcript of hearing, the exhibits and pleadings in this matter, it cannot be determined that there is no competent, substantial evidence to Support the Hearing Officer's finding. Although the Department presented the testimony of JoAnn Blain as well as other documentary evidence on these issues, the Hearing Officer weighed that evidence and determined that it was unpersuasive. Accordingly, this finding cannot be rejected by the undersigned and the Department's exception is rejected. Heifetz, Supra. RULINGS ON EXCEPTIONS TO CONCLUSIONS OF LAW Exception No. 13: The Department's thirteenth exception is to Conclusion of Law No. 10 of the Recommended Order where the Hearing Officer concluded that no violations by Mr. Canouse or Mr. Bergelt were proven and recommended that no penalty be imposed. The Department's exception is that the finding that Canouse was not a branch manager goes against the weight of the evidence. For the reasons stated in the ruling on Exception No. 4, the Department's exception is rejected. Exception No. 14: The Department's fourteenth exception is to Conclusion of Law No. 11 of the Recommended Order wherein the Hearing Officer recommended that no penalty be imposed against Mr. Baum for the sale of securities from the Boca Raton branch office before its registration became effective. The Hearing Officer's recommendation is apparently based upon his mistaken impression that the offer or sale of unregistered securities is considered a "technical" violation of Section 517.07, Florida Statutes. For the reasons stated in the ruling on the Department's seventh and eighth exceptions, this exception is accepted and the Hearing Officer's recommendation that no penalty be imposed against Mr. Baum for the sale of securities from the Boca Raton branch office of First Eagle prior to the effective date of its registration is rejected. Exception No. 15: The Department's fifteenth exception is to Conclusion of Law No. 12 of the Recommended Order wherein the Hearing Officer concluded that no serious penalty should be imposed for the seven sales of Shogun Oil, Ltd. securities and recommended the imposition of a fine of $50.00 per sale. This exception is addressed in the "Penalty" section of this Final Order, infra. RULINGS ON OTHER ISSUES With respect to the Hearing Officer's findings in Paragraphs 16 and 22 of the Findings of Fact that the Department failed to offer into evidence the text of Rule 3E-600.013 and 3E-600.014 or sought official recognition of those rules, it is interesting to note that none of the Respondents ever objected to or questioned the text of the rule with which they were charged with violating. It is equally interesting to note that the Hearing Officer had no problem in finding the text of those rules since he accurately quoted the relevant text in Finding of Fact Nos. 15, 22 and 26. Likewise, the Hearing Officer had no problem in finding and quoting the provisions of Article III, Section 1, and Article III, Section 33, Appendix E, Section 20(c) of the Rules of Fair Practice of the National Association of Securities Dealers, Inc. With regard to the Hearing Officer's finding in Paragraph 17 of the Findings of Fact that there is no definition of the term "dealer" in Rule Chapters 3E-600 or 3E-200, 2/ this finding is rejected since the term dealer is specifically defined in Rule 3E-200.001(11), Florida Administrative Code. In Paragraph 3 of the Conclusions of Law, the Hearing Officer concluded that "Baum had no reason to know that the registration had not become effective when he became branch manager on October 24, 1987. If anyone should be disciplined for this failure, it is First Eagle, or its senior officers in Denver, not Baum." This Conclusion of Law is rejected for the same reasons stated in the ruling on Exception No. 5 herein. In Paragraph 4 of the Conclusions of Law, the Hearing Officer concluded that: "No client was shown to have suffered any loss, or even to have complained about the purchase of those shares. A technical violation may have been established, but it is not one for which any significant discipline should be imposed upon Baum. There was no evidence that Baum had an independent duty to verify whether the shares sold at the Boca Raton office were actually entitled to an exemption from the registration requirements of the Securities Code." This Conclusion of Law is rejected for the same reasons stated in the rulings on Exceptions Nos. 6, 7 and 8 herein. The Hearing Officer's conclusion that the sale of unregistered securities is a "technical" violation of the provisions of Section 517.07, Florida Statutes, is rejected as clearly erroneous in light of the civil remedies and criminal sanctions created by the Legislature in Sections 517.221 and 517.302, Florida Statutes. In Paragraph 7 of the Conclusions of Law, the Hearing Officer, after quoting the text of Rule 3E-600.013(2)(f), Florida Administrative Code, concluded that: "The persons to whom Baum paid the commissions, Ms. Blain and Mr. Hale, were persons also registered as agents for the same dealer, First Eagle. The text of the rule does not prohibit splitting commissions per se. It appears that Baum paid the entire commission to these salespersons, not that he split commissions. The rule does not make it improper for Mr. Baum to pay or split a commission with another salesperson in the office when both Baum and that other sales person spoke to a client, but only Baum was registered to sell securities in the state where the client resides. If the Department wishes to forbid such arrangements, it may by adopting a rule which says so. But such a disciplinary standard would only have prospective effect." The foregoing Conclusion of Law is hereby rejected as an erroneous interpretation of Rule 3E- 600.013(2) (f), Florida Administrative Code. Rule 3E-600.013(2) (f), Florida Administrative Code, defines "dividing or otherwise splitting commissions" to be a demonstration of unworthiness by an agent for purposes of Section 5l7.161(1)(h), Florida Statutes. To adopt the Hearing Officer's interpretation would authorize a person who is not registered in a particular state to engage in the offer or sale of securities by utilizing another registered person's number on the order ticket and having the commission held by the firm until the unregistered person becomes registered in that state. This would have the effect of allowing unregistered persons to circumvent the registration provisions of this state as well as other states. PENALTY The correct penalty in this case to be imposed against Mr. Baum is twofold: Entry of a cease and desist order for violations of Section 517.12, Florida Statutes, for operating an unregistered branch office; and (2) a fine in the amount of $5,000.00 for the sale of unregistered securities. In light of the foregoing rulings and modifications to the Hearing Officer's Recommended Order, the Department is inclined to increase the recommended penalties against Mr. Baum (See Criminal Justice Standards and Training Commission v. Bradley, 17 F.L.W. 5193 (Fla. 1992) for the following reasons: The repeated violations of Section 517.07, Florida Statutes, for the sales of unregistered securities are not "technical" violations but of a serious nature; There were at least seven sales of unregistered securities as found by the Hearing Officer, each constituting a serious violation, by itself, by Mr. Baum; Mr. Baum, under a correct interpretation of the law, allowed the branch office of which he was the manager to operate from October 24, 1987 until November 4, 1987 without being registered with the Department in violation of Section 517.12, Florida Statutes; The Findings of Fact as found by the Hearing Officer in Paragraphs 19 and 20 of the Recommended Order and applied to a correct interpretation of Rule 3E-600.013(2)(f), Florida Administrative Code, regarding splitting commissions established that the rule was violated by Mr. Baum; The Department, at the hearing, in its proposed recommended order, and in its exceptions to the Recommended Order proposed that a $5,000.00 fine be imposed, as well as the entry of a cease and desist order. Such a penalty is well within the ranges afforded by Section 517.221, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that all charges against Respondents Canouse and Bergelt be dismissed, and that Baum be found guilty of the sale of securities not registered or entitled to exemption from registration, and that a fine of $350 be imposed. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of March 1992. WILLIAM R. D0RSEY, 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 23rd day of March 1992.
Findings Of Fact On December 30, 1993, the Florida Commission on Human Relations (FCHR) transmitted to the Division of Administrative Hearings (DOAH) a Petition for Relief from an Unlawful Employment Practice, together with all other "pleadings and jurisdictional papers heretofore filed in this proceeding." The pleadings and papers transmitted by FCHR show that Petitioner filed a complaint with FCHR on March 10, 1993, charging an unlawful employment practice by Respondent in connection with a denial of a raise in salary. On August 24, 1993, the FCHR concluded its investigation into the matter and issued its determination of No Cause to believe that an unlawful employment practice has occurred. Notice of that determination was served on Petitioner and Respondent on August 24, 1993 by regular mail. The Notice of Determination of No Cause served on Petitioner included the following statement: The parties are advised that the Complainant may request that a formal, post-investigative proceeding be conducted. The Request for Hearing/Petition for Relief must be filed within 30 days of the date of mailing of this Notice and should be in compliance with the provisions of Rule 60Y-5.008 and Chapter 60Y-4, Florida Administrative Code. A Petition for Relief form is enclosed. If you elect to file a Petition for Relief, it may be beneficial to seek legal counsel prior to filing the petition. Petitioner received the Notice of Determination. Petitioner understood that, under the FCHR rules cited in the Notice, the requirement for the petition to be "filed" meant that the petition had to actually be received by the FCHR. On September 30, 1993, 37 days after the Notice was served, the FCHR Executive Director issued a Notice of Dismissal, for the reason that no Petition for Relief had been filed. On October 13, 1993, Petitioner transmitted to the FCHR her Petition for Relief, requesting an administrative hearing. The petition was submitted on the form provided by the FCHR, and was accompanied by a transmittal letter from the Petitioner on her letterhead stationery that identified the enclosures. It was filed with the FCHR on October 18, 1993. After receiving the October transmittal, on November 18, 1993, the FCHR issued an Order to Show Cause, directing the Petitioner to provide reasons why the late-filed petition should not be dismissed. Petitioner responded to the show cause order by transmitting a package to the FCHR on November 30, 1993. It contained her response to the show cause order, a copy of the petition transmitted in October, and another original petition on a second form that Petitioner said was provided to her by the FCHR. This transmittal was also accompanied by a transmittal letter on Petitioner's letterhead stationery, describing the contents. The FCHR did not rule on the sufficiency of Petitioner's response, but rather transmitted the pleadings (including the show cause order and response) to DOAH for further proceedings. At the same time of the transmittal to DOAH, FCHR also issued a notice of the petition to Respondent advising it of the requirement to file an answer to the Petition for Relief. CFRH timely filed its answer with affirmative defenses, including the first affirmative defense that "the Petition for Relief is untimely." The Petitioner made two mailings of petitions: one mailing was made to transmit one form petition that she had completed in October, 1993, and a second mailing was made in November with a copy of the first form plus another original form filled out by Petitioner. Petitioner also testified that she mailed another petition, without a transmittal letter, on September 20, 1993. There was no evidence presented that a Petition was received by FCHR in September 1993 or that the document was returned to Petitioner as undelivered mail.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered dismissing with prejudice the Petition for Relief in DOAH Case No. 94-0070 and FCHR Case No. 93-3143, for failure to timely file the Petition. DONE AND ENTERED this 27th day of July, 1994, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 27th day of July, 1994.
The Issue The issue is whether the Division of Administrative Hearings has jurisdiction over an alleged unlawful employment practice which occurred on the premises of a federal enclave.
Findings Of Fact Respondent asserts that Petitioner's allegations arose during her employment at Eglin Air Force Base, Florida. Respondent also asserts that Petitioner never worked for it in Florida at a site other than Eglin Air Force Base. Petitioner's Charge of Discrimination and Petition for Relief do not refute these assertions. It is uncontested that Eglin Air Force Base, Florida, is a federal enclave. The land on which the base is located was ceded by the State of Florida to the United States on April 26, 1937. At that time, the federal government was given exclusive jurisdiction over the land. The cession deed was recorded on April 27, 1937, and states as follows in pertinent part: I Fred P. Cone, Governor of the State of Florida, in the name and by the authority of said State and pursuant to the statutes of said State in such cases made and provided, do hereby cede to the United States of America, exclusive jurisdiction over said lands so acquired. Secretary of State (Florida), Deeds, Book A, pages 349-352.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That FCHR enter a final order determining that the Division of Administrative Hearings does not have jurisdiction over the issues raised in the instant Petition for Relief and dismissing said petition with prejudice. DONE AND ENTERED this 13th day of May, 1999, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of May, 1999. COPIES FURNISHED: Cynthia K. Faulconer 145 Wright Circle Niceville, Florida 32578 Edmund J. McKenna, Esquire Ford and Harrison, LLP Suite 900 101 East Kennedy Boulevard Tampa, Florida 33602 Sharon Moultry, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue The issue is whether the Department of State has sufficient grounds to take disciplinary action against the licenses issued to Mr. White pursuant to Chapter 493, Florida Statutes.
Findings Of Fact Mr. White held a Class "D" Security Officer License, number D90-03408, issued by the Department of State. Between November 27 and December 1, 1991, Mr. White was employed as a licensed security officer by the Quality Shawnee Hotel in Miami Beach, Florida. The hotel has also been known as the Colony Shawnee Miami Beach Resort and the Quality Resort. Thomas Sanon-Jules, Director of Security for the hotel, was Mr. White's supervisor, and personally trained him on the procedures for logging in and securing lost property found on the hotel property. Mr. Sanon-Jules developed a manual on the procedures for the disposition of lost property and reviewed it with Mr. White prior to November 28, 1991. Mr. White knew that lost property must be taken to the lost and found room and logged in prior to notifying the owner that it has been found. The item must be tagged with a number and, in the case of a wallet, placed in a safe deposit box. Under the hotel's internal policies, after logging an item in, the employee must notify the owner. If the owner wants it returned by mail, the employee must turn it over to the hotel's executive office during working hours to have it mailed. The employee should get a receipt from the executive office at that time. On November 27, 1991, John Herning, an American Airlines pilot, checked into the Quality Shawnee Hotel for one night. Before going out that evening, Mr. Herning placed his wallet behind a ceiling tile for safe keeping. He forgot the wallet when he left the next morning at approximately 5:00 a.m. On the evening of November 29, Mr. Herning called the hotel from his home in Fort Worth, Texas, stating where he had left the wallet, and asking to have the wallet retrieved. He talked to security officer Danny Jones, who indicated that the room was occupied and that Mr. Herning should call back at 7:00 a.m. the next day and ask for Mr. White. The next morning, Mr. Herning called and talked to Mr. White who said he would look for the wallet. He found it and told Mr. Herning that he would mail it that day, a Saturday. Mr. Herning told Mr. White that he could split the forty dollars in the wallet with security officer Danny Jones who had also assisted Mr. Herning. That evening, November 30, the J.C. Penney Department store called Mr. Herning in Fort Worth to tell him that a black male was attempting to use his credit card at their store at the Omni complex at 600 Biscayne Boulevard in downtown Miami. After talking to J.C. Penney, Mr. Herning notified the hotel of the call and also called his credit card companies to cancel his other credit card accounts. Mr. Herning did not authorize anyone to use his credit cards after leaving Miami on November 28, 1991. All of his credit cards were in the wallet when it was eventually returned. After Mr. Herning called the hotel to report the unauthorized use of his credit card, one of the security officers notified Mr. Sanon-Jules of the complaint. Mr. Sanon-Jules directed security officer Jones to look for the wallet at lost and found and in the safe deposit box. He was told that the wallet was not there. Later that night, Mr. Sanon-Jules had the night supervisor check lost and found for the wallet again, without result. The next morning, Mr. Sanon-Jules arrived at the hotel at 5:00 a.m. and waited for Mr. White to check in at 7:00 a.m. When Mr. White arrived, Mr. Sanon-Jules asked him about the wallet and Mr. White told him he had placed it in the safe deposit box. They went to the safe deposit box where Mr. White used his key to open it. There was no wallet in the box or in any of the drawers in the lost and found room. Mr. Sanon-Jules then asked Mr. White to empty his pockets, whereupon Mr. White produced Mr. Herning's wallet. At the time, Mr. White had no explanation for why he was carrying the wallet. Mr. Sanon-Jules checked the contents of the wallet and found a number of credit cards. Mr. Sanon-Jules subsequently went to the J.C. Penney department store at 600 Biscayne Boulevard and viewed a video tape recorded on the department store's security camera on November 30, 1991. The video showed Mr. White at the counter with two other adult males and a very young male child. (Tr. 20-21, 46-49; Pet. Ex. 3). One of the adult males in Mr. White's company attempted to use Mr. Herning's J.C. Penney credit card. The department store employee became suspicious when ringing up the sale. The tape shows that they left the store without completing the purchase. The young boy on the tape had accompanied Mr. White to work at the hotel on several occasions.
Recommendation It is RECOMMENDED that the Department revoke or deny renewal of all licenses held or applied for by Respondent pursuant to Section 493.6118(2), Florida Statutes. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 31st day of March 1993. WILLIAM R. DORSEY, JR. 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 31st day of March 1993. COPIES FURNISHED: Henri C. Cawthon, Esquire Assistant General Counsel Department of State/ Division of Licensing The Capitol, M.S. #4 Tallahassee, Florida 32399-0250 Dewight Whiley White 2845 Northwest 163rd Street Opa Locka, Florida 33054 The Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 Phyllis Slater General Counsel Department of State The Capitol, PL 02 Tallahassee, Florida 32399-0250
The Issue The issues under consideration result from the attempt by Holt Publishing Company (Petitioner) to gain refund of sales tax paid to the State of Florida. That refund is sought from the State of Florida, Office of the Comptroller (Respondent). The theory of the pursuit of the tax claim is set forth in Section 212.08(6), Florida Statutes, in which there is provided an exemption from sales tax associated with the sale of newspapers. In this connection, the question is raised, whether Petitioner is a newspaper within the meaning of Rule 12A-1.08, Florida Administrative Code, in effect at the time that the refund was requested.
Findings Of Fact Petitioner, by this action, seeks a refund from Respondent for the payment of sales tax related to the cost of printing for the publications known as the Jax Air News and Air Winger. As publisher, Petitioner sought the refund in keeping with Section 215.26, Florida Statutes. The request dates from September 25, 1985. This application for refund is premised upon the Petitioner's belief that it is entitled to refund in that the Jax Air News and Air Winger are newspapers within the meaning of Rule 12A-1.08(3), Florida Administrative Code, and as such are exempt from taxation associated with the cost of printing the publications. The statement of law dealing with exemptions from sales tax pertaining to newspapers is set forth in Section 212.08(6), Florida Statutes. Petitioner finds solace in the decision of Campus Communications vs. Dept. of Revenue, 473 So.2d 1290 (Fla. 1985). Petitioner believes the finding in that case in which the Florida Supreme Court upheld the claims of the publication, The Independent Florida Alligator, because it was a a newspaper by definition found in the aforementioned rule and entitled to be exempt from sales tax requirements, applies to Petitioner's circumstance. The amount of refund claimed is $25,675.01. Having considered the request for refund, and being mindful of the case of Campus Communications, supra, Respondent denied the refund request upon the expressed belief that the Jax Air News and Air Winger are not newspapers within the meaning of Rule 12A- 1.08(3), Florida Administrative Code. This statement of denial dates from May 2, 1986. Petitioner made timely application for the tax refund in question and has sought timely review of the Respondent's intent to deny that refund request. The Jax Air News and Air Winger are civilian enterprise newspapers for the special interests of personnel of the United States Naval Air Station and Cecil Field, Jacksonville, Florida. However, they do solicit and contain news items of general interest to the community. The testimony of the witnesses and the documentary evidence, including the issues of Jax Air News and Air Winger which were admitted into evidence, establish that Jax Air News and Air Winger are published under a contract between Petitioner and the United States Navy. The publications are distributed free of charge to naval personnel at the Naval Air Station and Cecil Field, Jacksonville, Florida. In addition to distribution throughout the Naval Air Station and Cecil Field, they are available and are distributed to civilian employees of the United States Navy both on and off the bases, and also to military dependents and visitors both on and off the bases. Jax Air News and Air Winger are also delivered to off-base residences and are available at the offices of Holt Publishing Company where members of the Jacksonville westside community may obtain them. The directly affected communities served by and which constitute the audiences of the Jax Air News and Air Winger are the United States Naval Air Station and Cecil Field, Jacksonville, Florida. The surrounding area geographically known as the westside of Jacksonville, Florida, is also served. The communities served by Jax Air News and Air Winger are composed not only of naval personnel and their dependents and civilian naval employees, but also include persons who have no direct connection to the Navy. These are westside residents who are affected by the naval presence in the westside area and in the Jacksonville metropolitan area as a whole. Mr. Paul Henkemeyer, a civilian employee of the United States Navy who is responsible for maintaining and disseminating information concerning the economic and other impact of the naval installations in the Jacksonville area, testified in the course of the hearing. He pointed out that the Navy has a very substantial economic and social impact upon the residents of metropolitan Jacksonville, Florida. The Navy employs over 37,000 military personnel in the Jacksonville area in addition to over 10,000 civilian employees. Its payroll in the Jacksonville area approaches $1.7 billion. The Navy and its related economic activity account for in excess of 10 per cent of the Jacksonville area economy. The witnesses Mr. Henkemeyer; Mr. Simon A. Smith, Jr., former Chief Executive of the North Florida Council of the Boy Scouts of America; and Ms. Marion Perry, supervisor of services of the United Way, testified that Jax Air News and Air Winger are considered by them to be "newspapers" of general circulation and interest to the public in the Jacksonville westside community. They testified that the publications disseminate information of local events, including the Boy Scouts, United Way, and other charitable interests and religious news. This pertains to news about the Jacksonville westside community and is routinely set forth in the publication. Mr. Smith indicated that he considers Jax Air News and Air Winger to be "newspapers" of general circulation and interest to the Jacksonville westside community because they provide extensive coverage of Boy Scout activities and are viewed by the Boy Scouts of America and other charitable and community institutions as sources of dissemination of news and press releases concerning their present and future activities. Ms. Perry, in her role with the United Way, in which her unit serves several north Florida counties including Duval County, testified that Jax Air News and Air Winger are considered by her and the United Way to be "newspapers" of general circulation and public interest for the Jacksonville and the westside community. She indicated that they are included in the mailing lists for press releases by the Florida Press Association and the United Way. She testified that Jax Air News and Air Winger are listed as "newspapers" in the Media Guide prepared by her. She notes that Jax Air News and Air Winger include features and opinions to the editor pages. She explained that Jax Air News and Air Winger regularly disseminate information about the activities and fund raising efforts of the United Way throughout Jacksonville and the westside community. Generally speaking, Mr. Smith and Ms. Perry testified that Jax Air News and Air Winger are included among the list of newspapers to which information, including press releases is regularly and routinely distributed by the organizations with which they are now or have been affiliated. In summary, those individuals and their community organizations consider Jax Air News and Air Winger to be "newspapers" of general circulation which contain matters of current public interest to the general public, and of current events and news of interest to the general public. The testimony of Mr. Dick Holt, the chief executive officer of Holt Publishing Company, which owns and publishes Jax Air News and Air Winger, provided further insight into the operations and function of Jax Air News and Air Winger. The publications, according to Mr. Holt, collect news items from all sources, in addition to those provided by the United States Navy and the Navy personnel who help edit the newspapers. Other sources including the community at large and the state of Florida are in the form of press releases. Mr. Holt's testimony was that Jax Air News and Air Winger are publications whose purposes and functions are to disseminate the news. His testimony also established that the publications are not "shopper" types of publications, and are not given over principally to advertisements or personal classified advertisements. Jax Air News and Air Winger contain a percentage of advertising which is significantly less than the national average and regularly and continually carry news items of general interest to the public and the Jacksonville westside community in particular. Mr. Holt conceded that the publications are decidedly directed to the special interests of the United States Naval Air Station and Cecil Field, Jacksonville, Florida, but he alluded to the other general news found in the publications. Holt describes the publications as having the mission to inform the troops (Navy personnel) and secondarily to provide information and entertainment to maintain readership. On occasion, Jax Air News carries editorials dealing with national defense. The Air Winger could present those editorials but chooses not to. Theoretically, the publications may offer other editorials. Petitioner uses a civilian Navy employee as its editor for Jax Air News, and a military person acts as editor for the Air Winger. In the final preparation of issues of the publications, the Navy is involved through its Public Affairs Office. The Navy does proofing for typographical errors and displaced graphics. Petitioner has a staff photographer. It has no staff reporter. News editorial material must be channeled through Navy Public Affairs Officers. Petitioner must look first to Public Affairs Officers for its copy, photographs, etc. Priority of placement of those items is a function Of the Navy and must be accommodated as closely as possible. Other things unrelated to the Navy can be placed in the publications if the ratio of news to advertising demanded by the contracts for publication is maintained. The Navy controls the number of pages in the publications. The Navy may ensure that material which it considers to be in bad taste, detrimental to discipline, subversive or in some way contrary to the best interest of the Navy is not included in the publications. The issues of Jax Air News and Air Winger admitted into evidence, Petitioner's Exhibits 1-16 and Respondent's Exhibits 2-6, show that Jax Air News and Air Winger contain news of current interest to the general public, current events and news of the day of interest to the general public in the community geographically defined as the westside of Jacksonville, Florida. A review of the issues of Jax Air News and Air Winger demonstrates that they contain varied articles and features, including features on scouting, fishing, Flag Day, rodeos, cooking, religious activities, recreational activities and the following special features which are matters of general interest to the public: The Air Winger of August 15, 1985, contained several features, including a feature on Children's Dental Health Week together with news of recreational and religious activities and other general news and current events. The Jax Air News of March 27, 1986, contained a feature article on poison prevention together with the other regular features concerning recreational and religious activities about Holy Week and the Passover. The Air Winger of July 24, 1986, contained a special feature on the change of command at Cecil Field, a feature which was also the predominant story that week in the local newspapers in Jacksonville, Florida, The Florida Times Union and Jacksonville Journal. The Jax Air News of May 15, 1986, contained a special feature on the Boy Scouts of America and Scout World and forthcoming scouting activities together with other recreational including live theatre and religious activities and various features and coverage concerning current events. The Air Winger issue of May 8, 1986, featured special coverage of the Boy Scouts of America and a feature concerning Mother's Day together with regular coverage of religious and recreational activities, local fitness run/walk and other current events. The Jax Air News of April 10, 1986, contained news about scouting and scouting events and news of naval operations having national and international focus. The Jax Air News of May 22, 1986, contained community news coverage featuring extensive coverage of Scout World 86 and Scouting, a major event in the Jacksonville, Florida, Community. That coverage paralleled coverage of the same event in The Florida Times Union, the largest newspaper of general circulation in Jacksonville, Florida, in its special edition of May 19, 1986. The Jax Air News of June 12, 1986, contained features on Flag Day and Japanese technology together with coverage of religious and recreational activities and other matters. The Air Winger issue of March 27, 1986, contained information and features concerning VA loan programs and U.S. Savings Bonds together with coverage of religious and recreational activities and current news. The Air Winger issue of April 3, 1986, contained news coverage of the United States Sixth Fleet's activity. The Jax Air News of May 29, 1986, contained features on hurricane safety and retirement planning together with coverage of religious and recreational activities and other news of the day. The Jax Air News of April 24, 1986, contained a feature on Red Cross classes. The Jax Air News of April 17, 1986, contained features concerning Pacific security and local coverage of the mayor of Orange Park, Florida. The Jax Air News of May 1, 1986, contained features concerning fishing. The Air Winger of May 22, 1986, contained information about military pensions and the commemoration of Memorial Day. The issues of Jax Air News and Air Winger regularly contain feature stories concerning the United States Navy and matters related to the Naval Air Station and Cecil Field, Jacksonville, Florida. The testimony of the witnesses makes it evident that naval happenings, especially as they relate to the activities and events at the Naval Air Station and Cecil Field and other naval bases in Jacksonville, are news in metropolitan Jacksonville and in the Jacksonville westside community. Jax Air News and Air Winger won a 1978 Florida Press Association Award for best special edition, small newspapers. Two issues of The Independent Florida Alligator, Petitioner's Joint Exhibits 2 and 3, were admitted. A comparison of Jax Air News and Air Winger and The Independent Florida Alligator shows in what ways they are similar and dissimilar. The three publications are publications of special interest to a particular community--the University of Florida in the case of The Independent Florida Alligator, and the United States Naval Station and Cecil Field in the case of Jax Air News and Air Winger. However, The Independent Florida Alligator has a much broader base in its reporting of news beyond its principal community and offers more extensive editorial comment. In addition, it serves the function of training student journalists in the newspaper business as the court in Campus Communications, supra, referenced in its favorable response to the claim for tax exempt status. No such roles are played by Jax Air News and Air Winger. The Independent Florida Alligator has a format that is more akin to a general circulation newspaper, whereas Jax Air News and Air Winger are in many respects more of a news bulletin. The articles related to the Navy preempt other news information and the reporting of other news events beyond the Navy's activities is secondary. The Navy exerts influence on the basic design and focus of the two publications through the contracts with the publisher. By contrast, the The Independent Florida Alligator has a wide-ranging set of topics in which there does not appear to be any outside entity predetermining space requirements or outside influence by another entity which has a say in what news is pursued by the student newspaper. As described, Jax Air News and Air Winger are printed and distributed at the respective Navy bases pursuant to contracts between the Navy and the publishing company. A copy of the contract between Holt Publishing Company and the two Commanding Officers of the Naval Air Station, Jacksonville, and Naval Air Station, Cecil Field, was introduced as Respondent's Exhibit 1 to the Holt Publishing case. A review of the editions of Jax Air News and Air Winger admitted into evidence showed that neither contained any news stories gathered from either Associated Press (AP) or United Press International (UPI) wire service materials.
The Issue The issues in these consolidated cases are: Whether The Buxton Group, Incorporated, and Kavin P. Buxton (hereinafter jointly referred to as "Buxton") committed fraud, deceit, negligence, or misconduct, and, if so, whether the Department of Agriculture and Consumer Services (the "Department") may deny the issuance of or revoke various licenses held by Buxton--DOAH Case No. 10-2197; and Whether administrative denial of Buxton's existing Class "G" license is warranted--DOAH Case No. 10-2198.
Findings Of Fact The Department is the state agency responsible for, inter alia, the issuance and monitoring of various licenses related to the field of private security. It is the Department's responsibility to take disciplinary action against any licensee who violates statutes or rules relating to the licenses issued by the Department. Buxton has held, now holds, or has applied for the following licenses which are issued by the Department: D9414758: A security officer's license which has an expiration date of August 30, 2010; DI9900012: An instructor's license for which Buxton applied for, but was denied renewal; B9400126: A license to operate a security agency. Buxton's license has expired and there is an administrative action pending against it; G9402513: A statewide firearms license. Buxton's license has expired, and his request for renewal has been denied by the Department; A9700094: A private investigative agency license, effective May 19, 2008; and MB9500099: A license to manage a security agency. Buxton's license has expired, and there is an administrative action pending. The basis of the Department's disciplinary actions against Buxton's licenses (and the reason the Department has denied applications for renewals) is an incident occurring on March 27, 2008, in Pinellas Park, Florida. Buxton was on that date working as a security guard for Dew Cadillac, a new and used car dealership. At approximately 5:05 a.m., Buxton was returning to the dealership after taking a coffee break off-site. He was driving his personal automobile down an unpaved track of land on the east side of the dealership. He turned unto an unpaved area at the northern end of the lot at which time he noticed movement around an employee's pick-up truck which was parked in the car lot. It appeared a window of the truck had been broken, and there was glass lying around the outside of the vehicle. Buxton approached the vehicle and found a person (later identified as Mark Lobban) "rummaging around" in the cab of the truck. Buxton noted that two windows had been smashed, and there was a dent in the passenger side door. Buxton ordered Lobban to exit the vehicle. When Lobban came out of the truck, his eyes indicated a drugged or intoxicated state, and he reached his hand into his shirt along the front waistline of his pants. When Buxton saw that movement, he drew his weapon, a Springfield Armory XP 9mm semi-automatic handgun, for which he held a current permit to carry. Lobban took his hand out of his shirt and stated that he was looking for his cousin. Buxton ordered Lobban to the ground and began to dial 9-1-1 as he kept an eye on Lobban. Just as Buxton finished dialing 9-1-1, Lobban allegedly lunged at Buxton, then took off running. Lobban ran behind some Hummer vehicles parked nearby. Buxton says that as Lobban ran, he again reached his hand into his shirt near his waistline. That placed Buxton in fear that Lobban may have a gun, so Buxton ran to another row of Hummers for protection and began firing shots toward Lobban from his own handgun. Lobban then ran past the row of Hummers and appeared to be exiting the premises. Buxton followed Lobban and later recounted in his Firearms Incident Report, that he ran toward Lobban "to insure that the suspect was actually exiting the property. At this point, I felt he was possibly running away. I followed further in an attempt to maintain sight of the suspect." Lobban approached a hedgerow located at the west side of the dealership, attempted to jump over it, but caught his leg and fell over the hedges. By this time, Buxton had cleared the last line of parked vehicles and, thus, had no more cover. When Lobban stood up on the other side of the hedgerow, he turned to face Buxton. Buxton wrote in his report, "Fearing he had drawn a weapon behind the hedge, I fired another round, at which time the suspect turned and fled east, through the wooded area adjacent to the property." Lobban did not at any time display or fire a weapon at Buxton. Buxton returned to his cell phone which he had dropped when first apprehending Lobban. The 911 operator was just calling him back at that moment. Buxton was put through to PPPD and, within minutes, the first officer, Scott Martin, arrived at the dealership. Martin had ensured that a police perimeter was established around the dealership concurrent with his arrival. When Scott got to the dealership, he found Buxton and was briefed as to what had transpired. A brief search of the premises was commenced pending arrival of the PPPD K-9 unit. While awaiting their arrival, Buxton spotted Lobban hiding under a vehicle in the dealership's service area. Lobban was apprehended by Scott and placed in a police cruiser. Scott determined that Lobban was impaired, probably by alcohol, and was essentially incoherent. Scott did an "article search" of the premises to see if any items belonging to Lobban could be found. A cell phone and wallet were recovered, but there was no sign of a firearm. The search did not concentrate on a firearm specifically, but the search was intended to find any item that Lobban had handled. The K-9 unit was able to trace Lobban's scent through the Hummers, across the hedgerow and back to the service area. The search concentrated on the areas where Lobban had been known to have crossed. No search was done of the wooded area behind the hedge, because the tracking dogs did not point to that area as having been traveled by Lobban. Scott reported in to his headquarters after hearing Buxton's explanation of the events that transpired. The discharge of a weapon in that scenario seemed unwarranted to Scott, so he reported it to his supervisor. Within minutes, Detective Doswell arrived at the dealership to further investigate the situation. Doswell arrived to find Lobban already in custody and Buxton standing in the parking lot with another security guard. Buxton told Scott he had fired four shots at Lobban initially and then two more shots after Lobban jumped the hedge. However, there were five shell casings found in the first location and only one near the hedgerow. The events concerned Doswell enough that he asked Buxton to come into headquarters and make a statement about what had occurred. Buxton initially agreed to do so. After a few minutes, however, he handed his cell phone to Doswell so that Doswell could talk to Buxton's attorney. Doswell and the attorney set up a meeting for later that same day, a Thursday. The attorney later called Doswell and said he and Buxton could not come in until the next day (Friday), so the meeting was rescheduled for that day. On Friday, March 28, 2010, Buxton and his attorney arrived at the PPPD headquarters. Doswell informed Buxton that he was investigating the event as a probable illegal discharge of a firearm and that criminal charges could be filed. Buxton was not read his Miranda rights at that time however, in that no charges had yet been filed. At some point, Doswell determined that Buxton had been involved in another incident relating to the discharge of his firearm while on duty. In that case, Buxton was working at a bowling alley when a group of kids attempted to "jump him." One kid spit on Buxton and during the brief confrontation, Buxton pulled his firearm. Buxton discharged his gun, firing into the ceiling of the establishment (because, said Buxton, someone hit his arm just as he was shooting. Buxton did not say what he was aiming at when he fired.). After interviewing Buxton and his attorney, Doswell revisited Dew Cadillac and did some further investigation. Fragments of bullets from Buxton's firearm had been recovered from the tires of two Hummers on the car lot. In order to obtain licenses which allow a person to use a firearm in conducting their authorized activities, a person must undergo a background check and certain training and education. The Class "D" license held by Buxton required 40 hours of training (which can be dispensed with if the applicant has prior corrections or law enforcement experience). The training necessarily included instruction from the Firearm Instructor's Training Manual (the "Manual"). The Manual specifically warns against the unauthorized use of deadly force, i.e., discharging a firearm at an individual. The Manual stresses the need to retreat and disengage, rather than entering into a situation that might require using the firearm. Several examples are set out in the Manual to provide applicants guidance about how to avoid using deadly force. Two of those examples follow: Situation #1: You are guarding a liquor store and are advised by a customer that there is an armed robbery in progress. You look around the corner and see a man rushing out the front door with a firearm in his hand. Instructor Discussion: Instead of immediately looking around the corner, call the police first. The suspect could turn around and see you as you look around the corner, thus, increasing the probability of armed conflict. The man is running away from you, and there is no threat of death or great bodily injury. Don't shoot. Situation #2: You have been advised that a burglary has occurred at a warehouse you are guarding. The suspects were observed leaving the scene in a blue, 1972 Dodge. Later that night, while patrolling the grounds in a well-marked security vehicle, you observe the suspects' vehicle traveling through the parking lot at a high rate of speed with the headlights off. You see a flash come from the driver's side of the suspect's vehicle and, almost simultaneously, the front windshield of your patrol car cracks. The suspect vehicle continues through the parking lot at a high rate of speed. Instructor Discussion: Don't shoot. Record the license number and description of the vehicle and suspects if it is possible to do so from a covered position. Pursuit could result in serious injury to you or to innocent bystanders who may get in the way. Call for police as soon as possible. According to the expert testimony at final hearing (which was not rebutted or contradicted by Buxton), each of the above-described situations is more egregious than the one Buxton encountered at Dew Cadillac. It is clear that discharge of a firearm in Buxton's situation would be contrary to the guidance provided in the training materials. Each of the facts stated herein are based upon the testimony of live witnesses and written statements from police and investigative reports. Each of the witnesses appeared knowledgeable about his area of testimony, and each was credible. Buxton provided no evidence to contest or rebut any of the evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Agriculture and Consumer Services denying Buxton's licensure application for License No. G9402513 and taking such action as the Department deems appropriate as to each of Buxton's other licenses issued by the Department. DONE AND ENTERED this 10th day of September, 2010, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 2010. COPIES FURNISHED: Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 Christopher E. Green, Chief Bureau of License and Bond Division of Marketing Department of Agriculture and Consumer Services 407 South Calhoun Street, Mail Stop 38 Tallahassee, Florida 32399-0800 Tracy Sumner, Esquire Department of Agriculture and Consumer Services Post Office Box 3168 Tallahassee, Florida 32315-3168 Kavin P. Buxton Post Office Box 13644 St. Petersburg, Florida 33733
The Issue Whether the Florida Fish and Wildlife Conservation Commission (FWC) should grant or deny the application for a license to Possess Class I and/or Class II Wildlife for Exhibition or Public Sale submitted to FWC by Melanie Boynes and Tarzan's Big Cat Sanctuary, Inc. (Ms. Boynes or, collectively, Petitioners).
Findings Of Fact FWC is the agency of the State of Florida that regulates the possession, sale, and display of captive wildlife in Florida. Petitioners applied for the subject license by filing Application ID No. 2038 with FWC on or about April 20, 2012.1/ Petitioners want to operate the proposed facility as a sanctuary for big cats. The operation of the proposed facility as a sanctuary would not require commercial activity, and it would not require a license from the United States Department of Agriculture (USDA). Ms. Boynes was licensed by FWC from September 25, 2006, to October 2, 2011, to possess Class I and Class II wildlife "for exhibition or public sale" at the prior facility. Ms. Boynes represented to FWC on the 2006 license application, and on the subsequent annual renewal applications (the prior FWC applications), that the intended commercial activity for the prior facility was a "permanent exhibition." That operation required commercial activity at the facility, and it required a license from the USDA. Ms. Boynes applied for the requisite USDA license, but she was denied that license by the USDA. On her USDA application, she represented that she intended to keep the big cats at the prior facility as pets. Ms. Boynes's representations to FWC that she intended to possess the big cats as a "permanent exhibit" on the prior FWC applications were misrepresentations of her intentions. As will be discussed below, there was no evidence that the big cats were being possessed at the prior facility as anything other than pets. Ms. Boynes applied for a renewal of her FWC license prior to its expiration on October 2, 2011. The FWC denied that application for renewal.2/ On March 1, 2012, Ms. Boynes incorporated Tarzan's Big Cat Sanctuary, Inc. (the corporate Petitioner) as a not-for- profit corporation for purposes that included submitting the subject application. Ms. Boynes is president of the corporate Petitioner. The premises consist of caging for big cats, an open- air area, and perimeter fencing on a five-acre tract. While the prior facility has been operated under the name of Tarzan's Big Cat Sanctuary for many years, the business was not incorporated until March 1, 2012. Mr. Sipek is a former actor who once starred in Tarzan movies. Mr. Sipek held a FWC license for the prior facility and possessed big cats there for many years before Ms. Boynes became involved with the prior facility. Mr. Sipek's FWC license authorized him to possess Class I and Class II wildlife for the same purposes as Ms. Boynes's license. His license also required commercial activity at the prior facility, and it required a license from USDA. Mr. Sipek has not held a FWC license since May 5, 2011. There was no evidence that he ever held a USDA license. Ms. Boynes first became associated with the prior facility as a volunteer in 2006. Ms. Boynes has been residing on the premises with Mr. Sipek since December 8, 2007. Mr. Sipek was listed as vice president of the corporation when it was first incorporated. Mr. Sipek has not been an officer or director of the corporate Petitioner since October 25, 2012. Until February 27, 2012, three big cats were housed at the prior facility. The prior facility had a four-and-a-half year-old tiger named Lepa, a seven-year-old tiger named Bo, and a 17 year-old leopard named Oko. On February 27, 2012, Mr. Sipek was arrested and FWC removed Lepa, Bo, and Oko from the facility. FWC delivered all three cats to Vernon Yates, who has provided them sanctuary. All three cats were healthy when Mr. Yates received them. Ms. Boynes intends to have all three of those animals returned to the proposed facility if the subject application is granted and Petitioners become licensed to operate the proposed facility as a sanctuary. Shannon Wiyda and Jon Garzaniti are investigators employed by FWC. As part of their duties, they conduct inspections of animals in caged security enclosures to ensure humane treatment and sanitary conditions for animals and to make sure the public is kept safe. Inv. Wiyda conducted an inspection of the prior facility in September 2007. Ms. Boynes was present during that inspection. Numerous violations were detected during that inspection. Those violations included gaps in caging, rust on caging, and vegetation on fencing. Gaps in caging can enable an animal to escape and can enable visitors to the facility to get too close to an animal. Rust on caging can cause the cage to lose its structural integrity and could cause parts of the cage to break off, leaving a sharp object that could injure an animal. Vegetation on the fences compromised the structural integrity of the fencing, and provided a means for the animals to climb the fencing. The caging and fencing deficiencies constituted a potential danger to the animals and to the public. Ms. Boynes received verbal warnings of the violations and a copy of the written report generated by Inv. Wiyda. Inv. Wiyda conducted an inspection of the prior facility in October 2008. Ms. Boynes was present during that inspection. Some deficiencies present in the 2007 inspection had been corrected, but others had not. There were still caging and fencing deficiencies. Gaps in the caging and rust were still present. The wire used to connect fencing or caging was not of sufficient gauge (strength). Vegetation was overgrowing the perimeter fence. Structures had been placed too close to the perimeter fence. The caging and fencing deficiencies constituted a potential danger to the animals and to the public. Ms. Boynes received verbal warnings of the violations and a copy of the written report generated by Inv. Wiyda. Inv. Wiyda conducted an inspection of the prior facility in March 2009. Ms. Boynes was present during that inspection. Numerous caging and fencing deficiencies were detected during that inspection. Wire less than the required nine-gauge was used to connect pieces of the cages and fencing. Surface rust was observed. One of the animal enclosures did not have a roof, which is required to prevent animals from escaping. Structures were placed too close to the perimeter fencing. Vegetation was growing over parts of the perimeter fence. The caging and fencing deficiencies constituted a potential danger to the animals and to the public. Inv. Wiyda conducted an inspection of the prior facility in May of 2010. Ms. Boynes was present during that inspection. The licenses held by Mr. Sipek and Ms. Boynes were to possess the animals for sale or exhibition. Neither activity was occurring at the prior facility. A USDA exhibitor's license was required for the facility. Neither Mr. Sipek nor Ms. Boynes had the required USDA license. Numerous caging and fencing deficiencies were detected. The deficiencies observed during the 2010 inspection were similar to the deficiencies observed in the previous three inspections. Rust was observed on many surfaces of the cages and fencing. Required roofing was non-existent. Structures were placed next to fencing and vegetation overgrowth was present on the fencing. Structurally unsound enclosures, including cages, were discovered. Improper strength wire was used to hold cages together. The condition of the facility was poor. The caging and fencing deficiencies constituted a potential danger to the animals and to the public. On or about August 24, 2010, Mrs. Boynes and Mr. Sipek applied for the requisite USDA exhibitor's license. Megan Adams, an Animal Care Inspector employed by the USDA, inspected the prior facility on August 10, 2010. Her observations and findings were similar to those of the FWC investigators. Ms. Adams observed unsanitary conditions and caging and fencing deficiencies. Ms. Adams also noted that all three of the animals at the facility had been declawed. The USDA has prohibited declawing of big cats since before 2006 and the American Veterinary Medical Association condemns the practice. By letter dated September 16, 2010, the USDA denied the application submitted by Ms. Boynes and Mr. Sipek. FWC does not have a rule that prohibits the declawing of big cats. Mr. Sipek had had Oko and Bo declawed before Ms. Boynes became involved with the prior facility. In 2008, Lepa arrived at the prior facility. Lepa was considered to be Ms. Boynes's animal. When Inv. Wiyda inspected the prior facility in 2008, she told Ms. Boynes not to declaw Lepa, and gave her a copy of the USDA policy against declawing big cats. Ms. Boynes subsequently had Lepa declawed by a veterinarian. At the formal hearing, Ms. Boynes testified, credibly, that she would not declaw any other big cats should FWC grant the subject application. Inv. Garzaniti conducted an inspection of the prior facility in August 2011. Ms. Boynes was present during that inspection. Mr. Sipek was not licensed at the time of the inspection. Ms. Boynes's license was active at the time of the inspection. Numerous caging and fencing deficiencies were detected. There were gaps in the caging, which compromised the integrity of the enclosures. Caging and fencing was mended together and piecemealed with bailing wire of less gauge than required. Rust was observed on surfaces of cages. One area of a cage had several pieces of rebar extending down from the ceiling of the cage with no brace on the bottom to support the rebar. One of the pieces of rebar broke off when light pressure was applied. Vegetative overgrowth was present on perimeter fencing, which negatively impacted the integrity of the fencing. The perimeter fencing was structurally unsound. The caging and fencing deficiencies constituted a potential danger to the animals and to the public. Ms. Boynes possessed no USDA license as required. There was no evidence that the animals were being possessed for any purpose other than as pets. Invs. Wiyda and Garzaniti conducted an inspection of the prior facility on February 27, 2012. Ms. Boynes was present during the inspection. Numerous caging and fencing deficiencies continued to exist. The cages and the perimeter fencing were not structurally sound. Structures were placed too close to the perimeter fencing. Vegetative overgrowth was observed on the perimeter fencing. Sanitation violations were also observed. Standing water was discovered in cages. Proper drainage for surface water runoff was not provided. Standing water is unsanitary and can contain bacteria and feces, which can make an animal sick. There were multiple piles of old feces throughout the enclosure. Fecal waste is required to be removed daily because it is unsanitary and contains bacteria that can make an animal sick. Unclean water dishes with yellow and brown slime were discovered. The caging and fencing deficiencies constituted a potential danger to the animals and to the public. The unsanitary conditions constituted a potential danger to the animals. Ms. Boynes did not have the required USDA license. There was no evidence that the animals were being possessed for any purpose other than as pets. On February 27, 2012, FWC arrested Mr. Sipek and removed the animals from the prior facility. Ms. Boynes was emailed and sent a copy of the report that was generated by the investigators. As to each FWC inspection, Ms. Boynes received verbal warnings as to the violations during and following each inspection, but she was not issued a written citation by FWC or the USDA for any of the deficiencies set forth above. As a licensee, Ms. Boynes was required to assure that the caging complied with FWC's rules setting caging, fencing, and sanitation standards. As alleged in FWC's denial letter, Ms. Boynes violated those rules.3/ On July 9, 2012, Ms. Boynes became solely responsible for the operations and maintenance of the facility. Since that date, Ms. Boynes has built three new pens and new perimeter fence. Inv. Garzaniti inspected the re-built facility on July 9, 2012. The re-built facility met all applicable standards, and Inv. Garzaniti recommended that the subject application be granted and the license issued.4/ FWC's denial letter stated as a ground for denying the subject application the alleged fact that Paul Fisher had been bitten by Oko (the leopard) at the prior facility on December 30, 2010. While FWC received a report of that incident, there was insufficient proof to establish that the incident occurred. FWC's denial letter also states as a ground for denying the application alleged deficiencies in the diet provided the animals at the prior facility. There was insufficient evidence to establish that the diet provided for the animals was insufficient.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Fish and Wildlife Conservation Commission enter a Final Order adopting the findings of fact and conclusions of law set forth in this Recommended Order. It is further Recommended that the Final Order deny the subject application for licensure filed by Melanie Boynes and Tarzan's Big Cat Sanctuary, Inc. DONE AND ENTERED this 29th day of March, 2013, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 2013.
The Issue Whether proposed rules of Respondent constitute invalid exercises of delegated legislative authority.
Findings Of Fact The Florida Highway Patrol (FHP), a division of Respondent, was accredited by the Commission On Accreditation For Law Enforcement Agencies, Inc. (CALEA) by notification received on November 16, 1996. For a period of five years prior to receipt of accredited status, FHP had been involved in that process. Among FHP actions taken in the process of accreditation was the revision of a policy manual for FHP members which took effect on February 1, 1996. The policy manual is issued to all FHP sworn officers and a copy is maintained at each FHP station. Chapter 3.03 of the policy manual contains the five policies challenged in this proceeding. FHP Policy 3.03.06 A 6 provides, as follows: Members will conduct themselves on and off- duty in such a manner so that their actions and behavior reflect favorably on the Division. Members will not engage in conduct which discredits the integrity of the Division or its employees, or which impairs the operations of the Department/Division. FHP policy 3.03.06 A 19 provides: Members will be courteous to the public. Members will be tactful in the performance of their duties, will control their tempers, and exercise the utmost patience and discretion and will not engage in argumentative discussions even in the face of extreme provocation. In the performance of their duties, members will not use coarse, violent, profane or insolent language or gestures, and will not express any prejudice concerning race, religion, politics, national origin, lifestyle or similar personal characteristics. FHP policy 3.03.03 A 33 provides: Involvement in political activities will not be permitted during members’ on-duty time. Political activities include soliciting or receiving any contribution for any political party or cause, or storing, posting, carrying or distributing political literature of any nature. Specifically, Florida Statutes provide that members shall not Hold or be a candidate for public or political office while in the employment of the State or take any active part in a political campaign while on-duty or within any period of time during which they are expected to perform services for which they receive compensation from the State. However, when authorized by the agency head and approved by the Department of Management Services, employees in the career service may be a candidate for or hold a local public office which involves no interest which conflicts or interferes with that state employment. Use authority of their position to secure for or oppose, any candidate, party or issue in a partisan election or affect the results thereof. Use any promise of reward or threat of loss to encourage or cause any employee to support or contribute to any political issue, candidate or party. Perform any police duty connected with the conduct of any election. Subsections (a)-(c) were taken from Section 110.233(4) and (5), Florida Statutes. FHP policy 3.03.03 A 50 provides: Members, while off-duty, will refrain from consuming intoxicating beverages to the extent that it results in impairment, intoxication, or obnoxious or offensive behavior which discredits them or the Division, or renders the members unfit to report for their next regular tour of duty. FHP policy 3.03.03 A 54 provides: Personal activities or associations of a member that knowingly create an apparent or real conflict of interest with the conduct of official duties are prohibited. A “conflict of interest” arises when a member’s private interest, whether of a financial nature or otherwise, conflicts with the member’s impartial conduct of official duties and responsibilities. Section 321.02, Florida Statutes, provides, in pertinent part, the following: [Respondent] shall set up and promulgate rules and regulations by which the personnel of the Florida Highway Patrol shall be examined, employed, trained, located, suspended, reduced in rank, discharged, recruited, paid and pensioned, subject to civil service provisions hereafter set out. Respondent provides citation to this statutory provision as the law implemented by the challenged regulations. This authority sufficiently supports adoption by reference, pursuant to 120.54 (l)(i), Florida Statutes, of the conduct regulations which form the subject of Petitioner’s challenge. Discipline for violation of the foregoing policies is applied to a member through application of Chapter 15-3, Florida Administrative Code, which contains Respondent’s disciplinary guidelines. Among those guidelines is listed the offense of violation of rules, regulations or policies. Following Petitioner’s filing on April 2, 1997, of the Petition To Determine The Invalidity Of Rules, Respondent published, on April 18, 1997, a Notice of Development of Proposed Rules in compliance with requirements of Chapter 120, Florida statutes. The text of the notice documented Respondent’s intent to adopt the FHP policy manual as an administrative rule.
