Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by W. David Watkins, Administrative Law Judge of the Division of Administrative Hearings, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Said Order Closing File was predicated upon Respondent’s Withdrawal of Notice of Termination and Motion to Dismiss. Accordingly, it is hereby ORDERED that this case is DISMISSED. Filed August 25, 2011 6:49 AM Division of Administrative Hearings DONE AND ORDERED this e%) day of August, 2011, in Tallahassee, Leon County, Florida. Sandra C. Lambert, Director Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A435, MS 80 Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motorist Services this AA _ da of August, 2011. wt oes Dealer sok saber NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within 30 days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. SCL:vlg Copies furnished: John W. Forchand, Esquire Kirkin Forehand Brandes, LLP 800 North Calhoun Street, Suite 1B Tallahassee, Florida 32303 Claude Joncas Bombardier Recreational Products, Inc. 75 J-A Bombardier Street Quebec, Canada JIL 1W3 J. Andrew Bertron, Esquire Nelson Mullins Riley and Scarborough, LLP 3600 Maclay Boulevard South, Suite 202 Tallahassee, Florida 32312 W. David Watkins Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 Nalini Vinayak Dealer License Section
Findings Of Fact On September 13, 1991, Respondent was operating two commercial vehicles in Hillsborough County, Florida, when they were stopped by the Petitioner and weighed. The first vehicle was a 1988 Freightliner which weighed 75,360 pounds or 40,360 pounds above a 35,000 pound weight limit. The second vehicle a 1989 White/GMC weighed 76,040 pounds or 41,040 pounds over a 35,000 pound weight limit. Respondent did not contest the weights assigned in the inspections that took place on September 13, 1991, nor the calculation of the amount of fine associated with the vehicles for being over weight. The trucks were not registered in Florida and did not have evidence of an apportioned registration from some other state. Neither did the commercial vehicles have a single trip permit. As a consequence a 5 cents per pound penalty was assessed for weight above the 35,000 pound limit. In the instance of the Freightliner that penalty was $2,018.00 and the penalty for the White/GMC was $2,052.00. The vehicles were from the state of Ohio, a state which was participating in the International Registration Plan on the date in question; however, the Ohio registration for the vehicles did not indicate apportionment for Florida. Terry Whittington the President for Whittington Produce, testified that Ohio had recently become a state which participated in the reciprocity related to the International Registration Plan. He identified that the business of the Respondent is hauling, in this instance hauling poultry; and that his company suffered a 3 percent financial loss on this trip in which the industry standards call for delivery of all but a quarter to a half percent of the product. This loss was associated with having to gain compliance with the registration requirements on the date in question and the time necessary to accomplish that task. The customer has not asked the Respondent to haul its poultry following the loss. Whittington referred to the possibility that Ohio was remiss in getting information to them about apportionment for registration by not meeting deadlines on licensing and getting information to the Respondent when Respondent received the registration plates for the commercial vehicles in question. Whittington refers to the fact that it was after June 30, 1991 or July 1, 1991, when Respondent began to get information from the state of Ohio to deal with the participation in reciprocity associated with the International Registration Plan and by then Respondent had already "filed" about every place that it was going to "file." Whittington believes that his company got caught short on paperwork. Whittington also referred to the belief that he held on September 13, 1991, to the effect that Ohio was a reciprocity state and the operation of the commercial vehicles in Florida was in compliance with all requirements, especially given a 300 percent increase in 1991 related to the Ohio licensing costs. In the submission of the letter in argument Respondent attaches what is referred to as a supplemental application to the State of Ohio, Bureau of Motor Vehicles, International Registration Plan which adds the State of Florida to its apportionment in the registration for the two vehicles in question, among others. The letter in argument continues to refer to May, 1991 as the date upon which Ohio began to participate in the International Registration Plan and the belief that the rules and laws were different than they were before with the advent of this participation by Ohio. The argument continues to assert that the Respondent believed that it was in compliance when it entered the State of Florida and that when the Respondent found out that it was not it did arrange for apportionment with Florida, which the exhibits attached to the letter in argument refer to. This is the after the fact or supplemental application to add Florida as an apportioned state for the Ohio registration pertaining to the subject vehicles in question. In summary Respondent believes that the fines are exorbitant and not in keeping with the purchase of a license to operate in Florida and Respondent asks that the fines be lowered.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered which assesses penalties in the amount of $2,018.00 and $2,052.00 respectively thus denying the request for refund. DONE and ENTERED this 25th day of June, 1992, in Tallahassee, Florida. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation CHARLES C. ADAMS, 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 25th day of June, 1992. Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458 Terry E. Whittington Post Office Box 33 Hollansburg, OH 45332 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458
Findings Of Fact On March 22, 1977 during a routine inspection of various service stations in Vero Beach, a sample of No. 2 diesel fuel was taken from the pump at English Brothers Truck Stop. Upon analysis at the mobile laboratory the sample was found to be below the minimum flash point for No. 2 diesel fuel and the inspector returned to the station the same day and issued a stop sale notice. (Exhibit 3). Three additional samples were taken, and when analyzed they too were found to be below minimum flash point for this type fuel. Upon receipt of the stop sale notice the station manager notified Respondent. After the fuel had been analyzed at the state laboratory Respondent was notified that since the retail value of the contaminated fuel exceeded $1,000 it could pay $1,000 in lieu of having the fuel confiscated. Respondent owns the fuel at English Brothers Truck Stop until such time as the fuel is removed through the pump for sale. Upon receipt of the notice of the contaminated fuel, which was in one 4,000 gallon tank, Respondent immediately sent three employees to remove the contaminated fuel and clean the tank. Thereafter Respondent attempted to locate the source of the contamination but without success. Since the flash point was lower than allowed for diesel fuel the most likely source of contamination was gasoline which is a higher priced fuel than diesel. Standards used by the Petitioner in determining the required characteristics of fuels are those prescribed by the ASTM. Respondent distributes some 750,000 gallons of diesel fuel per month and this is the first report of contamination of its fuel in the eight and one half years Respondent has been in business.
The Issue The issue is whether Mr. Hill, as a certified general contractor, is guilty of gross negligence or misconduct in the practice of contracting, and of failing to discharge his supervisory duty as a qualifying agent by qualifying the firm Gulfstream Shutter and Improvement Corp. when he was not actively involved in the operation of that firm, but merely obtained permits for the firm's work.
Findings Of Fact Robert C. Hill is a certified general contractor and holds license CG C028519. Mr. Hill had been hired as one of four or five salesmen for Gulfstream Shutter and Improvement Corp. by its owner, Eugene Weiner. That company sold rolldown, accordion, panel, and awning metal shutters. Gulfstream acted as a procuring agent for Seaview Manufacturing, Inc., which fabricated and installed the shutters. A homeowner who wanted shutters would contact a salesman for Gulfstream Shutter and Improvement Corp. The salesman would measure the area to be covered for the purpose of estimating a price and give the homeowner a price. If the price was accepted, the shutters would be ordered from Seaview Manufacturing through a purchase order. Engineers from Seaview would then visit the property again to take exact measurements for fabrication, and Seaview would install the shutters. After the homeowner accepted the installation, the homeowner would pay for the shutters. Payment usually had been financed, and upon acceptance by the homeowner, the financing entity would release the proceeds of the home improvement loan which would be paid to Seaview for the product, and to Gulfstream for its sales commission. The average job sold by Gulfstream Shutter and Improvement Corp. was about $2,400 per home. Because of the way in which the sales transactions for shutters were structured, the only party which had any contractual relationship with the homeowner was Gulfstream Shutter and Improvement Corp. Mr. Hill was also able to handle work in addition to shutters, such as window replacements, because he had a contracting license. About 85 to 90 percent of Gulfstream's business was shutters and 5 percent windows or other work. The owner of Gulfstream Shutter and Improvement Corp. assumed that Seaview Manufacturing, which had been in the business of fabricating and installing shutters for more than 30 years, obtained any permits that were needed for the installation of the shutters. In fact, no permits were obtained by Seaview, Gulfstream, or Mr. Hill for those installations. Mr. Hill agreed to become qualifying agent for Gulfstream Shutter and Improvement Corp. so that he could pull permits for spin-off jobs he obtained for window work or other small remodeling jobs, such as porches, which arose in connection with contracts for awning work he obtained. Gulfstream had no other qualifying agent. This qualification took place in August 1985. When Mr. Hill qualified as the agent for Gulfstream Shutter and Import Corp., he had no oversight of the finances of the company or supervision over the shutter fabrication or installation performed by Seaview Manufacturing on contracts procured by Gulfstream's salesmen. Eventually, Mr. Hill left Gulfstream Shutter and Improvement Corp., and began his own business, Contractors Marketing, which he qualified with the Department of Professional Regulation.
Recommendation It is therefore recommended that a final order be entered finding Mr. Hill guilty of violating Section 489.119(2), Florida Statutes (1985), which make out a violation of Section 489.129(1)(j), Florida Statutes (1985), and that he be fined $250. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 22nd day of April, 1988. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 1988. COPIES FURNISHED: David L. Swanson, Esquire Robert C. Hill Department of Professional 5766 Northeast 15th Avenue Regulation Ft. Lauderdale, Florida 33334 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely William O'Neil, Esquire Executive Director General Counsel Department of Professional Department of Professional Regulation Regulation Post Office Box 2 130 North Monroe Street Jacksonville, Florida 32201 Tallahassee, Florida 32399
Findings Of Fact On October 14, 1988, shortly before 9:00 a.m., Sheriff Deputy William Emral of the Monroe County Sheriff's Office was notified by radio that the Sheriff's Office dispatcher had received an anonymous telephone call advising that two white males were loading what appeared to be narcotics into a white four-door Cadillac, with Florida license plate number 367-ZGX. The caller indicated that the Cadillac was headed northbound on the highway from Lower Matecumbe Key. Deputy Emral then took up a stationary position at mile marker 84 and began watching the northbound traffic. At about 9:05 a.m., he observed the Cadillac described by the anonymous caller. Deputy Emral began to follow the subject Cadillac northbound. He followed the Cadillac for approximately one mile and then activated his emergency lights and pulled the Cadillac over. From the time Deputy Emral first saw the subject Cadillac until the time he pulled the Cadillac over, he did not observe anything about the car or the driver that would have caused him to stop the Cadillac. Had it not been for the information provided by the anonymous caller, Deputy Emral would not have stopped the subject Cadillac. The Respondent, Mark Alfred Herre, was driving the Cadillac at the time Deputy Emral pulled it over. Mr. Herre did not flee and obeyed the directions given to him by Deputy Emral. He produced his driver's license which showed his name as Mark Alfred Herre. The car was rented and, when requested, he produced the rental contract showing that it had been rented by another individual. Deputy Emral reported this information to his base and to his superior, Captain Wilkinson, who later arrived at the scene. Deputy Emral observed two bags, one green and one gray. These were soft sided bags and appeared to be stuffed between the rear and front seats of the rented car, on both the driver and passenger sides. They were relative large, approximately three feet by four feet in size. The rental contract produced by Mr. Herre indicated that the vehicle was rented by a Maryland resident named Robert E. Lee. Mr. Herre could produce no authorization from Mr. Lee that he was entitled to use the vehicle nor could he produce the name of someone who could confirm he was authorized to be driving the subject vehicle. At about this time, Captain Wilkinson arrived at the scene as backup. At this point, Mr. Herre was not suspected of a crime and continued to answer questions from the Deputy. He stated that the bags in the car contained diving gear. Deputy Emral is a certified diver and the story seemed suspicious and inconsistent with the Deputy's previous diving experiences. Mr. Herre did not ask any questions or make other inquiries as to why he was stopped. Deputy Emral did explain that an anonymous tip was received and discussed this information with the Petitioner. At this point, Deputy Emral and Captain Wilkinson conferred and because of the information received by the anonymous tip to the Sheriff's Office and the inability of the Petitioner to prove he had authorization to be driving the rented vehicle, they decided that the vehicle should be taken into custody. In preparation for taking a vehicle into custody, an inventory of the vehicle is made as a standard procedure. Mr. Herre was not placed under arrest at this time. Mr. Herre was asked for, but declined to give, permission for the Deputy to search the vehicle. The vehicle was then searched and it was determined that the two bags in the passenger compartment contained bales of marijuana. Captain Wilkinson then took charge of the vehicle and drove it to the Sheriff's Office. Captain Wilkinson stated that even if no contraband were in the vehicle, he would probably have driven it to the substation to await confirmation that Mr. Herre was actually authorized to be in possession of the rented car and the same was not actually stolen. At the Sheriff's Office, the Cadillac was thoroughly searched and the car and its contents were photographed. Three bales of marijuana were recovered from the back seat and ten bales of marijuana were recovered from the trunk. Samples tested positive for marijuana. For purposes of this case, the parties have stipulated that the marijuana found in the subject Cadillac weighed a total of 300 pounds. On November 17, 1988, the Department issued a Notice Of Assessment And Jeopardy Findings to the Petitioner, Mr. Herre. The assessment was based on an estimated retail price for marijuana of $700.00 per pound times the stipulated 300 pounds, which comes to a total estimated retail value of $210,000.00. The tax, surcharge, and penalty assessed against Mr. Herre were as follows: 50% Tax $105,000.00 25% Surcharge 52,500.00 Additional penalty of 50% 78,750.00 Total Amount of assessment $236,250.00 Daily interest on the amount due is $51.78. The Notice of Assessment And Jeopardy Findings described above was properly and correctly prepared and notice of it was properly given to the Petitioner, Mr. Herre. On December 28, 1988, Mr. Herre was sentenced in Case No. 33-88-00446- CF-A to a period of five (5) years probation and to pay $5,000.00 in costs. The sentence in the aforementioned case was as a result of criminal charges arising from Petitioner's arrest for the conduct alleged in the Notice Of Assessment And Jeopardy Findings dated November 17, 1988.
Recommendation For all of the foregoing reasons, it is recommended that the Department of Revenue issue a Final Order in this case concluding that the Petitioner, Mark Alfred Herre, is liable for taxes, surcharges, penalties, and interest pursuant to Section 212.0505, Florida Statutes (1988 Supp.), and assessing the amount of such liability at $236,250.00, plus interest at the rate of $51.78 per day since November 7, 1988. RECOMMENDED in Tallahassee, Leon County, Florida, this 18th day of March 1991. COPIES FURNISHED: Stephen J. Bronis, Esquire 1395 Coral Way Third Floor Miami, Florida 33145 MICHAEL M. PARRISH 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 18th day of March 1991. Mark T. Aliff, Esquire Assistant Attorney General Department of Legal Affairs The Capitol - Tax Section Tallahassee, Florida 32399-1050 J. Thomas Herndon Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100 Vicki Weber General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100
The Issue This is a license discipline case in which Petitioner seeks to take disciplinary action against the Respondent on the basis of alleged unlawful sale of an alcoholic beverage and cigarettes to a minor.
Findings Of Fact At all times relevant and material to this proceeding, the Respondent held license number 23-12104, series 2-APS, authorizing it to sell alcoholic beverages on the premises of New Hialeah Supermarket, located at 3201 East 4th Avenue, Hialeah, Dade County, Florida (hereinafter "the licensed premises"). Aleya Ribhi Maali (hereinafter "Maali") is the sole corporate officer and shareholder of the respondent corporation. On September 24, 1996, Special Agents Spayd, Smith, and Delmonte conducted random tests of alcoholic beverage licensees' compliance with laws prohibiting the sale of alcoholic beverages to persons under the age of 21 and tobacco to persons under the age of 18. On September 24, 1996, Investigative Aide C. R.2 entered the licensed premises in furtherance of the above referenced investigation. C. R.'s date of birth is August 15, 1979. She was 17 years of age at all times relevant to these proceedings. C. R. selected a can of Budweiser beer from the back of the store. She then approached Maali at the cash register counter and asked her for a pack of Marlboro cigarettes. Maali handed C. R. the pack of cigarettes which she had retrieved from the display behind the register counter. Respondent proceeded to sell C. R. the can of Budweiser beer and the Marlboro cigarettes. Maali did not request to see any identification as proof of legal age, nor did she ask C. R. her age. Maali was questioned by Agents Delmonte and Smith. Maali admitted that she had not been paying attention to what she had been doing. She said that she had been working in the store since 8:00 a.m. At the formal hearing she testified that the sale to C. R. was a consequence of being tired and confused because of the long work day. She testified that at the time of the sale she had been thinking about going home to make dinner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered in this case concluding that the Respondent is guilty of the two unlawful sales charged and imposing a penalty consisting of a 7-day license suspension and administrative fines in the total amount of $1,500.00 DONE AND ENTERED this 14th day of May, 1997, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1997.
