The Issue In separate cases arising out of the same incidents, the Florida Commission on Ethics found probable cause that Respondent Rice violated Section 112.3143(3), F.S. by voting in her official capacity on a measure which inured to her special private gain; that she violated Section 112.313(6), F.S. by having a memorandum of voting conflict falsified; and that Respondent Thomas violated Section 112.313(6), F.S. by falsifying a memorandum of voting conflict. The issue, therefore, is whether those violations did occur, and if so, what penalty is appropriate.
Findings Of Fact The incorporated municipality of Bunnell is a small community in Flagler County Florida. Opal Rice was a Bunnell City Commissioner for eight consecutive years ending in March 1992. Becky Thomas has been Bunnell City Clerk for "six years come June 1993". She is appointed annually by a majority vote of the City Commission. Earl Rice, as "everyone in Bunnell knows", is Opal Rice's husband. Back in 1989 he owned six or eight contiguous residential lots in Bunnell. Since everything around them except the back was business, he felt they would be a "good place for a little business" and he applied to the city for rezoning. He felt the property value would be enhanced and wanted the flexibility of developing the lots either as residential or business. The rezoning issue came before the commission for first reading on March 21, 1989. Mrs. Rice and three other commissioners voted for its approval, and one commissioner dissented, stating he felt the change was spot zoning. The issue came up for second reading at the April 4, 1989 commission meeting. City Attorney Taylor was asked if the amendment to the zoning ordinance would be spot zoning, and he opined that it would not. There was also some discussion about whether Mrs. Rice should sign a conflict of interest form. She said she did not think she had a conflict because the property was not in her name and she would not get a benefit. The City Clerk said she should file the form and Mrs. Rice agreed, just to be safe. Mrs. Rice then participated in the vote and the rezoning was approved 4-1. Sometime in 1991, a citizen came to the clerk's office and asked to see some records, including those related to the rezoning. Becky Thomas was on the phone and asked her to come back to pick them up later. When Ms. Thomas pulled the records she realized that the voting conflict forms had not been filed. In more recent months, Becky Thomas has become aware that the completion and filing of voting conflict forms is not her responsibility as Clerk, but rather is the responsibility of the individual commissioners. But in 1991, she was chagrined at her oversight on Mrs. Rice's forms and immediately filled them out. Ms. Thomas then called Mrs. Rice and asked her to come sign them. The two forms, styled "Form 8B Memorandum of Voting Conflict for County, Municipal and Other Local Public Officers", are comprised of two pages, including instructions. Becky Thomas prepared the forms to cover the two occasions described above, the first and second readings. Next to the signature line is a line, "Date Filed". On that line Becky Thomas typed the dates the votes were taken: March 21, 1989 and April 4, 1989, thinking that those were the relevant dates. Opal Rice signed each form on the space next to the dates. Mrs. Rice is a retired school teacher. She and her husband receive separate retirement checks. They pay their expenses from a joint account. Mrs. Rice believed that she was required to vote. During other meetings, she recalled, she heard other commissioners being told they had to vote and to file a notice of voting conflict later. She, herself, had previously filed voting conflict forms. She was not certain when the forms were supposed to be filed, but acknowledged that the filing should be rather soon after the vote. At hearing, Mrs. Rice was not particularly familiar with the details on the forms she signed, and she admitted that she did not read the instructions. Nor did she discuss the forms with Ms. Thomas. Although the dates next to her signature were not the dates she signed, she simply thought they were the dates the votes were taken. The printed forms bear the date, 1-91; and the forms in use in 1989 are not in evidence. The printed instructions include a plain prohibition against elected officers voting on measures which inure to their special private gain. The instructions also require that a conflict must be disclosed and abstension explained prior to the vote being taken, and again after the vote by filing the form within fifteen days. Clifford Allen Taylor has been Bunnell's City Attorney, part time, for seven years. He was present for the second reading, but not the first. He has some recollection of the discussion of Commissioner Rice's possible conflict but he did not participate in the discussion. The law, as he understood it back then, was that the commissioner was required to vote and make a disclosure.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Commission on Ethics enter its final order and public report finding no violation of Section 112.313(6), F.S. by either Opal Rice or Becky Thomas; finding violations of Section 112.3143, F.S. by Opal Rice when she voted on rezoning her husband's property and neglected to file memoranda of the conflict within fifteen days; and recommending that a civil penalty be assessed in the amount of $100.00. DONE AND RECOMMENDED this 26th day of March, 1993, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 1993. COPIES FURNISHED: Craig Willis, Esquire Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1502 Tallahassee, Florida 32399 Opal Rice Post Office Box 696 Bunnell, Florida 32110 Becky Thomas Post Office Box 756 Bunnell, Florida 32110 Bonnie Williams Executive Director Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006 Phil Claypool General Counsel Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006
The Issue The issue presented is whether Respondent Community Education Partners, d/b/a Emerald Bay Academy, engaged in an unlawful employment practice as to Petitioner Adam Killick, and, if so, what relief should be granted to Petitioner, if any.
Findings Of Fact On October 3, 2005, the Commission filed with the Division of Administrative Hearings Petitioner's Petition for Relief. On that same date, an Initial Order was entered by the assigned Administrative Law Judge requesting certain information for the scheduling of the final hearing in this cause. Due to the parties' failure to comply with that Order, venue rights were deemed waived. On October 14, 2005, a Notice of Hearing was entered scheduling this cause for final hearing on December 19, 2005. An Order of Pre-Hearing Instructions was entered that same day requiring the parties to disclose to each other no later than seven days before the final hearing the names of their witnesses and further requiring them to exchange copies of their exhibits by that same deadline. That Order further provided that failure to timely disclose could result in exclusion of that evidence at the final hearing. On December 12 Respondent filed its Motion for Continuance of the final hearing. On December 13 Respondent filed correspondence advising that Petitioner had agreed to the continuance, that Petitioner would be out of the country the entire month of January 2006, and that Petitioner and Respondent had agreed to certain dates for re-scheduling the final hearing. One of those dates was February 17, 2006. On December 14, 2005, an Order Granting Continuance and Re-Scheduling Hearing was entered, scheduling this cause for final hearing on February 17, 2006, validating any served subpoenas for the new date, and incorporating the provisions of the first Notice of Hearing and the Order of Pre-Hearing Instructions. On January 26, 2006, Respondent filed its Agreed Motion for Leave to Present Testimony Telephonically, requesting that a witness who lives in New Mexico be allowed to testify telephonically at the final hearing on February 17, 2006. The Agreed Motion clearly set forth Petitioner's agreement to allow the telephonic testimony of that witness at the final hearing. On January 27, 2006, that Agreed Motion was granted, subject to Respondent making the necessary arrangements and subject to compliance with Florida Administrative Code Rule 28-106.213(5), which, inter alia, requires a notary public to be physically present with the witness to administer the oath. On February 3, 2006, Respondent filed its Notice of No Opposition advising that it did not oppose Petitioner's request for a continuance of the February 17, 2006, final hearing date. Petitioner's Motion for Continuance was filed on February 9, 2006. By Order Granting Continuance entered February 9, 2006, Petitioner's motion was granted, the final hearing scheduled for February 17, 2006, was cancelled, and the parties were afforded up to and including February 28, 2006, to advise the undersigned as to the status of this matter, as to the length of time required for the final hearing, and as to several mutually- agreeable dates for re-scheduling the final hearing. That Order further provided that failure to timely comply would result in the conclusion that this matter had been amicably resolved and the file of the Division of Administrative Hearings would be closed. Neither party filed any document or pleading on or before February 28, 2006. On March 3, 2006, Petitioner filed his first Request for Discovery and sent a letter to the Clerk of the Division requesting subpoenas and indicating that he would accommodate a hearing date convenient to the undersigned and to Respondent. The letter also advised that after he had received all materials, he needed time to prepare. The letter did not provide dates for re-scheduling the final hearing in compliance with the February 9, 2006, Order. Subpoenas were issued to Petitioner pursuant to his request in that letter. The Order Re-Scheduling Hearing entered March 6, 2006, recited the provisions of the prior Order giving a deadline for providing mutually-agreeable dates for re-scheduling the final hearing and the failure of the parties to comply with that Order. It also recited that despite the earlier Order providing for the automatic closure of the Division's file if the parties failed to timely provide dates, since Petitioner had filed documents subsequent to the deadline, it was assumed that the case had not been amicably resolved. The Order re-scheduled the final hearing in this matter to be held on March 24, 2006, validated any served subpoenas for the new date, and incorporated the provisions of the first Notice of Hearing and the Order of Pre-Hearing Instructions. On March 14, 2006, Petitioner filed a Motion to Compel Discovery and a Motion for Rehearing. The Motion for Rehearing is confusing: it asks for reconsideration of his discovery request (no ruling had previously been requested or made); it complains about the December 2005 hearing date having been continued; it withdraws Petitioner's prior agreement to allow a witness to testify by telephone (which agreement had been subsequently ordered); it specifically states that Petitioner is not requesting another continuance but then speaks of requiring time to prepare that would extend well beyond the scheduled final hearing date. On March 16, 2006, Respondent's Response to Petitioner's Motion to Compel Discovery and Motion for Rehearing was filed, opposing the granting of Petitioner's pending motions. Petitioner's motions were heard telephonically on March 20, 2006. The manual he wanted produced, which Respondent agreed to give him, was ordered produced, but the remainder of Petitioner's requests were denied. An Order on Pending Motions was entered that same day to memorialize the rulings announced during the telephonic hearing. The Order specifically provided that Petitioner's request for a postponement of the final hearing was denied, a ruling made and discussed during the telephonic hearing. On March 17, 2006, Respondent filed its witness list, together with a cover letter advising that Respondent had provided Petitioner with its witness and exhibits lists in December. Petitioner has not filed any witness list in accordance with the Order of Pre-hearing Instructions entered October 14, 2005. On March 22, 2006, Respondent filed a Motion to Quash Subpoenas, together with a request that a hearing be held on the Motion that same day. A telephonic hearing was conducted on March 22, 2006, and an Order Granting Respondent's Motion to Quash Subpoenas was entered. During the course of that telephonic hearing, Petitioner indicated that he might not come to the hearing. In response to that statement, the undersigned explained to Petitioner that it was up to him whether he attended the hearing, dismissed his petition for relief, or withdrew his request for a hearing. The undersigned explained to the parties that the hearing would go forward as scheduled, that Petitioner had the burden of proof in this proceeding, and that not appearing or presenting evidence would prevent him from meeting his burden of proof. After normal business hours on March 22, 2006, and therefore on March 23, 2006, Petitioner filed a Facsimile Letter to Judge Rigot. Although somewhat confusing, the Letter appears to re-argue points previously argued and memorialize Petitioner's understanding (and misunderstandings) of what transpired during the telephonic hearing on March 22, 2006. At 9:30 a.m., on March 24, 2006, Respondent's attorney and its witnesses were present for the scheduled final hearing. The undersigned waited for 35 minutes before opening the record and almost 10 minutes more before closing the record, with no appearance by Petitioner or anyone on his behalf.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Petitioner failed to meet his burden of proof and dismissing his Petition for Relief. DONE AND ENTERED this 29th day of March, 2006, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 2006. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Adam Killick Post Office Box 18331 Panama City, Florida 32417 M. Brenk Johnson Winstead Sechrest & Minick, P.C. 1201 Elm Street, Suite 5400 Dallas, Texas 75270
The Issue The issue is whether Respondent, Ed DePuy, committed the following violations as alleged in the Ethics Commission's Order Finding Probable Cause dated December 9, 2009, and the Supplemental Order Finding Probable Cause dated September 8, 2010: Whether Respondent violated s ection 112.3143(3)(a), Florida Statutes, regarding a July 11, 2006, vote/measure which affected a real estate development in which Respondent had an interest. Whether Respondent violated section 112.3143(3)(a) regarding an August 22, 2006, vote/measure which affected a real estate development in which Respondent had an interest. Whether Respondent violated s ection 112.3143(3)(a), regarding a January 9, 2007, vote/measure which affected a real estate development in which R espondent had an interest. Whether Respondent violated s ection 112.3143(3)(a) regarding a March 13, 2007, vote/measure which affected a real estate development in which Respondent had an interest. Whether Respondent violated a rticle II, section 8 of the Florida Constitution by failing to disclose income received in 2007 on his 2007 CE Form 6, Full and Public Disclosure of Financial Interests. Whether Respondent violated s ection 112.3143(3)(a) regarding a January 9, 2007, vote/measure which would inure to the special private gain or loss of a principal by whom Respondent was retained or to the special private gain or loss of the parent organization or subsidiary of a corporate principal by which Respondent was retained. Whether Respondent violated s ection 112.3143(3)(a) regarding a March 13, 2007, vote/measure which would inure to the special private gain or loss of a principal by whom Respondent was retained or to the special private gain or loss of the parent organization or subsidiary of a corporate principal by which Respondent was retained. h. Whether Respondent violated article II, section 8 of the Florida Constitution, by failing to disclose a secondary source of income received in 2007 on his 2007 CE Form 6, Full and Public Disclosure of Financial Interests.
Findings Of Fact Respondent served as a member of the Leon County Commission (LCC) from approximately June 2001 to December 2002 as an appointed official, and from November 2004 until November 2008 as an elected official. Respondent is subject to the requirements of Part III, chapter 112, Florida Statutes, the Code of Ethics for Public Officers and Employees, for his acts and omissions during his term as a member of the LCC. Centerville Farms is a planned community development consisting of 975 acres with plans for 200 residential units. Centerville Conservation Group, LLC (CCG) and Centerville Conservation Group, II, LLC (CCG II) are the owners of Centerville Farms, each owning an undivided one-half interest in the entire parcel. The development utilizes a clustering plan by which approximately 70 percent of the property is held in conservation easements, and the lots are reduced in size and clustered in closer proximity to accommodate the conservation lands. Centerville Farms' Planned Unit Development (PUD) was approved by the LCC in 2004, prior to any of the votes at issue in this case. Legal interest in CCG and CCG II is held by Jon Kohler (25%) and Hurley Booth, Jr. or a trust controlled by Mr. Booth (75%). Phase 1 of Centerville Farms contains 91 lots. Phases 2 through 4 of Centerville Farms contain 109 lots. The LCC's attorney, Herb Thiele, testified that in 2002 or 2003, the Leon County Comprehensive Plan and land use map were amended to allow conservation subdivisions in certain land use categories. In 2004, Centerville Farms underwent an extensive process of governmental review and approval as a PUD. Mr. Thiele testified that a PUD constitutes a rezoning of the subject property and is a designation generally applicable only to mixed-use developments. Though Centerville Farms is a single-use residential development, the County required a PUD because of the configuration of the lots and of the overall development. On October 12, 2004, the LCC passed Ordinance No. 04-31, which rezoned the property and approved the Centerville Farms PUD. The ordinance and documents referenced therein established the zoning and the preliminary site plan including all substantive elements of the Centerville Farms development, including the fact that it was to consist of a total of 200 lots. Respondent was not serving on the LCC when the Centerville Farms PUD was approved. After the PUD approval, Centerville Farms underwent a Type B site review in accordance with Section 10-7.404 of the Leon County Code of Ordinances (Leon County Code). This review finalized the substantive elements of the development, including the size, location and configuration of each of the 200 building lots, the conservation easements, and the infrastructure improvements. The finalization of the Centerville Farms plans through the Type B site review was part of the PUD process and did not require a vote of the LCC aside from the initial passage of Ordinance No. 04-31. The Development Review Committee approved Centerville Farms as a Type B site and development plan on January 23, 2006. Respondent was not involved with the Type B site review of the Centerville Farms project. The Centerville Farms PUD and plats showed that the development would have ingress and egress from Centerville Road and from Pisgah Church Road. The latter road was at the time a red clay dirt road. Mr. Thiele testified that, in a development with the expected traffic volume of Centerville Farms, the County normally requires the developer to ensure access from a paved public road. Ordinance No. 04-31 provided that the LCC should "investigate the traffic impacts upon Pisgah Church Road, and the safety implications that may necessitate paving a portion or all of Pisgah Church Road." The LCC completed a study of this issue in 2005 and then entered into an agreement with CCG and CCG II that required the companies to pave the road, and to donate funds to Leon County to contribute toward repaving when such became necessary. Mr. Thiele testified that this agreement was made in late October 2005.2/ Mr. Thiele testified that once the ordinance was passed and the PUD had been adopted by the LCC, the developer had substantive property rights in the PUD approval. Once the PUD was approved, the developer could begin making preliminary site improvements. Mr. Thiele testified that the LCC had the discretion to approve or deny the development at the PUD approval stage. The adoption of Ordinance No. 04-31 rendered the subsequent approval of the plats for Phases 1 through 4 of the project ministerial acts that required no policymaking or discretionary review. A plat either meets the criteria set forth in the Leon County Code and Part I of chapter 177, Florida Statutes, or it does not. If the plat meets those criteria, the developer could initiate a mandamus action against the County if for some reason the LCC refused to approve it. Mr. Thiele testified that in his 21 years as the Leon County attorney, he has never seen the LCC flatly deny the approval of a plat. There may be a problem with the plat, such as an incorrect survey or an unaccounted-for property interest, but such problems involve only a temporary delay in approval pending cure of the problem. On March 17, 2005, Respondent entered into a contract to purchase Lot 60 (since renumbered as Lot P2) in Phase 1 of Centerville Farms for $170,000. Respondent closed on Lot P2 in October 2006. In June 2007, Respondent sold Lot P2 to Chris Kise for $225,000, a gain of $55,000. Respondent did not disclose the income from the sale of Lot P2 on his 2007 Form 6. On May 16, 2005, Respondent entered into a contract to purchase Lot 184 (since renumbered as Lot I1) in Phase 2 of Centerville Farms for $210,000. Respondent closed on Lot I1 in October 2007. Jon Kohler, the 25 percent member of CCG and CCG II, was the broker in charge of marketing Centerville Farms. Respondent understood that Mr. Booth had an interest in the companies developing Centerville Farms, but Respondent dealt exclusively with Mr. Kohler and sales director Erica Glidewell in purchasing his two lots. On July 11, 2006, the LCC considered Agenda Request 27, which sought approval of the plat of Phase 1 of Centerville Farms and a performance agreement and surety device in the amount of $2,045,076.26. The staff's agenda request noted that the project had been approved as a Type B site and development plan, and that the portion being platted consisted of 438.92 acres containing 89 lots.3/ The agenda request further provided: As of the date of the preparation of the agendum, staff reviews have not been completed by the appropriate agencies and departments. The developer is requesting the Board's approval prior to final review being completed due to date sensitive contractual obligations coupled with the next scheduled Board meeting not being until August 22. Staff will not record the plat until final review and approval by all appropriate departments. Staff recommends the Board accept the plat and approve recording upon completion of staff's review. Should the review necessitate a change in the plat, staff will resubmit it to the Board for ratification. Mr. Thiele testified that the approval of the plat made no material change in the number or size of the lots or in their configuration as against the PUD adopted in 2004 by Ordinance No. 04-31. The approval of the plat created no new rights or obligations for the developer. Mr. Thiele also stated that no one other than the developer may take legal title to a lot prior to approval of the plat.4/ If a lot is conveyed prior to plat approval, the County considers it an illegal subdivision of the property and will not issue a building permit for the lot. Mr. Thiele testified that the purpose of a performance agreement and surety device is to ensure that the approved infrastructure is built in accordance with the approved plat. Since the early 1990s, the Leon County Code has required the developer to post a surety device. The County's professional engineering staff determines the amount of the surety device, which by ordinance must cover 110% of the estimated cost of completion.5/ The staff monitors the project as the developer completes the infrastructure. As the infrastructure moves toward completion, it is typical for the developer to request a reduction in the amount of the surety device to reflect the reduction in the remaining risk that the project will not be completed. Mr. Thiele testified that the performance agreement is on a form that the County sends to the developer to accompany the surety device. He stated that Leon County has been using the same performance agreement form for at least 19 years. Respondent voted to approve Agenda Request 27 on July 11, 2006. On August 22, 2006, the LCC considered Agenda Request 35, which sought acceptance and ratification of a conservation easement for Phase 1 of the Centerville Farms project. In the agenda request, staff explained that the conservation easement was required by the County's Growth and Environmental Management department as part of the site plan review and permit process, but was inadvertently left out of the July 11, 2006, agenda package. Mr. Thiele testified that conservation easements are found in section 704.06, Florida Statutes, and that the statutory requirements for conservation easements are mirrored in the Leon County Code.6/ The conservation easement is granted by the property owner to Leon County, and gives the development rights in the property to the County for the purpose of keeping the property in its natural state in perpetuity. Mr. Thiele further testified that the conservation easement approved in this vote and those approved on January 9, 2007, were generally approved in Ordinance No. 04-31, though the precise locations of the easements were approved by staff during the Type B site review. The site plan is merely a refinement of the approval contained in the PUD. Mr. Thiele testified that, because the easement requirement was part of Ordinance No. 04-31, the votes on the conservation easements on August 22, 2006, and January 9, 2007, were ministerial votes. The LCC's discretion regarding the easements was limited by the previously approved PUD. If the conservation easement meets the requirements of the PUD and the Type B site approval, the LCC lacks the discretion to disapprove it. The LCC's vote was necessary to formally accept the easement on behalf of Leon County because staff is not permitted to accept property on behalf of Leon County. The Advocate presented the testimony of Neal R. Boutin, Jr., who was accepted as an expert in real estate appraisal. Mr. Boutin examined whether the existence of a conservation easement within a residential subdivision in Leon County has an impact on the value of a single family lot. Mr. Boutin compared Centerville Farms to four other developments in the immediate area. He conducted a market survey of real estate brokers and financial institutions. While noting that the wide range of variables from property to property made it impossible to attribute a specific value to the conservation easement, and that his market survey yielded no specific findings, Mr. Boutin nonetheless concluded, based on his "experience and common sense," that the easement would have some positive impact on the value of a lot.7/ Respondent voted to approve Agenda Request 35 on August 22, 2006. At all times relevant to this proceeding, Respondent maintained his practice as a governmental consultant/lobbyist, either as an individual contracting directly with clients or as the employee of a lobbying firm, in addition to serving on the LCC. At some point between August 22, 2006, and October 17, 2006, Respondent was retained by three Booth companies: Boothco Hansford, LLC, (Boothco Hansford), Boothco Coastal, LLC, (Boothco Coastal), and Booth Holdings Booth Trust, LLC (Booth Holdings Booth Trust). Respondent worked for these entities until at least May 3, 2007. Respondent provided lobbying services regarding Booth developments in Franklin and Jefferson Counties. These three companies were indisputably Respondent's principals for purposes of section 112.3143(3)(a). Boothco Hansford, Boothco Coastal, and Booth Holdings Booth Trust, were lawfully organized, and remained in existence at the time of the hearing. Each company did business and owned property in its own name. None of these companies owned shares of either CCG or CCG II, nor did CCG or CCG II own shares in these three companies. Mr. Booth, or a trust of which he is a trustee, has a controlling interest in Boothco Hansford, Boothco Coastal, LLC, and Booth Holdings Booth Trust. Robert Williams is an attorney who acted as the chief executive officer of the Booth companies from 2005 through 2008. Mr. Williams testified that during his tenure there were approximately 100 companies operating under the Booth aegis, and that real estate development was their main business. Mr. Williams was in charge of the day-to-day operations of the Booth companies. He reported directly to Mr. Booth, but testified that Mr. Booth left most of the operational decisions to him. Mr. Booth made the final decisions on important strategic issues. Mr. Booth is a personal friend of Respondent, and he made the decision to hire Respondent. However, once Respondent began working, he reported to Mr. Williams.8/ Respondent reported to Mr. Williams in person every month or so and met with project engineers more frequently.9/ Respondent believed himself to be employed by Boothco Hansford, Boothco Coastal, and Booth Holdings Booth Trust in their corporate capacities. Respondent was never under the impression that he was personally employed by Mr. Booth. Neither Respondent nor Mr. Booth recalled having any conversations with each other regarding the Jefferson and Franklin County projects, and both denied ever discussing the Centerville Farms project with each other. Mr. Williams did not recall that Respondent was ever asked to perform services for any project in Leon County. Mr. Williams never heard any discussions with Respondent about Centerville Farms. Mr. Williams testified that Respondent warned him at the outset of his hiring that he would have to recuse himself "from anything that we had before the County Commission." Respondent testified that he never worked for any Booth entity that was doing business in Leon County, and never believed that he had been retained by CCG or CCG II. Respondent stated that his only involvement with CCG or CCG II involved the purchase of his lots from Mr. Kohler and Ms. Glidewell. Respondent understood that Mr. Booth had an ownership interest in Centerville Farms, but was uncertain of its nature. Respondent and Mr. Booth both denied ever having private discussions about Centerville Farms. Mr. Williams explained that at the time Respondent was hired, the Booth companies were reassessing their projects in light of the deteriorating economy. Respondent was hired to help the Booth companies "touch base" with local government officials in Jefferson and Franklin counties to gauge the best uses for their properties during the downturn. Boothco Hansford was the company formed to own and oversee the Bailey's Mill development in Jefferson County. Boothco Coastal was formed to own and oversee the Eastpoint development in Franklin County. Mr. Williams stated that Respondent did not "lobby" on behalf of Boothco Hansford and Boothco Coastal, but that he did "talk to people" about the projects. Respondent was paid through the Booth companies' central management system. The Booth companies' controller, Nicolo Calabro, testified that he kept separate bookkeeping entries for each Booth company, but that each company did not have a separate bank account. All payments to Respondent for Booth company work were made through Booth Holdings Booth Trust, and the accounting software indicated for which company the work was done. The charges for the work would be attributed to the company that owned the real estate, and Respondent would receive a 1099 from that company. Respondent's connection to Booth Holdings Booth Trust was limited to receiving payments through this central accounting system. The record indicates that Respondent received six payments of $3,000 each from an account of Booth Holdings Booth Trust. The payments were dated October 17, 2006, November 30, 2006, January 18, 2007, March 1, 2007, April 5, 2007, and May 3, 2007. The four checks received by Respondent during 2007, totaled $12,000. The 1099s received by Respondent in 2007 indicated that the payments were accounted for as follows by the Booth entities: $8,100 from Boothco Hansford, $3,000 from Booth Holdings Booth Trust, and $900 from Boothco Coastal.10/ On November 14, 2006, the LCC considered Agenda Request 29, which was a status report on Leon County's agreement with CCG and CCG II regarding the provisions for the replacement of the pavement on Pisgah Church Road. The specific issue was the amount that the developer should be required to deposit with the County to pay for the anticipated repaving of the road eight to ten years after the initial use of "open graded cold mix" (OGCM) asphalt to pave the road. Mr. Thiele testified that the County's usual practice is to require the developer to pave the road with regular asphalt. However, in settling previous litigation over development, the County had agreed not to allow any more paved roads within Bradfordville, an area that includes the Centerville Farms property. Mr. Thiele testified that the County concluded that it could comply with the settlement by requiring Centerville Farms to use OGCM, which is drivable but more porous than regular asphalt. Because OGCM does not have the same life expectancy as regular asphalt, the County and the developer agreed in October 2005 that the developer would pay for one repaving of Pisgah Church Road. See Finding of Fact 10, supra. The agenda item permitted the LCC to consider the developer's request that the $500,000 amount of the deposit be reduced, in consideration of the fact that the County would hold the money in an interest-bearing account for eight to ten years preceding the need to repave the road. The motion was for the LCC to direct staff to negotiate with the developer to arrive at a number reflecting the amount of the deposit necessary to provide for repaving in eight to ten years' time. Respondent recused himself from voting on Agenda Request 29 on November 14, 2006. As required by law, Respondent filed a Form 8B, Memorandum of Voting Conflict for County, Municipal, and Other Public Officers on November 27, 2006. The Memorandum of Voting Conflict stated that a measure came before the LCC that inured to the special gain or loss of "Booth Properties," by whom Respondent was retained as a consultant. At the final hearing, Respondent testified that his rationale for recusing himself had less to do with his representation of the Booth companies outside of Leon County than with his contracts to purchase two lots in the Centerville Farms development. Respondent stated that the paving of Pisgah Church Road could not help but improve the value of the lots in Centerville Farms, and that he did not wish to appear to be voting to improve the value of his own property. Respondent testified that he consulted with Mr. Thiele prior to the November 14, 2006, Commission meeting, and Mr. Thiele advised him to err on the side of caution to avoid anything that might appear inappropriate.11/ Respondent testified that Mr. Thiele prepared the Memorandum of Conflict for his signature. Respondent acknowledged that the Memorandum of Conflict mentioned his employment with the Booth companies but failed to mention Respondent's interest in the lots in Centerville Farms. He testified that he signed the Memorandum because his arrangement with the Booth companies was also a valid reason to recuse himself under the circumstances.12/ On January 9, 2007, the LCC considered Agenda Request 18, requesting approval of seven conservation easements for Phases 2, 3, and 4 of Centerville Farms. The staff analysis of the proposal stated as follows: The proposed conservation easements place the landowner and all other subsequent landowners on legal notice that development is prohibited in the protected areas. Acceptance of the conservation easements will require County approval. The proposed easements do not create any County maintenance responsibility or any other County responsibility for the easements. The property owner will still own and protect the land as appropriate under conditions of the proposed easements. Respondent voted to approve Agenda Request 18 on January 9, 2007. On March 1, 2007, Respondent accepted a salaried position as an employee of SCG Governmental Affairs, LLC (SCG), a Tallahassee lobbying firm. Under the employment agreement, Respondent brought his existing clients to SCG, and they became clients of SCG. All work performed on behalf of those clients was billed by SCG, and any receivables due to Respondent from those clients became the property of SCG. In accordance with the employment agreement, Respondent signed over to SCG the checks he received from Booth Holdings Booth Trust on April 5, 2007 and May 1, 2007. These checks were deposited into SCG's bank account and reported as income by SCG.13/ Respondent's 2007 income from the Booth companies was therefore not the $12,000 indicated on the original 1099s, but $6,000 from the checks issued on January 18 and March 1, 2007, prior to Respondent's employment with SCG.14/ As noted at Finding of Fact 47, supra, $8,100 of the $12,000 indicated on the original 1099s was attributable to Boothco Hansford. However, the $3,000 check dated April 5, 2007, was part of that $8,100, meaning that it was actually the property of SCG. The May 3, 2007, check for $3,000 was entirely attributable to Booth Holdings Booth Trust. It, too, was the property of SCG. Therefore, Respondent's actual 2007 income from these entities was $5,100 from Boothco Hansford and $900 from Boothco Coastal. On March 13, 2007, the LCC considered Agenda Request 16, which involved the following: For Phase 1, a request by CCG that Leon County release the existing $2,045,076.26 performance agreement and surety device and replace it with one totaling $532,324. The County's Public Works Engineering division had inspected the subdivision and reviewed the construction estimate for completion of the remaining infrastructure and concurred with the estimated amount for the replacement performance agreement and surety device; For Phase 2, a request by CCG that the plat be recorded. Because Phase 2 had complete infrastructure within the development proper, no performance or maintenance agreements or surety devices were required. However, a portion of Pisgah Church Road, west of Centerville Road, would be affected by the development. Therefore, the plat included a dedication of additional right-of-way along Pisgah Church Road. The development's permit requirements also mandated that Pisgah Church Road be improved by utilizing open graded cold mix asphalt (OGCM). Initially, the improvements to Pisgah Church Road were to be completed prior to plat approval. The proposed amendment to the CCG/County agreement allowed for the plat to be approved with the guarantee that the Pisgah Church Road construction would be completed by a date certain, enforced by a $300,000 public construction bond. CCG further agreed to contribute an additional $300,000 to the County for future costs of repairing and replacing the OGCM. After review and comment from various divisions of the County, Commission staff recommended approval of the plan in conjunction with the $300,000 public construction bond for the Pisgah Church Road improvements, and recording of the plat contingent upon compliance with all provisions of the amended agreement, including issuance of operating permits, receipt of payment of the $300,000 OGCM repair and replacement contribution, and delivery of the $300,000 bond for the Pisgah Church Road construction; For Phases 3 and 4, a request by CCG that the plats be recorded. After review and comment from various divisions of the County, Commission staff recommended approval of the plats in conjunction with construction and infrastructure performance agreements in the amount of $400,165.00 for Phase 3 and $694,472.00 for Phase 4. Recording of the plats would be contingent upon compliance with all provisions of the amended CCG/County agreement and delivery of the surety devices associated with the Phase 3 and Phase 4 performance agreements. Mr. Thiele testified that the vote to record the plats for Phases 2-4 was similar to the July 11, 2006, vote to approve the recording of the plat for Phase 1, in that Phases 2-4 had also been approved as part of Ordinance No. 04-31 and were subject to the same Type B site review approval process. The vote to record the plats for Phases 2-4 was likewise ministerial and non-discretionary. Mr. Thiele stated that the March 13, 2007, vote changed nothing regarding the configuration or size of Centerville Farms. The approved plats were identical to the plan of the Type B review. The plat approval created no new rights for the developer and did not allow the developer to do anything not already approved by the Type B site review. Mr. Thiele testified that the vote to approve performance agreements and surety devices for Phases 3 and 4 involved the same principles and was taken pursuant to the same ordinances as the vote to approve the performance agreement and surety device for Phase 1, discussed at Findings of Fact 21 and 22, supra. Mr. Thiele testified that the vote to release the existing $2,045,076.26 performance agreement and surety device and replace it with one totaling $532,324 simply reflected that the developer had completed the bulk of the infrastructure requirements. After inspecting the project, County staff applied the same formula and the same 110 percent multiplier to arrive at a surety device that insured completion of the remaining infrastructure. Mr. Thiele testified that such a reduction in the amount of the surety is typical in large scale developments with surety devices in excess of $1 million. It indicates that infrastructure has been completed, not that the infrastructure requirements are being lessened. Mr. Thiele believed that the vote to reduce the surety was ministerial, in that the same standards were applied to the substituted surety device as were applied to the original surety device. Mr. Thiele testified that the reduction in the amount of the OGCM replacement deposit from $500,000 to $300,000 reflected the fact that the replacement of the OGCM would not occur for about ten years given normal usage, and that $300,000 held at an average interest rate would cover the cost of replacement in ten years' time. See Finding of Fact 50, supra. Mr. Thiele stated that the LCC was recognizing that the original $500,000 estimate was too high. Respondent voted to approve Agenda Request 16 on March 13, 2007. The parties to the instant case stipulated that "there is no legal obligation for a developer/landowner to disclose the number of lots in a subdivision that are under contract, or the number or identity of persons holding contracts. There was no evidence that Respondent had any idea how many Centerville Farms lots were under contract at the times he cast his votes on July 11, 2006, August 22, 2006, January 9, 2007, and March 13, 2007. The number of lots under contract during the relevant times was disclosed during the discovery process by Ms. Glidewell, and only after considerable effort on her part to piece together the information. At the time of the July 11, 2006, and August 22, 2006, votes, 90 of the 91 lots in Phase 1 were under contract for sale to 41 persons or entities. These numbers do not include any transfers or assignments of contracts from the original purchaser to a third party. On March 17, 2005, Respondent entered a contract to purchase Lot P2 in Phase 1, and closed on the lot in October 2006. At the time of the January 9, 2007, and March 13, 2007, votes, 31 of the 109 lots in Phases 2 through 4 were under contract for sale to 26 persons or entities. These numbers do not include any transfers or assignments of contracts from the original purchase to a third party. On May 16, 2005, Respondent entered a contract to purchase Lot I1 in Phase 2, and closed on the lot in October 2007. Respondent testified, without contradiction, that all four of the votes at issue in this proceeding were on the LCC's consent agenda. The "consent agenda" consists of non- controversial items that are voted on as a group. Consent agenda items are those that require the approval of the LCC but need no discussion because they are not controversial. Consent items require unanimous consent of the LCC members. A single member may have an item removed from the consent agenda and placed on the regular agenda if he believes it merits discussion prior to voting. Respondent admitted that he failed to report the income related to his sale of the lot in Phase 1 on his 2007 CE Form 6, Full and Public Disclosure of Financial Interests. Respondent's gain from the sale was $55,000.15/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission issue a public report finding: That the evidence presented at the public hearing in this case was insufficient to establish clearly and convincingly that Respondent's votes on July 11, 2006, November 14, 2006, January 9, 2007, and March 13, 2007, inured to his special private gain or loss in violation of section 112.3143(3)(a); That the evidence presented at the public hearing in this case was insufficient to establish clearly and convincingly that Respondent's votes on January 9, 2007, and March 13, 2007, inured to the special private gain or loss of a principal by whom Respondent was retained or to the special private gain or loss of the parent corporation or subsidiary of a corporate principal by which Respondent was retained in violation of section 112.3143(3)(a); That the evidence presented at the public hearing in this case was insufficient to establish clearly and convincingly that Respondent violated article II, section 8 of the Florida Constitution by failing to disclose a secondary source of income received in 2007 on his 2007 CE Form 6, Full and Public Disclosure of Financial Interests; and That the evidence presented at the public hearing in this case established clearly and convincingly that Respondent violated article II, section 8 of the Florida Constitution by failing to disclose income received in 2007 on his 2007 CE Form 6, Full and Public Disclosure of Financial Interests, and that such violation merits a civil penalty of $1,000. DONE AND ENTERED this 11th day of August, 2011, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 11th day of August, 2011.
The Issue Whether Petitioner's application for a license to carry concealed weapons or firearms should be granted by the Department of State, Division of Licensing (hereinafter referred to as the "Department")?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: In November of 1988, following his entry of a guilty plea to the charge, Petitioner was convicted in the United States District Court for the Southern District of Florida of making a "false statement in obtaining a U.S. Passport, [in violation of] Title 18 USC 1542." He was "committed to the custody of the Attorney General of the United States or his authorized representative for confinement for a period of five (5) years and [given] a fine of $1,000.00." The "execution of said sentence of confinement," however, was suspended and Petitioner was "placed on probation for a period of two (2) years." Dave Todd was Petitioner's probation officer. Petitioner successfully completed his probation. On September 17, 1993, Petitioner submitted to the Department an application for a license to carry concealed weapons or firearms.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order denying Petitioner's application for a license to carry concealed weapons or firearms. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of April, 1994. STUART M. LERNER 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 20th day of April, 1994.
The Issue Whether Respondent is guilty of an unlawful employment practice, to wit: disparate employment conditions and termination on the basis of Petitioner's race (African- American).
Findings Of Fact Petitioner is an African-American female. Petitioner was first associated with Escambia County as an employee of a firm of certified public accountants, to which firm Escambia County had outsourced an internal audit of a specific County project for January 1999 through February 2000. In that capacity, Petitioner had been a regular employee of an independent contractor working for the County. Thereafter, Petitioner was hired as an internal audit consultant to work directly for the Clerk of the Circuit Court in and for Escambia County from February 2000 through April 2001. This was a regular employee position with the County. Petitioner apparently resigned this position because of what she perceived to be a hostile supervisor, Jean Kassab, Acting Director of Administrative Services for the County, or due to what Petitioner perceived as a hostile work environment, unrelated to race. Petitioner was hired by Respondent Escambia County Board of County Commissioners (BCC) as an unclassified, at-will employee for the specially-created position of Inspector General (IG), with a start date of October 8, 2001. It is with regard to this position that she seeks relief in this case. On August 2, 2001, Commissioner Banjanin had expressed his desire to create the position of IG to act as a liaison to the BCC in office at that time. Apparently, there was some mistrust by Banjanin and other Commissioners of the way money was being utilized throughout County government, including expenditures by the Clerk's Office. Also, there was mistrust by Commission members of each other, and some Commissioners had a desire to use an IG who reported only to the BCC to"go behind" each other's financial actions. On September 20, 2001, the BCC then in office voted unanimously to create the IG position. That BCC was composed of four Caucasian males and one African-American male. Prior to the September 20, 2001, BCC vote, there was no discussion or at least no significant discussion, about whether creating an IG position would amount to duplicating internal audits and services already provided by the Clerk's Office. At the BCC's request, Wanda McBrearty, Deputy Finance Director of the Clerk of the Court, prepared a description of the duties of the IG. She did not recall any discussions at that time concerning whether the Clerk's Office could provide the same services as the IG. Upon the testimony of Ernie Lee Magaha, Clerk of the Court, and George Touart, who was hired as County Administrator in late April 2002, it is found that the IG's job description duplicated services that the Clerk of the Circuit Court is required to provide, pursuant to Article VIII of the Florida Constitution. Petitioner entered into her at-will job as IG on or about October 8, 2001, at a salary of approximately $75,000.00 per year. Petitioner testified that she immediately met with resistance and unfriendliness on behalf of members of the Clerk's Office, but she described nothing that was overtly racial. Most of the behavior she described was, if anything, motivated by resentment of Petitioner's high salary and position or motivated by apprehension of which projects and whom she might audit. Petitioner also related that she suffered emotionally due to written and oral opposition by Board staff, local media, the general public, and eventually County Commissioners. On the whole, these oral and written attacks appear to overwhelmingly fall in the category of opposition to paying an IG such a high salary for duplicative efforts, or opposition simply to paying any County employee such a high salary. Some attacks on Petitioner clearly involved attacking the Commissioners who had voted for creation of the IG position. Some critics also attacked Petitioner's personal integrity and competence on the past out-sourced audit she presented while she had been employed by the firm of certified public accountants, or on other grounds. However, petty politics, rather than race, seems to have been the motive, as well as the expression, of these personal attacks. On May 10, 2002, the BCC's make-up changed. Without belaboring the history of the gubernatorial removal for cause of some old BCC members and appointment of some new BCC members, it is enough to point out that the "new BCC" retained only Commissioner Banjanin. The "new" BCC was then composed of one African-American female, three Caucasian males, and one Caucasian female. One of the last acts of the "old BCC" had been to hire George Touart as its full-time, professionally qualified County Administrator. Mr. Touart is Caucasian. He was highly qualified by education, training, and experience for the position of County Administrator. Mr. Touart never attended a meeting of the old BCC and never discussed the position of IG with any of its members. Mr. Touart's practical administrative experience led him to perform the equivalent of a process and position inventory of all Escambia County positions and functions. That inventory revealed, and Mr. Touart recognized, that there was a duplication of services assigned to Petitioner as IG, and those services assigned by law to the Clerk of the Court. He also determined that the County's Office of Economic Development was duplicative of the marketing services provided by the local Chamber of Commerce. He further discovered that many man-hours were being wasted by each County Division replying to citizens and media about the same subjects and, even so, correct information was not always being provided. He felt that both problems could be eliminated and that eliminating those problems would also reduce much of the local political wrangling and media frenzy. Therefore, Mr. Touart created a Public Information Office and conducted a nationwide search for a Public Information Officer. He then hired the best applicant. There was no evidence that Petitioner was qualified in that field or that she applied. Dee Dee Ritchie was the County's Caucasian, female Director of Economic Development, a position of similar status and salary to Respondent's position as IG. That position also had been created by the old BCC. Petitioner identified Ms. Ritchie as an employee of the County who was similarly situated to herself. Mr. Touart discussed with Ms. Ritchie his view that her job as Director of Economic Development was duplicative of the functions of the local Chamber of Commerce. He told her that he was going to seek the abolition of her $75,000.00 per year position. He offered her a position with the County's Department of Environmental and Neighborhood Services, where she could use her professional education, training and experience as an educator, but Ms. Ritchie declined and resigned. It was not shown that Petitioner was qualified for the position offered Ms. Ritchie or that it paid $75,000.00 per year. When, prior to May 10, 2002, the Governor of Florida had suspended some of the "old Commissioners," Mr. Touart had assisted some of those old Commissioners' aides in making lateral transfers to more secure similarly situated positions, but no aide was making $75,000.00 per year, and none of them were moved to $75,000.00 per year positions. Mr. Touart discussed with Petitioner his view that her job was duplicative of duties constitutionally imposed on the Clerk's office. It is not clear if he told Petitioner he was going to seek to abolish her position, but clearly, she understood that was his intent. There were no similarly situated $75,000.00 per year jobs within the County to which Petitioner could be reassigned. However, there is no dispute that Mr. Touart suggested that Petitioner check with the County's Human Resources Director for other employment. He also spoke with Ms. McBrearty about hiring Petitioner back in the Clerk's Office. However, Mr. Touart made no commitment of further employment to Petitioner, and she made no commitment to him to take a lesser County job if one were offered. Petitioner agreed at hearing that Mr. Touart could have had budget considerations in mind in deciding to abolish her position. Ms. McBrearty discussed with Mr. Magaha, Clerk of the Court, the possibility of hiring Petitioner. Due to the "political fallout" and Petitioner's connection with the suspended commissioners, Mr. Magaha did not think it appropriate for him to hire Petitioner. Petitioner agreed that Ms. McBrearty's reluctance to recommend hiring her was due to "political fallout" from Petitioner's connection with the suspended commissioners and not because of racial prejudice. Mr. Touart recommended to the new BCC that it abolish the IG position at the same time he recommended abolishing the Department of Economic Development. On June 20, 2002, the new BCC voted unanimously to abolish the IG. Petitioner was informed of the vote by a letter dated June 21, 2002, from Mr. Touart. The letter informed Petitioner that the termination of her position would take place at the end of 90 days. This was the County's standard practice for termination of unclassified service. In an e-mail dated July 1, 2002, to Janice Kilgore, who had been Acting County Administrator prior to Mr. Touart's appointment, Petitioner announced her intent to leave Escambia County immediately and to set up her own accounting practice in Fort Walton Beach, Florida. Indeed, Petitioner had hinted to Mr. Touart at their earlier interview (see Findings of Fact 22- 24) that she wanted to leave the County and go back to Fort Walton Beach, to "hang up her shingle." In response to Petitioner's e-mail, Mr. Touart informed Petitioner that under the circumstances, she would be given 90 days' severance pay instead of 90 days' notice and makeshift employment, and that her last day of employment would be July 2, 2002. Petitioner established no damages as a result of unemployment.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief and Charge of Discrimination herein. DONE AND ENTERED this 8th day of June, 2005, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 8th day of June, 2005. COPIES FURNISHED: Adriane L. Hankerson 8908 Glade Spring Lane Apartment 203 Charlotte, North Carolina 28216 Charles V. Peppler, Esquire Escambia County Attorney's Office West Government Street, Room 411 Pensacola, Florida 32502 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue in this case is whether Petitioner is entitled to an exemption as a charitable institution or as a military museum fundraiser within the respective meanings of Sections 212.08(7)(o)2.b or (l), Florida Statutes (1997). (All Chapter and Section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner is a non-profit corporation incorporated in Florida. Respondent is the state agency responsible for the issuance of certificates of exemption from sales and use tax in accordance with the requirements of Chapter 212. Petitioner applied for a certificate of exemption on December 22, 1997. On April 22, 1998, Respondent denied Petitioner's application. The application and denial are based on information from Petitioner's 1997 tax year. Petitioner is not a charitable organization within the meaning of Section 212.08(7)(o)2.b. Petitioner is qualified as a nonprofit corporation pursuant to Section 501(c)(3) of the Internal Revenue Code. However, Petitioner failed to show by a preponderance of the evidence that its sole or primary purpose satisfies the requirements of Section 212.07(o)2.b. and Florida Administrative Code Rule 12A-1.001(3)(g). (All references to rules are to rules promulgated in the Florida Administrative Code on the date of this Recommended Order.) Petitioner failed to show that in 1997 it provided a reasonable percentage of the services enumerated in Sections 212.08(7)(o)2.b.(I)-(VII) for free, or at a substantially reduced charge, to persons who are unable to pay for those services. Petitioner did not show that it raised funds for organizations that provide a reasonable percentage of the statutorily qualified services for free, or at a substantially reduced charge, to persons who are unable to pay for those services. Petitioner asserts that it provides some portion of its computer time for qualified services and that Petitioner provides volunteers for other qualified services. However, Petitioner failed to show the value of the computer time, admitted that the value of the computer does not satisfy the 50 percent test in Rule 12A-1.001(3)(g), and was unable to quantify the amount or value of its volunteer services. Petitioner failed to show that it complied with the requirements of Rule 12A-1.001(3)(g). Petitioner did not show that more than 50 percent of its expenditures in 1997 directly related to statutorily qualified services provided by Petitioner to persons who cannot afford such services. Petitioner did not show that more than 50 percent of its expenditures directly related to raising funds for organizations that provide qualified services to persons who cannot afford those services ("qualifying organizations"). Petitioner's 1997 annual report shows that none of its expenditures were made for statutorily qualified services provided to persons who cannot afford those services. Similarly, the report did not show that more than 50 percent of expenditures were made to raise funds for qualifying organizations. Petitioner is not a military museum fundraiser within the meaning of Section 212.08(7)(l). Petitioner admitted that it made no cash contributions to military museums during 1997. Petitioner claims that it allowed other organizations to use Petitioner's tax exemption under Section 501(c)(3) of the Internal Revenue Code to facilitate in-kind contributions to military museums or to related organizations which, in turn, contributed the items to military museums. The primary item Petitioner claimed to have obtained in this manner in 1997 was a Huey helicopter allegedly donated by the U. S. Army to Vietnam Veterans of Central Florida, Inc. ("Veterans Central"). Petitioner failed to show that the title to the helicopter ever passed from the U. S. Army to Petitioner or to any other organization designated by Petitioner to receive an in- kind contribution. Petitioner failed to show that either Petitioner or its designee otherwise obtained title to the helicopter or any other in-kind contributions. Petitioner claims that a contribution to Veterans Central is a contribution to Petitioner because the two organizations are members of the same group. The group purportedly operates as the Vietnam Veterans of Florida State Coalition (the "state coalition"). However, Petitioner failed to provide any documentary evidence which establishes the relationship between the two organizations or their membership in the state coalition. Petitioner admits that the two organizations have separate boards and that Petitioner does not control or own stock in Veterans Central as required in Sections 617.0601 and 617.0721 (providing that corporate members of a not- for-profit group have no voting rights and, unless otherwise provided in the articles of incorporation and by-laws, the directors of each corporation have sole voting rights for each corporation and do not have voting rights in other member corporations.)
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order denying Petitioner's application for a certificate of exemption. DONE AND ENTERED this 2nd day of November, 1998, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1998. COPIES FURNISHED: Larry Fuchs, Executive Director Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 Linda Lettera, General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 Ken Baker, President Vietnam Veterans of Florida Foundation, Inc. 1509 Tate Street Cocoa, Florida 32922 George C. Hamm, Assistant General Counsel Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314
