Findings Of Fact Petitioner was born in 1936. While on active duty in the United States Navy in 1955, he suffered an injury which subsequently led to the amputation of his left foot. When discharged from the Navy, his disability was rated by the Veterans Administration (VA) at 40 percent. Subsequent problems with the stump of the left leg, arthritis, and a spinal fusion led to VA disability increases, which disability rating at time of hearing was 100 percent. Petitioner applied for work with Delta Air Lines, Respondent, in 1966 and was employed as a reservations agent in Chicago. At this time his VA disability rating was 70 percent. In 1967 Petitioner, at his own request, was transferred by Respondent to Tampa, Florida. At this time Petitioner was able to move around the bay in which he worked with and without his crutches. In September 1979 Petitioner was hospitalized for stump revision and remained in an off-duty status until June 1980 when he returned to his position with Delta. At this time Petitioner carried out his duties as a reservation agent in a wheelchair. Following his return to work in 1981 Petitioner's performance of duty was marginal. Petitioner takes prescribed medication for pain. On one occasion the medication adversely affected his ability to perform his duties satisfactorily and he was told by his supervisor not to take medication at work. The doctor changed this prescription from 1-100 mg. daily to 4-25 mg. daily and Petitioner continued his medication as prescribed without further problems. On October 28, 1981, Petitioner was examined by Dr. Frazier, one of the physicians used by Delta for its employees. The purpose of this examination was to evaluate Petitioner's physical condition for continued employment. Report of this examination is contained in Exhibit 5 wherein Dr. Frazier concluded that Petitioner "has several progressive disabilitating diseases, that combined with his psychological state make him unemployable for Delta Air Lines. I would recommend because of his depression, amputation, hypertension, osteo-arthritis and spinal fusion problems that he be retired on disability." Respondent does not have a retirement for physical disability status. In lieu thereof it has short-term disability benefits and long-term disability benefits. Long-term disability benefits are calculated as a percentage of the employee's basic monthly salary less social security benefits the employee receives. Petitioner was in a long-term benefit status while recovering from stump revision in 1979-1980. Following Delta's receipt of the report of Dr. Frazier, Petitioner was sent home in a short-term disability status while the report was evaluated. Respondent subsequently advised Petitioner that he was qualified for sedentary work and directed him to return to his position with Delta Air Lines. Petitioner returned to work around June 1982 as a reservations agent. Fifteen or twenty reservation agents work in a "bay" where each has access to a telephone and computer terminal. These agents handle all reservation requests via telephone with no visual contact with the customers. They work an eight-hour shift with two 10 minute breaks and one-half hour off for lunch. While operating from his wheelchair, Petitioner usually took a station near the entrance to the bay which provided easier access for the wheelchair than a station farther down into the bay. He made no complaints about access to his station to Delta supervisory personnel. Reservation agents' telephone communications are monitored by supervisors on an intermittent basis to ensure the agent is carrying out his duties in a satisfactory manner and is providing proper information to the customers. In June 1972 Petitioner was placed on three months' probation. In September 1972 this probationary period was extended an additional three months. In July 1974 Petitioner was again placed on probation and given a "final chance" letter. In October 1977 he was given a letter for poor performance. Petitioner acknowledged that several times before 1982 he had been disciplined by Respondent but not fired. In December 1982 Charles Cortright, a retired architect, called the Tampa office of Delta Air Lines to get information on a flight to and from the West Coast interrupted with cruises while on the West Coast. Specifically, Cortright wanted to fly to Seattle, take a ferry trip to Alaska, perhaps two more sea cruises from West Coast ports, take a train from Seattle to San Francisco, and fly back to Tampa from San Francisco. He was referred to Petitioner, who quoted him a price of $278.00 on the air portion of this trip, but, since Petitioner did not think the cruises could be arranged by Delta, referred Cortright to a travel agency. Petitioner testified that he referred Cortright to three travel agencies located in the vicinity of Cortright's residence and did not specify the agency at which Petitioner's wife worked. Although Cortright testified that he was not referred to any one by name and did not know that Petitioner's wife worked at Tri-Cities Travel Agency, he went to Tri-Cities and his reservations were made by Malinda, who, in fact, was Petitioner's wife. It is likely that Cortright did not know that Malinda was Petitioner's wife, but it is believed that Cortright was told by Petitioner to ask for Malinda and he did so. When the airline tickets arrived at the travel agency, Cortright was advised by the agency the price of the air fare was $302.00. Cortright then, on December 14, 1982, called Delta and asked to speak to Petitioner to inquire about the difference in the fares quoted by Petitioner and the cost of the tickets at the travel agency, and to get the fare guaranteed that was quoted by Petitioner. At the time this call was received by another agent, Jennings King, King was being monitored by his supervisor, Carolyn Corvette. In this phone conversation Cortright said he had spoken to Petitioner two times before, that he went to the agency to which he had been directed by Petitioner, that he spoke to Malinda as directed by Petitioner, and that he was charged a higher fare than was quoted by Petitioner. Corvette had the call transferred to the customer service desk and authorized guarantee of the lower fare quoted. She promptly prepared a memo of the incident to Arthur Arden, Chief Reservation Supervisor (Exhibit 7). Arden called Cortright, who confirmed that Petitioner had directed him to Tri-Cities Travel Agency. Arden extracted from Delta's computer the reservation made for Cortright which disclosed the reservation was made by Malinda at Tri-Cities (Exhibit 8). Knowing that Malinda was Petitioner's wife, Arden, on December 15, told Petitioner that he was suspended from work and would be recommended for dismissal. On December 15, 1982, Arden signed a memo to Harry Dean, Delta's Regional Manager at Tampa, recommending that Petitioner be terminated (Exhibit 6). Dean concurred, sent the memo to Delta's Atlanta office, and Petitioner was fired. All reservation agent trainees are told that they should make every effort to arrange all of the transportation needs of the customers through Delta Air Lines, including tours requiring other modes of transport than air; and that they should never refer a customer to a specific travel agency. If a travel agency's services are needed by the customer, the customer should be referred to the yellow pages of the phone book to select a travel agency. This same information is contained in the Standard Practices Manual, which is available to all reservation agents. The reason for this rule is to eliminate, insofar as possible, conflicts of interest and to refrain from alienating some travel agents by appearing to favor other travel agents. This could create a serious problem for the air lines and is taken very seriously by air line company management. Petitioner's testimony that he did not refer Cortright to Tri-Cities Travel Agency and that he never referred a customer to a specific travel agency was rebutted by Betty Maseda, a fellow reservations agent who frequently sat alongside Petitioner at work and on several occasions overheard Petitioner giving specific instructions to customers on exactly how to get to Tri-Cities Travel Agency and to ask for Malinda. Ms. Maseda considers herself a good friend of Petitioner and did not volunteer this information to Respondent until after Petitioner had been fired.
The Issue The issue presented is whether Charles Simon violated subsections 475.25(1)(b) and (f), Florida Statutes (1985) by pleading guilty to crimes involving moral turpitude or fraudulent and dishonest dealing, i.e. grand theft and trafficking in stolen property by reissuing and refunding airline tickets without making payment for them.
Findings Of Fact Charles Simon was at the times material to this proceeding licensed as a real estate broker in the State of Florida holding license number 0123689. The last license was issued to him as a broker at 90 Beacon Boulevard, Miami, Florida 33135. On about October 15, 1986, Mr. Simon pled guilty to six counts of an indictment alleging violations of the Racketeer Influenced and Corrupt Organizations Act (RICO Act), grand theft and trafficking in stolen property for issuing and refunding of airline tickets without making payment for them. Adjudication of guilt was withheld and Mr. Simon was placed on community control for a period of twenty-four months to be followed by a period of probation of eight years, and he was ordered to pay $50,000 in restitution and court costs. By letter dated October 9, 1986, Respondent informed the Commission of having pleaded guilty to a felony. By letter dated January 6, 1987, Mr. Simon wrote again to the Commission, stated that he had received no reply to his letter of October 9, 1986 and enclosed a carbon copy of the October 9, 1986 letter. The Commission never received his first (October 9, 1986) letter, although it did receive a copy of it when attached to the January 6, 1987 letter. The Department relies solely upon the records of the conviction to make its case. It did not dispute Mr. Simon's explanation of the events underlying his guilty plea. Mr. Simon's version of the events is accepted, in part because his testimony was not contested by the Department, and in part because the explanation is plausible. In May of 1983, Mr. Simon's wife owned a travel agency in Dade County. His real estate office was located in the same suite of offices. While clerical employees of the travel agency would sometimes perform work for the real estate office they were wholly separate businesses. Mr. Simon was not an officer or employee of the travel agency and received no money from it. In May, 1983 Mr. Simon's wife put the agency up for sale. Travel agencies are approved by the Air Traffic Corporation (ATC) to write airline tickets on generic ticket stock if they meet certain requirements. ATC affiliation is important to a travel agency because it makes accounting to airlines for tickets sold much simpler. ATC serves as a clearinghouse; at the end of the week a travel agency sends one check to ATC for all tickets written during the week. ATC separates the billings according to airline, and writes one check to each airline for all tickets sold by the agents belonging to ATC. Blank ticket stock is valuable and purchasers must qualify through ATC to buy a travel agency that is an ATC member. Otherwise an untrustworthy new owner could write tickets out, collect money and never pay the ATC who in turn would not be able to pay the airlines. Mrs. Simon was familiar with people who expressed an interest in purchasing her agency, but they asked her not to tell ATC of the sale. When notified of the impending sale ATC would investigate the qualifications of the proposed new owners, and their previous employer or present employer would be contacted by ATC. The potential buyers were currently working at another travel agency. They wanted to buy Mrs. Simon's agency and move their clients to their new agency (Mrs. Simon's agency). They did not want to tip off their present employer of their intentions by having ATC contact the present employer. Mrs. Simon agreed to withhold notification to ATC to facilitate the sale of the travel agency. After the ownership of the travel agency was transferred and most of the purchase price had been paid, Mrs. Simon was informed that the new owners had ticket stock from other travel agencies at the agency she had sold. Although this is not a violation of any statute, it violates ATC rules and alerted Mrs. Simon that something was wrong. She realized that the reason the purchasers did not want to notify the ATC of the transfer was that they were engaging in a "bust out" of the agency, i.e., issuing valid airline tickets without receiving payment for them. The tickets would then be returned to the airlines for cash refunds (although they had never been paid for) or resold to others at less than their face value. Ultimately, ATC revoked the agency's authority to issue tickets, but by then the owners had defrauded the airlines of many thousands of dollars. Mrs. Simon panicked and Mr. Simon agreed to try to handle the situation. Instead of reporting the matter to the police Mr. Simon tried to cover it up so that Mrs. Simon would not be implicated in wrongdoing. Precisely what Mr. Simon did in his attempt to keep his wife from being implicated in the purchasers' scheme was not explained at the hearing. Those individuals involved in the "bust out" were ultimately arrested and convicted. Mr. Simon was also charged because of his involvement with the sale after Mrs. Simon discovered the purchasers' scheme. Under the sentencing guidelines the charges made against him would have called for a sentence of six years in jail. The state attorney's office agreed to two years of community control, eight years probation and $50,000 restitution to the airlines, if Mr. Simon would plead guilty to the charges rather than require a trial; the state attorney also agreed that no charges would be filed against Mr. Simon's wife in return for his guilty plea. The state attorney's office further agreed to a withholding of adjudication of guilt so that Mr. Simon's real estate license would not be affected. Based on 1) the cost of going through a trial to defend himself and potentially another legal proceeding for the defense of his wife (which would exceed $50,000) and, 2) his erroneous belief that a guilty plea with a withholding of adjudication would not affect his real estate license, Mr. Simon agreed to the state attorney's offer as being in his best interest even though he believed that he had done nothing illegal. Since that time Mr. Simon's community control has been terminated and he has been placed on regular probation, which merely requires a once a month report to a probation officer which can be done by mail. It has also been agreed that Mr. Simon may return to England to live. The lightness of the sentence and the reduction of the period of community control corroborates Mr. Simon's argument that the state attorney's office knew that he had not been involved in the fraudulent plan to "bust out" his wife's travel agency, although he was not entirely forthcoming when the purchaser's plan was discovered.
Recommendation It is RECOMMENDED that a final order be entered finding Mr. Simon guilty of violation of subsection 475.25(1)(b), Florida Statutes as charged in Count I of the administrative complaint and guilty of violation of subsection 475.25(1)(f), Florida Statutes as charged in Count II of the administrative complaint and that the real estate broker's license held by Mr. Simon be revoked. DONE and ORDERED this 21st day of September, 1987, in Tallahassee, Florida. 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 21st day of September, 1987. APPENDIX The following are my rulings on the proposed findings of fact submitted by the parties pursuant to Section 120.59(2), Florida Statutes (1985). Rulings on Proposals of the Petitioner's: Rejected as unnecessary. Covered in Finding of Fact 1. Covered in Finding of Fact 1. Covered in Finding of Fact 2. Covered in Finding of Fact 2. Covered in Finding of Fact 3. COPIES FURNISHED: Charles Simon 90 Beacon Boulevard Miami, Florida 33135 Mr. Charles Simon 10435 S.W. 76th Street Miami, Florida 33173 James H. Gillis, Esquire Department of Professional Regulation Florida Real Estate Commission P. O. Box 1900 Orlando, Florida 32802 Harold Huff, Executive Director Department of Professional Regulation Florida Real Estate Commission P. O. Box 1900 Orlando, Florida 32802 Tom Gallagher, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all relevant times, respondent, Passport Internationale, Inc. (Passport or respondent), was a seller of travel registered with the Department of Agriculture and Consumer Services (Department). As such, it was required to post a performance bond with the Department conditioned on the performance of contracted services. In this case, petitioner, Dorothy L. Castellano, has filed a claim against the bond in the amount of $59.00 alleging that Passport failed to perform on certain contracted services. The facts giving rise to this controversy are not in dispute. In late 1989, petitioner received a promotion offer from Budget Rent A Car for a "free" one-day cruise for two persons from Fort Lauderdale to Freeport (Bahamas Islands) on Discovery Cruise Lines. The travel was to be arranged by Passport and required petitioner to pay Passport a $40.00 fee, plus $19.00 in port taxes, or a total of $59.00. She did so on March 6, 1989, as evidenced by a money order made payable to Passport International Express, a ficticious name then used by Passport. After it received the money, Passport issued two travel certificates to petitioner. On the face of each certificate was the notation "Not valid after 08/30/90." This meant that petitioner had to use the certificates no later than August 30, 1990. Even so, this gave petitioner more than a year in which to take the trip. Petitioner does not deny that she was aware of this restriction. According to Passport, the expiration date was controlled by Discovery Cruise Lines and thus it had no authority to extend the life of the certificates. No evidence was adduced regarding the refund policy of Passport. Petitioner eventually made reservations to use the certificates in July 1990. On June 6, 1990, she broke her ankle and was temporarily disabled. As a consequence, she could not travel before the certificates expired. Although petitioner contacted both Passport and Discovery Cruise Lines and requested either a refund of her money or an extension of time in which to use the certificates, her request was denied. Therefore, petitioner was unable to use the certificates. She then filed a claim with the Department seeking a refund of her money.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner against the bond of respondent be denied. DONE AND ENTERED this 28th day of November, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER 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 28th day of November, 1994. COPIES FURNISHED: Dorothy L. Castellano 3821 S. E. 44th Street Ocala, Florida 34480 Michael J. Panaggio 2441 Bellevue Avenue Daytona Beach, Florida 32114 Robert G. Worley, Esquire 515 Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard D. Tritschler, Esquire The Capitol, PL-10 Tallahassee, FL 32399-0810
The Issue The issues are: (1) whether Respondent violated Subsection 112.3148(8), by failing to report a $2,606.25 gift of Disney World and Universal Studios tickets on a Quarterly Gift Disclosure Form, CE Form 9; and (2) if so, what is the appropriate penalty.
Findings Of Fact At all times pertinent to the proceedings, Respondent, Alan Keen, served as chairman of the Orlando-Orange County Expressway Authority. At all times relevant hereto, Respondent was subject to the requirements of Chapter, Part III, Florida Statutes, Code of Ethics for Public Officers and Employees, for his acts and omissions as chairman of the Expressway Authority. See §§ 112.311(6) and 112.313, Fla. Stat. In April 2006, Respondent was contacted by a family friend, James Stanley, who resides in Costa Rica. Mr. Stanley indicated that his father-in-law was paying for the family, consisting of four children and eight adults, to travel to the Orlando area in the Fall of 2006 and requested that Respondent see if he could obtain theme park tickets for their use. Mr. Stanley called Respondent and asked him to obtain theme park tickets so that the tickets could be in-hand prior to Mr. Stanley and his family arriving in Orlando. This request was made purely for the purposes of convenience.2 Respondent has known Mr. Stanley for more than 20 years and considers to him to be a friend. Mr. Stanley described Respondent as his mentor and a close friend. Respondent and Mr. Stanley and their respective families socialize and have visited with each other in the United States and in Costa Rica. Mr. Stanley never asked for or expected Respondent to obtain free theme park tickets. In fact, it was Mr. Stanley's understanding and belief that his father-in-law, Rodrigo Esquivel, was going to pay all the costs associated with the trip. Respondent contacted Bryan Douglas, the then director of marketing for the Expressway Authority and asked Mr. Douglas if he had access to complimentary tickets to Universal Studios and Disney World theme parks.3 In response to this request, Mr. Douglas told Respondent that he did not know if he had access to complimentary tickets, but indicated that he would check. As chairman of the Expressway Authority, Respondent had no supervisory authority over Mr. Douglas and never signed any of his paychecks. Approximately two or three weeks after his initial telephone call to Mr. Douglas, Respondent requested that his personal assistant, Sherry Cooper, follow-up on whether Mr. Douglas had any success in obtaining any complimentary tickets. Respondent understood that Ms. Cooper, at the request of Mr. Douglas, had inquired of Mr. Stanley how many adult and how many children tickets were needed. In 2006, Ronald Pecora was the owner of Pecora and Blexrud, a marketing communications and public relations firm that had a contract to do work the Expressway Authority. In or about May 2006, Mr. Pecora became aware of the request for theme park tickets from Christy Payne. Ms. Payne was the representative of Pecora and Blexrud who was assigned to work with the Expressway Authority. According to Mr. Pecora, Ms. Payne reported to him that she was contacted by Mr. Douglas, the marketing director for the Expressway Authority in regard to theme park tickets. Based on the above-referenced conversation between Mr. Pecora and Ms. Payne, it was his (Mr. Pecora's) understanding that the subject theme park tickets were for Respondent. However, Mr. Pecora had no idea who would be using the theme park tickets and never spoke to Respondent about those tickets. During Mr. Pecora's conversation with Ms. Payne regarding the theme park tickets, he authorized her to purchase the theme park tickets with her corporate credit card. As a result of Mr. Pecora's authorization, a total of 12 theme park tickets having a value of $2,606.25 were purchased using the Pecora and Blexrud credit card. At the time Mr. Pecora authorized Ms. Payne to purchase the 12 theme park tickets, he anticipated being repaid for the tickets. Mr. Pecora's actions after he received the theme park tickets and the invoice for the purchase of those tickets are consistent with that belief and expectation. In mid-May 2006, the 12 theme park tickets and receipt for payment invoice ("invoice") were delivered to Mr. Pecora's business address in Winter Park, Florida. The invoice indicated that the $2,606.25 payment for the theme park tickets had been charged to Mr. Pecora's credit card.4 A few days after receiving the tickets and invoice, Mr. Pecora had one of his employees deliver the theme park tickets and the original invoice for those tickets to Keewin Properties. The reason Mr. Pecora sent the invoice to Keewin Properties, whose principal was Respondent, was so that the recipient would know how much to pay him for the tickets. At the time that Mr. Pecora had the theme park tickets and invoices sent to Keewin Properties, he knew that Respondent was the owner of that business. At or near the time Mr. Pecora directed his employee to deliver the theme park tickets and invoice for those tickets to Keewin Properties, he memorialized that transaction. In a hand-written note dated May 18, 2006, Mr. Pecora indicated that the original invoice had been sent to Keewin Properties. Mr. Pecora understood that theme park tickets were not for official business purposes of the Expressway Authority. Accordingly, he did not send the invoice for the theme park tickets to the Expressway Authority, but to Respondent's privately-owned business. On or about mid-May 2006, Respondent received the theme tickets and the invoice that were delivered to him in a small brown envelope. When he received the tickets, Respondent was surprised that Mr. Pecora was involved in obtaining the tickets because he had merely asked Mr. Douglas whether he had access to complimentary theme park tickets. However, Respondent was not surprised to have received an invoice. Upon receipt of the tickets, Respondent telephoned Mr. Stanley and advised him that he had obtained the theme park tickets and the invoice for the purchase of those tickets. Because Respondent would be in Costa Rica in a few weeks, he told Mr. Stanley that he would deliver the tickets and the invoice when he arrived in Costa Rica. As he had promised, a few weeks after speaking to Mr. Stanley, Respondent traveled to Costa Rica and, while there, personally delivered the theme park tickets and the invoice to Mr. Stanley. When Mr. Stanley received the theme park tickets and the invoice, he reviewed them. Soon thereafter, Mr. Stanley gave both the tickets and the invoice to Mr. Esquivel. Prior to giving the tickets and the invoice to Mr. Esquivel, Mr. Stanley highlighted the name of the individual printed on the invoice who was to be paid for the tickets. On or about September 23, 2006, Mr. Stanley and his family, including Mr. Esquivel, began their visit to the Orlando area. During this trip, the theme park tickets were used by Mr. Stanley's family. Respondent did not use any of the theme park tickets. Mr. Esquivel did not pay for the theme park tickets prior to the time that Mr. Stanley's family used the theme park tickets. About ten days after Mr. Stanley's family, including Mr. Esquivel, returned to Costa Rica from Orlando, Mr. Esquivel suffered a stroke. As a result of the stroke, Mr. Esquivel was hospitalized for about a week, but later returned to most of his usual activities. Respondent first learned that the theme park tickets had not been paid for in December 2006, after reading an article in the Orlando Sentinel newspaper. Until that time, Respondent had assumed that Mr. Stanley or his father-in-law had paid for the theme park tickets. Soon after reading the above-referenced newspaper article, Respondent called Mr. Stanley to ask if they had paid for the theme park tickets. Mr. Stanley told Respondent he believed that his father-in-law had paid for the tickets, but indicated that he would check on the matter. Upon checking, Mr. Stanley determined that his father-in-law had not paid for the tickets. Based on his personal knowledge of his father-in-law, Mr. Stanley concluded that his father-in-law simply forgot to pay for the tickets.5 Soon after discovering that Mr. Esquivel had not paid for the theme park tickets, Mr. Stanley also learned that criminal proceedings related to the theme park tickets were pending against Mr. Pecora. Therefore, Mr. Stanley, in consultation with his attorneys, decided that payment for the theme park tickets should be made after the criminal proceedings were over. About a month prior to this proceeding, Mr. Stanley received wiring instructions from Mr. Pecora's attorney. Immediately thereafter, Mr. Stanley wired the full payment for the theme park tickets to Mr. Pecora's attorney, on behalf of Mr. Pecora. Mr. Stanley's father-in-law gave him the funds which were wired to Mr. Pecora's attorney. Respondent did not file a Quarterly Gift Disclosure, CE Form 9, regarding receipt of the theme park tickets. The reason Respondent did not file a Quarterly Gift Disclosure Statement was that the theme park tickets were not for him and were not used by him. Therefore, Respondent did not believe that the tickets were a gift. Mr. Pecora, the procurer of the theme park tickets, did not consider the theme park tickets as a gift. Moreover, he never intended to make those tickets a gift.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics issue a final order and public report finding that Respondent, Allen Keen, did not violate Subsection 112.3148(8), Florida Statutes, and dismissing the Complaint filed against him. DONE AND ENTERED this 20th day of November, 2009, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 20th of November, 2009.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all relevant times, respondent, Passport Internationale, Inc. (Passport or respondent), was a seller of travel registered with the Department of Agriculture and Consumer Services (Department). As such, it was required to post a performance bond with the Department conditioned on the performance of contracted services. In this case, petitioner, Helen Stahler, has filed a claim against the bond in the amount of $198.00 alleging that Passport failed to perform on certain contracted services. In response to an offer run in a local newspaper on an undisclosed date in early 1991, petitioner agreed to purchase a five-day, four-night trip for two to the Bahamas at a cost of $99.00 per person. For this, she wrote two checks payable to Passport, each in the amount of $99.00. Although Passport has no record of the transaction, it may be reasonably inferred that the advertisement was run by, and the package purchased directly from, Passport since petitioner's checks were endorsed by Passport and deposited in a bank used by that entity. After receiving a videotape, brochure and travel certificate, petitioner attempted by telephone to reserve certain dates for her trip. Because the certificate could not be used on a weekend, a fact not known at the time the certificate was purchased, petitioner became frustrated and requested a refund of her money by letter dated January 27, 1992. To date, she has never received a refund of her money.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner against the bond of respondent be granted in the amount of $198.00. DONE AND ENTERED this 9th day of January, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER 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 9th day of January, 1995. COPIES FURNISHED: Helen Stahler 11200 Walsingham Road, Number 69 Largo, Florida 34648 Julie Johnson McCollum 2441 Bellevue Avenue Daytona Beach, Florida 32114 Robert G. Worley, Esquire 515 Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, Esquire The Capitol, PL-10 Tallahassee, Florida 32399-0810
The Issue The issues are whether Respondent issued a voucher ticket without obtaining cash or cash equivalent in exchange, in violation of Florida Administrative Code Rule 61D-7.020(5)(b); had adjudication withheld on felony charges involving larceny, in violation of section 849.086(6)(g), Florida Statutes (2014); or was ejected from Gulfstream Park, in violation of section 550.0251(6), Florida Statutes, as alleged in the Second Amended Administrative Complaint; and if so, what is the appropriate sanction.1/
Findings Of Fact The Division is the state agency charged with regulating pari-mutuel wagering and cardrooms in the state of Florida, pursuant to chapter 550 and section 849.086. On April 27, 2014, Mr. Havey was licensed by the Division and was working at Silks mutuels window number 607 at Gulfstream Park, a facility authorized to conduct pari-mutuel wagering and cardroom operations. At the end of the day on April 27, 2014, Mr. Havey's cash drawer did not balance. After a review of surveillance tapes and other information, Mr. Jorge Aparicio, a security director with Gulfstream Park, decided to investigate further. On May 2, 2014, when Mr. Havey returned to work, he was interviewed by Mr. Aparicio about the missing money. Mr. Havey initially stated that he accidently printed out a voucher for $5,000.00 for his friend Darren, when he had intended to punch the voucher for only $500.00. He said that Darren was supposed to give him the money at the end of the day. Later, Mr. Havey stated he really printed out the voucher for $5,000.00, placed it in his right shirt pocket, and gave the voucher to his friend Eddy inside the men's restroom for his friend to cash. Later that day, Mr. Havey prepared a written statement regarding the money missing from his cash drawer. He wrote: My friend Eddy needed 500. loan because I told he was being thriten. I offer to help Eddy by giving him 500 vocher. Eddy told me he would pay me back in a week. Eddy didn't want to come to my window #607. Eddy asked me to meet in the bathroom. I punched a $500 vocher I thought but it ended being a $5000. vocher. I gave him the vocher & never saw Eddy again. I planded on browing the five hundred from my friend to put $500. back in my money so I would balance, but[.] Mr. Aparicio testified that Mr. Havey could not give a last name or address for his friend and noted that the name of the friend given by Mr. Havey changed during the course of the interview. After the interview, Mr. Aparicio called the president of Gulfstream Park and described what had taken place. He was directed to call the police and to exclude Mr. Havey from the property indefinitely. As reflected in the Security Report, Mr. Havey was "excluded indefinitely" from Gulfstream Park on May 2, 2014. This action did not necessarily bar Mr. Havey from the park permanently, for the president could allow him to return, but he was excluded unless and until the president took further action. This "indefinite" exclusion constituted an ejection from Gulfstream Park. When Mr. Havey left the investigation room, the Hallandale Beach Police were there. Mr. Havey testified that they did not ask him a single question, but immediately placed him under arrest and handcuffed him. On August 21, 2014, Mr. Havey entered a plea of nolo contendere to a charge of grand theft in the third degree in the Seventeenth Judicial Circuit Court, in and for Broward County, Florida. Adjudication was withheld. He was placed on 24 months' probation, with the condition that he pay Gulfstream Park $4,500.00 in restitution within 18 months. At hearing, Mr. Havey admitted he issued a voucher ticket without receiving cash or cash equivalent in return. He also testified that he pled no contest with the understanding that if he paid $4,500.00 restitution to Gulfstream Park, the charges would be "disposed of," and his record would be clear. Clear and convincing evidence shows that on April 27, 2014, Mr. Havey issued a voucher ticket without receiving cash or cash equivalent in return; that he was ejected from Gulfstream Park on May 2, 2014; and that he pled nolo contendere to grand theft in the third degree on August 21, 2014, with adjudication withheld. Mr. Havey testified that he has been involved in pari- mutuel wagering in various parks, in dog racing, and Jai Alai for 40 years. He stated that the incident was "out of his character," that it was drug and alcohol related, and that he was not thinking clearly. He testified that he could barely remember what had happened on that "dark day" in his life. He said that he sought treatment and is now on the way to full recovery. Mr. Havey expressed remorse for his actions. Mr. Havey testified that he is now working part time at Mardi Gras Casino in Hallandale. He has performed well and has not been in any trouble there. He noted, however, that he is only making $10.00 per hour, rather than the $25.00 per hour he was making at Gulfstream Park. He lamented that it is extremely difficult to "keep a roof over your head" on only $250.00 a week and that he needed to work for a few more years. He stated that his wife should shortly be receiving money for a disability claim and that when she did so, he would pay Gulfstream Park full restitution. He testified that he hoped that the president of Gulfstream would then let him return. No evidence of prior discipline was introduced.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, enter a final order: (1) finding that Mr. Patrick M. Havey was in violation of Florida Administrative Code Rule 61D-7.020(5)(b), was ejected from a pari-mutuel facility, and had adjudication withheld on a felony involving larceny; and (2) revoking his pari-mutuel occupational license. DONE AND ENTERED this 17th day of May, 2016, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 17th day of May, 2016.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all relevant times, respondent, Passport Internationale, Inc. (Passport or respondent), was a seller of travel registered with the Department of Agriculture and Consumer Services (Department). As such, it was required to post a performance bond with the Department conditioned on the performance of contracted services. In this case, petitioner, Barbara Bradshaw, has filed a claim against the bond in the amount of $435.40 alleging that Passport failed to perform on certain contracted services. For touring a timeshare resort in early 1992, petitioner received a travel certificate as a gift. After paying a $179.00 validation fee, the certificate entitled the holder to a five day, four night stay in the Bahamas. The certificate carried the name, address and logo of Passport International Express, a fictitious name then being used by Passport. Passport's assets and liabilities were assumed by Incentive Internationale Travel, Inc. (Incentive) in June 1991, and the corporation was dissolved sometime in 1991. Even so, Incentive continued to sell Passport's travel certificates at least through April 1992, when petitioner received her certificate. Therefore, the travel services described in those certificates were protected by Passport's bond. To validate her certificate, on April 17, 1992, petitioner sent Passport International Express a check in the amount of $179.00. Thereafter, she upgraded her accommodations, purchased additional land accommodations, and paid for port taxes. These items totaled $242.00, and were paid by check sent to Incentive on May 26, 1992. Throughout this process, petitioner assumed she was still dealing with Passport since she was never formally advised that Passport had been dissolved or that Incentive had assumed all of Passport's obligations. Petitioner was scheduled to depart on her trip on July 24, 1992. On July 15, 1992, Incentive mailed her a form letter advising that it was necessary to "temporarily delay" her trip due to "circumstances beyond (its control.)" She was offered several options, including a total refund of her money to be made in January 1993. She opted for a refund. To date, however, nothing has been paid, and Incentive is now subject to bankruptcy court protection.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner against the bond of respondent be granted and that she be reimbursed from the bond in the amount of $421.00. DONE AND ENTERED this 13th day of December, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER 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 13th day of December, 1994. COPIES FURNISHED: Barbara Bradshaw 1169 La Mesa Avenue Winter Springs, Florida 32708 Michael J. Panaggio 2441 Bellevue Avenue Daytona Beach, Florida 32114 Robert G. Worley, Esquire 515 Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, Esquire The Capitol, PL-10 Tallahassee, Florida 32399-0810
The Issue The issue in this proceeding is whether Petitioner is entitled to attorney’s fees and costs.
Findings Of Fact This case was filed by Petitioner on behalf of Ida Heaps pursuant to Section 760.35, Florida Statutes. The case alleged that Respondent discriminated against Petitioner, Heaps, based on race when Respondent did not lease a home to Petitioner Heaps. On July 22, 2004, in Tavares, Florida, a one-day hearing was held after which post-hearing recommended orders were filed. Based on the evidence a Recommended Order finding Respondent guilty of a discriminatory housing practice against Ms. Heaps in violation of Section 760.23(1), Florida Statutes, was entered on February 1, 2005. Petitioner was therefore the prevailing party in this matter. The Recommended Order also found that Petitioner was entitled to attorney’s fees and costs; and reserved jurisdiction to determine the amount of fees and costs in the event the parties were unable to agree on such an award. On January 31, 2005, the Commission issued its Final Order approving the Recommended Order. The time limit for appealing the Final Order has passed. Petitioner has not been able to resolve the amount of fees and costs incurred in this matter. As evidence of the amount of attorney’s fees, Petitioner, FCHR, submitted an affidavit outlining the hours and costs spent incurred in the underlying case by its attorney. The requested fees are limited to hours expended on Petitioner’s behalf in DOAH Case No. 04-1593, including time spent in travel and establishing a right to attorney’s fees and costs. Petitioner’s attorney spent a total of 53 hours on this case, which include 46 hours for legal services and seven hours for travel. The hours multiplied by the reasonable rate results in a total of $14,850.00 for attorney’s fees. The Commission’s direct costs total $453.70, which include the travel costs of Petitioner’s attorney and investigator to attend the hearing and the court reporter’s fee. The time spent on this case by the Petitioner’s attorney was reviewed by an outside expert. The expert has found the time to be reasonable and has recommended a reasonable hourly rate, arrived at independently of the Commission and its attorneys and without direction by Petitioner, based on the nature, novelty and complexity of the case, and the expertise of the Petitioner’s attorney in federal and Florida administrative and anti-discrimination law. The expert opined that a rate of $300.00 per hour legal services and $150.00 per hour for travel was reasonable. Respondent did not challenge the affidavit of Petitioner’s or the expert’s opinion. The amount of hours and costs reflected in the affidavit are reasonable for this type of case. Likewise, the hourly fees for such litigation are reasonable for this type of case and the long experience of Petitioner’s attorney. Therefore, Petitioner, FCHR, is entitled to an award of attorney’s fees and costs in the amount of $15,303.70.
Findings Of Fact On August 8, 1989, Respondent issued to prospective vendors a clear and unambiguous request for proposals (RFP) relating to the delivery to travel agency services for the School District of Palm Beach County, Florida. All proposals were due no later than August 28, 1989. Review of proposals, to include any interviews Respondent deemed necessary, was to take place between August 29 and September 18, 1989. The following appears in Paragraph 1.1 of the RFP, in the introductory section: 1.1 This is a Request for Proposal (RFP) to provide travel agency services to the School District of Palm Beach County, Florida; The School District operates 112 schools and 55 administrative departments in an area encompassing 2,332 square miles. The services include but are not limited to, purchases and delivery of air and other modes of travel tickets and related travel services. ... The introductory section of the RFP also provides the names, titles and telephone numbers of two persons to whom questions could be directed. The following appears in Paragraph 5.5 of the RFP, in the terms and conditions section: 5.5 The District reserves the right to reject any or all proposals, to further negotiate any proposal, to request clarification of information submitted in any proposal, and to request additional information from any Proposer. Proposals relating to the provision of the following services are solicited in Paragraph 6.1 of the RFP, the scope of services section: 6.1 The following are to be included in the specific tasks to be performed by the Travel Agency; however, it is not considered as a complete list of tasks: A. Deliver tickets, itineraries and other travel documents to the specific office or school requesting same. Proposals from several vendors were received, including proposals from Petitioner and ETA Travel Agency. Petitioner's response to Paragraph 6.1(A) was as follows: Ticket Delivery: will be made as follows: An On-Site reservation and ticketing facility at a mutually acceptable location on School Board administration property. Deliveries will be made to other offices as follows: Scheduled. Emergency. Delivery receipts. Via agency and outside courier service. ETA's response to Paragraph 6.1(A) was as follows: E.T.A. provides immediate free delivery of airline tickets and documents to school board travelers as detailed below: E.T.A.'s radio dispatched couriers provide unlimited deliveries of tickets and travel documents to schools and school board offices from Jupiter to Boca Raton as often as required throughout the business day. At E.T.A. Travel we never limit deliveries to once of twice a day. Tickets are delivered according to the school board's schedule - not ours. In addition to office delivery, E.T.A.'s couriers will deliver tickets and documents to the traveler's home or to other designated place whenever required. Deliveries to west area schools and school board offices are provided through the school board's "pony express" mail system, time permitting, or through federal express overnight delivery services. Deliveries to out-of-county travelers, or to west area travelers requiring expedited delivery, are provided through federal express overnight delivery service. E.T.A. Travel Agency utilizes a delivery and pickup receipt system to insure tracking of all airline tickets. To insure accountability all tickets delivered and picked up must be signed for and receipted at the time of exchange. While in the process of evaluating the respective proposals, Dr. Henry Boekhaff, Respondent's Associate Superintendent for Administration, contacted Mr. James Bertino, the owner of Petitioner to seek clarification as to the operation of Petitioner's proposed on-site ticketing and reservation facility. Mr. Bertino explained that there would be located on school board property a satellite ticket printer that could print airline tickets at the school board site. However, Mr. Bertino did not make it clear to Dr. Boekhoff that the travel documents printed on the satellite ticket printer would be delivered by Petitioner to each office requesting the travel document. Mr. Bertino's verbal description of the manner in which the satellite ticket printer would operate, along with Petitioner's written response to Paragraph 6.1(A), caused Dr. Boekhoff to conclude that Petitioner was not proposing to deliver travel documents to each requesting office. Respondent, following its review of Petitioner's proposal and following Dr. Boekhoff's conversation with Mr. Bertino, construed Petitioner's proposal as making a distinction between deliveries to offices in the administrative building in which the satellite ticket printer was to be located and deliveries to other offices. Respondent construed the proposal to require that persons whose offices were in the same building as the satellite ticket printer to pick up from the printer the tickets, itineraries, and other travel documents they had requested, while deliveries to offices in other administrative buildings and schools would be made by Petitioner. Respondent's construction of Petitioner's proposal was a reasonable construction of the written proposal presented by Petitioner and of the comments Mr. Bertino made to Dr. Boekhoff. Petitioner did not make it clear in either its response to Paragraph 6.1(A) or during the conversation between Mr. Bertino and Dr. Boekhoff that the Petitioner was proposing to deliver tickets to each office in the administrative building where the satellite facility would be located, a service that is of primary importance to Respondent. Following the evaluation of awards the proposal of ETA was selected, subject to the resolution of any timely protest. The services to be afforded by the vendor and the cost of those services were the items of primary importance to Respondent in evaluating and selecting a vendor. Petitioner's protest of the intended award of the contract to ETA was filed on a timely basis. During the informal hearing held in an attempt to resolve this dispute and in the formal hearing held in this proceeding, Petitioner, through Mr. Bertino, maintained that it intended by its response to Paragraph 6.1(A) to state that it would deliver tickets, itineraries, and travel related documents to every School Board office. Petitioner contends that it should be permitted to clarify its intentions at this time. Although Petitioner's response to Paragraph 6.1(A) did not cause its proposal to be rejected by Respondent, the Petitioner's failure to clearly state that it would deliver tickets, itineraries, and other travel documents to each requesting office was the primary reason the proposal of Petitioner was not selected. The services that ETA proposed in its response was the deciding factor in its favor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Palm Beach County enter a final order which rejects the bid protest filed by International Tours of Juno Beach and which accepts the proposal submitted by ETA Travel Agency. DONE AND ENTERED this 7th day of February, 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 7th day of February, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-6775BID The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner. The proposed findings of fact in paragraph 1 are adopted in material part by paragraph 11 of the Recommended Order. The proposed findings of fact in paragraph 2 are rejected as being subordinate to the findings made in paragraph 13 of the Recommended Order. The proposed findings of fact in paragraph 3 are rejected, in part, as being contrary to the weight of the evidence. The evidence failed to establish that the proposal submitted by Petitioner was superior to the proposal submitted by ETA. What action the School Board may have taken had Petitioner clearly stated its proposal is speculative. The proposed findings of fact in paragraph 4 are adopted in part by paragraph 9 of the Recommended Order and are rejected in part as being unnecessary to the conclusions reached. While Mr. Boekhoff did contact ETA during the evaluation period regarding its organizational structure, there is no contention that such contact was improper. The proposed findings of fact in paragraph 5 are rejected as being conclusions of law instead of findings of fact. The proposed findings of fact in paragraph 6 are rejected as being subordinate to the findings made in paragraph 10 of the Recommended Order. The proposed findings of fact in paragraph 7 are rejected as being subordinate to the findings made in Paragraph 13 or as being conclusions of law and not findings of fact. 8-10. The proposed findings of fact in paragraphs 8-10 are rejected as being conclusions of law and not findings of fact. The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent: The proposed findings of fact in paragraph 1 are adopted in part by paragraph 1 of the Recommended Order and are rejected in part as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 2 are adopted in material part by paragraph 11 of the Recommended Order. The proposed findings of fact in paragraph 3 are rejected as being subordinate to the findings made in paragraph 13 of the Recommended Order. The proposed findings of fact in paragraph 4 are adopted in material part by paragraph 5 of the Recommended Order. The proposed findings of fact in paragraph 5 are adopted in material part by paragraph 7 of the Recommended Order. The proposed findings of fact in paragraph 6 are adopted in material part by paragraph 10 of the Recommended Order. COPIES FURNISHED: Donald R. Fountain, Jr., Esquire Lytal & Reiter 515 North Flagler Drive Post Office Box 024466 West Palm Beach, Florida 33402-4466 Robert A. Rosillo, Esquire School of Palm Beach County 3970 RCA Boulevard Suite 7010 Palm Beach Gardens, Florida 33410 Thomas J. Mills Superintendent of Schools The School Board of Palm Beach County, Florida Post Office Box 24690 West Palm Beach, Florida 33416-4690
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all relevant times, respondent, Passport Internationale, Inc. (Passport or respondent), was a seller of travel registered with the Department of Agriculture and Consumer Services (Department). As such, it was required to post a performance bond with the Department conditioned on the performance of contracted services. In this case, petitioner, Susan Swank, has filed a claim against the bond in the amount of $678.90 alleging that Passport failed to perform on certain contracted services. Petitioner's husband has been confined to a wheelchair since 1982 due to a medical condition. As such, all travel accommodations made by petitioner must be in handicap accessible facilities. When petitioner purchased from Passport a travel certificate entitling her and Mr. Swank to a five day, four night trip to the Bahamas, she noted on her contract "Must have handicap room." In addition, on the Customer Request Form filled out by petitioner on November 1, 1990, she wrote in large letters: "Attention, wheelchair - must have bottom floor." Both the contract and form were returned to Passport prior to petitioner's trip. Respondent concedes that it was aware of petitioner's special request. Indeed, its representative at hearing stated that she knew none of the hotels in the Bahamas used by Passport had satisfactory handicap accessible rooms, and she told a Passport customer service representive dealing with petitioner to so advise her of this fact. The representative failed to do so and instead booked the trip at a hotel which could not accommodate petitioner's husband. When petitioner and her husband arrived at their hotel in Freeport, the hotel was obviously unable to honor their request for a ground floor, handicap accessible room. Rather, it assigned them to an upstairs room with a bathroom door so small that the wheelchair could not gain access. Petitioner was forced to transfer to another, more expensive hotel and pay the additional cost herself. Had she known to begin with that no handicap accessible rooms were available, she would not have agreed to purchase the vacation package. Because of Passport's misrepresentation as to the type of accommodations being offered, petitioner is entitled to a refund of $678.90, the derivation of which is found in her exhibit 1 received in evidence.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner against the bond of respondent be granted, and she be paid $678.90 from the bond. DONE AND ENTERED this 9th day of December, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER 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 9th day of December, 1994. COPIES FURNISHED: Susan Swank 3447 Daren Drive Freeport, Illinois 61032 Michael J. Panaggio 2441 Bellevue Avenue Daytona Beach, Florida 32114 Robert G. Worley, Esquire 515 Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard D. Tritschler, Esquire The Capitol, PL-10 Tallahassee, FL 32399-0810
