The Issue Whether Respondent's employment as a bartender/waitress at the Tarpon Springs Golf Course was terminated by the City of Tarpon Springs in accordance with the City's Personnel Rules and Regulations?
Findings Of Fact An Employer-Employee Relationship From December 20, 1995 until her termination on November 14, 1996, Deborah Monley was employed by the City of Tarpon Springs as a part-time bartender/waitress at the City's municipal golf course. Her duties at the course's "inside" bar consisted of serving beer and wine and food such as hot dogs and packaged snacks. Prior to the initial date of her employment with the City, the golf course was privately owned with Ms. Monley as the employee in charge of the course's inside bar. The City kept Ms. Monley as an employee when it acquired the golf course on December 20, 1995, making that day her first as a City employee. Management and Staffing During the time covering the events pertinent to this case, the golf course was supervised by Mike Hoffman, the Golf Course Manager. He was assisted by Michael Houlis. As an assistant manager, Mr. Houlis was primarily responsible for the food and beverage operations of the golf course. Since Ms. Monley was a food and beverage employee, her supervision fell in the first instance to Mr. Houlis, although Mr. Hoffman had ultimate supervisory authority over her position. The bar operated seven days a week. In the fall of 1996, it was staffed in the main by three employees who were assigned regular shifts. Ms. Monley, normally on duty four days a week, worked the most hours of the three. A second employee, Tom Bowman, worked two to three days per week. Peggy Johnson, the last of the three regular employees, worked one day a week. From time-to-time, the City would call on Pearl Standahl to fill in for the three regular employees on an as-needed basis. But whether Ms. Standahl would provide assistance or not in any given instance was nothing upon which the City could rely with certitude. The City's arrangement with her allowed her to decline for whatever reason whenever requested to work. As obstacles arose on different occasions to the ability or convenience of any one of the three regular employees to be at work, another would cover for the absent employee. If, for example, an emergency came up for one, another employee would fill in or if one employee needed to switch a day, another would usually be willing to accommodate the switch. Management did not object to these informal arrangements among the employees so long as the snack bar was covered by any of the three regular employees or Ms. Standahl. Autumn of 1996 The events critical to the facts of this case occurred in the fall of 1996. The Tournament In late October, one of the major annual events for the golf course was under way: a tournament involving a group of golfers from North Carolina. A reciprocal event was held each year in North Carolina at another time of the year for members of the Tarpon Springs Golf Course. These reciprocal golf tournaments had been annual events for some 25 years. During the tournament in 1996, Ms. Monley met and became friendly with one of the seventy or so North Carolina golfers. He was identified at hearing only as "Terry." Ms. Monley attended some of the tournament's events in Terry's company over the several days the tournament lasted. A Request for Time Off On Monday, October 28, 1996, Ms. Monley asked Mr. Houlis if she could take off Friday, November 14, 1996 and Monday, November 17, 1996 as vacation days so that she would be able to enjoy a long weekend in North Carolina. Aside from her developing relationship with Terry, Ms. Monley felt that she deserved the time off. The only real time away from work she had had in the recent past was sick leave following surgery. Although she had wanted to use accrued vacation leave, she had been required to work the entire summer sometimes five or six days a week from 7 a.m. until 6 or 7 p.m., because, in her view, the bar was not then adequately staffed. In response to the request, Mr. Houlis advised Ms. Monley that there was "no problem" as long as there was someone to cover for her on the two days she would have otherwise worked. Mr. Houlis planned on asking Tom Bowman if he could cover for Ms. Monley. Domestic Violence On the evening of October 29, 1996, Ms. Monley and her two children were subjected to or present at home during acts of domestic violence committed by Ms. Monley's former boyfriend. Ms. Monley called the police. After responding, one of the officers advised Ms. Monley that she should obtain a "domestic violence" injunction against her ex-boyfriend as soon as possible the next day, October 30. October 30 The following day, October 30, 1996, was a Wednesday. Wednesday is a busy day of the week at the golf course. Typically, the course is crowded in the early morning. The snack bar is busy as golfers arrive and enjoy coffee or a breakfast snack while they wait for their tee time. At home early that morning, Ms. Monley faced a difficult decision. Her eight-year-old son was not feeling well and did not go to school. Ms. Monley feared that her ex- boyfriend might come to the house. He had been on prescription medication, drinking, and irate the night before when the domestic violence had occurred. She worried that he could pose a danger to her son. She also knew that she was expected at work on what promised to be a busy day. Furthermore, she had to obtain the "domestic violence" injunction as soon as possible. She decided she would go to work, ask to be allowed to leave after the morning rush (around 8 to 8:30 a.m.), obtain the injunction and return home well before noon, all the while hoping her ex-boyfriend would not have come by. She hoped, too, that arrangements to cover her position at the course could be made by Mr. Houlis during the time she handled the morning rush. To assist her son in case her former boyfriend showed up while she was at work or seeking the injunction, Ms. Monley instructed her twelve-year-old daughter, whom she regarded as unusually mature for her age, to remain at home with the eight-year-old. Ms. Monley reported to work as scheduled. She met with Mr. Houlis and advised him of the domestic violence the evening before. She also told him that her son was ill at home and that she needed to leave work to attend to him as well as obtain the injunction. Mr. Houlis told Ms. Monley that he would attempt to have another employee cover for her as soon as possible so that she could leave. Ms. Monley left to attend to her job, but she did not think Mr. Houlis appreciated the gravity of the situation or its exigent nature. Nonetheless, Mr. Houlis called Tom Bowman right away. He did not reach him but left a message on his answering machine. Mr. Bowman was good about returning calls so Mr. Houlis felt that he would hear from him in a reasonable amount of time. Mr. Houlis was fully aware that Ms. Monley needed time off during the day, but he was not aware of the direness of her predicament. He felt that Ms. Monley had informed him of the circumstances in a "casual" way rather than in a way that indicated that she needed to leave as soon as possible, if not immediately. While Mr. Houlis attempted to reach Mr. Bowman, Pearl Standahl arrived at the course, not for work, but to play golf. Ms. Monley asked her to fill in for her. Ms. Standahl refused. At approximately 10:30 a.m., Styllianous Splinis (known as "Stan") entered the bar area. Stan Splinis is a City employee who works at the golf course handling all the money that constitutes golf course revenue and manning the pro shop where most of the money is received. Mr. Splinis, however, is not under the supervision of golf course management. Instead, he is supervised by the City Clerk. Although he had occasionally filled in at the bar, bartending is not part of his regular duties. He has been informed by the Clerk's office that the City Clerk disapproves of his doing so. By the time of Mr. Splinis' entry into the bar area the morning of October 30, 1996, Ms. Monley had become agitated. Mr. Houlis did not appear to her to be making much of an effort to get a replacement. Ms. Standahl had preferred to play golf rather than help her out in a moment of real need. But most of all, she was worried about the safety of her children and the need to obtain the injunction. Ms. Monley believed, moreover, that Mr. Houlis was not making much of an effort because of a previous private encounter in which she had rebuffed what she interpreted as Mr. Houlis' romantic interest in her. What she saw as indifference stemming from resentment was exacerbated during the recent tournament for the North Carolina golfers. Mr. Houlis, at the time having trouble with his girlfriend, inquired about Ms. Monley's relationship with her boyfriend, who would soon be charged with domestic violence. Ms. Monley believed that Mr. Houlis stopped talking to her when he learned that she had met Terry during the tournament. (Mr. Houlis disputes Ms. Monley's interpretation and assumptions; he believes that their relationship outside of work had never been anything more than casual friends.) As soon as Mr. Splinis appeared, Ms. Monley's state of agitation turned to action. She locked up her cash drawer, handed Mr. Splinis the key, and left work without clearing her departure with Mr. Houlis. In Ms. Monley's absence, Mr. Splinis took over at the bar. He informed Mr. Houlis of Ms. Monley's departure and worked the rest of her shift. When Ms. Monley reached her home, her ex-boyfriend was present. As she feared, he was threatening her son. She called 911. By the time the police arrived, the ex-boyfriend was gone. One of the police officers who responded, John Ulrich, spoke to Ms. Monley after an unsuccessful search of the neighborhood. Officer Ulrich advised Ms. Monley to remain at home. Later in the afternoon, Mr. Houlis called Ms. Monley to check on her. He, too, told her to stay home and assured her that her position was covered for the afternoon. Ms. Monley did not attempt to obtain an injunction. She remained home for the rest of the day with her children. October 31 The following day, Ms. Monley, acting on the advice of the police, went to the State Attorney's office to swear out a warrant for her ex-boyfriend's arrest. The warrant was issued. Ms. Monley decided to abandon any attempt to obtain the injunction, thinking that the warrant was at least as effective at curbing her former boyfriend's threatening behavior as the injunction would be. October 31 was also a day Ms. Monley was scheduled to work. When she arrived at the golf course, Mr. Hoffman and Mr. Houlis asked her to meet with them. Still not appreciating the seriousness of Ms. Monley's situation the day before, they told her that while sympathetic to her situation, they believed she should not have left work without permission and without following proper procedure for closing out the cash drawer. They also advised her that she was subject to discipline. No discipline, however, was decided upon or meted out. Ms. Monley left the meeting upset. As she emerged from the room, she bumped into Officer Ulrich. Officer Ulrich had come to the golf course to check on Ms. Monley in follow-up of her case and to tell her that the State Attorney would be considering the filing of charges. She was informed of the time of the deliberations since her presence would be needed. Ms. Monley, in tears, said to Officer Ulrich something to the effect of, "See, I told you I would get in trouble for leaving work." Officer Ulrich entered Mr. Hoffman's office and undertook to explain to management the real danger in which he perceived Ms. Monley to be. He entered the room where the meeting had just taken place and said to both Mr. Hoffman and Mr. Houlis something like, "I wouldn't want to be the one who had prevented Ms. Monley from obtaining an injunction." Mr. Houlis paid the officer no real attention because, in his view, the officer did not understand the other side of the story, that being management's concerns about a departure with neither notice nor observance of proper procedure. Early November On November 1, 1996, or thereabouts, Tom Bowman gave management the required ten days notice of his resignation effective a few days before the commencement of Ms. Monley's planned vacation in North Carolina. This development, unforeseen when Ms. Monley had first requested time off, meant to Mr. Houlis that it would be difficult to schedule replacements for Ms. Monley on the two days she asked to be on leave. In the meantime, Ms. Monley, believing that there should be no difficulty in covering her vacation days, purchased discount non-refundable airline tickets for the planned trip. When Ms. Monley heard that Tom Bowman was quitting, she was not concerned that it would be a problem because she thought Peggy Johnson, Pearl Standahl or Stan Splinis could cover for her. On November 3, 1997, a few days after Mr. Bowman's announcement, Mr. Houlis told Ms. Monley that her request for vacation was denied. (The parties are in agreement about this fact. See Respondent's Proposed Order of Findings of Fact and Conclusions, pgs. 8 and 11.) Mr. Houlis needed Ms. Johnson to cover some of the time Mr. Bowman would have worked had he stayed. He thought it would be difficult for Ms. Johnson to cover both Mr. Bowman's normal working days and the two days Ms. Monley would be gone because it would be too much work for Ms. Johnson at her age. Ms. Standahl was never a sure replacement and Mr. Splinis stepping up as a replacement was frowned on by the City Clerk's office. November 7 On November 7, Peggy Johnson returned to work after leave she had taken. Ms. Monley asked her if she could cover for her on November 14 and 17. Ms. Johnson replied that she could as long as management approved. Since the vacation time request had been disapproved by Mr. Houlis, Ms. Monley went directly to Mr. Hoffman to ask him about the request for time off. Ms. Monley told Mr. Hoffman that Ms. Johnson could cover her shifts but she neglected to tell Mr. Hoffman that her request had already been denied by Mr. Houlis. Mr. Hoffman replied, "As long as the shifts are covered, no problem." Ms. Monley felt reassured. She now had Mr. Hoffman's conditional consent. She remained, moreover, convinced despite Mr. Houlis' misgivings that the two days could be covered among Peggy Johnson, Pearl Standahl and Stan Splinis. In the worst case, Ms. Monley felt that Mr. Houlis, himself, could cover the bar, if necessary. By now, Ms. Monley had formed the intent to go to North Carolina no matter what. Among other reasons for her determination were that she felt she had given appropriate notice, had made informal arrangements to have the shifts covered which management usually sanctioned, had purchased non-refundable airline tickets in reliance on the timely request, thought she had been denied a vacation in the past when she clearly deserved one, and had obtained the general manager's conditional consent. Finally, she could see no real reason when she examined all the circumstances why her position could not be covered on the two days she wanted to be off. Ms. Monley's determination did not take into account several factors. She had not been given unequivocal permission by the Golf Course Manager to take the time off. The agreement with Peggy Johnson was explicitly subject to management's approval, approval Mr. Houlis was not likely to give. And Mr. Houlis, Ms. Monley's immediate supervisor, had told her that the request was denied. When Mr. Houlis saw Peggy Johnson on November 7, after Ms. Monley had spoken to her, he approached her to ask her to cover for Bowman after November 11. Ms. Johnson told him about the arrangement she had just made with Ms. Monley. In the wake of this information, Mr. Houlis conferred with Mr. Hoffman about the dilemma. The two agreed that Ms. Monley would not be able to take the days off. The Eve of the Trip and Plans Carried Out Mr. Hoffman and Mr. Houlis heard from several golf course employees that Ms. Monley intended to take off the two days that she had requested for vacation, November 14 and 17, no matter what Mr. Houlis' position might be. On Thursday, November 13, 1997, the day before the trip was to commence, Mr. Hoffman called Ms. Monley into his office to make sure that she understood management's position. In the presence of Mr. Houlis, Golf Course Manager Mike Hoffman, the head of management at the course and Ms. Monley's ultimate on-site supervisor, informed her that she did not have permission to take the vacation days requested. He told her clearly that she was expected to be at work on both the fourteenth and the seventeenth of November. Ms. Monley went to North Carolina as planned. Return to Work On November 19, 1996, Ms. Monley reported to work. She was told her conduct on October 30 and November 14 and 17 was under review. On November 20, 1996, Ms. Monley was given notice of her termination in a letter signed by Golf Course Manager Mike Hoffman. The cited basis for termination was Rule 18, Section 5 of the City's Personnel Rules and Regulations. The notice stated: On October 30, 1996, you abandoned your station around 10:00 a.m. and did not return until your next scheduled work day. You left without notifying your supervisor of your departure, even though he was readily available and accessible. In addition, on October 30, 1996, you left your cash draw without properly accounting for it and closing it out. On November 14, 1996, and November 17, 1996, you failed to report for duty as scheduled. Your absences on these dates were with the full knowledge as communicated by your supervisor on November 13, 1996, that your presence was required on these scheduled dates. Petitioner's No. 1. After her termination, Ms. Monley looked for jobs in the food industry, mainly in positions dealing directly with the public. For example, she applied at Chili's for a job as a waitress. In March of 1997, however, Ms. Monley, then more than four months pregnant, abandoned her search for work serving food since it had become futile in her condition.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That the Civil Service Board for the City of Tarpon Springs dismiss the October 30, 1996, incident as a ground for discipline and, with regard to the November absences, discipline Ms. Monley short of dismissal: suspension without pay from November 20, 1996, until the Board's consideration of this recommended order, with reinstatement as a City employee in a position outside the City Golf Course. DONE AND ENTERED this 22nd day of October, 1997, in Tallahassee, Leon County, Florida. DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 1997. COPIES FURNISHED: Thomas M. Gonzalez, Esquire Kelly L. Soud, Esquire Thompson Sizemore & Gonzalez, P.A. Post Office Box 639 Tampa, Florida 33601-0639 William Newt Hudson, Esquire 23 West Tarpon Avenue Tarpon Springs, Florida 34689
The Issue The issue in case number 94-6750 is whether Respondent's Class "A" private investigative agency license should be disciplined. The issue in case number 95-1084S is whether Respondent's application for a Class "C" license should be denied.
Findings Of Fact The Parties. Petitioner, the Department of State, Division of Licensing (hereinafter referred to as the "Division"), is responsible for, among other things, the licensing of privateinvestigators and private investigative agencies in the State of Florida. Chapter 493, Florida Statutes. In pertinent part, the Division may issue, pursuant to Section 493.611, Florida Statutes, the following classes of licenses: Class "C": private investigator; Class "CC": private investigator intern; and Class "A": private investigative agency. At all times relevant to this proceeding, Respondent, Keith P. Acuff, was licensed by the Division as a private investigator intern. Mr. Acuff holds a Class "CC" license from the Division. Mr. Acuff is also the owner of a private investigative agency known as Chatoyant Executive Protection and Investigative Services (hereinafter referred to as "Chatoyant"). Mr. Acuff holds a Class "A" license from the Division for Chatoyant. License Requirements. In order to qualify for a Class "C" license, an individual must operate for a minimum of twenty-four months as a private investigator intern. Section 493.6203(4), Florida Statutes. During those twenty-four months, the intern must be sponsored and supervised by an individual holding a Class "C" license. See Sections 493.6101(11) and 493.6116, Florida Statutes. Anyone, regardless of licensure, may hold a Class "A" license. In order for the business to operate as a private investigative agency, however, the agency must be managed by a person holding a Class "C" license. Mr. Acuff's Investigatory Experience. Mr. Acuff first received his Class "CC" license in July of 1990. In October of 1994 Mr. Acuff applied for a Class "C" license. See Petitioner's exhibit 1. The Division denied the application based upon its conclusion that Mr. Acuff had failed to verify that he had accrued twenty-four months of sponsored service as a private investigator intern. Mr. Acuff was first employed by Don Hubbard Investigations. Mr. Acuff had not claimed, nor does the evidence support a finding, that he is entitled to any time toward a Class "C" license for his employment with Don Hubbard Investigations. From the middle of September, 1990, until December, 1991, Mr. Acuff was employed by The Brown Group. Mr. Acuff's sponsor at The Brown Group was Steve Brown. The Division was able to verify from documentation submitted by Mr. Brown that Mr. Acuff was entitled to 12 months of investigatory work while employed at The Brown Group. Mr. Acuff failed to prove that he was entitled to more than 12 months credit for his employment with The Brown Group. Although Mr. Acuff testified that he believes he worked at least 15 months under Mr. Brown's sponsorship, he offered no proof from Mr. Brown to substantiate his testimony. From December 15, 1991, to February 15, 1992, Mr. Acuff was employed by Intercontinental Detective Agency. Mr. Acuff's sponsor at Intercontinental Detective Agency was Sean Mulholland. The Division was able to verify that Mr. Acuff had performed investigatory duties for Mr. Mulholland for 1 month. Mr. Acuff failed to prove that he was entitled to more than 1 month credit for his employment with Intercontinental Detective Agency. Mr. Acuff testified that he believes he worked at least 3 months under Mr. Mulholland's sponsorship but he offered no proof from Mr. Mulholland to substantiate his testimony. Mr. Acuff's testimony that he submitted a Sponsorship Term Addendum completed by Mr. Mulholland to the Division was not credible and, even if it had been credible, was insufficient to constitute substantiation from Mr. Mulholland of Mr. Acuff's work for him. Mr. Acuff's next investigatory work was for MG Detective Agency. Mr. Acuff's sponsor at MG Detective Agency was Michael G. Hatcher. Mr. Hatcher agreed to sponsor Mr. Acuff by executing a Letter of Intent to Sponsor Private Investigator Intern on October 27, 1992. See Respondent's exhibit 2. Cynthia L. Cartwright signed the form agreeing to be an alternative sponsor. Mr. Acuff did not list any time under Mr. Hatcher's sponsorship for credit on his application for Class "C" license. See Petitioner's exhibit 1. The Division was not able to verify that Mr. Acuff had performed any investigatory duties for Mr. Hatcher. Mr. Acuff failed to prove that he was entitled to any credit for his employment with MG Detective Agency. Mr. Acuff testified that he believes he worked at least 3 months under Mr. Hatcher's sponsorship but he offered no proof from Mr. Hatcher to substantiate his testimony. Mr. Acuff claimed on his application for Class "C" license that, upon leaving MG Detective Agency, he worked for Chatoyant from June of 1993 until August 1994. Mr. Acuff claimed that he was sponsored by Ms. Cartwright while employed for Chatoyant. Mr. Acuff also claimed that he performed investigatory work under Ms. Cartwright's sponsorship during the period he worked for Chatoyant for at least 3 and 1/2 months. Initially the Division planned to issue Mr. Acuff a Class "C" license. The Division concluded that Mr. Acuff was entitled to at least 11 months of sponsored investigatory work under Ms. Cartwright's sponsorship. Before the Class "C" license was issued to Mr. Acuff, however, the Division concluded that Mr. Acuff was not entitled to any sponsored time under Ms. Cartwright's sponsorship. The evidence, as discussed, infra, proved that Mr. Acuff is not entitled to any credit for work performed under Ms. Cartwright's sponsorship. Based upon the foregoing, Mr. Acuff provided verification that he had 13 months of sponsored investigatory service. Mr. Acuff is, therefore, 11 months shy of the 24-months of experience required for a Class "C" license. Mr. Acuff's Association with Ms. Cartwright. Mr. Acuff met Ms. Cartwright in late 1992 when he was employed briefly at MG Detective Agency. Ms. Cartwright has held a Class "C" license since 1991. Upon Mr. Acuff's termination of employment at MG Detective Agency, Ms. Cartwright was told by Mr. Acuff and a mutual friend, Carolyn Barber, that he only needed 2 or 3 months to complete the 2 years of internship required for a Class "C" license. Ms. Cartwright was asked if she would sponsor Mr. Acuff and act as the manager of Chatoyant for 2 or 3 months. Ms. Cartwright agreed to Mr. Acuff's request. She did so because Ms. Barber had asked her to and she felt sorry for Mr. Acuff because he had been terminated by MG Detective Agency only needing, Ms. Cartwright thought, 2 or 3 more months of sponsorship. Ms. Cartwright signed a Letter of Intent to Sponsor. The form she signed was blank. The Letter of Intent to Sponsor was subsequently completed, dated April 14, 1993 and filed with the Division. Ms. Cartwright admits she signed a blank form even though she understands that it was improper for her to do so. After agreeing to sponsor Mr. Acuff and act as the manager of Chatoyant, Ms. Cartwright changed her mind. She telephoned the Division's offices in Tallahassee in August of 1993 to ask how she could have her name removed as manager of Chatoyant. Ms. Cartwright was informed that her name did not appear as manager of Chatoyant. In the fall of 1993 Mr. Acuff asked Ms. Cartwright to sign a form terminating her position with Chatoyant. Ms. Cartwright told Mr. Acuff she did not see why she needed to sign a form based upon what she had been told during her conversation with the Division. When Mr. Acuff suggested that the Division might have made a mistake, Ms. Cartwright agreed to sign the form. In January or February of 1994 Ms. Cartwright signed a blank copy of a Termination/Completion of Sponsorship for Private Investigator Intern form. She gave the signed form to Ms. Barber. This form was ultimately completed, Ms. Cartwright's signature was notarized by Mr. Acuff's girlfriend, the form was dated August 30, 1994 and was then filed with the Division as part of Mr. Acuff's application for licensure. See Petitioner's exhibit 6. It was represented on Petitioner's exhibit 6 that Ms. Cartwright had sponsored Mr. Acuff from June 3, 1993 to August 26, 1994. An Employee Action Report was also filed with the Division. Petitioner's exhibit 5. The form indicates that Ms. Cartwright had resigned as manager of Chatoyant as of August 30, 1994. Ms. Cartwright did not sign the form. On October 5, 1994, Ms. Cartwright executed a Termination/Completion of Sponsorship for Private Investigator Intern form attesting that "I did not sponsor Patrick Acuff to my knowledge. I was not aware of Intent to Sponsor." Petitioner's exhibit 7. Ms. Cartwright did not sponsor any investigatory work by Mr. Acuff or act as the manager of Chatoyant. The Administrative Complaint. During the summer of 1994, the Division's office in Jacksonville received a letter questioning how Mr. Acuff could be working for Chatoyant without an appropriate license or manager. Ms. Norma Benvenuto, an investigator for the Division, checked the Division's records and determined that there was no sponsor listed for Chatoyant. Ms. Benvenuto spoke with Mr. Acuff and asked that he come to her office. Mr. Acuff complied. Mr. Acuff informed Ms. Benvenuto that Ms. Cartwright was the sponsor of Chatoyant. When asked for documentation, Mr. Acuff was only able to produce a blank form signed by Ms. Cartwright. Ms. Benvenuto asked Mr. Acuff to bring any documentation that would support his assertion that Ms. Cartwright was the manager of Chatoyant and that they had met to discuss his work during her sponsorship of him. Ms. Benvenuto telephoned Mr. Acuff more than once to remind him to bring the documentation. Mr. Acuff failed to provide any such documentation. Ms. Benvenuto contacted Ms. Cartwright in an effort to verify Mr. Acuff's assertions. Ms. Cartwright denied ever sponsoring Mr. Acuff or every actually performing any duties as the manager of Chatoyant. Ms. Cartwright also admitted that she had initially agreed to sponsor Mr. Acuff but had subsequently changed her mind. On October 20, 1995, the Division entered an Administrative Complaint against Mr. Acuff. The Denial of Mr. Acuff's Application for a Class "C" License. By letter dated December 16, 1994, the Division notified Mr. Acuff that his application for a Class "C" license was denied.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Division sustaining Counts II and III of the Administrative Complaint against Mr. Acuff in case number 94- 6750, requiring that he pay a fine of $1,000.00 and denying the application for a Class "C" license filed by Mr. Acuff or about August 30, 1994 in case number 95-1084S. DONE AND ENTERED this 28th day of April, 1995, in Tallahassee Florida. LARRY J. SARTIN, 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 April, 1995. APPENDIX The Division has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Mr. Acuff did not file a proposed order. The Division's Proposed Findings of Fact 1 Hereby accepted. See 4-5. 2-3 Hereby accepted. Accepted in 22. Accepted in 22, 28 and hereby accepted. Hereby accepted. Accepted in 25 and hereby accepted. Accepted in 22 and hereby accepted. Accepted in 17 and hereby accepted. See 26 and hereby accepted. Hereby accepted. Accepted in 16 and hereby accepted. Accepted in 14. Accepted in 13, COPIES FURNISHED: Michele Guy Assistant General Counsel Department of State Division of Licensing The Capitol, MS #4 Tallahassee, Florida 32399-0250 Jeffrey Grainger, Esquire 1722 University Boulevard South Jacksonville, Florida 32216 Honorable Sandra B. Mortham Department of State The Capitol Tallahassee, Florida 32399 Don Bell Department of State The Capitol Tallahassee, Florida 32399
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the respondent Division of Beverage issue the type 11-C license to petitioner without further delay. Respectfully submitted and entered this 24th day of March, 1976, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Charles A. Nuzum Division of Beverage Johns Building. Tallahassee, Florida
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The Respondent, Department of Labor and Employment Security, is the agency responsible for carrying out the duties and responsibilities assigned by the Governor of Florida under the Job Training Partnership Act, Public Law, 97- 300, as amended. In administering the JTPA, Respondent provided Petitioner, along with others, a RFP, which among other things, solicited proposals for programs to provide training and employment for older individuals as provided for by Section 124, JTPA, Title I. Paragraphs 111(1-7) of the RFP lists the requirements that must be addressed in the proposal and be judged affirmatively by Respondent in order for the proposal to be designated responsive and subject to further review and scoring. One of the requirements is the review by, and concurrence of, the CEO prior to submitting the proposal. The purpose of requiring CEO and Private Industry Council (PIC) Concurrence Statements at time of submission is to insure that no applicant uses State approval to "arm twist" the local PIC and CEO into approval. Petitioner submitted its proposal to the appropriate PIC for review and concurrence, thinking that the CEO Concurrence Statement would be obtained by the PIC. Upon return of the proposal by the PIC, there was no executed CEO Concurrence Statement included and, upon inquiry, Petitioner was informed by Joseph M. Brannon, Executive Director, PIC, that a CEO Concurrence Statement was not required for a JTPA Title I Program. At this point, Petitioner did not inquire of Respondent as to the need for the executed CEO Concurrence Statement even though the RFP indicated that the CEO Concurrence Statement was required at the time of submission. Joseph M. Brannon is not an agent of the Respondent and had no authority to change any of Respondent's RFP requirements. Although the proposal had been reviewed by, and had the concurrence of, the local PIC, the proposal, as timely submitted by the Petitioner on February 6, 1987, did not contain the CEO Concurrence Statement. The CEO, Harry H. Waldon, did execute, after the fact, a CEO Concurrence Statement dated January 14, 1987, which is the same date of the PIC Concurrence Statement and this CEO Concurrence Statement was transmitted to the Respondent by Mr. Brannon on March 6, 1987, some sixteen (16) days after the deadline of 3:00 p.m. on February 18, 1987. The evidence is insufficient to show that the CEO reviewed and concurred in the proposal prior to submission even though he was present at the meeting when the local PIC reviewed and concurred in the proposal. Even though Thomas E. Skinner, Jr. is the Executive Director of the Private Industry Council of Service Area 6, his testimony, which I find credible, was that his staff handled these matters and he was not aware of the necessity of CEO Concurrence Statement for a JTPA, Title I program. However, on this occasion, Mr. Skinner was acting on behalf of the Petitioner and it was his responsibility to submit a proposal that was responsive to Respondent's RFP, notwithstanding the conflicting advice from Joseph Brannon concerning the executed CEO Concurrence Statement. Although Respondent, independently of the RFP, advised proposal applicants of the necessity of achieving the 75 percent of performance goals in the previous year if requesting continued funding, a requirement for responsive proposals, there was credible evidence that Respondent did not relax the necessity of timely meeting this requirement by the date of proposal submission or relax any other requirement set out in the RFP. Petitioner's proposal was rated as non-responsive by the Respondent for failure to timely submit an executed CEO Concurrence Statement. The criteria adopted by the Respondent in the RFP is in accordance with the JTPA and the Governor's goals.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Respondent enter a Final Order finding Petitioner's proposal as non-responsive and denying Petitioner's request for further review and scoring. Respectfully submitted and entered this 3rd day of June 1987, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 3rd day of June 1987. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 87-I684BID The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 3. Adopted in Finding of Fact 2. Adopted in Findings of Fact 4 and 7. Adopted in Finding of Fact 5. Adopted in Finding of Fact 4. Adopted in Finding of Fact 9. Adopted in Finding of Fact 8. Adopted in Finding of Fact 10. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 3. Adopted in Finding of Fact 8 but clarified. Adopted in Finding of Fact 8 but clarified. Adopted in Finding of Fact 4. 5-7. Rejected as immaterial and irrelevant. Adopted in Finding of Fact 4. Adopted in Finding of Fact 6. Rejected as legal argument. Adopted in Finding of Fact 3. Adopted in Findings of Fact 7 and 8. COPIES FURNISHED: Hugo Menendez, Secretary 206 Berkeley Building 2590 Executive Center Circle East Tallahassee, Florida 32399-2152 Thomas E. Skinner, Jr. Qualified Representative Amex Enterprises, Inc. Post Office Box 47035 Jacksonville, Florida 32247-7035 Carolyn Cummings, Esquire Florida Department of Labor and Employment Security Suite 131, Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-0657
The Issue Whether Petitioner was the subject of unlawful discrimination in the terms, conditions, privileges, or provision of services in connection with the rental of a dwelling from Respondent, based on her race, in violation of section 804(b) or 804(f) of Title VIII of the Civil Rights Act of 1968, as amended by the Fair Housing Act of 1988 and the Florida Fair Housing Act, chapter 760, Part II, Florida Statutes (2011).
Findings Of Fact Respondent owns and manages the Country Club Woods residential community in Starke, Florida. Country Club Woods is a racially-mixed community. The current residential mix includes 29 African-American families and 6 white families. County Club Woods receives low-income housing subsidies in the form of tax credits through the Florida Housing Finance Corporation. Some residents qualify for federal Section 8 housing subsidies. Petitioner is African-American. On February 4, 2011, Petitioner signed a lease agreement for a home in Country Club Woods. Rent was $698.00 per month. The home was vacant, and power and water had been turned off. Respondent asked Petitioner to activate power and water so that repairs and unit preparation could be performed, and she did so. Petitioner?s rent for February was partially prorated to account for the period during which she did not occupy the unit. The lease agreement required that all occupants of the house be listed, and provided that “[n]o other occupants are permitted.” Guests were limited to stays of no more than 14 consecutive days. Due to the status of Country Club Woods as an affordable housing community, it is subject to restrictions on the income and criminal history of its residents. Therefore, all permanent occupants are required to undergo income and background screening to ensure that the low income housing tax credit rules are being met. The failure to do so could jeopardize the tax credits. When she signed the lease, Petitioner knew what the lease required regarding the occupancy of the house. Petitioner listed Aulettia Russ and Aarian Russ, her daughter and son, as occupants with her in the home. After the lease contract was signed, Respondent performed a few repairs and updates to prepare the unit for Petitioner. Mr. Sam Baker, who performed maintenance services for County Club Woods, fumigated the house and painted some of the interior walls. He performed a minor repair to the roof, which consisted of applying tar around the cracked rubber boot of the roof drain vent. Mr. Baker moved a stove into the house from another unit because there was no stove when the lease was signed. He also replaced the toilet with a new one. Petitioner moved into the unit on February 16, 2010. She was joined by her fiancé, Kevin Sampson, and her older son, Kelsy Roulhac, neither of whom were listed as occupants. Mr. Sampson was on probation for several felony offenses. Both Mr. Sampson and Mr. Roulhac were residents for the entirety of Petitioner?s tenancy. At no time during the tenancy did Petitioner seek to add Mr. Sampson or Mr. Roulhac to the lease. Petitioner testified that Rebekkah Baker, the property manager, knew that Mr. Sampson was a permanent occupant, but had no objection. Ms. Baker denied that she consented to his occupancy, given that it would have been a violation of Country Club Woods policy against leasing to persons with a criminal history in the past seven years. Given the consequences of failing to meet the occupancy and background screening requirements, Ms. Baker?s testimony is credited. When Petitioner moved in, there were still problems with the unit. Problems noted by Petitioner included a broken dishwasher, mildew on a number of surfaces, dead insects -- likely from the fumigation -- in the cabinets, a hole in the foyer wall caused by the adjacent door?s doorknob, a ceiling stain from the roof leak, a missing shower head, a broken light fixture, and a missing smoke alarm. In addition, the carpet was stained and in generally very poor condition. Petitioner resolved the mildew problem by cleaning the affected surfaces with Tilex. Petitioner?s son, Mr. Roulhac, got rid of the dead insects and cleaned the cabinets. Petitioner replaced the showerhead on her own. Shortly after she moved in, Petitioner notified Respondent that her roof was leaking. Mr. Baker went to the house, advised Petitioner?s daughter that he was there to fix the roof, and went onto the roof. He determined that the leak was occurring at the location of his previous repair. He completed the repair by re-tarring the roof drain vent boot. Petitioner testified that the roof continued to leak after heavy rains. She indicated that she made a subsequent complaint via a message left on Ms. Baker?s telephone answering machine. Ms. Baker testified that she received no subsequent complaints, and there is no other evidence to suggest that Respondent received any subsequent complaints regarding the roof. Mr. Baker performed no further repairs. Petitioner complained that the dishwasher was holding water. She testified that Respondent never came to fix the dishwasher. Both Mr. Baker and Ms. Baker testified that Mr. Baker was tasked to repair the dishwasher, but upon arriving at the house was denied entry, with the explanation that the dishwasher had been fixed by a friend, and the problem resolved by removing a plastic fork that had clogged the drain. From the time Petitioner moved in, until the time she vacated the home, Mr. Baker fixed the hole in the foyer wall and the broken light fixture. In addition, Mr. Baker came to the house to fix the refrigerator, which was a problem that was not on the original list. From the beginning of her tenancy, Petitioner complained of the carpet. The carpet was badly stained and worn. In addition, the carpet contained a dye or some other substance that aggravated Aarian Russ?s asthma. It was Petitioner?s desire to have the carpet replaced before the time of her daughter?s graduation. Respondent agreed to replace the carpet, and had employees of a flooring company go to Petitioner?s house to measure for new carpet. The flooring company employees were allowed entry to the house by Petitioner?s daughter. They measured the rooms, except for Petitioner?s bedroom, which was locked. Respondent advised Petitioner that the measurements of the bedroom of an identical unit could be provided to the carpet company. It is not known if that was done. Due to difficulties on the part of the flooring company, the new carpet was not installed before Petitioner vacated the unit. There was no evidence offered to suggest any relationship between the failure to install new carpet and Petitioner?s race. Petitioner complained that she had not been given notice that the flooring company employees were coming, and complained that Respondent had not performed a background check on the workers. She argued that she was entitled to have a background check done on anyone providing services before she would have to allow them into her home. There is no relationship between Petitioner?s complaints regarding the lack of a background check on the workers and Petitioner?s race. The lease agreement provides that “[m]anagement will make repairs . . . after receipt of written notice.” Respondent occasionally prepared work orders describing the nature of the problem at a unit, and the work done to resolve the problem. However, the evidence demonstrates that written work orders were likely the exception rather than the rule. It appears that most problems were reported by verbal requests, and resolved by Mr. Baker?s maintenance and repairs. Most of Petitioner?s requests for repairs and maintenance were made verbally. At some point, due to the number of items, Petitioner provided Respondent with a list of items for repair. There is no evidence that any repairs at Petitioner?s home were documented with a work order. In any event, there was no evidence that the failure to document the work, which was common, was the result of Petitioner?s race. Petitioner did submit seven work orders in evidence. Six of the work orders reflected repairs made by Respondent to the homes of African-American families upon verbal requests. One of the work orders reflected repairs made by Respondent to the home of a white family upon a verbal request. Petitioner questioned why none of her repairs were memorialized in work orders. The work orders do not substantiate that Petitioner was discriminated against on account of her race, and in fact serve to indicate that Respondent provided maintenance services equally, without any consideration to the race of the person requesting such services. Petitioner complained that Mr. Baker did not have “credentials,” and questioned him regarding any education or licenses that qualified him to perform maintenance, including electrical work. Whether qualified to do so or not, Mr. Baker performed maintenance for all of the residents of Country Club Woods, regardless of their race. There is no relationship between Petitioner?s complaints regarding Mr. Baker?s credentials and Petitioner?s race. Beginning in April, 2011, Petitioner began to fall behind on her rent. Petitioner was paid bi-weekly, though how that affected her ability to plan for monthly rental payments was not clearly explained. On April 21, 2011, Ms. Baker posted a notice on Petitioner?s door demanding that the $279.60 balance of the April rent payment be made. Petitioner denied having seen the notice. However, the copy of the notice put in evidence includes the notation from Ms. Baker that “[p]romised to pay balance w/ May 2011?s rent.” On May 9, 2011, Ms. Baker posted a notice on Petitioner?s door demanding that the rent payment be made. The amount in arrears was calculated to be $1,077.60, which included a late fee. Petitioner denied having seen the notice. However, the copy of the notice put in evidence includes the notation from Ms. Baker that “pd. $698 on 5/11/11.” On June 1, 2011, Ms. Baker posted a notice on Petitioner?s door demanding that the rent payment be made. The amount in arrears remained at $1,077.60. Petitioner denied having seen the notice. On July 27, 2011, Respondent provided a notice to Petitioner indicating that due to unauthorized occupants and $1,975 in unpaid rent, Petitioner had until August 1, 2011, to vacate the premises, or Respondent would commence eviction proceedings. Petitioner admitted to having received that notice. Respondent?s resident history report indicates that by the time Petitioner vacated the home on August 31, 2011, her rent was $2,075.60 in arrears. Some of that was due to assessed late charges, but the majority reflected unpaid rent. When Petitioner vacated the unit, Petitioner?s security deposit was applied, the remaining arrearage was assigned to a collection company, and Respondent?s books were cleared. Ms. Sheila Palmer and Ms. Tynesha Epps testified at the hearing. They have been residents of Country Club Woods for 16 years and for 1 year and 3 months, respectively. Both are African-American. Both testified that they had never been refused maintenance at their homes, and that Respondent was responsive to their requests for maintenance which were generally verbal. Neither Ms. Palmer nor Ms. Epps was aware of any instance in which management of Country Club Woods had discriminated against any tenant due to their race, though neither personally knew Petitioner. Ms. Headrick, Ms. Baker, and Mr. Baker each testified that they never denied or limited repair and maintenance services to any resident of Country Club Woods account of their race. They each testified convincingly that race played no factor in their duties to their tenants. Ultimate Findings of Fact There was no competent, substantial evidence adduced at the hearing that Respondent failed or refused to provide services to Petitioner under the same terms and conditions that were applicable to all persons residing in the Country Club Woods community. There was not a scintilla of evidence that, in providing services to Petitioner, Respondent deviated from its standard practice of providing maintenance services to all residents of Country Club Woods regardless of their race, income, or any other reason. The evidence does support a finding that Petitioner materially breached the terms of the lease agreement, both by allowing undisclosed persons to reside at the house, and by failing to timely pay rent. Petitioner?s race had nothing to do with the timing or manner in which maintenance and repair services were provided to her by Respondent, and it is expressly so found. The evidence did not demonstrate that Respondent discriminated against Petitioner on the basis of her race. Therefore, the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief filed in FCHR No. 2012H0004. DONE AND ENTERED this 16th day of February, 2012, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 16th day of February, 2012. COPIES FURNISHED: Eulinda M. Russ Post Office Box 902 Starke, Florida 32091 Sean Michael Murrell, Esquire Murrell Law, LLC 4651 Salisbury Road South, Suite 503 Jacksonville, Florida 32256 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether petitioners were required to obtain consent or authorization from Respondent to occupy and use sovereign submerged lands for the dock at issue herein; Whether petitioners obtained agency consent or authorization to occupy and use sovereign submerged lands; Whether petitioners are entitled to consent or authorization to occupy and use sovereign submerged lands after-the-fact; and If entitled, what terms and conditions should apply or be imposed incident to granting after-the-fact authorization to occupy and use sovereign submerged lands.
Findings Of Fact The Parties Gene R. Smith is an individual who holds title to real property in Merritt island, Brevard County, Florida, described as Tract A Sykes View Estates. Gene R. Smith originally owned, in its entirety, the upland tract that was developed as Sykes View Estates, a small six-lot residential subdivision. Sykes View Association, or Sykes View Homeowners' Association is an unincorporated entity with certain rights in Tract A, described on the recorded subdivision plat, filed for record on 10/8/87: Tract "A" is dedicated to the homeowners association for river access. Maintenance of Tract "A" is the responsibility of the homeowners association. (Joint Exhibit 1) The Department of Environmental Protection (DEP) was created by the Florida Legislature in 1993 with the merger of two previously separate state agencies, the Department of Environmental Regulation (DER) and the Department of Natural Resources (DNR). All existing legal authorities of the two agencies and all of their actions, pending and completed, were transferred to the new agency in Chapter 93-43, Laws of Florida. The Project The dock at issue extends from Tract A into waters of the State of Florida, more specifically, sovereignty submerged land lying within a water body known as Sykes Creek, part of the Banana River Aquatic Preserve in Brevard County, Florida. Sykes Creek generally runs north and south approximately 4.25 miles, from State Road 520 on the south to State Road 528 (the Beeline) on the north. Along the western side of Sykes Creek are approximately a hundred canals and thousands of homes. Sykes View Estates is also on the west side of Sykes Creek, and is surrounded on three sides by Catalina Isles Subdivision. Although virtually all of the west side of Sykes Creek from the Beeline to 520 is dredged and bulkheaded, with a myriad of man-made finger canals to access upland properties, the waterfront at Sykes View Estates is not dredged, and in its natural condition the water attains a depth of four feet approximately 220 feet from shore. Unlike the intensely developed west side of Sykes Creek, the east side of the water body is undeveloped; Audubon Park, a state-run park with extensive marshes and lakes, occupies the area east of and across from Sykes View. There are no homes at all on the east side of the Sykes Creek channel. Directly across the open water channel of Sykes Creek from the Sykes View Estates tract is a man-made dredge berm or dike, on the east side of which is both open water and marsh. Since construction of the dock in issue, the dredge berm across from Sykes View Estates has been filled and made into a roadway. For the purposes of this proceeding, the easterly extent of the Sykes Creek water body has not been surveyed. Prior to its development, the Sykes View Estates parcel was used as a dump site, full of trash and debris. In the late 1980's, Gene Smith, with the assistance of Richard Hefley, a licensed general contractor who had recently moved to Florida from Minnesota, determined to create a "tropical paradise." The Process In 1987, the subdivision plat was recorded and some houses were constructed, including houses for Gene Smith and Richard Hefley. Shortly thereafter, Gene Smith became very ill and asked Richard Hefley to help obtain permits for the docks they planned. Hefley had never been involved in the construction of docks, but started at the Brevard County building department for information about the process. He was told that the building department had no jurisdiction over open water but someone referred him to the Army Corps of Engineers, (ACOE), across the street. Hefley met with Irene Sadowski, staff person with ACOE; she gave him a copy of an instructional booklet titled, "State of Florida, Joint Application for permit" for the U.S. Army Corps of Engineers, Florida Department of Environmental Regulation and Florida Department of Natural Resources. He studied the booklet and retained Fredlund and Packard, a survey and engineering firm, to work on the application. An initial application was prepared in March of 1988. Richard Hefley took it to Irene Sadowski to look over and consulted with Wilbert Holiday from DNR about the water depth requirements; he then went back to the engineers with preparation of an application package for formal submittal. The first application submitted to DER is dated 5/10/89 and is signed by Richard Hefley, who is also listed as the applicant. The survey and engineer's drawings attached to the application show three docks, one each on lots 3, 4, and Tract A. The intent was to have a dock on Tract A for use by the subdivision homeowners and two private docks for the riparian lot owners, including Gene Smith. The application stated that ownership of all of the subdivision was by Gene Smith, except for lot 2, owned by Richard Hefley. The application is date-stamped received by DNR on June 20, 1989; and by DER on June 14, 1989. After the initial application submittal, DER required that Hefley segregate the three proposed docks into three separate applications and resubmit them. The application for the dock on Tract A, which is the subject of this proceeding, is dated June 30, 1989, and is signed by both Richard Hefley and Gene Smith. The applicant is shown as "Sykes View Association." The application is date-stamped received by DNR on August 16, 1989; by DER on July 17 and August 15, 1989; and by ACOE on July 6, 1989. processing of the applications for the two other proposed docks was suspended after the present dispute arose. After resubmitting the joint application, Richard Hefley paid a visit to the DER district office in Orlando, in early August, and met with staff person Barbara Bess. She agreed to see him without an appointment because she perceived he was confused about the process. She also considered the applications he submitted "a bit confusing" and she wanted to make sure that the agency would not need to go through several reviews before his files could be considered complete. In Ms. Bess' view, the application at that time was substantially complete, and she noted this in a handwritten memorandum to the file. DER permit #05-168716-4 for the dock in dispute was issued on October 27, 1989. The permittee is listed as Sykes View Association, and the permit provides that the permittee is authorized "to construct a private multi-dwelling dock 220 feet long by 5 feet wide terminating in a 25 foot T on Sykes Creek in Section 24, Township 24 South, Range 35 East." (Petitioner's exhibit #6) The permit, the application form, and the instruction booklet described in paragraph 10 above, each includes clear statements that all necessary state, federal and local permits must be obtained prior to commencing construction. Gene Smith and Richard Hefley were aware of those provisions. On the joint application, below the signature line with Hefley's signature is this printed statement: NOTICE TO PERMIT APPLICANTS This is a Joint Application; it is NOT a Joint Permit You Must Obtain All Required Local, State and Federal Authorizations or Permits Before Commencing Work (emphasis, underlining, bold, and extra spacing in original, Joint Exhibit 2, page 4) It is apparent that Richard Hefley knew that other agencies' permits and a consent from DNR were required. However, he was also relying on the instructional booklet that he had been given and had studied carefully. The booklet describes a procedure for processing applications and provides that DER will forward the application to the ACOE and DNR. The booklet describes the review by the ACOE, DER and DNR. The booklet also states: Where the proposed activity involves the use of state-owned submerged lands, DER shall not issue a permit before approval or consent of use is obtained from DNR, although DER will continue to process the application to the extent possible. The processing flow chart on page 29 of the booklet states: No time constraints on actions taken by [DNR, Bureau of Lands]. Application submitted to DER is not complete until action by [DNR, Bureau of Lands] is taken, if required. (Petitioners' exhibit #1) Understandably (and consistent with the typical applicant confusion acknowledged by Barbara Bess) Richard Hefley and Gene Smith were elated with their permit. A condition on the DER permit requires the applicant to notify the agency when it is ready to commence construction. Richard Hefley called Barbara Bess and asked if everything was done. He understood her to say "yes", and he said that he was notifying her that they were ready to commence and would get a contractor. He followed his telephone call with a written confirmation dated November 19, 1989. Hefley and Gene Smith retained Darrell's Docks, a qualified builder in Brevard County, and construction commenced on November 27, 1989. By Friday of that week the project was virtually complete. The pilings, stringers, cross- bracing and part of the decking were in place by Friday afternoon when Richard Hefley was notified that he needed to call DNR. He tried to reach Wilbert Holiday, but spoke instead to Todd Vandenberg who said that he needed to speak with Mr. Holiday, who had already left the office. The deck was finished the following day, a Saturday. When Richard Hefley reached Wilbert Holiday he was told there was a problem since the paperwork for the consent for use was not complete. Hefley met with Holiday in the local DNR office on December 5, 1989 and a lengthy process of exchange of questions and information commenced. This process continued for several months in 1990 and culminated in October 1990 with the notice of denial which triggered the request for formal hearing and the instant proceeding. The Controversy If the applicant was confused about the process, the agency reviewers were also confused about the application. The references to the Sykes View Homeowners Association on the joint applications made the ownership and the use intended unclear. During the permit review process and at the hearing these issues were partially resolved as reflected in these findings of fact. At all times relevant, Gene Smith was the record owner of Tract A, the upland parcel upon which the dock is sited. Smith's intent was that the dock would be used by the six homeowners in the small subdivision, for fishing and boating. While the initial plan was for four boat slips, Mr. Smith, at some stage of the review, agreed to reduce the number of slips to two. At all times relevant and throughout the application and review process, Richard Hefley was acting on behalf of Richard Smith, with his express authority. Neighbors enjoy the use of the dock, but there is no evidence of any maintenance by the homeowners' association. The dock, as designed and built, is approximately 220 feet long and five feet wide, with a 25 foot "T" cross at the end. It extends from the upland tract across approximately 29 percent of the width of Sykes Creek. It does not extend into the dredged channel and does not, therefore, interfere with navigation in that channel. The width of Sykes Creek at the dock site is approximately 750 feet, according to crude measurements with a U.S. Geological Survey map and a ruler. In an attachment to one of the application submittals, Petitioners' engineers reflect a width of 750 feet. During the course of its review and before the denial notice, DNR staff recommended that the dock be completely restructured to decrease the width of the walkway to four feet, shorten the length from shore to 150 feet, raise the height of the walkway to five feet above water, space the planks no closer than 1/2 inch, install guard rails and post "no mooring" signs. At any length less than presently existing, boat access is precluded, as the water is too shallow. Power boats would prop dredge the sandy bottom in the shallow water. Turbidity can affect sea grasses as distant as 100 feet from the boat. The modifications recommended by DNR staff would permit some fishing but no boating rights to the riparian owner. In the view of DNR's reviewing staff, boating at this site is inappropriate. The dock as built has received other permits and approvals in addition to the DER permit. The DNR shellfish environmental assessment section stated no objections, since the area is not a shellfish harvest area. The federal Environmental Protection Agency provided a letter stating no objection. The U.S. Fish and Wildlife Service conducted a review and issued a report and recommendation for approval of the dock. The ACOE issued an after-the-fact permit on July 2, 1992. The DNR consent or approval that is the subject of this proceeding requires a different review, since the Division of State Lands serves a proprietary function on behalf of the Board of Trustees of the Internal Improvement Trust Fund. No agency, including DER, had or claimed to have the authority to waive the requirements for consent of use for state-owned submerged lands. There is no credible evidence that the owner, Gene Smith, or anyone acting in his behalf deliberately acted to frustrate DNR review and approval process.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That a final order be entered, granting a consent of use to Gene Smith, or his successors, for the dock facility described in DER permit no. 05-168716-4, with these conditions: that he shall comply with all terms, conditions or restrictions of any other governmental authorities having jurisdiction over the project; b. that he assume full responsibility for future maintenance of the dock; that no more than two boat slips be maintained; that those slips be confined to the terminal end of the dock; and that guardrails along the main walkway be constructed to limit boat access to the dock except at the terminal end. DONE AND ENTERED this 10th day of August, 1995, in Tallahassee, Florida. MARY W. 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 10th day of August, 1995. APPENDIX APPENDIX The following constitute specific rulings on the findings of fact proposed by the parties: Petitioners' Proposed Findings 1. Adopted in Paragraphs 1 and 4. 2-6. Adopted in paragraph 5. 7-8. Adopted in Paragraph 6. 9-13. Adopted in substance in Paragraphs 7-9. 14. Adopted in Paragraph 10. 15. Adopted in substance in Paragraph 11. 16-17. Adopted in substance in Paragraphs 12 and 13. 18. Adopted in Paragraph 14. 19. Adopted in substance in Paragraph 17. 20. Adopted in substance in Paragraph 15. 21-23. Adopted in substance in Paragraphs 19 and 20. 24. Adopted in substance in Paragraph 21. 25-32. Adopted in summary in Paragraphs 22 and 30, otherwise rejected as unnecessary. 33-36. Adopted in Paragraph 28. Respondent's Proposed Findings 1. Adopted in Paragraph 3. 2 & 3. Adopted in Paragraphs 1 and 2. 4-6. Adopted in Paragraph 4. Adopted by implication in Paragraph 29. Adopted in Paragraphs 1 and 2. 9 & 10. Adopted in Paragraph 13. However, Smith and Hefley were also applicants. See Paragraphs 12 and 24. 11 & 12.Adopted in Paragraph 5. 13. Adopted in Paragraph 9. 14 & 15.Adopted in Paragraph 10. Adopted in Paragraphs 12 and 16. Adopted in Paragraph 13. Rejected as unsupported by competent evidence. It is clear that after the DER permit was received and the dock was built, Hefley received notice from DNR, but the record does not establish that the letter, however dated, was received in September or October 1989. Adopted in Paragraph 15. Adopted in substance in Paragraph 20. 21-22. Adopted in Paragraph 16. 23. Adopted by implication in Paragraph 29. 24-27. Adopted in Paragraph 25. Adopted in Paragraph 28. Rejected as unnecessary. Rejected as summary of testimony. Adopted in Paragraph 29. Adopted in Paragraph 26. Adopted by implication in Paragraph 25. Rejected as unsupported by the evidence, except for the finding that boats have been docked at the site, which is accepted. Adopted in Paragraph 27. Adopted in substance in Paragraph 24. Adopted in Paragraph 25. Adopted in Paragraph 27. Rejected a contrary to the weight of evidence, which evidence establishes that the water is four (4) feet deep at the terminal end of the dock. Rejected as unnecessary, except that in this instance, Smith is an individual owner seeking consent for a single-family dock. See Conclusion of Law, Paragraph 36. COPIES FURNISHED: Allen C. D. Scott, II 120 Commercial Avenue Federal Point, Florida 32131 M. B. Adelson, IV Assistant General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Virginia B. Wetherell, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Blvd. Tallahassee, Florida 32399-3000 Kenneth Plante, General Counsel Department of Environmental Protection Douglas Building 3900 Commonwealth Blvd. Tallahassee, Florida 32399-3000
The Issue Whether or not the Petitioner, Conduces Club, Inc., is entitled to the issuance of a Series 11-C alcoholic beverage license.
Findings Of Fact The Petitioner, Conduces Club, Inc., a nonprofit corporation incorporated in the State of Florida, has applied to the Respondent, State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, for the issuance of a series 11-C alcoholic beverage license. This license is described in Rule 7A-1.13, Florida Administrative Code, as a club license to sell to members and nonresident guests only. The terms and conditions for the issuance of such a license are as set forth in Subsection 561.20(7)(a), Florida Statutes, and Subsection 565.02(4), Florida Statutes. The Director of the Division of Alcoholic Beverages and Tobacco has denied the application of the Petitioner premised upon the assertion that the Petitioner has failed to meet the requirements set out in the aforementioned sections of the Florida Statutes. The Petitioner has disagreed with that interpretation and a Section 120.57, Florida Statutes, hearing was scheduled and held on April 10, 1979. The crucial language to be considered in determining whether or not the Petitioner should be extended the privilege of operating under a Series 11-C alcoholic beverage license is found in the Subsection 561.20(7)(a), Florida Statutes, which reads as follows: "(7)(a) There shall be no limitation as to the number of licenses issued pursuant to 565.02(4). However, any licenses issued under this section shall be limited to: Subordinate lodges or clubs of national fraternal or benevolent associations; Golf clubs and tennis clubs municipally or privately owned or leased; Nonprofit corporations or clubs devoted to promoting community, municipal, or county development or any phase of community, muni- cipal, or county development; Clubs fostering and promoting the general welfare and prosperity of members of showmen and amusement enterprises; Clubs assisting, promoting, and de- veloping subordinate lodges or clubs of national fraternal or benevolent associa- tions; and Clubs promoting, developing, and main- taining cultural relations of people of the same nationality." (Although the introductory phrase in the above-quoted Subsection makes reference to Subsection 565.02(4), Florida Statutes, as being involved in the process of issuing a license, Subsection 565.02(4), Florida Statutes, true function is the establishment of the requirement that chartered or unincorporated clubs pay an annual state license tax of $400.00, and it is this Subsection 561.20(7)(a), -- Florida Statutes, which establishes those categories of candidates who may receive a Series 11-C alcoholic beverage license.) Of the possible categories for licensure, the one which appears to be the focal point of the controversy is that provision found in Subsection 561.20(7)(a)3., Florida Statutes. In support of its request, the Petitioner presented certain witnesses and items of evidence. Among those items was the testimony of Mrs. E. R. Atwater, Social worker Supervisor with the United States Department of Housing and Urban Development, Housing Management Division, assigned to the Blodgett Community in Jacksonville, Florida. The Blodgett Community is a housing development of some 53 acres which contains 628 housing units with a breakdown of that population containing 301 senior citizens and 1,069 juveniles, with cost of the heads of the households being female. Those persons living in the Blodgett development are described as having a poor economic circumstance. Mrs. Atwater indicated that the Conduces Club, Inc., had on occasion sponsored girls softball teams and boys basketball teams for those young persons living in the Blodgett Community and she had expressed her appreciation in the form of correspondence of January 17, 1979, which is the Petitioner's Exhibit No. 1 admitted into evidence. In addition, Mrs. Atwater indicated that the Conduces Club, Inc., had provided transportation for a trip for the residents of the Blodgett Community to Six Gun Territory located near Ocala, Florida. Arrangements were made for three busses; two of the busses which transported residents on July 16, 1977, and the third bus transported them on August 11, 1977. The trips involved both young people and adults as participants. The letters requesting the assistance of the Conduces Club, Inc., and the confirmation of that request may be found as Petitioner's Exhibits Nos. 2 and 3, admitted into evidence consecutively. The president of the Conduces Club, Inc., Mr. Cornell Tarver, testified in support of the petition. He indicated that the club had been originally formed as the Pacesetter Club but its name was changed in September, 1976, because of a conflict concerning the utilization of the name, which had been preempted by another club. The club was chartered as a nonprofit corporation by the State of Florida on September 22, 1976, under the name, "Conduces Club, Inc." A copy of the Articles of Incorporation may be found as Respondent's Exhibit No. 1 admitted into evidence. Mr. Tarver indicated that the purpose of the club was to help the youth and senior citizens and principally the kids of the Blodgett Community, to include organizing softball and baseball and providing uniforms. He also testified that a certain banquet was hold for these young persons and the parents of those children were invited to attend, and enough food was prepared to food cost of the individuals who reside in the Blodgett Community. He produced certain plaques and trophies awarded to the club. The plague was given by the mothers of the children in the sports programs and the trophy was presented by an unaffiliated club that the Conduces Club had helped to organize. The witness, Tarver, indicated that the club was financed by functions such as dances, fish fries, food sales in their club house, dues of the members and fines. The club itself has twenty-seven members. Other projects the club has participated in, were the contribution of money to local churches and the donation of an organ to one of those churches. On December 16, 1977, the club contributed $500.00 to the National Association for the Advancement of Colored People. The club house is open every day and there are certain activities through the week, to include club meetings and entertainment for the benefit of club members. The members run the club without compensation and the club does not maintain any regular employees. The official statement of the club's purposes may be found in the Respondent's Exhibit No. 2 admitted into evidence. This is a composite exhibit which contains part of the application for the license and a copy of the Bylaws. The objectives of the corporation may be found in Article II of the Bylaws and the activities of the corporation may be found in Article VIII of the Bylaws. Article II states: "The objectives of this organization shall be as follows: To unite fraternally all persons who the membership may from time to time take into the club. To promote brotherhood, sportsmanship, friendship and charity for the membership and their families. To strive at all times to promote and protect the welfare of every member. To promote a spirit of cooperation between its members and the public. To honor outstanding individuals in the City of Jacksonville for their achievement. To do anything necessary, including, but not limited to, the ownership of property, real and personal, for the accomplishment of the foregoing objectives, or those which may be recognized as proper and legal objectives of this club, all of which shall be consistent with the laws, the public interest and the interest of its mergers. To sue or to be sued as a natural person. To bear a seal to be placed on all of the club's official correspondence." Article VIII states: "COMMITTEES Section 1. The following standing committees and such other committees as the directors may, from time to time deem necessary, shall be appointed by the president of the association. Social Committee Athletic Committee Scholarship Committee The duties of the standing committee shall include the following, which shall not, however, prelude other activities by such committees. Section 2. The social committee shall be composed of six members. It shall be the duty of this canted to supervise the use of club room and to plan such club meetings of a purely social nature as it may deem necessary. These may include parties, picnics, and other such social or athletic events sponsored by the organization. Section 3. The athletic committee shall be composed of three members. It shall be the duty of this committee to supervise and manage all athletic activities for the association, including but not limited to management of various athletic teams sponsored by the club. Section 4. The scholarships committee shall be composed of six members. It shall be the duty of this committee to screen applicants for scholarships and deserving students in Duval County, Florida, and to make recommendations to the general membership of its findings of worthwhile recipients of scholarships, or awards." It can be seen that the Petitioner's members have a commendable concern for the community in which the club has its principal base of operation and this concern has been expressed through the activities of the club members which have been described in the course of this Recommended Order; however, it appears from an examination of the testimony in this hearing and the official statement, that is, the Bylaws of this corporation, that the principal purpose of the club is as stated by the Article II B. of the Bylaws, which language states, "To promote brotherhood, sportsmanship, friendship and charity for the membership and their families," and this attitude carries over to foster good relations between those members and the members of the general public. Therefore, the Petitioner is not perceived as being a club which meets the criterion, "devoted to promoting community, municipal or county development or any phase of community, municipal or county development." See Subsection 561.20(7)(a)3., Florida Statutes. This conclusion is reached in examining the definition of the word "devoted," as found in Webster's New World Dictionary of the American Language, College Edition. That definition states that to be devoted one must be, "1. vowed; dedicated; consecrated. 2. very loyal; faithful." and although the community concern of the Petitioner is very high, it does not reach the level of devotion. Consequently, the Director of the Division of Alcoholic Beverages and Tobacco was correct in denying the application for a Series 11-C alcoholic beverage license.
Recommendation It is recommended that the Director of the Division of Alcoholic Beverages and Tobacco deny the Petitioner, Conduces Club, Inc.'s request for a Series 11-C alcoholic beverage license. DONE AND ENTERED this 30th day of April, 1979, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building MAILING ADDRESS 530 Carlton Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Jennings H. Best, Esquire 3410 North Myrtle Avenue Jacksonville, Florida 32209 Francis Bayley, Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 J. M. Ogonowski Richard P. Daniel Building, Room 514 111 East Coast Line Drive Jacksonville, Florida 32202
The Issue This case concerns the issue of whether Respondent's alcoholic beverage license should be revoked, suspended, or otherwise disciplined for violations of Chapter 849, Florida Statutes, which prohibits gambling. At the formal hearing, the Division of Alcoholic Beverages and Tobacco called as witnesses Beverage Lieutenant Thomas Stout and Beverage Officer Stephen Tompkins. The Respondent called as witnesses Jack Bent, Wade Byington, Sam Fritz, Daniel Cronin, John Hengerle, Ward Hill, Earl Martel and Neal Mills. The Petitioner offered and had admitted seven exhibits and the Respondent offered and had admitted three exhibits. A drawing of the licensed premises as contained in the Division of Alcoholic Beverages official records was placed into evidence as Hearing Officer's Exhibit No. 1. Counsel for the Petitioner and counsel for the Respondent submitted proposed findings of fact and conclusions of law for consideration by the undersigned Hearing Officer. To the extent that these proposed findings and conclusions of law are inconsistent with the findings and conclusions herein they were considered by the Hearing Officer and rejected as being unsupported by the evidence or unnecessary to a resolution of this cause.
Findings Of Fact At all times material to this proceeding, Respondent held Beverage license No. 18-67, Series 11C issued to the licensed premises at 629 Tamiami Trail, N.W., Port Charlotte, Florida. Elks Lodge No. 2153 is a local chapter of the National Elks Lodge. It is a fraternal organization having 2,994 members in the local lodge. The licensed premises at 629 Tamiami Trail, N.W., is the club facility where the members hold meetings and also socialize together. The lodge building is a large building consisting of a lobby, lounge area with bar, kitchen, and large dining and meeting room. Additionally, there is a smaller room which is located behind the lounge area. This small room is called the "Stag Room" and is open to and used only by the local members of Elks Lodge No. 2153. No guests, wives, or nonmembers are allowed in the Stag Room. The Stag Room contains a pool table area, card table area with several tables, a shuffleboard court, a bar, and an area of tables for just lounging. The bar is tended by a bartender. The local lodge is governed by a Board of Governors which sets policy for the lodge and a Board of Trustees which is responsible for the financial matters and building and other physical assets of the lodge. The chief operating officer of the lodge is elected by the members and has the title of "Exalted Ruler." The manager of the club facility is hired by the Board of Governors. On January 27, 1983, at approximately 11:30 a.m., Beverage Officer Tompkins, of the Ft. Myers District, visited the licensed premises of the Respondent. His purpose was to investigate a complaint that the lodge had sold kegs of beer to another club. After speaking with the manager of the club facility, Officer Tompkins made a routine inspection of the licensed premises. As a part of his routine inspection, Officer Tompkins entered the Stag Room and first checked the bar area of that room. Behind the bar, he found a slip of paper (Petitioner's Exhibit 1) which reflected bets between unknown individuals on the Super Bowl game to be played within a few days between the Washington Redskins and the Miami Dolphins. The sheet was undated and unsigned and was laying in the open on a counter behind the bar. After checking the bar area, Officer Tompkins proceeded to inspect the contents of a cabinet located between the pool area and the card playing area. In that cabinet, Officer Tompkins found several items which he seized as evidence. In the top drawer of the cabinet, Officer Tompkins found three white pieces of paper, each appearing to be scoresheets for a game of some sort. On the first sheet (Petitioner's Exhibit 2-A) appears the first names of six individuals in columns with scores or running totals under each name. These totals consist of plus and minus numbers which after each round totaled zero. These numbers appear to represent amounts owed to and from each player and at the bottom of five of the columns is the entry "Pd." This sheet was used to keep track of winnings and losses in some type of game. No evidence was presented which identified the individuals named or the date the sheet was prepared. The second sheet (Petitioner's Exhibit 2b) contains several paired columns titled "We" and "They" at the top of each pair. These columns contained numbers which appear to be scores in some type of game. Some of these numbers contain decimal points, such as "14.67" which appear to represent dollar amounts. The third sheet (Petitioner's Exhibit 2c) is similar to Petitioner's Exhibit 2b, but does not contain decimal numbers or numbers that appear to represent dollar amounts. In that same drawer Officer Tompkins found three yellow envelopes with writing on the front of each envelope. The first envelope (Petitioner's Exhibit 3a) was empty and on the outside of the envelope was written "3 players." The second envelope (Petitioner's Exhibit 3b) also was empty and bears the notation "4 players." The third envelope (Petitioner's Exhibit 3c) bears the notation "tally sheets" and contained two sheets of paper that appear to be tally sheets for some type of game. In the same cabinet, but not in the drawer, Officer Tompkins found two paper bags bearing the business name "Quick Print." (Petitioner's Exhibits 4a and 4b). Each bag contained several hundred blank tally sheets. These sheets are similar to tally sheets used in card games such as bridge. These sheets were not purchased by the Respondent. Also in the same cabinet in Respondent's Stag Room, Officer Tompkins found a yellow folder, Petitioner's composite Exhibit No. 5, containing a typewritten rule book called "Eight Ball Tournament House Rules" dated August 23, 1982, with a notation that it was amended October 8, 1982. The rule book provides that "[e]xcept for the rules specified herein, the Official Book of Rules in the Stag Room will apply." The book further provides that the players' positions on the singles and doubles elimination sheets will be determined by lot. Also contained within the yellow folder, Petitioner's composite Exhibit No. 5, were original elimination sheets designed for tracking the players, drawn by lottery, through various levels of play in a pool tournament. These elimination sheets are titled "Elk's Lodge 2153 Pool Tourney." (See Petitioner's composite Exhibit No. 5). In that same cabinet in the Stag Room of Respondent's licensed premises Officer Tompkins found a manila envelope containing Petitioner's Exhibit No. 6, a handwritten registration sheet titled Registration - 8 Ball Tournament 22 Jan 83 Doubles Fee: $3.00. This sheet contains four columns - two titled "Name" and two titled "Fee Paid." In the first column entitled Name are listed five names after which, in the Fee Paid column, is listed the amount of $3.00. This sheet further indicates that the listing was made as of 11 a.m. on 22 Jan 83 and that the money was refunded. Also found within that manila folder were "Guidelines for Coordinator on Day of Play." (See Petitioner's Exhibit No. 7). Those guidelines provide that if less than 12 players sign up for the tournament, the tournament will be cancelled and the money refunded. Those guidelines further provide that, using the registration sheets, names will be drawn by use of numbered pills and given a position on the elimination sheet. The guidelines provide for prizes for first and second place winners in the doubles and for first, second and split third place winners in the singles. While play is underway, the coordinator is to calculate prize money by arriving at the "kitty" with $2.00 per player for the 12 to 15 players, then deduct $3.00 for the coordinator's services. The balance of the kitty would be divided with 45 percent going to the first place winner, 30 percent going to the second place winner, and 25 percent going to the third place winner to be split 50/50 between the two third place winners. A different method for calculating allocation of the kitty is provided for the doubles play. (Petitioner's Exhibit No. 7). Also contained within that folder found in the cabinet in the Stag Room of Respondent's licensed premises were copies of the original elimination sheets previously seen in Petitioner's composite Exhibit No. 5. The above described guidelines were prepared for a proposed pool tournament which did not take place. Sometime in the fall of 1982, the officers of the Respondent club became aware that a pool tournament was being planned. Upon learning of this, the Exalted Ruler, the chief presiding officer, cancelled the pool tournament and instructed those persons who were planning the tournament that such an event could not be held in the lodge. The Respondent has a policy against gambling on the lodge premises. Section 210 of the annotated statutes of the Grand Lodge of Elks prohibits gambling, in any and all forms, in any lodge room, club room or social parlor connected with a lodge. Failure to abide by a section of the annotated statutes can result in revocation of the local lodge's charter. The officers of Respondent were not aware of any gambling taking place on the lodge premises and after receiving notice from Officer Tompkins that he suspected gambling was occurring, the Lodge published an article in its monthly newsletter reminding its members of their duty to not gamble and to abide by the annotated statutes of the lodge. Petitioner presented no evidence that gambling had actually been observed by anyone on the licensed premises. No gambling had been observed by the officers or trustees of the lodge.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED: That the Respondent be found not guilty of the charges alleged in the Notice to Show Cause and that such charges be dismissed. DONE and ORDERED this 27th day of October 1983, in Tallahassee, Florida. MARVIN E. CHAVIS Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 1981. COPIES FURNISHED: Janice G. Scott, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Robert M. Bader, Esquire 209 Conway Boulevard, N.E. Port Charlotte, Florida 33952 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether the Respondent violated Sections 112.313(6), 112.313(7)(a), and 112.313(8), Florida Statutes (Supp. 1994), and, if so, what penalty should be imposed.
Findings Of Fact Respondent, Robert Lee Thomas, served as Mayor of Glen St. Mary for approximately fourteen years prior to his resignation on June 6, 1995. In early December 1994, Ed Harvey, vice-president of the Baker County Shrine Club, telephoned Respondent regarding certain real property owned by the Shrine Club. Mr. Harvey told Respondent that the Shrine Club wanted to sell the property for $20,000. The Shrine Club had previously purchased the property from the City of Glen St. Mary. Pursuant to a provision in the deed conveying the property, the Shrine Club was obligated to give the city right of first refusal should it ever decide to sell the property. Consistent with this provision, Mr. Harvey contacted Respondent in his role as Mayor so that the matter could be presented to the Glen St. Mary City Council (Council). At the time Ed Harvey called Respondent regarding the sale of the Shrine Club property, information that the property was for sale was not available to the general public. When initially contacted by Mr. Harvey regarding the sale of the Shrine Club property, Respondent was aware that the City of Glen St. Mary had a right of first refusal on the Shrine Club property. During their telephone conversation, Respondent asked Mr. Harvey if the Shrine Club would sell the property to anyone other than the City of Glen St. Mary. Mr. Harvey told Respondent that the property was available to anyone for $20,000, subject to the City of Glen St. Mary's right of first refusal. After learning that the Shrine Club property was for sale, Respondent contacted his cousin, C. Parker Thomas, pastor of the Midnight Cry Ministry Church. Respondent informed C. Parker Thomas of the availability of the Shrine Club property because he knew that his cousin was looking for property in the Glen St. Mary area. As a result of Respondent's communication with C. Parker Thomas, the church decided to purchase the Shrine Club property and use it as an outreach center. On December 15, 1994, Respondent met with Jimmy Robbins, an elder of the Midnight Cry Ministry Church, and C. Parker Thomas at Respondent's home. At this meeting, Respondent accepted a $2,000 binder check dated, October 15, 1994, from Mr. Robbins on behalf of the Midnight Cry Ministry Church. The binder check was given to Respondent in exchange for his agreement to sell the Shrine Club property to the church for $30,000. Respondent asked Mr. Robbins to postdate the December 15, 1994, binder check to December 21, 1994. However, Mr. Robbins refused to postdate the check. Respondent brought the issue of the Shrine Club property up before the Council at its December 20, 1994, meeting. Specifically, the issue brought to the Council by Respondent was whether the City should exercise its right of first refusal and purchase the Shrine Club property. In presenting the issue to the Council for a vote, Respondent pointed out that the City of Glen St. Mary already had more land than it needed. Comments made by Respondent were intended to persuade the Council members not to purchase the Shrine Club property. After a brief discussion of the issue, the Council voted to decline to purchase the Shrine property. At no time did Respondent inform the Council that he had an agreement to sell the Shrine Club property to the Midnight Cry Ministry Church for $10,000 more than the Shrine Club was asking for the property. On December 23, 1994, three days after the Council voted to decline to exercise its right of first refusal, Respondent cashed the December 15, 1994, binder check from the Midnight Cry Ministry Church and used the money to purchase a $2,000 cashier's check as a binder on the Shrine Club property. The cashier's check was made payable to the Shrine Club with Respondent named as the remitter. On or about December 24, 1994, Respondent delivered the $2,000 binder check made payable to the Shrine Club to Ed Harvey. On February 23, 1995, Respondent purchased the Shrine Club property from the Shrine Club for $20,000. On that same date, Respondent sold the Shrine Club property to the Midnight Cry Ministry Church for $30,000. Winston Byrd was a Glen St. Mary City Commissioner on December 20, 1994, and participated in the vote regarding the City's right of first refusal on the Shrine Club property. Mr. Byrd voted not to purchase the Shrine Club property, but would have voted differently if Respondent had disclosed that the Midnight Cry Ministry Church was willing to purchase the property for $30,000.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order and Public Report be entered finding that Respondent, Robert Lee Thomas, violated Section 112.313(6), 112.313(7)(a) and 112.313(8), Florida Statutes (Supp. 1994); imposing a civil penalty of $1,000 per violation; ordering the restitution of the $10,000 profit Respondent made on the land deal to the City of Glen St. Mary; and issuing a public censure and reprimand. DONE and ENTERED this 10th day of January, 1997, in Tallahassee, Florida. COPIES FURNISHED: Eric S. Scott CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUMCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 10th day of January, 1997. Assistant Attorney General Attorney General's Office PL-01, The Capitol Tallahassee, Florida 32399-1050 Mr. Robert Lee Thomas Post Office Box 185 Glen St. Mary, Florida 32040 Bonnie Williams Executive Director Florida Commission on Ethics 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool General Counsel Florida Commission on Ethics 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Kerrie J. Stillman Complaint Coordinator Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue The issue is whether petitioner is entitled to an award of attorney's fees and costs under Section 57.111, Florida Statutes.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background This case involves a claim by petitioner, John E. Phillips, Jr., that he is entitled to an award of attorney's fees and costs because of an administrative action improvidently brought against him by respondent, Department of Banking and Finance (DBF). When the complaint was filed, Phillips was registered with DBF as an associated person with Aragon Financial Services, Inc. DBF contends the claim is without merit because Phillips is not a small business party within the meaning of the law, there is substantial justification to support the agency's decision to file a complaint, and special circumstances are present which would make an award of fees and costs unjust. The action which underlies this claim involved an administrative complaint filed against Phillips on February 4, 1994, charging him with violating various provisions within Chapter 517, Florida Statutes. That complaint was assigned Case No. 94-1266. The complaint also denied an application by Phillips to register as an associated person with a new firm. In addition, the complaint named Bruce M. Walker as a co-respondent, and as to that registrant, the complaint was assigned Case No. 94-1358. Both cases were consolidated for hearing and, after an evidentiary hearing was conducted on June 27, 1994, a Recommended Order was issued on September 13, 1994, recommending that all charges against Phillips be dismissed and that his application for registration be approved. The Recommended Order was adopted by DBF without change, and Phillips is accordingly deemed to be a prevailing party in that action. Phillips has requested fees and costs in the amount of $15,000.00, the maximum allowed by law. Respondent does not contest the reasonableness of that amount. Prima Facie Requirements for an Award of Fees and Costs In order to show entitlement to an award of fees and costs, petitioner must demonstrate that he is a "prevailing small business party" within the meaning of the law. Since he has filed the petition on his own behalf, he must show he is a sole proprietor of an unincorporated business, including a professional practice, whose principal office is in this state, who is domiciled in this state, and whose business or professional practice has, at the time the action is initiated by the state agency, not more than 25 full-time employees or a net worth of not more than $2 million. At the time the administrative complaint was filed, Phillips was domiciled in Pensacola, Florida, and had a net worth of less than $2 million. According to an uncontroverted allegation in his petition, Phillips had no "employees relating to business that formed the basis for the Agency's charges." Petitioner was also a 50 percent shareholder in a subchapter S corporation known as Phillips, Walker & Associates, Inc. (PWA), a Pensacola firm engaged in the sale of insurance products. Although Phillips was registered with DBF as an associated person with Aragon Financial Services, Inc., that firm was not the subject of the complaint nor is it otherwise relevant to this dispute. Petitioner's principal source of income was through the sale of insurance products sold through PWA although he occasionally sold a few securities during that same period of time. The administrative complaint was not filed against PWA, which held no licenses from the state, but rather was filed against the registration of Phillips as an individual. Although he was an officer, employee and shareholder of PWA, Phillips was not a sole proprietor of an unincorporated business, including a professional practice. Therefore, he does not qualify as a small business party. Was There Substantial Justification? The consumer complaint which eventually led to the filing of the charges in Case No. 94-1266 was made by Jane Hubbard, a Gulf Breeze realtor who had loaned a substantial amount of money ($50,000.00) to PWA in May 1988 and was never repaid. The loan was secured by a promissory note personally signed by Phillips and Walker, as the owners of the corporation. After PWA ceased doing business in May 1990, and both Phillips and Walker had filed for bankruptcy, Hubbard, or her attorney, contacted DBF in an effort to seek DBF's aid in collecting her money from Phillips and Walker. Since petitioner was registered with DBF as an associated person, and thus was subject to DBF's regulatory jurisdiction, Hubbard apparently assumed that Phillips may have violated the law in some respect, and the agency might be able to assist her in recovering all or a part of her money. A similar complaint filed with the Department of Insurance was not pursued by that agency. Hubbard's complaint was eventually referred to a DBF financial examiner, Robert R. Kynoch, who, among other things, interviewed Phillips, Walker, Hubbard, and three other persons who had made loans to Walker (but not Phillips). Although Kynoch did not place the persons interviewed under oath during the investigative stage, there was no requirement that he do so. Based on a representation by Hubbard that Phillips and Walker had failed to disclose to her all relevant information regarding PWA's financial status at the time the loan was made, Kynoch concluded that a reasonable basis existed to bring charges against the two if the loan was actually an investment, and thus subject to DBF's jurisdiction under Chapter 517, Florida Statutes. Accordingly, Kynoch prepared a written investigative report, received in evidence as respondent's exhibit 3, which recommended that the report "be further reviewed for appropriate disposition." The report was first reviewed by Michael D. Blaker, a DBF area financial manager, who approved the recommendation and forwarded it to his supervisor, Richard White. It was then reviewed and approved by a bureau chief, William Reilly, and finally by the division director, Don Saxon. After Saxon signed off on the report, it was sent to the general counsel's office for a legal determination as to whether the loan was an investment. Margaret S. Karniewicz, an assistant general counsel, concluded that it was, and recommended the issuance of an administrative complaint. After an evidentiary hearing was conducted, a determination was made that the loan constituted an investment. This determination in the Recommended and Final Orders was not contested by any party, including Phillips. There was, however, insufficient evidence to establish that misrepresentations were made by Phillips during the sale of the investment. For this reason, the charges against Phillips were dismissed and his application for registration with a new firm was approved. Because DBF had statements, which it assessed to be credible, from a complaining witness (Hubbard) that misrepresentations or material omissions were made by Phillips and Walker during the transaction, and DBF properly construed the transaction as an investment, it had a reasonable basis in fact and law to file the complaint. Since there was no showing that the agency's credibility assessment was unreasonable, DBF was substantially justified in bringing the charges in Case No. 94-1266. Special Circumstances There was no evidence presented by respondent to show that special circumstances exist that would make an award of attorney's fees and costs unjust.
