The Issue Whether Respondent committed the violations alleged in the Administrative Complaint in the manner specified therein and, if so, what penalty should be imposed.
Findings Of Fact Respondent is now, and has been since November 2, 2006, a Department-licensed state pilot. Respondent's license (License No. SP177), which is current and active, authorizes him to pilot vessels in and out of the Port of Palm Beach (Port). The Port has 17 berths at which vessels can dock. The navigable portions of the Port consist of an inner and an outer channel, two turning basins, and three slips. To aid mariners traversing the Port, there are navigation markers (herein referred to as "Beacons"), which are sequentially numbered in ascending order from east to west with odd-numbered markers to the port side and even-numbered markers to the starboard side of inbound vessels. The Tropic Carib (Ship) is a foreign-flagged container ship owned by Tropical Shipping (Tropical). With an overall length of 525 feet and a gross registered tonnage of 10,825, it is the largest vessel regularly accommodated at the Port. It is equipped with bow and stern thrusters and a Becker rudder and is otherwise designed to handle well in harsh conditions. At 12:50 p.m. on August 3, 2011, at around high water slack, the Ship was offshore, just to the east of the entrance to the Port's outer channel, drawing 21 feet four inches forward and 23 feet aft, when Respondent boarded and took command of the vessel from the Ship's captain for the final leg of its journey. The Ship was bound for the Port's Berth 7 (Assigned Berth) to offload its cargo. The Assigned Berth is a 464-foot, north-south oriented marginal wharf that lies directly on the western end of the Port's main turning basin (Main Turning Basin), into which the inner channel flows.2/ As the Ship, with Respondent on the bridge and in command,3/ entered the outer channel heading west to the Assigned Berth following the much smaller, 31-foot pilot boat (Pilot Boat) that had carried Respondent out to the Ship, there was no evidence of any storms in the area.4/ Precipitation, in the form of a light drizzle, was first encountered as the Ship was travelling in the inner channel between Beacon 8 and Beacon 10. Respondent, at this time, also observed lightning in the distance. He saw one bolt that struck a Port transformer5/ and another bolt that struck approximately one-half mile north of the Port causing a small explosion. After seeing these lightning strikes, Respondent decided to inquire as to whether the lightning had impacted the availability of Tropical's Port-based line handlers to assist with the mooring of the Ship at the Assigned Berth. He did not have the capability of communicating directly with Tropical's Port-based personnel, so he radioed the pilot of the Pilot Boat (Boatman), who did have such capability, and asked her to make this inquiry on his behalf. Respondent did not hear back from the Boatman until the Ship had passed Beacon 10 and was approaching Beacon 12, beginning its turn to the southwest toward the Assigned Berth. The Boatman informed him that the line handlers had been ordered to take cover, as a precautionary measure, due to the lightning in the area and therefore were not at the Assigned Berth waiting for the Ship to arrive. Respondent, however, did not receive any report from the Boatman, who was in front of him on the Pilot Boat, that there were any squally conditions ahead about which Respondent needed to be concerned in navigating the Ship to its ultimate mooring position. By the time Respondent heard back from the Boatman, the intensity of the rain had increased somewhat, but weather conditions had not worsened to the extent that Respondent's ability to maneuver the Ship was impacted. Visibility was still good and the winds, which were predominantly westerly, did not present a problem. The Ship was about ten minutes away, under ordinary circumstances, from its intended destination to the southwest alongside the Assigned Berth. Respondent had the Ship continue on course, in a southwesterly direction, toward the Assigned Berth, a decision that was reasonable under the circumstances that existed at the time. That line handlers might still be unavailable when he arrived did not make heading toward the Assigned Berth a foreseeably more risky or imprudent choice than any other option that Respondent may have had at the time. Respondent had no reason to believe that, if there no line handlers at the Assigned Berth to catch and secure the Ship's mooring lines, the Ship, equipped as it was, would not be able to hover in the water alongside the Assigned Berth and wait for the line handlers to appear. Moreover, even if there were stronger than anticipated westerly winds and the Ship, for some reason, were unable to hold its position, it would be blown, not toward, but away from the Assigned Berth, in the direction of the center of the Main Basin. A few minutes later, as the Ship was approaching the Assigned Berth, it ran into a sudden and unexpected rain squall, with west-southwesterly wind gusts over 30 knots and blinding rains which reduced visibility to zero. Radio communications from the boatswain at the bow of the Ship, who was providing Respondent with needed information concerning the Ship's position in relation to the Assigned Berth, became garbled and unreliable. Reasonably fearing an allision if the Ship continued its forward motion under these conditions, Respondent prudently ordered that the port anchor be dropped, with 1.5 shots (135 feet) on deck,6/ and that the Ship's engines be put astern, orders that were followed. After determining, from the prop wash that he saw on the starboard side of the vessel, that the Ship was no longer closing on the Assigned Berth, Respondent ordered slow ahead, but the Ship's bow thrusters were overcome by the wind, causing the bow of the Ship to swing and the anchor to drag. As a result, the Ship's starboard stern corner touched the sandy bottom approximately 30 feet west of Beacon 12 in the northern part of the Main Turning Basin, where recorded water depths are from 13 to 15 feet and, at high water slack, are generally three to four feet higher. The grounding produced minor, cosmetic damage to the Ship's rudder. No other damage to the Ship was sustained. The squally conditions lasted a mere two minutes. When the weather cleared, Respondent ordered engines ahead. The Ship proceeded to its mooring position alongside the Assigned Berth, where it was serviced by the Tropical line handlers, who had emerged from the shelter they had sought from the lightning. Thereafter, at the recommendation of the Ship's captain, Tropical had divers inspect the underbody of the Ship. The inspection revealed the damage to the rudder caused by the grounding of the Ship during the rain squall (Grounding Incident).7/ Respondent was notified by Tropical of the outcome of the divers' inspection at around 3:30 p.m. on August 3, 2011, and, within a matter of minutes of receiving such notification, he telephonically reported the Grounding Incident to the United States Coast Guard (USCG) and to the Department's Pilot Consultant/Investigator, Lieutenant Commander Galen Dunton, USCG (Ret.).8/ The following day, Respondent provided Commander Dunton with a written report of the incident, as required by section 310.111 and Florida Administrative Code Rule 61G14-15.002. On August 30, 2011, Commander Dunton issued his Investigative Report concerning the Grounding Incident. It contained the following "Conclusions" and "Recommendation": Conclusions: It is concluded that Captain Hansen was operating under the auspices of his state license and therefore subject to disciplinary action by the State of Florida. The proximate cause [of the grounding of the Ship on August 3, 2011] is unknown. The most probable cause was the failure of the pilot to seek a better position within the [Main] Turning Basin to anchor instead of trying to come alongside the intended berth. The pilot made an error in judgment in deciding to approach the berth without any line handlers to assist versus seeking a better position within the [Main] Turning Basin to anchor and ride the storm out. Had the pilot proceeded further to the SW in the [Main] Turning Basin and then anchored,[9] he may not have grounded or at least bought more time to ride out the storm. The anchor began to drag once the bow started to swing with the wind, and as a result the stern quickly touched bottom near Beacon #12. There is evidence of a violation of FS 310.101(1)(a) on the part of the pilot, in that he failed to make allowances for the wind by anchoring off the berth instead of seeking a better position within the [Main] Turning Basin. There is evidence of a violation of FS 310.101(1)(k) on the part of the pilot in that he failed to (1) seek a better position to anchor within the [Main] [T]urning [B]asin, (2) [a]ttempted to approach the berth knowing that there were no line handlers available, practices not in keeping with the acceptable standards of safe piloting. Recommendation: It is recommended that 1. This case be forwarded to the Probable Cause Panel and that probable cause be found to exist for the following violations: FS 310.101(1)(a) on the part of the pilot in that he failed to make allowances for the wind by anchoring off the berth instead of seeking a better position within the [Main] Turning Basin. FS 310.101(1)(k) on the part of the pilot in that he failed to (1) seek a better position to anchor within the [Main] [T]urning [B]asin, (2) [a]ttempted to approach the berth knowing that there were no line handlers available, practices not in keeping with the acceptable standards of safe piloting.[10] The probable cause finding Commander Dunton recommended was made, and an Administrative Complaint, based on this finding, was thereafter filed. Respondent subsequently requested a "formal hearing" on the allegations against him. This administrative proceeding ensued, with the final hearing being held on February 27, 2012. Ultimate Finding The evidence presented at the final hearing did not clearly and convincingly establish that, in having the Ship approach the Assigned Berth and anchor where it did during its inbound journey through the Port on August 3, 2011, Respondent failed to exercise the care a reasonable and prudent Department- licensed pilot would have exercised under the same or similar circumstances or otherwise violated some professional standard of care or safety he was obligated to follow as a Department- licensed pilot.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Pilot Commissioners dismiss the Administrative Complaint against Respondent in its entirety. S DONE AND ENTERED this 29th day of March, 2012, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 2012.
Findings Of Fact Upon consideration of the evidence adduced at the hearing, the following relevant facts are found: At all times material to this case, the Respondent was certified by the Petitioner, Criminal Justice Standards Training Commission (Commission) as a correctional officer, having been issued certificate number 14-82-502-17 on November 18, 1982. Respondent is currently employed with the State Of Florida, Department of Corrections at New River Correctional Institution. The Respondent has been employed with the Department of Corrections as a correctional officer since September 10, 1982. Respondent's duties and responsibilities as a correctional officer include the care, custody and control of inmates. Respondent serves as a dormitory officer at New River Correctional Institution and his duties require that he ensures the inmate dormitory runs in a smooth, trouble free fashion. On January 27, 1989, while off duty, the Respondent visited the Sears department store in the Oaks Mall located in Gainesville, Florida. Although the Respondent testified that he had consumed "some" alcoholic beverage prior to visiting Sears, there was no evidence that he was under the influence of alcohol or that alcohol influenced his actions while in Sears or at any other time relevant to the incident on January 27, 1989. After entering Sears, the Respondent proceeded to the hardware department carrying a large empty shopping bag bearing a "Burdine's" logo. While in the hardware department, the Respondent examined several power drills. Unbeknown to the Respondent, his actions were being observed by the Sears security officers because of his somewhat suspicious actions. After picking up several drills and examining them, the Respondent placed a power drill in the empty shopping bag and exited the store without paying for the drill even though his exit route carried him past five cash registers. The retail value of the drill was $79.99. Sears Security Officer Martin Krpan followed Respondent into the common area of the mall and confronted him about the drill. The Respondent denied taking the drill, saying he had put it back. Krpan observed the drill in the shopping bag at this time. Respondent accompanied Krpan back into Sears and an Alachua County Deputy Sheriff was called to the scene. During the period of detention prior to the arrival of the deputy sheriff, the Respondent was uncooperative and denied any involvement with removing the power drill from Sears. At this time Respondent refused to identify himself. When Deputy Briggette of the Alachua County Sheriff's Department arrived on the scene Respondent identified himself and advised the deputy sheriff that he was a correctional officer with the Department of Corrections. Respondent told the deputy sheriff that he had not taken the drill but that it had been placed in the shopping bag by Krpan. Respondent was arrested and charged with retail theft, i.e. shoplifting, which is a misdemeanor. Respondent entered a plea of nolo contendere to the charge and paid a fine in addition to 20 hours of community service for the violation. The Court withheld adjudication of guilt and placed Respondent on 6 months probation. Upon returning to work after the incident, the Respondent advised his supervisor of his arrest as required by the Department of Corrections' rules. After the Department investigated and reviewed the situation, the Respondent was disciplined by the Department by issuing him a reprimand. The only other disciplinary action taken against Respondent during his employment with the Department was an oral reprimand. Except for his arrest on January 27, 1989, the Respondent has never been arrested or found guilty of any crime. Since the incident, the Respondent has returned to work and has encountered no problems in the performance of his duties or dealing with the inmates. The Respondent has received "exceeds standards" on his performance appraisal for the period May 1989 through May 1990. Despite the incident, the Respondent continues to enjoy a reputation of honesty, integrity and hard work at the New River Correctional Institution. Respondent recognizes that his conduct on January 27, 1989 was wrong and appears to be sincerely embarrassed by the incident. Not only did the Respondent admit to stealing the drill at the hearing, but the facts surrounding the incident on January 27, 1989 at Sears in the Oaks Mall located in Gainesville, Florida established that the Respondent committed petit theft (retail theft), a misdemeanor, in violation of Section 812.014(1) (d), Florida Statutes.
Recommendation In making the following recommendation I am aware that only in those instances where the certified officer "fails to maintain good moral character" does the Commission have the discretion to impose other penalties in lieu of revocation as required under Section 943.1395(5), Florida Statutes. Likewise, I am not unmindful of Respondent's lack of a criminal record prior to this incident, his remorse over the incident or that he still maintains a "good reputation" among his peers and superiors subsequent to the incident. Having considered the foregoing Finding of Facts, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the mitigating circumstances, it is, therefore, RECOMMENDED that the Commission enter a Final Order finding that Respondent, Barry A. Bogart has failed to maintain good moral character, and in accordance with Section 943.1395(6), Florida Statutes, suspend his certification as a correctional officer in the state of Florida for a period of one month and place Respondent on probation for a period of six months under the terms and conditions deemed appropriate by the Commission. DONE and ENTERED this 6th day of August, 1990 in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 6th day of August, 1990. APPENDIX TO RECOMMENDED ORDER 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 1. - 3. Adopted in Findings of Fact 1, 4, and 5, respectively. 4. - 10. Adopted generally in Findings of Fact 6 and 7. Otherwise rejected as not material or relevant or necessary. 11. - 13. Adopted in Finding of Fact 8. 14. Rejected as not material or relevant or necessary. 15. - 17. Adopted in Finding of Fact 9. 18. - 19. Adopted in Finding of Fact 10. 20. Rejected as not material or relevant or necessary. 21. - 23. Adopted in Findings of Fact 11, 12 and 12, respectively. Rulings on Proposed Findings Of Fact Submitted by the Respondent 1. - 3. Adopted in Findings of Fact 1, 2 and 3, respectively. First sentence adopted in Finding 4. The balance rejected as not material or relevant or necessary. Rejected as not material or relevant or necessary. - 7. Adopted generally in Findings of Fact 4, 5, 7, 8, 9, 10 and 11. Otherwise rejected as not material or relevant or necessary. 8. - 10. Adopted in Findings of Fact 12, 13 and 14, respectively. Adopted in Findings of Fact 15 and 17. Adopted in Finding of Fact 16. Copies Furnished To: James T. Moore Commissioner Post Office Box 1489 Tallahassee, Florida 32302 Jeffery Long, Director Criminal Justice Standard Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Joseph S. White, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Gene "Hal" Johnson, Esquire General Counsel Florida Police Benevolent Association, Inc. Post Office Box 11239 Tallahassee, Florida 32302
The Issue The ultimate issue is whether the Respondent, Sears, Roebuck and Company (Sears), engaged in an unlawful employment practice by discriminating against Petitioners Charlie Alphin, on account of age in violation of the Human Rights Act of 1977, Section 760.01 et seq., Florida Statutes.
Findings Of Fact Charlie Alphin, age 52, was employed by Sears in July, 1956, and was at the Pensacola, Florida, unit from August 1, 1968, to September 22, 1986. His date of birth is November 9, 1935. In August of 1968, Alphin was Hard Lines Merchandise Manager for the Sears Pensacola unit. This area included hardware, appliances, and all items except clothing and software. In September, 1984, Alphin was moved to manager of the auto center in the Sears Pensacola store. In June, 1985, Alphin was moved to manager of the home appliances division in the Sears Pensacola unit. Home Appliance divisions were numbered 3 and 57 and also called "Big Ticket" divisions. In June, 1985, Sears restructured their management program nationwide. The reorganization had been announced in January, 1985. Divisions within Sears stores were consolidated and the numbers of managers were reduced. As part of this reorganization, Sears offered the affected managers the opportunity to either be transferred into a sales managerial position, which would require additional hours at basically the same wages, or the option of early retirement. Sears offered all of its time card and check list employees the opportunity from March 25, 1985, through April 19, 1985, to elect early retirement (if they were over 50 and had over 10 years service) and to take 26 1/2 weeks severance pay and leave their jobs. The effect of the reorganization was to convert all time card managers to check list managers, to eliminate the positions of merchandise manager and division manager, and to reallocate responsibilities so that sales managers would have more direct contact with customers and employees on the floor. Prior to the effective date of reorganization, the manager of the Auto Center at Sears Pensacola retired. With knowledge that the reorganization was going to take place, Fred Kelly, the manager of the Sears Pensacola unit, offered the position of Auto Center manager to Alphin. Alphin had no prior experience in the Auto Center. Alphin became manager of the Auto Center in September, 1984. Alphin was eligible for the early retirement incentive, but elected not to take it. He stayed in the Auto Center as manager. Prior to the 1985 reorganization, the home appliance division was managed by two men, Mr. Walt Malone and Mr. Ron Parker. As a part of the reorganization, several managers opted for the early retirement. This left a void in the store for managers. To fill this void and because of Alphin's vast experience in the area, Fred Kelly moved Charles Alphin from the Auto Center manager position to be sales manager for the home appliances division. Annual employee evaluations occur at Sears in January of each year. In January of 1984, Alphin was evaluated for his work as merchandise manager. This evaluation was performed by Fred Kelly. Alphin's over all evaluation was very good, even though a deficiency was noted in the sale of Maintenance Agreements (MA's). In January of 1985, Alphin was evaluated for his work in 1984 at the Auto Center. Again, Alphin received an "over all very good" evaluation from Mr. Kelly. Between twenty-five and thirty-five percent of the gross sales of the entire store occur in the home appliances division of the Pensacola Sears store. Additionally, when Alphin became sales manager of the home appliances division of the Pensacola Sears he had the major responsibility for the sales of maintenance agreements as these fell predominately in the big ticket appliance items. When Alphin became Sales Manager of the home appliances division, he had approximately 40 employees working under him. On September 5, 1985, Alphin's son, Chris, was critically injured when he fell from a tree. Alphin had to take three of his eight accrued weeks of vacation time to be at his son's bedside. Mr. Alphin returned to work on September 30, 1985. In January of 1986, Alphin was evaluated pursuant to the annual evaluations process and once again received an "over all very good" evaluation from Fred Kelly. Also, in January of 1986, a fiscal inventory was taken of the Sears unit in Pensacola as well as in other Sears units. As a result of that inventory, a shortage surfaced and it was deemed necessary that an internal audit be conducted as a follow-up to that inventory. On February 24 - March 7, 1986, an annual internal audit was performed. The findings of the audit were very bad. In the audit, irregularities pertaining to Alphin's area of supervision were found: irregularity concerning Alphin's violation of Sears home demonstration policy; irregularity concerning price change/remarking activity. Price reductions for clearance merchandise in Divisions 3 and 57; irregularity concerning ordering goods for the big ticket divisions from the catalog; irregularities in the handling of sales floor maintenance agreement sales; irregularities in the handling of credit sales transactions in the big ticket divisions; and irregularities in Divisions 3 and 57 combining for an inventory loss of $143,000. The results of the audit were brought to the attention of Management staff in the Sears Pensacola unit. While some of the irregularities found in Alphin's departments had shown up on one or more of the three previous annual audits, no previous audit had contained so many serious irregularities in the big ticket divisions. On February 6, 1986, J. H. Hudspeth, Regional Merchandise Manager for Sears visited the Sears Pensacola unit. As a result of that visit, Mr. Hudspeth found the conditions of Alphin's stock rooms deplorable and, because conditions were so bad, he felt he should write a formal report to make it part of Alphin's file. As a result of this visit and letter to Fred Kelly, the store manager, Mr. Kelly discussed these deficiencies with Mr. Alphin. Mr. Kelly specifically discussed with Alphin that the stockroom conditions were costing Sears "an arm and a leg" because of the damaged goods and uncrated goods that he had in his inventory. In March of 1986, Dave Davis, Regional Personnel Manager, discussed the results of the audit and inventory with Mr. Kelly. Davis specifically discussed the irregularities that had surfaced within Alphin's area of responsibility and discussed Ray Bacot and two other employees, Buddy Lambert and Fred Stuck. Alphin was called in individually to discuss the irregularities of the audit when the Regional Manager, Don Jones, visited Sears Pensacola unit in March, 1986. Raymond Bacot, the operations manager of the Sears Pensacola unit, was also called in and counseled regarding the results of the audit. As a result of the audit, it was determined that two senior management employees, Fred Stuck and Buddy Lambert, had, of their own volition, established the retail selling price on a piece of merchandise. This was an unauthorized mark down, a violation of Sears policy, which ultimately resulted in the termination of both Mr. Stuck and Mr. Lambert. Mr. Kelly made the decision to terminate Mr. Stuck and Mr. Lambert. Mr. Stuck and Mr. Lambert were terminated because of the dishonesty that was brought to the store manager's attention. Both Stuck and Lambert were over age 40 at the time of the termination. However, age was not a factor in Mr. Kelly's decision to terminate Mr. Lambert and Mr. Stuck. Age was never a factor in Mr. Davis' decision to approve the termination of Mr. Stuck and Mr. Lambert. As a result of the audit, three employees of the Sears Pensacola unit (Fred Kelly, Raymond Bacot, and Alphin) had their annual evaluations recalled and these employees were subsequently reevaluated. In this case, the fiscal inventory was not taken until February in which the irregularities surfaced. Because of the nature of the irregularities, Mr. Davis instructed Fred Kelly to take another look at Alphin's and Bacot's performance evaluations for the prior year. Along with Alphin's and Bacot's evaluation being recalled and reevaluated, Fred Kelly's evaluation was also recalled and reevaluated. All three of these employees received poor ratings for their performance level. It is not unusual to have an employee's evaluation recalled and reevaluated. Since being Regional Personnel Manager in New Orleans, Mr. Davis has reevaluated approximately fifteen to twenty employees' evaluations. Along with the revised employee evaluation, Alphin also received a Memorandum of Deficiency Interview (MDI) dated April 1, 1986. Fred Kelly and Raymond Bacot also each received a Memorandum of Deficiency Interview. Mr. Kelly specifically covered the areas that were mentioned on the MDI with Alphin. Mr. Kelly did not ask Alphin to resign at any meetings concerning his reevaluation or his MDI. In April of 1986, Alphin asked Mr. Kelly that if he should chose to resign, would Sears pay him a service allowance. Mr. Kelly spoke to Mr. Davis regarding this request and Mr. Davis indicated that if Alphin chose to resign, Sears would approve the payment of a service allowance based on Alphin's length of service which would have amounted to ten weeks of pay. On May 8-15, 1986, a traveling audit follow-up was conducted in the Sears Pensacola unit. The traveling follow-up audit revealed irregularities pertaining to Mr. Alphin's area of supervision: irregularity concerning sales floor maintenance agreement sales; and irregularity regarding proper procedure not being followed in the big ticket divisions for credit sales transactions. The results of the follow-up audit were discussed with Mr. Alphin. On June 23, 1986, the store manager, Fred Kelly, administered another Memorandum of Deficiency Interview to Alphin. Mr. Kelly counseled Alphin regarding sales check procedural violations as they pertained to the credit transactions and to the maintenance handling. Additionally, there was counselling regarding the deplorable condition of Alphin's stock rooms. Mr. Kelly counselled Alphin on a day to day basis regarding the routine running of his business between the first MDI on April 1, 1986, and the second MDI on June 23, 1986. During this time, Mr. Kelly saw that Alphin was not improving. During June of 1986, store employees under Mr. Alphin's supervision came to Mr. Kelly seeking guidance because they could not locate Mr. Alphin. Mr. Kelly directed Alphin as to specific store hours that he was to remain on the floor in his department. These hours were in keeping with company direction and regional direction to make the goal of 70% visibility of sales managers on the floor. Mr. Alphin spent a lot of time during working hours in the coffee shop. Ms. Yochim, on several occasions when looking for her supervisor, Charlie Alphin, would find him in the coffee shop smoking cigarettes. During July of 1986 and the first part of August of 1986, the store manager, Mr. Kelly, did not see any improvement by Alphin in the area of his overall responsibilities to the stock rooms. Additionally, he did not exhibit a positive attitude towards work. On August 14, 1986, Mr. Kelly administered a third Memorandum of Deficiency Interview. The Memorandum of Deficiency Interview indicated that Alphin had made no significant improvement over the past two months in his stockroom housekeeping. His stock areas were sub-par and unsatisfactory. On August 27, 1986, Alphin was administered a fourth Memorandum of Deficiency Interview. Alphin was criticized for his lack of follow through that jeopardized effective monitoring of his employees' productivity and the store management's ability to maintain an effective and credible monitoring program. He was told his continued lack of involvement and attitude on the part of a staff employee in carrying out management responsibilities could not be tolerated. It impaired overall staff effectiveness. He was not performing satisfactorily as a member of management's staff. From the period of April 1, until August 27, Mr. Kelly did not ask Alphin to resign from Sears. In September of 1986, Mr. Kelly made the decision to terminate Charlie Alphin. Mr. Kelly discussed this decision with Dave Davis, the regional manager, indicating that Charlie Alphin's performance had continued to deteriorate and that he had made the decision to terminate Alphin. Mr. Davis approved, agreed with, and supported Mr. Kelly's decision to terminate Charlie Alphin. Age was not in any way a factor in Mr. Davis' approval of Alphin's termination. Age was not a factor in Mr. Kelly's decision to terminate Alphin. Mr. Alphin was never told that age was the reason he was being terminated. At the time of his resignation on September 22, 1986, Mr. Kelly called Alphin in and discussed the fact that Mr. Kelly had not seen any improvement and that Alphin's involvement was not present and that he was terminating Alphin's employment. After Alphin's termination, Mr. Davis looked for a replacement for Alphin. Davis transferred Jerry Brigante, a sales manager in Ft. Walton Beach, to the Pensacola retail store to replace Charlie Alphin. Mr. Brigante was chosen for that position for a couple of reasons: (1) He wanted to be considered and moved to another management assignment in another Sears unit; and (2) Because of the proximity of Ft. Walton Beach to Pensacola, it was a relatively inexpensive move from the company's perspective. Mr. Brigante was 51 years old at the time and had 31 years of service with Sears. Mr. Brigante accepted and arranged an interview date with Mr. Kelly. Mr. Kelly interviewed Mr. Brigante and offered him a job in the Pensacola unit. Mr. Brigante accepted the job promotion. Mr. Brigante actually worked only one day in the Sears Pensacola unit. In November of 1986 Mr. Brigante called Dave Davis and told him he could not handle the job in Pensacola. He indicated he had given some thought to leaving Sears and wanted to stay in the Ft. Walton Beach area. He told Mr. Davis that he wanted to retire effective that date. The next morning Mr. Brigante called Mr. Davis and indicated he wished to recant his resignation from the previous day. Mr. Davis did not allow him to recant his resignation and indicated there was already a replacement on his way to Pensacola. Mr. Kelly is fifty-four years old. In the reorganization, employees Stallworth, Anderson and Townsend were transferred to sales positions in the Sears Pensacola unit. There was no pressure brought on these individuals to accept these transfers. These positions offered them a chance to make more money. Other employees were also moved to the sales floor. None of these individuals expressed any dissatisfaction with being transferred and reassigned. The retirement incentive was available to other persons over age 40. Several of them chose to take early retirement. Specifically, Mr. Mosely, Mr. Thompson, Ms. Wehmeier, and Mr. Peklo voluntarily chose to take early retirement and did not have any pressure put on them to retire. Some older employees retired based on their fear that their jobs were in jeopardy, but no credible evidence supported these unbased beliefs. The reason for Alphin's discharge was his poor performance. Sears did not terminate Alphin because of his age.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order denying the relief sought by Charlie Alphin and dismissing the Petition for Relief. DONE and ORDERED this 15th day of November, 1988, in Tallahassee, Florida. DIANE K. KIESLING 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 15th day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1446 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Charlie Alphin 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of act: 1(1); 4(2); 8(6); 9(7); 14(8); 18(15); 21(9); 22(10); 23(5); 25(16); 28-30(12-14); 31(4); 32 (14); 33 (4); 34-37 (17-20); 40(1); 41(21); 52 (31); 55(35); 63(38); 65(39); 71(41); 89(44); 90(48); 93(55); 96(56); 102(64); 109(65); 110(66); and 121(73). 2. Proposed findings of fact 2, 3, 6, 11-13, 24, 38, 39, 42-51, 64, 66-68, 72-75, 77, 79, 81, 82, 86, 87, 88, 92, 95, 97, 101, 106, 111, 114, 119, and 120 are subordinate to the facts actually found in this Recommended Order. 3. Proposed findings of fact 7, 15, 53, 56, 57, 61, 62, 69, 70, 78, 80, 83, 108, and 115-117 are irrelevant. 4. Proposed findings of fact 10, 16, 17, 27, 54, 58-60, 76, 84, 85, 91, 94, 98-100, 103, 107, 112, 113, and 118 are rejected as being unsupported by the credible, competent and substantial evidence. 5. Proposed findings of fact 5, 19, 20, 26, 104, and 105 are unnecessary. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Sears, Roebuck and Company Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-5(1-5); 6(7); 7(11); 8-11(73); 12-16(22-26); 17(31); 18(32); 19-21 (28-30); 22-25(33- 36); 27(37); 28(15); 29-55(38-64); 57-64(65-72); 65(74); and 65(75). Proposed findings of fact 26 and 56 are subordinate to the facts actually found in this Recommended Order. COPIES FURNISHED: Dawn Wiggins Hare Ross M. Goodman Attorneys at Law 226 South Palafox Street Pensacola, Florida 32501 Tracey I. Arpen, Jr. Linda C. Ingham Attorneys at Law Post Office Box 447 Jacksonville, Florida 32201 Office of the Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 20 Tallahassee, Florida 32399-1570 Donald A. Griffin Executive Director Commission on Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida
The Issue The issue in this case is whether Respondent had good cause, pursuant to Section 230.23(5)(a), Florida Statutes, to reject the Superintendent's recommendation that Petitioner's employment be continued from June 30, 1986 to June 30, 1987.
Findings Of Fact Petitioner was employed by Respondent as Deputy Superintendent from 1980 to June 30, 1986, and prior to this, he was employed by Respondent as Director of Secondary Education from 1978 to 1980. From August 1, 1985 until December 1, 1985, Petitioner also served as Interim Superintendent while the position of Superintendent was vacant and Respondent was in the process of selecting a new Superintendent. The educational background of Petitioner includes a Bachelor of Science Degree from the University of Miami, Master of Public Education from the University of Michigan, Education Specialist Degree from Michigan State University, and a Doctorate in Administration from Wayne University. He also served two terms as a member of a school board in Michigan in the early 1960's. The position of Deputy Superintendent has line authority over Elementary Schools, Secondary Schools, Personnel, Finance, Purchasing, Transportation, Data Processing, Facilities and Maintenance. Instructional matters are not handled by the Deputy Superintendent. The position of Deputy is second only to the Superintendent in the administrative organization of the school district, and the Deputy routinely fills in for the Superintendent in his absence. When former Superintendent James H. Fox resigned effective July 30, 1985, Petitioner was appointed on June 18, 1985 to become Interim Superintendent, effective August 1, 1985, until a new Superintendent was selected. According to School Board member Susan Richardson, who was chairperson of the Board at the time, it was a routine matter for Petitioner, as Deputy, to become Interim Superintendent. The current Superintendent, Charles Fowler, assumed his position on December 1, 1985, at which time Petitioner resumed his duties as Deputy Superintendent. Petitioner had applied to be Superintendent when Fox resigned, but was not a finalist for the position. Fowler had not been previously employed by Respondent. In addition to his other duties as Deputy Superintendent, Petitioner was also the chief negotiator for the School District in collective bargaining matters from February to June, 1985. Negotiations continued after Petitioner became Interim Superintendent, and were concluded in October, 1985 with contract approval. After he became Interim Superintendent, Petitioner was replaced as chief negotiator by Walter Pierce, Director of Personnel, but continued as a lead member of the negotiating team with Pierce, and Bruce Monson, Director of Finance, each of whom gave presentations and responded to questions during executive sessions which were called by Respondent to consider contract proposals. On January 14, 1986, Superintendent Fowler recommended a salary increase for Petitioner, effective December 1, 1985, the date Fowler assumed his position. This increase was for the remainder of Petitioner's employment contract, which was to expire on June 30, 1986. Salary increases and contract renewal for all administrative staff, except Petitioner and one other top-level manager, had previously been approved by Respondent. However Respondent's action on Petitioner's salary increase and contract renewal was delayed so that the new Superintendent could address them. Fowler also recommended that Petitioner's contract be extended until June 30, 1987 at the increased salary level. This recommendation was presented to Respondent on several occasions between January and March, 1986, but each time Respondent deferred action. Finally, on March 18, 1986 Superintendent Fowler's recommendation and an employment contract continuing Petitioner's employment as Deputy Superintendent were submitted to, and rejected by Respondent. In making his recommendation to retain Petitioner, Fowler was aware of the fact that after he, as Superintendent, recommended Petitioner for continued employment, his recommendation could only be rejected by Respondent for good cause. Further, Fowler had been informed by School Board member Richardson in early December, 1985 that she had serious concerns about whether Petitioner should remain as Deputy Superintendent. Nevertheless, Fowler did recommend Petitioner's continued employment. Petitioner timely filed a Petition for Formal Hearing following Respondent's rejection, by a three to two vote, of the Superintendent's recommendation on March 18, 1986, and contends that good cause has not been established for such rejection. 0n June 26, 1986 Superintendent Fowler wrote to Petitioner stating: I want to say how much I appreciate the professional way in which you have handled an extremely difficult and pressure-filled situation these past several months. I could not ask for a more cooperative person; many, in this circumstance, would not be so eager and willing to be of assistance. Right up to these last days and the difficult budget decisions we are wrestling with, you have been forthright and cooperative. Your demeanor has made it so much easier on me and all those in the school system with whom you work. Thank you....Your support and kindness are much appreciated. Respondent alleges that Petitioner "willfully or negligently withheld from the Board financial information required by the Board to make an informed decision regarding whether to enter into a multi-year salary agreement with the Sarasota Classified/Teachers Association" (SCTA). On September 20, 1985, Bruce Monson, Director of Finance, wrote Petitioner a memo in which he expressed his concern about the School District's increasing rate of expenditures, summarized grim economic forecasts for the world, and clearly stated he was not comfortable with a three-year negotiated salary contract. His recommendation was for the annual negotiation of salary increases, with a three-year agreement which only dealt with contract language and starting salaries. Monson wrote this memo at Petitioner's request after he had orally informed Petitioner of his concerns in August and early September, 1985. He copied Walter Pierce, Director of Personnel, on his memo, but not School Board members. Monson assumed that Petitioner would provide his memo to all School Board members, but Susan Richardson, Eugene Matthews, Mary Margaret McAdoo and Kay Glasser, Board Members, each testified they were not given a copy of the Monson memo until after the multi-year salary contract was approved. The remaining Board member, Dick Olson, had the Monson memo at the time the multi-year contract was approved. Petitioner did not provide Respondent with a copy of the Monson memo. Negotiations had begun with the SCTA in February, 1985 with Petitioner as chief negotiator. Respondent had made it clear to the negotiating team that it wanted a three-year salary contract, if possible, and it was on that basis that negotiations proceeded. In prior years, Monson had informed Respondent about his concerns with multi-year contracts, but Respondent still directed that a multi-year contract be sought during negotiations in 1985. In early July, 1985 Pierce became chief negotiator and Petitioner, as Interim Superintendent, was simply a member of the negotiating team from that point forward. At the time Monson wrote his memo, negotiations with the SCTA were virtually concluded and Pierce was chief negotiator. According to Board members Olson and McAdoo, negotiations were too far along on a multi-year contract to back out in late September, even if the Monson memo had been considered. Respondent gave final approval to the multi-year contract in the first week of October, 1985, having come to closure on virtually all issues in executive session held on September 24, 1985, four days after the Monson memo. The evidence does not support the allegation that Petitioner willfully or negligently withheld the Monson memo from Respondent. It took Monson several weeks to reduce his concerns to writing, as Petitioner requested. Monson was a member of the negotiating team and attended executive sessions. He was therefore aware of the status of negotiations, and the fact that by late September it would have been virtually impossible for Respondent to back out of the multi-year contract its team had been negotiating with the SCTA all summer. It was reasonable for Petitioner to assume that if Monson was really concerned, he would have spoken up during executive sessions, or promptly reduced his concerns to writing. He did neither. In any event, Pierce was chief negotiator from July through contract approval in early October, 1985. He reported to Respondent in executive sessions, and did have the Monson memo prior to the final executive session on September 24, 1985. He said nothing. Pierce did ask Respondent's labor counsel to draft escape clauses which would allow Respondent to avoid paying negotiated salaries if financial problems developed. The escape clauses were viewed as precautions for Respondent's consideration. Neither Pierce, Monson or Petitioner advised Respondent to include an escape clause in the negotiated contract. It was reasonable for Petitioner, who was acting as Interim Superintendent at the time with many other duties, to rely on the chief negotiator to bring to Respondent's attention those matters which he felt were important and significant. Such reliance does not constitute a willful or negligent withholding of information. It is further alleged that Petitioner willfully or negligently authorized improper payments under a contract between Respondent and MAI, a consulting firm, and that he improperly handled changes in the contract which deprived the Respondent of an opportunity to consider the changes and resulted in the improper expenditure of funds. This contract was entered into in December, 1982, while Fox was Superintendent and payments under the contract had been criticized by the Auditor General for two years. The contract was for professional services for improvements in the pupil transportation system, and payment to the consultant was to be from monies saved through implementation of the consultant's program. The Auditor General's criticism was that the method for determining payments under the contract was vague and indefinite. MAI sought payment of $90,000 for their services, but a negotiated settlement for $30,000 was arrived at by Fox. Petitioner had no involvement in drafting this contract or presenting the settlement to the School Board; those matters were handled by former Superintendent Fox. Respondent alleges that Petitioner willfully or negligently failed to inform the Board that certain Capital Outlay Projections were inadequate and incorrect, thereby falsely leading Respondent to believe that future expenditures would be less than should reasonably have been anticipated. Additionally, it is alleged that certain long range planning projections were inaccurate and were not based on reliable census and cost projections, and that Petitioner knew or should have known about these inaccuracies but failed to inform the Respondent. One of the first things that Superintendent Fowler did after becoming Superintendent was to try to get a clear understanding of capital outlay needs of the District. He reviewed a document entitled, "1985-91 Capital Outlay Needs" and prepared a memo to Respondent on February 12, 1986 which expressed his concern that capital outlay needs of the District had been seriously underestimated. He recommended employing a consultant to verify his enrollment projections and develop an integrated facility planning approach. As Deputy Superintendent responsible for the Facilities Department, Petitioner supervised the preparation of capital outlay projections and their presentation to Respondent. However, the committee which actually developed these projections had been appointed by former Superintendent Fox, who also took an active role in the development and presentation of these projections. According to Charles E. Collins, capital projects administrator, Fox directed the capital outlay needs projects and gave specific instructions about what he wanted. Superintendent Fowler testified that the School District will have an actual need for six or seven new schools, although a need for only two new schools had been projected under Fox. During his tenure as Interim Superintendent, Petitioner did not report to Respondent that capital outlay needs and projections had been underestimated. He always considered the "Capital Outlay Needs" document to be a generalized planning forecast which was to some extent also a "political" document, and had not felt the need to raise this matter with Respondent. Nevertheless, Petitioner did know that said projections were inaccurate, but failed to alert Respondent to the greater need which actually existed during budget considerations, as Fowler did immediately upon becoming Superintendent. Fowler took appropriate and necessary action to apprise Respondent of this inadequacy, and the incorrect basis for these projections, in contrast with Petitioner who withheld this information simply because he did not feel it necessary to make such a report. Petitioner exercised poor judgement in this regard and thereby lead Respondent to believe that future expenditures and the need for new facilities would be less than could reasonably be anticipated. Regarding the construction of North Port Elementary School, it is alleged that Petitioner caused Respondent to suffer an unnecessary and unjustified expense of $50,000 which was paid to the general contractor, even though deficiencies existed and the contractor was not entitled to this payment. According to Larry Derryberry, the architect who designed North Port Elementary School, a meeting took place on February 21, 1985 concerning $57,000 that was retained on this job by the District to insure that certain outstanding items and deficiencies noted by the Fire Marshall were corrected. The school had been accepted as substantially complete and was occupied in the Fall of 1984, approximately eight months prior to this meeting. The cost of the entire project was between four and five million dollars. Following the meeting, Petitioner authorized the payment of $50,000 to the general contractor from the retainage, contrary to the recommendation of Charles Collins, capital projects administrator, and Derryberry, the architect. Petitioner authorized this payment, after discussions with former Superintendent Fox, because the cost to correct all remaining items on the punch-list was only $7,000. In fact, all remaining items were corrected by the general contractor. The evidence does not show that Petitioner improperly or inadequately administered or supervised the North Port Elementary School construction contract, or that he authorized any unnecessary or unjustified expenses. Only minor deficiencies existed in February, 1985 amounting to approximately $7,000 and Petitioner acted reasonably in consulting with the Superintendent, and then authorizing release of excess retainage. This did not deprive Respondent of leverage needed to require the contractor to complete his contract obligation because, in fact, all remaining items on the punch-list were then completed. Respondent alleges that Petitioner failed to adequately supervise and administer the Facilities Department in that he usurped the function of a review committee which had been formed to review the contract and relationship between Respondent and Federal Construction Company. Respondent had asked former Superintendent Fox to form this committee, and Fox put Petitioner in charge of the formation and functioning of the committee. The committee only met two or three times, and then failed to meet again or make recommendations due to resignations and illness of committee members. Petitioner kept the Respondent fully informed of committee meetings, through minutes, and of the committee resignations. He solicited input from Respondent for new committee members. When new members could not be found in a timely manner, Petitioner and other staff members completed an amendment to the Federal Construction Company contract, which was presented to Respondent and approved. This action does not evidence any wrongful usurpation of the role of the committee by Petitioner. Cassius Scott was an employee of the Facilities Department who had been transferred out of the Department by Respondent and assigned directly to the Deputy Superintendent's office for supervision. After a period of time, Petitioner sought Respondent's approval to assign Scott back to the Facilities Department by placing this item on the consent agenda. Chairperson Richardson objected and it was pulled from the consent agenda; Board member Glasser confirmed that it was Respondent's intent that Scott remain under petitioner's supervision. It is alleged that Petitioner reassigned Scott back to the Facilities Department contrary to Respondent's instructions. In fact, Scott was physically moved back to the Facilities Department after Richardson pulled the consent item. Petitioner claims Scott continued to work with him on facilities matters, but admits he moved his office out of the Deputy Superintendent's office without specific approval of Respondent, or even informing Respondent of this move. Petitioner did act contrary to Respondent's explicit instructions in this regard, especially after Chairperson Richardson had pulled this item from the consent agenda. When serving as Interim Superintendent, it is alleged that Petitioner knew that enrollment figures submitted to the Florida Department of Education had been misstated by double counting approximately 100 students, thereby leading the State and Respondent to overestimate revenues to which the School District was entitled. In early 1986 Superintendent Fowler discovered that the full time equivalency count (FTE) for the 1985-86 school year was overestimated by 100 FTE. This necessitated an immediate budget adjustment since revenues for the then-current school year had been overestimated. At the direction of Fowler, Petitioner took care of the preparation, presentation and approval of this amendment by Respondent. Even though this inflated FTE was prepared while Fox was Superintendent, Petitioner had not informed Respondent of this overestimate and its impact on revenues while he was Interim Superintendent. Fowler brought it to Respondent's attention on February 11, 1986. As a result of this overestimate of FTE, Respondent's revenues had been overestimated by approximately $250,000. However, there is no competent substantial evidence that Petitioner deliberately inflated this FTE, or that he specifically knew that enrollment projections were overstated and purposely withheld this information from Respondent. It appears that Petitioner simply had not checked the estimates against actual enrollments prior to December 1, 1985 when Fowler became Superintendent, and so had no knowledge of this problem while he was Interim Superintendent. Other than his overall responsibilities as Deputy and Interim Superintendent, the evidence does not establish that he had any specific role in the preparation and submission of FTE estimates. Board members Richardson and Glasser testified that Petitioner did not provide Respondent with complete information of items before them, that he did not follow up on questions, and that he avoided responding to issues presented by Board members. However, this testimony was contradicted by testimony of Board members McAdoo and Olson, and Superintendent Fowler also commended Petitioner's performance by recommending him for continued employment, and by letter dated June 26, 1986 (see Finding of Fact 8). No evidence was presented of any prior disciplinary action taken against Petitioner on this basis, or on any other basis. Therefore, the allegation that Petitioner was unable to respond to or follow up on questions, or that he avoided issues is not supported by competent substantial evidence. When Petitioner was informed that he had not been selected as a finalist for the position of Superintendent, it is alleged that he called certain School Board members and behaved inappropriately, suggesting they change their decision to avoid adverse consequences. Board member Richardson testified that Petitioner called her after he learned he was not a finalist, and he was agitated, accusing her of turning the School Board against him. She testified that Petitioner offered her a way out to avoid serious trouble if she got the Board to put his name back on the list of finalists. Board member Matthews testified that Petitioner also called him and made derogatory remarks about the finalists. Board member Olson testified that Petitioner did not act inappropriately at any time concerning the selection of finalists. Petitioner admitted he did call Board members and was emotional at the time. He testified that the press was calling him for comment on not being selected, and his friends were also calling wanting to know what happened. His reaction to this situation was out of character. Based on the evidence presented, it is found that Petitioner did act inappropriately toward Board members Richardson and Matthews, when informed he was not a finalist for Superintendent, by threatening serious trouble if they did not reverse their decision and also making derogatory statements about the persons they had selected as finalists. Respondent has further alleged that Petitioner wrongly and repeatedly subdivided purchase orders into smaller amounts to avoid competitive bidding and School Board approval of expenditures in excess of $4,000. Superintendent Fowler conducted a review of purchase orders issued while Petitioner was Deputy Superintendent. The purchase orders in question were issued while Fox was Superintendent; Petitioner did not sign any of the purchase orders, but purchasing is a function under the Deputy. Charles Collins, capital projects administrator, testified that Petitioner had no knowledge of the practice of subdividing purchase orders when it was occurring in 1984. After Collins brought it to Petitioner's attention, the practice stopped. There is no evidence that Petitioner wrongly or repeatedly subdivided purchase orders, as alleged. In the Fall of 1984, an agreement was made with the SCTA to advance certain food service employees on the salary schedule, and it is alleged that Petitioner willfully or negligently failed to inform Respondent of this agreement, did not obtain Respondent's approval, and thereby committed Respondent to higher wages to affected employees. The effect of the agreement was to advance forty-three food service employees two steps, when Respondent had only authorized a one step advance. Petitioner testified that at the time of this agreement, former Superintendent Fox was handling these negotiations and he knew nothing of what was done, or why. Nevertheless, Petitioner did coauthor a memo with Fox to Respondent in October, 1984 which described the food service agreement. In response to that memo Respondent approved a one step advance. It appears likely that if forty-three employees under his supervision received a two step advance when he had jointly recommended a one step advance, which was then approved, Petitioner would have, or at least should have, known about it. He did not inform Respondent, and was therefore negligent in not informing them of this matter. It is alleged that Petitioner willfully or negligently failed to properly supervise the management of the Food Services Department resulting in a substantial financial deficit in the Department. The testimony of Board members Richardson and Matthews in support of the allegation was vague and indefinite. According to Monson, the finance director, the Food Services Department has a $200,000 negative cash balance, but it was not established by competent substantial evidence that this resulted in any way from Petitioner's willful or negligent failures. Board member Olson testified that the food service program has been a continuing problem, and he pointed out that local food service managers in individual schools have a great deal of authority and autonomy, and that the Department is not centrally managed. Respondent has not established that Petitioner willfully or negligently failed to properly supervise the Food Services Department. The final allegation against Petitioner is that, while he served as Interim Superintendent, he presented to Respondent a series of facility improvement expenditure requests, but failed to advise Respondent that approval would cause a material deficit in budgeted capital outlay project funds. Respondent did not offer competent substantial evidence in support of this charge. In fact, virtually no direct evidence in support of this charge was offered. The primary allegation against Petitioner which caused Board members Matthews, Richardson and Glasser to vote against the Superintendent's recommendation was that Petitioner willfully or negligently withheld financial information required by Respondent to make an informed decision regarding the multi-year contract agreement with SCTA. (See Findings of Fact 9-11, above.) The other allegations contributed to their decision, but this allegation actually precipitated their action. Board members Matthews, Glasser and Richardson decided Petitioner should not be reemployed after they learned that Petitioner had received the Monson memo on September 20, 1985, but had not shared it with them. They testified that they would have viewed the multi-year contract materially differently if they had known about the Monson memo on September 20, 1985. The Respondent approved the multi-year salary schedule on September 24, 1985.
Recommendation Based upon the foregoing, it is recommended that Respondent issue a Final order approving the Superintendent's recommendation that Petitioner's employment as Deputy Superintendent be continued from July 1, 1986 to June 30, 1987, and that Petitioner be awarded back-pay to the date of his reemployment, at the rate of pay recommended by the Superintendent. D0NE AND ENTERED this 4th day of December 1986 in Tallahassee, Florida. DONALD D. CONN Hearing Officer 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 4th day of December, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1400 Rulings on Petitioner's Proposed Findings of Fact: Adopted in Findings of Fact 1, 2. Adopted in Findings of Fact 3, 4. Adopted in part in Finding of Fact 18, but otherwise rejected as irrelevant. Adopted in part in Finding of Fact 3, but otherwise rejected as irrelevant. Adopted in Finding of Fact 8. Adopted in Finding of Fact 6. Rejected as irrelevant and unnecessary. Adopted in Findings of Fact 6,7. 9-10. Rejected as a characterization of testimony and not a proposed Finding of Fact. Adopted and Rejected in part in Findings of Fact 9-11. Adopted and Rejected in part in Finding of Fact 12. Adopted and Rejected in part in Finding of Fact 13. Adopted and Rejected in part in Finding of Fact 14. Adopted and Rejected in part in Finding of Fact 15. Adopted and Rejected in part in Finding of Fact 16. Adopted and Rejected in part in Finding of Fact 17. Adopted and Rejected in part in Finding of Fact 18. Adopted and Rejected in part in Finding of Fact 19. Adopted and Rejected in part in Finding of Fact 20. Adopted and Rejected in part in Finding of Fact 21. Adopted and Rejected in part in Finding of Fact 22. Adopted in Finding of Fact 23. Adopted and Rejected in part in Finding of Fact 24. Rulings on Respondent's Proposed Findings of Fact: Not a proposed Finding of Fact. Rejected as unnecessary. 3-4. Adopted in Finding of Fact 6. 5. Adopted in Findings of Fact 4, 6. 6-7. Adopted and Rejected in part in Findings of Fact 6,8. Rejected in Finding of Fact 6. Adopted in Finding of Fact 6. Rejected in Findings of Fact 6, 8. Rejected as irrelevant. Rejected as not based on competent substantial evidence. Rejected as unnecessary. 14-19. Adopted and Rejected in part in Findings of Fact 9-11, and otherwise rejected as irrelevant and not based on competent substantial evidence. 20-23. Adopted and Rejected in part in Finding of Fact 17. 24. Adopted and Rejected in part in Findings of Fact 9-11,17. 25-33 Adopted and Rejected in part in Finding of Fact 13, and otherwise rejected as irrelevant and not based on competent substantial evidence. 34-38 Adopted in part in Finding of Fact 24, but otherwise rejected as not based on competent substantial evidence. 39-45. Adopted and Rejected in part in Finding of Fact 11, and otherwise rejected as irrelevant and not based on competent substantial evidence. Rejected in Finding of Fact 10. Adopted in part in Finding of Fact 24, but otherwise rejected as irrelevant. Rejected as irrelevant. The issue is not whether the Monson memo was in error but whether Petitioner willfully or negligently failed to inform Respondent. Adopted in Finding of Fact 9. Rejected in Finding of Fact 11. Adopted in part in Finding of Fact 24, but otherwise rejected as irrelevant. What Respondent did or did not believe is not the issue. Rejected in Finding of Fact 11. Rejected as not based on competent substantial evidence. 54-58. Adopted and Rejected in part in Finding of Fact 12. 59-67. Adopted and Rejected in part in Finding of Fact 14, and otherwise rejected as irrelevant and not based on competent substantial evidence. 68. Adopted in Finding of Fact 3. 69-76. Adopted and Rejected in part in Finding of Fact 15, and otherwise rejected as irrelevant and not based on competent substantial evidence. 77-80. Adopted and Rejected in part in Finding of Fact 16. Adopted and Rejected in part in Finding of Fact 18. Rejected as not based on competent substantial evidence. 83-86. Adopted and Rejected in part in Finding of Fact 19, and otherwise rejected as not based on competent substantial evidence. 87-92. Adopted and Rejected in part in Finding of Fact 20, and otherwise rejected as irrelevant and not based on competent substantial evidence. 93-95. Adopted and Rejected in part in Finding of Fact 21. 96-97. Adopted and Rejected in part in Finding of Fact 22. 98. Rejected in Finding of Fact 23. 99-101. Rejected in Finding of Fact 24 and otherwise as irrelevant. The Respondent did vote 3-2 to reject the Superintendent's recommendation. 102. Rejected as not based on competent substantial evidence. COPIES FURNISHED: John R. Blue, Esquire Carol A. Masio, Esquire Charles J. Pratt, Esquire Post Office Box 1866 Bradenton, Florida 33506 Daniel H. Kunkel, Esquire 290 Cocoanut Avenue Sarasota, Florida 33577 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 Charles W. Fowler Superintendent 2418 Hatton Street Sarasota, Florida 33577 =================================================================
The Issue The issues for determination in this case are whether Petitioner has standing to bring this action and, if so, whether Respondent Stuart Yacht Corporation is entitled to the General Permit which the Department of Environmental Protection (Department) intends to issue.
Findings Of Fact Petitioner owns Lot 4 in St. Lucie Settlement, a subdivision in Stuart, Florida. The subdivision has one border along the South Fork of the St. Lucie River. The subdivision has a finger fill that extends to the South Fork with canals on both sides. There are four lots on the finger fill, Lots 1 through 4 of the subdivision. Lot 4 is farthest from the river. On the north side of Petitioner’s property he has a dock where he keeps a boat. The dispute in this case involves the canal on the south side of Petitioner’s property. All references to “the canal” hereafter, unless otherwise noted, will be to the canal on the south side of Lot 4. Between Lots 2, 3, and 4 and the canal is a road which provides access to the lots on the finger fill. Between the road and the canal is a narrow strip of land. Petitioner owns this narrow strip of land where it corresponds with his lot lines. In other words, the southern boundary of his Lot 4 abuts the canal. However, because the canal is artificial, having been created by dredging, Petitioner has no riparian rights associated with the canal. That was the holding of the circuit court for Martin County in the litigation between Stuart Yacht Corporation and Petitioner. It was also established in the circuit court litigation that St. Lucie Settlement, Inc., which is the homeowner's association for the subdivision, owns the northern half of the canal and Stuart Yacht Corporation owns the southern half of the canal. No subdivision documents were presented to show the extent of rights granted to homeowners within St. Lucie Settlement related to the construction of docks or other uses of water bottoms that are included within the subdivision. Petitioner testified that he terminated his membership in the homeowners association three-and-a-half years ago. Stuart Yacht Corporation owns and operates a marina on the south side of the canal which includes docks over the water. At some point in the past, but before Petitioner purchased Lot 4 in 1995, Stuart Yacht Corporation constructed a dock along the north side of the canal, over the water bottom owned by St. Lucie Settlement, Inc. The dock along the north side of the canal has been used for mooring large yachts. The portion of the dock that ran along the boundary of Lot 4 was recently removed by Stuart Yacht Corporation following the rulings in the circuit court. The balance of the dock along the north side of the canal would be removed as a part of the proposed permit that Petitioner has challenged. In addition to removing the dock along the north side of the canal, the proposed permit authorizes Stuart Yacht Corporation to construct a new dock that is four feet wide and runs 150 feet along the property boundary in the center of the canal. No part of the proposed new dock would be on the property of St. Lucie Settlement, Inc. St. Lucie Settlement, Inc., did not challenge the proposed permit. In his petition for hearing, Petitioner alleged that the proposed new dock would cause the following injuries to his interests: interference with ingress and egress to Petitioner’s shoreline; interference with Petitioner’s desire to obtain a permit in the future to construct a dock or to “harden” the southern shoreline; and interference with Petitioner’s riparian rights. Petitioner’s testimony about his past use of the canal was inconsistent. He said he moored his boat in the canal once in 1995. He said he boated into the canal to fish on several occasions. He said that (at least twice) when he attempted to enter the canal by boat, he was denied access by representatives of Stuart Yacht Corporation. However, in a deposition taken before the hearing, Petitioner said he had never attempted to use the canal. The only testimony presented by Petitioner to support his claim that the proposed permit would interfere with his navigation, fishing, and desire to obtain a dock permit in the canal was the following: I couldn’t get a boat in there with that proposed dock in the center line of the canal right on their side of the canal. It would be 150 feet long. It would be a huge Wall of China. My neighbor and I couldn’t get to our shoreline. The evidence presented was insufficient to prove that Petitioner would be unable to navigate into the canal in a small boat or to fish in the canal if the proposed dock is constructed. The evidence was also insufficient to prove that Petitioner would be unable to construct any kind of dock for any kind of watercraft if the proposed dock is constructed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department dismiss the petition for hearing based on Petitioner's failure to prove standing, and issue the proposed permit to Stuart Yacht Corporation. DONE AND ENTERED this 20th day of February, 2008, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 2008. COPIES FURNISHED: Lea Crandall, Agency Clerk Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Tom Beason, General Counsel Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Michael W. Sole, Secretary Department of Environmental Protection The Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Paul B. Erickson, Esquire Alley, Maass, Rogers & Lindsay, P.A. 340 Royal Poinciana Way, Suite 321 Palm Beach, Florida 33480 Amanda Gayle Bush, Esquire Department of Environmental Protection Office of the General Counsel 3900 Commonwealth Boulevard, Mail Stop 35 Tallahassee, Florida 32399 Guy Bennett Rubin, Esquire Rubin & Rubin Post Office Box 395 Stuart, Florida 34995
The Issue The issue presented is whether Petitioner's application for licensure as a mortgage broker should be granted.
Findings Of Fact Petitioner is 54 years of age and has been a resident of the State of Florida for eighteen years. On January 28, 1983, Petitioner was convicted of six counts of mortgage fraud in the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County, Florida, Case No. 81-3411CF. That conviction arose out of certain conduct by Petitioner in approximately 1980. Petitioner was sentenced to five years of confinement, with credit for time served, and twelve years of probation. That conviction was affirmed by the District Court of Appeal on July 5, 1984, and re-hearing was denied on August 1, 1984. Zaremba v. State, 452 So.2d 1026 (Fla. 4th Dist. 1984). On February 25, 1987, Petitioner entered a plea of nolo contendere to the offense of grand theft in the Circuit Court of the Twentieth Judicial Circuit in and for Lee County, Florida, Case No. 86-0836CF. On that same date, he was adjudicated guilty and placed on probation for a period of five years to run concurrently with the probation imposed by the Circuit Court of Broward County in Case No. 81-3411CF. That charge arose out of a dispute with his employer, and Petitioner was required to make restitution during his probationary period in the amount of $16,082 pursuant to an order entered by the Court on March 5, 1987. Petitioner's probation was terminated in Case No. 81-3411CF on October 5, 1993, and in Case No. 86-0836CF on April 12, 1993. Petitioner timely made restitution in the total amount ordered by the Court. For the last eight years Petitioner has been employed by Atlantic Real Estate Company in Pompano Beach, Florida, a developer of time-share properties. As the closing officer for that company, Petitioner reviews the closing documents, including mortgages, deeds, and contracts. As the closing officer, Petitioner also handles the money and has for the last eight years. He accepts down payments and closing costs from people purchasing units by the week. He takes the money home at night and deposits it in the bank the next morning. Although he handles thousands of dollars a week in this manner, none of the money which has come into his possession has ended up "missing," and no one has ever accused him of improperly handling any of that money. Petitioner has been licensed as a real estate salesperson by the State of Florida since 1991. Although his application for that licensure was initially denied as a result of his criminal history, Petitioner requested an informal hearing before the Florida Real Estate Commission, and the Commission granted his application for a license. That real estate salesperson's license is current, having been renewed by the Department of Professional Regulation, Division of Real Estate, on August 7, 1993. Petitioner has also successfully handled monies belonging to others as a member of the Board of Directors of the Silver Seas Beach Club, a time-share resort on the Fort Lauderdale "strip." In that capacity, Petitioner has handled money from sales and has also operated the front desk on Saturdays receiving money from people renting units in that resort. He has so handled that money for four years. Petitioner was considered to be "an exemplary probationer" by his probation officer. Petitioner also enjoys a reputation for being competent, honest, reliable, and trustworthy in his handling of money belonging to other persons and in his business dealings, as evidenced by letters from his employer, from the management at Silver Seas, and from a local practicing attorney who was formerly employed by the State of Florida as a prosecutor. Petitioner has rehabilitated himself since the time of his activities which resulted in his two convictions. Petitioner has shown himself to be trustworthy and of good character. On July 29, 1993, Petitioner submitted to the Department his application for licensure as a mortgage broker. In that application he disclosed his two convictions and has provided to the Department all information requested relative thereto. That application reveals that Petitioner has complied with all procedures prerequisite to licensure, including filing the application, paying the appropriate application fee, providing fingerprints, attending the required mortgage broker education courses, and successfully passing the examination for licensure. By letter dated December 14, 1993, the Department denied Petitioner's application for licensure based solely on Petitioner's convictions. In denying Petitioner's application, the Department did not conduct any investigation as to Petitioner's rehabilitation or good character. Rather, the Department relied on its "policy" that no application for licensure as a mortgage broker will be granted if the applicant has ever been convicted of a crime involving fraud, dishonest dealing, or acts involving moral turpitude.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered granting Petitioner's application for licensure as a mortgage broker. DONE and ENTERED this 3rd day of August, 1994, at Tallahassee, Florida. LINDA M. RIGOT 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 3rd day of August, 1994. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 94-1229 Petitioner's proposed findings of fact numbered 9-13 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 1, 8 and 9 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 2-7 and 11 have been rejected as being irrelevant to the issues under consideration in this cause. Respondent's proposed finding of fact numbered 10 has been rejected as being unnecessary for determination of the issues involved herein. Respondent's proposed findings of fact numbered 12 and 13 have been rejected as not constituting findings of fact but rather as constituting argument of counsel. COPIES FURNISHED: Richard C. Booth, Esquire Booth & Associates Post Office Box 12639 Tallahassee, Florida 32302 Cassandra A. Evans, Esquire H. Richard Bisbee, Esquire Department of Banking and Finance Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32399-0350 William G. Reeves, General Counsel Department of Banking and Finance The Capitol, Suite 1302 Tallahassee, Florida 32399-0350 Honorable Gerald Lewis Department of Banking and Finance Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350
The Issue Whether Respondent, while acting as pilot aboard the M/V Itanage in the St. John's River, Jacksonville, Florida on August 29, 1990, engaged in a practice which did not met acceptable standards of safe piloting. (F.S.A. s. 310.101(1)(k))
Findings Of Fact Respondent is, and has been at all times material hereto, a licensed pilot in the State of Florida. (Petitioner's Request for Admissions paragraph 1) Respondent has been issued license number SP0000032. (Petitioner's Request for Admissions paragraph 2) On or about August 29, 1990, Respondent was piloting the M/V Itanage outbound in Jacksonville, Florida. (Petitioner's Request for Admissions paragraph 4) The Itanage is a 12,000 gross ton, Brazilian registered diesel powered container vessel. (Transcript p. 164) From May 1988 to August 1990 the Itanage entered and exited the port of Jacksonville under pilotage fifteen times without navigational incident. (Transcript pp. 21, 22) The same crew abroad the Itanage at the time of the allision was on the Itanage on its previous voyage of the Itanage. (Transcript p. 22) Respondent has piloted the Itanage or similar vessels many times previously. (Transcript p. 355) The Itanage was equipped with an overhead rudder angle indicator which is visible from the bridge wing. The rudder angle indicator exhibits the degree angle of the rudder and is color coded red for port and green for starboard so the pilot can glance up and see whether port or starboard rudder is applied. 2/ (Transcript pp. 166, 167) Each bridge wing of the Itanage was equipped with an RPM indicator which shows whether the engine was going ahead or astern and the number of revolutions per minute. (Transcript p. 168) The Itanage was equipped with an engine room telegraph which was operated by the second mate to communicate engine commands to the engine room. 3/ On August 29, 1990, the docking master, Captain Meers, undocked the vessel from Jacksonville Port Authority berths 3 and 4, turned, headed down the river on slow ahead, and disembarked around Coastal Petroleum. (Statement of Captain Steele; DPR Report, p. 2) Respondent assumed responsibility for directing the ship at 1454 hours with the vessel parallel to and favoring the west bank of the river. (Statement of Captain Steele; DPR Report, p. 8; engine bell book, Transcript p. 175) It was a clear day, the ride was at or near slack water, the weather was perfect. (Transcript pp. 92. 169, 170, 198) Respondent gave commands to the second mate who remained positioned by the engineroom telegraph on the bridge. The second mate repeated the commands in English then repeated the commands to the helmsman in Portuguese. (Transcript pp. 195, 337); Statement of Second Mate) The second mate spoke very little English and the helmsman did not speak any English. (Transcript p. 331) At 1454 the Respondent ordered course 320 degrees and slow ahead, which was executed. At approximately 1456, Respondent ordered a course of 310 degrees and full speed ahead. (Transcript pp. 82, 83, 191, 192; DPR Report p. 8; engine bell book; Statements of the Second Mate, Helmsman, Master, and Chief Mate; Statement of Captain Steele) Respondent's orders issued at 1456 were executed, and the engine speed was set at full ahead and the Helmsman steered 310 degrees. (Transcript p. 186; DPR Report p. 8; Statements of the Second Mate, Helmsman, Master, and Chief Mater; engine bell book; Statement of Captain Steele; Petitioner's Request for Admissions paragraph 8) Respondent was in the wheelhouse and observed the master-gyro-compass. (Transcript p. 331; Statement of Captain Steele) Because the view forward was blocked by the deck cargo, Respondent went to the starboard wing to observe Buoy 71. (Statement of Captain Steele) At 1455 Respondent ordered "10 degrees port" from the starboard wing. (Transcript pp. 337, 338; Statements of the Second Mate, Helmsman) The helmsman steered 10 degrees to port (left). (Transcript p. 192; Statements of the Second Mate, Helmsman) After the order of "10 degrees port", Respondent remained on the starboard wing and had a radio conversation using a hand held marine radio with the master of the tug "Ann Moran" which took approximately 45 seconds about a ship they had handled the previous day. (Transcript pp. 338, 340, 247) At 1456 as Itanage approached Buoy 71, at point "D" on Hearing Officer Exhibit 1, from the starboard bridge wing, Respondent ordered hard right (starboard) rudder and engine ahead full. (Transcript p. 343) This was to start the turn around Buoy 71. (Transcript p. 384) Captain Steele did not at that time, however, go to the pilot house. Captain Steele remained on the wing to observe the response of the vessel. (Transcript p. 395) After a few seconds, Captain Steele observed the bow of the vessel swinging to port (left) not to starboard (right). (Transcript p. 345) He immediately rushed to the pilot house, repeating his hard starboard (right) rudder order as he did so. (Transcript p. 345) The rudder angle indicator in the pilot house, however, indicated the actual position of the rudder was passing from port (left) 20 degrees to starboard when Captain Steele entered the pilot house. (Transcript p. 345) Captain Steele did not alter the prior order for ahead full. Captain Steele reached the helm console and grabbed the helm. By that time, the helm was already in the hard starboard position. The only explanation as to how the rudder got to 20 degrees port (left) was that when Captain Steele gave the command hard to starboard, the helmsman actually went hard to port (left), then the helmsman realized his error and was correcting it when Captain Steele entered the pilot house. No one suggests that any other command was given which would account for the port swing of the vessel. (Transcript p. 235) Captain Steele again went to the wing to observe the response of the vessel. When it became apparent the vessel would not make the turn, Steele ordered full astern and ordered both anchors dropped. The vessel continued to make way in a sweeping curve alliding with the Shell Oil Terminal on the western edge of the Chaseville turn at approximately 1459 hours. The allision was not caused by a mechanical failure, weather, or tide. (Transcript p. 69). The allision was set up by the helmsman's turning the ship to port (left) instead of starboard (right). However, the Respondent contributed to this error by failing to give the steering command, "Right, full rudder," as required by the Rules of Road. See 33 USC 232. The Coast Guard conducted an investigation and prepared a report (Petitioner's Exhibit 1), the second page of which is a data sheet taken from the ship's bridge. This data sheet contains a diagram of the ship's turning circle to both port (left) and starboard (right) at half and full speeds. An overlay in proper scale was prepared and attached to Hearing Officer Exhibit 1 at the point where the turn was executed, Point D. The scaled extract of the Coast Guard report is attached to the back of Hearing Officer Exhibit 1. The overlay reveals that the vessel could not make the turn at full speed from Point D because the vessel's course takes it almost exactly to the point of allision. If the vessel's course is offset slightly to the left due to the helmsman's mistake and the vessel's turning circle adjusted for less speed, as would have occurred if the vessel went from half speed to full speed when the order for the turn was given, the vessel's projected track would again place the vessel at the point of the allision. The primary cause of the allision was Respondent's use of full speed in the turn. Although there was controversy about whether the vessel proceeded north the entire way at full speed or whether full speed was ordered as the turn was ordered approaching Buoy 71 (Point D on Hearing Officer Exhibit 1), there is no controversy that Captain Steele intended to execute the turn at full speed. The distance from where Captain Steele assumed control of the ship to where it came to rest is approximately 1 and 1/8 nautical miles. According to the logs, the vessel covered this distance in between four and five minutes. In order to cover that distance in that time, the ship was at or close to its full speed, adjusted for a dirty hull, of 15 knots. The advance and transfer of the ship was extended at full speed in such a way that the vessel could not make the turn in the sea room available. Referring again to the overlay, the vessel could have turned within the searoom available from Point D at half speed. The ship might have completed the turn at half speed from a point left of and forward of Point D, its track as the result of the helmsman's error, particularly with the reserve of thrust available to assist in turning after the emergency developed. The Chaseville turn is a tight turn without a great amount of sea room, and requires care to be exercised by pilots. (Transcript pp. 354, 362, 170, 171). The Respondent's failure to maintain proper speed caused the allision with the Shell Oil Terminal.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Board of Pilot commissioners issue a final order suspending Captain Henry A. Steele for three (3) months and levying a civil penalty of $5,000 against him. DONE and ENTERED this 3rd day of June, 1992, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 1992.
Findings Of Fact At all times relevant hereto George H. McDonald was licensed as a Tampa Bay pilot by the State of Florida and issued license number 0000074. On October 29, 1986, Respondent boarded the vessel, Kalliope II, at berth 223, GATX dock, to undock the vessel and pilot it out of Tampa Bay. Kalliope II is a Liberian registered vessel of some 17,000 gross tons, 584 feet in length, and at the time of departure from berth 223, had a maximum draft of 34 feet, six inches. The Kalliope II was moored starboard side to berth 223, and two tugs were available to assist in the undocking. Prior to undocking, the steering gear was tested and performed satisfactorily. A physical check of the steering engine room was not conducted. The bow of the Kalliope was swung out in a pivot test to insure the bow was not aground. This was accomplished by slacking the bow lines and taking in on the stern lines. A similar pivot to ensure the stern was not aground was not accomplished. In undocking the Kalliope II, Respondent had the tug Tampa on the stern on a hawser and the tug Orange on the port bow. As the vessel cleared the slip, the Orange was cast off and stood by with the Tampa towing the Kalliope II into Cut D Channel. Because of the deep draft of the Kalliope II, Respondent did not use the vessel's engines in this maneuver. The Kalliope II as noted above, is 584 feet long and Cut D Channel is 400 feet wide. In order to keep the stern from striking the west bank of the channel while backing out of berth 223, it is necessary to pivot the vessel to move the stern northward while keeping the bow clear of the docks. While backing away from berth 223, the only control of the movement used was that supplied by the tug Tampa. Twice the captain of the Tampa advised Respondent that the stern of the Kalliope II appeared to be getting too close to the Davis Island seawall just west of Cut D Channel. The first time this information was passed to Respondent, he directed the tug to come ahead slow, and the second time the tug was directed to come ahead full. Thereafter, the Kalliope II was aligned in cut D channel. At this time, Respondent ordered the engines ahead slow and had the Tampa cast off. The weather was not a contributing factor at this time. At no time between 2200 hours, the time the Kalliope II left berth 223, until the Kalliope II was finally aligned with Cut D Channel, did Respondent feel the Kalliope II touch bottom. While proceeding down Tampa Bay, Respondent noticed the helmsman was using 200 rudder to keep the vessel in the channel, and directed one of the ship's crew to check the steering engine room. When this was done, it was discovered that the steering mechanism had suffered considerable damage, and the vessel could no longer be controlled with the steering gear. Tugs were again called, and the Kalliope II was returned to a dock. Underwater divers surveyed the damage to the rudder, and other surveyors checked the damage to the gear in the steering engine room. Examination of the rudder showed heavy damage with the trailing edge of the bottom of the rudder bent some 25 degrees from the top of the rudder. Build up of streaks of clay on the port side of the rudder, with the rudder damage sustained, is indicative of the rudder striking the bank while the ship was backing down. (Exhibit 5) Examination of the steering gear inside the steering engine room revealed the steering equipment had been seriously damaged and was inoperable. The damage was consistent with damage to be expected if a ship struck the edge of the channel with the rudder while backing down. Divers searched the west bank of Cut D Channel in the vicinity of berth 223 and found an impact area opposite and just north of berth 223. The impact area was approximately 40 feet long parallel to the channel with clay substrata welled upwards through the sand and mud giving the appearance of the embankment having been struck by a large heavy force. (Exhibit 6) Damage to the Kalliope II's steering equipment was in excess $100,000. Respondent has been a licensed deputy pilot and pilot in Tampa Bay since 1980, has an excellent record, and this is the first time that charges have been brought against him.
The Issue Whether Petitioner’s transactions regarding capital purchases and improvements, gift shop lease payments, concessionaire revenues, purported office lease payments, and 11 gaming equipment (leased and purchased) are subject to Florida sales or use tax during the audit period and whether Petitioner is entitled to the resale exemption for food purchased and provided to its customers during the audit period. Finding of Fact 46 During the audit period, the Petitioner sold tickets to its cruises generally for $25 (most cruises) and $30 (weekend, evening, and Sunday brunch cruises). In general, the cost of its food during the audit period was $7.50 per passenger. It is undisputed that the petitioner did not pay sales tax on the food it purchased for later consumption by its passengers. Finding of Fact 92 During the audit period Mr. Genden requested, but could not receive, records pertaining to register tapes and ship documents that would show how and when the registers were opened and closed, and ship policies concerning when registers were opened and closed. The requested records had been destroyed by the inadvertent activation of the Vessel’s sprinkler system. The Recommended Order, subject to the modifications stated above, is adopted and attached below. 12 DONE AND ENTERED in Tallahassee, Leon County, Florida this_ 244 day of November, 2001 STATE OF FLORIDA DEPARTMENT OF REVENUE < Zingge xecutive Direct, Certificate of Filing J HEREBY CERTIFY that the foregoing FINAL ORDER has been filed in the official records of the Department of Revenue this day of 1 nueeben >, 2001. wit : 4 Al FENCY CLERK Copies furnished to: Kenneth M. Hart, Esquire Nicole M. Nugan, Esquire Gunster, Yoakley & Stewart, P.A. 777 South Flagler Drive, Suite 500, East Tower, West Palm Beach, Florida 33401 William L. Hyde, Esquire Gunster, Yoakley & Stewart, P.A, 215 South Monroe Street, Suite 830 Tallahassee, Florida 32301 13
Conclusions This cause came before the Department of Revenue for the purpose of issuing a final order. The Administrative Law Judge assigned by the Division of Administrative Hearings issued a Recommended Order, sustaining the Department’s assessment. A copy of the Recommended Order is attached to this Final Order. Petitioner timely filed exceptions to the Recommended Order and a copy of that filing is attached to this Final Order. For the reasons expressed herein, the Department adopts the Administrative Law Judge recommendations and specifically incorporates the Recommended Order except for Finding of Facts 46 and 92, which are modified as reflected below. Rulings on Petitioner’s exceptions are also set forth below. Petitioner’s Exception to Finding of Fact 17 Petitioner asserts that it is a misrepresentation that its ship, the Palm Beach Princess (the Vessel), travels “just far enough” to engage in gambling activities without violating state laws. Petitioner further avers that its Captain, Hrovj Michl, testified that the Vessel “travels into international waters on each of its cruises.” The Record clearly indicates that the Vessel travels exactly three miles out from port on each of its cruises-to-nowhere, whereupon gambling activities commence for a period lasting until preparations are made for the Vessel’s return to port. During gambling activities the Captain stems the tide at a point three miles off shore, which is exactly beyond the extent of Florida’s territorial waters. As per Presidential Proclamation No. 5928, Dec. 24, 1988, the Territorial Limits of the United States extend 12 miles from shore, whereupon international waters commence. Therefore, based upon testimony provided by Petitioner’s own witness, the Vessel travels just far enough to leave Florida’s territorial waters, but remains 9 miles inside of the territorial limits of the United States. Petitioner, at the hearing or in its exceptions, provides no contrary authority that expressly contradicts Presidential Proclamation 5928. As such, the Administrative Law Judge’s finding stands. Petitioner’s exception to Finding of Fact 17 is hereby rejected. Petitioner’s Exception to Finding of Fact 39 Petitioner asserts that it misstates the facts to find that “[t]he sole source of the Petitioner’s income during the audit period was in connection with business conducted in the U.S.” The Petitioner further claims that “Section 863(c) of the Internal Revenue Code contains a per se rule that treats [Petitioner’s] transportation income as derived from sources within the United States" even when Petitioner was engaged in foreign commerce. Petitioner deems that “compliance with an income source tule in the Internal Revenue Code [should not be] determinative of whether [Petitioner] is engaged in foreign commerce. The Record clearly indicates that Petitioner’s federal tax returns show income derived from a business conducted in the United States. The Record also indicates that Petitioner maintained an office located within the State of Florida, it exclusively operated its Vessel from a port within the State of Florida, and, as discussed in the preceding Exception, its Vessel never traveled into international waters or the territorial waters of any other state. With no connection to any other taxing authority within the United States and with no evidence of commerce conducted with a foreign entity, Petitioner's argument must fail as it concerns this Finding of Fact. Petitioner’s exception to Finding of Fact 39 is hereby rejected. Petitioner’s Exception to Finding of Fact 41 Petitioner asserts that its Vessel is engaged in foreign commerce because the Vessel travels, with passengers aboard, to a point slightly more that 3 miles off the coast of Florida. Section 1331 of Title 43 of the United States Code state that the “territorial sea of the United States henceforth extends to 12 nautical miles from the baselines of the United States determined in accordance with international law.” Because Petitioner’s Vessel travels only 3 miles offshore, the Vessel never reaches international waters. Additionally, to be engaged in commerce in the manner in which the Petitioner contends it occurs, Petitioner needs to “transport” passengers or property from one point to another. The Record clearly indicates the Vessel leaves from port and returns to the same port with no intervening stops. Thus, Petitioner’s claim fails on this point as well. Petitioner’s exception to Finding of Fact 41 is hereby rejected. Petitioner’s Exception to Finding of Facts 86, 90, and 99 Petitioner excepts to the finding “that at all times material to the audit period, [Petitioner] maintained an office in Boca Raton, Florida.” Petitioner further avers that payments for the office space were in the form of “advances for payments due under a management agreement between [Petitioner] and [its management company].” These contentions are without merit as the Record is replete with sufficient, competent documentary evidence substantiating the existence of Petitioner’s Boca Raton office and the manner in which rent payments were made is immaterial to that finding. Petitioner’s exceptions to Finding of Facts 86, 90, and 99 are hereby rejected. Petitioner's Exception to Finding of Facts 87 and 89 Petitioner excepts to the findings that sales tax is due on photography and gift shop licenses and on its lease of gambling equipment. Petitioner bases its entitlement to an exemption on the claim that all of its resulting income “is attributable to the transportation of persons or property in foreign commerce under § 212.08, Florida Statutes... .” As discussed in Petitioner’s Exception to Finding of Fact 41, Petitioner does not engage in foreign commerce as described in under § 212.08, Florida Statutes, therefore Petitioner’s argument on these points fails. Petitioner’s exceptions to Finding of Facts 87 and 89 are hereby rejected. Petitioner’s Exception to Finding of Fact 88 Petitioner claims it is entitled to an exemption for the cost of food used in preparing the buffet meal served on its Vessel. In support of this contention, Petitioner points to Finding of Fact 46, which states: “[I]t is undisputed that the Petitioner did not pay sales tax on the food it purchased for resale to its passengers.” This claimed exemption would be properly granted if Petitioner’s purchase of food was indeed for “resale.” The Record, however, clearly shows that admission to Petitioner’s Vessel comes in the form of a lump-sum charge, which entitles patrons to all amenities offered on board the Vessel to include food, gambling, and other related services. The Administrative Law Judge in Paragraphs 44 and 45 of her Recommended Order discusses these facts. Since the Petitioner is providing a taxable admission, and since the cost of all goods and services, including meals, is included with that admission, Petitioner can not claim in this instance to be providing food for resale. Petitioner’s exception to Finding of Fact 88 is hereby rejected and Finding of Fact 46 is modified to accurately portray the character of Petitioner’s food purchase. Petitioner’s Exception to Finding of Fact 92 Finding of Fact 92 reads that the Department requested, but did not receive, certain records during the conduct of the Department’s audit. Petitioner, in its exception, acknowledges that the records were not provided, but adds that the requested records had been inadvertently destroyed by the ship’s water sprinkler system. Although the Finding of Fact makes no allegation of inappropriate or non-compliant behavior on the part of the Petitioner, there exists sufficient evidence in the Record detailing Petitioner’s cooperation during the audit process to warrant modification of this Finding of Fact. Petitioner’s exception to Finding of Fact 92 is hereby accepted in part and the Finding of Fact will be modified to reflect the reason for Petitioner’s non-production of tecords. Petitioner’s Exception to Finding of Facts 93 - 97 Petitioner’s objections to the Findings in Paragraphs 93 — 97 revolve around the contention that if one were to concede that the Vessel “‘stems the tide” on its cruises to nowhere [this could be] fundamentally inconsistent with the conclusion that the [Vessel] travels 34 miles during such voyages.” Petitioner avers that the Administrative Law Judge failed to consider contrary testimony and appears to have given substantial weight to the fact that Petitioner did not contest mileage figures until the time of the hearing. Petitioner also objects that “the determination of the mil[eJage traveled on a cruise to nowhere in this case should not have been based on determinations made prior to the instant proceeding, but should have been based solely upon the evidence in the record.” During testimony at his deposition and again while testifying at trial, Petitioner’s witness, Captain Hrvoj Michl, consistently confirmed the accuracy of the voyage reports offered into evidence at the hearing. These records clearly support the Department’s reliance upon the figure used to calculate portions of the assessment at issue and are at variance with the mileage proffered by the Petitioner in its Exceptions. The voyage reports clearly and consistently document that the Vessel traveled in excess of 30 miles on each of its cruises-to-nowhere. Petitioner’s exceptions to Finding of Facts 93 — 97 are hereby rejected. Petitioner’s Exception to Finding of Fact 93 Petitioner specifically objects the finding that the Department’s auditor relied on a mileage figure he received from on of the Petitioner’s ship captains during a telephone conference call arranged by Petitioner’s vice president. Petitioner, however, failed to produce the vice president [who was the only other participant in this conversation] at the hearing to contest the auditor’s claim. Additionally, as discussed in the preceding paragraph, there exists substantial evidence in the Record supporting the veracity of the auditor’s claim and his subsequent reliance on the mileage figure. Petitioner’s exception to Finding of Fact 93 is hereby rejected. Petitioner’s Exception to Finding of Fact 94 Petitioner specifically claims that there is nothing in the Record to substantiate that “records associated with the mileage issue were not reviewed further because the auditor did not realize the figure would be later disputed.” As recorded on Pages 48 and 49 of the hearing transcript, the department’s auditor testified that he first heard of the mileage figure during a meeting with one of the Petitioner’s executives. The auditor added that he subsequently viewed voyage records, prepared by the Petitioner’s captain, which supported this figure. Also, in answer to a direct question, the auditor testified that none of Petitioner’s employees disputed this figure while the audit work was being performed. These finding are consistent with the department’s tax conferee’s recollection, found on Pages 78 — 79, that no one from the Petitioner’s company raised an issue as to the mileage figure used. Based upon this testimony alone, there is substantial evidence supporting the Administrative Law Judge’s finding on this issue. Petitioner’s exception to Finding of Fact 94 is hereby rejected. Petitioner’s Exception to Finding of Fact 96 Petitioner, once again, excepts to the finding regarding the mileage figure produced at the Hearing. As previously discussed, the Administrative Law Judge correctly based this finding on figures produced by the Petitioner in Petitioner’s Voyage Report, and the accuracy of this report was verified by Petitioner’s witness under sworn testimony. Petitioner’s exception to Finding of Fact 96 is hereby rejected. Petitioner’s Exception to Finding of Facts 97 and 98 In addition to other exceptions already presented and analyzed in this Final Order, Petitioner argues that it “did not become aware of the DOR auditor’s erroneous conclusion regarding the correct travel distance of each voyage until the discovery process in the DOAH hearing.” In a Joint Pre-Hearing Stipulation files by the parties, it was agreed that the Department of Revenue issued a Notice of Proposed Assessment in this matter on March 12, 1999. The Department also issued a Notice of Decision pertaining to the assessment on June 12, 2000. The assessed amounts were based on the 34-mile figure in both instances, and both events preceded the complaint that initiated this DOAH proceeding. As evidenced by the information presented at the Hearing, evidence that verified the auditor’s use of the mileage figure, there exists sufficient documentation to support the Administrative Law Judge’s Finding of Fact. Petitioner’s exception to Finding of Facts 97 and 98 are hereby rejected. Petitioner’s Exception to Conclusion of Law 101 Petitioner argues that it has met its burden in proving that the assessment is incorrect. For reasons set forth in the Department’s responses to Petitioner’s Exceptions, and based upon the findings in the Administrative Law Judge’s Recommended Order, it is determined that there is ample documented evidence in this Record to refute Petitioner’s claim. Petitioner’s exception to Conclusion of Law 101 is hereby rejected. Petitioner’s Exceptions to Conclusion of Law 116 and 118 Petitioner iterates the exceptions that were discussed in its Exceptions to Finding of Facts 17, 41, 87, and 89. The analysis previously provided supports the Administrative Law Judge’s findings in these instances as well. Petitioner’s exceptions to Conclusions of Law 116 and 118 are hereby rejected. Petitioner’s Exceptions to Conclusions of Law 120, 123, 124, 129 and 132 Petitioner excepts to the conclusion that it exercised control over tangible personal property in Florida and it restates its claim that certain assessed items were non- taxable because of their use “in the stream of foreign commerce.” For reasons cited earlier, Petitioner’s claim of engaging in foreign comrnerce while conducting cruises-to-nowhere is rejected. The Record also contains substantial documented evidence to support the Department’s contention that Petitioner exercised control over tangible personal property while the Vessel was docked in Florida. Also, in recognition of this country’s 12-mile territorial limit, Petitioner’s claim for proration of the miles traveled beyond Florida’s 3-mile is deemed inappropriate as it misidentifies the starting point of international waters. Petitioner’s exception to Conclusions of Law 120, 123, 124, 129 and 132 are hereby rejected. Petitioner’s Exceptions to Conclusions of Law 126 and 127 Petitioner’s claim of entitlement to a resale food exemption is based on the proposition that the meal consumed by its passengers is “an essential element of the entertainment package purchased....” The Administrative Law Judge, having toured the ship, and having been briefed by both parties as to the applicable case law on this subject, considered this argument and rejected it. In review, the evidence supports this determination. Petitioner’s exceptions to Conclusion of Law 126 and 127 are hereby rejected. Petitioner’s Exceptions to Conclusions of Law 131 Petitioner reargues its contention that it did not lease or rent office space in Florida and it adds, that if it were deemed to have rented office space, “[it] is entitled to 10 credit for the sales tax [that] has already been paid....” As previously discussed, the Administrative Law Judge made her findings of fact and conclusions of law based upon competent and substantial evidence. In this conclusion, the Administrative Law Judge states, “[t]he Petitioner is responsible for the sales tax that was not paid during the period of its occupancy of the real property....” (Emphasis supplied) The matter of whether Petitioner is, or is not, entitled to a credit is not at issue, nor is there any finding or conclusion that would prevent Petitioner from seeking a refund or credit through proper legal means. As such, Petitioner’s exception falls outside the scope of this Conclusion. Petitioner’s exception to Conclusion of Law 131 is hereby rejected. Adoption and Modification of the Recommended Order The Statement of the Issues is modified as set forth below to more accurately reflect the issues addressed by the Administrative Law Judge. The Preliminary Statement as set forth in the Administrative Law Judge’s Recommended Order is adopted in its entirety. The Department adopts and incorporates the Findings of Fact set forth in paragraphs 1 through 45, 47 through 91, and 93 through 99 of the Recommended Order. Findings of Fact 46 and 92 are modified as presented below. The Department also adopts and incorporates Conclusions of Law set forth in paragraphs 100 through 132 of the Recommended Order.
The Issue At issue herein is whether or not the Petitioner, Kelly Boat Service, Inc.'s and Cape Kennedy Charter Boats, et al's activities fall within the admissions tax liability imposed by Section 212.04, F.S. (1973). Based upon the pleadings filed herein, the documentary evidence introduced during the course of the hearing, the other evidence of record including the arguments of counsel, the following relevant facts are found.
Findings Of Fact In the instant matter, the Department of Revenue issued two sales tax assessments. The first such assessment is against Cape Kennedy Charter Boats and covers the audit period of March 1, 1973, through February 29, 1976. The Department also assessed Kelly Boat Service, Inc., in a series of three separate assessments covering the audit periods August 1, 1970, through January 31, 1976. Based on such assessments, a tax liability resulted in the amount of $25,072.37. Of this amount, $10,000 was paid by the tax payer on July 21, 1976 (Respondent's Composite Exhibit No. 1). The remaining tax liability plus interest which has accrued from July 21, 1976, is outstanding and continues to accrue. During the course of the hearing, the parties agreed that the specific liabilities as set forth in the assessment were not at issue. Rather, Petitioner solely challenged the legal authority of the Department of Revenue to impose the assessments in question. The Petitioners are owners and operators of a fleet of deep sea fishing boats in and around Destin, Florida, which, for a fee, carry individual fishermen to certain fishing banks which lie beyond the three-league limit in the Gulf of Mexico. While there, the Petitioners sell food and drinks to the fishermen and rent them fishing equipment. The fishing is done at the snapper banks in the Gulf of Mexico or in the vicinity of those banks. The fishing equipment and tackle used on these trips are mainly used beyond the three-league limit in the waters of the Gulf of Mexico; and most, if not all, of the food and drinks sold at the galley of the refreshment stand on the boat was outside the three-league limit of the State of Florida. In an earlier summary final judgment, the Circuit Court of Appeal declared, as authorized by Chapter 86, Florida Statutes, 1973, the liability of Kelly Boat Services, Inc., for payment of the admissions tax by Section 212.04, F.S., 1973, from which the Department of Revenue filed an appeal. In that decision, the Court held that Kelly, whose boats take on passengers at Destin for fishing in the Gulf of Mexico beyond the territorial limits of Florida, is taxable at the statutory rate on the admission fare charged at the dock, but that the State is foreclosed from assessing Kelly for taxes that should have been paid between August, 1970, and the first day of August, 1973, the period in which the Department demanded the production of Kelly's records for audit. Section 212.14(6), F.S., 1973. Kelly cross-appealed and urged that its activities were not subject to the tax, citing Straughn v. Kelly Boat Service, Inc., 210 So.2d 266 (Fla.App. 1st 1968). In its decision, the First District Court of Appeal in Dept. of Revenue v. Kelly B Boat Service, Inc., 324 So.2d 351 (Fla. 1976), indicated that the trial court was correct in its reading of its decision in Dept. of Revenue v. Pelican Ship Corp., 257 So.2d 56 (Fla.App 1st 1972), Cert. Denied, 262 So.2d 682 (Fla. 1972), Cert. Dismissed, 287 So.2d 93 (Fla. 1974), and in hold that Kelly's commercial activities, as evidenced by the record, render it liable to assessment for the admissions tax. The Court noted that the trial court was incorrect, however, in foreclosing the Department of Revenue from making the assessment for the full three-year period authorized by Subsection 212.14(6), F.S., 1973. The decision goes on to read that the State is not foreclosed by reason of the Court's 1968 decision in Straughn v. Kelly Boat Service, Inc., or otherwise to assert that on the facts evidenced by record, Kelly should satisfy its full tax liability incurred three years prior to August 1, 1973. North American Company v. Green, 120 So.2d 603 (Fla. 1960); Jackson Grain Company v. Lee, 139 Fla. 93, 190 So. 464 (1939). Based on the above decision of the First District Court of Appeal, the Department's assessment, which the parties admit is factually correct, is valid both as to the August 1, 1970, through July 31, 1973, and the August 1, 1973, through January 31, 1976, audit periods. Since this matter has previously been adjudicated, the same is res judicata as to the legal validity of the Department's assessment. Further, since the assessment relative to Cape Kennedy Charter Boats is based upon the same factual circumstances and legal authority as the one against Kelly Boat Service, Inc., which was upheld as aforementioned in the case of the Dept. of Revenue v. Kelly Boat Service, Inc., supra, there is no factual challenge to the validity of the Department's assessment and there being no assertion by the Petitioner that any rules of law other than those enunciated by the District Court of Appeal in Dept. of Revenue v. Kelly Boat Service, Inc., supra, are applicable, such assessment must likewise be upheld. I shall so recommend. 1/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, hereby, RECOMMENDED: That the Department of Revenue's assessment in the instant matter against the Petitioners be UPHELD. Additionally, in view of the Petitioners' letter of April 11, 1979, Petitioners' motion to treat this matter as a class action is hereby DISMISSED. RECOMMENDED this 31st day of May, 1979, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
