The Issue The issues in these consolidated cases are: Whether The Buxton Group, Incorporated, and Kavin P. Buxton (hereinafter jointly referred to as "Buxton") committed fraud, deceit, negligence, or misconduct, and, if so, whether the Department of Agriculture and Consumer Services (the "Department") may deny the issuance of or revoke various licenses held by Buxton--DOAH Case No. 10-2197; and Whether administrative denial of Buxton's existing Class "G" license is warranted--DOAH Case No. 10-2198.
Findings Of Fact The Department is the state agency responsible for, inter alia, the issuance and monitoring of various licenses related to the field of private security. It is the Department's responsibility to take disciplinary action against any licensee who violates statutes or rules relating to the licenses issued by the Department. Buxton has held, now holds, or has applied for the following licenses which are issued by the Department: D9414758: A security officer's license which has an expiration date of August 30, 2010; DI9900012: An instructor's license for which Buxton applied for, but was denied renewal; B9400126: A license to operate a security agency. Buxton's license has expired and there is an administrative action pending against it; G9402513: A statewide firearms license. Buxton's license has expired, and his request for renewal has been denied by the Department; A9700094: A private investigative agency license, effective May 19, 2008; and MB9500099: A license to manage a security agency. Buxton's license has expired, and there is an administrative action pending. The basis of the Department's disciplinary actions against Buxton's licenses (and the reason the Department has denied applications for renewals) is an incident occurring on March 27, 2008, in Pinellas Park, Florida. Buxton was on that date working as a security guard for Dew Cadillac, a new and used car dealership. At approximately 5:05 a.m., Buxton was returning to the dealership after taking a coffee break off-site. He was driving his personal automobile down an unpaved track of land on the east side of the dealership. He turned unto an unpaved area at the northern end of the lot at which time he noticed movement around an employee's pick-up truck which was parked in the car lot. It appeared a window of the truck had been broken, and there was glass lying around the outside of the vehicle. Buxton approached the vehicle and found a person (later identified as Mark Lobban) "rummaging around" in the cab of the truck. Buxton noted that two windows had been smashed, and there was a dent in the passenger side door. Buxton ordered Lobban to exit the vehicle. When Lobban came out of the truck, his eyes indicated a drugged or intoxicated state, and he reached his hand into his shirt along the front waistline of his pants. When Buxton saw that movement, he drew his weapon, a Springfield Armory XP 9mm semi-automatic handgun, for which he held a current permit to carry. Lobban took his hand out of his shirt and stated that he was looking for his cousin. Buxton ordered Lobban to the ground and began to dial 9-1-1 as he kept an eye on Lobban. Just as Buxton finished dialing 9-1-1, Lobban allegedly lunged at Buxton, then took off running. Lobban ran behind some Hummer vehicles parked nearby. Buxton says that as Lobban ran, he again reached his hand into his shirt near his waistline. That placed Buxton in fear that Lobban may have a gun, so Buxton ran to another row of Hummers for protection and began firing shots toward Lobban from his own handgun. Lobban then ran past the row of Hummers and appeared to be exiting the premises. Buxton followed Lobban and later recounted in his Firearms Incident Report, that he ran toward Lobban "to insure that the suspect was actually exiting the property. At this point, I felt he was possibly running away. I followed further in an attempt to maintain sight of the suspect." Lobban approached a hedgerow located at the west side of the dealership, attempted to jump over it, but caught his leg and fell over the hedges. By this time, Buxton had cleared the last line of parked vehicles and, thus, had no more cover. When Lobban stood up on the other side of the hedgerow, he turned to face Buxton. Buxton wrote in his report, "Fearing he had drawn a weapon behind the hedge, I fired another round, at which time the suspect turned and fled east, through the wooded area adjacent to the property." Lobban did not at any time display or fire a weapon at Buxton. Buxton returned to his cell phone which he had dropped when first apprehending Lobban. The 911 operator was just calling him back at that moment. Buxton was put through to PPPD and, within minutes, the first officer, Scott Martin, arrived at the dealership. Martin had ensured that a police perimeter was established around the dealership concurrent with his arrival. When Scott got to the dealership, he found Buxton and was briefed as to what had transpired. A brief search of the premises was commenced pending arrival of the PPPD K-9 unit. While awaiting their arrival, Buxton spotted Lobban hiding under a vehicle in the dealership's service area. Lobban was apprehended by Scott and placed in a police cruiser. Scott determined that Lobban was impaired, probably by alcohol, and was essentially incoherent. Scott did an "article search" of the premises to see if any items belonging to Lobban could be found. A cell phone and wallet were recovered, but there was no sign of a firearm. The search did not concentrate on a firearm specifically, but the search was intended to find any item that Lobban had handled. The K-9 unit was able to trace Lobban's scent through the Hummers, across the hedgerow and back to the service area. The search concentrated on the areas where Lobban had been known to have crossed. No search was done of the wooded area behind the hedge, because the tracking dogs did not point to that area as having been traveled by Lobban. Scott reported in to his headquarters after hearing Buxton's explanation of the events that transpired. The discharge of a weapon in that scenario seemed unwarranted to Scott, so he reported it to his supervisor. Within minutes, Detective Doswell arrived at the dealership to further investigate the situation. Doswell arrived to find Lobban already in custody and Buxton standing in the parking lot with another security guard. Buxton told Scott he had fired four shots at Lobban initially and then two more shots after Lobban jumped the hedge. However, there were five shell casings found in the first location and only one near the hedgerow. The events concerned Doswell enough that he asked Buxton to come into headquarters and make a statement about what had occurred. Buxton initially agreed to do so. After a few minutes, however, he handed his cell phone to Doswell so that Doswell could talk to Buxton's attorney. Doswell and the attorney set up a meeting for later that same day, a Thursday. The attorney later called Doswell and said he and Buxton could not come in until the next day (Friday), so the meeting was rescheduled for that day. On Friday, March 28, 2010, Buxton and his attorney arrived at the PPPD headquarters. Doswell informed Buxton that he was investigating the event as a probable illegal discharge of a firearm and that criminal charges could be filed. Buxton was not read his Miranda rights at that time however, in that no charges had yet been filed. At some point, Doswell determined that Buxton had been involved in another incident relating to the discharge of his firearm while on duty. In that case, Buxton was working at a bowling alley when a group of kids attempted to "jump him." One kid spit on Buxton and during the brief confrontation, Buxton pulled his firearm. Buxton discharged his gun, firing into the ceiling of the establishment (because, said Buxton, someone hit his arm just as he was shooting. Buxton did not say what he was aiming at when he fired.). After interviewing Buxton and his attorney, Doswell revisited Dew Cadillac and did some further investigation. Fragments of bullets from Buxton's firearm had been recovered from the tires of two Hummers on the car lot. In order to obtain licenses which allow a person to use a firearm in conducting their authorized activities, a person must undergo a background check and certain training and education. The Class "D" license held by Buxton required 40 hours of training (which can be dispensed with if the applicant has prior corrections or law enforcement experience). The training necessarily included instruction from the Firearm Instructor's Training Manual (the "Manual"). The Manual specifically warns against the unauthorized use of deadly force, i.e., discharging a firearm at an individual. The Manual stresses the need to retreat and disengage, rather than entering into a situation that might require using the firearm. Several examples are set out in the Manual to provide applicants guidance about how to avoid using deadly force. Two of those examples follow: Situation #1: You are guarding a liquor store and are advised by a customer that there is an armed robbery in progress. You look around the corner and see a man rushing out the front door with a firearm in his hand. Instructor Discussion: Instead of immediately looking around the corner, call the police first. The suspect could turn around and see you as you look around the corner, thus, increasing the probability of armed conflict. The man is running away from you, and there is no threat of death or great bodily injury. Don't shoot. Situation #2: You have been advised that a burglary has occurred at a warehouse you are guarding. The suspects were observed leaving the scene in a blue, 1972 Dodge. Later that night, while patrolling the grounds in a well-marked security vehicle, you observe the suspects' vehicle traveling through the parking lot at a high rate of speed with the headlights off. You see a flash come from the driver's side of the suspect's vehicle and, almost simultaneously, the front windshield of your patrol car cracks. The suspect vehicle continues through the parking lot at a high rate of speed. Instructor Discussion: Don't shoot. Record the license number and description of the vehicle and suspects if it is possible to do so from a covered position. Pursuit could result in serious injury to you or to innocent bystanders who may get in the way. Call for police as soon as possible. According to the expert testimony at final hearing (which was not rebutted or contradicted by Buxton), each of the above-described situations is more egregious than the one Buxton encountered at Dew Cadillac. It is clear that discharge of a firearm in Buxton's situation would be contrary to the guidance provided in the training materials. Each of the facts stated herein are based upon the testimony of live witnesses and written statements from police and investigative reports. Each of the witnesses appeared knowledgeable about his area of testimony, and each was credible. Buxton provided no evidence to contest or rebut any of the evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Agriculture and Consumer Services denying Buxton's licensure application for License No. G9402513 and taking such action as the Department deems appropriate as to each of Buxton's other licenses issued by the Department. DONE AND ENTERED this 10th day of September, 2010, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 10th day of September, 2010. COPIES FURNISHED: Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 Christopher E. Green, Chief Bureau of License and Bond Division of Marketing Department of Agriculture and Consumer Services 407 South Calhoun Street, Mail Stop 38 Tallahassee, Florida 32399-0800 Tracy Sumner, Esquire Department of Agriculture and Consumer Services Post Office Box 3168 Tallahassee, Florida 32315-3168 Kavin P. Buxton Post Office Box 13644 St. Petersburg, Florida 33733
Findings Of Fact In the fall of 1976, James McKnight was fire chief for respondent City of Lauderhill. At that time there was a vacancy in respondent's fire department for a fire lieutenant. Respondent's mayor gave Chief McKnight a list of three names which had been given to the mayor by the civil service board. The mayor told the fire chief to pick a person from the list for the fire lieutenant position and said "that he had been advised that the lieutenants were not eligible or allowable to belong to the union." (R17) The names on the list were those of Messrs. Scheiblich, Farmer and Schwartz, in that order, all of whom worked for respondent as firefighters. On September 30, 1976, Chief McKnight summoned Mr. Scheiblich to his office and discussed promoting him to fire lieutenant. The fire chief told Mr. Scheiblich that he could not be active in the union while service as a fire lieutenant and that he would have to resign from the union at the conclusion of his probationary period as a fire lieutenant. Mr. Scheiblich answered that he was under the impression that, although he would have to leave the bargaining unit, he could remain an active member of the union, but that, if a promotion would require his leaving the union, he would rather forego the promotion and remain a member of the union. Chief McKnight said he would consult the city attorney for his advice on whether Mr. Scheiblich's promotion would require his resignation from the union. Chief McKnight telephoned the city attorney, Mr. Titone, who told him that Mr. Scheiblich's serving in the rank of fire lieutenant would necessitate his resigning from the union. This advice was based in part on PERC's decision in its Case No. 8H-RC-756-1240. In that case, On June 23, 1976, PERC voted two to one to exclude fire lieutenants from the bargaining unit; because, as was subsequently explained, in the written order entered in Case No. 8H-RC-756-1240 on October 4, 1986, "the lieutenants manage the men on a day-to-day basis and will provide the basic input for promulgating and evaluating collective bargaining proposals submitted during negotiations." Although the record does not reflect that respondent had made a separate application for determination of the managerial or confidential status of fire lieutenants, respondent's attorney acted in good faith in advising Chief McKnight that Mr. Scheiblich would not be eligible for promotion to fire lieutenant if he was unwilling to resign from the union; and Chief McKnight acted in good faith in following Mr. Titone's advice. Acting on instructions from the mayor, whom he had apprised of the situation, Chief McKnight next interviewed Mr. Farmer. Among the questions he asked Mr. Farmer was one "about having to get out of the union in order to be able to accept lieutenant's promotion; and he said, it was all right with him" (R19) After this interview, Chief McKnight recommended Mr. Farmer's promotion, just as he had earlier recommended Mr. Scheiblich's promotion. The mayor was pleased with Mr. Farmer's selection. He nevertheless told the fire chief to interview the only other person listed, Mr. Schwartz, which Chief McKnight did even though he "couldn't see the necessity." (R29) The question of fire lieutenants' union membership came up in the Schwartz interview, too, and Chief McKnight indicated he was relying on what he had been told by the mayor and by the city attorney. At the time of these events, Mr. Scheiblich was union president and Mr. Schwartz was secretary-treasurer of the union. Chief McKnight and Mayor Cipolloni were aware of this because a letter from Mr. Schwartz, dated August 16, 1976, had so informed them. After Chief McKnight had interviewed Mr. Scheiblich for the fire lieutenant's job, he saw for the first time and read a petition signed by most of the firemen in respondent's employ, including all three persons listed as possibilities for promotion to fire lieutenant. This petition was critical of the management of the fire department, and "was a pretty strong petition. It was ultimately very successful. It got [Chief McKnight] fired." (R18) After reading the petition, Chief McKnight was unsure how long he would remain fire chief, and he told Mr. Scheiblich "to just sit tight [because Chief McKnight] wasn't going to do anything about promoting somebody to lieutenant until [he] was sure whether [he] was still working [for the fire department himself]." (R18-19) The firemen's petition upset Chief McKnight, but did not influence his recommendations for fire lieutenant. Chief McKnight withdrew his recommendation that Mr. Scheiblich be promoted to fire lieutenant, because Mr. Scheiblich would not agree to resign from the union, which respondent's mayor and city attorney had advised Chief McKnight would be necessary. Chief McKnight recommended that Mr. Farmer be promoted to fire lieutenant because his name was next on the list and because Mr. Farmer had no objection to resigning from the union at the end of a probationary period as fire lieutenant. Chief McKnight did not recommend that Mr. Schwartz be promoted to fire lieutenant because he had already recommended Mr. Farmer for the position, and Mayor Cipolloni had indicated he was going to accept the recommendation that Mr. Farmer be promoted. Mr. Farmer was in fact promoted to fire lieutenant, while Messers. Scheiblich and Schwartz were not. The case file reflects that the union filed unfair labor practice charges against respondent and mailed a copy to respondent's counsel on October 8, 1976. In addition to alleging that the circumstances surrounding the promotion of Mr. Farmer amounted to an unfair labor practice, the union alleged that respondent's mayor, Eugene Cipolloni, had sent two letters and made a public statement that constituted unfair labor practices. On or about October 13, 1976, Eugene Cipolloni, respondent's mayor, gave Chief McKnight a verbal directive to change the fire department's temporary shift exchange policy, effective November 1, 1976. Even though respondent's city council had adopted the policy on August 13, 1976, as its Resolution No. 572, the mayor felt a memorandum under the fire chief's signature should suffice to alter the policy. Before the change, the procedure was that a fireman who wanted another fireman to fill in for him made his request in writing and secured the signature of the proposed substitute. These requests then went up through the chain of command and were routinely granted. On one occasion, a fire lieutenant failed to report as a substitute, after agreeing to do so. Since the change in policy, temporary shift exchanges have only been allowed in cases of illness or in other emergencies. This change in policy was ordered by Mayor Cipolloni in retaliation for the filing of the unfair labor practice charges, although ensuring a full complement on each shift was the ostensible reason for the change in policy. The foregoing findings of fact should be read in conjunction with the statement required by Stuckey's of Eastman, Georgia v. Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976), which appears as an appendix to the order.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent restore and reestablish the temporary shift exchange policy which obtained before the memorandum posted on October 13, 1976, changed the policy, effective November 1, 1976. DONE and ENTERED this 29th day of July, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: William E. Powers, Jr., Esq. General Counsel Public Employees Relations Commission 2003 Apalachee Parkway Suite 300 Tallahassee, Florida 32301 Anthony J. Titone, Esq. City Attorney City of Lauderhill 6299 West Sunrise Boulevard Ft. Lauderdale, Florida 33313 Robert A. Sugarman, Esq. Post Office Drawer 520337 Miami, Florida 33121 APPENDIX The charging party's proposed findings of fact have been adopted, in substance, insofar as relevant, with these exceptions: There was only one opening for fire lieutenant. Chief McKnight had the authority to select the person for promotion only in the sense that he had authority to recommend somebody for promotion. Some of the details of the temporary shift exchange policy set forth in the last paragraph of page four of the charging party's proposed fact findings were recited by Mr. Schwartz in the course of examining witnesses but were not established as part of the evidence adduced at the hearing. Respondent's proposed fact findings Nos. 1, 3(b), 3(d), and 3(f)-(h), have been adopted, in substance. Respondent's proposed fact findings Nos. 2(a)-(e) have been rejected because the evidence as a whole persuaded the hearing officer that the change in temporary shift exchange policy was in retaliation for the filing of unfair labor practice charges. Both the mayor and the fire chief testified that the change was ordered by the mayor himself and that the fire chief merely carried the mayor's order out. The procedure by which the previous policy had been adopted was not followed in amending the policy. The change came at a time of upheaval, after a period of "rumors and commotion," (R19), and at a time when the mayor had just been accused of personally committing unfair labor practices. The mayor's demeanor at the hearing and the evasive manner in which he answered Mr. Schwartz's questions contributed significantly to the hearing officer's conclusion: In testifying, the mayor essentially took the tack that there had been change in the temporary shift exchange policy. The only credible testimony concerning shortcomings under the original policy concerned a single instance in which a fire lieutenant had failed to show up for a shift he had agreed to work, for which dereliction he had been disciplined. Respondent's proposed fact findings No. 3(a) and 3(c) have been rejected because the evidence showed that respondent failed to promote Mr. Scheiblich because he would not agree to resign from the union at the end of a probationary period as fire lieutenant. Respondent's proposed fact finding No. 3(e) has been rejected because Chief McKnight had also been advised by the mayor and the city attorney on the question of the fire lieutenants' managerial status.
The Issue The issue for determination at the final hearing was whether the Petitioner's application for registration as a service warranty association sales representative should have been granted.
Findings Of Fact The Petitioner, William E. Andrews, currently resides in Largo, Florida with his wife and one child. He is employed as an Assistant Manager at T.V. Stereo Town, Inc. located in Largo, Florida. On April 22, 1985, the Petitioner filed with the Department of Insurance an application for qualification and registration as a Service Warranty Association Sales Representative. The application specified that the Petitioner would represent T.V. Stereo Town, Inc. On April 9, 1983, the Petitioner entered a plea of guilty in the Circuit Court of Pinellas County to the offense of Grand Theft. The Court withheld adjudication of guilt and placed the Petitioner on probation for a period of three (3) years. The Petitioner was ordered to make restitution to the victim as a special condition of probation. The Petitioner was represented by counsel. On June 9, 1982, the Petitioner entered a plea of guilty in the County Court of Pinellas County to the offense of Battery. The Petitioner was adjudicated guilty and was sentenced to a 10 day suspended jail term and supervised probation for a period of six months. The Petitioner was not represented by counsel. On May 13, 1983, the Petitioner entered a plea of guilty in the County Court of Pinellas County to the offense of Obtaining Property in Return for a Worthless Check. The Court withheld adjudication and placed the Petitioner on unsupervised probation for a period of 60 days. The Petitioner was ordered to make restitution to the victim as a special condition of probation. The amount of the check was thirty-five dollars. The Petitioner was not represented by counsel. The grand theft charge involved theft of money and/or inventory from a business which the Petitioner and his ex-wife, Virginia Martin were involved with. The business consisted of a free standing display, or kiosk, which was set up in the middle of the Sunshine Mall in Pinellas County. The parent company was D & P Creations and the business involved gift shop merchandise. The Petitioner and Ms. Martin had an arrangement with D & P Creations wherein they would receive 20% of gross sales generated by the display. The business was opened on November 17, 1983 and closed on December 26, 1983. The loss in inventory and/or money to the parent company amounted to approximately $3,000. Throughout the operation of the business, the Petitioner worked as a desk clerk at the Gulf Sands Beach Resort Hotel. The Petitioner's ex-wife, Virginia Martin, worked as a bus driver for the Pinellas County School System. The Petitioner's wife actually ran the business, but Petitioner looked in on it from time to time. The Petitioner, upon considering advice of legal counsel, pled guilty to the offense of Grand Theft from D & P Creations. Virginia Martin, the Petitioner's ex-wife, was the victim of the battery charge to which Petitioner pled guilty. The battery occurred while the Petitioner and Ms. Martin were dating and before they were married. Petitioner and his ex-wife, Virginia Martin, maintained a joint account during the period when Petitioner pled guilty to obtaining property in return for a worthless check. The amount of the check was $35.00. The Petitioner and Virginia Martin were married in July of 1983; they were divorced in December of 1983.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is: RECOMMENDED THAT the Department of Insurance issue a final order denying William E. Andrew's application for registration as a service warranty association sales representative. DONE and ORDERED this 17th day of December, 1985, in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON 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 17th day of December, 1985. APPENDIX Respondent's Proposed Findings of Fact: Finding Ruling Accepted, see R.O. paragraph 3. Partially accepted; see R.O. paragraph 3. Matters not contained therein are rejected as conclusions of law. Partially accepted; see R.O. paragraphs 6, 7 and 8. Matters not included therein are rejected as argument and conclusions of law. Accepted; see R.O. paragraph 4. Accepted; see R.O. paragraph 5. Rejected as argument and conclusions of law. COPIES FURNISHED: Richard D. Tritschler, Esq. Department of Insurance and Treasurer 413-B Larson Building Tallahassee, Florida 32301 Don Dowdell, Esq. General Counsel The Capitol, Plaza Level Tallahassee, Florida 32301 David L. Levy, Esq. P. O. Box 5167 Largo, Florida 34294-5167 Hon. William Gunter State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32301
The Issue The issue presented for decision herein is whether or not the sign involved herein located, on the west side of State Road 9336, 2 miles south of Palm Drive (S.W. 344 Street) in Florida City, has a state sign permit and has been maintained in an unsightly and insecure condition.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant findings of fact. John Hudson is the owner of Everglades Tours. The sign in question is located on the west side of State Road 9336, 2 miles south of Palm Drive (S.W. 344 Street) in Florida City. Mr. Hudson erected the sign in question after checking with an independent advertising sign company and determined that the cost for contracting to have the sign erected was cost prohibitive. The sign in question bears the following legend: Alligator in the Wild - Wowee! Airboat, with an arrow showing the direction of Everglades Tours. (Petitioner's Exhibit 7 and 8) The sign in question is located 30 feet south of the intersection of State Road 9336 and 192 Avenue. The zoned right of way at this location is 125 feet. (Petitioner's Exhibit 7) The location of the sign was inventoried and its location measured by Petitioner's Outdoor Advertising Manager, William C. Kenney, III. There is no sign permit for this sign. The sign is not permanently attached to the ground and is not securely mounted on what appears to be a rusty swing set. The location of the sign is within an area zoned GU. The erection of commercial signs in an area zoned GU is Prohibited. (Testimony of William C. Kenney, III) Respondent was served a copy of the Notice of Violation for the subject sign on June 7, 1983. Respondent does not dispute the factual allegations set forth in the Notice of Violation. Respondent's position is simply that he contacted an independent advertising agency who advised that a temporary sign, as Respondent contends that this is, would have been permitted by an independent advertising agency.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Petitioner, Department of Transportation, issue a Final Order ordering the removal of the sign involved herein. RECOMMENDED this 18th day of May, 1984, in Tallahassee, Florida. JAMES E. BRADWELL, 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 18th day of May, 1984.
Findings Of Fact On April 26, 1978, Petitioner was charged with speeding at the rate of 44 miles per hour in a 30 mile per hour zone and with failure to have an operator's license in his possession. He pled guilty to the speeding charge on May 2, 1978, and paid a $28.50 fine on May 5, 1978. In November, 1978, Petitioner was charged with being drunk in a public place and subsequently pled guilty to that charge on December 5, 1978, and paid a fine. In January, 1979, Petitioner was charged with the offense of illegal sale of alcoholic beverage to a minor and pled guilty to this offense on February 6, 1976, being fined $50.00. In January, 1977, Petitioner was charged with the offense of harassing and also charged with being drunk in a public place and pled guilty to both these charges on February 6, 1979, being fined for each offense. In September, 1979, Petitioner was charged with driving under the influence with a blood alcohol level of .17 percent; and on September 27, 1979, pled guilty to the amended charge of reckless driving, being fined $100.00. On January 27, 1981, Petitioner was charged with being drunk in a public place and for criminal trespass; and on January 27, 1981, he pled guilty to the charge of being drunk in a public place and was sentenced to one day in jail, with credit for time already served. On April 1, 1982, Petitioner was charged with careless driving in West Palm Beach, Florida, and subsequently pled guilty to this offense, being fined $25.00.
Recommendation From the foregoing, it is RECOMMENDED: That Respondent enter a Final Order denying the application for licensure. DONE and ORDERED this 24th day of November, 1982, in Tallahassee, Florida. R. T. CARPENTER, 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 24th day of November, 1982. COPIES FURNISHED: Jimmie L. Newcomb 2910 Melaleuca Drive West Palm Beach, Florida 33406 Ralph Armstead, Esquire Assistant Attorney General Department of Legal Affairs Room 212, 400 West Robinson Orlando, Florida 32801 C. B. Stafford, Executive Director Florida Real Estate Commission P.O. Box 1900 Orlando, Florida 32802 William M. Furlow, Esquire Department of Professional Regulation 400 West Robinson Street P.O. Box 1900 Orlando, Florida 32802 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue is whether Petitioner has forfeited his rights and benefits under the Florida Retirement System (FRS) pursuant to Section 112.3173, Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence presented at the hearing, on the stipulations of the parties, and on the entire record of this proceeding, the following factual findings are made: Respondent is charged with managing, governing, and administering the FRS. The FRS is a public retirement system as defined by Florida law. The Duval County School Board (DCSB) employed Petitioner as a teacher at Ribault High School. As a teacher, Petitioner was subject to the Code of Ethics of the Education Profession in Florida found in Florida Administrative Code Rule 6B-1.001. Petitioner also was subject to the Principles of Professional Conduct for the Education Profession in Florida found in Florida Administrative Code Rule 6B-1.006. Petitioner’s employment with the DCSB began on or about August 19, 1986. By reason of this employment, Petitioner was enrolled in the FRS as a Regular Class member. On or about December 7, 2001, Petitioner was arrested in connection with Officer David Coarsey's sworn information, which provided as follows in relevant part: On 12-07-01, Lt. Remolde called the Jacksonville Sheriff’s Office Sex Crimes Office and stated that a student at Ribault High School had reported to the principal, Mr. Ken Brockington, that she had penile/vaginal intercourse with this suspect. On 12-07-01, I arrived at Ribault High School and interviewed the victim. She stated that approximately three weeks ago, she went to the suspect’s classroom at his request after school hours. The suspect asked the victim to help him with some of his work. While she was there, the suspect put his arm around the victim and began rubbing her waist. The suspect then began talking to the victim about sex. The suspect then put his hand up the victim’s skirt and inserted his finger in her vagina. The suspect also pulled the victim’s shirt and bra down and “sucked” on her breast. The victim said that she did not attempt to stop the suspect. The victim then told the suspect, “I don't think we should do this”, and she walked out of the room. Approximately one week later, the suspect asked the victim to come back to his classroom after school. When the victim arrived at the room, the suspect began “rubbing” on the victim’s body. The victim stated that the suspect retrieved a condom from a “grey file cabinet” and then sat down in a chair. The suspect pulled his penis out and the victim put the condom on his penis. The victim pulled her shorts down and sat on the suspect’s lap, at which time the suspect put his penis in the victim’s vagina. After having penile/vaginal intercourse with the suspect for a short period of time, the victim stood up and the suspect masturbated until he ejaculated. On 12-07-01, the victim met the suspect in the “Book Room”. The suspect pulled the victim’s shirt and bra down and “sucked” on her breast. The suspect then pulled his penis out of his pants and asked the victim to masturbate him. The victim masturbated the suspect until he ejaculated. The victim wiped the suspect’s semen off of her hands with a paper towel and threw it in the trash can in the “Book Room”. The victim then left the room and reported the incident to a substitute teacher, Mr. Carlos Bowers (12-25- 59, 3701 Winton Dr., B/M), who in turn, reported it to the principal, Mr. Brockington. The victim stated to me that all of the sexual encounters with the suspect were consensual. I retrieved the trash bag that contained the above mentioned paper towel from the “Book Room” and put it in the JSO Property Room. The suspect was transported to the JSO Sex Crimes Office by Officer D.W. Holsey #6044 and I transported the victim to the Sex Crimes Office. I contacted the victim’s mother and asked her to come to the JSO Sex Crimes Office. When she arrived, she transported the victim to the Child Crisis Center for a medical exam (swabs of the victim’s breasts). I advised the suspect of his constitutional rights and asked him to sign the rights form. The suspect signed the form and agreed to speak to me and Det. Romano #7527 about the allegations. The suspect admitted to having penile/vaginal intercourse with victim one time, “sucking” on the victim’s breast on two different occasions, and rubbing on her vagina once. The suspect stated that all of the sexual encounters happened at the school. The suspect stated, “It was a huge mistake, my life is fucked”. The suspect gave a written statement in regards to having penile/vaginal intercourse with the victim. The suspect was arrested and transported to the PTDF. The information reported in the sworn information truly and accurately recounts the events that occurred and to which Petitioner admitted. The arrest and booking report is filed in the Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida, in the case styled and numbered State of Florida v. Arthur John Marsland, Jr., Case No. 2002-599-CFA. Petitioner resigned his employment with the DCSB on or about December 27, 2001, effective on or about January 15, 2002. By reason of his employment with DCSB, Petitioner earned approximately 15.80 years of service credit in the FRS. On or about February 14, 2002, Petitioner was charged, by amended information, in the Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida, in case number 2002-599-CFA, with (a) one count of sexual battery, a second-degree felony, in violation of Section 794.011(8)(b), Florida Statutes; and (b) one count of lewd or lascivious molestation, a second-degree felony, in violation of Section 800.04(5)(c)2., Florida Statutes. The amended information provided in relevant part: HARRY.L. SHORSTEIN, State Attorney for the Fourth Judicial Circuit of the State of Florida, in and for Duval County, charges that ARTHUR JOHN MARSLAND, JR, on or between the 1st day of November, 2001 and the 7th day of December, 2001, in the County of Duval and the State of Florida, did, while in a position of familial or custodial authority, engage in an act which constitutes Sexual Battery with * * * a person 12 years of age or older, but less than 18 years of age, by placing his penis in or upon the vagina of * * * contrary to the provisions of Section 794.011(8)(b), Florida Statutes. SECOND COUNT And for the second count of this information, your informant further charges that ARTHUR JOHN MARSLAND, JR., a person 18 years of age or older, on or between the 1st day of November, 2001 and the 7th day. Of December, 2001, in the County of Duval and the State of Florida, did in a lewd or lascivious manner force or entice * * * a child l2 years of age or older, but less than 16 years of age, to touch the genital area or clothing covering the genital area of Defendant, contrary to the provisions of Section 800.04(5)(c)2, Florida Statutes. The amended information is filed in the Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida, in the case styled and numbered State of Florida v. Arthur John Marsland, Jr., Case No. 2002-599-CFA. The victim of the alleged crimes was a student at the school where Petitioner taught. The alleged crimes took place in Petitioner's classroom or in the book room at the school where Petitioner taught. On or about April 8, 2002, Petitioner entered a plea of guilty to the second count of the amended information. Petitioner pled guilty because he was in fact guilty. Petitioner made the plea freely and voluntarily. On or about April 29, 2002, judgment was entered on Petitioner’s guilty plea. He was adjudicated guilty. The judgment and corrected order of sex offender probation are filed in the Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida, in the case styled and numbered State of Florida v. Arthur John Marsland, Jr., Case No. 2002-599-CFA. During the hearing, Petitioner admitted that, but for his job position as a teacher, he “probably [would] not” have had an opportunity to have sexual relations with a student in the school’s classroom or book room. Petitioner also admitted that having sexual relations with one of his students was “obviously not” one of his duties and responsibilities as a teacher. Petitioner wrote three letters of apology in connection with the matter. He apologized in writing to the victim, to his spouse, and the DCSB. On or about September 27, 2002, Charlie Crist, as Commissioner of Education, filed an Administrative Complaint, before the Education Practices Commission of the State of Florida, in case number 02-0681-RT. The complaint sought disciplinary action against Petitioner’s educator’s certificate. The Administrative Complaint charged Petitioner in part with the following statutory and rule violations: STATUTORY VIOLATIONS COUNT 1: The allegations of misconduct set forth herein are in violation of Section 1012.795(1)(c), Florida Statutes, in that Respondent has been guilty of gross immorality or an act involving moral turpitude. COUNT 2: The allegations of misconduct set forth herein are in violation of Section 231.2615(1)(e), Florida Statutes, in that Respondent has been convicted of a misdemeanor, felony, or other criminal charge, other than a minor traffic violation. COUNT 3: The allegations of misconduct set forth herein are in violation of Section 231.2615(1)(f), Florida Statutes, in that Respondent, upon investigation, has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board. COUNT 4: The allegations of misconduct set forth herein are in violation of Section 231.2615(1)(i), Florida Statutes, in that Respondent has violated the Principles of Professional Conduct for the Education Profession in Florida prescribed by State Board of Education. COUNT 5: The allegations of misconduct set forth herein are in violation of Section 231.2615(1)(j), Florida Statutes, in that Respondent has otherwise violated the provisions of law, the penalty for which is the revocation of the teaching certificate. COUNT 6: Section 231.2615(2), Florida Statutes, provides that the plea of guilty in any court or a decision of guilty by any court is prima facie proof of grounds for the revocation of the certificate. RULE VIOLATIONS COUNT 7: The allegations of misconduct set forth herein are in violation of Rule 6B- 1.001(2), Florida Administrative Code, in that Respondent has failed to have his primary professional concern always be for the student and for the development of the student’s potential and has failed to seek to exercise the best judgment and integrity. COUNT 8: The allegations of misconduct set forth herein are in violation of Rule 6B- 1.001(3), Florida Administrative Code, in the Respondent has failed to be aware of the importance of maintaining the respect and confidence of his colleagues, of students, of parents, and of other members of the community and that Respondent has failed to achieve and sustain the highest degree of ethical conduct. COUNT 9: The allegations of misconduct set forth herein are in violation of Rule 6B- 1.006(3)(a), Florida Administrative Code, in that Respondent has failed to make reasonable effort to protect the student from conditions harmful to learning and/or to the student’s mental health and/or physical safety. COUNT 10: The allegations of misconduct set forth herein are in violation of Rule 6B- 1.006(3)(e), Florida Administrative Code, in that Respondent has intentionally exposed a student to unnecessary embarrassment or disparagement. COUNT 11: The allegations of misconduct set forth herein are in violation of Rule 6B- 1.006(3)(h), Florida Administrative Code, in that Respondent has exploited a relationship with a student for personal gain or advantage. The Administrative Complaint is filed with the Education Practices Commission of the State of Florida in case number 02-0681-RT. In consideration of the Administrative Complaint, the Education Practices Commission entered a Final Order permanently revoking Petitioner’s educator’s certificate. The Final Order is filed with the Education Practices Commission of the State of Florida in case number 02-0681-RT. On or about October 20, 2003, Petitioner applied for early service retirement. Petitioner’s effective date of retirement was established as November 1, 2003. By certified letter dated May 2, 2008, Respondent notified Petitioner of the intended action to forfeit his FRS rights and benefits as a result of his guilty plea. The Division suspended payment of Petitioner’s monthly retirement benefits in May 2008. Petitioner had received approximately $41,309.56 in FRS retirement benefits from November 2003 through April 2008.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order finding that Petitioner was convicted of a specified offense pursuant to Section 112.3173, Florida Statutes, and directing the forfeiture of his FRS rights and benefits. DONE AND ENTERED this 15th day of December, 2008, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 15th day of December, 2008. COPIES FURNISHED: Geoffrey M. Christian, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Arthur J. Marsland, Jr. 1856 B Hereford Road Middleburg, Florida 32068-3104 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee,, Florida 32315-9000 John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: On June 21, 1991, petitioner, Department of Transportation (DOT), issued a notice to show cause alleging that a sign owned by respondent, Florida Roadmaster Inn Services Corporation (respondent or corporation), was in violation of the law because respondent had not obtained a permit. The sign is located north of the southbound exit ramp at the intersection of State Road 143 and Interstate Highway 75 (I-75) in Jennings, Florida, which is the first exit on I-75 after entering the State. The parties have stipulated that the structure meets the definition of a sign, I-75 is a part of the federal interstate system, the sign is within 660 feet of I-75, and on the date the notice to show cause was issued respondent did not have a permit from petitioner to erect the sign. The facts giving rise to this dispute are somewhat lengthy and are set forth in the following findings. The sign poles on which the sign is attached were erected in the northwestern quadrant of the intersection on an undisclosed date in 1988 by Victor J. Patel, who is the nephew of Dr. Arvind B. Patel, the secretary of and a 50% shareholder in the corporation. 1/ However, Dr. Patel acknowledged at hearing that he furnished his nephew with the capital necessary to erect the sign. At that time, a Best Western motel owned by Shree Realty, Inc., in which Dr. Patel's wife and nephew are principals, was located across the street on the south side of State Road 143 in the southwestern quadrant of the intersection and was managed by Victor. Although the motel then and now has its own sign, that sign is not visible to motorists traveling on I-75. The copy (printed message) on the sign which is in dispute here originally carried the logo of Best Western and a smaller message reading "North Florida Information Center". The smaller message was intended to advertise a small building at the foot of the sign which had also been built by Victor (with his uncle's capital) in 1988 and which was used as a tourist information center in conjunction with the motel. On an undisclosed date in 1990, Shree Realty, Inc. leased the motel to Jennings Motel Corporation (JMC), in which Bruce Haydon, J. Cary Parrish and George D. Haydon were principals. At the same time, the motel's name was changed to "Roadmaster Inn". A few months later, or around September 1990, the printed message on respondent's sign was changed to read "Roadmaster Inn" while underneath that message on a smaller sign were the words "North Fl. Tourist Inn- Fo". The issuance of the notice to show cause came about when a DOT outdoor advertising inspector, Glenel Bowden, had occasion to observe the change in the copy on the sign. After Bowden made a preliminary investigation, he concluded that the sign required a permit because it was an "off-premises sign", and because no permit tag was affixed to the sign, he recommended that a notice to show cause be issued. His recommendation was accepted, and the district administrator for outdoor advertising signed a notice to show cause on June 21, 1991. On the theory that the printed message merely reflected the name of the entity which was engaged in providing services on the premises, and thus the corporation was entitled to an exemption from permitting requirements under Subsection 479.16(1), Florida Statutes, respondent requested a hearing to contest the agency's preliminary determination. In order to qualify for an exemption of the nature sought by respondent, the owner of a sign must generally show that a business is being conducted on the premises (land) where the sign is located, the sign carries the name and is an integral part of the establishment, and the business is the only activity being conducted on the premises. In this regard, it is agreed that no other businesses are located on the premises except the questioned activities of respondent. In addition, the building in which the activity is being conducted must meet the minimum requirements of the Southern Building Code. As to this latter requirement, DOT stated at hearing that it does not contest the structural integrity of the building. However, it is DOT's position that there is no legitimate business activity being conducted on the premises by the corporation, and that the sign is actually being used to promote the motel business across the street. Respondent is a Florida corporation formed on July 3, 1990. The articles of incorporation state that the corporation's nature of business is to "engage in consulting and marketing services to the lodging industry and any other related consulting and marketing to the food, fuel and lodging industries." It also lists the location of the sign (I-75 and SR 143, Route 1, Box 222A, Jennings, Florida) as its principal place of business. The corporation has two shareholders, Dr. Patel, who resides in Hoffman Estates, Illinois (the greater Chicago area) and serves as secretary, and James T. Bounds, a self-employed business consultant who works out of his home in Ocala, Florida, and serves as president of the corporation. Both men own 50% of the shares of stock and are the only two directors. The corporation has never had any employees on its payroll. Although the corporation received a federal taxpayer identification number in 1990, a return has never been filed since the corporation has never generated any income. Likewise, it has no corporate checking or bank account nor a telephone number in its corporate name. In addition, it has no occupational license from the City of Jennings or Hamilton County. The corporate assets consist of a leasehold interest in an easement to and the property on which the sign sits, marketing aids, presentation material and brochures, all of unknown value. According to Bounds, who is identified as the corporation's registered agent at his Ocala address, his contribution to the corporation (in return for one-half of the stock) is personal services in the form of travel expenses incurred to perform "marketing services". He estimated he has contributed between $30,000 and $50,000 in the form of marketing service expenses since the inception of the corporation. On the other hand, Dr. Patel claimed a personal contribution in the corporation of approximately $30,000 to $40,000 in return for his share of the stock. This amount was derived by taking the bills Dr. Patel had paid for publications, maintenance, utilities, interest on the sign and building and the like. Because they are "good friends", Bounds and Dr. Patel have no written agreement defining each other's contributions to the corporation nor stating who is responsible for providing a particular service or paying bills. The site of the sign was chosen because of its high visibility and close proximity to I-75 on which numerous truckers and tourists enter the state. According to Bounds, who takes credit for originating the idea for the business, the purpose of the corporation is to market a service to various motels, including Roadmaster Inns, and secure agreements or contracts from truckers to use those motel facilities at a reduced rate. If successful in its endeavors, the corporation would guarantee a 20% - 30% weekly occupancy rate for the motels that use its services. As an aid in communicating with the truckers and other motorists, the corporation represents that if it prevails in this action, it intends to secure a radio license from the Federal Communications Commission and operate a special low-frequency broadcasting station at the small building to give additional information on the corporation's services to passing motorists within a five mile radius who tune in that frequency on their radios. An employee would be stationed in the building to hand out brochures and to communicate with truckers via the radio. Bounds added that the corporation is also seeking to secure a trademark on the name "Roadmaster Inns" with the U. S. Patent Office, and once obtained, the corporation will seek to market Roadmaster Inn franchises. As of the date of hearing, Bounds represented that the corporation had registered the name "Roadmaster Inn" in the states of Florida and Georgia. Bounds is responsible for the day to day management of the corporation. He acknowledged that his activities to date on behalf of the corporation consist of making "direct calls" (presumably by telephone from his home or automobile) on trucking companies at their place of business in an attempt to secure contracts for the drivers to use various motels at reduced rates. Because the corporation has no telephone, Bounds advises potential clients to contact him at his Ocala home. Except for speaking with a developer in Tampa a week prior to hearing about building a Roadmaster Inn at a Tampa development project, there were no other specifics given regarding Bounds' corporate activities. Indeed, there is no evidence that, since the corporation was formed almost two years ago, any contracts have been executed by trucking companies or other entities, that any motels have agreed to use the services of the corporation, or that any Roadmaster Inn franchises have been sold. This is confirmed by the fact that the corporation has never generated any revenue. Various brochures have been printed and distributed ostensibly on behalf of the corporation. One brochure merely advertises a Roadmaster Inn owned by Dr. Patel and located in Valdosta, Georgia, while another advertises the Roadmaster Inn in Jennings, Florida. Both carry the same "800" telephone number, which is answered by the reservationist at a Roadway Inn whose location is not of record. Neither brochure makes reference to the corporation or its services. A third brochure advertises the brand name "Roadmaster Inn" and gives a post office box in Des Plaines, Illinois as its address. According to Dr. Patel, this brochure has generated "several inquiries a week" at his office in Des Plaines. Again, however, the brochure does not carry the corporation's name and simply provides advertising for the generic name "Roadmaster Inn". It is noteworthy that no advertisement offered into evidence at hearing reflects the corporation address as the same address where the sign is erected. As noted earlier, the building at the base of the sign was once used by the Best Western motel as a "tourist information center" at which pamphelets describing various tourist attractions were handed out to motorists just entering the State. According to Bounds, the building was originally designed to accommodate one person to hand out information brochures to the public and communicate with truck drivers by CB radio from a low frequency radio tower. However, a CB radio has never been installed. The building, which was described by Bounds as being "very small" and by Bowden as being around 8' x 12' in size with a counter, display case for pamphelets and two chairs, has electricity, running water, air-conditioning, restroom facilities, and an access ramp for the handicapped. Although there has been no telephone at the building for some time, Victor Patel, the former manager of the motel, claimed that prior to July 1991 there was a telephone in the building "off and on". The easiest route from State Road 143 to the building is on a road which runs through a trailer park located off of State Road 143. However, the corporation was denied use of that road by the park's owner and consequently anyone desiring to visit the premises must use an unlighted, unmarked and unpaved "track" which runs along a fence on State Road 143. The track, which crosses a large drainage ditch, is actually an easement assigned to the corporation by Dr. Patel and is discussed in a subsequent finding. There are no signs directing members of the public on how to travel to the building. In this regard, Bounds agreed that access to the land on which the sign and building are located is not "particularly easy" for members of the public. The corporation has never had an employee since its formation. At one time, an elderly individual, Roy Cammeron, spent several hours per day for almost a year manning the booth. Despite Dr. Patel's suggestion to the contrary, 2/ it may be reasonably inferred from the evidence that Cammeron was an employee of the motel since the building key was kept at the motel and Cammeron was required to pick up and return the key after each visit to the building, he was supervised by the motel's manager, Victor J. Patel, who monitored Cammeron's activities, and Cammeron maintained constant communications with Victor by walkie-talkie. Also, Victor stated that one of Cammeron's duties was to hand out motel brochures. Besides Cammeron, Bounds contended that on undisclosed occasions he visited the building "usually" twice a week for unspecified purposes. However, he conceded that business on behalf of the corporation is conducted out of his home. At hearing, Dr. Patel denied that he has any ownership interest in the Roadmaster Inn which is located across the street from the corporation's sign. However, the corporation which owns the motel and leases the same to JMC uses the same address in Hoffman Estates, Illinois as does Dr. Patel, and Dr. Patel testified that he participated on behalf of Shree Realty, Inc. in its negotiations with JMC for the lease of the property in 1990 and for a promissory note later executed by two JMC principals in favor of Shree Realty on November 27, 1991. These considerations and further testimony given by Dr. Patel (see, for example, page 119 of transcript) support a finding that Dr. Patel either owns or exercises control over the motel. The land on which the sign and building are located is actually owned by Willie and Martha Butler who reside in Jennings. On July 22, 1988, they leased for a period of twenty years the land and an easement for access to the property to Victor L. Patel. 3/ The lease authorized Victor to construct a sign. The following day, Victor leased for a period of 48 months his interest in the land and easement to his uncle, who then furnished Victor with $80,000 to construct the sign and small building a short time later. By an undated and unwitnessed typed addendum to the lease, but presumably after July 3, 1990, Dr. Patel purportedly assigned his rights in the lease to the corporation. According to Bruce Haydon, who represented he is president of JMC, that entity has no proprietary interest in the sign. However, under the terms of its lease with Shree Realty, Inc., JMC is obligated to pay the electric bill for the illuminated sign and the monthly lease payments owed the Butlers under the real property lease originally executed by the Butlers and Victor Patel in July 1988. Although the lease was not offered into evidence, these terms were confirmed by Dr. Patel. The corporation does not directly receive the JMC payments. However, even though there is no formal agreement between JMC and the corporation, by making these payments, JMC effectively relieves the corporation (as the leaseholder) of the responsibility of paying the sign's electric bill and the cost of the easement to its premises. The lease provides further that if the sign is removed as a result of a proceeding such as this, there will be no reduction in the amount of lease payments owed by JWC. At hearing, Haydon also contended that Dr. Patel orally agreed that if the motel acquires an Econo Lodge franchise, as it now plans to do, and changes its name from Roadmaster Inn to Econo Lodge, Dr. Patel will change the copy on the sign to "Econo Lodge". Dr. Patel denied this assertion. It should be noted that Dr. Patel (presumably on behalf of Shree Realty, Inc.) is now embroiled with Haydon and JMC in a "major" lawsuit over a substantial amount of money. Before erecting the sign, Dr. Patel spoke with Bowden, the DOT sign inspector. Bowden advised him that there must be a business conducted on the premises where the sign was erected in order for the sign to be legal. However, Bowden would not commit this advice to writing, and he told Dr. Patel that DOT would have to "evaluate" the matter once the sign was erected in order to see if it was legal. Thus, there were no representations by DOT to respondent regarding the type of activities necessary for respondent to obtain an exemption, there was no later change in position by DOT, and therefore respondent could not have relied on such representations to its detriment. Based on the foregoing matters, it is found that there were no meaningful business activities conducted by the corporation on the premises where the sign is located either on or before June 19, 1991, when the notice to show cause was issued, or from that time forward to the date of final hearing. To the extent any activities have been conducted on behalf of the corporation, these have been conducted at such places as Ocala, Florida, and Des Plaines, Illinois. Therefore, it is found that the sign and its message are not an integral part of a business being conducted on the premises.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that a final order be entered denying respondent's request for an exemption and ordering the removal of respondent's sign located at State Road 143 and I-75 in Jennings, Florida. DONE AND ORDERED this 24th day of March, 1992, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 1992.
