Findings Of Fact Based upon the oral and documentary evidence presented at the final hearing and the entire record in this proceeding, the following findings of fact are made: Petitioner Conklin Shows, Inc., is a Florida corporation with its principal place of business in West Palm Beach, Florida. Conklin is engaged in the business of providing midway attractions for large fairs. The company services between five and eight fairs per year and provides rides as well as food and game concessions. In most instances, Conklin provides a turn-key operation whereby it provides all rides and concessions, sells tickets, collects all fees and charges, and pays the particular fair authority the amount set forth in the underlying agreement between the parties. Conklin owns and operates some of the rides that it provides and also owns a few food concessions. It also contracts with independent ride owners as well as food and game concession owners to provide the services necessary for a particular fair. Southeast Florida and Dade County Youth Fair Association, Inc. (the "Association") is a corporation which conducts an annual youth fair, in Dade County, Florida (the "Fair") in accordance with Chapter 616, Florida Statutes. Conklin has provided midway attractions, including rides, games and food concessions, for the Fair since the late 1970s. Initially, Conklin provided a complete turn-key operation for the Fair. In 1980 or 1981, the Fair advised Conklin that it wanted to modify the arrangement so that the Fair collected and dispersed all monies and retained the right to book attractions independently. Consequently, the parties modified their agreement so that the Association sold all the tickets used by the Fair-goers for admission and for rides. In other words, cash was not accepted from the public for admission and/or rides. The evidence indicates that cash was accepted at game and food booths. The Association employed all ticket sellers, sold admissions and tickets and paid the appropriate taxes on the sales. As discussed below, at the end of each day, the Association distributed the proceeds of the ticket sales and settled up with the food and game concessionaires. Conklin was paid an agreed upon percentage of the proceeds of the ticket sales after taxes. As part of the settlement, Conklin reimbursed the Association for certain expenses. In approximately March of 1990, DOR began an audit of Conklin at its offices in West Palm Beach. The audit was conducted primarily by Ms. Van T. Ho, a tax auditor with DOR. The audit covered the period between June 1, 1985 through February 28, 1990. Ms. Ho concluded that certain contractual arrangements between Conklin and its subcontractors who provided rides, games and food concessions for the Fair should be construed as the sublease or sublicense of the rental of real property. Since Conklin had not remitted sales tax to the State of Florida for these subleases or sublicenses, she concluded that sales tax should be assessed against Conklin. In addition, Ms. Ho reviewed Conklin's records regarding purchases of parts and materials and concluded that appropriate sales tax had not been paid on certain purchases. The audit results with the additional assessed taxes, penalties and interest were incorporated in a Notice of Intent to Make Sales and Use Tax Audit Changes dated October 24, 1990 (the "Notice of Intent.") In the Notice of Intent, DOR advised Conklin that it had been found liable on various transactions subject to tax under Chapter 212, Florida Statutes, during the period June 1, 1985 through February 28, 1990. The Notice of Intent sought a total of $655,982.04 for taxes, penalties and interest through October 24, 1990 with additional interest at the rate of $142.69 per day. A Notice of Proposed Assessment was issued by DOR on April 25, 1991. Conklin protested the proposed assessment in a letter dated June 19, 1991. Ultimately, DOR issued a Notice of Decision dated May 27, 1992 upholding the audit findings. Conklin timely initiated this administrative challenge to DOR's Notice of Decision. At the commencement of the hearing in this matter, DOR announced that it was no longer contending that Conklin was subletting real property. Instead, DOR asserted that Conklin's contractual arrangements for ride subcontracts and for food and game concessions should be construed as licenses to use real property. Since the sales tax on a license to use real property did not become effective until July 1, 1986, DOR conceded that the assessment against Conklin should be reduced to delete any sales taxes related to the fairs conducted in February of 1985 and 1986. As set forth in the Preliminary Statement, DOR set forth its recalculated assessment in a late-filed exhibit which was submitted on March 26, 1993. The parties stipulated that the recalculation submitted on March 26, 1993, should be accepted as an amendment to Petitioner's Exhibit 1. According to that amendment, Petitioner is seeking a total of $468,520.80 for taxes, penalties and interest allegedly due through January 17, 1991 with a per diem interest rate of $105.58. For purposes of this proceeding, the proposed assessment can be broken down into four categories: (1) sales tax allegedly due from Petitioner on rental or license income from subcontractors who provided rides at the Fair; (2) sales tax allegedly due as the result of the sublease or sublicense of real property by Conklin to food concessionaires; (3) sales tax allegedly due as the result of the sublease or sublicense of real property by Conklin to game concessionaires; and (4) purchase tax allegedly due on parts and materials bought by Conklin which it claims were utilized in manufacturing or repairing rides for export. Rides During the years 1987 through 1990, Conklin contracted to provide rides to the Association for the Fair. Conklin was required to provide a specific number of rides in certain categories together with all personnel required to operate the rides. Conklin was also responsible for all expenses attributable to the operation and maintenance of the equipment. During all of the years in question, the Association sold the tickets for all rides, collected the proceeds and paid the applicable sales tax and remitted the agreed percentage of the after-tax receipts to Conklin. Conklin was paid a sliding scale percentage of the net revenues from the rides. Conklin typically contracted to provide more rides than it owned. In order to satisfy its contractual obligation, Conklin entered into agreements with independent ride owners. These subcontractors would provide all transportation, assembly and disassembly necessary for the ride, together with all personnel required for operation. Conklin did not take possession or exercise any direction or control over the physical operations of the ride. The subcontractor was responsible for all expenses related to the operation and maintenance of the ride and was required to reimburse Conklin for a proportionate part of the common expenses. Conklin agreed to pay the ride owner a percentage of the receipts attributable to that ride after sales tax. Each ride owner collected tickets from the Fair attendees. The subcontractors would turn their tickets over to Conklin. Conklin turned in the tickets for all rides provided by it and its subcontractors to the Association. After Conklin was paid its percentage by the Association, Conklin would pay the subcontractors a percentage attributable to their particular ride in accordance with the agreement between Conklin and that subcontractor. Conklin retained a portion of the amount received from the Association for all of the subcontracted rides. The subcontractors did not make any payments to Conklin nor did Conklin make any payments to the Association. The Association set the times of operation and other general policies for the Fair, but exercised no direction or control over the physical operation of any of the rides. In each case, the owner of the equipment furnished the operator and all operating supplies and made the particular ride available at the time dictated by the Association. DOR contends that the difference between the amount received by Conklin from the Association for rides provided by subcontractors and the amount paid by Conklin to the subcontractors was taxable because it arose from a sublicense of real property. 2/ Conklin, on the other hand, argues that its contractual arrangement with the subcontractors should be viewed as a nontaxable service transaction since it paid the subcontractors who in turn provided the rides together with operating personnel and expenses. As discussed in the Conclusions of Law below, Conklin's interpretation is consistent with the language of the subcontracts and more accurately reflects the relationship created by the parties. The mere fact that a ride was operated on real estate owned by another party should not be conclusive of whether the arrangement should be viewed as a license of real property as opposed to a rental of equipment. Food Concessions Conklin executed separate agreements with the Association to provide certain food and game concessions for the Fair during the years 1987 through 1990. The contracts between the Association and Conklin for food and game concessions were entitled "License Agreement for Exhibitors and Concessionaires." Those agreements specifically provided: It is understood and agreed the below described space is not leased to the Licensee [Conklin], rather he is a Licensee and not a lessee thereof. Under the food concession agreements, Conklin was obligated to provide specific food concessions, including all labor and operating expenses. The contract between the Association and Conklin designated specific areas at the Fair where the concessions were to be set up. The Association was entitled to a percentage of the gross receipts of the sales by the concessions. Conklin did not own any of the equipment utilized in connection with the food concessions. It entered into agreements with concessionaires to provide the personnel, equipment, goods and materials utilized. The concessionaire was responsible for all of the expenses involved with the concession. The concessionaire collected all of the money and settled daily with the Association by paying the Association the percentage due under its agreement with Conklin (which was normally twenty-five percent) together with the tax on that amount and the sales tax on all sales. The Association remitted the taxes on the rental (license) amount and the sales. Conklin was not privy to the settlement between the food concessionaires and the Fair. It was given a copy of the settlement sheet. The concessionaire paid Conklin a percentage of the gross based upon its agreement with Conklin. That percentage was normally between seven and ten percent. In the Notice of Assessment, DOR lumped food and game concessions together and assessed tax based upon its determination of the amount received by Conklin. The evidence presented at the hearing in this case established that the Notice of Assessment mistakenly included gross revenues rather than the net received by Conklin from game concessions. Petitioner's Exhibit 13 sets forth the correct amounts received by Conklin from food and game concessions during the years in question. During the years 1987, 1989 and 1990, the amounts received by Conklin from food concessions at the Fair were $11,919.73, $11,521.21 and $13,034.49 respectively. The Notice of Assessment indicates that there was no taxable income from food and game concessions in 1988. No explanation was given for this anomaly. Although there was no assessment for food and game concessions for 1988 in DOR's Notice of Assessment, Petitioner's Exhibit 13 indicates that Conklin received $16,975.22 from food and game concessions that year of which $11,938.44 was apparently attributable to food concessions. DOR contends the amounts received by Conklin from the food concessionaires were taxable because the arrangement constituted a sublicense of real property. Conklin contends that the money received from food concessions is exempt from taxation for the years since 1988 pursuant to Section 212.031(1)(a)(10), Florida Statutes. In its Proposed Recommended Order, Conklin conceded that this exemption did not come into effect until 1988. Consequently, Conklin admitted that it owed tax on the proceeds it received from the food concessions in 1987 ($11,919.73.) The evidence presented in this case was insufficient to conclude that Conklin was entitled to the exemption for the years subsequent to 1987. The exemption relied upon by Conklin is limited to a publicly owned arena, sports stadium, convention hall, exhibition hall, auditorium or recreational facility. While the parties agree that the Fairs in question were conducted pursuant to Chapter 616, Florida Statutes, no evidence was presented to establish that the Fair was conducted in one of the specified exempt facilities. Game Concessions With respect to the game concessions, Conklin agreed to provide a certain number of game booths and to pay a set fee to the Association for each game along with a five percent rental realty tax on that fixed amount. 3/ Conklin did not own or operate any game concessions itself. It contracted with the owner/operators of the various games. The owner/operator would provide all of the equipment and personnel. The game owner was responsible for collecting the money, paying all expenses of operation, paying the applicable sales tax to the Association and also paying the Association the contractual percentage and rental taxes set forth in the agreement between Conklin and the Association. The net profits from the game were to be split equally between Conklin and the owner of the game. In the event of a loss, Conklin was responsible for contributing one-half of the net amount. As discussed in the Conclusions of Law below, the amounts received by Conklin from the game concessions should be treated as the proceeds on joint venture partnerships between Conklin and the various concessionaires and, therefore, should not be taxable. If this conclusion is rejected and the amounts received by Conklin are viewed as taxable license or rental payments, the tax should be assessed on the share Conklin actually received. As set forth in Findings of Fact 17 above, the evidence established that DOR's calculation in the Notice of Assessment of the tax allegedly owed by Conklin for food and game concessions was incorrectly based upon the gross receipts for the game concessions rather than the net profits that Conklin actually received. During the years 1987, 1989 and 1990, Conklin's share of the profits from the games operated under its name amounted to $5,792.65, $1,554.64 and $1,179 respectively. The Notice of Assessment indicated there were no taxable receipts from food and game concessions in 1988. Petitioner's Exhibit 13 indicates that Conklin received $16,975.22 from food and game concessions that year, of which $5,036.78 was apparently attributable to game concessions. Exports Conklin is also engaged in the business of repairing and manufacturing games and rides. In the course of the manufacture or repair of these games and rides, Conklin purchases parts and supplies. Conklin's accountant testified that it paid the appropriate tax on all of its purchases except those items which were segregated out as being integral parts of products that were exported to Canada. DOR's auditor claims that she requested and was not provided with any documentation to support the exemption claim. While Petitioner's accountant claims that the company has documentation that the items in question were used in the manufacture and repair of items that were exported and this documentation was made available to DOR's auditor, no such documents were presented at the hearing in this matter to confirm that the final products were in fact exported. Consequently, the evidence was insufficient to establish that Conklin had complied with the applicable rule requirements and was entitled to the exemption it claimed. Penalties In 1984 and 1985, Conklin provided rides and concessions to the Martin County Fair under its usual turn-key system where it sold all the tickets. During those years, DOR sent an enforcement officer to the fair to ensure that all taxes were paid. The DOR enforcement officer reviewed all of Conklin's books and collected the sales tax from all the concessionaires. Although Conklin inquired as to whether it was paying all appropriate taxes, the DOR enforcement officer never indicated to Conklin that it was obligated to pay rental realty taxes on its subcontractual arrangements with ride owners and/or food and game concessionaires. Thus, there was some justification for Conklin's belief that it was not obligated to pay taxes on the ride subcontracts and the food and game concessions. Conklin's understanding of the law should have been reexamined with the adoption of the statutory clarification for the imposition of sales tax on a license to use real property. See section 66 of Chapter 86- 152 of the Laws of Florida effective July 1986. However, none of the statutory or rule provisions relied upon by DOR clearly address contractual arrangements such as those Conklin had with its ride subcontractors where the purported sublicensee made no payments to the alleged sublicensor. In view of these factors, it would be inappropriate to impose penalties on Conklin for "taxable income" it allegedly received from the ride subcontracts. Similarly, even if Conklin's contention that its arrangements with game concessionaires should be viewed as a joint venture is rejected, penalties should not be imposed since the statutory and rule provisions do not clearly address this situation. With respect to the food concessions, Conklin has conceded that it owes tax on the amount received from food concessionaires in 1987. Conklin has offered no justification for the failure to pay the tax on this amount other than to claim that it did not believe any tax was due because of comments (or lack thereof) by DOR representatives during the 1984-85 Martin County Fair. However, the basis for imposing a tax on a sublicense of real estate was significantly clarified in 1986. Thus, Conklin's purported reliance on the comments made in 1984 and 1985 should not be given much weight. Penalties on the assessment on food concession receipts from 1987 are appropriate. For the years subsequent to 1988, Conklin relies on the exemption set forth in Section 212.031(1)(a)(10), Florida Statutes. While it is possible that the exemption applies, the evidence presented at the hearing in this matter was insufficient to establish that this exemption was applicable. Consequently, penalties on the food concession receipts subsequent to 1988 are not appropriate. Following the issuance of the Notice of Proposed Assessment, Conklin admitted that it owed taxes on certain purchases that were made from out of state companies and shipped into the state. Conklin paid the tax on those items prior to the hearing in this matter. It is not clear what, if any, penalty was assessed with the late payment of the tax on these items. With respect to the remaining items, Conklin has steadfastly maintained its position that the items were utilized in connection with products that were exported. However, Conklin failed to convince DOR's auditor of the merits of its position and failed to provide sufficient evidence at the hearing in this matter to justify its claim. In view of all the circumstances, there is no basis for a waiver of penalties on this portion of the Notice of Assessment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a Final Order amending the Notice of Assessment to: (a) delete all taxes, penalties and interest assessed against Conklin for the ride subcontracts and game concessions; (b) affirming the assessment of tax against Conklin for the amount it received from food concessionaires during the years 1987 through 1990 (the amount of the assessment should be amended to reflect the net proceeds Conklin received rather than the gross revenues reflected in the original Notice of Assessment) and imposing penalties and interest on the amount of tax due; and (c) affirming the assessment of taxes, penalties and interest for the purchase of items that were allegedly used in the repair or manufacture of goods for export. DONE and ENTERED this 13th day of January 1994, at Tallahassee, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 1993.
Findings Of Fact The Respondents, Sandra Hoskins and Michael Mancuso, (the licensees), hold license number 62-957, Series 4 beverages by the drink for consumption on the premises of Sweethearts, located at 408 U.S. 19 South, Clearwater, Florida. Sweethearts is known as a bar where, in addition to buying alcoholic beverages, the mostly male patrons can watch "exotic dancing" on stage and pay $5 plus tip for a "lap dance." The dancers are physically attractive females dressed in underwear or "T-back" bathing suits. 1/ They are engaged by the management of Sweethearts to perform at Sweethearts. As they dance on stage, the disc jockey on duty introduces them by their stage names to the patrons present and encourages the patrons to ask the dancers to perform "lap dances" for them personally. The dancers also directly solicit "lap dances" from the customers. At the end of each shift, each dancer "tips out" $10 to the "house," i.e., pays the licensees $10, and "tips out" $5 to the disk jockey. As evidenced by what took place at Sweethearts on April 13 and August 25, 1989, a "lap dance" typically lasts for one song played by the disk jockey. The dancer escorts the patron to one of the booths lining the perimeter walls of the bar area, sits the patron down near the edge of the booth bench and begins "dancing." During the "dance," which is performed to the rhythm of the music, the dancer rubs various parts of her body, including the genital area, buttocks and breasts, against various parts of the body of the customer, including his genital area and face. Although the customer remains fully dressed during the "dance," and the dancer does not remove any clothing (i.e., she remains dressed either in underwear or in her "T-back" bathing suit), the "dance" is intended to simulate various sex acts, and purpose of the "dance" to arouse the customer sexually. Sometimes, the "dancer" fondles herself and acts as if she herself is becoming sexually aroused by the "dance." Sometimes, the customer rubs the breast area of the "dancer" or grabs her buttocks in the area of the anal cleft, and the "dancers" typically do little to stop or deter this behavior. Although the "lap dancing" occurs in a part of the bar where the lighting is red and subdued, it is highly implausible that the licensees, if on the premises, or the licensees' representative(s) on the premises would not know that the "lap dancing" described above was taking place on the premises. It is open and notorious. There was some evidence that there might be a nominal official policy at Sweethearts prohibiting patrons from touching the dancers. But the evidence is clear that management "winks at" violations of this official policy, if there indeed is one, and management policies in place at Sweethearts encourage the dancers to allow the patrons to touch them. (Allowing it to continue increases the chances of getting tips from customers such as these.)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order revoking license number 62-957, Series 4-COP, issued to the Respondents, Sandra Hoskins and Michael Mancuso, d/b/a Sweethearts, located at 408 U.S. 19 South, Clearwater, Florida. RECOMMENDED this 25th day of October, 1990, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 25th day of October, 1990.
The Issue Whether Petitioner, Sergey P. Shashelev, was subject to an unlawful employment practice by Respondent, Cirque du Soleil, based on his age and disability in violation of the Florida Civil Rights Act, section 760.10, Florida Statutes.
Findings Of Fact Cirque is a live entertainment company founded in Quebec, Canada, that dedicates itself to creating, producing, and performing artistic works around the world. Cirque currently presents a show called “La Nouba” in Orlando, Florida. La Nouba is a contemporary circus performance featuring acrobats, gymnasts, and other skilled performers, including clowns. La Nouba employs approximately 65 performers. La Nouba is a resident show located at Disney Springs at the Walt Disney World Resort (“Disney”) in Orlando. Cirque contracts with Disney to present La Nouba at Disney Springs. La Nouba is housed in a fixed theatre and does not travel. La Nouba has presented ten shows a week at Disney since 1998. Petitioner was born in Russia in 1960. He was born deaf. From the time Petitioner turned eight years old, he knew he wanted to be a clown. During his teens, Petitioner studied miming. He soon became a highly trained artist with a unique skill in pantomime. When Petitioner was 21, he joined the Leningrad Litsedei (“the Jesters”) Clown Mime Theater, world renowned clowns and mimes. For the next 15 years, Petitioner toured the world with the Letsedei group performing and developing his clown personality. Because Petitioner has been deaf since birth, he is not able to speak. Petitioner communicates through sign language. Petitioner is proficient in ASL, Russian Sign Language, and Quebec Sign Language (used in French-speaking parts of Canada). Petitioner considers Russian Sign Language his native tongue. His ability to read and comprehend English text is limited. The parties both described clowning as an art form. Clowns are artists, and each individual clown is unique. The art of clowning comes from the performer’s heart. Clowns have different personalities, emotions, rhythm, sensibilities, and style. Even if two clowns performed the same act, the performance would look different. Cirque first hired Petitioner in January 1994. Mr. Gilles St. Croix, Cirque’s Creative Guide, hired Petitioner to perform in the Cirque show “Alegria.” Cirque hired Petitioner for his miming skills. Based on Petitioner’s artistic specialty and clown personality, Cirque chose Petitioner to portray a “down-and-out” clown. Cirque readily agrees that Petitioner is a very talented, “world-class” clown. (Cirque expressed that it would hire no less.) Cirque does not dispute that Petitioner is a master at his craft. When Petitioner’s contract with Alegria ended, Mr. St. Croix asked Petitioner to join the cast of a new production Cirque was developing in Orlando that would become La Nouba. Mr. St. Croix was aware that Petitioner was deaf when he hired him. Cirque viewed Petitioner’s disability as an asset. Petitioner’s disability became a gift to his performance and creativity. Miming allowed him to communicate with people of many nationalities. Cirque hired Petitioner together with his partner, Michel Deschamps, who went by the clown name “Balto.” Petitioner and Balto created five clown acts that were incorporated into La Nouba. The combined acts took up approximately 15 to 18 minutes of show time. From 1998 through 2014, Petitioner performed the same clown act with Balto. Petitioner and Balto were part of La Nouba’s original cast and always performed their clown act together. Currently, La Nouba artists and performers report to Daniel Ross, La Nouba’s Artistic Director. Mr. Ross became the production’s Artistic Director in 2010. Mr. Ross reports to the Senior Artistic Director, Pierre Parisien. Mr. Parisien became the Senior Artistic Director for La Nouba in 2000. Neil Boyd is La Nouba’s current Company Manager. Cirque’s workforce is diverse. Across its worldwide productions, Cirque employs approximately 1,300 individuals who are 40 or older including four or five clowns. At La Nouba, approximately 70 Cirque employees are over 40. Cirque also employs individuals who have disabilities. Two of these employees are clowns and are also deaf or hard of hearing. Cirque enters into individual written contracts with its artists. The initial Artist Agreement (“Artist Agreement”) is for a period of two years. Thereafter, each contract is renewable in one-year increments. Cirque drafted Artist Agreements for a defined period of time because Cirque desired to maintain the flexibility to adjust or change its shows and artists when necessary. Cirque never intended its artists to be permanent performers in a production. Cirque regularly replaces artists and integrates new acts into existing shows. Accordingly, Artist Agreements allow Cirque to terminate an artist at any time. In April 1998, Petitioner and Cirque executed a Letter of Intent whereby Petitioner agreed to begin work for La Nouba. In March 1999, after a negotiation process, Petitioner signed a formal Guest Artist Agreement for La Nouba. Petitioner’s initial Artist Agreement ran from October 5, 1998, through December 22, 2000 (notwithstanding the date of Petitioner’s signature). Thereafter, Petitioner’s Artist Agreement could be renewed every year “upon the mutual consent of both parties” for “additional and consecutive periods of one (1) year each.” Petitioner signed the Artist Agreement and initialed every page. Cirque and Petitioner subsequently renewed his Artist Agreement every year from 2000 through 2013 in one-year increments. On August 16, 2013, Petitioner and Cirque signed what was to become Petitioner’s final contract extension. The parties agreed to renew Petitioner’s Artist Agreement for the period running from January 1, 2014, through December 31, 2014. Petitioner’s Artist Agreement was written in English. Petitioner testified that, because he could not read English, he did not comprehend all the contract provisions. He just signed the Artist Agreement and went to work. Petitioner expressed that at the time he executed his initial contract, he believed that his position was permanent until he decided to leave or retire. Petitioner’s Artist Agreement did not contain any written provisions stating that Petitioner could stay at La Nouba until he retired from the show. On the contrary, Cirque could terminate Petitioner’s Artist Agreement at any time without cause. As stated in Petitioner’s Artist Agreement, section 9.3: [Cirque du Soleil Orlando, Inc.] shall have the right to terminate this agreement without cause, upon simple notice to the Artist, provided the Producer pays the Artist, as severance compensation, the amount determined in accordance with the calculations mentioned in Schedule D to this agreement. Cirque also prepared a separate annual contract renewal letter which indicates whether an artist receives a raise. In Petitioner’s August 16, 2013, renewal letter, Cirque agreed to pay Petitioner $506.66 for each La Nouba performance or approximately $250,000 per year. Cirque highly compensates its clowns because they are unique and difficult to find. By the end of his employment, Petitioner was one of Cirque’s highest paid performing artists. In addition to the Artist Agreement, Cirque employees receive the Cirque Human Resource Artist Rules and Policies Manual (“Rules and Policies Manual”). During Petitioner’s employment with La Nouba, Cirque voluntarily arranged and paid for Petitioner to use certified ASL interpreters on many occasions to communicate with Cirque’s management team and fellow performers. Cirque provided Petitioner with an interpreter for every weekly artist meeting, all annual contract renewal meetings, as well as every annual performance evaluation meeting. No terms in Petitioner’s Artist Agreement required Cirque to obtain an interpreter for Petitioner’s use during Cirque functions. When Cirque met with Petitioner to execute his initial Artist Agreement, Cirque obtained the services of an interpreter to assist Petitioner. During this meeting, Cirque did not direct the interpreter to translate the full contract terms, word-for- word from English to ASL, for Petitioner. Neither did Petitioner ask the interpreter to interpret every word of his Artist Agreement. Although Cirque provided Petitioner a copy of the Artist Agreement, he did not have someone translate all the provisions of the document for him. Every year when Petitioner and Cirque met to renew Petitioner’s Artist Agreement, Cirque arranged for the presence of a certified ASL interpreter during the meeting. As with his initial contract, Cirque allowed Petitioner the opportunity to ask the interpreter questions about the terms of his renewed Artist Agreement. Petitioner never asked the interpreter to interpret every word of his contract. Petitioner signed every contract renewal letter. Cirque provided Petitioner copies of all renewal letters. Mr. Parisien, Cirque’s Senior Artistic Director, attended Petitioner’s last four contract renewal meetings. At each meeting, Mr. Parisien advised Petitioner that his contract was renewed for only one year. Mr. Parisien never communicated to Petitioner that he had a lifetime employment with La Nouba. Petitioner never complained to Mr. Parisien about the contract terms or renewal process. Neither did Petitioner ever express to Mr. Parisien that he was under the impression that he had a lifetime or permanent employment with La Nouba. La Nouba scheduled weekly artist meetings which were held every Tuesday. At these Tuesday meetings, Cirque relayed announcements or comments that pertained to the artists, La Nouba, or Cirque. At every Tuesday meeting, Cirque provided Petitioner with a certified ASL interpreter. Petitioner was free to ask questions or raise any concerns through the interpreter at these meetings. Although the Tuesday artist meetings typically lasted 15 minutes, Petitioner’s interpreters were hired for two-hour blocks of time. Following the meetings, the interpreters were available for Petitioner’s personal use to communicate with Cirque employees for the remainder of the two hours. On occasions, Petitioner took advantage of the interpreters to converse with Cirque management and fellow performers. Cirque also arranged and paid for interpreters to assist Petitioner in other matters including health insurance issues, as well as communications with other La Nouba performers, trainers, costumers, and Cirque employees. Cirque also provided Petitioner the use of interpreters for press events, rehearsals for a special show, a workshop, and several other important meetings including three to four annual company meetings. From 1998 through the end of his employment in 2014, no evidence indicates that Cirque ever denied any request from Petitioner for an interpreter’s assistance during a La Nouba event or an employee meeting. Cirque was not aware of any complaints from Petitioner that he could not effectively communicate with Cirque management or fellow performers. In addition to interpreter services, Cirque provided Petitioner with a cell phone/pager to communicate with Cirque employees. This device allowed Petitioner to communicate, via text, in a simple manner. Petitioner was the only artist Cirque provided with a cell phone/pager. In addition to the interpreters, several Cirque employees knew sign language. These individuals included Balto, Petitioner’s partner in his clown act, and David Wallace, a Cirque sound engineer. Cirque occasionally requested Balto or Mr. Wallace to help communicate with Petitioner. At the final hearing, Petitioner testified that Cirque did not provide him the benefit of an interpreter for every show related event or gathering. An interpreter was not present during show rehearsals. Without an interpreter, Petitioner felt that he had a very limited ability to communicate with the other performers or management. Petitioner felt that the lack of an interpreter hindered his creative process. In addition, Petitioner described one La Nouba affair during which Cirque did not provide him an interpreter. This event was La Nouba’s 15th anniversary party in December 2013. Mr. Wallace offered some assistance communicating the speeches to Petitioner based on his limited sign language. Petitioner, however, felt left out and was not able to fully participate in the party. Petitioner did not request Cirque provide him an interpreter for the party. The party was not a mandatory event for Cirque employees. Mr. Ross, as La Nouba’s Artistic Director, evaluated all artists’ performance, including Petitioner. From 2010 to 2013, Mr. Ross prepared an annual performance evaluation for Petitioner. Cirque’s Rules and Policies Manual, section 13, stated that performance evaluations were based on several elements including: 1) artistic quality of performance; 2) performance--acrobatic/musical/character; 3) attitude; and 4) health care. Mr. Ross personally presented Petitioner his annual performance evaluation. Each year, Mr. Ross and Petitioner reviewed Petitioner’s performance evaluation in the presence of a certified ASL interpreter and another witness. All evaluations were read to Petitioner (through the interpreter). Petitioner signed every evaluation. During these meetings, Petitioner had the opportunity to ask Mr. Ross questions or raise any other issues through the interpreter. Petitioner never asked the interpreter to read the performance evaluation line by line. Every year, Petitioner received overall positive ratings from Mr. Ross. For example, in Petitioner’s 2011 performance evaluation, Mr. Ross commented that Petitioner’s “clown is very charming and the audience is always touched by his performance.” In 2012, Mr. Ross commented that Petitioner “masters his art as a clown” and Petitioner is a “beautiful performer. . . . He is funny and touching.” In 2013, Mr. Ross commented that Petitioner’s “experience and talent are unquestionable.” According to Petitioner, Mr. Ross always had positive things to say about his clown act. Mr. Ross conveyed to Petitioner that he was a great asset to La Nouba and very pleasant to deal with. At the final hearing, Mr. Ross also expressed that Petitioner was a beautiful performer and an excellent and talented clown. However, over the course of his years supervising Petitioner’s act, Mr. Ross observed that Petitioner’s act had become routine. Petitioner was not taking risks or evolving his presentation. Mr. Ross noted in Petitioner’s performance evaluations that Petitioner’s “routine is almost too consistent. He could take more risks and explore further within the routines. As a result, there is very little evolution in [Petitioner’s] performance . . . consistency in the performance is such that it can feel too permanent sometimes. I would love to see [Petitioner] take more risks and let the present moment influence his performance more.” (August 2011) “Sometimes we would like to see [Petitioner] taking more risks and keeping the performance on the edge; this would help him not to fall into a routine. . . . No significant evolution.” (July 2012) Petitioner “sticks to the show material and very rarely explores new avenues. . . . He has to be careful not to let the routine diminish his performance level.” (July 2013) Cirque spends up to two years creating a show. Thereafter, to keep up with industry trends, look vibrant, maintain market share, and stay relevant, Cirque adjusts and evolves its shows over time. Changes include altering existing acts, integrating new acts, modifying the costumes, replacing acts and/or artists, transforming the music, and varying the choreography. Introducing new elements and updating shows provides Cirque another opportunity to advertise and market its shows to the public. This step increases the likelihood of repeat customers. Conversely, Cirque believes that if it does not evolve its shows, its sales are negatively impacted. Around 2012, Cirque shows began to experience a decline in sales. Consequently, Cirque’s owner, Guy Laliberte, directed that all Cirque shows be changed and upgraded. Mr. Laliberte wanted to increase the quality of the shows and keep them relevant. In the summer of 2013, Mr. Laliberte instructed Mr. Parisien to change La Nouba before the end of 2015. Cirque planned for significant changes to occur to La Nouba from 2013 through 2015. During this time, Disney also expressed a desire for Cirque to revamp La Nouba. La Nouba’s contract with Disney was scheduled to expire in December 2017. Mr. Laliberte desired the changes to La Nouba made before Cirque’s contract with Disney ended in order to extend the contract. In July 2013, Petitioner’s partner, Balto, announced that he was retiring from La Nouba. Balto’s retirement was unexpected. Balto asked Mr. Parisien if his last day could be April 19, 2014. Mr. Parisien agreed. Initially, Cirque was uncertain how Balto’s retirement would impact Petitioner’s position with La Nouba. Losing one half of the clown act would certainly affect Petitioner’s routine. Mr. Parisien was open to all possibilities as to how to handle the change. Because Petitioner was scheduled to renew his annual Artist Agreement for 2014 in January 2014, and Balto was not leaving until April 2014, Mr. Parisien decided that Cirque should renew Petitioner’s contract with La Nouba for the full year (from January through December 31, 2014). Mr. Parisien met with Petitioner in August 2013 to discuss renewing his Artist Agreement in light of Balto’s retirement. Mr. Parisien advised Petitioner that Cirque would agree to renew his contract for all of 2014. Petitioner’s renewal letter stated that renewal was under the same terms and conditions as his original Artist Agreement. Cirque obtained an interpreter who was present to assist Petitioner during this meeting. Despite renewing Petitioner’s Artist Agreement, Mr. Parisien advised Petitioner that the La Nouba clown act was going to change, but he had not yet determined how. Mr. Parisien recognized that Balto’s retirement provided La Nouba the opportunity to evolve the clown act in compliance with the mandate by Mr. Laliberte and Disney. Mr. Parisien considered three options as to how to change La Nouba’s clown act. First, Cirque could find Petitioner another partner. Second, Petitioner could continue as a solo clown act. Or, third, La Nouba could replace Petitioner and Balto’s clown act with two different clowns. Mr. Parisien discussed these three options with Mr. Ross, La Nouba’s Artistic Director. Mr. Ross had no preference and was open to all options. During the fall of 2013, Mr. Parisien and Mr. Ross met with Petitioner several times to discuss the various options for the clown act. Cirque obtained an interpreter’s services for each meeting. Mr. Parisien and Mr. Ross advised Petitioner that they had not decided on which direction to take the clown act. Petitioner acknowledged that Cirque was in the process of changing and upgrading La Nouba. However, Petitioner conveyed to Mr. Parisien and Mr. Ross that he did not want his clown act to change. Petitioner suggested that Cirque hire Maxim Fomitchev (“Max”), a clown performing on the Cirque show, Alegria. Although Petitioner had never worked with Max, Petitioner suggested that he and Max would continue to perform the same clown act that Petitioner originated with Balto. Mr. Parisien agreed to consider Petitioner’s recommendation. During these meetings, Mr. Parisien, and Mr. Ross occasionally spoke in French. (French is their first language.) However, no evidence shows that Mr. Parisien and Mr. Ross ever discussed Petitioner’s disability or age in French. In November 2013, Mr. Parisien contacted Mr. St. Croix to discuss the different options regarding La Nouba’s clown act. Mr. Parisien, as La Nouba’s Senior Artistic Director, was responsible for deciding how to adjust La Nouba’s concept and select acts that fit his artistic vision for La Nouba. Mr. Parisien, however, wanted Mr. St. Croix’s advice. Mr. St. Croix is the mastermind behind most of Cirque’s important shows. Mr. Parisien valued his opinion and artistic vision. Mr. St. Croix recommended that Mr. Parisien bring to La Nouba the clown act of “Pablo and Pablo” from Alegria. (Pablo and Pablo were two clowns whose first names were Pablo.) Alegria was closing in December 2013. The timing was advantageous for a move to La Nouba. Until his conversation with Mr. St. Croix, Mr. Parisien had not considered Pablo and Pablo as an option for La Nouba. Mr. Parisien was familiar with Pablo and Pablo and their clown act. He considered them to be great performers and artists. Mr. Parisien testified that Pablo and Pablo’s clown act was different from Petitioner and Balto’s clown act. Their clown personalities were also very different. Pablo and Pablo were high energy and colorful, while Petitioner and Balto were more deliberate and poetic. Pablo and Pablo’s comedy was more slapstick and physical. Described another way, Petitioner and Balto were like jazz, while Pablo and Pablo were more rock-and- roll. Pablo and Pablo’s act and personalities met Mr. Parisien’s artistic vision for changing the concept of La Nouba’s clown act. In addition, inserting Pablo and Pablo’s clown act into La Nouba was the most efficient business decision. Pablo and Pablo had been working together as a successful partnership for years. Cirque would avoid any delay that might result from having to develop a completely new clown act for Petitioner and a new partner. Mr. Parisien commented that it is difficult to establish a partnership in any act because the relationship depends on the performers’ chemistry, energy, and rhythm. It was more efficacious and safer for Cirque to use Pablo and Pablo rather than find Petitioner a new partner because Pablo and Pablo could just transfer their act from Alegria to La Nouba. Pablo and Pablo would also introduce new material to La Nouba. In November 2013, Mr. Parisien decided to bring Pablo and Pablo to La Nouba to replace Petitioner and Balto. Mr. Parisien felt that his decision met both Cirque’s artistic and business requirements. This decision would also effectuate Mr. Laliberte’s directive to change the concept of the clown act and bring new elements to La Nouba. Unfortunately, bringing Pablo and Pablo to replace Petitioner’s act meant that Mr. Parisien had to terminate or non-renew Petitioner’s contract. Mr. Parisien ultimately decided to terminate Petitioner’s contract on the same date Balto retired. Cirque notified Petitioner that it was terminating his Artist Agreement at a meeting held on January 21, 2014. Mr. Ross, Mr. Boyd (La Nouba’s Company Manager), as well as an interpreter were present with Petitioner during the meeting. Although it was Mr. Parisien’s decision to terminate Petitioner, Mr. Ross held the meeting because he was located in Orlando. At the meeting, Mr. Ross informed Petitioner that Cirque was terminating his contract as of April 19, 2014. April 19, 2014, was the same day Balto was retiring from the show. Mr. Ross explained to Petitioner that Cirque had decided to change the concept of the La Nouba clown act. Mr. Ross provided Petitioner with a termination letter. The letter stated that “in view of a change in the show concept,” Petitioner’s Artist Agreement was being “terminated as of April 19, 2014, by virtue of section 9.3.” Petitioner was further advised that Cirque would pay him a severance in the amount of $24,218.35. Petitioner was shocked by the Cirque’s decision to replace him. Although an interpreter translated the conversation, Petitioner felt lost at times during the meeting due to the rapid exchanges between Mr. Ross and Mr. Boyd. Petitioner did not believe that all communications were adequately interpreted. Mr. Parisien testified that neither Petitioner’s age nor disability had any bearing on his decision to terminate Petitioner. Rather, the decision was based solely on the fact that he was compelled to change and update La Nouba. The fact that Balto was retiring from La Nouba as Petitioner’s partner opened the door for La Nouba to replace their clown act. Prior to this meeting, Pablo and Pablo agreed to come to La Nouba. Pablo and Pablo are both younger than Petitioner. In addition, neither of them has a disability. Mr. Parisien testified convincingly that he did not hire Pablo and Pablo because they could hear or because they were both younger than Petitioner. During his employment with Cirque, Petitioner never complained to Cirque management that he felt discriminated against. Petitioner never complained about the availability of (or lack of) interpretation services Cirque offered. Petitioner never requested any accommodations beyond what Cirque already provided. Neither did Petitioner ever file an accommodation request with Cirque’s human resources department in accordance with the Cirque Rules and Policies Manual. On the contrary, during his August 2011 performance evaluation, Petitioner relayed that Cirque has “been providing communication through interpreters which is good . . . I love the show and want to stay here for a while.” Although Mr. Parisien made the decision to terminate Petitioner’s Artist Agreement, Petitioner alleged that Mr. Ross was the only person at Cirque that discriminated against him based on his disability and age. Petitioner continued to perform his clown act with Balto at La Nouba from January 2014 through April 19, 2014. Mr. Ross noticed that Petitioner’s performance actually improved after he was informed of his termination. On or about April 11, 2014, Cirque advised Petitioner that, in addition to the severance, Cirque would voluntarily pay him a transition premium of $15,000.00, as well as vacation and leave pay. In total, Petitioner received $53,627.76 after Cirque terminated his employment. Following Petitioner and Balto’s last show, Cirque held a celebration party and provided both artists with gifts. Cirque also invited all of the interpreters who had assisted Petitioner throughout the years to watch his last performance and attend the party. Although Cirque determined to replace Petitioner (and Balto) at La Nouba, before his last show Cirque discussed with Petitioner possible jobs at other Cirque productions. To be considered for another Cirque show, Petitioner would have had to update his casting profile with Cirque’s casting department. Petitioner met with Cirque’s casting department. However, he never provided the casting department with materials to update his profile in order to be considered for other jobs. Petitioner informed Cirque that he did not want to go to a different show. He was not interested in leaving Orlando or touring with another Cirque production. He desired a permanent position until he retired. Pablo and Pablo began performing their clown act at La Nouba immediately after Petitioner and Balto left the show in April 2014. Pablo and Pablo brought their acts from Alegria to La Nouba. Pablo and Pablo’s performance included five acts: 1) thieves, 2) motorcycle, 3) airplane, 4) door, and 5) piñata. These acts were different from the acts Petitioner and Balto performed. Although, both acts contain a horse bit, the acts Pablo and Pablo brought were newer and different from the act Petitioner performed at Alegria or La Nouba. Mr. Parisien believed that Pablo and Pablo successfully changed the concept of the clown act because their act, energy, and style were completely different from Petitioner and Balto’s. The new clown act also provided Cirque a new marketing angle to advertise the show and create publicity. Whether coincidental or not, after Pablo and Pablo arrived at La Nouba, ticket sales increased. Mr. Parisien’s decision to replace Petitioner and Balto’s clown act was not the only change he made to La Nouba. Other changes included replacing the juggler act with a rola-bola balancing act, the skipping act with a street dance act, and the high wire act with an aerial bamboo act. He changed the costumes of the bike act and the music for the flying trapeze act. In addition to Petitioner, Parisien terminated or did not renew approximately seven other artists. In total, approximately 30 to 40 percent of La Nouba changed in response to the Cirque and Disney mandate. To Mr. Parisien’s knowledge, none of the other artists terminated from La Nouba had a disability. Some of the artists terminated were younger than Petitioner. Since his employment with Cirque ended, Petitioner has not looked for any other artist jobs with either Cirque or Disney. Petitioner has not worked as a clown since he left La Nouba. Based on the competent substantial evidence presented at the final hearing, Petitioner did not demonstrate, by a preponderance of the evidence, that Cirque discriminated against him based on his age or his disability in violation of the Florida Civil Rights Act. Rather, Cirque’s decision to terminate Petitioner was based on its desire to change and update the concept of the La Nouba production.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Respondent, Cirque du Soleil, did not commit an unlawful employment practice as to Petitioner, Sergey P. Shashelev, and dismiss Petitioner’s Petition for Relief from an Unlawful Employment Practice. DONE AND ENTERED this 11th day of October, 2016, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 11th day of October, 2016.
The Issue Whether proposed rules 61D-7.021(5)(f) and 61D-7.021(5)(g) are invalid exercises of legislative delegated authority pursuant to Subsection 120.52(8), Florida Statutes (2004),2 and, if so, whether Petitioner is entitled to an award of costs and attorney's fees pursuant to Subsection 120.595(2), Florida Statutes.
Findings Of Fact Calder is a Florida corporation and a pari-mutuel permitholder permitted and licensed by the Department pursuant to Chapter 550, Florida Statutes. Calder seeks to challenge proposed amendments to Florida Administrative Code Rule 61D-7.021. Specifically, Calder challenges Subsection (5)(f), as noticed in the Florida Administrative Weekly, Volume 30, Number 32, August 6, 2004, and Subsection (5)(g), as noticed in the Florida Administrative Weekly, Volume 30, Number 21, May 21, 2004.3 The challenged amendments shall be referred to as the "Proposed Rules." The Proposed Rules provide: For tickets cashed more than 30 days after the purchase of the ticket, the ticket may not be cashed at any type of patron- operated machine or terminal. The totalisator system must be configured to instruct patrons on how to cash the ticket. The totalisator system must have the ability to identify such tickets and indicate to a teller that the ticket falls within this category. Calder is a licensed and permitted pari-mutuel facility which sells tickets and uses totalisator machines, and the Proposed Rules would govern the operation of such facility. The Proposed Rules have the effect of directly regulating the operation of Calder's pari-mutuel facility, and, as such, Calder is substantially affected by the Proposed Rules. The parties have stipulated that Calder "may properly challenge both Proposed Rules 61D-7.021(5)(f) and 61D-7.021(5)(g)." A pari-mutuel ticket evidences participation in a pari-mutuel pool. A winning or refundable pari-mutuel ticket belongs to the purchaser and may be claimed by the purchaser for a period of one year after the date the pari-mutuel ticket was issued. An "outs" or "outs ticket" is a winning or refundable pari-mutuel ticket which is not redeemed. If a ticket remains unclaimed, uncashed, or abandoned after one year from the date of issuance, such uncashed ticket escheats to the state unless the ticket was for a live race held by a thoroughbred permitholder such as Calder, in which case the funds are retained by the permitholder conducting the race. A totalisator machine is "the computer system used to accumulate wagers, record sales, calculate payoffs, and display wagering data on a display device that is located at a pari- mutuel facility." § 550.002(36), Fla. Stat. The Department was prompted to begin the rulemaking process for the Proposed Rules by two major cases involving fraud, one Florida case and one national case. The Florida case involved two totalisator employees named Dubinsky and Thompson, who allegedly accessed outs ticket information in the totalisator's central computer system, counterfeited outs tickets based on the information, and cashed the tickets at self-service machines at two pari-mutuel wagering facilities. The fraudulent conduct involved approximately $13,000. In the Florida case the fraudulent tickets were cashed several months after the tickets were said to have been issued. The fraud came to light when the ticketholder who held the true ticket attempted to cash the ticket, but could not because the fraudulent ticket had been cashed. The national case also involved a totalisator employee who cashed fraudulent outs tickets. In the national case, the fraudulent tickets were cashed less than 30 days after the date the tickets were purportedly issued. The purpose of the Proposed Rules is to deter the cashing of fraudulent tickets. The Department received comments from AmTote International, a totalisator company, at the rule workshop held during the rulemaking process and received written comments submitted by AmTote International after the workshop, indicating that the majority of tickets are cashed within six to nine days after the date of issuance. The older a ticket gets the less likely it becomes that the ticket will be cashed, and the less likely that it becomes that the cashing of a fraudulent ticket would be revealed by the true owner attempting to cash the ticket. Staff of the Department felt that by requiring that outs tickets older than 30 days be cashed by a live person, a thief would be deterred because he would be dealing with a person rather than a machine. The only thing that the self- service machine requires to redeem a ticket is a bar code, so it would be possible to submit a ticket containing nothing but the bar code and receive a voucher which could be submitted to a teller for money.4 If the fraudulent ticket looks different in anyway from a valid ticket, a teller may be able to spot the difference and question the transaction. Calder argues that the way to deter the fraud which has occurred is to stop totalisator employees from being able to print fraudulent tickets. However, the Department is also concerned about computer hackers potentially getting into the computer system which contains the outs tickets numbers and copying the bar code which could be submitted to a self-service machine. By regulating the method of cashing outs tickets, the Department is attempting to deter fraud by totalisator employees and others who may be able to access outs tickets information which could be used in producing counterfeit tickets. During the rule making process, the Department held a workshop, received written comments from the public, and held a hearing to receive comments from the public after the Proposed Rules were first noticed. The Department considered the comments it received and modified the Proposed Rules as noticed in the Notice of Change published on August 6, 2004, to accommodate some of the comments. Calder did not submit a good faith, written proposal for a lower cost regulatory alternative within 21 days after the notice of the Proposed Rules was published in the Florida Administrative Weekly on May 21, 2004, or after the Notice of Change was published.
The Issue The issues are: (1) whether Respondent violated Subsection 112.3148(8), by failing to report a $2,606.25 gift of Disney World and Universal Studios tickets on a Quarterly Gift Disclosure Form, CE Form 9; and (2) if so, what is the appropriate penalty.
Findings Of Fact At all times pertinent to the proceedings, Respondent, Alan Keen, served as chairman of the Orlando-Orange County Expressway Authority. At all times relevant hereto, Respondent was subject to the requirements of Chapter, Part III, Florida Statutes, Code of Ethics for Public Officers and Employees, for his acts and omissions as chairman of the Expressway Authority. See §§ 112.311(6) and 112.313, Fla. Stat. In April 2006, Respondent was contacted by a family friend, James Stanley, who resides in Costa Rica. Mr. Stanley indicated that his father-in-law was paying for the family, consisting of four children and eight adults, to travel to the Orlando area in the Fall of 2006 and requested that Respondent see if he could obtain theme park tickets for their use. Mr. Stanley called Respondent and asked him to obtain theme park tickets so that the tickets could be in-hand prior to Mr. Stanley and his family arriving in Orlando. This request was made purely for the purposes of convenience.2 Respondent has known Mr. Stanley for more than 20 years and considers to him to be a friend. Mr. Stanley described Respondent as his mentor and a close friend. Respondent and Mr. Stanley and their respective families socialize and have visited with each other in the United States and in Costa Rica. Mr. Stanley never asked for or expected Respondent to obtain free theme park tickets. In fact, it was Mr. Stanley's understanding and belief that his father-in-law, Rodrigo Esquivel, was going to pay all the costs associated with the trip. Respondent contacted Bryan Douglas, the then director of marketing for the Expressway Authority and asked Mr. Douglas if he had access to complimentary tickets to Universal Studios and Disney World theme parks.3 In response to this request, Mr. Douglas told Respondent that he did not know if he had access to complimentary tickets, but indicated that he would check. As chairman of the Expressway Authority, Respondent had no supervisory authority over Mr. Douglas and never signed any of his paychecks. Approximately two or three weeks after his initial telephone call to Mr. Douglas, Respondent requested that his personal assistant, Sherry Cooper, follow-up on whether Mr. Douglas had any success in obtaining any complimentary tickets. Respondent understood that Ms. Cooper, at the request of Mr. Douglas, had inquired of Mr. Stanley how many adult and how many children tickets were needed. In 2006, Ronald Pecora was the owner of Pecora and Blexrud, a marketing communications and public relations firm that had a contract to do work the Expressway Authority. In or about May 2006, Mr. Pecora became aware of the request for theme park tickets from Christy Payne. Ms. Payne was the representative of Pecora and Blexrud who was assigned to work with the Expressway Authority. According to Mr. Pecora, Ms. Payne reported to him that she was contacted by Mr. Douglas, the marketing director for the Expressway Authority in regard to theme park tickets. Based on the above-referenced conversation between Mr. Pecora and Ms. Payne, it was his (Mr. Pecora's) understanding that the subject theme park tickets were for Respondent. However, Mr. Pecora had no idea who would be using the theme park tickets and never spoke to Respondent about those tickets. During Mr. Pecora's conversation with Ms. Payne regarding the theme park tickets, he authorized her to purchase the theme park tickets with her corporate credit card. As a result of Mr. Pecora's authorization, a total of 12 theme park tickets having a value of $2,606.25 were purchased using the Pecora and Blexrud credit card. At the time Mr. Pecora authorized Ms. Payne to purchase the 12 theme park tickets, he anticipated being repaid for the tickets. Mr. Pecora's actions after he received the theme park tickets and the invoice for the purchase of those tickets are consistent with that belief and expectation. In mid-May 2006, the 12 theme park tickets and receipt for payment invoice ("invoice") were delivered to Mr. Pecora's business address in Winter Park, Florida. The invoice indicated that the $2,606.25 payment for the theme park tickets had been charged to Mr. Pecora's credit card.4 A few days after receiving the tickets and invoice, Mr. Pecora had one of his employees deliver the theme park tickets and the original invoice for those tickets to Keewin Properties. The reason Mr. Pecora sent the invoice to Keewin Properties, whose principal was Respondent, was so that the recipient would know how much to pay him for the tickets. At the time that Mr. Pecora had the theme park tickets and invoices sent to Keewin Properties, he knew that Respondent was the owner of that business. At or near the time Mr. Pecora directed his employee to deliver the theme park tickets and invoice for those tickets to Keewin Properties, he memorialized that transaction. In a hand-written note dated May 18, 2006, Mr. Pecora indicated that the original invoice had been sent to Keewin Properties. Mr. Pecora understood that theme park tickets were not for official business purposes of the Expressway Authority. Accordingly, he did not send the invoice for the theme park tickets to the Expressway Authority, but to Respondent's privately-owned business. On or about mid-May 2006, Respondent received the theme tickets and the invoice that were delivered to him in a small brown envelope. When he received the tickets, Respondent was surprised that Mr. Pecora was involved in obtaining the tickets because he had merely asked Mr. Douglas whether he had access to complimentary theme park tickets. However, Respondent was not surprised to have received an invoice. Upon receipt of the tickets, Respondent telephoned Mr. Stanley and advised him that he had obtained the theme park tickets and the invoice for the purchase of those tickets. Because Respondent would be in Costa Rica in a few weeks, he told Mr. Stanley that he would deliver the tickets and the invoice when he arrived in Costa Rica. As he had promised, a few weeks after speaking to Mr. Stanley, Respondent traveled to Costa Rica and, while there, personally delivered the theme park tickets and the invoice to Mr. Stanley. When Mr. Stanley received the theme park tickets and the invoice, he reviewed them. Soon thereafter, Mr. Stanley gave both the tickets and the invoice to Mr. Esquivel. Prior to giving the tickets and the invoice to Mr. Esquivel, Mr. Stanley highlighted the name of the individual printed on the invoice who was to be paid for the tickets. On or about September 23, 2006, Mr. Stanley and his family, including Mr. Esquivel, began their visit to the Orlando area. During this trip, the theme park tickets were used by Mr. Stanley's family. Respondent did not use any of the theme park tickets. Mr. Esquivel did not pay for the theme park tickets prior to the time that Mr. Stanley's family used the theme park tickets. About ten days after Mr. Stanley's family, including Mr. Esquivel, returned to Costa Rica from Orlando, Mr. Esquivel suffered a stroke. As a result of the stroke, Mr. Esquivel was hospitalized for about a week, but later returned to most of his usual activities. Respondent first learned that the theme park tickets had not been paid for in December 2006, after reading an article in the Orlando Sentinel newspaper. Until that time, Respondent had assumed that Mr. Stanley or his father-in-law had paid for the theme park tickets. Soon after reading the above-referenced newspaper article, Respondent called Mr. Stanley to ask if they had paid for the theme park tickets. Mr. Stanley told Respondent he believed that his father-in-law had paid for the tickets, but indicated that he would check on the matter. Upon checking, Mr. Stanley determined that his father-in-law had not paid for the tickets. Based on his personal knowledge of his father-in-law, Mr. Stanley concluded that his father-in-law simply forgot to pay for the tickets.5 Soon after discovering that Mr. Esquivel had not paid for the theme park tickets, Mr. Stanley also learned that criminal proceedings related to the theme park tickets were pending against Mr. Pecora. Therefore, Mr. Stanley, in consultation with his attorneys, decided that payment for the theme park tickets should be made after the criminal proceedings were over. About a month prior to this proceeding, Mr. Stanley received wiring instructions from Mr. Pecora's attorney. Immediately thereafter, Mr. Stanley wired the full payment for the theme park tickets to Mr. Pecora's attorney, on behalf of Mr. Pecora. Mr. Stanley's father-in-law gave him the funds which were wired to Mr. Pecora's attorney. Respondent did not file a Quarterly Gift Disclosure, CE Form 9, regarding receipt of the theme park tickets. The reason Respondent did not file a Quarterly Gift Disclosure Statement was that the theme park tickets were not for him and were not used by him. Therefore, Respondent did not believe that the tickets were a gift. Mr. Pecora, the procurer of the theme park tickets, did not consider the theme park tickets as a gift. Moreover, he never intended to make those tickets a gift.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics issue a final order and public report finding that Respondent, Allen Keen, did not violate Subsection 112.3148(8), Florida Statutes, and dismissing the Complaint filed against him. DONE AND ENTERED this 20th day of November, 2009, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th of November, 2009.
The Issue Whether Respondent, Walt Disney World, violated Section 760.08, Florida Statutes (2006), as alleged in the Petition for Relief in this matter.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Petitioner is a Caucasian male, born in Puerto Rico. He is an amateur photographer. He had visited Walt Disney World at least ten times prior to December 1, 2006. Respondent owns and operates a theme park in Orange and Osceola Counties, Florida. Respondent employs individuals with the job title, "security host," with the responsibility of maintaining security in the theme park. This category of employees is licensed by the State of Florida, and they receive training in "abnormal behavior of guests," threat analysis, surveillance, intelligence, and other job-related skills incidental to maintaining a safe environment within the theme park. Respondent has a specific protocol regarding theme park guests exhibiting "abnormal behavior." In the context of this case, taking photographs in the theme park is not an "abnormal behavior." In fact, guests are encouraged to photograph those accompanying them and various theme park characters, e.g., Mickey Mouse. However, excessive photographing of structures, "mapping or progression photography," is considered "abnormal behavior." "Mapping" consists of taking pictures in a progression, so as to familiarize someone who has never been to an area with the layout of that area and is considered very unusual behavior. Petitioner entered the Magic Kingdom, part of Respondent's theme park, on December 1, 2006. A security host observed Petitioner photographing the main entrance and security bag check. Petitioner was unaccompanied. The subject matter and manner of Petitioner's photography was considered to be "abnormal" by the security host. Once a security cast member identifies potentially abnormal behavior by a guest, the protocol requires the security host to contact a member of management (by radio) and continue to observe the guest. Petitioner moved further into the Magic Kingdom and took photographs of Main Street and City Hall. Because Petitioner was limiting his photography to structures, the security host's initial impression that Petitioner was doing something "abnormal" was reinforced and, in accordance with the established protocol, he again called management. As further dictated by Respondent's security protocol, the uniformed security host is then met by an "undercover" security host whose job-responsibility is "real-time threat analysis." The "threat-analysis" security host continued to observe Petitioner as he took what was interpreted by the security host to be "panoramic" photographs of Town Square and "mapping" photographs of the interior of the train station. He, too, assessed Petitioner's photographic activities as "abnormal." Because the "threat analysis" security host concurred with the initial determination of "abnormal," the security protocol dictates that a security manager make contact with the guest. This was done in a discreet and unobtrusive manner. The security manager identified himself as an employee of Respondent and asked Petitioner if "he could do anything to assist him." Petitioner did not respond, so the security manager repeated himself. Respondent responded that he "was not an Arab terrorist," or words to that effect. His response was louder than conversational, and he appeared to be agitated. Because Petitioner was uncooperative, the security manager called a uniformed law enforcement officer, an Orange County, Florida, deputy sheriff, as dictated by Respondent's security protocol. The deputy sheriff asked for, and received, Petitioner's driver license. After a license check revealed that Petitioner's address was valid, he was allowed to pursue his activities in the theme park. His interaction with the security manager and deputy sheriff lasted approximately 15 minutes. Petitioner then returned to his theme park photography without limitation and spent an additional two hours in the theme park, until his camera's battery pack ran down. He did not have any further interaction with Respondent's security personnel, nor was he kept under surveillance. Petitioner returned to Respondent's theme park on December 9, 27, 28, 29 and 30, 2006 (he had an annual pass), had access to all facilities without difficulty, and had no encounters with Respondent's security personnel. The incident that occurred on December 6, 2006, was a result of Petitioner's photography being identified as "abnormal." There is no evidence that it was precipitated by his national origin or that Respondent was not exercising reasonable diligence in an effort to protect theme park visitors and employees.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Jose M. Gandia, failed to present a prima facie case of discrimination based on national origin, and, therefore, this matter should be dismissed in its entirety and a determination be entered by the Florida Commission on Human Relations that Respondent, Walt Disney World, did not violate the provisions of Chapter 760, Florida Statutes, as alleged in the Petition for Relief. DONE AND ENTERED this 13th day of March, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 13th day of March, 2008. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Jose M. Gandia 3054 Holland Drive Orlando, Florida 32825 Paul J. Scheck, Esquire Shutts & Bowen, LLP 300 South Orange Avenue, Suite 1000 Post Office Box 4956 Orlando, Florida 32802-4956
The Issue Whether Respondent committed the violations alleged in the Administrative Action? If so, what penalty should be imposed?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Licensed Premises La Catracha Fish Market and Restaurant (hereinafter referred to as the "Restaurant") is an eatery located at 1255 West 46th Street, Hialeah, Florida, that sells beer and wine pursuant to alcoholic beverage license number 23-15943, series 2-COP. The Restaurant offers both counter and table service. The counter where patrons are served (hereinafter referred to as the "Counter") is situated toward the front of the Restaurant, to the right of the entrance. Ownership and Operation of the Restaurant Respondent is now, and has been at all times material to the instant case, the owner of the Restaurant and the holder of the license that authorizes the sale of alcoholic beverages on the premises. Respondent and his wife, Juanita, are now, and have been at all times material to the instant case, actively involved in the operation of the Restaurant. They maintain a regular presence on the premises. Among other things, Juanita mans the cash register behind the Counter. From February of 1994, until the end of July of that year, when the Moyas were on an extended vacation, Respondent had "other people" run the business. When they returned from their vacation, the Moyas discovered that the Restaurant had a "new clientele." The Undercover Operation Elio Oliva and Antonio Llaneras are detectives with the Hialeah Police Department. In August and September of 1994, they participated in an undercover investigation at the Restaurant. The investigation was initiated after the Hialeah Police Department had received complaints that illegal drug and gambling activities were taking place on the premises. The August 31, 1994, Visit The undercover operation began on August 31, 1994. On that date, Oliva and Llaneras, dressed in civilian attire, went to the Restaurant to see if they would be able to make a controlled buy of narcotics. Upon entering the Restaurant, they walked over to the Counter and sat down. From their vantage point at the Counter, Oliva and Llaneras observed a number of patrons walk up to another patron, Antonio Rosales, 1/ hand him money and receive in return a clear plastic bag containing a white powdery substance. After approximately 20 minutes, Oliva approached Rosales and asked him if he had any cocaine to sell. Rosales responded in the negative, but directed Oliva to another patron in the Restaurant, from whom Oliva purchased a clear plastic bag containing, what the patron represented was, a half of a gram of powdered cocaine. The transaction occurred at the Counter in plain view. There was no effort to conceal what was taking place. Oliva subsequently conducted a field test of the substance he had purchased at the Restaurant that day. The field test was positive for the presence of cocaine. 2/ The September 1, 1994, Visit Oliva and Llaneras returned to the Restaurant at around 8:00 p.m. on September 1, 1994. When they arrived, Rosales was at the Counter. There was a telephone on the Counter near where Rosales was seated. Rosales received incoming calls on the telephone that evening. (Employees at the Restaurant answered the telephone and handed it to Rosales, who then engaged in conversation with the caller.) Upon entering the Restaurant, Oliva noticed Rosales at the Counter and walked up to him. He told Rosales that he was interested in purchasing cocaine and then handed Rosales $20.00. Rosales thereupon pulled out from one of his pockets a clear plastic bag containing, what Rosales represented was, a half of a gram of powdered cocaine. He then gave the bag to Oliva. The transaction occurred in plain view. There was no effort to conceal what was taking place. Respondent's wife was on the premises at the time of the transaction. Oliva subsequently conducted a field test of the substance he had purchased from Rosales at the Restaurant that day. The field test was positive for the presence of cocaine. 3/ The September 2, 1994, Visit Llaneras went back to the Restaurant the following day. When he arrived, Rosales was again at the Counter. From his position near the entrance of the Restaurant, Llaneras, in a normal tone of voice, told Rosales that he wanted to buy a half of a gram of cocaine. Rosales thereupon signaled for Llaneras to sit down next to him. Llaneras complied with Rosales' request. Rosales then pulled out from one of his pockets a clear plastic bag containing a white powdery substance. Upon handing the bag to Llaneras, Rosales bragged, rather loudly, that it was "good stuff." The transaction occurred in plain view. There was no effort to conceal what was taking place. Respondent and his wife were behind the Counter at the time of the transaction. Llaneras subsequently conducted a field test of the substance he had purchased from Rosales at the restaurant that day. The field test was positive for the presence of cocaine. The substance was later analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of .3 grams of cocaine. The September 6, 1994, Visit On September 6, 1994, Llaneras returned to the Restaurant, accompanied by Oliva. On separate occasions, they each approached Rosales, who was seated at the Counter. Llaneras' September 6, 1994, Purchase When Llaneras approached Rosales, Rosales asked him if he "needed some more." Llaneras' response was to hand Rosales $20.00. Rosales then took out a folded napkin from one of his pockets and placed the napkin on top of the Counter. He proceeded to unfold the napkin. Inside the napkin were approximately 12 clear plastic bags. Each contained a white powdery substance. Rosales handed one of the bags to Llaneras. He told Llaneras that it was "good stuff." The transaction occurred in plain view. There was no effort to conceal what was taking place. Respondent's wife was behind the Counter, approximately three to four feet from Llaneras and Rosales, at the time of the transaction. Llaneras subsequently conducted a field test of the substance he had purchased from Rosales at the Restaurant that day. The field test was positive for the presence of cocaine. The substance was later analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of .3 grams of cocaine. Oliva's September 6, 1994, Purchase When Oliva approached Rosales, he handed Rosales $20.00. Rosales thereupon took out a folded napkin from one of his pockets and unfolded it on top of the Counter. Inside the napkin were approximately ten clear plastic bags, each of which contained a white powdery substance. Rosales handed one of the bags to Oliva. The transaction occurred in plain view. There was no effort to conceal what was taking place. Respondent's wife was behind the Counter, approximately six feet from Llaneras and Rosales, and was facing in their direction at the time of the transaction. The substance Oliva had purchased from Rosales at the Restaurant that day was subsequently analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of cocaine. The September 14, 1994, Visit Oliva and Llaneras next visited the Restaurant on September 14, 1994. When they arrived at the Restaurant, Rosales was seated at the Counter talking on the telephone. Oliva sat down at the Counter next to Rosales and handed him $20.00. As he had done during his previous encounter with Oliva on September 6, 1994, Rosales took out a folded napkin from one of his pockets and unfolded it on top of the Counter. Inside the napkin was a clear plastic bag containing a white powdery substance. Rosales handed the bag to Oliva. The transaction occurred in plain view. There was no effort to conceal what was taking place. Respondent's wife and the barmaids on duty were behind the Counter at the time of the transaction. The substance Oliva had purchased from Rosales at the Restaurant that day was subsequently analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of .3 grams of cocaine. The September 15, 1994, Visit Oliva and Llaneras returned to the Restaurant on the following day, September 15, 1994. Gaming Activities During their visit, they heard a loud commotion in the kitchen and went to investigate. Upon entering the kitchen, 4/ they observed several persons, including Respondent and Rosales, gathered around a table participating in a game similar to roulette. The table was round and approximately three feet in diameter. It was filled with indentations painted either black or white. A funnel was held above the center of the table through which a marble was dropped. Participants in the game bet on whether the marble would come to rest on a black or white colored indentation. If the marble landed on a white indentation, the person dropping the marble would win the money that was in the pot. If it landed on a black indentation, the other player(s) would win. The game did not require any skill to play. Its outcome was based entirely on chance. After entering the kitchen, both Oliva and Llaneras played the game. Oliva's September 15, 1994, Purchase While Oliva was in the kitchen, Rosales asked him if he "needed anything." Oliva indicated that he did and handed Rosales $20.00. In return, Rosales gave Oliva a clear plastic bag containing a white powdery substance. Oliva and Rosales each spoke in a normal tone of voice during the exchange. Respondent was among those who were in the kitchen at the time of the transaction. The substance Oliva had purchased from Rosales at the Restaurant that day was subsequently analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of .3 grams of cocaine. Llaneras' September 15, 1994, Purchase Llaneras also made a buy from Rosales in the kitchen. Rosales initiated the transaction. He asked Llaneras if he needed any cocaine. Llaneras responded in the affirmative and gave Rosales $20.00, in return for which Llaneras received from Rosales a clear plastic bag containing a white powdery substance. Llaneras and Rosales each spoke in a louder than normal tone of voice during the exchange. Respondent was in the kitchen a few feet away from Llaneras and Rosales when the transaction took place. Llaneras subsequently conducted a field test of the substance he had purchased from Rosales at the Restaurant that day. The field test was positive for the presence of cocaine. The substance was later analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of .2 grams of cocaine. The September 16, 1994, Visit The next day, September 16, 1994, Oliva and Llaneras came back to the Restaurant. During their visit on this date, they each made buys from Rosales. Oliva's September 16, 1994, Purchase Rosales was at the Counter talking with Respondent's wife when Oliva approached him. After greetings were exchanged, Rosales asked Oliva if he "needed anything," in response to which Oliva handed Rosales $20.00. Rosales then gave Oliva a clear plastic bag containing a white powdery substance. Oliva and Rosales each spoke in a normal tone of voice during the exchange. The substance Oliva had purchased from Rosales at the Restaurant that day was subsequently analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of .2 grams of cocaine. Llaneras' September 16, 1994, Purchase Rosales was in the kitchen when Llaneras approached him and inquired about purchasing a half of a gram of powdered cocaine. After Llaneras tendered the money needed to make the purchase, Rosales gave him a clear plastic bag containing a white powdery substance. Llaneras and Rosales each spoke in a louder than normal tone of voice during the exchange. Respondent was in the kitchen, approximately three to four feet away from Llaneras and Rosales, when the transaction took place. Respondent's wife was also nearby. Llaneras subsequently conducted a field test of the substance he had purchased from Rosales at the Restaurant that day. The field test was positive for the presence of cocaine. The substance was later analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of .2 grams of cocaine. The September 22, 1994, Visit Oliva and Llaneras paid separate visits to the Restaurant on September 22, 1994. During their visits, they each made buys from Rosales. Oliva's September 22, 1994, Purchase Rosales was at the Counter talking with Respondent's wife when Oliva walked up to him. Rosales interrupted his conversation with Respondent's wife to ask Oliva if he "needed anything." In response to Rosales' inquiry, Oliva handed Rosales $20.00. Rosales then handed Oliva a clear plastic bag containing a white powdery substance. Oliva and Rosales each spoke in a normal tone of voice during the exchange. Respondent's wife was behind the Counter, approximately four to five feet from Oliva and Rosales, when the transaction took place. The substance Oliva had purchased from Rosales at the restaurant that day was subsequently analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of .3 grams of cocaine. Llaneras' September 22, 1994, Purchase Llaneras encountered Rosales as Rosales was leaving the Restaurant. Rosales asked Llaneras if he "needed anything." Llaneras responded in the affirmative. Rosales, in turn, told Llaneras to wait at the Counter. Rosales then left the Restaurant. He returned shortly thereafter with a clear plastic bag containing a white powdery substance, which he handed to Llaneras. The transaction took place in plain view of Respondent's wife, who was approximately three feet away behind the Counter. Respondent was on the premises at the time of the transaction. Llaneras subsequently conducted a field test of the substance he had purchased from Rosales at the Restaurant that day. The field test was positive for the presence of cocaine. The substance was later analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of .3 grams of cocaine. Llaneras' September 28, 1994, Visit Llaneras next visited the Restaurant on September 28, 1994. Rosales was seated at the Counter when Llaneras entered the Restaurant. He saw Llaneras enter and walked up to him. Llaneras greeted Rosales by telling Rosales, in a normal tone of voice, that he wanted to purchase cocaine. He then handed Rosales $20.00. In return, Rosales gave Llaneras a clear plastic bag containing a white powdery substance. Respondent's wife was behind the Counter when the transaction took place. Respondent was on the premises. Llaneras subsequently conducted a field test of the substance he had purchased from Rosales at the Restaurant that day. The field test was positive for the presence of cocaine. The substance was later analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of .2 grams of cocaine. Oliva's September 29, 1994, Visit Oliva returned to the Restaurant on September 29, 1994. He met Rosales at the Restaurant. As was his usual custom when he conversed with Oliva, Rosales asked if Oliva "needed anything." As was his customary response to such an inquiry, Oliva handed Rosales $20.00. Rosales then stepped outside the Restaurant and retrieved from his car, which was parked in front of the Restaurant, a clear plastic bag containing a white powdery substance. When he returned to the Restaurant, he handed the bag to Oliva. The transaction occurred in plain view at the Counter. There was no effort to conceal what was taking place. Oliva and Rosales each spoke in a normal tone of voice during the exchange. Respondent's wife was behind the Counter at the time of the transaction. Respondent was on the premises. Respondent's Responsibility for Drug Transactions on Licensed Premises Although Respondent may not have been directly involved in any of the above-described sales of cocaine that took place at the Restaurant during the Hialeah Police Department's undercover operation and he may not have even been on the licensed premises at the time of some of these sales, given the persistent and repeated nature of the transactions and the open manner in which they were made, the inference is made that Respondent either fostered, condoned, or negligently overlooked them.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order finding Respondent guilty of the violations alleged in Counts 1 and 3 through 12 of the Administrative Action and penalizing Respondent therefor by revoking his alcoholic beverage license number 23-15943, series 2-COP. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 11th day of August, 1995. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1995.
The Issue The issue before DOAH is a determination of the amount of attorney’s fees and costs to be awarded for the administrative proceedings in Brooklyn Luncheonette, LLC v. Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, Case No. 09-1973 (DOAH October 23, 2009).
Findings Of Fact On October 23, 2009, the undersigned ALJ of DOAH issued a Summary Final Order in the case of Brooklyn Luncheonette, LLC v. Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, Case No. 09-1973 (DOAH October 23, 2009), in which it was held that Florida Administrative Code Rule 61A-3.0141(2)(a)2., “promulgated by the Department of Business and Professional Regulation, and its directive that the square footage making up the licensed premises of an SRX license be “contiguous,” constitutes an invalid exercise of delegated legislative authority “that cannot be relied upon by Respondent to deny the issuance of an SRX license to Petitioner.” No appeal was taken of said Order and the license was issued. In the Joint Stipulation Regarding Attorney’s Fees, Respondent waived its right to demonstrate that its actions were justified or that special circumstances exist which would make the award unjust. Based on a review of the underlying file, the affidavits of the attorneys filed with the petition, the Stipulation filed herein, and the procedure for calculating the lodestar figure set forth in Rowe, Harold F. X. Purnell and Maggie M. Schultz’s attorney’s fees totaled $16,301.25. These fees are determined to be reasonable, and no adjustment is warranted. Based on the affidavits and Stipulation filed herein, Petitioner has established that the costs of pursuing the administrative proceeding disputing the validity of the rule challenged totaled $408.47.
