The Issue The Department adopts and incorporates in this Final Order the Statement of Issues contained in the Recommended Order.
Findings Of Fact Respondent has submitted two (2) exceptions to the Hearing Officer's Findings of Fact in the Recommended Order. These two exceptions are rejected for the reasons set forth below. Respondent's First Exception-- Finding of Fact No. 5: The Hearing Officer's finding that Rebos Club does not control the hot-line is supported by substantial competent evidence. Testimony indicated that Rebos Club does not provide counseling training to the employees or volunteers that answer the phone. Volunteers or employees handle each call using their own discretion-- they do not follow procedures or guidelines established by Rebos Club. This exception is therefore rejected. Respondent's Second Exception-- Finding of Fact No. 5: The statement as to the nature of "12th step calls" is not relevant, and is therefore rejected. RULINGS ON EXCEPTIONS TO CONCLUSIONS OF LAW Respondent has submitted two (2) exceptions to the Hearing Officer's Conclusions of Law in the Recommended Order. These two exceptions are rejected for the reasons set forth below. Respondent's First Exception-- Conclusion of Law No. 32: The Hearing Officer's findings that Rebos Club itself does not provide counseling services to alcoholics or their families, and that it does not offer active intervention has been revised in this Final Order's modification of the Hearing Officer's Conclusion of Law Number 32. This exception therefore, now is not relevant. Respondent's Second Exception- Conclusion of Law No. 34: The Hearing Officer's findings that Rebos Club does not provide the direct services required by statute and does not spend in excess of 50 percent of its expenditures directly towards a referenced charitable concern has been revised in this Final Order's modification of the Hearing Officer's Conclusion of Law Number 34. This exception is now, therefore, not relevant.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Pinellas Rebos Club's application for reissue of a sales tax exemption certificate be granted. RECOMMENDED this 8th day of February, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 8th day of February, 1996. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 95-1800 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Accepted and incorporated herein. Accepted. - 8. Accepted and incorporated herein. Accepted. - 12. Accepted and incorporated herein. 14. - 17. Accepted and incorporated herein. 18. - 22. Accepted and incorporated herein. First clause rejected. Balance accepted. Accepted and incorporated herein. - 28. Accepted and incorporated herein. Accepted and incorporated herein. Not a proper Finding of Fact. More a statement of agency rule interpretation. FOR THE RESPONDENT: Accepted and incorporated but also a statement of the law. & 3. Accepted and incorporated herein. Not a proper Finding of fact but more a comment on the nature of the evidence. Accepted and incorporated herein. & 7. Accepted and incorporated herein. Accepted but not of major evidentiary import. & 10. Accepted and incorporated herein. Accepted and incorporated herein. & 13. Accepted and incorporated herein. 14. & 15. Accepted. COPIES FURNISHED: Nancy Francillon, Esquire Olivia P. Klein, Esquire Office of the Attorney General The Capitol - Tax Section Tallahassee, Florida 32399-1050 Carl A. Schuh, Esquire 256 3rd Street North St. Petersburg, Florida 33701 Larry Fuchs Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100 Linda Lettera General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100
The Issue Whether Petitioner demonstrated that the Ahmed Temple No. 37 Grenadier & Shrine Club, Incorporated (the “Grenadier Club”), employed 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, thus making it her “employer” for purposes of the Florida Civil Rights Act of 1992 (“the Act”). If Petitioner proves that the Grenadier Club is an employer under the Act, then a second hearing will be scheduled on the issue of whether she was subject to an unlawful employment practice as a result of the Grenadier Club maintaining a sexually-hostile work environment.
Findings Of Fact Based on the stipulated facts, the testimony and documentary evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Stipulated Facts Prince Hall is the first African-American Masonry, established in Boston, Massachusetts. The Ancient Egyptian Arabic Order Nobles of the Mystic Shrine of North and South America and its Jurisdictions, Inc. (the “Imperial”), is the international Prince Hall of Shriners, a Masonic society, established in 1893. The Imperial Potentate, elected by its members, serves as the head member of the Imperial. 1 Petitioner’s Proposed Recommended Order was filed after 5:00 p.m., and docketed at 8:00 a.m. on March 9, 2021. It is, nonetheless, deemed to have been timely filed and considered as such. 2 Section 760.10 has been unchanged since 1992, save for a 2015 amendment adding pregnancy to the list of classifications protected from discriminatory employment practices. Ch. 2015-68, § 6, Laws of Fla. Likewise, section 760.02 has been unchanged since 1992, save for the addition of a definition for the term “public accommodations” in 2003. Ch. 2003-396, § 4, Laws of Fla. Desert of Florida Temples and Courts (the “Desert”) operates at the state level, and is composed of approximately 25 local temples in the state of Florida, including Ahmed Temple No. 37. Ahmed Temple No. 37 (hereinafter referred to as the “Temple”) is the local temple for members in Tallahassee, Florida. The Illustrious Potentate serves as the head member of the Temple. The Imperial, the Desert, and the Temple are membership-based organizations. The Grenadier Club is a social-club-and-bar business for persons 25 years of age and older. The Grenadier Club is managed and controlled by a Board of Governors (the “BOG”). The BOG is composed of the Chairman, Vice Chairman, Treasurer, Secretary, and five additional members of the Temple. Members of the Temple vote to elect members of the BOG. Members of the BOG vote to elect the BOG Chairman. The Illustrious Potentate of the Temple is the Ex- Officio Chairman of the BOG. Five voting members of the BOG constitute a quorum for the transaction of business. At all times relevant, the BOG employed a manager who oversaw the operational management of the Grenadier Club. At all times relevant, the Grenadier Club paid all of its employees’ salaries. At all times relevant, the Grenadier Club paid all of the Grenadier Club’s expenses. At all times relevant, the Grenadier Club kept and maintained its own books and records separate and apart from the Imperial, the Desert, and the Temple. At all times relevant, the Grenadier Club filed its own tax returns separate and apart from the Imperial, the Desert, and the Temple. At all times relevant, 25 percent of the Grenadier Club’s monthly net revenue was submitted to the Temple to be used for charity. At all times relevant, the Grenadier Club paid the Imperial a $250.00 annual operational fee. In December of 2018, Henry Parker was the Deputy of Oasis for the Desert, which served as a conduit between the Temple and the Imperial. Mr. Parker was also a member of the Temple. In December of 2018, Mr. Parker was designated by the then-Imperial Potentate to remove the then-Illustrious Potentate of the Temple and the Chairman of the BOG and to take over operations of Grenadier Club. Thereafter, Mr. Parker unilaterally, without approval, input, or vote by members of the Temple, appointed members to serve on the BOG. From December of 2018 to August of 2020, Mr. Parker, as a member of the Temple, had total oversight over Grenadier Club operations. From December of 2018 to August of 2020, the Grenadier Club’s operations did not change. From December of 2018 to August of 2020, there were no additional restrictions on the Grenadier Club at the direction of the Imperial. From December of 2018 to August of 2020, when Mr. Parker was acting as the overseer of Grenadier Club, Mr. Parker did not exert any more control over the Grenadier Club employees than the Temple would have. From December of 2018 to August of 2020, when Mr. Parker was acting as the overseer of Grenadier Club, Mr. Parker did not impose any additional financial requirements on the Grenadier Club. Facts Adduced at Hearing The Temple meets at a building located in Frenchtown, a locally well- recognized area near downtown Tallahassee. The Grenadier Club operates under the auspices of the Temple from a location separate from the Temple. The current operating hours for the Grenadier Club are Saturdays from 9:00 p.m. until 2:00 a.m., and Mondays from 7:00 p.m. to 12:00 a.m. However, Dr. Hudson indicated that the Grenadier Club has been operating “on and off” since the Covid-19 pandemic. There was no evidence of the operating hours in 2018.3 At all times material to this proceeding, Petitioner was directly employed by the Grenadier Club. She worked at the Grenadier Club as a server/bartender from April 2018 until August 2018. The members of the Temple, including the BOG, are unpaid members/volunteers. The alleged actions of the then-Chairman of the BOG towards Petitioner form the basis for her Charge of Discrimination and Petition for Relief. The threshold issue in this proceeding is whether the Grenadier Club had the requisite number of employees to bring it under the jurisdiction of the Act as Petitioner’s “employer.” If Petitioner fails in her proof of that issue, any discussion of acts that may have constituted sexual harassment or resulted in the creation of a sexually-hostile work environment become superfluous and unnecessary. The Book of Laws The Book of Laws consists of the Constitution, Bylaws, and General Laws governing the Ancient Egyptian Arabic Order Nobles of the Mystic Shrine of North and South America and its Jurisdictions, Inc. The Book of Laws establishes the hierarchy of the organizational entities that comprise the Imperial, the Desert, and the Temples. Although there is a hierarchy, and a general means established to ensure cohesiveness, uniformity, and compliance with the goals, customs, and governance of the organization, day- to-day management and administration is performed at the Temple level. 3 The allegations in the Petition for Relief suggest that the operating “shifts” were greater in 2018 than they are now. However, the evidence adduced at the hearing was not sufficient to establish the 2018 operating hours. The Book of Laws provides that the Imperial has a committee “to encourage, develop, and promote the establishment of Grenadier Clubs among the several Temples,” and that “[t]he committee shall help improve club operations and accountability through established guidelines approved by the Imperial Potentate and the Imperial Divan.” A group of Nobles in a Temple is allowed to operate a Grenadier Club only by “first obtaining permission and a special dispensation from the Imperial Potentate.” Once such has been received, membership in the Grenadier Club is limited to Nobles in good standing in their respective Temples, and all operations related to a Grenadier Club are within the exclusive control of the Temple, through the elected BOG. See, Book of Laws, Appendix II - Uniform Bylaws for Temples, Article XII, Grenadier Clubs. Facts Regarding the Grenadier Club as an “Employer” The Grenadier Club is incorporated as a legal entity unto itself. The evidence adduced at the hearing demonstrates that the Grenadier Club has paid employees, but the number of employees was not proven. The Grenadier Club occasionally hires DJs and private security. The evidence established that they are not employees, but rather are independent contractors. The number of independent contractors and their schedules was not proven. As set forth in the stipulated facts above, The Grenadier Club is managed and controlled by the nine-member BOG, which consists exclusively of members of the Temple. The BOG employed a manager who oversaw the operational management of the Grenadier Club. There was no competent substantial evidence offered or received that the Grenadier Club employed 15 or more employees for each working day in each of 20 or more calendar weeks in the calendar year during Petitioner’s employment at the Grenadier Club or the year preceding her employment at the Grenadier Club. Thus, based on the evidence adduced at hearing, the Grenadier Club is not an “employer” as defined by section 760.10. In order to prove the threshold element of her claim for relief, Petitioner must thus establish that employees of other entities should be imputed to the Grenadier Club due to integrated activities or common control of the Grenadier Club’s operations or employees. The Temple The evidence adduced at the hearing demonstrates that the Temple has no employees. It is an organization operated entirely by its unpaid, volunteer members. The members of the BOG are members of the Temple. The evidence adduced at the hearing demonstrates that the members of the BOG are not employees of either the Temple or the Grenadier Club. The Book of Laws provides that, subject to the mandates of the Temple, the BOG has “sole control and management of the [Grenadier] Club, its property and employees.” The Temple, through the BOG, makes all employment decisions for the Grenadier Club, and has exclusive control over the pay and the terms and conditions of Grenadier Club employees. The Book of Laws provides that, subject to the mandates of the Temple, the BOG may employ a manager and other employees, determine their duties, and fix their compensation. The BOG, consisting of and elected by members of the Temple, hired the manager of the Grenadier Club. Decisions regarding employee hiring, supervision, terms and conditions of employment, discipline, and firing of Grenadier Club employees were the exclusive responsibility of the BOG and the Grenadier Club manager. The Desert The evidence adduced at the hearing demonstrates that the Desert of Florida has no paid employees. It is an organization operated entirely by its unpaid, volunteer members. The Desert has its own organizational and management structure separate from that of the Imperial, the Temple, and the Grenadier Club. The current Deputy of the Desert, who was the individual filling that position during the period of Petitioner’s employment at the Grenadier Club, is not a member of the Temple. The Imperial The Imperial is an organization international in its scope. It maintains its headquarters in Memphis, Tennessee. Mr. Parker understood -- though not based on averred personal knowledge -- that the organization as a whole has approximately 350,000 members from 196 temples in the U.S.A., Canada, Brazil, Bolivia, Mexico, Panama, the Philippines, Europe, and Australia. That estimate is accepted not for the truth of the specific matters asserted, but as providing a general sense of the size and scope of the organization. The evidence adduced at the hearing demonstrates that the Imperial has employees that work for the Imperial Council. The number of employees was not proven, and there was no competent substantial evidence offered or received that the Imperial employed 15 or more employees for each working day in each of 20 or more calendar weeks in the calendar year during Petitioner’s employment at the Grenadier Club or the year preceding her employment at the Grenadier Club. Relationship of the Imperial and the Desert to the Grenadier Club The Book of Laws vests no authority for the management or operation of the Grenadier Club in either the Desert or the Imperial. Petitioner introduced no evidence that either the Grenadier Club or the Temple, through the BOG, delegated any control of traditional rights over its employees to any other entity. The evidence adduced at the hearing demonstrates that neither the Desert nor the Imperial have operational control over the Grenadier Club. The Desert and the Imperial have no shared management of the Grenadier Club, and have no role in the hiring or firing of employees of the Grenadier Club. Neither the Desert nor the Imperial had supervisory control over Petitioner or her work schedule. No member of the Desert or the Imperial evaluated Petitioner’s performance or disciplined Petitioner. Employees of the Grenadier Club are paid by the Grenadier Club, and not by the Desert or the Imperial. The Desert neither gives nor receives funds from the Grenadier Club. Other than the payment of the $250.00 annual operational fee from the Grenadier Club to the Imperial, the Imperial neither gives nor receives funds from the Grenadier Club. There was no evidence offered or received that the Grenadier Club has common officers, directors, or employees with either the Desert or the Imperial. There was no evidence offered or received that the Grenadier Club shares or comingles bank accounts with either the Desert or the Imperial.
Recommendation Upon the consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations dismissing the Employment Complaint of Discrimination, based upon Petitioner's failure to meet her burden of proof to establish that Respondent, Ahmed Temple No. 37 Grenadier & Shrine Club, Incorporated, is an “employer” as defined in section 760.02(7), either through its own employees or through attribution. DONE AND ENTERED this 12th day of March, 2021, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Kayla Elizabeth Platt Rady, Esquire Rumberger, Kirk & Caldwell, P.A. 101 North Monroe Street, Suite 120 Tallahassee, Florida 32301 Louis J. Baptiste, Esquire Webster + Baptiste, PLLC 1615 Village Square Boulevard., #5 Tallahassee, Florida 32309 Dorian R. Glover, Esquire Ancient Egyptian Arabic Order Noble Mystic Shrine 600 Franklin Avenue Post Office Box 8089 Garden City, New York 11530 Linda Bond Edwards, Esquire Rumberger, Kirk & Caldwell P.A. 101 North Monroe Street, Suite 120 Tallahassee, Florida 32301 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399
Findings Of Fact General. The Respondent, Cliff Hayden, Jr., served as the Executive Director of the Hillsborough Area Regional Transit Authority (hereinafter referred to as the "Authority"), from January, 1985, until January 19, 1990. Stipulated Fact I. 3. The Respondent was the Executive Director of the Authority at all times pertinent to the Complaint at issue in this proceeding. Stipulated Fact II. 4. The Authority was established pursuant to Part V of Chapter 163, Florida Statutes, which provide for the establishment of regional transportation authorities. Stipulated Fact I. 2. The Respondent was employed by the Authority for 13 years prior to his employment as the Executive Director. John King served as a member of the Board of Directors of the Authority (hereinafter referred to as the "Board"), the governing body of the Authority, from 1982 through 1987. From 1987 through 1989, Mr. King served as Chairman of the Board. Stipulated Fact I. 16. Expenditures at the Tampa Club. During the 1980's the Authority began efforts to build a bus terminal on Marion Street in Tampa, Florida. Initially, the Authority was not sensitive to the concerns about the proposed terminal of business owners on Marion Street. This insensitivity caused the Authority to have difficulties with business owners in the area which the Board believed needed to be rectified in order to effectively carry out the responsibilities of the Authority. During 1985 or 1986, as a result of the difficulties with Marion Street business owners, the Chairman of the Board, Charles Banks, suggested that a membership be established at a Tampa social club that served meals. Stipulated Fact I. 4. As a result of Mr. Banks' suggestion, the Respondent checked into the cost of joining several Tampa social clubs that served meals, including one known as the Tampa Club. See Stipulated Fact I. 4. Following discussion of the Board at a Board meeting, the Board unanimously approved the opening of an account for use by the Executive Director at the Tampa Club. Stipulation of Fact I. 4. and 5. The Board authorized and directed the Respondent to open an account at the Tampa Club. The Board also authorized and directed the expenditure of Authority funds to reimburse the Respondent for the initial membership fee of the Tampa Club, monthly charges for the membership in the Tampa Club and the cost of meals incurred by the Respondent at the Tampa Club for meals at which Authority business was discussed by the Respondent. The Respondent was authorized by the Board to use the Tampa Club for personal purposes if he reimbursed the Authority for any such expenditures. Stipulated Fact I. 7. The Respondent did not use the Tampa Club for any personal purposes. The Respondent was a member of the Tampa Club from February, 1986, until September 30, 1989, his entire term as Executive Director. Stipulated Fact I. 8. and 11. Membership in the Tampa Club was an employment benefit and part of the Respondent's economic compensation from the Authority. Stipulated Fact I. 12. This finding of fact was stipulated to by the parties, although evidence was presented by the Advocate suggesting a different conclusion. That evidence is rejected because of the agreement of the parties that Stipulated Fact I. 12. is an established fact. The Board also established and approved a public-relations account during 1985 or 1986. The public-relations account was to be used by the Executive Director and Authority Board members in furtherance of Authority business. Funds were to be paid out of this account for Authority business- related social activities, including expenditures incurred by the Respondent at the Tampa Club. Stipulated Fact I. 14. The public-relations account, like the membership in the Tampa Club, initially was established because of the difficulties with Marion Street business owners. The Respondent was directed by the Board to "hold hands" with the Marion Street business owners and to use the Tampa Club and the public-relations account for that purpose. Pursuant to the direction of the Board, the Respondent paid the Tampa Club $1,500.00 as a membership entrance fee. The Respondent was reimbursed by the Authority for this expenditure. Stipulated Fact I. 6. During the three years and seven months that the Respondent was a member of the Tampa Club the Authority paid a total of $5,854.08 for food and beverages charged by the Respondent at the Tampa Club. Stipulated Fact I. 8. and 9. The Authority also paid monthly membership charges of the Tampa Club during the time that the Respondent was a member. Monthly charges ranged from $40.00 to $65.00 per month. Stipulated Fact I. 10. Amounts expended out of the public-relations account, including amounts paid to the Tampa Club, were included in the Authority's Board-approved budget. During the fiscal year ending September, 1988, the amount of the public-relations account approved by the Board was $3,023.47. During the fiscal year ending September, 1989, the amount of the public-relations account approved by the Board was $4,215.89. Stipulated Fact I. 15. The Authority's budget was prepared by the staff of the Authority. The public-relations account was included as a separate item in the budget. The particular expenditures to be paid from the public-relations account, including amounts to be paid for the Tampa Club, were not specifically identified in the budget submitted to the Board for approval. Information concerning the specific expenditures to be covered by the public-relations account was, however, available to Board members. The weight of the evidence failed to prove that the manner in which the public-relations account was presented to the Board for approval and review was inconsistent with generally accepted accounting principles. The Board reviewed and approved the Authority's budget, including the public-relations account. Although the Board did not closely scrutinize the budget, the weight of the evidence failed to prove that any attempt was made by the Respondent or any other person on his behalf to conceal information about the public-relations account or his use of the Tampa Club from the Board or the public. The Board's failure to closely review the Authority's budget was a problem of the Board and not the Respondent. All expenditures made by the Authority out of the public-relations account, including amounts paid to the Tampa Club, were part of the records of the Authority and constituted public records available to the public and the members of the Board. Each month, approximately three to four days before each Board meeting, Board members were provided with a monthly summary of Authority expenditures. This summary included the total amount expended from the public- relations account, including amounts paid to the Tampa Club. The Board was not provided with a detailed break-down of each expenditure from the public- relations account. The weight of the evidence failed to prove, however, that the manner in which the account was reported was inconsistent with generally accepted accounting principles or that any attempt was made by the Respondent or any other person on his behalf to conceal information about the public-relations account or his use of the Tampa Club from the Board or the public. All expenditures from the public-relations account, including those for the Respondent's use of the Tampa Club, were reviewed by the Respondent. The expenditures were paid by the Authority's accounting staff after approval by the Respondent. Expenditures from the public-relations account for lunch and breakfast charges at the Tampa Club made by the Respondent were also authorized by the John King, Chairman of the Board. Stipulated Fact I. 17. In 1989, John King was alleged in Commission Complaint No. 89-58, to have misused his office by charging to a credit card issued to him by the Authority meals taken with business associates. This Complaint was dismissed by the Commission with a finding of no probable cause. Stipulated Fact I. 18. The Respondent's membership in the Tampa Club was used solely for business lunches and breakfasts by the Respondent. Stipulated Fact I. 13. The Respondent only charged food and beverages to the Tampa Club for payment by the Authority for food and beverages consumed while discussing Authority business with members of the Board and staff members, or guests of the Authority and staff members. Staff members only accompanied the Respondent to the Tampa Club if a Board member or guest of the Authority was present with the Respondent. The Respondent took Board members to the Tampa Club approximately 30% of the time and guests of the Authority approximately 70%. The weight of the evidence failed to prove that the Respondent charged any amount to the Authority for use of the Tampa Club that was not directed and authorized by the Board. Although the Respondent benefited from the food and beverages he consumed at the Tampa Club, the weight of the evidence failed to prove that the Respondent used of the Tampa Club with the intent of securing a special privilege, benefit or exemption for himself or others or that his action was taken with a wrongful intent. The Respondent was carrying out the instructions of the Board concerning how the Tampa Club was to be used. Expenditures for Golf. Randolf Kinsey is a member of the Authority's Board. Mr. Kinsey has been a member of the Board since approximately 1987. Mr. Kinsey has, as a member of the Board, been an advocate for the use of Black businesses by the Authority and the hiring of Blacks by the Authority. At times Mr. Kinsey has advocated for Blacks to the exclusion of other minorities. During all times relevant to this proceeding, Mr. Kinsey and the Respondent did not get along. A great deal of friction has developed between Mr. Kinsey and the Respondent. Following a Board or committee meeting in 1988, John King and legal counsel for the Authority met with the Respondent concerning the problems between Mr. Kinsey and the Respondent. During this meeting Mr. King, who was then the Chairman of the Board, told the Respondent to resolve the problem with Mr. Kinsey. It was suggested by Mr. King that the Respondent "get Mr. Kinsey in a more relaxed environment" and "mend the broken fences between them." The weight of the evidence failed to prove that Mr. King specifically suggested that the Respondent play golf with Mr. Kinsey. The Respondent contacted Mr. Kinsey and suggested lunch. When Mr. Kinsey declined lunch, the Respondent invited Mr. Kinsey to play golf. Mr. Kinsey accepted. On November 10, 1988, the Respondent and Mr. Kinsey played golf together at Northdale Golf Course in Tampa. Stipulated Fact II. 1. The greens fees charged to play golf for the Respondent and Mr. Kinsey totalled $69.01. Stipulated Fact II. 2. The Respondent charged the greens fees for himself and Mr. Kinsey on a credit card issued to him by the Authority. Stipulated Fact II. 4. The greens fees were ultimately paid by the Authority as a charge to the public-relations account. During the golf outing the Respondent and Mr. Kinsey discussed Authority business, including the hiring of a Black at the administrative level by the Authority. The Respondent is an avid golfer. The Respondent played golf approximately 10 to 15 times with other members of the Board. The Respondent did not, however, charge any of the fees attributable to these golf outings to the Authority. This fact supports a finding that the golf outing with Mr. Kinsey was not a social occasion. Because of the animosity between the Respondent and Mr. Kinsey, the only reason the Respondent played golf with Mr. Kinsey was to attempt to resolve their differences. This fact further supports a finding that the golf outing with Mr. Kinsey was not a social occasion. The weight of the evidence failed to prove that the Respondent attempted to conceal the fact that he had charged the golf outing with Mr. Kinsey to the Authority. The charges were public records. Although the Respondent benefited from the free golf outing, the weight of the evidence failed to prove that the Respondent played golf with Mr. Kinsey or charged the outing to the Authority with the intent of securing a special privilege, benefit or exemption for himself or others or that his action was taken with a wrongful intent. The Respondent reasonably believed that he was carrying out the instructions of the Chairman of the Board to resolve a problem between the Executive Director of the Authority and a Board member which was adversely impacting on the Authority.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics enter a Final Order and Public Report finding that the evidence failed to prove that the Respondent, Cliff Hayden, Jr., violated Section 112.313(6), Florida Statutes, as alleged in Complaint No. 89-127. DONE and ENTERED this 16th day of August, 1991, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 1991. COPIES FURNISHED: Virlindia Doss Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32399-1050 David M. Carr, Esquire 600 Madison Street Tampa, Florida 33602 Bonnie J. Williams Executive Director Commission on Ethics The Capitol, Room 2105 Tallahassee, Florida 32399
Findings Of Fact The Subject Property. The Applicant is the owner of approximately 799.58 acres of land (hereinafter referred to as the "Country Club Property"), located on Loch Rane Boulevard, Clay County, Florida. In the early part of 1987, the Applicant applied to rezone the Country Club Property as a planned unit development district (hereinafter referred to as a "PUD"). The Country Club Property is to be developed in phases. At issue in this proceeding is that portion of the Country Club Property other than Unit One, which consists of lots 1 through 295. Development of the Property; Government Action Relied Upon by the Applicant. Prior to approving the rezoning of the Country Club Property requested in the early part of 1987, Clay County advised the Applicant that it would be required to commit to resignalize and expand the Loch Rane/Blanding Boulevards interchange as a condition to Clay County approving the rezoning of the Country Club Property as a PUD. Clay County approved the requested rezoning of, and the master land use plan for, the Country Club Property on March 24, 1987. The master land use plan specifies that the Country Club Property will include development of the following: (a) up to 599 single-family dwelling units within the residential portion; (b) ten acres of commercial uses, including retail shops, a day-care center and a restaurant; (c) a sales center; and (d) a golf course and club facilities. Engineering plans for phase one of the proposed development were submitted to Clay County in 1987. As part of the engineering plans, the Applicant obtained permits from the Army Corps of Engineers, the St. Johns' River Water Management District and the Florida Department of Environmental Regulation. The plat for phase one of the Country Club Property was submitted to Clay County and on May 12, 1987, Clay County approved the final plat for phase one. In April, 1989, the Applicant applied for building permits for construction of the golf course clubhouse, pool facilities and the golf cart storage barn. Permits for these facilities were issued by Clay County in October, 1989. In 1991, engineering plans for phase two of the Country Club Property were submitted to Clay County. They were approved effective January 1, 1992. On February 12, 1993, Clay County issued a Vested Property Certificate for phase one of the development, Lots 1 through 295 of Unit One, pursuant to Section 20.8-6 of the Vested Rights Review Ordinance of Clay County, Florida. The Applicant's Detrimental Reliance. In reliance on Clay County's actions in approving the PUD rezoning and accompanying master plan and the engineering plans for phase one and phase two, the Applicant constructed master infrastructure improvements for the project. Improvements have included drainage, water and sewer systems, a master road system designed and sized to serve the entire development at a cost of approximately $4,972,670.00. These improvements were made between November, 1988 and April, 1990. The Applicant has also constructed the entry features for the Country Club Property, master recreational facilities, including an eighteen-hole golf course, golf course clubhouse, pool and tennis facilities and a sales center. Total costs of these improvements were approximately $7,224,917.00. These improvements were made between November, 1988 and April, 1990. Finally, the Applicant has resignalized and expanded the Loch Rane/Blanding Boulevards interchange. The cost of these improvements was approximately $72,000.00. These improvements were made between October, 1991 and January, 1992. Rights That Will Be Destroyed. Pursuant to the Clay County 2001 Comprehensive Plan, the portion of Blanding Boulevard impacted by the Country Club Property development does not have sufficient capacity to develop the property as proposed. To comply with the comprehensive plan will require considerable delays in completion of the project which will result in a substantial adverse financial impact on the Applicants. Procedural Requirements. The parties stipulated that the procedural requirements of the Vested Rights Review Process of Clay County, adopted by Clay County Ordinance 92-18, as amended by Clay County Ordinance 92-22 have been met.
Findings Of Fact Petitioners, Leon Motor Lodge, Houston Motor Lodge, and Taylor Motor Lodge, are three Georgia corporations operating motels located in Leon County, Florida, Taylor County, Florida and Escambia County, Florida, respectively. In 1982, 1983 and 1984, each hotel corporation held a franchise from Howard Johnsons. All three corporations were wholly owned by David Shapiro and Company, Inc. David Shapiro and Company, Inc., is also a Georgia corporation with its principal office in Valdosta, Georgia. David Shapiro, Victor Shapiro and Carl Shapiro are officers and directors of the parent corporation, David Shapiro and Company, Inc., and are also officers and directors of each of the three subsidiary hotel corporations. David Shapiro and Company also engages in other business activities not related to the hotel corporations. All four corporations use the accounting services of Gerald Henderson, C.P.A. Charles Hanlon, an employee of the Department, conducted an audit of David Shapiro and Company, Inc., and its wholly owned subsidiaries, Leon Motor Lodge, Houston Motor Lodge, and Taylor Motor Lodge. The audit concerned the taxable years ending September, 1982, 1983 and 1984. Mr. Hanlon's audit determinations did not treat Petitioners as a unitary business group. Paul Craft, C.P.A., was Mr. Hanlon's audit supervisor. Mr. Craft reviewed Mr. Hanlon's audit workpapers and determined that Hanlon's audit improperly disallowed Petitioners the use of a federally reported deduction and overlooked the existence of a unitary business group. After determining that Mr. Hanlon's original audit work was flawed, Mr. Craft made arrangements with the Petitioners' designated representative, Gerald Henderson, C.P.A., to personally redo Hanlon's field audit work. The field audit work was performed at Mr. Henderson's office in Valdosta, Georgia. Over a one week period, Mr. Craft reviewed the Petitioners' computer printouts of journals and ledgers as well as Petitioners' summary business records. Mr. Henderson was consulted for assistance in explaining the Petitioners' accounting controls, records organization, and in locating various records. As a result of the audit, on April 18, 1986, the Department issued revised notices of intent to make audit changes, with supporting workpapers, and delivered the same to the Petitioners' representative, Gerald Henderson. Afterwards, Gerald Henderson and Paul Craft discussed the revised audit determinations and Mr. Craft explained the audit changes to Mr. Henderson. The Department's revised notices of intent to make audit changes involved basically four audit determinations or issues. The audit determinations were: a determination that the Petitioners had not properly used three factor apportionment; a determination that David Shapiro and Company, Inc., Leon Motor Lodge, Inc., Taylor Motor Lodge, Inc. and Houston Motor Lodge, Inc. constituted a "unitary business group" for the taxable years ending 1983 and 1984; a determination that interest earned on installment sales income should be excluded from the sales factor of the apportionment formula, and; a determination that Taylor Motor Lodge could not carry-forward its net operating loss to the 1982 taxable year. 1/ The Department subsequently issued its notices of proposed assessment based upon these four revised audit changes. 2/ The Department's notices of proposed assessment were based on the revised audit work of Paul Craft and not on Ray Hanlon's original audit work. These notices of proposed assessment were timely mailed to the Petitioners. The Petitioners protested the notices of proposed assessment. Upon review of the protest, the Department issued and timely mailed a Notice of Decision to the Petitioners which sustained the Department's position on all issues. The Petitioners' petition for reconsideration resulted in the timely issuance and mailing of a Notice of Reconsideration which again sustained the Department's position and rejected the Petitioners' protest position. After the filing of the Petitioners' request for a formal administrative hearing, but prior to hearing, the Department revised the original proposed assessments. The revisions consisted of the following: the inclusion of interest on installment sales income in the apportionment fraction; and, the correction of a math error. The revisions served to reduce the total sums originally assessed by approximately $18,000.00. No new tax liability was created by these "revisions". Revised notices of proposed assessments were prepared and timely mailed to Petitioners. During taxable years ending 1982, 1983 and 1984, the Petitioners had payroll, property and sales in Florida. The payroll was attributable to employees involved in the operation of Leon Motor Lodge, Taylor Motor Lodge and Houston Motor Lodge. The sales consisted primarily of motel rents and receipts from the sale of food in the restaurants which adjoined the motels. Sales also included some installment sales income from the earlier sale of apartments and motels. The property factor consisted of the three motels and the restaurants associated with those motels. All such property was located in Florida. During the tax years in question, multi-state corporations, such as the corporations involved in this case, were subject to an income tax based on the share of that taxpayer's adjusted federal income tax which was attributable to Florida. In order to determine the amount of a taxpayer's adjusted federal income tax attributable to Florida, the legislature established a statutory three factor apportionment method whereby a taxpayers' "adjusted federal income" is apportioned among the states by reference to a weighted formula consisting of payroll, property and sales factors. The "apportioned" share of a taxpayers' "adjusted federal income" is then taxed by Florida. A taxpayer must use the statutory three factor apportionment formula unless the taxpayer can establish that the statutory three factor apportionment formula "does not fairly represent" the degree of that taxpayer's economic activity in Florida and that whatever apportionment method the taxpayer used fairly represents that taxpayers degree of economic activity in Florida. See, Sections 220.13, 214.71, Florida Statutes (1983). Petitioners used a three factor apportionment method similar to the statutory three factor apportionment method used by the Department. However, the Petitioners' method was not precisely the same method as the statutory three factor apportionment method used by the Department. The Petitioners' method, in fact, yielded a lower tax for Petitioners. No substantive evidence was submitted which demonstrated that Petitioners' departure from the statutory three-factor apportionment method was justified. Therefore, since the evidence demonstrated that Petitioners deviated from the statutory three factor apportionment method and since the evidence did not demonstrate any reason for not utilizing that statutory method, the Department's revised assessment on this issue should be sustained. For taxable years ending 1983 and 1984, Florida had enacted Section 220.03(1)(bb), Florida Statutes (1983). That section established a special type of apportionment for businesses which constituted a "unitary business group." A "unitary business group" was defined as "a group of taxpayers related through common ownership whose business activities are integrated with, are dependent upon, or contribute to a flow of value among members of the group." Factors to be looked at in determining whether a group of taxpayers constituted a unitary business group included, but were not limited to, whether there was common purchasing of equipment, common accounting facilities, common legal representation, intercompany financing, joint efforts in expanding the business, shared officers and directors, submission of monthly financial statements, a uniform management theory, or an interchange of knowledge and expertise among the companies. See Rule 12C-1.51, Florida Administrative Code, and DR-Form F- 1061, "Instructions for Filing Under the Unitary Reporting Method". When, as in this case, a parent company owns or controls 50 percent or more of the outstanding voting stock of its subsidiaries, then the taxpayers have the burden to clearly establish that they are not a unitary business. Section 220.03(1)(bb), Florida Statutes. In this case, there was common ownership among the subsidiaries in that during the pertinent taxable years ending 1983 and 1984, David Shapiro and Company, Inc., owned or controlled all of the issued and outstanding voting stock of Leon Motor Lodge, Inc., Houston Motor Lodge, Inc. and Taylor Motor Lodge, Inc. Additionally, the directors and officers of the parent corporation and the subsidiary corporations were the same individuals and these dual officers made the decisions regarding the selection of managers, and the employment and replacement of managers. The hotel corporations did not maintain offices at the motel site for any of the officers or directors of the parent corporation or any of the officers of the individual hotel corporations. When these officers visited the motels, they would use whatever office or facilities were available. Local managers were responsible for the day to day operations of that manager's hotel. The day to day operations included decisions on the hiring and firing of employees, the disciplining of employees, the salaries of employees, and the hours, duties and responsibilities of employees. The managers made all decisions with regard to the advertising and public relations for that manager's motel 3/ Each manager was authorized to write checks from the manager's account associated with that manager's hotel. Each manager wrote all checks paying for the normal operational expenses incurred by that manager's hotel. Disbursements which were typically made by the local managers included soap, toilet tissue, replacement linens, maid's uniforms, kleenex and other minor purchases such as the purchasing of one television, as well as, minor repairs to rooms if needed. Each hotel had a bookkeeper or auditor who kept the books and recorded the sales receipts and disbursements for the hotel. The evidence was not clear whether such purchases and decisions were made independently by the local manager of each hotel or whether such purchases above a certain amount of money required the local manager to confer with the officers or directors of David Shapiro and Company, Inc., in Valdosta. Additionally, there was no substantial exchange of personnel between the hotel corporations. The parent corporation did not have a training program for its managers or employees. However, Howard Johnsons' did require that the managers attend a Howard Johnsons' management school to become acquainted with the requirements of Howard Johnsons' franchise agreements. Finally, each of the hotel corporations was represented by local counsel in each of the cities where that corporation was located. However, it should be noted that the Petitioners were commonly represented at the hearing by Larry Levy. The evidence also established that the corporate minute books of Petitioners and of the parent company were commonly maintained by one law firm, Kilpatrick and Cody, in Atlanta Georgia. The cost of these common legal services was included in the management fee which David Shapiro and Company charged each of the Petitioners. Considering all of the above factors, it would appear that, at least on the surface, each hotel corporation was a separate entity from its parent corporation and from its sister corporations. However three very important pieces of evidence substantially erode the reality of this surface independence. First, all major decisions regarding the three hotel corporations were made by David Shapiro and Company, Inc. Specifically, these decisions were made by the principal officers of the Shapiro company, each of whom were members of the Shapiro family. In the words of Carl Shapiro, "all the major purchases, we did ourselves." For example, the decision to buy cash registers from NCR, rather than from another supplier, and the shopping of such a purchase was made by either Victor Shapiro or Carl Shapiro. Major purchases such as fifteen beds, television sets, air conditioners, or the decision to incur the expenses involved in refurbishing one of the hotels to conform to Howard Johnsons' standards 4/ were made by the officers of the Shapiro company and not by the local managers of the three hotel corporations. Major repairs and purchases such as was caused at the Leon Motor Lodge by severe flooding were also made by the officers of the parent corporation. 5/ One prime example of the control of the parent corporations over the hotel subsidiaries occurred when the hotel corporations purchased the restaurant associated with that hotel. Originally, the Petitioners only operated the motels. The restaurant at each motel was operated by Howard Johnsons. However, prior to the period of the audit, Howard Johnsons, for business reasons, decided it would no longer operate the restaurants associated with its hotel franchises. While the purchase of the restaurants was not required by Howard Johnson's, the franchise owner/operators were forced to purchase and take over the operation of the restaurants in order to avoid having an empty and closed restaurant in front of the motels. David Shapiro and Company, Inc., believed that such closed restaurants in front of the motels would cause the operation of the motels to suffer drastically. Therefore, the Shapiros' decided that each hotel corporation would purchase and assume operation of that motel's adjoining restaurant. After the restaurants were acquired and operation commenced the restaurants were at all times managed by a manager who was a different person from the manager of the motel. Each restaurant manager had authority and control over that restaurant's operation similar to the managers of each hotel. Likewise, separate bank accounts and separate books of receipts and expenditures were maintained for each restaurant. Second, the bank accounts of each motel in each city consisted of (1) the manager's account which was sometimes referred to as a petty cash account; (2) the main account which was the account into which receipts from sales and rental of rooms were deposited on a daily basis; and (3) the bank credit card account which received credit card deposits. As indicated earlier, the managers of each subsidiary motel only had the ability to sign checks on a separate subsidiary account which was referred to as a petty cash account or managers account. The normal operational expenses incurred by the motel were written by the managers out of these manager's accounts. Funds in the manager's accounts varied and could range from $7,500.00 to as high as $12,000.00 or $15,000.00. Importantly, the manager's account for each hotel would be reimbursed from the hotel's main account on a regular basis. The checkbook for each hotel's main account, was maintained at the offices of David Shapiro and Company, Inc. in Valdosta, Georgia. The managers lacked any authority to write checks upon these accounts. The managers would ordinarily exhaust all funds in that manager's account in one week to ten days. Therefore, replenishment of the funds in a manager's account occurred every week to ten days. The manager's accounts required replenishment because deposits from sales and rentals were made daily into the main accounts. All of the main accounts were controlled in Valdosta by David Shapiro and Company. Daily, each manager or bookkeeper submitted a list of receipts and disbursements together with statements of purchases to Jerri Tomlinson, the office manager for Shapiro and Company, Inc. Ms. Tomlinson would mathematically verify the information she received from the hotels and computer code these records. These accounting reports and ledgers were then compiled by David Shapiro and Company's C.P.A. into computer printouts. These printouts were then delivered to Shapiro and Company, in Valdosta Georgia, which retained the data compilations for its records. Gerald Henderson's firm not only compiled the data described above, but it also functioned as the auditor for the parent and its subsidiary corporations. By this uniform system of management and integrated accounting controls, David Shapiro and Company, Inc. not only had access to vital management information, but also exercised the ability to control the level or amount of cash in each manager's petty cash account. In addition to the daily data it received, David Shapiro and Company, Inc., regularly reviewed a weekly report submitted by each hotel's manager and then determined how much money to transfer into that manager's account from the main account and whether the amount requested by management was "warranted." There is no question that by maintaining main accounts at the parent level, David Shapiro and Company, Inc. was able to directly control the expenditures of each hotel. That is, the main accounts were not only used to replenish the managers' operating accounts, but also, to directly control that manager's ability to make purchases for the hotel. Third, the parent corporation and its subsidiaries engaged in financially helping each other out when one corporation's sales were not sufficient to meet its overhead. This intercompany financing took the form of loans between and among the parent corporation and the subsidiary corporations. All the loans were interest bearing loans and met Federal IRS requirements. All of these loans were made at below market rate. An example of this intercompany financing occurred during the audit period. Leon Motor Lodge was losing money, and Taylor and Houston Motor Lodges were making money. There were several loans back and forth between the subsidiary companies. In referencing these loans, Carl Shapiro stated in his deposition that "there was a lot of them, and there were some big ones. I guess ten or fifteen or twenty thousand sometimes. It could amount to that much." This intercompany financing creates a material "flow of value" between and among the parent corporation and the subsidiary companies and demonstrates the unitary nature of Petitioners' businesses. Additionally, all three of the facts mentioned above, demonstrate that Petitioners applied a routine management theory to the hotel corporations in that routine day to day decisions were delegated to subsidiary managers but ultimate control over the family business was retained at the David Shapiro and Company level. This uniform management was accomplished through family control over main accounts, control over major purchasing or expansion decisions, control over the hiring and firing of local on site managers, and the level of funds to be entrusted to any given manager. Likewise, the shared officers of the subsidiary companies resulted in an interchange of knowledge and expertise among the corporations since the experiences learned by the Shapiro family in managing one hotel could be directly applied to the operations of the other corporations. Finally because of the Shapiro's uniform management and integrated accounting controls, significant economies of scale resulted. To begin with, the companies had the ability to make intercompany loans at below market rates. In addition, by maintaining the bank accounts of each hotel at the same bank, the companies enjoyed an economy of scale which resulted in discounts on banking service charges in excess of the discounts available to any of the subsidiaries individually. Similar economies of scale resulted in discounts to Petitioners on insurance rates. These discounts create a "flow of value" resulting from the unitary operations or pooling of resources by Petitioners. Clearly when all the facts are considered, Petitioners constituted a unitary business group as defined in Section 220.03(1)(bb), Florida Statutes. Therefore, the Department's revised assessments on this issue should be sustained.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly recommended that the Department of Revenue enter a Final Order sustaining the Department's revised assessments against Leon Motor Lodge, Inc., Taylor Motor Lodge, Inc., and Houston Motor Lodge, Inc., with the exception of the corporate income tax assessment against Taylor Motor Lodge, for the taxable year ending 1982, which has already been withdrawn. RECOMMENDED this 31st day of May, 1991, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 1991.
The Issue Whether petitioner qualifies for a II-C Club alcoholic beverage license, which is issued to Nonprofit organizations or clubs devoted to promoting community, municipal, or county development or any phase of community, municipal or county development.
Findings Of Fact Code I is a nonprofit Florida corporation located at 3420-31 West Broward Boulevard, Ft. Lauderdale, Florida. In February, 1982, it applied for a II-C or Club alcoholic beverage license pursuant to Section 561.20(7)(a)3, Florida Statutes (1981) and Rule 7A-3.19, Florida Administrative Code. On August 3, 1982, DABT denied its application, asserting that it was not qualified for licensing under tie statute and rule. Code I was incorporated as a Florida nonprofit corporation in 1962. Ms. Bessie Walton and her former husband formed the corporation to raise funds to build a home for the elderly. With funds subsequently generated by the corporation, Tropical Home for Senior Citizens was constructed and continues to be operated in Ft. Lauderdale, Florida. In 1974, the corporation became inactive. According to several members of Code I, the goals and purposes of the Club are to support and make contributions to benevolent causes. This testimony, however, is based upon representations made to them by others concerning the goals and purposes of the Club. (Testimony of Troutman, Reddick) In the past, Code I has donated funds to numerous organizations or allowed them to use its facilities--without charge. These organizations, included Broward County Youth Football, Greater Bethel AME Church, Tropical Home for Senior Citizens, North Fork Elementary School, and Kappa Alpha Psi Fraternity (for scholarships). It has also sponsored foster families. Code I has charged, however, some organizations $175 for the use of its facilities. (Testimony of Troutman) The articles of Incorporation of Code I state that the objectives of the organization are to provide a meeting place for recreational purposes of its members, to provide aid and comfort for its members in case of sickness or death, and to assist in any other matters pertaining to the highest orders of American Citizenship. For carrying out these purposes, the corporation is authorized to buy, hold and sell real and personal property, to invest funds, and to construct and operate social club houses. (P-1) Neither the articles nor the bylaws of the corporation explicitly, or by reasonable inference, dedicate it to promoting community, municipal, or county development. (P-1, P-4) According to its treasurer, its main purpose is to provide a facility where the public can enjoy an evening on the town in a conducive club atmosphere. Membership is open to the general public. An alcoholic beverage license would enable the Club to earn additional funds for its operations.
Recommendation Based on the foregoing, it is RECOMMENDED: That Code I's application for a II-C Club alcoholic beverage license be DENIED, without prejudice to its right to reapply after amendment of its charter and bylaws. DONE AND ORDERED this 25th day of February, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 1983.
Findings Of Fact James E. Collison is a licensed embalmer and funeral director, and Collison Memorial Chapel, Ltd., is a licensed funeral home holding licenses issued by the Board of Funeral Directors and Embalmers. Orange County Memorial Society (OCMS) is a nonprofit corporation. OCMS exists for the purpose for providing information and assistance to its members on low-cost funeral arrangements. OCMS has approximately 750 members and is funded through their small initial membership or transfer fee. Thomas E. White, who is employed full-time as an engineer by Stromberg Carlson was president of OCMS at all times relevant to this complaint. His wife, Helen, was secretary of this organization. At the time White assumed the presidency of OCMS, OCMS had existing arrangements with two local funeral homes. Upon joining, members were assigned to one or the other of these establishments, based upon the members' geographical residential location. Both the establishments provided the same services at essentially the same prices. Prices for various services from these homes had been made available to the members of OCMS. Mr. White was concerned about the geographic assignment of OCMS members and desired to alter this arrangement and allow members to choose the funeral home which they desired. In approximately August of 1976, James Collison contacted Mr. Harris, the attorney for OCMS, one of the original incorporators, and a former president of the organization. Collison advised Harris that he desired to participate with OCMS in providing services to its members. Mr. Harris wrote Mr. White, who eventually contacted Collison to discuss Collison Memorial Chapel's participation. In this regard, Collison provided Mr. White a list of funeral services which Collison Memorial Chapel could provide together with cost in a letter dated September 4, 1976. Mr. White and another member of the Board visited with Collison and inspected Collison Memorial Chapel. Thereafter Mr. White presented Collison's proposal to the Board of Directors of OCMS. Collison's offer was accepted, and this fact was subsequently communicated to Collison by White. At this time, Collison was advised that OCMS would advise its members of Collison Memorial Chapel's participation by letter when the notice of the organization's annual membership meeting was mailed. An earlier mailing could not be made by OCMS due to a lack of funds. Collison desired to make Collison Memorial Chapel's participation immediately known to the membership of OCMS, and offered to White to pay for the additional mailing. Mr. White accepted this offer, feeling that this was in the best interest of the membership of OCMS and permitted earlier implementation of his plan to permit members to choose the funeral home with which they desired to make their arrangements. The mailing was handled solely by White and his wife, and at all times, OCMS, through its president, maintained total control of the content of the materials sent to its members. This mailing contained a letter from Mr. White to the members, a comparative list of services and prices offered by the three participating funeral homes, a stamped, self-addressed envelope to Collison Memorial Chapel, and a form indicating that members desired to change his or her selection of a funeral home to Collison Memorial Chapel. The letter to the members was composed by Mr. White. The comparison of services and prices was prepared by Collison at Mr. White's request. The change form was prepared by Collison; however, both Mr. and Mrs. White stated that they had made some minor changes in its format after they received Collison's draft copy. White, in response to the specific question regarding why the form had not been prepared to permit a member to change between the two other participating funeral homes, stated that he had not mailed the form in that format because he did not believe any of the members would elect to change their membership among the two original participating homes. The fact that Collison obviously wanted communicated to the OCMS members was the fact that his funeral home was participating with OCMS because the prices which were quoted to OCMS members were the same being advertised to the public generally. White, as president of OCMS, desired to implement his project of permitting freedom of selection among members of OCMS, and to advise members that Collison's funeral home was now a participating home. Collison's offer was a means to both White's and Collison's objections. The Whites had the material printed, prepared the mailing, and sent Collison a statement of cost of the mailing. Collison paid these costs in the amount of $191.87 directly to OCMS. As a result of this mailing, approximately thirty (30) of the 750 members elected to change their arrangements in favor of Collison Memorial Chapel, Ltd. Several others elected to make other changes by contacting White and having new forms sent to them.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Administrative Complaint against James E. Collison and Collison Memorial Chapel, Ltd. be dismissed. DONE and ORDERED this 1st day of February, 1978, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: W. Thomas Lovett, Esquire Lovett, Kreuter and Salvagio 1210 Pan American Bank Building Orlando, Florida 32801 Michael J. Dewberry, Esquire Rogers, Towers, Bailey, Jones and Gay 1300 Florida Title Building Jacksonville, Florida 32202 Mr. R. C. Blanton, Coordinator Funeral Directors and Embalmers Suite 208, Building B 6501 Arlington Expressway Jacksonville, Florida 32211
