The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint, as amended, filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact James and Nancy Wallace operated a business known as Stained Glass out of their home in Cape Coral, Florida. They imported Tiffany reproduction and bronze lamps from the Orient and from Mexico, cleaned and repaired them, and then re-sold the lamps, primarily to auctioneers. In January 1992 the Wallaces saw a newspaper ad for an auction to be conducted by Walker Auction Galleries, Inc., in the Fort Myers/Naples area. The Wallaces followed their regular business practice of going to the auction several hours early in order to try to sell some of their lamps to whoever was holding the auction so the lamps could be included in the auction. When they arrived at the auction site, they met Jeffrey Walker and showed him their lamps. Walker Auction Galleries purchased lamps from them that day and included the lamps in that day's sale. Jeffrey Walker contacted the Wallaces later that afternoon, explained that he had good luck with the Wallaces' lamps, and told them he wanted more of their lamps to sell. The Wallaces returned to the auction site, taking more lamps which they sold to Walker Auction Galleries. Walker issued a check written on the Walker Auction Galleries account as payment for the lamps. Thereafter, the Wallaces sold more lamps to Walker Auction Galleries on several different occasions, driving across the state to deliver the lamps to Walker Auction Galleries' warehouse in Fort Lauderdale. Each time, Jeffrey Walker paid for the lamps with a check written on the business account. Over the course of their dealings with Jeffrey Walker and Walker Auction Galleries, the Wallaces believed that Jeffrey Walker was a licensed auctioneer and that he was the person in charge of Walker Auction Galleries. Although the Wallaces met Respondent during this time period, they believed Respondent to be merely an employee of Walker Auction Galleries and did not believe Respondent to be a licensed auctioneer. They never saw Respondent conduct an auction, but they did observe Jeffrey Walker conduct several auctions. Stained Glass' invoice numbered 22600 is dated June 14, 1992, and signed by Jeffrey Walker. Although initially in the amount of $3,265 representing the cost of 15 lamps, the invoice was adjusted to reflect a returned lamp and a credit. The invoice was reduced, therefore, to the amount of $2,915. The Wallaces delivered the lamps to Walker Auction Galleries on that date. On July 7, 1992, Respondent became licensed as an auctioneer in the State of Florida and was issued license number AU 0001310. Jeffrey Walker wrote three company checks in payment for the lamps obtained from the Wallaces in June 1992. Jeffrey Walker signed check # 1034, dated September 5, in the amount of $1,000; check # 1035, dated September 5, in the amount of $1,000; and check # 1036, dated September 9, in the amount of $960. When the Wallaces deposited those checks, the checks were returned to them with a bank notation reading "account closed". The Wallaces contacted Walker. The Wallaces received additional checks to replace those three checks. One was dated October 15, 1992, and was in the amount of $1,000. The Wallaces cashed that check, thereby reducing Walker Auction Galleries' liability to the Wallaces. Four additional checks in the amount of $500 each, for a total of $2,000, were issued to the Wallaces. The checks were written on the account of Walker Auction Galleries, Inc., and were signed by the Respondent. Those checks, bearing dates in November 1992, were returned to the Wallaces with a bank notation that that account was closed. Thereafter, the Wallaces contacted Jeffrey Walker both at his business and at his home to attempt to collect the money owed to them by Walker Auction Galleries. The Wallaces have not contacted Jeffrey Walker or Walker Auction Galleries after January 1993. As to Respondent, Mr. Wallace recalls that they did contact him, but Mrs. Wallace recalls that they did not. As of November 20, 1995, when the Wallaces were deposed, Walker Auction Galleries had not paid the Wallaces the balance of the money owed to them, nor had Walker Auction Galleries returned their lamps.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the charge against him and revoking Respondent's license as an auctioneer unless Respondent either pays for the lamps or returns them to the Wallaces in good condition within 30 days from the entry of the Board's Final Order. DONE and ENTERED this 16th day of February, 1996, at Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 1996. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Richard J. Wagner 8960 Northwest Eighth Street Hollywood, Florida 33024 Susan Foster, Executive Director Department of Business and Professional Regulation Board of Auctioneers 1940 North Monroe Street Tallahassee, Florida 32399-0762
The Issue The issue presented is whether Petitioner is entitled to a consumer certificate of exemption as a religious institution.
Findings Of Fact Petitioner, Greater Miami Jewish Cemetery Association, Inc., is a Florida not-for-profit corporation chartered on June 23, 1931, and is an exempt organization under Section 501(c)(3) of the Internal Revenue Code of 1954. Petitioner is a non-stock membership corporation which has three constituent members, namely, Beth David Congregation of Miami, Florida; Beth El Congregation of Miami Beach, Florida; and Beth Jacob Congregation of Miami Beach, Florida, which synagogues are existing Florida not-for-profit corporations exempt from taxation under Section 501(c)(3) of the Internal Revenue Code. Petitioner maintains and operates two cemeteries in Miami, Dade County, Florida, which are dedicated to burial of members of its constituent member synagogues and other persons of the Hebrew faith, including free burial plots for indigent persons of the Hebrew faith, and, as such, have been classified under the State of Florida Funeral and Cemeteries Act as "church cemeteries." It is a religious obligation of the Hebrew faith to provide for and bury the dead. It is usual for synagogues to maintain cemeteries for their members. No synagogue is located on the premises of Petitioner because some Jews are forbidden to be on the grounds near dead bodies. Accordingly, Jewish cemeteries do not have synagogues on the premises, and, conversely, synagogues do not have cemeteries on their premises, as some churches do. Petitioner does have, however, a room or chapel area where religious services are conducted by Petitioner's constituent members, the three synagogues. Those religious services and activities conducted there include burial services, services on religious holy days, and memorial services.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered granting Petitioner's application for a consumer certificate of exemption. DONE AND ENTERED this 24th day of September, 1998, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 1998. COPIES FURNISHED: Max R. Silver, Esquire Silver & Silver 150 Southeast Second Avenue, Suite 500 Miami, Florida 33131 William B. Nickell, Esquire Department of Revenue 501 South Calhoun Street, Suite 304 Tallahassee, Florida 32301 Linda Lettera, General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399 Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399
The Issue The issue in this proceeding is whether Respondent, Department of Military Affairs acted arbitrarily or capriciously when it awarded RFP-DMA-39 to Intervenor, Southeastern Archeological Research, Inc.
Findings Of Fact DMA is a state agency. However, it is required to comply with Army regulations pertaining to cultural resource management because of its federal alignment with the United States Army. Army Regulation 200-4 (AR 200-4) specifies Army policy for cultural resources management. DMA is required by AR-200-4 to develop and implement an Integrated Cultural Resource Management Plan (ICRMP). An ICRMP is an internal compliance and management tool that attempts to integrate the entirety of the cultural resources program with DMA’s ongoing mission activities. Prior to 2002, DMA had developed an ICRMP. The ICRMP developed by DMA was an extensive multi-part document outlining a five-year plan for DMA’s cultural resource preservation activities. The ICRMP set forth standard operating procedures for all the DMA’s cultural resource surveys. The ICRMP also identified past work completed on behalf of DMA which had been performed by SEARCH or work that was in progress that was being performed by SEARCH. The statements referencing SEARCH in the ICRMP do not indicate that SEARCH would be promised future work and do not demonstrate any bias by DMA in favor of SEARCH. Cultural resource surveys are required by the National Historic Preservation Act when federal funds are spent on any construction project. Such surveys are reviewed by each state’s historic preservation officer for use in that state's compliance with the various historic preservation acts, including the National Historic Preservation Act and the Interior Secretary's rules promulgated thereunder. A cultural resource survey is an examination of a particular area of land or a particular structure for evidence of significant prehistoric or historic activities or items, potential archaeological sites, the location of such activities or sites and an inventory of any such prehistoric or historic areas or items which are found. A cultural resource survey generally includes a review of archeological or historic documentation and information, preparation of archeological, environmental and historical overviews of a given project area, completion of a field study both above and below ground of the project area, mapping of the project area and a final report detailing the results of the survey. In part, the field study involves people walking over an area looking for signs of prehistoric or historic activity, digging multiple holes in an area looking for signs of pre- historic or historic activity, sifting the soil to discover evidence of any prehistoric or historic activity and documenting any information relevant to an area. The intensity of the search, such as the spacing of the holes, initially depends on the information gained through the review of archeological or historic documentation and information regarding the area being surveyed and later on any prehistoric or historic evidence found in a given area. Areas where prehistoric or historic evidence is found or thought likely to be found are more intensely examined. The decision to intensify the examination of an area is made by the person who supervises the study or supervises the field workers. That supervisor, depending on the circumstances and distances involved, may or may not be present at the actual survey site. There is no statute or rule which requires such a decision-maker to be present at the survey site. In late, 2002, DMA began to develop and draft the criteria for a request for proposal for cultural resource surveys of DMA's property made necessary by the ICRMP. The RFP was prepared by DMA’s Construction and Facility Management Office’s (CFMO) Environmental and Cultural Resource Management staff. Developing a request for proposal involving cultural resource surveys was new to CFMO staff. Therefore, at the suggestion of SEARCH who was then conducting a cultural resource survey for DMA, CFMO staff obtained a RFP for cultural resource surveys used by the Florida Department of Transportation. The Department of Transportation's RFP was used as a template for the DMA RFP. The RFP developed by DMA, stated, in relevant part: General The Department will determine whether the Contractor is qualified to perform the services being contracted based upon their proposal demonstrating satisfactory experience and capability in the work area. The Contractor shall identify necessary experienced personnel and facilities to support the activities associated with this proposal. Qualifications of Key Personnel Those individuals who will be directly involved in the project should have demonstrated experience in the areas delineated in the scope of work. Individuals whose qualifications are presented will be committed to the project for its duration unless otherwise excepted by the Department's Cultural Resource Manager. . . . * * * * 8.2 Responsiveness of Proposals . . . . A responsive proposal is an offer to perform the scope of services called for in the Request for Proposal in accordance with all requirements of this Request for Proposal and receiving seventy (70) points or more on the Technical Proposal. . . . * * * * 8.5 Waivers The Department may waive minor informalities or irregularities in proposals where such is merely a matter of form and not substance, and the correction or waiver of which is not prejudicial to other Contractors. Minor irregularities are defined as those that will not have an adverse effect on the Department's interest and will not affect the price of the Proposal by giving a Contractor an advantage or benefit not enjoyed by other Contractors. * * * * 9.5 Method of Payment . . . Payment shall be made at the contract hourly billing rates . . .. The contract hourly billing rates shall include the costs of salaries, overhead, fringe benefits, travel and operating margin. Payment for expenses shall be made on the basis of actual allowable cost incurred as authorized and approved by the Department. * * * * General Information This section contains instructions on the required format for the proposal. All proposals submitted shall contain two parts and are to be marked as follows: PART I TECHNICAL PROPOSAL NUMBER RFP-DMA-39 . . . PART II PRICE PROPOSAL NUMBER RFP_DMA-39 . . . Technical Proposal (part I) The Contractor must submit . . . copies of the technical proposal which will be divided into the sections described below. . . . Executive Summary The Contractor shall provide an Executive Summary to be written in non-technical language to summarize the Contractor's overall capabilities and approaches for accomplishing the services herein. . . . Contractor's Management Plan The Contractor shall provide a management plan, which describes administration, management and key personnel. Administration and Management The Contractor should include a description of the organizational structure and management style established and the methodology to be used to control costs, services reliability . . . Identification of Key Personnel The contractor should provide the names of key personnel . . ., as well as a resume for each individual proposed and a description of the functions and responsibilities of each key person relative to the task to be performed. . . . Contractor's Technical Plan The Contractor shall provide a technical plan, which explains technical approach and facility capabilities. * * * * 18.1 Evaluation Process A Selection Committee, . . ., will be established to review and evaluate each proposal. The Committee will be comprised of at least three persons with background, experience, and/or professional credentials in relative service areas. . . . . . . The Committee will assign points, utilizing the technical evaluation criteria identified herein and complete a technical summary. . . . The Procurement Office will open Price Proposals . . . The Procurement Office . . . will review and evaluate the price proposals and prepare a summary of its price evaluation. . . . During the process of evaluation, the Procurement Office will conduct examinations of proposals for responsiveness to requirements of the RFP. Those determined to be non-responsive will be automatically rejected. * * * * 18.3 Criteria for Evaluation Proposals will be evaluated in accordance with the criteria detailed below. A. Technical Proposal (100 Points) Technical evaluation is the process of reviewing the Contractor's Executive Summary, Management Plan, Technical Plan, example of work and Work Plan for understanding of the project, qualifications, approach and capabilities, to assure a quality product. . . . Price evaluation is the process of examining a prospective price without evaluation of the separate cost elements and proposed profit of the potential provider. . . . Award will be based on the total price for the five-year period. . . . EXHIBIT "A"CULTURAL RESOURCES ASSESSMENT SERVICES * * * * 4. PERSONNEL STANDARDS Personnel will be considered qualified when they meet the minimum criteria for archeologists, historians, architectural historians and other professionals as set forth in the Secretary of the Interior's Standards and Guidelines for Archeology and Historic Preservation and 36 CFR Part 61. Resumes of the Principal of the Firm, Principal Investigator, other supervisory personnel, and consultants documenting their qualifications to conduct work in their stated area of expertise must accompany the contract proposal. . . . The proposed participation of the above individuals in the Department projects is subject to approval by the Cultural Resource Project Manager . . . based on their meeting the minimum qualifications for such work as stated in the above mentioned guidelines and based on a review of their work history. . . . The firm(s) personnel performing the services must be a member of the Register of Professional Archeologists and meets the Secretary of Interiors' "Standards and Guidelines for Archeology and Historic Preservation" (36 CFR Part 800 Appendix C). . . . * * * * 8. METHOD OF COMPENSATION . . . The Lump Sum payment shall be made at the contract hourly billing rates . . . The contract hourly billing rates shall include the costs of salaries, overhead, fringe benefits, travel and operating margin. Payment for expenses shall be made on the basis of actual allowable cost incurred as authorized and approved by the Department. These expenses shall be approved in advance as part of the project. Out-of pocket expenses include incidental costs for printing, materials. Expendable equipment, equipment rental, long distance telephone calls, tolls, etc. A detailed list must be prior approved in order to receive reimbursement. All other costs shall be included in the Contractor's hourly rate. . . . The hourly billing rate or unit rate described in the RFP was based on the hourly rate proposed by the contractor in its response to the RFP. Rates were given for specified categories of personnel over a five-year period beginning in 2003 and ending in 2008. The categories of personnel listed in the RFP were for Principal of the Firm, Principal Investigator, Project Archeologist, Archeological Technician, Senior Historian, Historical Technician, Laboratory Supervisor, Laboratory Technician, Graphics, Clerical, Geographical Information Systems Technician (GIS) and Others. Other than the titles given the various categories of personnel, each of the categories for which prices were sought was undefined in the RFP. As indicated earlier, the rates proposed by the contractors were to include various areas of costs such as salaries, overhead, fringe benefits, etc. However, the language of the RFP referencing the various items of costs to be included in these rates did not mean that the firms actual costs, such as the actual salary for the principal of the firm, be included in the billing rate, but only that the amount proposed would represent all such costs so that the contractor could not later claim such costs as reimbursable expenses. In short, the rate proposed for the hourly billing rate was the amount the contractor would charge DMA for the performance of the work or service generally associated with a particular category of personnel. It was within the contractor's discretion whether one of its employees would fulfill more than one of the above- listed categories or otherwise divide the work required under the contract within its organization. It was also within the contractor's discretion to pay its personnel amounts different from the amounts listed for the various categories of personnel. Therefore, SEARCH’s ability to pay the minimum wage to a particular employee or comply with the federal fair labor law is not related to the amount a contractor proposes to charge DMA for a given service. In relation to the employees of a contractor, the RFP required that the resumes of key personnel showing that personnel's qualifications to participate in a cultural resource survey be included in the contractor's response. The RFP did not require that resumes be provided in a certain form or as a separate document. Therefore, a contractor's response to the RFP could comply with the resume requirement by supplying its key personnel's qualifications or experience to perform that personnel's contribution to creating a cultural resource survey in the text of its response to the RFP. Additionally, the RFP stated that unspecified personnel would be considered qualified when they meet the Secretary of Interiors Standards and Guidelines. The Secretary of Interiors Standards and Guidelines, state in relevant part, as follows: Professional Qualification Standards . . . The qualifications define minimum education and experience required to perform identification, evaluation, registration and treatment activities. . . . History The minimum professional qualifications in history are a graduate degree in history or closely related field; or a bachelor's degree in history or closely related field plus one of the following: At least two years of full-time experience in research, writing, teaching, interpretation or other demonstrable professional activity with an academic institution, historic organization or agency, museum, or other professional institution; or Substantial contribution through research and publication to the body of scholarly knowledge in the field of history. Archeology The minimum professional qualifications in archeology are a graduate degree in archeology, anthropology or closely related field plus: At least one year of full-time professional experience or equivalent specialized training in archeological research, administration or management; At least four months of supervised field and analytic experience in general North American archeology; and Demonstrated ability to carry research to completion. In addition to these minimum qualifications, a professional in prehistoric archeology shall have at least one year of full-time professional experience at a supervisory level in the study of archeological resources of the prehistoric period. A professional in historic archeology shall have at least one year of full-time professional experience at a supervisory level in the study of archeological resources of the historic period. * * * * As written, these guidelines are not mandatory and do not apply to contractors. They are relevant to various federal agencies, the State Historic Preservation Officer and other governmental historic preservation officers. The RFP did require these guidelines to be met. However, no official Department of Interior interpretation of the Guidelines was offered into evidence. No other agency's interpretation of the guidelines was offered into evidence. The guidelines only apply to people who identify or evaluate historic or prehistoric properties and people who actually, preserve, protect, restore, reconstruct or rehabilitate historic or prehistoric property. They do not have any qualifications for laboratory work or personnel. None of the guidelines address or define the level of supervision or the category of personnel to which the guidelines apply. The particular title of the person employed by a contractor ultimately responsible for the identification, evaluation or treatment of historic or prehistoric property is not addressed in these regulations. A particular method of performing a field study is not addressed in these regulations. Therefore, depending on the contractor, the person required to comply with these regulations may be either in the field, in the office, or on-call. The evidence showed that the location of such an employee is more a matter of a firm’s philosophical approach to cultural surveys and potential travel times to a survey site. In this case, SEARCH and Goodwin personnel meet these guidelines since both have had cultural resource survey work and reports accepted by the various agencies responsible for the implementation of the various federal and state laws on historic and cultural preservation, including the Florida's State Historic Preservation Officer. The RFP also contained the criteria and method by which bids would be scored. The technical proposal could receive up to 100 points divided into 45 points for the management plan, 45 points for the technical plan and 10 points for the executive summary. Part of the review of the technical proposal concerned the potential contractor's ability to quickly respond to discoveries made at the survey site, changing survey site conditions and requests or inquiries from DMA. Discoveries at a site can require quick response from a contractor. For example, the unearthing of human remains requires the immediate cessation of work and requires an emergency response plan to go into effect. Price was scored separate from the technical proposal with the lowest priced proposal receiving 25 points. Importantly, price and costs were not the same in the RFP. Price is the total amount that the contractor proposed to charge DMA for its services, irrespective of the actual costs incurred by the contractor for provision of those services. On the other hand, the contractor's efficiency in providing the contract services, profit potential and ability to control its costs were to be considered during the review of the technical proposal. Therefore, in addition to response time, the location of the contractor relative to any potential project site and the potential contractor's location relative to its ability to control potential costs for travel and ability to respond quickly to conditions at the survey site were appropriate factors to be considered during review of the technical proposals. Such a review was appropriate especially since travel costs were not separately reimbursable expenses under the contract. Ms. Maitland was the employee in CFMO primarily responsible for drafting the RFP; her office is directly in front of Mr. Adams’ office. Mr. Adams is the director of CFMO. At times prior to the issuance of the RFP, Ms. Maitland overheard Mr. Adams discuss the RFP with Mr. Pochurek, an employee of SEARCH, on several occasions. No detail about these discussions was offered into evidence. However, simply discussing a developing RFP with a potential contractor is not illegal and does not, by itself, demonstrate bias by DMA towards SEARCH. Nor did any other evidence demonstrate such a bias. On November 19, 2002, three days before the RFP was issued, Mr. Adams requested Ms. Maitland to participate in a speaker phone conversation to explain recent internal changes in the RFP. The evidence did not demonstrate that any competitive advantage resulted from three days of advanced knowledge about the RFP especially since responses to the RFP were not due until February 20, 2003. Additionally, any potential contractor had the right and ability to ask questions regarding the RFP until January 30, 2003. On November 22, 2002, DMA published RFP DMA-39, asking contractors to submit proposals for multi-project cultural resource surveys on DMA property. Goodwin, SEARCH and a third firm not involved here, submitted responses to the RFP. After the issuance of the RFP, Mr. Adams had a conversation with SEARCH about how they could improve their work and reports in the future. Such a critique is a legitimate role for the director of CFMO to perform with any contractor who had performed or was performing work for DMA. Neither the meeting nor the critique demonstrated bias on the part of DMA. In December, 2002, a meeting was arranged at Camp Blanding in order for Marcus Craig, the newly hired person at DMA responsible for GIS data, to discuss with SEARCH what type of GIS information was available or could be developed from the data SEARCH had obtained on a cultural resource survey it had performed under the "Metroplex contract." GIS information is a computational representation and database of a survey site, showing the location of any cultural resources found on a site, as well as any other information relevant to the site. The Metroplex contract did not require GIS data. However, part of Mr. Craig’s job was to gather as much information about the Department’s armories and property as possible. He participated in the meeting at Camp Blanding in order to ask about information on regions that SEARCH had already surveyed in the past. Mr. Craig sought to gather the most basic data that they had collected. He needed to ascertain the availability or existence of the GIS information to fulfill the duties of his job with DMA. The meeting at Camp Blanding was not related to the pending, un-issued RFP. The RFP was not discussed. Moreover, the information sought or discussed during the meeting relating to GIS data did not relate to the GIS data that was eventually required under the RFP. The evidence did not demonstrate any bias on the part of DMA. Moreover, there was nothing said at that meeting which would give SEARCH personnel an advantage in submitting a response to the RFP. On January 23, 2003, DMA conducted a pre-proposal conference. Anybody who was interested in the project could ask questions about the RFP and its terms. All relevant staff from the DMA, including a GIS specialist, were present and available to answer questions about the RFP. All prospective contractors were afforded sufficient time to ask questions and receive responses. No one challenged the specifications contained in the RFP. No one asked for clarification about the definition of the categories of personnel contained in the RFP. No one challenged the scoring criteria in the RFP. After the pre-bid meeting, Mr. Pochurek, an employee of SEARCH, faxed Mr. Adams printed copies of two web pages for Goodwin and Pan American, another company that had attended the pre-proposal conference. The web pages were readily available to the public. Provision of such information by one of the potential contractors under an RFP does not show bias on the part of DMA or that SEARCH was treated more favorably than any other contractor who had yet to respond to the RFP. On February 7, 2003, DMA issued Addendum 1 to the RFP. Addendum 1, in relevant part: 1) deleted the requirement to include information on the contractor's ability to conduct underwater archeology, 2) clarified that all travel costs, including costs for motels, meals, vehicle rentals, airline tickets, etc. were to be included in the hourly rates proposed by the contractor in its proposal, 3) added reimbursement of a 50.00 dollar a day allotment for costs not covered under the RFP, and 4) added more specific requirements for Geographical Information Systems (GIS) data in the reports submitted by the contractor. The addendum to the RFP was received in enough time to allow all bidders to adequately respond. Goodwin is one of the premier cultural research management firms in the country. The company engages in all phases of terrestrial and underwater archaeology. Its main office is in New Orleans, Louisiana. However, as projects require, it will maintain a satellite office closer to a given project site. In this case, Goodwin's satellite office would be located in Tallahassee, Florida, approximately 3 to 4 hours away from any site which may be covered by the RFP. Goodwin has worked for both private and public entities; over 150 military installations and 50 national guard installations. Goodwin has done work at Fort Polk, Fort Benning, and Fort Stewart, and several districts of the Army Corps of Engineers. In addition, Goodwin has conducted a survey for Southern Natural Gas across North Florida and Florida Gas Transmission Co. All of Goodwin's cultural resource survey reports submitted to the Florida Historic Preservation Officer have been approved by that office. SEARCH specializes in performing cultural and historic resource surveys. SEARCH is located in Gainesville, Florida. Its office is located approximately an hour away from any potential sites covered by the RFP. SEARCH performs between 100 and 160 cultural resource projects per year. SEARCH has performed Phase I, II and III surveys throughout Florida, the southeastern United States and the West Indies. SEARCH has completed cultural resource surveys for the Florida National Guard and currently has a contract with the Florida Department of Transportation (DOT), District III for a cultural resource survey on a DOT highway project. During SEARCH’s previous work for the DMA, DMA never experienced delay based on a failure of SEARCH to comply with state or federal law, or Army regulations. All of SEARCH’s cultural resource survey reports submitted to the Florida State Historic Preservation Officer have been accepted by that office. SEARCH is not a large company. It maintains a staff of only a few professionals. SEARCH has ranged between 4 and 18 employees depending on how much field work it was conducting. SEARCH’s archeologists are organized into the following positions: Principal of the Firm, Principal Investigators, Project Archaeologists, and Field Technicians. In addition, SEARCH operates a laboratory where artifacts are indexed, employs a specialist in GIS, and employs various administrative staff. The cultural resource surveys prepared by SEARCH are primarily authored by the Principal Investigator assigned to a project. Others may contribute to the report but, ultimately, the Principal Investigator is responsible for that survey, with the principal of the firm performing a quality assurance role. SEARCH was founded by Dr. Anne V. Stokes in 1993; and she is the Principal of the Firm. Dr. Stokes holds a Ph.D. in anthropology with a specialty in archaeology and is a member of the Register of Professional Archaeologists (RPA). She is the person responsible for the quality of the cultural resource survey, and she meets the Interior Secretary's professional standards. SEARCH’s other two archaeologists are Drs. Carlson and Austin. They hold Ph.D.s in archaeology and are members of the RPA. They are the Principal Investigators for SEARCH in a cultural resource survey performed by it. Both meet the Secretary of the Interior’s Guidelines for archaeologists. Geoffrey Mohlman, holds a master's degree in an appropriate field for his specialty and role in a cultural resource survey, history and architectural history, and has years of experience in research and writing. Mr. Mohlman is responsible for all historical and architectural historical work performed at SEARCH and he meets the Interior Secretary’s Guidelines. SEARCH does not currently employ a “historical technician” or a “junior historian.” SEARCH’s proposal included the resumes of the Principal of its Firm, each of its Principal investigators and other supervisory personnel it concluded were responsible for and supervised the validity of the information that would be contained in the cultural resource survey. The RFP did not require additional resumes to be submitted and was open to interpretation as to what resumes should be included as part of a contractor's response to the RFP. SEARCH also hires personnel in a position it titles “project archaeologists.” Currently, SEARCH’s project archaeologists are Mr. William Morgan and Mr. James Pochurek. In SEARCH’s organization, a project archaeologist makes certain that field crews arrive where they are assigned, makes hotel arrangements, supplies per diem payments, and may participate in some digging. While described as supervisor's in SEARCH's response to the RFP, both employees function more as co- ordinators for logistical matters, such as communication to the archaeologists responsible for the archeological decisions of the project. Both Mr. Morgan and Mr. Pochurek have backgrounds in archaeology, but they do not possess a master’s degree in either archaeology or anthropology. Both are qualified to perform the functions of their positions and have successfully performed such functions in the past. They are both supervised by the Principal Investigator of the project. They are not required to comply with the Interior Secretary's Guidelines. SEARCH did not include a formal resume for Mr. Morgan or Mr. Pochurek; however, both employee's qualifications were sufficiently outlined in SEARCH's response to the RFP to enable a person reviewing the RFP to determine the employee's qualifications and work experience. SEARCH also employs field technicians, otherwise referred to as field archaeologists. SEARCH is not large enough to divide its field archaeologists into various levels of pay grades. Though not a job requirement and though not all do, many of SEARCH’s field technicians hold master's degrees in areas relevant to their work, possess years of experience and meet the Secretary of the Interior’s Guidelines. SEARCH also utilizes a lab which contains a supervisor and two lab technicians. Lab technicians and field technicians are approximately the same, and neither are required to have a master’s level of training in order to get hired at SEARCH. Nevertheless, John Endonino, SEARCH’s laboratory supervisor, has recently received his master's degree in anthropology and already possesses years of experience. Additionally, Asa Randall, a SEARCH laboratory technician, holds a master's degree and possesses years of experience. Both meet the Secretary’s Guidelines to the extent they may apply to laboratory work. Finally, SEARCH employs a specific GIS professional. Recently, that professional, Lori Collins, announced her resignation. However, SEARCH has every confidence that it will locate her replacement without difficulty. SEARCH has no dedicated graphics personnel; that job is performed by other personnel employed by SEARCH or by personnel performing duties associated with one of the other categories of personnel listed in the RFP. In contrast to SEARCH’s size, Goodwin has approximately 100 employees. Goodwin’s organizational structure is more complex than SEARCH’s. Goodwin’s Principal of the Firm is Dr. R. Christopher Goodwin. However, Dr. Goodwin is not a member of the Register of Professional Archaeologists (RPA). Goodwin also has Principal Investigators. However, some of the Principal Investigators identified as available for this project in Goodwin’s response to the RFP were not members of RPA. Although Goodwin's proposal indicates that only personnel meeting the Interior Secretary's Guidelines would supervise the project, the Interior Secretary's Guidelines do not require RPA affiliation. It remains unclear, whether non- RPA investigators would supervise the project since the RFP required personnel listed in a contractor's response to be dedicated for the area for which the employee was listed. Because of its size and structure, Goodwin also employs “project managers.” SEARCH does not have “project managers.” In SEARCH’s hierarchy, a Principal Investigator performs the duties assigned to a “project manager” as that term is used by Goodwin. Both firms require this position to be filled by someone with Master’s level training who meets the Secretary of Interior’s Guidelines. Additionally, Goodwin employs “assistant project managers.” An “assistant project manager” is tantamount to a project archeologist at SEARCH. Neither firm requires that this position be filled with employees possessing a master’s degree, though some of each firms employees at this level have received that level of training. Both firms’ employees possess some “supervisory” and oversight capacity over lower level employees. However, the Secretary’s guidelines do not apply to this level of employee since such personnel are supervised by someone who meets the Secretary of the Interior’s Guidelines. The language of the RFP does not require that the Interior Secretary’s Guidelines apply to this level of personnel. Goodwin segregates its field archeologists into three grades. None of these positions requires a master’s degree in Goodwin’s hierarchy. However, like SEARCH, Goodwin’s field archaeologists, and indeed their assistant project archaeologists, participate in excavating and identifying artifacts. All are supervised by a person who does meet the Interior Secretary's professional standards. In short, not every employee in an archaeology firm must meet the Secretary of the Interior’s Guidelines in order to satisfy the requirement of the RFP. All the parties agree that only certain “supervisory” personnel must meet the Guidelines. The Guidelines do not address this issue and therefore; the personnel which must comply with the Guidelines are left up to the individual contractor. At both Goodwin and at SEARCH, the Principal Investigator ultimately signs and takes responsibility for the work reported in any cultural resource survey. As noted above, both companies employ professional archeologists who are not required to meet the Guidelines, but who possess limited supervisory roles. Goodwin defines this position as “assistant project manager.” SEARCH defines the position as “project archeologist.” SEARCH and Goodwin may call their positions by different names, but the qualifications are similar. Employees in these positions are involved in identifying and excavating artifacts. For both companies, so long as the employees in these positions are themselves supervised by an individual who meets the Guidelines, work may be performed satisfactorily. Clearly both firms have the requisite personnel to perform cultural resource surveys under the RFP and operate in a manner that meets the Interior Secretary's guidelines. The Department’s review of the responses to the RFP was segregated into three stages. First, the State’s Quartermasters’ Office reviewed all submissions in order to determine whether certain mandatory items were included. Second, if a bid contained all the mandatory items, then its narrative sections were forwarded to an evaluation committee where the proposal’s executive summary, management plan and technical plan could be scored. Finally, the State Quartermaster’s Office opened and scored each price proposal. Ms. Peggy Evans was the State Quartermaster’s Office Purchasing Director. In that position, she was responsible for state purchasing and contracting. Ms Evans was involved in the preparation of the RFP and helped to assure that mandatory items required in state contracts were required in the RFP. Ms. Evans included the mandatory requirements made necessary by state law. The mandatory requirements within the RFP included registration by a certain deadline, attendance at the mandatory pre-bid meeting, and the submission of technical and price proposals on time. Additionally, each bid must have included certain mandatory forms and signatures, such as the Drug Free Workplace Certification or a signed acknowledgement of the RFP’s Addendum. Goodwin and SEARCH, were both responsive to the mandatory requirements of the RFP. The evaluation committee was responsible for review of the narrative portions of the responses to the RFP. The narrative portions included the management and technical plans submitted by the respondents. The persons originally chosen to sit on the evaluation committee were Mike Adams, Elizabeth Maitland, Major Dwayne Jarriel, and Major Mark Widener. Because of other duties, Major Widener did not participate in the evaluation committee review. Marcus Craig was then appointed to the evaluation committee because of his expertise in GIS. All of the committee members met the qualification for experience in fields related to contracting and the RFP. All were qualified to sit on the review committee. Mike Adams, Elizabeth Maitland, Marcus Craig, and Dwayne Jarriel met at approximately 9:00 a.m. in a conference room at DMA. They each had a copy of the three responses to the RFP and the evaluation sheets. Most of the evaluators were sufficiently familiar with the RFP before arriving at the evaluation. Mr. Craig reviewed the RFP before attending the evaluation. Ms. Maitland assisted in writing most of the technical and management plan, and Mr. Adams oversaw her work. Major Jarriel was the least prepared regarding the specifics of the RFP, but such unpreparedness did not interfere with his ability to review the proposals from a contracting point of view. In addition, on the day of the evaluation, each evaluator had two pages of the RFP related to scoring, pages 18 and 19. A copy of the RFP was also in the room. In this case, it was immaterial that the members of the evaluation committee did not review the proposals for specific compliance with the RFP's specifications regarding the Interior Secretary's Guidelines or inclusion of resumes since both parties met those specifications. In general, all evaluators collectively agreed that each of the contractors who submitted a response to the RFP was qualified to do the work. The evaluators read each of the proposals quietly, for approximately four hours. Occasionally, one evaluator or another would ask a question. However, for the most part, this review of the bids was conducted in silence and without an opportunity for one evaluator to influence another. At the conclusion of this review, the evaluators convened for a brief, approximately five-minute discussion of the advantages and disadvantages of each of the responses to the RFP. However, before that discussion took place, all of the evaluators had already ranked the proposals in their own mind. All of the evaluators listened to the questions and opinions voiced by their peers. Nothing said during that discussion influenced any evaluator to change his or her decision. Moreover, no evaluator divulged the point score he or she had assigned to any bid; thus, there was no opportunity for collusion among the evaluators. Three of the four evaluators selected SEARCH’s proposal as the superior submission. Elizabeth Maitland did not select SEARCH’s proposal as superior. Instead, she selected Goodwin’s as the best proposal. Ms. Maitland gave Goodwin a score of 100. Not because they were perfect, but because she thought they were the best. She gave SEARCH an 80. Ms. Maitland favored Goodwin for its experience with the Department of Defense. Major Jarriel recognized that the RFP was a road map which outlines what the agency was looking for. He admits that he never looked at the RFP until after he had completed his evaluation and quite candidly conceded that when he evaluated the three proposals, he didn’t exactly know what the Agency was looking for. However, his knowledge about the qualities a contractor must demonstrate in order to successfully work with DMA was sufficient to allow him to honestly evaluate the responses to the RFP. Major Jarriel felt SEARCH's management and technical plans were superior in both presentation and clarity. He also scored SEARCH higher because it was located in Gainesville, Florida, and in his experience that would make them more responsive, more efficient at controlling costs and therefore better able to perform the contract. Such factors were within the review criteria contained in the RFP. He particularly focused on the fact that SEARCH’s proposal emphasized designing systems to meet DMA’s desires and the level of explanation of various survey concepts in its proposal. Major Jarriel reviewed the executive summary and management plan and glanced through the technical plan. He looked at the proposal from an overall standpoint, not from any specific individual criterion. Major Jarriel, in part based on the opinion of Mr. Craig, gave SEARCH a higher score because he thought that its GIS format and capabilities would better meet DMA needs. However, reliance on a GIS expert’s opinion is neither arbitrary nor capricious and is reasonable for the committee members to do. Mr. Adams felt a firm's experience working and consulting with Native Americans and the National Guard were important factors. He also felt a firm’s presentation on its GIS capabilities was an important factor. He felt Goodwin’s response was weak in the area of Native American consultations. Mr. Adams scored SEARCH higher because they had experience working with the Florida National Guard and Native Americans. Review and knowledge about the ICRMP was also required in the RFP. Mr. Adams felt SEARCH was better in demonstrating that knowledge. There was no evidence to demonstrate that Mr. Adams' scores did not reflect his true assessment of the parties’ responses to the RFP. Mr. Craig was mainly, but not completely, concerned with a response's "GIS section." SEARCH’s response devoted almost 5 pages explaining the importance of GIS and its willingness to help design a GIS system that would best meet the goals of the Department. In Mr. Craig’s mind, SEARCH’s technical proposal was far superior to Goodwin’s. They provided more than the minimum amount of information regarding GIS and demonstrated that they would make efforts to ensure that the Department’s needs were satisfied. He also scored SEARCH’s proposal higher because they were going to use the same software that he used at DMA. Preference for the utilization of the same software is a legitimate consideration since it eliminates any potential compatibility issues with DMA software which sometimes arise between newer and older versions of software which have had add-ons to upgrade the older version. Mr. Craig also thought SEARCH would be more cost effective and responsive because it was a Florida-based firm. In scoring Goodwin lower than SEARCH on the technical proposal, Mr. Craig took into consideration his opinion that Goodwin’s ownership of the underwater sensing equipment would increase its overhead so that it would not be as cost effective as SEARCH and had provided unnecessary information on such underwater capabilities in their response. Mr. Craig also examined the overall way that responses were written and any indications of each bidder’s willingness to satisfy the needs of the Department. After his evaluation, Mr. Craig concluded that the Goodwin proposal was not as responsive to the Department’s needs as was the proposal submitted by SEARCH. Mr. Craig, Mr. Adams, and Major Jarriel, noted the Gainesville offices of SEARCH are significantly closer than the functional Tallahassee office of Goodwin. Camp Blanding is less than an hour away from Gainesville and, at over 73,000 acres, constitutes the vast majority of land holdings by DMA. Additionally, few of the Department’s armories are located in the Panhandle. Most are located south of Camp Blanding, closer to Gainesville than Tallahassee or elsewhere. Moreover, it was not certain that Goodwin would utilize employees from its Tallahassee office. Upon reviewing resumes during his evaluation, Mr. Adams noted that Goodwin had no employees, other than a receptionist, working in its Tallahassee office. They all worked in New Orleans or in Washington, D.C. Indeed, the telephones in the Tallahassee office forwarded to Goodwin’s New Orleans office. Conversely, the SEARCH proposal clearly indicated that all personnel would be located in Gainesville, Florida. The evidence did not demonstrate that any of the evaluators acted arbitrarily, capriciously or failed to utilize the specifications of the RFP. Once the executive summaries, management plans and technical plans of all responsive contractors were scored by the Evaluation Committee, Peggy Evans and her assistant opened the price proposals of the parties. None of the evaluators saw any of the price proposals prior to their scoring. This procedure assured that none of the technical scores would be influenced by the pricing of the bidders. Ms. Evans, upon calculating the total price proposed by each bidder, determined that SEARCH had submitted the lowest bid, by a large margin. Pursuant to the RFP, a total of 25 points was available for the price component of scoring. Because SEARCH submitted the lowest bid, it was awarded the 25 points for pricing. Other bidders received a portion of the 25 points based on the relationship of that contractor's price to SEARCH’s low bid. SEARCH scored the highest for both portions of the RFP and was awarded the RFP contract. There was no convincing evidence that SEARCH’s bid was unbalanced or that the prices it quoted were not intended to reflect what it would charge for the services related to that price. Moreover, DMA has no regulation requiring a bid to be balanced. Federal acquisition regulations or standards do not apply. Without such a regulation and since “balance” is not required in the RFP, DMA has no authority to reject the apparent low bid as not responsive to the RFP. Moreover, the evidence did not demonstrate that DMA's decision was arbitrary, capricious, or in violation of its statutes, rules or RFP specifications. Therefore, DMA’s decision to award the RFP to SEARCH should be upheld.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, It is RECOMMENDED that the Department enter a final order awarding the contract to SEARCH. DONE AND ENTERED this 3rd day of October, 2003, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 3rd day of October, 2003. COPIES FURNISHED: John E. Daniel, Esquire Morgan, Lewis & Bockius, LLP 1111 Pennsylvania Avenue, Northwest Washington, DC 20004 Seann M. Frazier, Esquire Greenberg Traurig, P.A. 101 East College Avenue Post Office Box 1838 Tallahassee, Florida 32302 Elizabeth C. Masters, Lt. Colonel Florida Army National Guard 82 Marine Street St. Augustine, Florida 32084 Cynthia S. Tunnicliff, Esquire Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. 215 South Monroe Street, Second Floor Post Office Box 10095 Tallahassee, Florida 32302-2095
The Issue The issue in this case is whether Petitioner is entitled to an exemption as a charitable institution or as a military museum fundraiser within the respective meanings of Sections 212.08(7)(o)2.b or (l), Florida Statutes (1997). (All Chapter and Section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner is a non-profit corporation incorporated in Florida. Respondent is the state agency responsible for the issuance of certificates of exemption from sales and use tax in accordance with the requirements of Chapter 212. Petitioner applied for a certificate of exemption on December 22, 1997. On April 22, 1998, Respondent denied Petitioner's application. The application and denial are based on information from Petitioner's 1997 tax year. Petitioner is not a charitable organization within the meaning of Section 212.08(7)(o)2.b. Petitioner is qualified as a nonprofit corporation pursuant to Section 501(c)(3) of the Internal Revenue Code. However, Petitioner failed to show by a preponderance of the evidence that its sole or primary purpose satisfies the requirements of Section 212.07(o)2.b. and Florida Administrative Code Rule 12A-1.001(3)(g). (All references to rules are to rules promulgated in the Florida Administrative Code on the date of this Recommended Order.) Petitioner failed to show that in 1997 it provided a reasonable percentage of the services enumerated in Sections 212.08(7)(o)2.b.(I)-(VII) for free, or at a substantially reduced charge, to persons who are unable to pay for those services. Petitioner did not show that it raised funds for organizations that provide a reasonable percentage of the statutorily qualified services for free, or at a substantially reduced charge, to persons who are unable to pay for those services. Petitioner asserts that it provides some portion of its computer time for qualified services and that Petitioner provides volunteers for other qualified services. However, Petitioner failed to show the value of the computer time, admitted that the value of the computer does not satisfy the 50 percent test in Rule 12A-1.001(3)(g), and was unable to quantify the amount or value of its volunteer services. Petitioner failed to show that it complied with the requirements of Rule 12A-1.001(3)(g). Petitioner did not show that more than 50 percent of its expenditures in 1997 directly related to statutorily qualified services provided by Petitioner to persons who cannot afford such services. Petitioner did not show that more than 50 percent of its expenditures directly related to raising funds for organizations that provide qualified services to persons who cannot afford those services ("qualifying organizations"). Petitioner's 1997 annual report shows that none of its expenditures were made for statutorily qualified services provided to persons who cannot afford those services. Similarly, the report did not show that more than 50 percent of expenditures were made to raise funds for qualifying organizations. Petitioner is not a military museum fundraiser within the meaning of Section 212.08(7)(l). Petitioner admitted that it made no cash contributions to military museums during 1997. Petitioner claims that it allowed other organizations to use Petitioner's tax exemption under Section 501(c)(3) of the Internal Revenue Code to facilitate in-kind contributions to military museums or to related organizations which, in turn, contributed the items to military museums. The primary item Petitioner claimed to have obtained in this manner in 1997 was a Huey helicopter allegedly donated by the U. S. Army to Vietnam Veterans of Central Florida, Inc. ("Veterans Central"). Petitioner failed to show that the title to the helicopter ever passed from the U. S. Army to Petitioner or to any other organization designated by Petitioner to receive an in- kind contribution. Petitioner failed to show that either Petitioner or its designee otherwise obtained title to the helicopter or any other in-kind contributions. Petitioner claims that a contribution to Veterans Central is a contribution to Petitioner because the two organizations are members of the same group. The group purportedly operates as the Vietnam Veterans of Florida State Coalition (the "state coalition"). However, Petitioner failed to provide any documentary evidence which establishes the relationship between the two organizations or their membership in the state coalition. Petitioner admits that the two organizations have separate boards and that Petitioner does not control or own stock in Veterans Central as required in Sections 617.0601 and 617.0721 (providing that corporate members of a not- for-profit group have no voting rights and, unless otherwise provided in the articles of incorporation and by-laws, the directors of each corporation have sole voting rights for each corporation and do not have voting rights in other member corporations.)
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order denying Petitioner's application for a certificate of exemption. DONE AND ENTERED this 2nd day of November, 1998, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1998. COPIES FURNISHED: Larry Fuchs, Executive Director Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 Linda Lettera, General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 Ken Baker, President Vietnam Veterans of Florida Foundation, Inc. 1509 Tate Street Cocoa, Florida 32922 George C. Hamm, Assistant General Counsel Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314
Findings Of Fact The Respondent, Lydia Miller, ran for election to the Hillsborough County Commission, District 4, in 1992. It was her first campaign for election to public office. She declared her candidacy in September, 1991, and appointed her husband as her campaign treasurer and herself as deputy campaign treasurer. She ran as a Republican and had several Republican opponents in the primary. She did not have the backing of the Republican Party and had difficulty attracting financial support, especially at first. Of necessity, she ran a "grass roots" campaign and spent countless hours going door-to-door in her district asking for support and, when possible, making public appearances. She also tried to capitalize on the "grass roots" nature of her campaign. Trying to emulate a campaign technique that worked for Governor Lawton Chiles, she pledged that she would not accept financial contributions in excess of $100 (versus the $500 statutory maximum) and would not accept financial contributions (or endorsements) from "special interests." To substantiate the strength of her "grass roots" campaign, the Respondent saw value in her campaign treasurer's reports showing as large a number of relatively small contributions from individuals. In all, the Respondent raised less than $14,000. Yet, she was able to survive the first primary, win the second primary, and beat her Democrat opponent in the general election. Cash Not Deposited or Reported The Respondent admitted that she accepted a $20 cash contribution from Irene Herring and put it in her campaign's petty cash without reporting it in her campaign treasurer's reports. Herring made two other cash contributions to the Respondent's campaign- -one in the amount of $20 and another in the amount of $30. Neither contribution was reported. Both contributions were given to Susie Farmer, a campaign worker. Similarly, David Gill contributed between $50 and $100 cash to the Respondent's campaign, but the contribution was not reported. This contribution also was given to Susie Farmer. The Respondent denied specific knowledge of the two other cash contributions from Herring and the cash contribution from Gill. The only evidence which could support a finding that the Respondent knew of them was testimony of Larry Sweat, an aide the Respondent hired after her election but fired three months later. From an evaluation of the testimony of the Respondent and Sweat, taking into account all of the relevant evidence as well as their demeanor and overall credibility, and it is found that Sweat's testimony was not sufficient to overcome the Respondenet's denials by a preponderance of the evidence. By her own admission, however, it would not have been unusual for the Respondent to use small cash contributions (or allow and approve their use) to replenish her campaign's petty cash without reporting them in her campaign treasurer's reports. It certainly is possible that the other two cash contributions from Herring and the cash contribution from Gill were handled in that manner. The Respondent was aware that all contributions had to be deposited in her campaign account and reported in her campaign treasurer's report. Yet, for reasons not fully explained in her testimony, the Respondent also thought that it was permissible to use small cash contributions to replenish her campaign's petty cash. It is possible that the Respondent misread or misunderstood the election campaign financing laws dealing with petty cash and the reporting of expenditures from petty cash. See Conclusions of Law 79 through 81, below. The Respondent certainly was not handling the small cash contributions that way to "beef up" her campaign treasurer's reports. Cash Deposited and Reported But Donor Allegedly Unknown The Respondent's campaign treasurer's reports show the following cash contributions: $100 from Phillip Preston on August 17, 1992 $ 90 from Robert Preston on August 17, 1992 $100 from Kelley Preston on August 22, 1992 Robert, Kelley, and Phillip are the minor children of Allen and Rosina Preston, aged 16, 4, and 2. It is possible but improbable that Robert donated $100 of his own cash to the Respondent's campaign; it is all but impossible that Kelley or Phillip did. The Prestons were supporters of the Respondent and contributors to her campaign. The Respondent's Sun City Center campaign headquarters was in office space donated by Allen Preston. The offices of Preston's business also was in the same building. Allen Preston often visited the campaign headquarters and helped with the campaign, in addition to his financial contributions. Yet, Preston denied donating $290 cash in the names of his children. Preston does not think his wife would have done so without telling him, but his wife did not testify. The Respondent denies any specific knowledge concerning the $290 in cash contributions attributed to the Preston children. But it would not have been unusual for Susie Farmer or other campaign workers to leave cash contributions with "Post-It" notes attached to identify the donors. The campaign treasurer's reports normally would be prepared using the information on the "Post-It" notes. Especially in the days leading up to the three elections, the campaign headquarters became hectic and confused, and it is possible that incorrect information inadvertently was placed on the "Post-It" notes for these cash contributions. When the Respondent saw cash contributions from the Preston children in preparing or reviewing reports, she would not have questioned the accuracy of the information. She would have assumed that the Prestons had made the donations in the names of their children. She did not think there was anything wrong with adults making campaign contributions in the names of their minor children. She denies intentionally misreporting the contributions in order to hide contributions from Allen and Rosina Preston, or their businesses, or artificially to "beef up" the number of small contributions reflected in her campaign treasurer's reports. The evidence was not sufficient to overcome the Respondenet's denials by a preponderance of the evidence. The Respondent's campaign treasurer's reports also show a $25 cash contribution from Evelyn Ackerman on October 14, 1992. The parties stipulated in their Joint Prehearing Stipulation that Ackerman is an elderly woman on a fixed income and that Ackerman denies making the contribution. But the Respondent has a specific recollection that Ackerman offered the contribution, that the Respondent tried to decline in view of Ackerman's meager financial means, and that Ackerman insisted. It is found that the Respondent's testimony outweighs the statements from Ackerman, who has been know to hallucinate and whose memory may not be trustworthy. The Respondent's campaign treasurer's reports also showed a $100 cash contribution from Henry Farmer on October 18, 1992. Henry Farmer denies making the contribution and does not believe that his wife, Susie, would have donated $100 cash in his name without telling him. Susie did not testify, but she was an enthusiastic supporter, campaign worker and fund-raiser for the Respondent's campaign, and it certainly is possible that she donated the cash in her husband's name without his knowing it. Regardless of the actual source of the cash, the Respondent testified to her recollection of seeing a $100 cash contribution with a "Post-It" notes attached indicating that it was from Henry Farmer. She indicated that she had no reason to think it was not a contribution from Susie's husband, and it would not have been unreasonable for the Respondent to believe, without question, that the information on the "Post-It" note was accurate. The evidence was not sufficient to overcome the Respondent's testimony by a preponderance of the evidence. The evidence did not prove that the Respondent knew her campaign treasurer's report of the $100 cash contribution from Henry Farmer was not accurate. The Respondent's campaign treasurer's reports also showed a $100 cash contribution from Marie Schrag on October 18, 1992. Neither she nor her husband made the contributions. The Respondent did not testify to any specific recollection about the Schrag contribution. But Schrag was Allen Preston's bookkeeper and worked in the same building of Preston's where the Respondent's Sun City Center campaign headquarters was. Although she was not an active campaign worker for the Respondent, she did type one letter for the campaign, and her husband stuffed envelopes for the campaign on at least one occasion. In addition, she had been friends with Susie Farmer, one of the Respondent's most successful fund-raiser, for over 20 years. If the Respondent saw a $100 cash contribution with a "Post-It" notes attached indicating that it was from Marie Schrag, she would have had no reason not to believe, without question, that the information on the "Post-It" note was accurate. The evidence did not prove that the Respondent knew her campaign treasurer's report of the $100 cash contribution from Marie Schrag was not accurate. Alleged Business Contributions Allegedly Falsely Reported From Individuals The Respondent's campaign treasurer's reports listed a June 1, 1992, contribution in the amount of $25 from "Phil Boggs, Occupation (if over $100), Boggs Jewelry," when the check was written on the account of Boggs Jewelry, and signed by Phil R. Boggs. The Respondent reasonably did not think there was anything wrong with the way the Boggs contribution was reported. When the Respondent pledged not to take financial contributions or endorsements from "special interests," she did not intend to indicate that she would not accept financial support from any businesses or corporations. (In her mind, "special interests" meant political action committees, not any and all businesses and corporations.) The Respondent does not know Phil Boggs, and Boggs Jewelry had no business before the County Commission during the Respondent's term. The Respondent reasonably did not perceive the Boggs contribution to have come from a "special interest," and it was not proven that the Respondent was trying to hide the true source of the Boggs contribution or make it look like it was coming from Boggs, individually, instead of the business, Boggs Jewelry. The Respondent's campaign treasurer's reports listed a contribution on June 2, 1992, in the amount of $25 from "Charles Hostetter, Occupation (if over $100), Fisher Beauty Salon," when the check was written on the account of Fisher's Beauty Salon, and signed by Charles Hostetter. The Respondent reasonably did not think there was anything wrong with the way the Hostetter contribution was reported. The Respondent reasonably did not perceive the Hostetter contribution to have come from a "special interest," and it was not proven that the Respondent was trying to hide the true source of the Hostetter contribution or make it look like it was coming from Hostetter, individually, instead of the business, Fisher's Beauty Salon. The Respondent's campaign treasurer's reports listed a contribution on June 22, 1992, in the amount of $25 from "Charles Bingham, Occupation (if over $100), c/o Floral Decor Florist," when the check was written on the account of Floral Decor Florist, and signed by Charles Bingham. The Respondent reasonably did not think there was anything wrong with the way the Bingham contribution was reported. Bingham is a personal friend of the Respondent and personally gave the check to the Respondent. The Respondent reasonably did not perceive the Bingham contribution to have come from a "special interest," and it was not proven that the Respondent was trying to hide the true source of the Bingham contribution or make it look like it was coming from Bingham, individually, instead of the business, Floral Decor Florist. The Respondent's campaign treasurer's reports listed a contribution on June 24, 1992, in the amount of $100 from "John Williams Coppes Kitchen, Occupation (if over $100), Owner," when the check was written on the account of Williams Kitchens & Baths, Inc. The Respondent reasonably did not think there was anything wrong with the way the John Williams contribution was reported. The Respondent knows Williams's business as "John Williams Coppes Kitchens," the name on the business's signage. (Coppes is the name of the brand Williams sells.) The Respondent reasonably did not perceive the John Williams contribution to have come from a "special interest," and it was not proven that the Respondent was trying to hide the true source of the John Williams contribution or make it look like it was coming from Williams, individually, instead of the business, whether known as Williams Kitchens & Baths, Inc., or as John Williams Coppes Kitchens. The Respondent's campaign treasurer's reports listed a contribution on August 16, 1992, in the amount of $100 from "Ann Williams, Guys & Dolls," when the check was written on the account of Guys 'N Dolls of Brandon, Inc., and signed by Ann Williams. The Respondent reasonably did not think there was anything wrong with the way the Ann Williams contribution was reported. Ann Williams is the Respondent's regular hairdresser and personally gave the check to the Respondent at the beauty parlor. The Respondent reasonably did not perceive the Ann Williams contribution to have come from a "special interest," and it was not proven that the Respondent was trying to hide the true source of the Ann Williams contribution or make it look like it was coming from Ann Williams, individually, instead of the business, Guys 'N Dolls of Brandon, Inc. The Respondent's campaign treasurer's reports listed a contribution on September 12, 1992, in the amount of $50 from "Martha Simmons, Tropical Fish Farms," when the check was written on the account of Gerald Simmons Tropical Fish Farm, and signed by Martha Simmons. The Respondent reasonably did not think there was anything wrong with the way the Simmons contribution was reported. The Simmonses were neighbors of the Farmers. The Respondent reasonably did not perceive the Simmons contribution to have come from a "special interest," and it was not proven that the Respondent was trying to hide the true source of the Simmons contribution or make it look like it was coming from Martha Simmons, individually, instead of the business, Gerald Simmons Tropical Fish Farm. The Respondent's campaign treasurer's reports listed a contribution on September 23, 1992, in the amount of $50 from Tommy Brock, when the check was written on the account of Brock Farms, and signed by Tommy Brock. The Respondent reasonably did not think there was anything wrong with the way the Tommy Brock contribution was reported. The Respondent reasonably did not perceive the Brock contribution to have come from a "special interest," and it was not proven that the Respondent was trying to hide the true source of the Brock contribution or make it look like it was coming from Tommy Brock, individually, instead of the business, Brock Farms. The Respondent's campaign treasurer's reports listed a contribution on October 15, 1992, in the amount of $100 from William Stearns, when the check was written on the account of F.E. Stearns Peat Co., Inc., and signed by William Stearns. If the Respondent had carefully compared check to the report, she probably should have known that the Stearns contribution was not reported properly. The check arrived in the mail, and there was no reason to think it was not from the F.E. Stearns Peat Co., Inc. Nonetheless, the Respondent reasonably did not perceive the Stearns contribution to have come from a "special interest," and it was not proven that the Respondent intentionally was trying to hide the true source of the Stearns contribution or make it look like it was coming from Williams Stearns, individually, instead of the business, F.E. Stearns Peat Co., Inc. It just as easily could have been a mistake or oversight. The Respondent's campaign treasurer's reports listed a contribution on October 15, 1992, in the amount of $100 from "William Bishop, c/o L.L. Corporation," when the check was written on the account of Leslie Land Corporation, signed by William Bishop, with the "memo": "William L. Bishop." If she had carefully compared check to the report, the Respondent probably should have known that the Leslie Land Corporation contribution was not reported properly. However, the "memo" on the check indicated "William L. Bishop," and the report gave Bishop's address as "c/o L. L. Corporation." It was not proven that the Respondent intentionally was trying to hide the true source of the Leslie Land Corporation contribution or make it look like it was coming from William Bishop, individually, instead of the business, Leslie Land Corporation. It is just as possible that the intention was to include all of the information on the check for full disclosure and that the initials "L. L." were used instead of the full name of the Leslie Land Corporation by mistake or oversight, or to compress all of the information into the limited space allotted on the report form. The Respondent's campaign treasurer's reports listed a contribution on October 22, 1992, in the amount of $100 from the "Bill Kincaid Company," when the check was written on the account of the Kincaid Company, and signed by William F. Kincaid. The Respondent reasonably did not think there was anything wrong with the way the Kincaid contribution was reported. All the report did was provide the additional information of Kincaid's first name, along with the company name. It was not proven that the Respondent was trying to hide the true source of the Kincaid contribution or make it look like it was coming from Kincaid, individually, instead of from the Kincaid Company. The Respondent also reasonably did not perceive the Kincaid contribution to have come from a "special interest." The Respondent's campaign treasurer's reports listed a contribution on October 29, 1992, in the amount of $50 from Kenneth Wetherington, when the check was written on the account of the Morgan and Wetherington Chiropractic, and signed by Kenneth Wetherington. The Respondent did not think there was anything wrong with the way the Wetherington contribution was reported. She thought that a chiropractor in partnership with other chiropractors acted in his own behalf when making a political contribution, even when writing a partnership check. Although the Respondent probably incorrectly reported this contribution, the Respondent reasonably did not perceive the Wetherington contribution to have come from a "special interest," and it was not proven that the Respondent intentionally was trying to hide the true source of the Wetherington contribution or make it look like it was not coming from the partnership of Morgan and Wetherington Chiropractic. The Respondent's campaign treasurer's reports listed a contribution on October 28, 1992, in the amount of $100 from Paul Rozeman, when the check was written on the account of the McCaw Communications of Florida, Inc., and signed by someone other than Rozeman. (The signature was illegible, and it could not be identified through testimony.) However, the check was delivered by Rozeman, who worked in McCaw's local office, and who introduced himself to the Respondent. Although McCaw Communications is a large corporation, the Respondent was not familiar with it and was willing to assume that the contribution was from Rozeman's company and to decided err on the side of using his name. Obviously, her assumption was incorrect, and the report was in error. In any event, the Respondent probably should have known that the contribution was not reported properly. (See Finding of Fact 36, above.) But the evidence did not prove that the Respondent was lying, and that she actually perceived McCaw Communications to be a "special interest," and intentionally was trying to hide the true source of the contribution and make it look like it was coming from Rozeman, individually, instead of from McCaw Communications. In all, the Respondent's campaign treasurer's reports that were admitted in evidence listed 216 separate contributions. ($3,052 in cash and check contributions and $1615.80 of in-kind contributions would have been listed in earlier reports that were not admitted in evidence.) Of the 216 separate contributions, 31 (aside from the ones discussed in paragraphs 15 through 43, above) unambiguously and properly listed the contributions as coming from corporations, businesses or organizations. Contributions Allegedly Over $100 And Falsely Reported As Several $100 Contributions On or about October 5, 1992, the Respondent's campaign received a $500 check on the account of, and signed by Allen Preston, with explicit instructions to consider it and report it as being a $100 contribution from each of the five family members: Allen; his wife, Rosina; and their three children, Robert, Kelley, and Phillip. On or about September 3, 1992, the Respondent's campaign received a $300 check on the account of Aquarius Water Refinery, Inc., and signed by Joe Gaskill, with explicit instructions to consider it and report it as being a $100 contribution from him, another $100 contribution from his wife, and another $100 contribution from his company, Aquarius Water Refinery, Inc. On or about September 3, 1992, the Respondent's campaign received a $200 check on the account of Care Animal Hospital, Inc., and signed by Richard Kane, a veterinarian and the corporation's president, with explicit instructions to consider it and report it as being one $100 contribution from him and another $100 contribution from his corporation. The Respondent did not specifically request that the Preston, Gaskill and Kane contributions be considered and reported as being several contributions of $100. Preston, Gaskill and Kane all were aware of the Respondent's campaign pledge to limit contributions to $100, and it was their desire and intention not to cause the Respondent to violate the pledge. The Respondent did not think it was improper or illegal or inaccurate to reports the Preston, Gaskill and Kane contributions as requested. It appears that the Petitioner has issued an advisory opinion that contributions in excess of the statutory maximum by check drawn on a joint account only can be divided into smaller contributions from more than one account holder if all of the donors sign the check. (The Petitioner's investigator testified to the existence of such an advisory opinion, but none was admitted in evidence at the hearing. The Petitioner attached to its proposed recommended order a copy of what purports to be its advisory opinion on the subject, designated DE 93-10, but technically the advisory opinion still is not in evidence in this case.) But there is no evidence that the advisory opinion was furnished to the Respondent or that she was aware of it. If the Respondent were aware of the advisory opinion, she should at least have been on notice to inquire whether it was permissible to report the contributions as she did. But it still would not have been clearly impermissible. Allegedly False Termination Report And Improper Disposition of Surplus Funds The deadline for submission of the Respondent's termination campaign treasurer's report was 90 days after the general election, or Monday, February 1, 1993. As the deadline approached, the Respondent reasonably thought she needed two things in order to file the termination report: first, the January, 1993, bank statement on the campaign account; and, second, the resolution of a dispute she had with the phone company (GTE of Florida, Inc., or GTE) about charges on bills she received after having the campaign headquarters phone disconnected. On the weekend before the termination report was due, the Respondent attempted to obtain the bank statement but was told that it just had been put in the mail and could not be regenerated by the bank's computer at that time. The bank personnel advised the Respondent to wait until the statement arrived in the mail. Without the bank statement, the Respondent reasonably could not prepare the termination report before the deadline. She asked officials at the local elections supervisor's office for advice and was told to write a note explaining the reasons why she could not meet the deadline. She wrote a note dated February 1, 1993, stating that she "could not report on the closing of my campaign account until I received the final Banking Statement." It is found that the note was truthful and that she did not have the January, 1993, bank statement at the time she wrote it. Testimony from Larry Sweat to the effect that the Respondent came into her office that day and gave him the bank statement to hide in a drawer is rejected as false or mistaken. The Respondent did not receive the bank statement in the mail until later that week. It is possible, as testified by Sweat, that he and the Respondent had a discussion to the effect that it was to the Respondent's advantage that her termination report would not be available for public scrutiny on the deadline, along with the reports of other candidates (assuming they were filed on time). But it is as likely, or more likely, that Sweat thought of the fortuitous side- benefit of filing late. In any event, it is found that the Respondent did not intentionally file late in order to reap the perceived side-benefit that might have been discussed. It is possible that, when the January, 1993, bank statement was received in the mail, the Respondent brought it into the office and gave it to Sweat to keep in his desk drawer until she was in a position to prepare the termination report. (The dispute with the telephone company still was not resolved.) But it is found that, contrary to Sweat's testimony, the Respondent did not give the bank statement to Sweat to "hide" in his desk drawer. On February 18, 1993, the Respondent filed the termination report. It showed a January 6, 1993, check on the campaign account (check number 1070) in the amount of $88.45, made out to cash. The check memo stated, "petty cash reimbursement," but the report clarified that the cash actually was paid to the Respondent and two others for the purchase of party goods for the celebration of the Respondent's victory in the general election. The February 18, 1993, termination report also showed that a February 16, 1993, check for $48.95 to GTE of Florida (check number 1072) "on account, balance due in dispute" was written on the campaign account on the day of the report. The report also showed a zero balance in the account. Check number 1072 never was presented to the bank, and its whereabouts is not known. The Petitioner contends that check number 1072 and the disputed telephone bill were fabrications to cover the improper disbursement of $48.95 of surplus to the Respondent. But the check just as easily could have been lost or, for some reason, simply not presented to the bank for payment. Besides, as reflected in the following Findings of Fact, the evidence was clear both that there was in fact a dispute regarding the GTE bill and that the $48.95 was not disbursed to the Respondent in February, 1993. The Petitioner presented the GTE telephone records for the Respondent's campaign office telephone account in an apparent attempt to prove that, as of November 10, 1992, there was only a $1.02 balance on the account and that GTE was not pursuing collection of the $1.02. But, while only a $1.02 balance appeared on the campaign telephone account as of November 10, 1992, approximately $154.68 was transferred at that time from the campaign telephone account to the Respondent's personal home telephone account. It was the transferred charges that the Respondent was disputing. For reasons not apparent from the record, on or about December 10, 1992, GTE reduced the balance transferred to the Respondent's home phone bill to $131.37. Apparently, GTE further reduced the transferred balance to $84.09 on December 19, 1992; again, no explanation for the further reduction is apparent. The $84.09 charge remained on the GTE records at least until an entry on one of the records indicating that GTE wrote it off as uncollectible on or about February 12, 1993. Although the records include the notation dated February 12, 1993, indicating that GTE was writing off the $84.09 charge as being uncollectible, the Petitioner did not call a witness from GTE to explain the GTE records, and the records presented at the hearing do not go beyond the February 12, 1993, entry. It is not clear from the records that GTE stopped soliciting payment of the charge at that time. On May 12, 1993, the Respondent filed an amended termination report showing a March 30, 1993, disbursement to the Respondent in the amount of $36.95 for reimbursement for partial payment of the campaign's GTE bill. It also attached a copy of the March 31, 1993, bank statement on the campaign account showing a beginning balance as of March 1, 1993, in the amount of $36.95 and one withdrawal/debit in the same amount during the month, for a zero balance at the end of the month. The Respondent testified that she paid the $84.09 charge in June, 1993. Unfortunately, the Respondent's testimony was not corroborated by any records. But the GTE records presented by the Petitioner did not go beyond February 12, 1993, and without testimony from a witness from GTE, they were insufficient to disprove the Respondent's contention that she paid the charge in June, 1993. If the June, 1993, payment date is correct, the amended termination report filed on or about May 12, 1993, would indicate that the Respondent disbursed the $36.95 balance of the campaign account (representing the $48.95 she thought she had paid to GTE on or about February 16, 1993, less a $12 bank service charge for February, 1993) to herself on or about March 30, 1993, believing that there still was a disputed $84.09 charge to GTE, and that she held the money pending resolution of the disputed charge. When she paid the GTE charge, she considered the March 30, 1993, disbursement to herself to be reimbursement for her payment of the GTE charge. The Respondent knew or should have known that it was improper to disburse surplus from the campaign account to herself, except to reimburse her own contributions to her campaign. But, according to the Respondent's testimony, she did not consider the $36.95 payment to herself to be "surplus" since she considered there to be an outstanding disputed liability to GTE.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Elections Commission enter a final order dismissing the charges against the Respondent, Lydia Miller. RECOMMENDED this 6th day of April, 1995, 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 6th day of April, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-6612 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1. First sentence, accepted but subordinate and unnecessary. The rest is conclusion of law. 2.-3. Last two sentences, rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Last two sentences, rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated. Rejected as not proven. (Rather, she complied with the donors' instructions as to the source of the donations and how to report them.) First sentence, rejected as argument. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven that the Respondent willfully filed false reports. As to Ackerman, rejected as not proven that the report was inaccurate. Otherwise, accepted and incorporated. First sentence, rejected as not proven that he admitted his wife did not make the contribution. (He said it was possible that she made it but he does not think she did.) Second sentence, rejected as not proven as to Ackerman but otherwise, accepted and incorporated. Third sentence, rejected as not proven that she said Suzie Farmer was responsible; the Respondent admitted to handling the Ackerman contribution and testified that said that someone, quite possibly Farmer, attached an explanatory "Post-It" note to the other cash contributions. Last sentence, rejected as not proven. Third, fifth and last sentences, rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven that the Respondent willfully made false reports. Otherwise, accepted and incorporated. First, sixth penultimate and ultimate sentences, accepted but subordinate and unnecessary. The rest is rejected as not proven. (A review shows that she usually followed Barr's advice although not in each and every case.) Penultimate sentence, rejected as not proven as to petty cash. Otherwise, accepted and incorporated. Rejected as not proven. Last sentence, rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated. Third sentence, rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Penultimate and ultimate sentences, rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. First and last sentences, ejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. First, sixth, seventh and eighth sentences, rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Last sentence, rejected as not proven as to petty cash. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Respondent's Proposed Findings of Fact. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary or argument. Third paragraph, fourth sentence (that the small size of the individual alleged "masked" cash donations makes the allegation "absurd"), rejected as contrary to the greater weight of the evidence. (The point of the Petitioner's argument that a single fairly large cash contribution--which could have been in addition to reported contributions--could have been "masked" by fabricating many small cash contribution.) Otherwise, accepted and incorporated to the extent not subordinate or unnecessary or argument. Second paragraph, first sentence (that the dispute concerned check #1072), rejected as contrary to the greater weight of the evidence. Third paragraph, first sentence, rejected in part (omission of January, 1993, bank statement as a cause of initial delay) as contrary to the greater weight of the evidence and in part (the Respondent's first campaign and the amounts involved) as irrelevant on the issue whether she willfully violated the law. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary or argument. COPIES FURNISHED: David R. Westcott, Esquire Assistant General Counsel Department of State, Division of Elections The Capitol, Room 2002 Tallahassee, Florida 32399-0250 Ralph C. Stoddard, Esquire Hampton, Stoddard, Griffin & Runnells 915 Oakfield Drive, Suite F Brandon, Florida 33511 Carlos Alvarez, Chairman Florida Elections Commission Room 1802, The Capitol Tallahassee, FL 32399-0250
The Issue Whether the Petitioner qualifies for a consumer's certificate of exemption as a "Religious Institution" or "Church" or as a "Charitable Institution" as defined in Chapter 212, Florida Statutes.
Findings Of Fact Petitioner was incorporated in the State of Florida as a nonprofit corporation on May 11, 1995. On February 21, 1995, Petitioner filed an application for a consumer's certificate of exemption as a charitable institution. The Department under its statutory powers denied the application and advised the Petitioner of his right to a hearing on his application. George B. Cooper is the incorporator president and treasurer of Petitioner. Mr. Cooper serves as the pastor of the Petitioner. Mr. Cooper is a Seventh Day Adventist and attended religious training with that denomination. He is not an ordained minister. The business office and business address of Petitioner is in Jacksonville, at the home of a friend of Mr. Cooper. Mr. Cooper resided in Jacksonville initially, and started his missionary activities there. He subsequently moved the mission to Daytona Beach, and resides in Jacksonville and overnights in Daytona Beach when engaged in mission work. Mr. Cooper leases one-third of a private residence located at 610 Winchester Street, Daytona Beach, Florida. Mr. Cooper provided receipts for $1075 for leasing this space from February, 1995, until July, 1995, and a letter from the landlord which indicates that she is aware that Mr. Cooper conducts religious services there. The leasehold includes a large meeting room with chairs for persons attending services and a podium from which Mr. Cooper leads religious services which include prayer, song and preaching. A small room is available with a cot and sleeping bag to provide a place for homeless to overnight. Mr. Cooper sleeps at the mission when in Daytona Beach. In addition the leasehold includes access to bath and kitchen facilities. Clothes and food are also stored at the mission which Petitioner provides to persons in need. These clothes and food items are gifts in kind obtained from individuals and organizations. Mr. Cooper does not maintain complete records of the items given to him or of the items which he gives away. Mr. Cooper testified that he received $4667 between May and December, 1994 which included $4000 which he received from distribution of religious tracts and pamphlets. Mr. Cooper testified that his expenditures between May and December, 1994 were $5150. This included expenses of $2100 for travel, rent and utilities, $383 for office materials, $100 for literature and gifts of food, clothes and money in the amount of $2567. None of the gifts of money were to other religious or charitable organizations. The Petitioner's mission in Daytona Beach provides clothes, food and minimal temporary shelter to homeless persons and others in need, together with preaching the gospel. To this end, Mr. Cooper conducts church services at regular times during the week and is available to provide care to those who come by his mission 24 hours a day when he is in Daytona Beach.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That the application of the Petitioner as a religious institution be approved. DONE and ENTERED this 7th day of September, 1995, in Tallahassee Florida STEPHEN F. DEAN, 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 7th day of September, 1995. APPENDIX The Department filed proposed findings which were read and considered. The following states which of those findings were adopted and which were rejected and why: Respondent's Recommended Order: Findings: Paragraphs 1, 2 Paragraphs 1, 2 Paragraphs 3, 4 Subsumed by Paragraphs 3, 4 Paragraph 5 Subsumed in part in 3, 4; and rejected in part as irrelevant Paragraphs 6, 7 Subsumed in Paragraph 1 Paragraph 8 Irrelevant There is no allegation that the application was incomplete Paragraph 9 Irrelevant except that the Department automatically considers alternative basis for exemptions Paragraph 10 Subsumed in Paragraph 1 Paragraph 11 Subsumed in Paragraph 6 It is irrelevant that there are no signs or ads or telephone These are not required of a church. Paragraph 12 Deleted from Respondent's findings Paragraph 13 Statement of Case Paragraph 14 The listing of items is not necessary as a finding. Paragraph 15 Subsumed in Paragraph 6 Paragraphs 16, 17 Subsumed in Paragraph 4 Paragraph 18 Subsumed in Paragraph 5 Paragraph 19 Irrelevant and invades the province of the fact finder Paragraph 20 Conclusion of Law COPIES FURNISHED: George B. Cooper, Pastor 2172 McQuade Street Jacksonville, FL 32209 and 610 Winchester Street Daytona Beach, FL 32114 Nancy Francillon, Esquire Lisa M. Raleigh, Esquire Assistant Attorneys General Office of the Attorney General The Capital-Tax Section Tallahassee, FL 32399-1050 Linda Lettera, General Counsel Department of Revenue 204 Carlton Building Tallahassee, FL 32399-0100 Larry Fuchs, Executive Director Department of Revenue 204 Carlton Building Tallahassee, FL 32399-0100
Findings Of Fact The WCHS maintains one checking account. The bookkeeping for the checking account is segregated into a General Account and multiple Internal Accounts. The Internal Accounts represent various interest centers at the school, e.g., athletics, welding class, auto repair, small engine repair and senior class. Each Internal Account and the General Account have separate ledger cards. The General Account is used to receive miscellaneous income such as coke machine receipts or employee reimbursements for long distance calls and to pay non-specific expenses. The Internal Accounts are used to purchase supplies for particular activities and to receive ticket proceeds, monies raised and reimbursements for parts and materials used in repair of the equipment. The bookkeeping is done by the sole bookkeeper, Mrs. Madelyn Crowson, who has been so employed for more than 15 years. Original documentation for receipt of funds includes a receipt, a deposit and a receipts journal. Original documentation for issuance of funds includes a purchase order, a check requisition with supporting documentation attached and checks. Cash on hand is kept in a safe which is normally opened between 8:15 and 5:30 a.m. by Crowson, left "latched" but not locked until late in the day. The Principal is required to prepare a Monthly Report of Internal Accounts from the Internal Account ledger cards and to certify such to the Superintendent. The WCHS is audited annually by external auditors for the WCSB. The WCHS has a Vocational Department which includes an Auto Repair Class, a Small Engine Repair Class and a Welding Class, among others. The Chairman of the department for the 1981-82 school year was Mrs. Helen Whaley, wife of Superintendent Whaley. The Auto Repair, Small Engine Repair and Welding classes all teach by having community members and students bring items which require the attention of the class (cars or small engines needing repair, or items to be welded, etc.), and the items are repaired. Vocational classes such as those noted all charge a shop fee to recover the cost of expendable items. Whether WCHS through an Internal Account acquired the parts necessary for the repair and was later reimbursed by the customer, or whether the customer brought the parts to the shop is subject to the wishes of the individual teacher and the customer. However, both methods were utilized. The financial management of the Athletic Department was the responsibility of the Athletic Director through the Athletic Fund Internal Account. For several years the Assistant Principal served as the Athletic Director. Don Mathews, a guidance counselor, was the Athletic Director for the 1981-82 school year. Income to the athletic account was derived primarily from the sale of tickets to athletic events. Tickets were acquired and controlled by the Athletic Director in rolls of 2,000, with unused tickets being maintained in an unlocked cabinet in a room also used to store the cheerleaders' equipment. Reports of tickets sold were made on a Department of Education (DOE) approved form and the funds received were noted on the DOE form, signed by Mathews and receipted by Crowson to the Athletic Fund Internal Account. Each of the Reports of Tickets Sold or Admissions contained signatures certifying that the information was true and accurate and that the persons depositing the funds were depositing all funds received. At the beginning of the 1981-82 school year, Pelham appointed Mathews to be Athletic Director and advised him that he would be in charge of the funds from athletic ticket sales. He also informed Mathews how ticket sales and funds had been handled in previous years. The normal procedure for football ticket sales was as follows: (1) Mathews would acquire $600.00 for change, divide the change into 3 metal cash boxes and put an adult and student roll of tickets with each box; (2) Mathews would give each of three ticket sellers a box of 2 rolls of tickets at the beginning of the game, collect each box and rolls of tickets at intervals throughout the game, put away the equipment for each gate and deliver the metal boxes to Pelham, who would lock them in the driver's education car trunk until the game was over; (3) Pelham, who was the only person attending the game with both a key to the school office and the combination to the safe, would transfer the contents of the three boxes to one box and lock it in the safe; and (4) on the following Monday morning, Crowson and Mathews would count the money, compare the money to the number of tickets removed from each roll, complete the Report of Tickets Sold or Admissions, and make the deposit. The regular season home games for WCHS were: Blountstown - September 18, 1981 Jefferson County - October 2, 1981 F.A.M.U. - October 9, 1981 Rickards - October 23, 1981 Port St. Joe - November 13, 1981 There were two play-off games played at WCHS following the regular season against Jefferson County and Bolles High School. Because the play-off games are sponsored by the Florida High School Athletics Association, the home team principal is required to be in charge of those ticket sales. Mathews was in charge of ticket sales for the regular season. During the Blountstown, Jefferson County and F.A.M.U. games, the ticket sale proceeds were not counted before Monday morning. In each game the number of tickets missing from the rolls when multiplied by the ticket price did not equal the funds reported on Monday morning. In each game Mathews and Crowson "doctored" the Report of Tickets Sold and Admissions to reflect no discrepancies. Pelham had previously instructed Mathews and Crowson to adjust these reports for the purpose of eliminating minor discrepancies. Neither Mathews nor Crowson advised Pelham of these discrepancies which they adjusted. During the Rickards game, a cash count was performed by the ticket sellers but checks were cashed and funds were intermingled sufficiently to question the accuracy of the count on either Friday night or Monday morning. During the Port St. Joe game, a cash count was conducted, but following the cash count and before the funds were recounted, several persons had access to the funds and all of the ticket sellers had made errors in their counts. Major errors in arithmetic were committed on several occasions by persons counting the money after the games. Therefore, it could not be determined with any degree of certainty that the final counts reflected missing dollars or merely corrections of earlier errors. There were a substantial number of tickets for which there was no accounting. Because of the deficiencies in ticket accounting, it cannot be determined whether there was, in fact, any money missing. None of the Reports of Tickets Sold or Admissions certified by Mathews to be accurate reflect money or tickets missing except for the report on the Port St. Joe game. However, if there was money missing from this game, the evidence is insufficient to determine if it was stolen, and if so, by whom. Pelham brought his lawn/garden tractor to the Small Engine Repair Class during the Spring of 1980 for repair by the class. This tractor is a Sears product and has an Onan engine. In the fall of 1981 the shop teacher provided Pelham with a list of the parts necessary for repair. The parts were provided and installed on the tractor by late January of 1982. However, no battery was available to start and test the equipment. The tractor was removed from WCHS in March or April of 1982 without completion of the repairs. A check requisition and check for $65.71 drawn on WCHS to Sears Roebuck & Co., a copy of a check requisition and a check in the amount of $16.62 drawn on WCHS to Whitehill Equipment Co., and a check requisition for $293.00 to Whitehill Equipment Co. were introduced. However, no positive connection was made between these documents and the associated invoices and parts to be received by Pelham or used for his benefit. In October, 1981, a check requisition and check for $27.85 drawn on WCHS were issued to Whitehill Equipment Co. by Pelham for Onan parts (Petitioner's Exhibit 10, A, B, & C). These parts were picked up at Whitehill and signed for by J. D. Jones, WCHS football coach, at Pelham's request and were delivered to him. Here, Petitioner's documentary evidence and Jones' testimony, which were unrebutted, established that Pelham utilized school funds, which he did not replace, to obtain supplies for his personal use or benefit. In December, 1980, a check requisition and check for $113.31 drawn on WCHS were issued to U.S. Games, Inc. by Pelham for a tennis net (Petitioner's Exhibits 9, A). This tennis net was procured for Pelham's personal use with school funds. Respondent did not make reimbursement of these funds, but offered to do so when presented with the Statement of Charges in February, 1982.
Recommendation From the foregoing, it is RECOMMENDED that Respondent be found guilty of charges set forth in paragraphs 9(1) and 9(4) of the Statement of Charges, and that he be dismissed from his position as teacher under continuing contract with the Wakulla County District School Board. It is further, RECOMMENDED that Respondent be suspended with pay, including back pay from the date of suspension without pay, pending issuance of a Final Order by the Wakulla County School Board. DONE and ENTERED this 13th day of August, 1982, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 1982.
The Issue The issue for determination is whether Petitioner should be granted a consumer’s certificate of exemption pursuant to Subsection 212.08(7)(o), Florida Statutes.
Findings Of Fact The Department of Revenue (Respondent) is the state agency charged with enforcement of Chapter 212, Florida Statues, and the issuance of certificates of exemption. Unto Others, Inc. (Petitioner) is an organization incorporated in the State of Florida as a non-profit corporation. Petitioner’s Articles of Incorporation, Article II, states Petitioner’s purpose as follows: The purposes for which the Corporation [Petitioner] is organized are exclusively religious, charitable, scientific, literary, and educational within the meaning of section 501(c)(3) of the Internal Revenue Code of 1986 or the corresponding provision of any future United States Internal Revenue law. Petitioner made application to the Respondent for a certificate of exemption as a charitable institution pursuant to Subsection 212.08(7)(o)2.b, Florida Statutes. Petitioner did not make application for an exemption as a scientific, religious, or educational institution, but it may in the future apply under these criteria. By Notice of Intent to Deny (Notice) dated January 30, 1998, the Respondent notified Petitioner that its application was being denied. The grounds stated in the Notice for the denial were the following: (1) "Your organization does not provide, nor does it raise funds for charitable institutions which provide one or more of the charitable services listed in the statute [Subsection 212.08(7)(o)2.b, Florida Statutes]."; and (2) "Your organization fails to meet the qualification for exemption from sales and use taxation, as set forth in Section 212.08(7), Florida Statutes." Currently, Petitioner’s sole function is the raising of funds to enable Petitioner to rehabilitate people and dwellings. All of Petitioner’s activities are conducted by non-paid volunteers. No evidence was presented to show that Petitioner rehabilitates any person or dwelling, or holds religious services. No evidence was presented to show that Petitioner governs or administers any office within any hierarchy of a larger organization. No evidence was presented to show that Petitioner participates with or controls another organization. No evidence was presented to show that Petitioner expends more than 50 percent of its expenditures toward any charitable service. No evidence was presented to show that Petitioner disburses more than 50 percent of its expenditures directly for a charitable service or to any entity that directly provides or performs any charitable service. No evidence was presented to show that Petitioner directly provides or performs any charitable service for any entity or person; or that Petitioner provides any goods or services as a charitable service. No evidence was presented to show that Petitioner directly provides a reasonable percentage of any charitable service free or at a substantially reduced cost to persons, animals, or organizations that are unable to pay for such services. No evidence was presented to show that any charitable service was provided free or at a substantially reduced cost. No evidence was presented to show that persons, animals, or organizations actually received any charitable service and that those persons, animals, or organizations were unable to pay for such service(s). Petitioner does not currently provide any of the services listed in Subsection 212.08(7)(o).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a final order denying a consumer's certificate of exemption to Unto Others, Inc. DONE AND ENTERED this 31st day of August, 1998, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 1998.
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.
