Findings Of Fact Background Respondents, John F. and Chere Kuller, were minority partners in a limited partnership which developed and constructed a seventeen unit condominium project known as Bahia East Condominium (project).2 Thee precise location of the project was not disclosed, but it is in the Fort Walton Beach area. Respondents, as developers, are subject to the regulatory requirements of petitioner, Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes (Division). The project was completed in 1979, and its declaration was filed on September 28, 1979. Units immediately went on sale. Financing for these units we" arranged with a Pensacola lending institution, and based upon that institution's commitment, contracts for the sale of all seventeen units were executed by prospective buyers. When the institution experienced financial problems and could not honor its commitment, none of the buyers purchased units. Because of this, the first sale did not occur until October 4, 1980. A developer is required to adhere to a number of Division requirements, including the payment of monthly assess meets on developer-owned units, funding a repair reserve, and furnishing annual financial statements to all unit owners. This proceeding stems from a complaint filed by certain unit owners after the developers relinquished control of the project to the homeowners' association on May 11, 1984. Prior to that time, respondents controlled the board of directors of said association, and were responsible for the keeping of its books and records. Count I - Monthly Assessments As a general rule, a developer is not liable for the payment of monthly assessments on all unsold units until the first calendar date of the fourth month following the sale of the first unit. This ninety day grace period is commonly referred to as the election period. However, the developer may be excused from future payments if the developer guarantees to each purchaser that the monthly assessment will not increase, for a certain period of time, and obligates himself during this period of time to pay all common expenses incurred above the amount of assessments received from unit owners. In the case at bar, there was no written or oral guarantee by respondents to freeze the monthly assessments. This was confirmed through testimony of a unit owner, and evidenced by a monthly assessment increase that took effect in March, 1984, or prior to the turnover date. Between October, 1980 and March, 1984, the cost of the monthly assessment varied with the size of the unit, and ranged from $27.50 for the smallest unit, to $55.00 for a two bedroom, one bath unit, to $82.50 for the largest unit. Since no guarantee was made, respondents were obligated to begin paying assessments on their unsold units in February, 1981. However, they failed to do so. Instead, they calculated their other expenses in maintaining the project, and credited the amount of monthly assessments owed against these other expenses. Since other expenses always exceeded the amount of assessments owed, no funds were ever specifically earmarked into the monthly assessment account. Had such assessments been paid from February, 1981 through May 11, 1984, which is the turnover date, respondents' obligation would have been $15,948.64. This amount was derived from records given by respondents to the association at turnover and was not credibly contradicted. Count II - Reserves The complaint charges that respondents "failed to submit reserves annually nor fund reserves as required." According to Division requirements, a developer is required to establish and fund a reserve to cover future repairs from the date of declaration until the end of the election period. These funds are then turned over to the association. Beginning after the election period, a developer is required to establish and fund a reserve account in an amount prescribed by the project's declaration. In this case, the project's recorded declaration provided that the reserve had to equal 10% of the total annual monthly assessments paid by unit owners. Therefore, respondents were required to establish a reserve no later than February, 1981, and to fund it by setting aside 10% of the total monthly assessments. Such an account was timely established by respon- dents at a Pensacola bank in January, 1981 in the amount of $480. This amount was spent within three or four months on repairs to an air-conditioner generator and the purchase of reserved parking signs. No additional funds were placed in the reserve account after January, 1981. Each year a projected annual budget was prepared by the developers which included an amount for the reserve, but no funds were ever actually set aside for that purpose. Although this requirement can be waived by vote of the association, respondents conceded that the funding requirement was never waived. Respondents justified their course of action on the theory the association account into which the assessments were placed was running a deficit, and the developers had already guaranteed to cover all expenses. However, this procedure is not sanctioned by statute or rule. According to uncontradicted testimony, had appropriate reserves been funded as required, respondents would have funded $4,770.56 from February, 1981 until the turnover. Count III - Annual Financial Statements The final count involves an allegation that respondents "failed to furnish unit owners with an annual financial statement for the years 1980, 1981, 1982 and 1983." According to Division requirements, all non-developer unit owners must be furnished a copy of the project's "annual financial statement" each year. This document must be prepared and distributed by mail or personal delivery. Respondents claimed that this was done. However, petitioner presented the testimony of two unit owners for the purpose of showing that such statements were not distributed as required. One unit owner, William C. Naftel, received the 1982 statement, but could not recall one way or the other whether he received statements in the years 1981, 1983 and 1984. A second unit owner, Max C. Bolton, Jr., testified he "may have" received such a statement in 1982, but did not receive one for the years 1980, 1981 and 1983. Mitigation This project was respondents' first and only development venture in Florida. Respondents' lack of compliance with Division requirements did not appear to the undersigned to be intentional. Rather, it stemmed from a combination of poor outside advice and a failure on their part to make diligent inquiry as to what precise obligations the statutes and Division rules imposed upon them from an accounting and legal standpoint. At hearing, respondents claimed they have lost a considerable amount of money on the project, which amount far outweighs any claims advanced by the agency.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondents be found guilty of violating Subsections 718.115(2), 718.112(2)(k); and 718.111(13), Florida Statutes (1985), and that a $2,500 civil penalty be imposed; to be paid within thirty days from date of final order. DONE and ORDERED this 3rd day of June, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 1986.
The Issue The two issues raised in this proceeding are: (1) whether the basis and reason Respondent, Vestcor Companies, d/b/a Madalyn Landings (Vestcor), terminated Petitioner, Carlos Gomez's (Petitioner), employment on June 28, 2002, was in retaliation for Petitioner's protected conduct during his normal course of employment; and (2) whether Vestcor committed unlawful housing practice by permitting Vestcor employees without families to reside on its property, Madalyn Landing Apartments, without paying rent, while requiring Vestcor employees with families to pay rent in violation of Title VII of the Civil Rights Act of 1968, as amended, and Chapter 760.23, Florida Statutes (2002).
Findings Of Fact Based upon observation of the demeanor and candor of each witness while testifying, exhibits offered in support of and in opposition to the respective position of the parties received in evidence, stipulations of the parties, evidentiary rulings made pursuant to Section 120.57, Florida Statutes (2002), and the entire record compiled herein, the following relevant, material, and substantial facts are determined: Petitioner filed charges of housing discrimination against Vestcor with the Commission on August 30, 2002. Petitioner alleged that Vestcor discriminated against him based on his familial status and his June 28, 2002, termination was in retaliation for filing the charge of discrimination. Vestcor denied the allegations and contended that Petitioner's termination was for cause. Additionally, Vestcor maintained Petitioner relinquished his claim of retaliation before the final hearing; and under oath during his deposition, asserted he would not pursue a claim for retaliation. Petitioner was permitted to proffer evidence of retaliation because Vestcor terminated his employment. The Commission's Notice was issued on January 7, 2005. The parties agree that Petitioner was hired by Vestcor on June 25, 2001, as a leasing consultant agent for Madalyn Landing Apartments located in Palm Bay, Florida. Petitioner's job responsibilities as a leasing consultant agent included showing the property, leasing the property (apartment units), and assisting with tenant relations by responding to concerns and questions, and preparing and following up on maintenance orders. Petitioner had access to keys to all apartments on site. At the time of his hire, Petitioner was, as was all of Vestcor employees, given a copy of Vestcor's Employee Handbook. This handbook is required reading for each employee for personal information and familiarity with company policies and procedures, to include the company requirement that each employee personally telephone and speak with his/her supervisor when the employee, for whatever reason, could not appear at work as scheduled, which is a basis and cause for termination. The parties agree that Vestcor's handbook, among other things, contains company policies regarding equal employment; prohibition against unlawful conduct and appropriate workplace conduct; procedures for handling employee problems and complaints associated with their employment; and procedures for reporting illness or absences from work, which include personal notification to supervisors, and not messages left on the answering service. Failure to comply with employment reporting polices may result in progressive disciplinary action. The parties agree that employee benefits were also contained in the handbook. One such employee benefit, at issue in this proceeding, is the live-on-site benefit. The live-on- site benefit first requires eligible employees to complete a 90-day orientation period, meet the rental criteria for a tax credit property, and be a full-time employee. The eligible employee must pay all applicable security deposits and utility expenses for the live-on-site unit. Rent-free, live-on-site benefits are available only to employees who occupy the positions of (1) site community managers, (2) maintenance supervisors, and (3) courtesy officers. These individuals received a free two-bedroom, two-bathroom apartment at the apartment complex in which they work as part of their employment compensation package. The rent-free, live-on-site benefit is not available for Vestcor's leasing consultant agent employees, such as Petitioner. On or about July 3, 2001, Petitioner entered into a lease agreement with Vestcor to move into Apartment No. 202-24 located at Madalyn Landing Apartments. The lease agreement ended on January 31, 2002. The lease agreement set forth terms that Petitioner was to receive a $50.00 monthly rental concession, which became effective on September 3, 2001. Although he was eligible for the 25-percent monthly rental concession, to have given Petitioner the full 25 percent of his monthly rental cost would have over-qualified Petitioner based upon Madalyn Landing Apartment's tax credit property status. Petitioner and Vestcor agreed he would receive a $50.00 monthly rental concession, thereby qualifying him as a resident on the property. Petitioner understood and accepted the fact that he did not qualify for rent-free, live-on-site benefits because of his employment status as a leasing consultant agent. Petitioner understood and accepted Vestcor's $50.00 monthly rental concession because of his employment status as a leasing consultant agent. The rental concession meant Petitioner's regular monthly rental would be reduced by $50.00 each month. On September 1, 2001, Henry Oliver was hired by Vestcor as a maintenance technician. Maintenance technicians do not qualify for rent-free, live-on-site benefits. At the time of his hire, Mr. Oliver did not live on site. As with other employees, to become eligible for the standard 25-percent monthly rental concession benefits, Mr. Oliver was required to complete a 90-day orientation period, meet the rental criteria for a tax credit property, be a full-time employee, and pay all applicable security deposits and utility expenses for the unit. On November 13, 2001, Michael Gomez, the brother of Petitioner (Mr. Gomez), commenced his employment with Vestcor as a groundskeeper. Groundskeepers did not meet the qualifications for rent-free, live-on-site benefits. At the time of his hire, Mr. Gomez did not live on site. As with other employees, to become eligible for the standard 25-percent monthly rental concession benefits, Mr. Gomez was required to complete a 90-day orientation period, meet the rental criteria for a tax credit property, be a full-time employee, and pay all applicable security deposits and utility expenses for the unit. On November 21, 2001, 81 days after his hire, Mr. Oliver commenced his lease application process to reside in Apartment No. 203-44 at Madalyn Landing Apartments. Mr. Oliver's leasing consultant agent was Petitioner in this cause. Like other eligible Vestcor employees and as a part of the lease application process, Mr. Oliver completed all required paperwork, which included, but not limited to, completing a credit check, employment verification, and income test to ensure that he was qualified to reside at Madalyn Landing Apartments. Fifteen days later, on November 28, 2001, Mr. Gomez commenced his lease application process to reside in Apartment No. 206-24 at Madalyn Landing Apartments. As part of the leasing process, Mr. Gomez, as other eligible Vestcor employees who intend to reside on Vestcor property, completed all necessary paperwork including, but not limited to, a credit check and employment verification and income test to ensure he was qualified to reside at Madalyn Landing Apartments. Included in the paperwork was a list of rental criteria requiring Mr. Gomez to execute a lease agreement to obligate himself to pay the required rent payment, consent to a credit check, pay an application fee and required security deposit, and agree not to take possession of an apartment until all supporting paperwork was completed and approved. Mr. Gomez's leasing consultant was Petitioner. On December 28, 2001, Petitioner signed a Notice to Vacate Apartment No. 206-24, effective February 1, 2002. The Notice to Vacate was placed in Vestcor's office files. Petitioner's reasons for vacating his apartment stated he "needed a yard, garage, more space, a big family room, and some privacy." Thirty-four days later, February 1, 2002, Mr. Gomez moved into Apartment No. 206-24 at Madalyn Landing Apartments without the approval or knowledge of Vestcor management. On January 9, 2002, a "Corrective Action Notice" was placed in Petitioner's employee file by his supervisor, Genea Closs. The notice cited two violations of Vestcor's policies and procedures. Specifically, his supervisor noted Petitioner did not collect administration fees from two unidentified rental units, and he had taken an unidentified resident's rental check home with him, rather than directly to the office as required by policy. As a direct result of those policy violations, Ms. Closs placed Petitioner on 180 days' probation and instructed him to re-read all Vestcor employees' handbook and manuals. Petitioner acknowledged receiving and understanding the warning. At the time she took the above action against Petitioner, there is no evidence that Ms. Closs had knowledge of Petitioner's past or present efforts to gather statements and other information from Mr. Gomez and/or Mr. Oliver in anticipation and preparation for his subsequent filing of claims of discrimination against Vestcor. Also, on January 9, 2002, Petitioner was notified that his brother, Mr. Gomez, did not qualify to reside at Madalyn Landing Apartments because of insufficient credit. Further, Petitioner was advised that should Mr. Gomez wish to continue with the application process, he would need a co-signer on his lease agreement or pay an additional security deposit. Mr. Gomez produced an unidentified co-signer, who also completed a lease application. On January 30, 2002, the lease application submitted by Mr. Gomez's co-signor was denied. As a result of the denial of Mr. Gomez's co-signor lease application, Vestcor did not approve Mr. Gomez's lease application. When he was made aware that his co-signor's application was denied and of management's request for him to pay an additional security deposit, as was previously agreed, Mr. Gomez refused to pay the additional security deposit. As a direct result of his refusal, his lease application was never approved, and he was not authorized by Vestcor to move into any Madalyn Landing's rental apartment units. At some unspecified time thereafter, Vestcor's management became aware that Mr. Gomez had moved into Apartment No. 206-24, even though he was never approved or authorized to move into an on site apartment. Vestcor's management ordered Mr. Gomez to remove his belongings from Apartment No. 206-24. Subsequent to the removal order, Mr. Gomez moved his belongings from Apartment No. 206-24 into Apartment No. 103-20. Mr. Gomez's move into Apartment No. 103-20, as was his move into Apartment No. 206-04, was without approval and/or authorization from Vestcor's management. Upon learning that his belonging had been placed in Apartment No. 103-20, Mr. Gomez was again instructed by management to remove his belongings. After he failed and refused to move his belongings from Apartment No. 103-20, Vestcor's management entered the apartment and gathered and discarded Mr. Gomez's belongings. As a leasing contract agent, Petitioner had access to keys to all vacant apartments. His brother, Mr. Gomez, who was a groundskeeper, did not have access to keys to any apartment, save the one he occupied. Any apartment occupied by Ms. Gomez after his Notice to Vacate Apartment No. 103-20 was without the knowledge or approval of Vestcor and in violation of Vestcor's policies and procedures. Therefore, any period of apartment occupancy by Mr. Gomez was not discriminatory against Petitioner (rent-free and/or reduced rent), but was a direct violation of Vestcor's policies. On February 10, 2002, Mr. Oliver signed a one-year lease agreement with Vestcor. Mr. Oliver's lease agreement reflected a 25-percent employee rental concession. Throughout Mr. Oliver's occupancy of Apartment No. 203-64 and pursuant to his lease agreement duration, Mr. Oliver's rental history reflected his monthly payment of $413.00. There is no evidence that Mr. Oliver lived on site without paying rent or that Vestcor authorized or permitted Mr. Oliver to live on site without paying rent, as alleged by Petitioner. On June 2, 2002, Ms. Closs completed Petitioner's annual performance appraisal report. Performance ratings range from a one -- below expectations, to a four -- exceeds expectations. Petitioner received ratings in the categories appraised as follows: Leasing skills -- 4; Administrative skills -- 2, with comments of improvement needed in paperwork, computer updating, and policy adherence; Marketing skills -- 4, with comments that Petitioner had a flair for finding the right markets; Community awareness -- 3, with no comment; Professionalism -- 2, with comments of improvement needed in paperwork reporting; Dependability -- 2, with comments of improvement needed in attendance; Interpersonal skills -- 3, with no comments; Judgment/Decision-making -- 3, with no comments; Quality of Work -- 2, with comments that work lacked accuracy; Initiative -- 4, with no comment; Customer service -- 3, with no comments; Team work -- 2, with comments of improvement needed in the area of resident confidence; Company loyalty -- 2, with comments of improvement needed in adherence to company policy and procedures; and Training and development -- 3, with no comments. Petitioner's Overall rating was 2.5, with comments that there was "room for improvement." On June 27, 2002, while on 180 days' probation that began on January 9, 2002, Petitioner failed to report to work and failed to report his absence to his supervisor, Ms. Closs, by a person-to-person telephone call. This conduct constituted a violation of Vestcor's policy requiring all its employees to personally contact their supervisor when late and/or absent from work and prohibited leaving messages on the community answering service machine. On June 28, 2002, Petitioner reported to work. Ms. Closs, his supervisor, informed Petitioner of his termination of employment with Vestcor for failure to report to work (i.e. job abandonment) and for probation violation, as he had been warned on January 9, 2002, what would happen should a policy violation re-occur. It was after his June 28, 2002, termination that Petitioner began his personal investigation and gathering of information (i.e., interviews and statements from other Vestcor employees) in preparation to file this complaint. Considering the findings favorable to Petitioner, he failed to establish a prima facie case of retaliation by Vestcor, when they terminated his employment on June 28, 2002. Considering the findings of record favorable to Petitioner, he failed to establish a prima facie case of housing and/or rental adjustment discrimination by Vestcor, based upon familial status of himself or any other employer. Petitioner failed to prove Vestcor knowingly and/or intentionally permitted, approved, or allowed either Mr. Gomez or Mr. Oliver to live on site without a completed and approved application followed by appropriate rent adjustments according to their employment status and keeping within the tax credit requirement, while requiring Vestcor employees with families (or different employment status) to pay a different monthly rent in violation of Title VII of the Civil Rights Act of 1968. Petitioner failed to prove his termination on June 28, 2002, was in retaliation for his actions and conduct other than his personal violation, while on probation, of Vestcor's policies and procedures.
Recommendation Based on the foregoing, Findings of Fact and Conclusions of Law, it is RECOMMENDED the Florida Commission on Human Rights enter a final order dismissing the Petition for Relief alleging discrimination filed by Petitioner, Carlos Gomez. DONE AND ENTERED this 29th day of August, 2005, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE 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 29th day of August, 2005.
Findings Of Fact The Petitioner is an agency of the State of Florida charged in pertinent part, with insuring that businesses which sell and dispense food stuffs comply with the various sanitation and non-contamination requirements embodied in chapter 500, Florida Statutes, and Section 5E-6, Florida Administrative Code. The Respondent is a Florida corporation operating the store at issue, Number 9559, in Orlando, Florida, concerning which the charges involving unsanitary and contaminated food are alleged. The Respondent is regulated by the Petitioner agency in the area of retail food sales and food sanitation standards. On November 20, 1985, John H. Miller, Sr., the food inspector for the Petitioner, visited the Respondent's convenience store located at 600 West Lancaster Road in Orlando, Orange County, Florida. On that date he inspected that store and noted that the restroom was in need of cleaning, there were no hand towels in the restroom, the floors in the entire store were in need of cleaning and the ice holding freezer was in need of defrosting. The supervision of sanitation in the store needed much improvement. He informed the store's manager that he would reinspect in a few days. Mr. Miller reinspected on November 27, 1985. He found much the same problem existed at the store as existed on his first visit. The floors were still greatly in need of a cleaning throughout the entire store. The ice holding refrigerator box was still in need of defrosting and sanitation supervision was still substandard. He counseled the manager once again concerning these problems and told him that he would again reinspect to see if the problems had been corrected. They had not been corrected as of the second visit. Upon his third visit on December 4, 1985, Mr. Miller found the same problems not corrected and additionally found that food products were stored in a restroom on the floor. He found the restroom floor was in need of a good cleaning and that one of them was in need of a key because it was not lockable. There were no soap or towels for sanitary purposes in the restrooms. The floors in the entire store still were in need of cleaning and stripping, especially the floor in the vicinity of the cooler and dry storage areas. Additionally he found the drains stopped up on the ice freezer, with generally poor supervision for sanitary practices throughout the store. Mr. Miller left the third inspection report with these problems noted thereon with the manager and counseled with the manager about the problems and their need for correction once again. He has served as a food inspector for approximately 23 years and in his experience it is very unusual for a regulated business to have more than two (2) reinspections without problems noted earlier being corrected. The Respondent, after three (3) inspection visits, failed to correct the problems noted by the inspector which had been explained to the Respondent's representative on the scene. There was an ample number of days between each inspection such that the Respondent, with the exercise of due diligence, could have corrected the sanitation and cleanliness discrepancies. The Respondent apparently utterly ignored the presence of the violations.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the Respondent, Cumberland Farms Number 9559, be found GUILTY of violating the above statutory provisions in the particulars alleged and found herein and that an administrative fine of $500 be assessed the Respondent. DONE and ORDERED this 1st day of October, 1986 in Tallahassee, Florida. P. MICHAEL RUFF 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 1st day of October, 1986. COPIES FURNISHED: Frank A. Graham, Jr., Esquire Senior Attorney Department of Agriculture and Consumer Services Room 512, Mayo Building Tallahassee, Florida 32301 Raymond D. Hoffman Area Supervisor Cumberland Farms 600 West Lancaster Road Orlando, Florida 32809 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301 Robert Chastain, Esquire General Counsel Department of Agriculture and Consumer Services Room 513, Mayo Building Tallahassee, Florida 32301
Findings Of Fact During the audit period in question, i.e., December 1, 1975 through March 31, 1979, Petitioner Ormond Hotel Corporation operated the Ormond Hotel, Ormond Beach, Florida. It was licensed during the audit period by the Division of Hotels and Restaurants, Department of Business Regulation, and classified as a retirement establishment. (Interrogatories) The Ormond Hotel is an old wooden structure containing 350 rooms with 258 rooms available for rental. The remaining rooms are not in proper condition for rental. Most of the hotel guests are over 65 years of age and reside there either permanently or on a seasonal basis, usually from December through March of each year. A few married couples have accommodations at the hotel, but most of the residents are single individuals occupying one room. Prior to 1978, Petitioner advertised the hotel in a national magazine called "Retirement Living" and conducted advertising on billboards, brochures, and in the classified section of the local telephone book under the hearing "Retirement Homes." The latter advertisement states that the facility is "a residential hotel," but also includes the words "DAY-WK-MO-YR." Similarly, the hotel's brochure recites that accommodations are available by day, month, or year. All units are available for rental to permanent tenants, but short-term occupancy is accepted if there are available rooms. The hotel does not have a swimming pool, but does have restaurant facilities and recreation areas. The hotel does not primarily cater to transient guests. (Testimony of Salveson, interrogatories) Respondent's auditor conducted an audit of Petitioner's business operations for the period December 1, 1975, through March 31, 1979. In arriving at whether or not the Ormond Hotel was subject to tax imposed by Section 212.03, Florida Statutes, on its rentals, he examined the Petitioner's books to ascertain the number of total available rental units and the status of tenants at the hotel during the months of April, May, and June of each year. If he found that 50 percent or more of the total units had been rented to persons residing there continuously for the specific three-month period, those tenants were considered to be permanent rather than transient tenants and the hotel was deemed exempt from tax pursuant to Rule 12A-1.61(1), F.A.C. In arriving at his determination of exempt status, the auditor did not deduct unoccupied rooms from the total number of units in arriving at his "fifty percent" determination. Although the auditor analyzed the advertising brochures of Petitioner, and was aware that the hotel was listed in the telephone directory under retirement homes, and concluded that such advertising was directed primarily to the acquisition of permanent guests, he predicted his audit findings solely on the "fifty percent" test concerning occupancy of total units. In this manner, he determined that Petitioner was exempt from taxation in 1975 based on the fact that for the April through June period for that year, 135 of the 264 total units had been occupied continuously by "permanent" tenants. In a similar manner he found that the hotel did not qualify for exemption during the succeeding years of the audit period. In this respect, he found that for 1976, there were only 119 such guests during the three-month period out of the 263 total units, which was less than 50 percent. In 1977, there were 102 such tenants out of 261 total units, which was less than 50 percent. In 1978, there were 98 such tenants and 259 total units, which was less than 50 percent. The auditor's worksheet reflects that there were 124 vacant rooms during the three-month period in 1975, 140 in 1976, 153 in 1977, and 153 in 1978. He concedes that if he had applied the "fifty percent" rule by comparing the number of three-month or "permanent" tenants with the number of occupied rooms for the three-month period each year, the number of rooms occupied by "permanent" guests would have been over fifty percent for each year of the audit period. (Testimony of Boerner, Exhibits 1-2, 4) Based on the audit, Respondent issued two separate "Second Revised Notices of Proposed Assessment" on January 15, 1980. The first assessment covered the period December 1, 1975 through November 30, 1978. It asserted tax due on room rentals in the amount of $21, 362.91 plus a delinquent penalty, and interest through January 15, 1980, for a total sum of $28,062.45. The assessment also asserted tax, penalty and interest for purchases unrelated to room rentals in the amount of $984.92, for a total assessment of $29,047.37. The assessment reflected that a partial payment had been made on October 2, 1979, in the amount of $2,590.62, leaving a balance due of $26,456.75. The other assessment showed tax on room rentals in the amount of $6,001.75, plus delinquent penalty of $300.10, and interest through January 15, 1980 in the amount of $611.76 for a total of $6,913.61. It also asserted tax, penalty, and interest on purchases in the amount of $23.39 for a total assessment of $6,937.00. This assessment also showed partial payment on October 2, 1979, in the amount of $132.08, leaving a balance due of $6,804.92. In a letter transmitting the assessments, dated January 16, 1980, Respondent advised Petitioner that the hotel did not qualify as an exempt facility under Rule 12A- 1.61(1)(a), F.A.C., during the audit period, because less than fifty percent of the facility's units were occupied by guests who had resided there three or more months as of July 1 each year. The letter further stated that "an analysis" of the rental of units submitted by Petitioner as to its exempt status did not conform to the requirements of the rule because the facility advertised to guests on a daily, weekly and monthly basis in addition to long-term leasing, the analysis used an annual rather than a three-month period prior to July as a basis, and the number of tenants at the facility rather than total units. (Exhibit 2) Petitioner's accountant prepared an analysis of the room status at the Ormond Hotel during the period July 1, 1977 to June 30, 1978. It reflects that 165 rooms, or 64.5 percent of the total of 256 units rented during the year, were occupied by tenants for a continuous period of over three months. On March 31 of that year, 157 rooms, or 61 percent of the total of 258 room available for occupancy, were occupied by guests for more than three months. Sixty-nine of the rooms were occupied by transient tenants or those with less than three- months occupancy (17 percent) and 32 rooms were unoccupied (12 percent). As of June 30, 1978, the hotel had 110 guests who had resided there for more than three months, and 18 guests with residency of less than three months. (Testimony of Salveson, Exhibit 3)
Recommendation That the proposed tax assessments against Petitioner Ormond Hotel Corporation arising out of the rental of living accommodations at the Ormond Hotel during the period December 1, 1975 through March 1, 1979, be vacated, and that the remainder of the proposed assessments be enforced. DONE and ORDERED this 10th day of June, 1980, in Tallahassee, Florida. THOMAS C. OLDHAM, 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 10th day of June, 1980. COPIES FURNISHED: J. Lester Kaney, Esquire Post Office Box 191 Daytona Beach, Florida 32015 Linda C. Procta, Esquire Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32301 John D. Moriarty, Esquire Department of Revenue Room 104 Carlton Building Tallahassee, Florida 32301
The Issue Whether Petitioner is eligible to participate in the State of Florida Drycleaning Solvent Cleanup Program ("DSCP").
Findings Of Fact On December 21, 1995, Petitioner was incorporated as a Florida corporation. Prior to its incorporation, Petitioner did not conduct any business activities. Since that time it has provided pretreatment for waste water generated by Associated Uniform Rental, Inc. ("AUR"). AUR is a uniform rental facility that rents uniforms and cleans those same uniforms using a laundry process that involves the use of soaps, softeners, and neutralizers. AUR's uniform cleaning process does not currently use, and has never used, drycleaning chemicals. On April 24, 1996, Petitioner applied to Respondent for eligibility to participate in the DSCP. Petitioner's DSCP application lists the street address for the site as 35 North Parramore Avenue, Orlando, Florida. The application is signed by Dominick Cirotti. Petitioner maintains a business office in the building located at 35 North Parramore Avenue. Although the application for eligibility lists the address for the site as 35 North Parramore Avenue, Petitioner has operated and continues to operate a waste water treatment system in the northwest corner of the building located at 21 North Parramore Avenue. Petitioner began operating the waste water treatment system after it was incorporated in December 1995. In January 1996, Petitioner acquired title to the real property located at 35 North Parramore Avenue. Petitioner's predecessor-in-title with respect to the above-referenced real property was AUR, f/k/a/ Atlantic Uniform Services, Inc. AUR originally acquired the property from Associated Uniform Rental and Linen Supply, Inc. ("AURLS") on July 21, 1979. AURLS and AUR are different companies. In January 1996, Petitioner also acquired title to the real property comprising the northwest corner of the building located at 21 North Parramore Avenue. AUR was Petitioner's predecessor-in-title with respect to both of the above-referenced real property. There is one building located at 21 North Parramore Avenue. The remainder of the building is utilized by AUR in conducting its business operations as a uniform rental company. The waste water treatment plant is separated from the remainder of AUR's building by a knee-wall. Petitioner's waste water treatment system processes waste water generated by the operations of AUR. Petitioner's waste water treatment plant is an integral part of the operation of AUR's uniform rental facility. The building at 35 North Parramore Avenue is located immediately to the north of the building located at 21 North Parramore Avenue. A narrow alleyway separates the two buildings. Prior to transferring the property to Petitioner, AUR used the northwest corner of 21 North Parramore Avenue for the storage of clothing as part of its operations as a uniform rental company. Since 1979, AUR has operated a uniform rental company in the building located at 21 North Parramore Avenue. AUR is currently located in the same building. AUR does not use perchloroethylene in its cleaning process. AUR rents uniforms and cleans them in a laundry process. AUR's facilities are utilized primarily for the cleaning and distribution of work apparel. Since 1985, AUR has also maintained an office in the building located at 35 North Parramore Avenue. This office operates as part of AUR's uniform rental company. Dominick Cirotti is a corporate officer of Petitioner as well as the President of AUR. Petitioner and AUR share common employees. Petitioner and AUR also share common office space in the building located at 35 North Parramore Avenue. At some time between 1925 and 1979, various drycleaning businesses operated on the property located at 21 North Parramore Avenue. Drycleaning operations ceased on the real property sometime between 1960 and 1965. In April 1993, AUR retained Environmental Science and Engineering, Inc. ("ESE") to perform a limited site assessment with respect to suspected drycleaning solvent contamination beneath AUR's building on 21 North Parramore Avenue. ESE's assessment, completed on May 6, 1993, was to determine the presence of impacted soil and/or groundwater in the immediate vicinity of a hole in the concrete slab located in that area of the facility which was once used for drycleaning operations. This area was targeted because the hole was a suspected dump site for used perchloroethylene, a solvent used in drycleaning. The hole was located in the northwest corner of AUR's building on 21 North Parramore Avenue. ESE collected soil samples and screened the samples for the presence of organic vapors, and also installed a temporary monitor well and collected a groundwater sample. ESE's analytical results verified that "both the soil and groundwater had been affected by a release of chlorinated solvents . . ." In June 1993, ESE performed an additional site assessment with respect to the contamination beneath AUR's building at 21 North Parramore Avenue. On July 28, 1993, ESE provided AUR with a letter that described its findings concerning the suspected contamination. The July 1993 ESE site Assessment Report includes a site plan (Figure 1) which depicts the installation of a temporary well in the northwest corner of the AUR building located at 21 North Parramore Avenue. This temporary monitor well was installed in the vicinity of the hole in the concrete slab. At the time the site assessment was performed by ESE, the northwest corner of the building was still owned by AUR. This monitor well was located in the same part of the building that AUR would later transfer to Petitioner. The additional site assessment performed by ESE confirmed the presence of perchloroethylene contamination. In April 1994, HSA, Inc., was contracted to provide AUR with a Preliminary Contamination Investigation with regard to the perchloroethylene contamination at AUR's building on 21 North Parramore Avenue. At the time the investigation was performed by HSA, the northwest corner of the building was still owned by AUR. A summary of the investigation's findings provided that soil and groundwater contamination issues apparently resulted from the disposal of purgeable hydrocarbons. Disposal was likely through one of two holes in the concrete slab within the cleaning facility. These site investigations corroborate that there is perchloroethylene contamination, and that it originates under two holes in the concrete slab in the northwest corner of the building located at 21 North Parramore Avenue. The perchloroethylene contamination meets the definition of "drycleaning solvents" per Subsection 376.301(9), Florida Statutes (1995). This statute provides that the definition of "drycleaning solvents" only includes " . . . those drycleaning solvents originating from use at a drycleaning facility . . ." Id. Respondent denied the application for eligibility in the DSCP because Petitioner's predecessor-in-title, AUR, operated a uniform rental company on the real property that is the subject-matter of this proceeding. Effective October 1, 1995, the term "drycleaning facility," as defined in Subsection 376.301(8), Florida Statutes, was amended to exclude uniform rental companies from eligibility to participate in the DSCP. At the time the amendment to Subsection 376.301(8), Florida Statutes, became effective, AUR was operating a uniform rental company in the buildings located at 21 North Parramore Avenue and 35 North Parramore Avenue. AUR continues to operate a uniform rental company in the building locates at 21 North Parramore Ave and 35 North Parramore Avenue.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that the Secretary declare Petitioner not eligible to participate in the Drycleaning Solvent Cleanup Program, and its application should be denied. DONE AND ENTERED this 11th day of May, 2001, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 11th day of May, 2001. COPIES FURNISHED: William H. Haak, Esquire Lowndes, Drosdick, Doster, Kantor & Reed, P.A. 215 North Eola Drive Post Office Box 2809 Orlando, Florida 32802 Jason Hand, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Kathy C. Carter, Agency Clerk Department of Environmental Protection Office of General Counsel 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
The Issue The issue presented for decision in this case is whether Respondent’s duplexes are subject to licensure under Chapter 509, Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: At all times relevant to this proceeding, Respondent owned lots with the street addresses of 317, 323, 329, 335, 341, 347, 353, and 359 61st Avenue East, Bradenton, Florida. On each of these eight lots stands a one-story duplex, making a total of sixteen rental units on the lots. None of the units is licensed as a "public lodging establishment" as defined in Section 509.013(4), Florida Statutes. The eight lots are situated on a plot of land recorded in Manatee County as "Pine Hollow Subdivision, Unit No. 1," in Section 13, Township 35 South, Range 17 East, Manatee County, Florida. The eight lots encircle a cul-de-sac. None of the lots are separated by a public street or highway. Each of the sixteen units is leased through a written rental agreement. The lease on each unit is for a period of one year. Each of the sixteen rental agreements is signed by Respondent as landlord. Respondent testified that, as landlord, he oversees the operation of the sixteen rental units. Respondent’s employee, Bruce Branch, has managed the properties for four years, handling the leasing of the units, collection of rents, and maintenance. All rental monies for the sixteen units are deposited into a single bank account and recorded on a single collection report. Mr. Branch testified that the units are always leased as sole residences for tenants, and are never leased for periods of one month or less. Mr. Branch stated that since he began as property manager, there have never been more than four units vacant at any one time. Victoria Bagley is a sanitation and safety specialist with the Division of Hotels and Restaurants. She conducts public lodging and public food service inspections, and investigates consumer complaints. She testified that her office received a complaint from a man residing at 323 61st Avenue East regarding a leaking ceiling and other possible building violations. Ms. Bagley visited the property to investigate the complaint. Ms. Bagley testified that the complainant told her that the duplex he lived in was owned by Respondent, and that Respondent also owned the neighboring duplexes. Ms. Bagley checked the Division’s records but found no licensing information for Respondent. She checked the property appraiser’s records and determined that Respondent was the owner of the eight lots and duplexes described above. Ms. Bagley then contacted Respondent and met him at his office. Ms. Bagley testified that she showed Respondent the results of her inspection and reviewed with him the licensing requirements of Chapter 509, Florida Statutes. She testified that they went over the statute in some detail, including the list of exclusions from the licensing requirement found at Section 509.013(4)(b), Florida Statutes. Ms. Bagley testified that she had a subsequent telephone conversation with Respondent about the licensing requirements. She stated that Respondent also discussed the possibility of selling or changing ownership of some of the properties. Respondent disputed whether Ms. Bagley showed him a copy of Chapter 509, Florida Statutes, at their initial meeting, though he did not contest any other aspect of Ms. Bagley’s testimony. Ms. Bagley specifically recalled that they reviewed a copy of Chapter 509 and discussed the definition of "public lodging establishment" in some detail. Ms. Bagley’s version of events is credited. Frank Cryan, a sanitation and safety supervisor with the Division of Hotels and Restaurants, inspected Respondent’s properties on February 25, 1998. He testified that the purpose of this inspection was to determine whether the property required licensure, and concluded "obviously it did." Mr. Cryan left a copy of his written inspection report with Respondent. On February 26, 1998, Respondent sent, via facsimile transmission, an inquiry to Gary Tillman, the Division’s acting district administrator, regarding the licensure requirements for the sixteen rental units. On the same date, Mr. Tillman responded as follows, in relevant part: If you decide to follow through with an ownership change, please supply this office with documentation to that effect. I am enclosing a copy of our application should you decide not to make changes in the operation of these rental units. If we do not receive documentation by the date noted on the inspection [March 12, 1998], we will continue with our procedures as prescribed by law. Respondent testified that he understood Mr. Tillman’s response to mean that a change in ownership of the eight lots would obviate the licensing requirement. Mr. Tillman denied that his response was intended to provide advice of any kind to Respondent, but was merely a request to provide his office with documentation regarding changes in ownership status of the properties. By warranty deeds dated March 31, 1998, Respondent transferred the ownership of each of the eight lots to eight separate trusts, with Respondent named as trustee of each trust. Respondent as trustee maintained "full power and authority to protect, conserve, sell, lease or encumber or otherwise manage and dispose of the real property" described in the warranty deeds. After execution of the warranty deeds, Respondent continued to contract with renters as "landlord" of the properties. Ms. Bagley inspected the properties again on August 18, 1998. Her report of this inspection again noted that the sixteen units were being rented without the license required by Chapter 509, Florida Statutes.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order dismissing this case. DONE AND ENTERED this 5th day of May, 2000, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 5th day of May, 2000. COPIES FURNISHED: Dorothy W. Joyce, Director Division of Hotels and Restaurants Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Gail Hoge, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Joseph P. McClash 405 26th Avenue, West Bradenton, Florida 34205
The Issue The issue is whether Petitioner should pay a sales tax, penalty, and interest totaling $195,849.08, assessed through September 11, 2008, plus statutory interest thereafter. Exhibit 1 —— : a ey Jone - _ _ a
Findings Of Fact The Department adopts and incorporates in this Final Order the Findings of Fact contained in the Recommended Order as if fully set forth herein.
Conclusions For Petitioner: John Beebe, pro se 30-A Restaurant Group, Inc. 166 Acacia Street Santa Rosa Beach, Florida 32459 For Respondent: Warren J. Bird, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Revenue Litigation Bureau Tallahassee, Florida 32399-1050
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a final order requiring 30-A Restaurant Group, Inc., to pay to the state of Florida a sales tax, penalty, and interest totaling $195,849.08, assessed through September 11, 2008, plus statutory interest thereafter. DONE AND ENTERED this 29th day of October, 2009, in Tallahassee, Leon County, Florida. org Lengo HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 2009. COPIES FURNISHED: John Beebe 30-A Restaurant Group, Inc. 166 Acacia Street Santa Rosa Beach, Florida 32459 Warren J. Bird, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Revenue Litigation Bureau Tallahassee; Florida~-32399-1050- Marshall Stranburg, General Counsel Department of Revenue The Carlton Building, Room 204 501 South Calhoun Street Post Office Box 6668 Tallahassee, Florida 32314-6668 Lisa Echeverri, Executive Director Department of Revenue The Carlton Building, Room 104 501 South Calhoun Street Tallahassee, Florida 32399-0100
Other Judicial Opinions Any party to this Order has the right to seek judicial review of the Order pursuant to Section 120.68, Florida Statutes, by filing a Notice of Appeal pursuant to Rule 9.110 Florida Rules of Appellate Procedure, with the Agency Clerk of the Department of Revenue in the Office of the General Counsel, P.O Box 6668, Tallahassee, Florida 32314-6668 [FAX (850) 488- 7112], AND by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 Copies furnished to: Harry L. Hooper Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL. 32399-3060 Warren J. Bird Assistant Attorney General Office of the Attorney General Revenue Litigation Bureau The Capitol-Plaza Level 01 Tallahassee, Florida 32399-1050 Marshall Stranburg, General Counsel Department of Revenue The Carlton Building, Room 204 501 S. Calhoun Street Post Office Box 6668 Tallahassee, Florida 32314-6668 Lisa Echeverri, Executive Director Department of Revenue The Carlton Building, Room 104 501 S. Calhoun Street Tallahassee, Florida 32399-0100 es) STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS 30-A RESTAURANT GROUP, INC., Petitioner, vs. Case No. 08-5823 DEPARTMENT OF REVENUE, Respondent.
