The Issue Whether Respondent, Walt Disney World, violated Section 760.08, Florida Statutes (2006), as alleged in the Petition for Relief in this matter.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Petitioner is a Caucasian male, born in Puerto Rico. He is an amateur photographer. He had visited Walt Disney World at least ten times prior to December 1, 2006. Respondent owns and operates a theme park in Orange and Osceola Counties, Florida. Respondent employs individuals with the job title, "security host," with the responsibility of maintaining security in the theme park. This category of employees is licensed by the State of Florida, and they receive training in "abnormal behavior of guests," threat analysis, surveillance, intelligence, and other job-related skills incidental to maintaining a safe environment within the theme park. Respondent has a specific protocol regarding theme park guests exhibiting "abnormal behavior." In the context of this case, taking photographs in the theme park is not an "abnormal behavior." In fact, guests are encouraged to photograph those accompanying them and various theme park characters, e.g., Mickey Mouse. However, excessive photographing of structures, "mapping or progression photography," is considered "abnormal behavior." "Mapping" consists of taking pictures in a progression, so as to familiarize someone who has never been to an area with the layout of that area and is considered very unusual behavior. Petitioner entered the Magic Kingdom, part of Respondent's theme park, on December 1, 2006. A security host observed Petitioner photographing the main entrance and security bag check. Petitioner was unaccompanied. The subject matter and manner of Petitioner's photography was considered to be "abnormal" by the security host. Once a security cast member identifies potentially abnormal behavior by a guest, the protocol requires the security host to contact a member of management (by radio) and continue to observe the guest. Petitioner moved further into the Magic Kingdom and took photographs of Main Street and City Hall. Because Petitioner was limiting his photography to structures, the security host's initial impression that Petitioner was doing something "abnormal" was reinforced and, in accordance with the established protocol, he again called management. As further dictated by Respondent's security protocol, the uniformed security host is then met by an "undercover" security host whose job-responsibility is "real-time threat analysis." The "threat-analysis" security host continued to observe Petitioner as he took what was interpreted by the security host to be "panoramic" photographs of Town Square and "mapping" photographs of the interior of the train station. He, too, assessed Petitioner's photographic activities as "abnormal." Because the "threat analysis" security host concurred with the initial determination of "abnormal," the security protocol dictates that a security manager make contact with the guest. This was done in a discreet and unobtrusive manner. The security manager identified himself as an employee of Respondent and asked Petitioner if "he could do anything to assist him." Petitioner did not respond, so the security manager repeated himself. Respondent responded that he "was not an Arab terrorist," or words to that effect. His response was louder than conversational, and he appeared to be agitated. Because Petitioner was uncooperative, the security manager called a uniformed law enforcement officer, an Orange County, Florida, deputy sheriff, as dictated by Respondent's security protocol. The deputy sheriff asked for, and received, Petitioner's driver license. After a license check revealed that Petitioner's address was valid, he was allowed to pursue his activities in the theme park. His interaction with the security manager and deputy sheriff lasted approximately 15 minutes. Petitioner then returned to his theme park photography without limitation and spent an additional two hours in the theme park, until his camera's battery pack ran down. He did not have any further interaction with Respondent's security personnel, nor was he kept under surveillance. Petitioner returned to Respondent's theme park on December 9, 27, 28, 29 and 30, 2006 (he had an annual pass), had access to all facilities without difficulty, and had no encounters with Respondent's security personnel. The incident that occurred on December 6, 2006, was a result of Petitioner's photography being identified as "abnormal." There is no evidence that it was precipitated by his national origin or that Respondent was not exercising reasonable diligence in an effort to protect theme park visitors and employees.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Jose M. Gandia, failed to present a prima facie case of discrimination based on national origin, and, therefore, this matter should be dismissed in its entirety and a determination be entered by the Florida Commission on Human Relations that Respondent, Walt Disney World, did not violate the provisions of Chapter 760, Florida Statutes, as alleged in the Petition for Relief. DONE AND ENTERED this 13th day of March, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 2008. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Jose M. Gandia 3054 Holland Drive Orlando, Florida 32825 Paul J. Scheck, Esquire Shutts & Bowen, LLP 300 South Orange Avenue, Suite 1000 Post Office Box 4956 Orlando, Florida 32802-4956
The Issue Whether Respondent committed violations of Subsection 616.242(19)(a), Florida Statutes (2006),1/ as alleged in the Administrative Complaint dated August 23, 2007, and, if so, what penalties, if any, should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing in this matter, the following Findings of Facts are made: Petitioner is the state agency responsible for inspecting and regulating amusement rides pursuant to Section 616.242, Florida Statutes. Respondent, a Florida corporation, owns and operates the amusement rides which are the subject of this administrative action, specifically, two go-cart tracks known as the "Commander Track" (USAID #05211) and the "Quad Helix Track" (USAID #05212). During an unannounced inspection on May 31, 2007, Petitioner's inspector observed that there was one attendant assigned to the Commander track and there were two attendants assigned to the Quad Helix track. These tracks are interconnected in that they are laid out so that the tracks are intertwined, but one cannot drive from one track to the other. The Commander track is 590 feet long with a maximum speed of 11.61 mph. The Quad Helix track is 1575 feet long with a maximum speed of 15.13 mph. At the time of the inspection, Petitioner's inspector felt that the monitoring procedures in place did not satisfy the statutory requirement that the ride not be operated "in a manner or circumstance that presents a risk of serious injury to patrons." There are a total of four tracks in Respondent's park; all are to some degree intertwined or positioned close together. On May 31, 2007, there were six specified track attendants on duty that were positioned through the park and each attendant is instructed to visually monitor the interconnected tracks. May 31, 2007, was a Thursday. The inspection occurred prior to noon which was not a busy time at the park. At the time of the inspection, there were eight attendants operating other amusement rides in areas contiguous to the Commander and Quad Helix tracks. All attendants in the park are equipped with two-way radio communications and are in constant radio communication with each other as part of the standard monitoring procedures. Respondent's has implemented a procedure called the "10-20" rule for monitoring its premises. Literally, this means that every ten seconds each attendant is to visually scan his surrounding area and each attendant must be able to respond to any area of the track within 20 seconds. Determining whether each attendant actually performs this safety ritual every ten seconds is problematic; the procedure does, however, serve to remind each employee that a safety vigil must be constantly maintained. Respondent had electronic video monitoring throughout the amusement park, and although no employee is specifically designated to constantly monitor the video screens, the screens are located in an office that is regularly occupied. There were a sufficient number of Respondent's employees "on duty" and in position to monitor the Commander and Quad Helix tracks at the time and date of the alleged violations to ensure that these amusement rides were operated in a manner or circumstance that did not present a risk of serious injury to patrons.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that Petitioner, Department of Agriculture and Consumer Services, enter a final Order dismissing the Administrative Complaint directed to Respondent, Fun Spot of Florida, Inc., dated August 23, 2007. DONE AND ENTERED this 29th day of February, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of February, 2008.
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by John D. C. Newton, II, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Petitioner’s Notice of Dismissal, a copy of which is attached, and incorporated by reference, in this order. The Department hereby adopts the Order Closing File and Relinquishing Jurisdiction as its Final Order in this matter. Accordingly, it is hereby ORDERED and ADJUDGED that Respondent, Wild Hogs Scooters and Motorsports, LLC, be granted a license to sell motorcycles manufactured by Astronautical Bashan Motorcycle Manufacturer, Co., Ltd. (BASH) at 1805 West Fairbanks Avenue, Winter Park (Orange County), Florida 32789, upon compliance with all applicable requirements of Section 320.27, Florida Statutes, and all applicable Department rules. Filed April 20, 2012 8:11 AM Division of Administrative Hearings DONE AND ORDERED this _]4 thday of April, 2012, in Tallahassee, Leon County, Florida. Julie Baker, Chief Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motorist Services this 19th day of April, 2012. NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. JB/re Copies furnished: R. Craig Spickard, Esquire Kurkin Forehand Brandes, LLP Suite 1B 800 North Calhoun Street Tallahassee, Florida 32303 N Meiredith Huang Peace Industry Group (USA), Inc. 6600 B Jimmy Carter Boulevard Norcross, Georgia 30071 Jonathan Rupp Wild Hogs Scooters and Motorsports 1805 West Fairbanks Avenue Winter Park, Florida 30071 John D. C. Newton, I Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 Nalini Vinayak Dealer License Administrator
Findings Of Fact Petitioner, T L Consultants, Inc., is a corporation which manages health care facilities. Vettraino Associates Investment Company owns 90 percent of T L Consultants and Grace LaRocca owns the other 10 percent. Vettraino Associates Investment Company is owned in trust by the children of Henry Vettraino, Sr., who set up the trust. Louis Vettraino, son of Henry Vettraino, Sr., is one of the individual trustholders of Vettraino Associates Investment Company and acts as president of T L Consultants, Inc. Grace LaRocca acts as vice president of T L Consultants. In 1980, W. S. Samford, Residential Services Director for District 8 of the Department of Health and Rehabilitative Services was overseeing the implementation of the cluster concept to initiate and aid in the development of Intermediate Care Facilities for the Mentally Retarded (ICF/MR's) in his district. At the request of his supervisor, Mr. Samford returned a call from a Mr. Bundschu. Mr. Bundschu, who dealt in real estate and was involved in the construction company of Bundschu, Bundschu, Kraft and Vettraino, knew of the need for ICF/MR's and indicated he had some Michigan investors who were interested in starting up such a facility. Through Mr. Bundschu, Mr. Samford met with Louis Vettraino and Henry Vettraino, Sr., who indicated that they were interested in building and operating an ICF/MR. Subsequently, Louis Vettraino contacted Maurice Reisman concerning ownership of the facility. Mr. Reisman indicated he would be interested in owning such a facility and, together with Grace LaRocca and Louis Vettraino, he met with Mr. Samford to discuss the application for a certificate of need (CON). Prior to applying for a CON or construction of the facility, it was understood by all of the parties that Henry Vettraino's construction company would build the facility and lease it to Maurice Reisman who would contract with T L Consultants for management services. Louis Vettraino was aware from the beginning that a management firm could not own a facility and charge a fee. He acknowledged that the management firm had sought out the owner instead of the owner seeking out a management firm in the open market. Concerned about the propriety of the management structure which was contemplated, Mr. Reisman wrote Mr. Samford in February of 1981 and asked for a determination by HRS as to whether the proposal met the guidelines for reimbursement. In response to his inquiry, Mr. Reisman was notified that the Department of Health and Rehabilitative Services considered the structure to illustrate a "control" situation, subject to reimbursement limitations. In applying for the CON for the facility, Maurice Reisman relied heavily on the financial backing of Henry Vettraino, Sr. Although Mr. Reisman was applying for a CON for a 1.2 million dollar facility (later increased to 2.7 million dollars), he had only $142,000 in assets. To qualify for the CON, the assets of Henry, Sr., and Jennette Vettraino were included in both the original and amended CON applications. In the minutes of the Lee County Industrial Authority monthly meeting dated June 10, 1982, the bond issue for financing the facility is referred to as the "Vettraino bond issue." It was noted in the CON application that T L Consultants would be the management firm. The CON application was not prepared by Mr. Reisman, but by Grace LaRocca as Operations Director. Ms. LaRocca, a principal in T L Consultants, indicated in the CON application that she was on the Board of Directors of Sandy Park Rehabilitation Center, the corporation that Mr. Reisman formed to own the facility. In addition, when application was made for an amended CON, the request for expedited review listed T L Consultants as a Principal Party in the application. While waiting for the new facility to be built, Mr. Reisman and T L Consultants entered into an agreement to temporarily occupy the existing state facility. Concerned about his responsibilities, Mr. Reisman contacted Mr. Samford for clarification of the agreement. Mr. Samford indicated that although it seemed that Mr. Reisman was not in direct "financial interest" and control of the management firm, as holder of the CON, he was responsible for performance in meeting licensure requirements. This was a separate issue from the question of control for reimbursement purposes and was not a change in the Department's position on that issue. Notwithstanding the original opinion of the Department of Health and Rehabilitative Services, Mr. Reisman made application to the Medicaid Cost Reimbursement Unit (Medicaid) for reimbursement of management fees to be charged by T L Consultants. Mr. Reisman reiterated the fact that T L Consultants had contacted him and acknowledged that he had not sought competitive bids for management services. A proposed management agreement was submitted to Medicaid but was rejected because it had no termination clause. When a new management contract was submitted , the management fee had jumped from 7.5 percent to 10 percent without explanation. In submitting proof of Sandy Park's financial ability to Medicaid, a $100,000 line of credit from Lee County Bank was indicated. Investigation into that line of credit revealed that Henry Vettraino, Sr., had co-signed the loan for Maurice Reisman. These facts, along with the fact that Maurice Reisman had never previously owned a nursing home, the fact that T L Consultants had arranged the entire operation, and the facts surrounding the financing and involvement of Henry Vettraino, Sr., resulted in the denial of the management fees by Medicaid.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that management fees over and above the actual costs of services to T L Consultants, Inc. be allowed for reimbursement by Medicaid to Sandy Park Rehabilitation Center. DONE and ORDERED this 30th day of October, 1984, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 1984. COPIES FURNISHED: William B. Fitzgerald, Esquire Sandra J. Frank, Esquire Fitzgerald, Hodgman, Kazul, Rutledge, Cawthorne & King 1000 First Federal Building Detroit, Michigan 48226 Theodore E. Mack, Esquire Assistant General Counsel Department of HRS 1323 Winewood Boulevard Building One, Suite 407 Tallahassee, Florida 32301
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by E. Gary Early, Administrative Law Judge of the Division of Administrative Hearings. The Department hereby adopts the Order Closing File and Relinquishing Jurisdiction as its Final Order in this matter. Accordingly, it is hereby ORDERED and ADJUDGED that Petitioner, Daytona Beach Cycles, LLC d/b/a Indian Motorcycle of Daytona, be granted a license to sell motorcycles manufactured by Victory (VICO) at 420 North Beach Street, Daytona Beach (Volusia County), Florida 32114, upon compliance with all applicable requirements of Section 320.27, Florida Statutes, and all applicable Department rules. Filed March 8, 2012 9:15 AM Division of Administrative Hearings DONE AND ORDERED this Io day of March, 2012, in Tallahassee, Leon County, J “Baker Chief Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Florida. Filed with the Clerk of the Division of Motorist Services this Oy day of March, 2012. 2 Pobias Vinegek Nalini Vinayak, Dealer Kicense Administrator NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. JB/jc Copies furnished: Andrew Pallemaerts Volusia Motorsports, Inc. 1701 State Road 44 New Smyrna Beach, Florida 32168 Jonathan Brennen Butler, Esquire Akerman Senterfitt 222 Lakeview Avenue, Suite 400 West Palm Beach, Florida 33401 E. Gary Early Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator
Findings Of Fact Based upon the oral and documentary evidence presented at the final hearing and the entire record in this proceeding, the following findings of fact are made: Petitioner Conklin Shows, Inc., is a Florida corporation with its principal place of business in West Palm Beach, Florida. Conklin is engaged in the business of providing midway attractions for large fairs. The company services between five and eight fairs per year and provides rides as well as food and game concessions. In most instances, Conklin provides a turn-key operation whereby it provides all rides and concessions, sells tickets, collects all fees and charges, and pays the particular fair authority the amount set forth in the underlying agreement between the parties. Conklin owns and operates some of the rides that it provides and also owns a few food concessions. It also contracts with independent ride owners as well as food and game concession owners to provide the services necessary for a particular fair. Southeast Florida and Dade County Youth Fair Association, Inc. (the "Association") is a corporation which conducts an annual youth fair, in Dade County, Florida (the "Fair") in accordance with Chapter 616, Florida Statutes. Conklin has provided midway attractions, including rides, games and food concessions, for the Fair since the late 1970s. Initially, Conklin provided a complete turn-key operation for the Fair. In 1980 or 1981, the Fair advised Conklin that it wanted to modify the arrangement so that the Fair collected and dispersed all monies and retained the right to book attractions independently. Consequently, the parties modified their agreement so that the Association sold all the tickets used by the Fair-goers for admission and for rides. In other words, cash was not accepted from the public for admission and/or rides. The evidence indicates that cash was accepted at game and food booths. The Association employed all ticket sellers, sold admissions and tickets and paid the appropriate taxes on the sales. As discussed below, at the end of each day, the Association distributed the proceeds of the ticket sales and settled up with the food and game concessionaires. Conklin was paid an agreed upon percentage of the proceeds of the ticket sales after taxes. As part of the settlement, Conklin reimbursed the Association for certain expenses. In approximately March of 1990, DOR began an audit of Conklin at its offices in West Palm Beach. The audit was conducted primarily by Ms. Van T. Ho, a tax auditor with DOR. The audit covered the period between June 1, 1985 through February 28, 1990. Ms. Ho concluded that certain contractual arrangements between Conklin and its subcontractors who provided rides, games and food concessions for the Fair should be construed as the sublease or sublicense of the rental of real property. Since Conklin had not remitted sales tax to the State of Florida for these subleases or sublicenses, she concluded that sales tax should be assessed against Conklin. In addition, Ms. Ho reviewed Conklin's records regarding purchases of parts and materials and concluded that appropriate sales tax had not been paid on certain purchases. The audit results with the additional assessed taxes, penalties and interest were incorporated in a Notice of Intent to Make Sales and Use Tax Audit Changes dated October 24, 1990 (the "Notice of Intent.") In the Notice of Intent, DOR advised Conklin that it had been found liable on various transactions subject to tax under Chapter 212, Florida Statutes, during the period June 1, 1985 through February 28, 1990. The Notice of Intent sought a total of $655,982.04 for taxes, penalties and interest through October 24, 1990 with additional interest at the rate of $142.69 per day. A Notice of Proposed Assessment was issued by DOR on April 25, 1991. Conklin protested the proposed assessment in a letter dated June 19, 1991. Ultimately, DOR issued a Notice of Decision dated May 27, 1992 upholding the audit findings. Conklin timely initiated this administrative challenge to DOR's Notice of Decision. At the commencement of the hearing in this matter, DOR announced that it was no longer contending that Conklin was subletting real property. Instead, DOR asserted that Conklin's contractual arrangements for ride subcontracts and for food and game concessions should be construed as licenses to use real property. Since the sales tax on a license to use real property did not become effective until July 1, 1986, DOR conceded that the assessment against Conklin should be reduced to delete any sales taxes related to the fairs conducted in February of 1985 and 1986. As set forth in the Preliminary Statement, DOR set forth its recalculated assessment in a late-filed exhibit which was submitted on March 26, 1993. The parties stipulated that the recalculation submitted on March 26, 1993, should be accepted as an amendment to Petitioner's Exhibit 1. According to that amendment, Petitioner is seeking a total of $468,520.80 for taxes, penalties and interest allegedly due through January 17, 1991 with a per diem interest rate of $105.58. For purposes of this proceeding, the proposed assessment can be broken down into four categories: (1) sales tax allegedly due from Petitioner on rental or license income from subcontractors who provided rides at the Fair; (2) sales tax allegedly due as the result of the sublease or sublicense of real property by Conklin to food concessionaires; (3) sales tax allegedly due as the result of the sublease or sublicense of real property by Conklin to game concessionaires; and (4) purchase tax allegedly due on parts and materials bought by Conklin which it claims were utilized in manufacturing or repairing rides for export. Rides During the years 1987 through 1990, Conklin contracted to provide rides to the Association for the Fair. Conklin was required to provide a specific number of rides in certain categories together with all personnel required to operate the rides. Conklin was also responsible for all expenses attributable to the operation and maintenance of the equipment. During all of the years in question, the Association sold the tickets for all rides, collected the proceeds and paid the applicable sales tax and remitted the agreed percentage of the after-tax receipts to Conklin. Conklin was paid a sliding scale percentage of the net revenues from the rides. Conklin typically contracted to provide more rides than it owned. In order to satisfy its contractual obligation, Conklin entered into agreements with independent ride owners. These subcontractors would provide all transportation, assembly and disassembly necessary for the ride, together with all personnel required for operation. Conklin did not take possession or exercise any direction or control over the physical operations of the ride. The subcontractor was responsible for all expenses related to the operation and maintenance of the ride and was required to reimburse Conklin for a proportionate part of the common expenses. Conklin agreed to pay the ride owner a percentage of the receipts attributable to that ride after sales tax. Each ride owner collected tickets from the Fair attendees. The subcontractors would turn their tickets over to Conklin. Conklin turned in the tickets for all rides provided by it and its subcontractors to the Association. After Conklin was paid its percentage by the Association, Conklin would pay the subcontractors a percentage attributable to their particular ride in accordance with the agreement between Conklin and that subcontractor. Conklin retained a portion of the amount received from the Association for all of the subcontracted rides. The subcontractors did not make any payments to Conklin nor did Conklin make any payments to the Association. The Association set the times of operation and other general policies for the Fair, but exercised no direction or control over the physical operation of any of the rides. In each case, the owner of the equipment furnished the operator and all operating supplies and made the particular ride available at the time dictated by the Association. DOR contends that the difference between the amount received by Conklin from the Association for rides provided by subcontractors and the amount paid by Conklin to the subcontractors was taxable because it arose from a sublicense of real property. 2/ Conklin, on the other hand, argues that its contractual arrangement with the subcontractors should be viewed as a nontaxable service transaction since it paid the subcontractors who in turn provided the rides together with operating personnel and expenses. As discussed in the Conclusions of Law below, Conklin's interpretation is consistent with the language of the subcontracts and more accurately reflects the relationship created by the parties. The mere fact that a ride was operated on real estate owned by another party should not be conclusive of whether the arrangement should be viewed as a license of real property as opposed to a rental of equipment. Food Concessions Conklin executed separate agreements with the Association to provide certain food and game concessions for the Fair during the years 1987 through 1990. The contracts between the Association and Conklin for food and game concessions were entitled "License Agreement for Exhibitors and Concessionaires." Those agreements specifically provided: It is understood and agreed the below described space is not leased to the Licensee [Conklin], rather he is a Licensee and not a lessee thereof. Under the food concession agreements, Conklin was obligated to provide specific food concessions, including all labor and operating expenses. The contract between the Association and Conklin designated specific areas at the Fair where the concessions were to be set up. The Association was entitled to a percentage of the gross receipts of the sales by the concessions. Conklin did not own any of the equipment utilized in connection with the food concessions. It entered into agreements with concessionaires to provide the personnel, equipment, goods and materials utilized. The concessionaire was responsible for all of the expenses involved with the concession. The concessionaire collected all of the money and settled daily with the Association by paying the Association the percentage due under its agreement with Conklin (which was normally twenty-five percent) together with the tax on that amount and the sales tax on all sales. The Association remitted the taxes on the rental (license) amount and the sales. Conklin was not privy to the settlement between the food concessionaires and the Fair. It was given a copy of the settlement sheet. The concessionaire paid Conklin a percentage of the gross based upon its agreement with Conklin. That percentage was normally between seven and ten percent. In the Notice of Assessment, DOR lumped food and game concessions together and assessed tax based upon its determination of the amount received by Conklin. The evidence presented at the hearing in this case established that the Notice of Assessment mistakenly included gross revenues rather than the net received by Conklin from game concessions. Petitioner's Exhibit 13 sets forth the correct amounts received by Conklin from food and game concessions during the years in question. During the years 1987, 1989 and 1990, the amounts received by Conklin from food concessions at the Fair were $11,919.73, $11,521.21 and $13,034.49 respectively. The Notice of Assessment indicates that there was no taxable income from food and game concessions in 1988. No explanation was given for this anomaly. Although there was no assessment for food and game concessions for 1988 in DOR's Notice of Assessment, Petitioner's Exhibit 13 indicates that Conklin received $16,975.22 from food and game concessions that year of which $11,938.44 was apparently attributable to food concessions. DOR contends the amounts received by Conklin from the food concessionaires were taxable because the arrangement constituted a sublicense of real property. Conklin contends that the money received from food concessions is exempt from taxation for the years since 1988 pursuant to Section 212.031(1)(a)(10), Florida Statutes. In its Proposed Recommended Order, Conklin conceded that this exemption did not come into effect until 1988. Consequently, Conklin admitted that it owed tax on the proceeds it received from the food concessions in 1987 ($11,919.73.) The evidence presented in this case was insufficient to conclude that Conklin was entitled to the exemption for the years subsequent to 1987. The exemption relied upon by Conklin is limited to a publicly owned arena, sports stadium, convention hall, exhibition hall, auditorium or recreational facility. While the parties agree that the Fairs in question were conducted pursuant to Chapter 616, Florida Statutes, no evidence was presented to establish that the Fair was conducted in one of the specified exempt facilities. Game Concessions With respect to the game concessions, Conklin agreed to provide a certain number of game booths and to pay a set fee to the Association for each game along with a five percent rental realty tax on that fixed amount. 3/ Conklin did not own or operate any game concessions itself. It contracted with the owner/operators of the various games. The owner/operator would provide all of the equipment and personnel. The game owner was responsible for collecting the money, paying all expenses of operation, paying the applicable sales tax to the Association and also paying the Association the contractual percentage and rental taxes set forth in the agreement between Conklin and the Association. The net profits from the game were to be split equally between Conklin and the owner of the game. In the event of a loss, Conklin was responsible for contributing one-half of the net amount. As discussed in the Conclusions of Law below, the amounts received by Conklin from the game concessions should be treated as the proceeds on joint venture partnerships between Conklin and the various concessionaires and, therefore, should not be taxable. If this conclusion is rejected and the amounts received by Conklin are viewed as taxable license or rental payments, the tax should be assessed on the share Conklin actually received. As set forth in Findings of Fact 17 above, the evidence established that DOR's calculation in the Notice of Assessment of the tax allegedly owed by Conklin for food and game concessions was incorrectly based upon the gross receipts for the game concessions rather than the net profits that Conklin actually received. During the years 1987, 1989 and 1990, Conklin's share of the profits from the games operated under its name amounted to $5,792.65, $1,554.64 and $1,179 respectively. The Notice of Assessment indicated there were no taxable receipts from food and game concessions in 1988. Petitioner's Exhibit 13 indicates that Conklin received $16,975.22 from food and game concessions that year, of which $5,036.78 was apparently attributable to game concessions. Exports Conklin is also engaged in the business of repairing and manufacturing games and rides. In the course of the manufacture or repair of these games and rides, Conklin purchases parts and supplies. Conklin's accountant testified that it paid the appropriate tax on all of its purchases except those items which were segregated out as being integral parts of products that were exported to Canada. DOR's auditor claims that she requested and was not provided with any documentation to support the exemption claim. While Petitioner's accountant claims that the company has documentation that the items in question were used in the manufacture and repair of items that were exported and this documentation was made available to DOR's auditor, no such documents were presented at the hearing in this matter to confirm that the final products were in fact exported. Consequently, the evidence was insufficient to establish that Conklin had complied with the applicable rule requirements and was entitled to the exemption it claimed. Penalties In 1984 and 1985, Conklin provided rides and concessions to the Martin County Fair under its usual turn-key system where it sold all the tickets. During those years, DOR sent an enforcement officer to the fair to ensure that all taxes were paid. The DOR enforcement officer reviewed all of Conklin's books and collected the sales tax from all the concessionaires. Although Conklin inquired as to whether it was paying all appropriate taxes, the DOR enforcement officer never indicated to Conklin that it was obligated to pay rental realty taxes on its subcontractual arrangements with ride owners and/or food and game concessionaires. Thus, there was some justification for Conklin's belief that it was not obligated to pay taxes on the ride subcontracts and the food and game concessions. Conklin's understanding of the law should have been reexamined with the adoption of the statutory clarification for the imposition of sales tax on a license to use real property. See section 66 of Chapter 86- 152 of the Laws of Florida effective July 1986. However, none of the statutory or rule provisions relied upon by DOR clearly address contractual arrangements such as those Conklin had with its ride subcontractors where the purported sublicensee made no payments to the alleged sublicensor. In view of these factors, it would be inappropriate to impose penalties on Conklin for "taxable income" it allegedly received from the ride subcontracts. Similarly, even if Conklin's contention that its arrangements with game concessionaires should be viewed as a joint venture is rejected, penalties should not be imposed since the statutory and rule provisions do not clearly address this situation. With respect to the food concessions, Conklin has conceded that it owes tax on the amount received from food concessionaires in 1987. Conklin has offered no justification for the failure to pay the tax on this amount other than to claim that it did not believe any tax was due because of comments (or lack thereof) by DOR representatives during the 1984-85 Martin County Fair. However, the basis for imposing a tax on a sublicense of real estate was significantly clarified in 1986. Thus, Conklin's purported reliance on the comments made in 1984 and 1985 should not be given much weight. Penalties on the assessment on food concession receipts from 1987 are appropriate. For the years subsequent to 1988, Conklin relies on the exemption set forth in Section 212.031(1)(a)(10), Florida Statutes. While it is possible that the exemption applies, the evidence presented at the hearing in this matter was insufficient to establish that this exemption was applicable. Consequently, penalties on the food concession receipts subsequent to 1988 are not appropriate. Following the issuance of the Notice of Proposed Assessment, Conklin admitted that it owed taxes on certain purchases that were made from out of state companies and shipped into the state. Conklin paid the tax on those items prior to the hearing in this matter. It is not clear what, if any, penalty was assessed with the late payment of the tax on these items. With respect to the remaining items, Conklin has steadfastly maintained its position that the items were utilized in connection with products that were exported. However, Conklin failed to convince DOR's auditor of the merits of its position and failed to provide sufficient evidence at the hearing in this matter to justify its claim. In view of all the circumstances, there is no basis for a waiver of penalties on this portion of the Notice of Assessment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a Final Order amending the Notice of Assessment to: (a) delete all taxes, penalties and interest assessed against Conklin for the ride subcontracts and game concessions; (b) affirming the assessment of tax against Conklin for the amount it received from food concessionaires during the years 1987 through 1990 (the amount of the assessment should be amended to reflect the net proceeds Conklin received rather than the gross revenues reflected in the original Notice of Assessment) and imposing penalties and interest on the amount of tax due; and (c) affirming the assessment of taxes, penalties and interest for the purchase of items that were allegedly used in the repair or manufacture of goods for export. DONE and ENTERED this 13th day of January 1994, at Tallahassee, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 1993.
The Issue Whether Respondent discriminated against Petitioner in employment in violation of the Florida Civil Rights Act of 1992.
Findings Of Fact At all times relevant hereto, Petitioner was employed by Respondent as a patient transporter. On December 27, 2018, Petitioner sustained a back injury while on the job. Petitioner reported the injury to Lora Vitali, Director of Colleague Health, Respondent’s employee healthcare department. Ms. Vitali instructed Petitioner to take the rest of the day off work and treat the injury with ice and ibuprofen. On December 28, 2018, Petitioner returned to Colleague Health and reported that she was still in pain. Colleague Health nurse, Monica Hubmann, arranged massage therapy and pain medication for Petitioner and instructed her to report back to Colleague Health on Monday, December 31, 2018, for further evaluation. Petitioner presented to Colleague Health on December 31, 2018, and reported that she was still in pain. Nurse Hubmann referred Petitioner to Dr. Spencer Stoetzel, who evaluates and treats Respondent’s employees who are injured on the job. Dr. Stoetzel is employed by North Florida Sports Medicine & Orthopaedic Center, not Respondent. At Dr. Stoetzel’s direction, Petitioner received regular treatment, including both physical and occupational therapy, until March 25, 2019. Petitioner was on workers’ compensation leave from work during her treatment. On March 25, 2019, Dr. Stoetzel cleared Petitioner to return to work with no restrictions and a 0% impairment rating. Based on Dr. Stoetzel’s conclusion, Ms. Vitali released Petitioner to return to work effective March 26, 2019. Ms. Vitali informed Petitioner of her release to work on March 25, 2019. Petitioner’s supervisor placed Petitioner on the work schedule after she was released to return to work, but Petitioner did not return to work as scheduled, and did not return any one of several telephone calls from her supervisor. Therefore, Respondent discharged Petitioner for job abandonment. Petitioner disputes her dismissal for job abandonment because she maintains that she was unable to work due to continuing pain. Petitioner disputes Dr. Stoetzel’s conclusion that she could return to work beginning March 26, 2019. Petitioner testified that Dr. Stoetzel told her that, based on the results of magnetic resonance imaging (“MRI”), she had a lumbar tear in the L4-L5 region, yet the discharge summary excluded the results of the MRI. The discharge summary refers only to a “[l]umbar sprain or strain with discrepant pain as well as radicular symptoms [pain radiating down the leg].” In the discharge summary, Dr. Stoetzel concludes, “There is really nothing further I have to offer.” Petitioner testified that her pain is continuous, has increased in severity, and prevents her from wearing shoes, driving, doing household chores, and caring for her children. Ms. Pride testified that her daughter is in constant pain and that Ms. Pride has assumed care of her grandchildren during the day when Petitioner’s husband is at work. Petitioner maintains that she has been unable to work due to her injury from December 27, 2018, through the date of the final hearing. Petitioner did not introduce any evidence of discrimination on the basis of her race, sex, or in retaliation for engaging in a protected activity. With regard to age discrimination, Petitioner testified that Dr. Stoetzel once commented that her back pain was due to her age. Petitioner’s PRO includes no references to discrimination based on her age, sex, race, or in retaliation for engaging in a protected activity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission issue a final order finding that Tallahassee Memorial HealthCare, Inc., did not discriminate or retaliate against Petitioner, and dismissing Petitioner’s Petition for Relief in Case No. 2019-18837. DONE AND ENTERED this 9th day of September, 2020, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Tammy S. Barton, Agency Clerk S SUZANNE VAN WYK 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 9th day of September, 2020. Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Elaine Williams 411 Earline Hobbs Road Quincy, Florida 32351 Gerald D. Bryant, Esquire Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. 2nd Floor 215 South Monroe Street Tallahassee, Florida 32301 (eServed) Stephanie Clark, Esquire Pennington, P.A. Suite 200 215 South Monroe Street Tallahassee, Florida 32301 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed)
