The Issue The issue for determination is whether Petitioner should be granted a consumer’s certificate of exemption pursuant to Subsection 212.08(7)(o), Florida Statutes.
Findings Of Fact The Department of Revenue (Respondent) is the state agency charged with enforcement of Chapter 212, Florida Statues, and the issuance of certificates of exemption. Unto Others, Inc. (Petitioner) is an organization incorporated in the State of Florida as a non-profit corporation. Petitioner’s Articles of Incorporation, Article II, states Petitioner’s purpose as follows: The purposes for which the Corporation [Petitioner] is organized are exclusively religious, charitable, scientific, literary, and educational within the meaning of section 501(c)(3) of the Internal Revenue Code of 1986 or the corresponding provision of any future United States Internal Revenue law. Petitioner made application to the Respondent for a certificate of exemption as a charitable institution pursuant to Subsection 212.08(7)(o)2.b, Florida Statutes. Petitioner did not make application for an exemption as a scientific, religious, or educational institution, but it may in the future apply under these criteria. By Notice of Intent to Deny (Notice) dated January 30, 1998, the Respondent notified Petitioner that its application was being denied. The grounds stated in the Notice for the denial were the following: (1) "Your organization does not provide, nor does it raise funds for charitable institutions which provide one or more of the charitable services listed in the statute [Subsection 212.08(7)(o)2.b, Florida Statutes]."; and (2) "Your organization fails to meet the qualification for exemption from sales and use taxation, as set forth in Section 212.08(7), Florida Statutes." Currently, Petitioner’s sole function is the raising of funds to enable Petitioner to rehabilitate people and dwellings. All of Petitioner’s activities are conducted by non-paid volunteers. No evidence was presented to show that Petitioner rehabilitates any person or dwelling, or holds religious services. No evidence was presented to show that Petitioner governs or administers any office within any hierarchy of a larger organization. No evidence was presented to show that Petitioner participates with or controls another organization. No evidence was presented to show that Petitioner expends more than 50 percent of its expenditures toward any charitable service. No evidence was presented to show that Petitioner disburses more than 50 percent of its expenditures directly for a charitable service or to any entity that directly provides or performs any charitable service. No evidence was presented to show that Petitioner directly provides or performs any charitable service for any entity or person; or that Petitioner provides any goods or services as a charitable service. No evidence was presented to show that Petitioner directly provides a reasonable percentage of any charitable service free or at a substantially reduced cost to persons, animals, or organizations that are unable to pay for such services. No evidence was presented to show that any charitable service was provided free or at a substantially reduced cost. No evidence was presented to show that persons, animals, or organizations actually received any charitable service and that those persons, animals, or organizations were unable to pay for such service(s). Petitioner does not currently provide any of the services listed in Subsection 212.08(7)(o).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a final order denying a consumer's certificate of exemption to Unto Others, Inc. DONE AND ENTERED this 31st day of August, 1998, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 1998.
The Issue The issue in this case is whether the Respondent, the Department of Revenue (the Department or DOR), should grant the Petitioner's application for a consumer's certificate of exemption as a "religious institution," as set forth in Section 212.08(7)(o)(2)b, Florida Statutes, (1997).
Findings Of Fact The Petitioner, the Beacon of Faith Ministries, applied for a consumer's certificate of exemption from sales and use tax on or about February 17, 1998, claiming to be an exempt religious institution. On or about February 27, 1998, the Department requested additional information, which was received on March 12, 1998. On April 29, 1998, the Department gave notice of intent to deny Petitioner's application for an exemption certificate on the ground that Petitioner did not qualify as a religious organization under Section 212.08(7)(o)(2)b., Florida Statutes (1997). The Petitioner's application and additional information demonstrate: (1) that the Petitioner "does not have an established physical place of worship at which nonprofit religious services and activities are regularly conducted and carried on"; and (2) that the Petitioner "is not a state, district, or other governing or administrative office the function of which is to assist or regulate the customary activities of religious organizations or members." Upon receipt of the Notice of Intent to Deny issued by the Department, Petitioner responded with a document entitled "Christian Church Response to Notice of Intent to Deny," dated May 4, 1998. This document demanded the issuance of an exemption certificate. It contended that the Petitioner was entitled to an exemption as a matter of constitutional right and that the Department had no jurisdiction or authority to deny the Petitioner an exemption regardless whether the Petitioner had "an established physical place of worship" or whether the Petitioner was "a state, district, or other governing or administrative office." The document contained no specific language requesting a hearing. The Petitioner did not appear at final hearing; no evidence was introduced in support of the Petitioner's application, other than the Department's file on the matter.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a final order denying the Petitioner's application for a consumer's certificate of exemption from sales and use tax. DONE AND ENTERED this 10th day of September, 1998, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 1998. COPIES FURNISHED: Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100 Linda Lettera, General Counsel Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 Frank Madden, Pastor Beacon of Faith Ministries 4255 Gulf Drive Holmes Beach, Florida 34217 George C. Hamm, Esquire Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314
Findings Of Fact Petitioner is a not for profit corporation, with physical facilities in Florida, holding tax exemption certificate 06-01290-00-58, issued November 16, 1977. By letter dated October 22, 1984, Respondent announced its intent to revoke the certificate. Petitioner is qualified as a non-profit entity under Section 501(c)(3) of the Federal Internal Revenue Code. The certificate at issue has been held continuously by Petitioner since 1977. Petitioner provides credit counseling assistance free of charge to any individual 1/ who is encountering difficulty paying his debts. Petitioner typically assists such individuals by contacting creditors, obtaining their agreement to accept smaller payments, and by taking temporary control of the client's income and making periodic payments on the client's behalf. Petitioner also gives educational presentations on personal financial management in the communities where it operates (Orange, Seminole, and Volusia Counties). Additionally, it provides counseling for the U.S. Department of Housing and Urban Development to persons facing foreclosure of home mortgages. It does not charge a fee for this service. Petitioner relies primarily on the United Way for its operating revenues. It also receives major support from the creditors it deals with, asking them to contribute 15 per cent of the amount sent to them on behalf of its clients. Additionally, Petitioner receives interest incomes on client trust funds.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Revenue enter a Final Order reissuing Certificate of Exemption Number 06-01290-00-58 to Petitioner. DONE and ENTERED this 24th day of May, 1985, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1985.
The Issue The issue in this case is whether Petitioner is entitled to an exemption from sales and use tax as a religious or charitable organization.
Findings Of Fact By Application for Consumer Certificate of Exemption dated March 17, 1992, Petitioner requested a sales tax exemption as a religious organization. The application indicates that Petitioner was incorporated on February 18, 1992. At all times, the president of Petitioner has been Reverend Robert M. Rinaldi. By letter dated April 16, 1992, Respondent requested that Petitioner supply information concerning its primary purpose, including a list of all activities or services and to whom they are generally offered. The letter also requested, among other things, statements of receipts and expenditures and a copy of the letter determining that Petitioner is exempt from federal income tax. Petitioner submitted to Respondent evidence of 12 expenditures during the quarter ending March 31, 1992. The expenditures and their descriptions are as follows: Morrisons-- dinner business; Holiday Inn in Tampa--lodging for quarterly convention; Maas Brother in Naples--attire; Marshalls-- personal; Martha's Health Food Shop--personal; Things Remembered--card case/business cards; RJ Cafe Tropical--lunch interview; Beach Works Marco Island--attire; annual membership fee for vice president's American Express card; Las Vegas Discount golf and tennis in Naples--personal; Eckerd's Vision Works--medical eyeglasses; Quality Inn Golf Country Club in Naples--lodging during business travel; Avon Fashions/Hampton-- personal; Del Wright in Sarasota--automobile expenses and travel; JC Penney--personal; Amador's Restaurant in Naples-- dinner/lunch; Avon Fashions/Hampton--personal; annual membership fee for treasurer's American Express card; and Mobil Oil--business travel. Petitioner produced other evidence of similar types of expenditures, such as for fitness center fees, car insurance, car service, car payments, utilities, and rent. Nothing in the record links these expenditures to religious or charitable activities. There were expenditures for printing religious tracts and self- improvement educational materials, but they do not appear to be a substantial part of the total expenditures of Petitioner during the time in question. After receiving these materials, a representative of Respondent telephoned Reverend Rinaldi and stated that Petitioner would have to submit additional documentation of its income and expenses and formal affiliation with prison chapels where Petitioner reportedly conducted outreach programs. Respondent's representative also asked for evidence of Reverend Rinaldi's counselling credentials. Petitioner next submitted a copy of a letter from the Department of Treasury determining that Petitioner was exempt from federal income tax. Petitioner also submitted a budget for the year ending 1992 and a proposed budget for the year ending 1993. However, the budgets did not document a charitable purpose. The budget reveals that the largest disbursement was $4200, which was rent for an office and living quarters. The largest single receipt was $1764.27, which was a contribution from the incorporator, who was Rev. Rinaldi. There were no charitable receipts, such as from contributions from members, the public, or anonymous sources. On November 10, 1992, Respondent sent a letter to Petitioner requesting additional information, including statements of the primary purpose of the organization and of receipts and expenditures. The request asked for a description or explanation for each charity-related program expenditure. On November 18, 1992, Petitioner submitted a second Application for Consumer's Certificate of Exemption. The information was essentially unchanged from the first application. Rev. Rinaldi also sent Respondent a religious flyer. On February 10, 1993, Petitioner submitted a third Application for Consumer's Certificate of Exemption. The material was essentially unchanged from the preceding two applications. On March 30, 1993, one of Respondent's representatives sent a letter to Petitioner stating that Petitioner does not meet the criteria for exemption from sales tax. In response, Petitioner sent a letter to Respondent received April 8, 1993, requesting reconsideration of the denial. On May 4, 1993, Respondent sent Petitioner a letter stating that, as indicated during an earlier telephone conversation, Respondent had not yet received sufficient documentation to justify a sales tax exemption. Following up on Rev. Rinaldi's opinion that Petitioner qualified as a charitable organization, the letter suggests that he submit materials describing each charitable service or activity, the types of persons receiving such services, the frequency that the services are offered, the demonstrated benefit provided by Petitioner to disadvantaged persons, the fees charged by Petitioner, and the availability of Petitioner's services at the same or less cost elsewhere. The letter also asks for a statement of income and expenses. In response, Petitioner filed a fourth Application for Consumer's Certificate of Exemption on November 10, 1993. Rev. Rinaldi explained Petitioner's activities as informing people of the truth and the second coming of Jesus Christ and stopping addictions to drugs and alcohol. The enclosed materials included a church telephone number. The materials state that services are available 24 hours a day for no fees and are provided solely for the spiritual preparation of humanity. The materials also indicate several addresses at which religious activities are conducted. Upon investigation, Respondent learned that Petitioner's telephone number had been disconnected, the street address is Rev. Rinaldi's apartment, and the addresses at which religious activities are conducted are locations of Alcoholic Anonymous, from which Rev. Rinaldi and his church had been barred as public disturbances. Checking with the post office, the investigator learned that all mail for Rev. Rinaldi and Petitioner is being forwarded to an address in New York. Respondent asked for more information, and Petitioner supplied information no different than that previously supplied. By letter dated April 26, 1994, Respondent informed Petitioner that its application was denied. Following another exchange of correspondence, Respondent sent Petitioner a Notice of Intent to Deny dated June 17, 1994. The Notice of Intent to Deny states that Respondent determined that: [Petitioner] travels from church to church and does not assemble regularly at a particular established location. [Petitioner] conducts services for short periods of time at numerous temporary locations. [Respondent] has reviewed your application and supporting documents and has determined that the primary purpose of your organization fails to meet the qualifications for sales tax exemption authorized by Section 212.08(7), Florida Statutes. By letter dated June 24, 1994, Petitioner requested a formal hearing on its application for sales tax exemption. Petitioner does not regularly conduct services. Petitioner does not engage in other religious activities nor does Petitioner provide services typically associated with a church. Petitioner has no established physical place for worship. Petitioner has generalized plans to construct one or more places for worship. However, these plans are post-apocalyptic in nature and thus do not assure the commencement of construction in the immediate future.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Revenue enter a final order denying Petitioner's application for an exemption certificate from sales and use tax. ENTERED on December 20, 1994, in Tallahassee, Florida. ROBERT E. MEALE 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 on December 20, 1994. COPIES FURNISHED: Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, FL 32399-0100 Linda Lettera, General Counsel Department of Revenue 204 Carlton Building Tallahassee, FL 32399-0100 Rev. Robert Rinaldi P.O. Box 1081 167 N. Collier Blvd. J-3 Marco Island, FL 33937-1081 Attorney Lisa M. Raleigh Office of the Attorney General The Capitol--Tax Section Tallahassee, FL 32399-1050
Findings Of Fact Petitioner is a non-profit corporation located in the State of Florida. Petitioner is dedicated to the training and education of persons who minister to law enforcement officers as police chaplains. The association is interfaith and interdenominational. It is not organizationally affiliated with any church and is not itself a church. It does not conduct worship services, nor require its members to conduct worship services. Moreover, Petitioner's member police chaplains are not necessarily required to be members of a religious organization. Petitioner does not control who may be selected by a law enforcement agency as a chaplain. In fact, persons acting as police chaplains can perform their duties without being a member of or consulting with Petitioner. Petitioner does not have a physical building or other structure which is used regularly for worship services or is used by any of its members to conduct regular worship services. Additionally, Petitioner did not offer or submit any competent evidence to show that it is within a larger church hierarchy or that there is some organizational nexus with various police departments or their chaplains. The association does have a voluntary ethical code for its members and does provide newsletters and documents about ethics to its members. The association also provides information to law enforcement agencies on operating a police chaplaincy and information related to selecting a police chaplain. However, no evidence was presented that Petitioner participates with or controls its members as they perform their daily duties as a chaplain. Likewise, Petitioner did not offer or submit any competent evidence to show that it "customarily" exercises any control over police chaplains or that it regularly participates in any of the "customary" activities of police chaplains. In short, Petitioner is a voluntary social organization whose various members have a common interest in the quality of ministering to law enforcement agencies. It is not an administrative office of a discreet religious hierarchy. Lacking such an affiliation, Petitioner is not entitled to a certificate of exemption.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That the Department of Revenue enter a Final Order denying Petitioner's application for a consumer's certificate of exemption as a religious institution. DONE and ENTERED this 14th day of November, 1996, in Tallahassee, Leon County, Florida. DIANNE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 14th day of November, 1996. COPIES FURNISHED: William B. Nickell, Esquire Department of Revenue Post Office Box 6668 Tallahassee, FL 32314-6668 David W. Derevere, Executive Director International Conference of Police Chaplains Post Office Box 5590 Destin, FL 32540-5590 Linda Lettera, Esquire Department of Revenue 204 Carlton Building Tallahassee, FL 32399-0100 Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, FL 32399-0100
The Issue Whether the Department of Labor and Employment Security, Division of Workers' Compensation (Division) properly issued a Stop Work Order (SWO) against Respondent on August 3, 1999. Whether Respondent owes a civil penalty, and if so, how much of a civil penalty does Respondent owe.
Findings Of Fact The Division of Workers' Compensation is statutorily charged with the task of enforcing the provisions of Subsections 440.10(1)(a) and 440.38, Florida Statutes (1999), requiring employers to comply with the coverage requirements of the Workers' Compensation Law. See Subsection 440.107(5) and (7), Florida Statutes. On August 3, 1999, Division Investigator Greg Mills, with two other investigators, engaged in a sweep of construction sites in Leon County to assure that the employers were in compliance with the Workers' Compensation Law. At a new private residential construction in progress at 2158 Chaires Cross Road, the investigators encountered Robert Carroll, who had just delivered Respondent's well-drilling rig to the location. Greg Mills interviewed Mr. Carroll. Mr. Carroll's responses at that time clearly indicated an employment relationship existed between Mr. Carroll and Respondent Bobby Cox, Sr. d/b/a C H Well Drilling. Greg Mills issued an SWO, pursuant to Subsection 440.107(3), Florida Statutes, and a penalty assessment based on the alleged employment and allegedly- evaded premiums for three years, for Mr. Carroll. At some time after Respondent had requested a hearing, the Division obtained information through discovery which convinced Division personnel to amend the SWO to include premiums and penalties based on an alleged employment relationship between Melford Sims and Respondent. Based on the 1099 tax forms received by Carroll and Sims from Respondent, the Division determined that during the three- year period preceding the SWO, Respondent had paid Carroll $7,320.30 in 1996; $33,903.50 in 1997, $34,363.50 in 1998, and $32,036.00 in 1999, and determined that Respondent had paid Sims $7,797.50 in 1997; $12,786.50 in 1998, and $11,056.00 in 1999. 2/ The National Council of Compensation Insurance (NCCI) classifies types of employment in SCOPES and specifies applicable premiums by employment classification. Well drillers are classified as Code 6204. The premium rate for each $100.00 of compensation was 35.71 percent in 1996, 27.86 percent in 1997, 24.63 percent in 1998, and 20.94 percent in 1999. Respondent did not dispute the appropriateness of employing the foregoing formula. The procedure is authorized under Rule 38F-5.111(6), Florida Administrative Code. The foregoing formula and procedure resulted in the insurance premium for Mr. Carroll being calculated as $2,614.00 in 1996; $9,446.00 in 1997; $8,460.00 in 1998; and $6,708.00 in 1999, and resulted in the insurance premium for Mr. Sims being calculated as $2,173.00 in 1997; $3,148.00 in 1998; and $2,315.00 in 1999. The Division therefore seeks to impose a fine of twice the allegedly-evaded premiums for Mr. Carroll ($27,228 x 2 = $54,456) and for Mr. Sims ($7,636 x 2 = $15,272) totaling $69,728.00 At all times material, Respondent Bobby Cox, Sr., was licensed and engaged in the business of drilling water wells in Leon County, Florida. He operates as a sole proprietor under the name "C H Well Drilling." No evidence was presented as to any incorporation or fictitious name registration of this entity. At no time material did Respondent ever file for a workers' compensation exemption. At no time material did Respondent obtain workers' compensation coverage for himself or any employee(s). Dr. Bobby Ray Phills is the Dean of the College of Engineering Science for Technology and Agriculture at Florida Agricultural and Mechanical University. He owns the property at 2158 Chaires Cross Road. He personally pulled the building permit, identifying himself as the building contractor, to construct a new residential construction. He obtained no workers' compensation insurance coverage for the project. Dr. Phills testified the he employed Selmo Bradley, a licensed general contractor, to do the framing and "manage the project" for him. Dr. Phills testified that he instructed Bradley that Bradley and all other contractors were responsible for their own workers' compensation coverage. There is no evidence that Selmo Bradley obtained workers' compensation insurance coverage for the Chaires Road project. Dr. Phills never spoke directly to Respondent. He paid no money directly to Respondent. Dr. Phills gave no evidence that he intended to pay Respondent through Mr. Bradley. Respondent testified that Mr. Bradley contacted him and negotiated with him to drill a well on Dr. Phills' property and that he expected to be paid by Mr. Bradley as the general contractor. Respondent testified that Mr. Bradley asked him if he had workers' compensation coverage for his employees for the Chaires Cross Road project and that he, Respondent, had answered "No." Respondent does not contend that Mr. Bradley ever told him that Bradley's workers' compensation coverage would protect Respondent or Respondent's employees. On August 3, 1999, Respondent directed Ralph Carroll to drive Respondent's truck, equipped with Respondent's well- drilling rig, and set up the rig on the Chaires Cross Road project. Respondent paid Mr. Carroll for his time in setting up the rig. However, drilling was not due to begin until the next day and did not begin due to Greg Mills' interrogation of Mr. Carroll and issuance of the SWO. When interviewed on August 3, 1999, Mr. Carroll described himself as working for Respondent and the man assisting him with the rig as "just a friend." He did not mention owning his own business and alluded to Respondent's getting the Chaires Cross Road job and telling Mr. Carroll where to go. To the degree his testimony at hearing varied from these statements, it is discredited. Additionally, at hearing, it developed that Mr. Carroll was "not actually in" the business of pump repair and well water service on August 3, 1999. As of the date of hearing, Mr. Carroll was still trying to get set up to do such business on his own beginning January 1, 2000. He was still buying some of his equipment. There is no dispute that Mr. Carroll had been employed as an employee by Respondent until August 1, 1996. Until that date, Respondent provided Mr. Carroll with W-2 tax forms, kept timesheets on him, and withheld the required federal tax and benefits. As of August 1, 1996, Respondent began to treat Mr. Carroll as an independent contractor, ceased withholding, and issued him 1099 tax forms for federal tax purposes. The Division also alleged that Melford Sims was an "employee" of Respondent, but it could not establish that Mr. Sims had ever been on Respondent's payroll or that any creative bookkeeping had been indulged-in to create an "independent contractor" façade for Mr. Sims. Respondent, Mr. Carroll, and Mr. Sims each testified that after August 1, 1996, when payment was received for a job worked by Mr. Sims or Mr. Carroll, expenses would first be paid, i.e., if equipment or casing broke, it would be paid from the proceeds. Then the profit, if any, would be split equally between Respondent and whichever of the other two men had done the job. If there was a problem on the job, satisfactory completion was the responsibility of Sims or Carroll, whichever had done the job, and there was no extra compensation paid by the customer or Respondent to correct the problem unless the well had to be drilled deeper. Respondent testified that after August 1, 1996, checks for well-drilling work were made out to him, usually by a general contractor, and that Respondent disbursed funds to Carroll and Sims as set out above. Despite Respondent's and Mr. Carroll's testimony to the effect that after August 1, 1996, they were each independent sole proprietors who assisted one another, subtracted the costs of doing business, and then split the profit of various well- drilling jobs, the following are indices that from 1996 through 1999, Mr. Carroll remained Respondent's "employee": Mr. Carroll owned a truck, tractor, and "ditch witch." He did not own a well-drilling rig, and he used Respondent's rig. Respondent held an occupational license to drill wells. Mr. Carroll did not. Respondent advertised in the telephone book yellow pages. Mr. Carroll did not. Mr. Carroll relied exclusively on Respondent to get well-drilling jobs for him. Respondent was Mr. Carroll's sole source of income 1996- 1999. Mr. Carroll did not file for a workers' compensation exemption during 1996-1999. He filed for one only after August 3, 1999. Mr. Carroll did not secure workers' compensation insurance for himself during 1996-1999. Mr. Carroll did not provide Respondent with an affidavit that met statutory requirements during 1996-1999. The following indices of Mr. Sims' situation 1996-1999 are mixed. Mr. Sims owns a truck, tractor, and "ditch witch." He does not own a well-drilling rig, but he occasionally "leases" Respondent's well-drilling rig for jobs of his own. Otherwise, he splits profits on jobs he gets with Respondent after costs are deducted as described above. The following indices of Mr. Sims's situation 1996-1999 are indicative of his independent contractor status: Mr. Sims holds his own occupational license separate from Respondent's. Mr. Sims advertises in the telephone book yellow pages with his own location and telephone number. The following indices are indicative of Mr. Sims's employee status 1996-1999: Mr. Sims did not file for a workers' compensation exemption during 1996-1999. Mr. Sims did not secure workers' compensation insurance for himself during 1996-1999. Mr. Sims did not provide Respondent with an affidavit that met statutory requirements during 1996-1999. At all times material, Respondent worked approximately 75 percent of the time for general contractors, who paid him by check. Twenty-five percent of the time, Respondent was paid directly by others, besides general contractors. Respondent worked for Thomas L. Baldwin, certified general contractor, and for Ken Seay, licensed residential contractor, among other contractors, during the three-year period 1996-1999. These two named contractors testified to being covered by workers' compensation insurance carriers during this period. Respondent testified that he had also worked for 30-50 other general contractors during this period of time and that at all times he had relied upon these contractors covering him and his employees through Florida's statutory workers' compensation scheme, which holds general or prime contractors liable for injuries to their subcontractors and subcontractors' employees if the subcontractors have not obtained their own workers' compensation coverage. Respondent provided a sampling of applications for, and certificates of, insurance from the two named contractors and other contractors, some of which were workers' compensation policies, some of which were employers' general liability policies, and none of which covered the entire three-year period. Respondent did not establish the specific dates he worked for each general contractor.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Division of Workers' Compensation enter a Final Order that Affirms the Stop Work Order. Affirms the $100 penalty related to Mr. Carroll's employment, pursuant to Subsection 440.107(5), Florida Statutes; and Assigns only an additional penalty, based solely upon the "wages" of Mr. Carroll, in the amount of $54,457.00, plus statutory interest. DONE AND ENTERED this 20th day of March, 2000, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 20th day of March, 2000.
The Issue The issue presented is whether Petitioner is entitled to a consumer certificate of exemption as a religious institution.
Findings Of Fact Petitioner, Greater Miami Jewish Cemetery Association, Inc., is a Florida not-for-profit corporation chartered on June 23, 1931, and is an exempt organization under Section 501(c)(3) of the Internal Revenue Code of 1954. Petitioner is a non-stock membership corporation which has three constituent members, namely, Beth David Congregation of Miami, Florida; Beth El Congregation of Miami Beach, Florida; and Beth Jacob Congregation of Miami Beach, Florida, which synagogues are existing Florida not-for-profit corporations exempt from taxation under Section 501(c)(3) of the Internal Revenue Code. Petitioner maintains and operates two cemeteries in Miami, Dade County, Florida, which are dedicated to burial of members of its constituent member synagogues and other persons of the Hebrew faith, including free burial plots for indigent persons of the Hebrew faith, and, as such, have been classified under the State of Florida Funeral and Cemeteries Act as "church cemeteries." It is a religious obligation of the Hebrew faith to provide for and bury the dead. It is usual for synagogues to maintain cemeteries for their members. No synagogue is located on the premises of Petitioner because some Jews are forbidden to be on the grounds near dead bodies. Accordingly, Jewish cemeteries do not have synagogues on the premises, and, conversely, synagogues do not have cemeteries on their premises, as some churches do. Petitioner does have, however, a room or chapel area where religious services are conducted by Petitioner's constituent members, the three synagogues. Those religious services and activities conducted there include burial services, services on religious holy days, and memorial services.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered granting Petitioner's application for a consumer certificate of exemption. DONE AND ENTERED this 24th day of September, 1998, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 1998. COPIES FURNISHED: Max R. Silver, Esquire Silver & Silver 150 Southeast Second Avenue, Suite 500 Miami, Florida 33131 William B. Nickell, Esquire Department of Revenue 501 South Calhoun Street, Suite 304 Tallahassee, Florida 32301 Linda Lettera, General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399 Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399
The Issue The issues for determination are: (1) Whether Respondent, David M. Whitehead, a member of Escambia County Commission, violated Section 112.313(7)(a), Florida Statutes, by having or holding an employment or contractual relationship with B & W Productions of Pensacola, Inc. (B & W Productions) which created a continuing or frequently recurring conflict between his private interests and the performance of his public duties or which impeded the full and faithful discharge of his public duties; whether Respondent violated Section 112.3143(3)(a), Florida Statutes, by voting on measures that came before the Escambia County Commission regarding Carlan Killam Consulting Group, Inc. (Carlan Killam Consulting or Carlan Killam), Baskerville-Donovan, Inc. (Baskerville-Donovan), DelGallo-Morette Construction Company (DelGallo-Morette), and/or Champion International Corporation (Champion), all of whom were sponsors of a television show hosted by Respondent; and (3) if so, what penalty is appropriate.
Findings Of Fact Respondent, David M. Whitehead (Respondent), currently serves as county commissioner for Escambia County, Florida, and has continuously served in that capacity since taking office after his election in 1992. As a county commissioner for Escambia County, Respondent is subject to the requirements of Part III, Chapter 112, Florida Statutes, the Code of Ethics for Public Officers and Employees (Code of Ethics), and is a "public officer" as that term is defined in Sections 112.313(1) and 112.3143(1)(a), Florida Statutes. As a county commissioner for Escambia County, Respondent is subject to the provisions of Sections 112.313(7)(a) and 112.3143(3)(a), Florida Statutes. Respondent formed B & W Productions, a Subchapter S, for-profit corporation, for the purpose of producing a morning television show that was to be known as the "Lois and Mike Show" or the "Wake-Up with Lois and Mike Show" (the "Lois and Mike Show"). Respondent is "Mike" on the Lois and Mike Show and co- hosts the show with Lois Benson. B & W Productions was incorporated to shield the personal assets of Respondent and Benson in case of liability. B & W Productions was organized under the laws of the State of Florida, effective June 17, 1998. B & W Productions was active from June 17, 1998, through September 23, 1999. On September 24, 1999, B & W Productions was administratively dissolved for failure to file its annual report, as required by law. During its corporate existence, B & W Productions maintained a corporate bank account at SunTrust Bank, West Florida; produced periodic profit and loss statements of its activities; applied for a federal tax identification number as a Subchapter S corporation; filed a corporate tax return with the Internal Revenue Service; and entered into sponsorship agreements with specific sponsors of the Lois and Mike Show. However, during its corporate existence, the corporation failed to conduct meetings of its shareholders, to take minutes, and to file its annual report. Respondent served as chief executive officer of B & W Productions until approximately March of 1999. In March 1999, after Respondent stepped down as CEO, Benson took over the books and management of B & W Productions. Thereafter, Respondent was not involved in the active management of B & W Productions. In November of 1999, Respondent transferred to Benson "all ownership rights, rights to compensation in any form, and right to any benefits, accrued or accruing in the future, with regard to B & W Productions, Inc., and "Wake Up with Lois and Mike . . . ." Respondent transferred complete ownership of B & W Productions to Benson, free and clear of any obligation for repayment. The Lois and Mike Show began airing on a local cable station in Pensacola known as "BLAB TV" in September of 1998. Respondent and Benson have received no compensation for their efforts in connection with the Lois and Mike Show. Since the Lois and Mike Show first aired, over 200 guests, all local people, have appeared on the show. Daily rundowns of the show for the calendar year 1999 evidence a program highlighting local community events and personal information presented by local residents consistent with a weekly theme developed by Benson. As a political figure, Respondent receives an incidental benefit of appearing as local personality on the Lois and Mike Show. However, the show is not a political show. Rather, consistent with its mission, the show entertains and informs its audience on issues specific to the Pensacola area, highlighting local news and issues, local events, and local people. BLAB TV requires the payment of $1,250.00 for each week that the Lois and Mike Show is aired. Other costs incurred in the production of the show included contract labor and outside production companies used to produce a portion of the show. The primary source of income to pay for the Lois and Mike Show is money paid by sponsors or supporters of the Lois and Mike Show. Using a public broadcasting system model, Benson developed a market plan to secure sponsors for the Lois and Mike Show. The plan proposed different tiers of sponsorship: segment sponsors; traditional commercial sponsors; and friends and benefactors. Benson developed lists of potential sponsors which included a wide range of businesses in the Pensacola area. These businesses included but were not limited to Baskerville-Donovan, DelGallo-Morette and Champion. Various potential sponsors including Baskerville-Donovan, DelGallo-Morette and Champion, were targeted for a personal solicitation from either Benson and/or Respondent. Initially, B & W Productions was responsible for billing and collecting sponsorship fees. However, in December 1998, three months after the show was first aired, responsibility for billing and collection of sponsorship fees was assumed by BLAB TV. Since BLAB TV took over these responsibilities, all sponsors of the Lois and Mike Show are billed directly by BLAB TV. Both Respondent and Benson personally paid a portion of the costs for the airing and production of the Lois and Mike Show. Respondent paid approximately $16,000.00 of his personal funds for the production of the Lois and Mike Show. Benson expended approximately $30,000 of her personal funds for the production of the show. These payments have at various times been characterized as loans and capital contributions. In March of 1999, Respondent determined that he could not put anymore of his personal funds into B & W Productions and did not do so. Both before and after the airing of the first Lois and Mike Show, Respondent solicited funds from sponsors to help pay the amount charged by BLAB TV for airing the show. Sponsorships were solicited from over 200 individuals and entities in the Pensacola community by Respondent and Benson. Respondent solicited funds in 1998 for the sponsorship of the Lois and Mike Show from a number of sources, including Baskerville-Donovan, Carlan Killam Consulting, Champion, and DelGallo-Morette, all of whom gave money for the sponsorship of the Lois and Mike Show. There was never any discussion at the time the solicitations were made that any of these potential sponsors might have matters before the Escambia County Commission (County Commission or Commission). Respondent has not solicited sponsors for the show since March of 1999. Baskerville-Donovan, Carlan Killam Consulting, Champion, and DelGallo-Morette have all had matters come before the Escambia County Commission after giving money for the Lois and Mike Show. Respondent, as a county commissioner for Escambia County, has voted on matters that have come before the County Commission regarding Baskerville-Donovan, Carlan Killam Consulting, Champion, and DelGallo-Morette after those companies gave money to support the airing and/or production of the Lois and Mike Show. However, Respondent has never been employed by and has never owned property with or engaged in a business enterprise with Baskerville-Donovan, Carlan Killam Consulting, Champion, or DelGallo-Morette. Since July of 1998, Respondent has cast approximately 3,000 votes as a member of the County Commission. He has never abstained from a vote as a county commissioner or filed a conflict of interest disclosure form based upon payments that have been made by any entity to B & W Productions or for the Lois and Mike Show. Baskerville-Donovan provides architectural and engineering services to Escambia County. These services are provided pursuant to an on-going contract with the county. Respondent solicited a sponsorship from Baskerville- Donovan. Subsequently, Baskerville-Donovan became a regular sponsor of the Lois and Mike Show paying $200 a month, beginning September or October 1998, and continuing through April 2000. The following matters that came before the Escambia County Commission for a vote regarding Baskerville-Donovan just before and after it became a sponsor of the Lois and Mike Show: On June 23, 1998, the Commission approved issuance of a Task Order to Baskerville-Donovan on Contract PD 95- 96.74 in the amount of $394,568 to design several road projects to the 35 percent stage. This item was unanimously approved by the Commission upon motion made by Respondent. This vote occurred prior to any sponsorship funds being paid to B & W Productions by Baskerville- Donovan. On September 22, 1998, the Commissioner approved the extension of six contracts with various consultants, including Contract PD 95-96.74 to Baskerville- Donovan for the second consecutive one- year option period, October 1, 1998, through September 30, 1999, at the same price, terms, and conditions. The extensions applied to contracts that had been awarded on August 6, 1996. This item was unanimously approved as part of the Commission's Consent Agenda. This vote occurred after sponsorship funds were paid by Baskerville-Donovan to B & W Productions. On December 22, 1998, the Commission approved Addendum Number 7 to Contract 95-96.63 to Baskerville-Donovan in the amount of $316,775.60 to provide full- time inspection and contract administration for the University Parkway Widening and Realignment Projects. This item was unanimously approved by the Commission with Respondent seconding the motion for approval made by Commissioner Boss. This vote occurred after sponsorship funds were paid to B & W Productions by Baskerville-Donovan and after responsibility for collecting and accounting for sponsorship funds for the Lois and Mike Show was transferred to BLAB TV. On January 21, 1999, the Commission approved issuance of a Task Order on Contract PD 95-96.74 to Baskerville- Donovan, in the amount of $490,729.00 to design various paving and drainage projects to the 30 percent stage. This item was unanimously approved as part of the Commission's Consent Agenda. This vote occurred after sponsorship funds were paid to B & W Productions and after responsibility for collecting and accounting for sponsorship funds for the Lois and Mike Show was transferred to BLAB TV. On January 21, 1999, the Commission approved extension of five current contracts with various consultants, including Contract PD 95-96.100 to Baskerville-Donovan, for the third consecutive one-year option period, March 14, 1999, through March 13, 2000, at the same prices, terms and conditions. The extensions applied to contracts that had been awarded March 14, 1998. The item was unanimously approved as part of the Commission's Consent Agenda. This vote occurred after sponsorship funds were paid to B & W Productions and after responsibility for collecting and accounting for sponsorship funds for the Lois and Mike Show was transferred to BLAB TV. On February 4, 1999, the Commission approved Amendment Number 4 to Contract PD 94-95.59 between Escambia County and Baskerville-Donovan, in the amount of $51,200, for architectural and engineering services for various projects. (The original contract was approved on April 25, 1995.) This item was unanimously approved as part of the Commission's Consent Agenda, with Respondent moving approval of the Consent Agenda. This vote occurred after sponsorship funds were paid to B & W Productions and after responsibility for collecting and accounting for sponsorship funds for the Lois and Mike Show was transferred to BLAB TV. On April 22, 1999, the Commission approved the expenditure of approximately $3,000 to Baskerville-Donovan to complete the design package for renovations to the Board Chambers located in the Old Courthouse. This item was approved by a vote of 4-0, with Commissioner Robertson absent. This vote occurred after sponsorship funds were paid to B & W Productions and after responsibility for collecting and accounting for sponsorship funds for the Lois and Mike Show was transferred to BLAB TV. On May 20, 1999 the Commission approved three items extending Contract PD 95- 96.83 to allow three consultants, including Baskerville-Donovan, to proceed with various tasks with respect to the extension of I-110. In the first vote, the Commission unanimously approved extension of the contract to allow consultants to proceed with the preparation of applications associated with the request for funds for the I-110 extension project. In the second vote, the Commission unanimously approved extension of the contract to allow the consultants to proceed with design and preparation of other documents required in connection with extension of I-110 to Nine Mile Road. In the third vote, the Commission approved, by a vote of 3-2, extension of the contract to allow consultants to proceed with design and preparation of related documents for further extension of I-110 using as much of the Gulf Power right-of-way as possible. With respect to each vote, Respondent seconded the motion for approval and voted in the affirmative on each item. These votes occurred after sponsorship funds were paid to B & W Productions and after responsibility for collecting and accounting for sponsorship funds for the Lois and Mike Show was transferred to BLAB TV. On October 7,1999, the Commission approved Contract PD 98-99.83 to Baskerville-Donovan, in the amount of $100,000 for a feasibility study for the Central Commerce Park. This item was approved unanimously by the Commission upon motion seconded by Respondent. This vote occurred after sponsorship funds were paid to B & W Productions and after responsibility for collecting and accounting for sponsorship funds for the Lois and Mike Show was transferred to BLAB TV. With respect to each of the matters which were the subject of votes referenced in paragraph 25, neither Respondent nor B & W Productions provided any services to Baskerville- Donovan. Nor did Respondent or B & W Productions have any responsibility for evaluating or inspecting Baskerville-Donovan's performance under any of these contracts. Moreover, neither Respondent nor B & W Productions provided any services with respect to any of the projects which were the subject of the Commission votes. Finally, neither the Respondent nor B & W Productions benefited from the votes of the County Commission approving various items involving Baskerville-Donovan. Respondent has never been employed or retained by Baskerville-Donovan. Respondent has never been engaged in a business enterprise with Baskerville-Donovan as a partner, a joint venturer, a co-owner of property, or in a corporate entity whose shares are not listed on a national or regional stock exchange. Carlan Killam Consulting provides architectural services to Escambia County, and has done so since 1973. These services have been provided to the county through on-going contracts. Carlan Killam Consulting provided one payment of $1,500.00 to sponsor the Lois and Mike Show. That payment was made on or about July 29, 1998. Benson initially approached Charles Carlan, the president of Carlan Killam Consulting, about sponsoring the Lois and Mike Show. Subsequently, Carlan met with Respondent and decided to have his company sponsor the show because it showed the positive side of Pensacola, as opposed to the negative side shown in the regular media. Carlan Killam Consulting engaged in a similar sponsorship endeavor with respect to the Pensacola Independent Newspaper. The following matters came before the Escambia County Commission for a vote regarding Carlan Killam Consulting just before and after it became a sponsor of the Lois and Mike Show: On June 23, 1998, the Commission, upon motion by Respondent, unanimously approved the issuance of a Task Order on Contract PD 95-96.74 to Carlan Killam in the amount of $254,920 to design several road projects to 30 percent stage. This vote occurred before sponsorship funds were paid by Carlan Killam. On July 28, 1998, the Commission unanimously approved, as part of its Consent Agenda, a Task Order on Contract PD 95-96.74 to Carlan Killam in the amount of $379,618 for various road paving and draining design projects. This vote occurred before any sponsorship funds were paid by Carlan Killam. On September 22, 1998, the Commission approved extensions of six current contracts with various consultants, including Carlan Killam (Contract PD 95.96.74), for the second consecutive one-year option period, October 1, 1998, through September 30, 1999, at the same prices, terms and conditions. (The extensions applied to contracts that had been awarded August 6, 1996.) This item was unanimously approved as part of the Commission's Consent Agenda. The vote occurred after the one-time sponsorship payment was made to B & W Productions by Carlan Killam. On November 24, 1998, the Commission considered and unanimously approved the Proposal Review Committee's ranking of firms based on their letters of interest regarding providing professional architectural consulting services to prepare a 10-year master space plan. Carlan Killam ranked second. This vote occurred after Carlan Killam made a one- time sponsorship payment to B & W Productions. On December 3, 1998, the Commission approved issuance of a Task Order on Contract PD-96.74.3P to Carlan Killam in the amount of $134,748 for services on various waste water projects. This vote occurred after the one-time sponsorship payment was made by Carlan Killam to B & W Productions. On December 22, 1998, the Commission approved issuance of a Task Order on Contract 95-96.74 in the amount of $104,927 for design, engineering, and surveying services for storm-water and drainage projects. This item was unanimously approved as part of the Commission's Consent Agenda. This vote occurred after the one-time sponsorship payment was made by Carlan Killam to B & W Productions. On March 18, 1999, the Commission approved issuance of three task orders on Contract PD 95-96.74 to Carlan Killam in amounts of $136,476; $504,771; and $69,087. These items were unanimously approved as part of the Commission's Consent Agenda. Respondent was not present for this meeting. On April 22, 1999, the Commission approved issuance of a Task Order on Contract PD 95-96.74 to Carlan Killam in the amount of $110,666 for the design and engineering for various road projects. This item was unanimously approved as part of the Commission's Consent Agenda for this date. This vote occurred after the one-time sponsorship payment was made by Carlan Killam to B & W Production. On May 20, 1999, the Commission approved three items extending Contract PD 95-96.83 to direct named consultants, including Carlan Killam, to proceed with various tasks with respect to the extension of I-110. In the first vote, the Commission unanimously approved extension of the contract to allow consultants to proceed with the preparation of applications associated with the request for funds for the I-110 extension project. In the second vote, the Commission unanimously approved extension of the contract to allow the consultants to proceed with design and preparation of other documents required in connection with extension of I-110 to Nine Mile Road. In the third vote, the Commission approved, by a vote of 3-2, extension of the contract to allow consultants to proceed with design and preparation of documents for further extension of I-110 using as much of the Gulf Power right-of-way as possible. With respect to each item, Respondent seconded the motion for approval and voted in the affirmative. These votes occurred after the one-time sponsorship payment was made by Carlan Killam to B & W Productions. On October 21, 1999, the Commission approved issuance of Task Order on Contract PD 95-96.83 to Carlan Killam in an amount not to exceed $263,727.28, to provide the first phase of project development to study the I-110 extension to Nine Mile Road. This item was approved by the Commission, by a vote of 4-1, with Respondent voting in the affirmative. This vote occurred after the one-time sponsorship payment was made to B & W Productions. With respect to each of the matters which were the subject of votes referenced in paragraph 31, neither Respondent nor B & W Productions provided any services to Carlan Killam. Moreover, neither Respondent nor B & W Productions had any responsibility for evaluating or inspecting Carlan Killam's performance under the aforementioned contracts or for providing any services with respect to any of the projects which were the subjects of these votes. Finally, neither Respondent or B & W Productions benefited in any manner from the votes of the County Commission approving various items involving Carlan Killam. Respondent has never been employed or retained by Carlan Killam. Respondent has never been engaged in a business enterprise with Carlan Killam as a partner, a joint venturer, a co-owner of property, or in a corporate entity whose shares are not listed on a national or regional stock exchange. DelGallo-Morette provides construction services to Escambia County. Benson suggested that Respondent contact DelGallo- Morette as a potential sponsor. Both Respondent and Benson discussed sponsorship of the Lois and Mike Show with Steve DelGallo, the president of DelGallo-Morette. Subsequently, DelGallo-Morette provided a one-time payment of $2,500 to sponsor the Lois and Mike Show. That payment was made on or about August 21, 1998. Benson's credible testimony was that she and DelGallo are good friends and that if there was any reason for DelGallo-Morette to sponsor the show, it was because she had just recently drawn the house plans for DelGallo free of charge. Matters that came before the Escambia County Commission for a vote regarding DelGallo-Morette just before and after it became a sponsor of the Lois and Mike Show include the following: On June 23, 1998, the Commission approved the unanimous recommendation of the Bid Review Committee to award a lump sum contract to DelGallo-Morette, in the amount of $89,5000 as the lowest, most responsive, and most responsible bidder, for a renovation construction project. This item was unanimously approved by the Commission, upon motion made by Respondent. This vote occurred prior to any sponsorship funds being paid to B & W Productions by DelGallo-Morette. On June 30, 1998, upon motion by Respondent, the Commission approved an increase in maximum price, by a sum not to exceed $385,000, for telecommunication system improvements at the M.C. Blanchard Judicial Center pursuant to a contract approved by the Commission on November 19, 1996, with Brown and Root Building Company, in association with DelGallo-Morette. This vote occurred prior to any sponsorship funds being paid to B & W Productions by DelGallo-Morette. On November 24, 1998, upon motion by Respondent, the Commission unanimously approved a guaranteed maximum price on the Escambia County Control Booking and Detention Facility in the amount of $14,661,576 with Brown and Root Building Company, as the contractor, in association DelGallo-Morette and a total project cost of $16,054,682 relative to Contract PD 97-97.155. This vote occurred after the one-time sponsorship payment was made paid to B & W Productions by DelGallo-Morette. On March 18, 1999, the Commission approved amending Contract PD 95-96.113 with Brown and Root Building Company, in association with DelGallo-Morette, to increase the guaranteed maximum price of $900,000 to provide for additional costs for construction change orders and other items associated with renovation of the M.C. Blanchard Judicial Center Expansion Project. This item was unanimously approved as part of the Commission's Consent Agenda by a vote of 4-0. Respondent was absent and did not vote. With respect to each of the matters which were the subject of votes referenced in paragraph 37, neither Respondent nor B & W Productions provided any services to DelGallo-Morette. Nor did Respondent or B & W Productions have any responsibility for evaluating or inspecting DelGallo-Morette's performance under the contracts addressed by the votes. Neither Respondent nor B & W Productions provided any services with respect to any of the projects which were the subjects of those votes. Further, neither Respondent nor B & W Productions benefited in any manner from the votes of the Commission approving various items involving DelGallo-Morette. Respondent has never been employed or retained by DelGallo-Morette. Moreover, Respondent has never been engaged in a business enterprise with DelGallo-Morette as a partner, a joint venturer, a co-owner of property, or in a corporate entity whose shares are not listed on a national or regional stock exchange. Champion is a forest products company whose primary products are a variety of papers, lumber, and plywood. Champion has a contract with Escambia County for the disposal of ash at the landfill in exchange for natural gas. In August or September 1998, Respondent and Benson met with representatives of Champion to discuss sponsorship of the Lois and Mike Show. Benson made most of the presentation which focused on the negative public image of Champion in the community at that time. Champion's negative image resulted from Champion's planned wastewater discharge into Escambia Bay. The Escambia County Commission did not have regulatory jurisdiction over this issue. Rather, regulatory jurisdiction resided at the Department of Environmental Protection and the Environmental Protection Agency. Champion was a segment sponsor of the Lois and Mike Show for a year, beginning in September 1998 through September 1999, at a rate of $260 a month. As a segment sponsor, Champion paid $260 monthly. From October 1999 through December 1999, Champion paid $178.50 per month to sponsor the show and in December 1999, Champion paid $119 in sponsorship fees. After December 1999, Champion discontinued its sponsorship of the show. The following matters that came before the Escambia County Commission regarding Champion before and after it became a sponsor of the Lois and Mike Show: On July 28, 1999, the Commission approved retaining Chris H. Bentley, Esquire, to monitor and advise the Commission on Champion's permitting activities regarding discharge of treated wastewater into Escambia River. This item was unanimously approved by Commission upon motion seconded by Respondent. This vote occurred prior to any sponsorship funds being paid to B & W Productions by Champion and did not address any item which Champion had before the Commission. On September 22, 1998, the Commission amended its License Agreements with Champion for the period January 1, 1998, through December 31, 1998, to include installation of gas monitoring wells at various landfill sites which was inadvertently omitted from the prior approved agreements. This item was unanimously approved by the Commission, upon motion made by Respondent. This vote occurred prior to any sponsorship funds being paid to B & W Productions by Champion. On October 8, 1998, the Commission took two actions concerning Champion. First, it voted to accept, for filing in the minutes of the Commission, the "Escambia County Citizens' Executive Point Paper" regarding Champion's proposed discharge of wastewater into the Escambia River. This action was taken unanimously, upon motion seconded by Respondent. Second, the Commission voted to approve the staff's making a written request to Environmental Protection Agency's (EPA) "Technology Team" to evaluate the impact of Champion's proposed wastewater discharge into Escambia Bay relative to the request of the Escambia County Citizen's Coalition, Inc. This action was taken unanimously, upon motion made by Respondent. This vote occurred prior to any sponsorship funds being paid to B & W Productions by Champion and did not address any item which Champion had before the Commission. On November 5, 1998, the Commission discussed a proposal from the Department of Environmental Protection that Escambia County form a partnership with Santa Rosa County and the EPA for a unified peer review approach to Champion's proposed relocation wastewater discharge point and to analyze the processing of wastewater discharge permitted for Champion and its impact on Escambia Bay and Perdido Bay. The Commission voted unanimously to refer to DEP's proposal to the County's Department of Neighborhood and Environmental Services for analysis and recommendation. This vote occurred after sponsorship funds were paid to B & W Productions by Champion and did not address any item which Champion had before the Commission. On November 24, 1998, the Commission approved the renewal of four License Agreements with Champion for the operation of water quality monitoring and gas wells located at various landfill sites, for the period January 1, 1999, through December 31, 1999. This item occurred after sponsorship funds were paid to B & W Productions by Champion. On February 2, 1999, the Commission adopted a resolution urging Champion to use monies encumbered for construction and permitting of its proposed pipeline to the Escambia River to fund improvements to the effluent being dumped into Eleven Mile Creek. This item was approved by the Commission, by a vote of 3-2, with Respondent voting in the affirmative. This vote occurred after sponsorship funds were paid to B & W Productions by Champion and did not address any item which Champion had before the Commission. On April 8, 1999, the Commission authorized staff to negotiate the purchase of a parcel of property from Champion to be used as a district park. This item was unanimously approved by the Commission, upon motion made by Respondent, with Commissioner Boss absent. This vote occurred after sponsorship funds were paid to B & W Productions by Champion and after responsibility for collecting and accounting for sponsorship funds for the Lois and Mike Show was transferred to BLAB TV. On April 22, 1999, the Commission amended a previously approved Qualified Industry Tax Refund Incentive for Champion's dimensional lumber production facility. This item was unanimously approved by the Commission, upon motion made by Respondent, with Commissioner Robertson absent. This vote occurred after sponsorship funds were paid to B & W Productions by Champion and after responsibility for collecting and accounting for sponsorship funds for the Lois and Mike Show was transferred to BLAB TV. On June 22, 1999, the Commission adopted an ordinance establishing an economic development ad valorem tax exemption for Champion for its expansion of its Pensacola Mill located in Cantonment and for its hiring of additional employees. (Champion had expended $40 million in improvements at the facility that resulted in increased production and employment.) An employee of Champion met individually with Respondent as well as other members of the Commission to discuss this issue. The value of the ad valorem tax exemption to Champion was $1.8 million spread over 6.9 years. This item was unanimously approved by the Commission. This vote occurred after sponsorship funds were paid to B & W Productions by Champion and after responsibility for collecting and accounting for sponsorship funds for the Lois and Mike Show was transferred to BLAB TV. On July 15, 1999, the Commission approved the purchase of real property for a park from Champion for $375,000. This item was approved as part of the Commission's Consent Agenda by a vote of 4-0, with Respondent absent. With respect to each of the matters which were the subject of votes referenced in paragraph 43, neither Respondent nor B & W Productions provided any services to Champion. Nor did Respondent or B & W Productions have any responsibility for evaluating or inspecting Champion's performance under the items addressed by the votes. Neither Respondent nor B & W Productions provided any services with respect to any of the matters which were the subject of these votes. Neither Respondent nor B & W Productions benefited in any manner from the votes of the Commission on these items involving Champion. Respondent had no interest in the real property which the Commission directed staff to negotiate with Champion regarding purchase by the county. Respondent has never been employed or retained by Champion. Moreover, Respondent has never been engaged in a business enterprise with Champion as a partner, a joint venturer, a co-owner of property, or in a corporate entity whose shares are not listed on a national or regional stock exchange. Respondent was present and voted in favor of all of the issues involving sponsors as set forth in paragraphs 25, 31, 37, and 43 above, except as otherwise noted. All of the aforementioned sponsors paid for the sponsorship of the Lois and Mike Show. Furthermore, two of these sponsors, Baskerville-Donovan and Champion, continued to make monthly sponsorship payments in months just before, as well as after the votes, in the amounts of $200 and 260, respectively. Since the sponsorships reduced the personal contributions that had to be made by Respondent and his business associate, Benson, for the airing of the Lois and Mike Show, they directly benefited from money received from sponsors who did business with and regularly appeared before the Escambia County Commission. The facts show that all four of the above-mentioned sponsors were doing business with the Escambia County Commission and that both Baskerville-Donovan and Champion made sponsorship payments for the Lois and Mike Show during this interim period after dissolution but prior to the time that Respondent transferred his interest in the show to Lois Benson. Neither Respondent nor Benson believed that soliciting sponsorship from businesses that appear before the Escambia County Commission for a vote was a conflict. However, Respondent's contractual relationship with B & W Productions, and its interest in the Lois and Mike Show, his direct solicitation of sponsorships from businesses appearing before the County Commission, and Respondent's and B & W's dependence upon funds derived from those sponsors, constituted a continuing and frequently recurring conflict between Respondent's private interests and the performance of his public duties as a member of the Escambia County Commission.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Ethics Commission enter a final order and public report finding that Respondent, David Whitehead: (1) did not violate Section 112.3143(3)(a), Florida Statutes; and (2) violated Section 112.313(7)(a), Florida Statutes. It is further recommended that for the violation of Section 112.313(7)(a), Florida Statutes, the Commission impose a civil penalty of $2,000 against Respondent and issue a public censure and reprimand. DONE AND ENTERED this 15th day of August, 2000, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 15th day of August, 2000. COPIES FURNISHED: James H. Peterson, III, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Mark Herron, Esquire Akerman, Senterfitt & Edison, P.A. 301 South Bronough Street, Suite 200 Tallahassee, Florida 32801 Sheri L. Gerety, Agency Clerk Florida Commission on Ethics 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Philip C. Claypool, General Counsel Florida Commission on Ethics 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Bonnie J. Williams, Executive Director Florida Commission on Ethics 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
