Findings Of Fact The employee herein, the Petitioner, is employed by DEP as a park ranger. DEP is an agency of the State of Florida. The Petitioner failed to report for work after June 10, 1995. He apparently had some health problem or complaint and was on sick leave for a time. October of 1995 was the first month that he was on leave without pay. He was on leave without pay when he was terminated, which occurred on November 27, 1995. The Petitioner was not receiving workers compensation benefits between his last day of work on June 10, 1995 and the termination date of November 27, 1995. His monthly rate of pay was $1,627.23. He was paid $1,627.62 in gross wages for 176 hours on November 30, 1995. He received $1,319.18 in net wages for November of 1995. The Petitioner was entitled to $71.74 in wages for 10.75 hours for November of 1995. DEP calculated the amount of overpayment by offsetting the wages issued to him in November of 1995 by the amount he was actually entitled to receive for that month for the 10.75 hours. Thereafter, on December 12, 1995, DEP notified the Petitioner, by certified mail, return receipt requested, that he had been overpaid $1,247.44 in net wages for November of 1995. That return receipt reflected that the Petitioner received that letter on December 15, 1995. The Petitioner failed to refund the money to DEP during the 1995 tax year and as yet, has still not refunded the money. Because the money was not refunded during the 1995 tax year, the Petitioner also owes DEP an additional $163.87, which was withheld for taxes on the payment or overpayment in question. Thus, DEP overpaid the Petitioner a total of $1,411.31 in wages for November of 1995.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is RECOMMENDED that the Respondent, Department of Environmental Protection, enter a Final Order finding that the employee, the Petitioner, Eugene Breeze, owes $1,411.31 for a salary overpayment received by him in November of 1995. DONE AND ENTERED this 1st day of November, 1996, in Tallahassee, Florida. P. MICHAEL RUFF 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 4th day of November, 1996. COPIES FURNISHED: Mr. Eugene Breeze 1110 Florida Avenue Lynn Haven, Florida 32444 Melease Jackson, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virginia B. Wetherell, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Perry Odom, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The issue is whether Respondent is liable for a penalty of $265,604.81 based on payroll records for the period from October 28, 2008, through October 27, 2008, pursuant to Subsection 440.107(7), Florida Statutes (2008).1
Findings Of Fact Petitioner is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers’ compensation insurance for the benefit of their employees in accordance with Section 440.107. Respondent is a Florida corporation engaged in the construction business. On October 27, 2008, a compensation compliance investigator and other investigators for Petitioner conducted a targeted investigation of Respondent’s business based on reports from a confidential informant that Respondent was not in compliance with Chapter 440 and the Insurance Code. The compliance investigator met two relatives of the sole shareholder of the company, who identified themselves as employees. The compliance investigator also identified construction work being conducted by two workers, who, it is undisputed, were not in compliance with Chapter 440. The disputed issues of fact are comprised of two issues. The first issue is whether payments to relatives of the sole shareholder are compensation or loans. The second issue is whether cash payments to the sole shareholder are compensation or business expenses. None of the loans to family members were repaid to the employer at the time of the hearing. Loans that have not been repaid to the employer are defined as payroll by Florida Administrative Code Rule 69L-6.035, and Respondent owes that portion of the penalty assessment allocable to the first issue. Respondent provided ample evidence to demonstrate that the disputed transactions were loans rather than compensation for employment. One relative is disabled and unable to work at the level for which he is allegedly compensated. He will repay the loans out of the sale proceeds of his home upon his death. Other family members have less tragic but similarly sad stories. However, deviation from Florida Administrative Code Rule 69L- 6.035 would merely invite remand pursuant to Section 120.69. The remaining issue is whether cash payments by Respondent to its sole shareholder are properly characterized as compensation or business expenses. Florida Administrative Code Rule 69L-6.035(1)(f) defines payroll to include expense reimbursements to the extent the business records do not confirm the expense was incurred as a valid business expense. For the reasons stated hereinafter, it is less than clear and convincing that the disputed cash payments are payroll within the meaning of Florida Administrative Code Rule 69L-6.035(1)(f). The sole shareholder explained under oath at the hearing that the cash payments at issue were for business expenses, including the payment of construction materials. He does not give workers charge cards to buy construction materials. He gives them cash. They do not always bring him receipts. The witness submitted detailed tabulations of approximately $77,002.46 in such expenses during the audit period, and the trier of fact found the testimony and supporting documentation to be credible and persuasive. The sole shareholder also testified that he incurred cash office expenses during the audit period of approximately $22,500.00 and submitted documentation to support that testimony. He also purchased three trucks for the business and made cash down payments on each truck with documentation to support the cash payments. The trier of fact finds that testimony and supporting documentation to be credible and persuasive. Based on the evidence through the date of the hearing, it is less than clear and convincing that the disputed cash payments to the sole shareholder were not incurred as valid business expenses within the meaning of Florida Administrative Code Rule 69L-6.035(f). The testimony of the sole shareholder and the supporting documentary evidence also shows that the disputed amounts were not cash payments to the sole shareholder in his capacity as an employee within the meaning of Florida Administrative Code Rule 69L-6.035(1)(b).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order imposing a fine consistent with the amount attributable to unpaid loans. DONE AND ENTERED this 24th day of November, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 24th day of November, 2009.
The Issue The issue in the case is whether Latasha Moore (Petitioner) received excess salary payments from the Department of Juvenile Justice (Respondent) for which repayment is required.
Findings Of Fact At all times material to this case, the Petitioner was employed by the Respondent, although by the time of the hearing, the Petitioner was no longer so employed. By letter dated January 30, 2006, the Respondent advised the Petitioner that two salary overpayments totaling $723.62 had occurred, for which repayment was sought. The Respondent's letter stated that for the bi-weekly pay period ending May 19, 2005, an overpayment of $400.73 had occurred. The letter stated that for the bi-weekly pay period ending June 2, 2005, an overpayment of $322.89 had occurred. The letter advised that repayment by cashier's check or money order was due within 15 days of receipt of the letter. The letter further advised that the Petitioner had the right to an administrative hearing to challenge the calculation. A second letter, essentially identical to the letter dated January 30, was issued on March 28, 2006. The evidence presented at the hearing failed to establish that the calculation of the alleged overpayment was correct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Juvenile Justice enter a final order vacating the demand for repayment of salary overpayment and finding that no salary repayment is due from Latasha Moore. DONE AND ENTERED this 19th day of June, 2006, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 19th day of June, 2006. COPIES FURNISHED: Mary Linville Atkins, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Latasha Moore 5506 Metro West Boulevard, Apartment 303 Orlando, Florida 32811 Jennifer Parker, General Counsel Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Anthony Schembri, Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent repay Petitioner $7,866 in monies expended in violation of the contract and applicable regulations. DONE and ENTERED this 14th day of June, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER 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 14th day of June, 1982. COPIES FURNISHED: Chad J. Motes, Esquire Suite 131-Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32301 Louise S. Aligood P. O. Box 536 Monticello, Florida 32344
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner is now, and was at all times material to the instant case, including June 28, 1993, through January 27, 1994, an employee of the Department working in the economic services unit of the Department's District XI (hereinafter referred to as the "District"). In 1990, Petitioner occupied a PAS (Public Assistance Specialist) I position that, in or around June of that year, was one of 182 such positions in the District to be reclassified to a PAS II position as part of the Department's implementation of the new FLORIDA computer system. 2/ Those employees occupying these reclassified positions (hereinafter referred to as the "upgraded employees") whose salaries were below the minimum salary for a PAS II received a salary increase to raise their salary to the minimum. Petitioner was among the employees who received such a salary increase. Such action was taken in accordance with the following Department policy set forth at page 11 of HRSP 60-1: When an employee is promoted, a salary in- crease to at least the minimum salary of the higher level position will be made. However, an increase of up to ten percent above the current base salary or ten percent above the minimum for the new class may be approved. An increase of up to ten percent of the current base salary is normally used when the employee's salary is the same or nearly the same as the minimum for the new class. An increase of up to ten percent above the minimum for the new class may be granted when an employee possesses training or experience substantially above the minimum training and experience required for the higher class and it is determined that the employee is exceptionally well qualified for the position. These increases must be approved by an assistant secretary or district administrator. Because of funding constraints that existed at the time, no other salary increases were given to the upgraded employees. Funds for such additional salary increases became available toward the end of the 1992-1993 fiscal year. The increases were approved at both the Department and District level. Petitioner and the other upgraded employees were advised of the increases by a memorandum dated July 7, 1993, from the District XI District Administrator. The District Administrator's memorandum read as follows: Your position has been identified as one which was upgraded as a result of the FLORIDA implementation in 1990/1991. At the time, our records indicate that you received a partial increase, or none at all, because of budgetary constraints. Due to the identification of available monies prior to the end of the Fiscal Year, we are pleased to inform you that you will be receiving a pay increase in your salary warrant on July 9, 1993. The amount of the increase will be either 10[percent] or the difference between what you received in 1990/1991 and 10 [percent], and was effective June 28, 1993. Should you have any questions about this increase or how it was calculated, please call Arelis Valero at 377-5197. Your continued dedication and service to HRS is sincerely appreciated. District personnel miscalculated the amount of Petitioner's approved salary increase (which was "the difference between what [he had] received in 1990 . . . and 10[percent]" of his pre-reclassification base salary). As a result, following June 28, 1993, the effective date of the increase, for the pay periods ending January 27, 1994, Petitioner was overpaid a total of $1,148.35. The District discovered the error and revised its payroll records to reflect Petitioner's correct salary. In addition, by memorandum, it notified Petitioner of the mistake that had been made and advised him that it was his responsibility to repay the amount he had been overpaid. By letter dated November 1, 1995, the District XI District Administrator informed Petitioner that the overpayment would be recovered through payroll deductions beginning January 12, 1996, amounting to "10[percent] of [his] gross salary each pay period, unless [he] prefer[red] a single lump sum, until the balance [was] paid." The letter further provided, in part, as follows: If you do not dispute the overpayment, but feel that the repayment schedule of 10 [percent] of your gross salary per pay period is overly burdensome, please call Thomas Franklin at 377-5055 Number135 and he will review with you what must be documented and submitted to the Comptroller's Office (Capitol Building, Suite 1201, Tallahassee, Florida 32399-0350) to request a modification. While the total amount eventually repaid to the State cannot be adjusted, the Comptroller may be convinced to lengthen the repayment schedule by lessening the percentage withheld each pay period. If you do not agree that you were overpaid this amount, you have the right to an administrative hearing under 120.57(1) or (2), Florida Statutes, and Rules 10-2.036 and 28-5, Florida Administrative Code. You may request a formal or an informal hearing. If a request for a formal hearing is made, your petition must be in compliance with Rule 28-5.021, Florida Administrative Code. Please note that Rule 28-5.201(2) specifies that your petition should contain a concise discussion of the specific item in dispute. Informal hearings are governed by Rules 28-5.501-503, Florida Administrative Code. Your request for either a formal or informal hearing must be received by this office, attention Thomas Franklin, within thirty (30) days of your receipt of this letter, in accordance with Rule 10-2.036, Florida Administrative Code. Failure to request a timely hearing shall be deemed a waiver of your right to hearing. After receiving this November 1, 1995, letter, from the District XI District Administrator, Petitioner spoke with Thomas Franklin, the Department employee referenced in the letter. Franklin told Petitioner that he could request both a modification in the repayment schedule and an administrative hearing. In a memorandum to Franklin dated December 3, 1995, Petitioner requested an administrative hearing "due to the fact that [he did] not agree that an overpayment [had] ever occurred." In another December 3, 1995, memorandum to Franklin, Petitioner requested that only "$10.00 biweekly [be deducted] from [his] paycheck" if it was ultimately determined that an overpayment had indeed been made.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department: find that, from June 28, 1993, until January 27, 1994, Petitioner was overpaid a total of $1,148.35; notify the Department of Management Services of this finding; and refer the matter to the Comptroller so that the Comptroller may take appropriate action to recover these moneys owed to the state. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of April, 1996. STUART M. LERNER, 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 29th day of April, 1996.
The Issue Whether Respondent received a salary overpayment from Petitioner.
Findings Of Fact Based on the testimony and evidence presented at the final hearing, the following findings of fact are made. At all times material to this matter, Respondent was a career service employee of Petitioner until her separation on November 2, 2018. On November 21, 2018, Petitioner issued a pay warrant to Respondent for the pay period of November 2, 2018, through November 15, 2018, in the amount of $981.29. Since Respondent was separated from the Department, the pay warrant issued resulted in Respondent being overpaid $981.29. Upon discovering the error, Petitioner issued a letter notifying Respondent of the overpayment. Petitioner later conducted an audit and determined that Respondent’s leave balance and uniform allowance payment should be deducted from the overpayment amount, which resulted in a remaining total of $349.90. On July 10, 2019, Petitioner sent Respondent an amended letter requesting the remaining overpayment balance in the amount of $349.90.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Corrections enter a Final Order requiring Sierra McQueen-Ellis to repay Petitioner $349.90. DONE AND ENTERED this 20th day of December, 2019, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 2019.
The Issue The issues in this case are whether Respondent violated Pinellas County School Board Policies 8.25(1)(j) and 8.25(1)(t), and, if so, whether Petitioner should suspend Respondent for three days.
Findings Of Fact Ms. Rosenthal is employed by Petitioner as a clerk specialist III in the specialized hiring section of the human relations department of the Pinellas County School District. Part of her assigned duties includes processing applications for substitute teachers to be employed by Pinellas County Schools. Ms. Rosenthal has been employed as a clerk specialist III since 2000. Her job responsibilities include the accurate and timely processing of data and files in the specialized hiring department of the Pinellas County School District. On January 12, 2008, Ms. Rosenthal met with Starla Metz, who at that time was the human resources director for specialized hiring, concerning the length of time Ms. Rosenthal was taking to process on-line substitute applications. Ms. Rosenthal was directed to use a weekly list to track the status of the on-line applications and to enter information in the sub database when she spoke with or emailed an applicant. Terri Alford, a human resources specialist, was directed to meet with Ms. Rosenthal each Friday to offer support as needed. In February Marilyn Lusher replaced Ms. Metz as director. Beginning on April 10, 2008, and continuing for about five meetings thereafter, Ms. Lusher met with the specialized hiring department to clarify and explain the department’s processes, to communicate transitions within the department, and to emphasize her expectations regarding accuracy and the need for confidence in the clerks’ data entry process. A checklist for the front of each file was updated, as well as detailed instructions for the clerks. Terri Alford and Karen Cope, a human resource specialist, supervised Ms. Rosenthal. They advised Ms. Lusher that Ms. Rosenthal continued to make clerical errors. Ms. Lusher requested that they provide her with specific instances in which errors were made. Ms. Alford and Ms. Cope documented the errors and presented them to Ms. Lusher. Additionally, Ms. Alford and Ms. Cope were instructed to document errors made by others in the department. On August 7, 2008, Ms. Lusher met with Ms. Rosenthal concerning performance deficiencies in Ms. Rosenthal’s work. Ms. Rosenthal had inaccurately retrieved information on an individual which would make the individual ineligible for hiring. A letter to the individual stating that the individual was a no hire had to be retrieved from the mailroom. Additionally, Ms. Rosenthal had made other errors such as: filing information in an applicant’s file that should have been filed in another applicant’s file, making inaccurate data entries in Winocular, and delaying the processing of applications. Ms. Rosenthal was given some steps to take in order to improve her work performance. Ms. Alford was to continue to meet with Ms. Rosenthal on Fridays to determine what support Ms. Rosenthal might need. Ms. Rosenthal always declined any additional help. Ms. Rosenthal’s poor work performance continued, and Ms. Lusher met with Ms. Rosenthal on August 15, 2008, to again discuss performance deficiencies. Ms. Rosenthal had taken some steps to correct her errors, but she continued to have delays in processing, inaccurate data entry, incomplete files, and errors in pulling the correct files. At that time, it was determined that future evaluations of Ms. Rosenthal’s performance were to be done using the Supporting Services Performance Appraisal form, which meant that Ms. Rosenthal’s performance would be rated as unsatisfactory, needs improvement, satisfactory, or better than satisfactory. On August 15 and September 12, 2008, Ms. Lusher met with Ms. Rosenthal to discuss errors that Ms. Rosenthal continued to make in her work. On September 26, 2008, Ms. Lusher and Dr. Ron Stone, assistant superintendent of Human Resources, met with Ms. Rosenthal to discuss Ms. Rosenthal’s inappropriate use of the computer and the Internet during working hours. Ms. Rosenthal was cautioned to refrain from the inappropriate use of the computer and to improve the accuracy and timely completion of her work. She was advised that there appeared to be a correlation between her inordinate use of the Internet and her poor work performance. Prior to the September 26, 2008, meeting, Ms. Rosenthal had requested that she be given additional time beyond her scheduled work hours to complete her work. This time would be compensated either as overtime or as compensatory time. At the September 26, 2008, meeting, Ms. Lusher informed Ms. Rosenthal that she would no longer be given additional time to complete her work. On October 23, 2008, Ms. Rosenthal was given a written reprimand for the unacceptable quality and quantity of her work. Ms. Rosenthal was directed to improve her work performance. After the written reprimand was issued, Ms. Rosenthal continued to make numerous clerical errors. Ms. Lusher’s job responsibilities increased dramatically, and she did not have the time to devote to meetings with Ms. Rosenthal to discuss Ms. Rosenthal’s deficient work performance. However, in August 2009, Ms. Lusher again met with Ms. Rosenthal to discuss Ms. Rosenthal’s errors in the processing or the absence of processing additional duty forms that were needed to process payroll for certain employees. Ms. Rosenthal had also provided some inaccurate information on extra duty time that was used in an agenda item for Petitioner, resulting in a complaint from the Superintendent of the Pinellas County Schools. Other issues were discussed such as Ms. Rosenthal’s personal telephone conversations while at work, Ms. Rosenthal’s transferring telephone calls to other team members when Ms. Rosenthal should have been able to answer the telephone inquiries, and Ms. Rosenthal’s failure to stay at her desk to answer the telephone when other team members were at lunch. On September 29, 2009, Ms. Rosenthal received a performance appraisal. She received an unsatisfactory rating for quality of work and a needs-to-improve rating for job knowledge, quantity of work, and initiative. She received satisfactory ratings for the other areas of her work. Ms. Rosenthal argues that, although she made mistakes, other team members also made mistakes. When Ms. Rosenthal’s mistakes are compared to the mistakes of other team members, Ms. Rosenthal’s are significantly greater in number. The use of the Internet and the conduct of personal business during work time contribute to Ms. Rosenthal’s inability to improve the quantity of her work.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Ms. Rosenthal is guilty of incompetence in violation of Pinellas County School Board Policy 8.25(1)(j) and failure to correct performance deficiencies in violation of Pinellas County School Board Policy 8.25(1)(t) and suspending her for three days without pay. DONE AND ENTERED this 7th day of July, 2010, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 7th day of July, 2010.
The Issue The issue for determination is whether Respondent's application for renewal of his certificate of registration as a farm labor contractor should be granted. Preliminary to that determination is the issue of whether Petitioner has failed to pay in excess of $10,000 in unemployment compensation taxes.
Findings Of Fact Respondent is Ernest J. Grant, a farm labor contractor and holder of a certificate of registration issued by Petitioner at all times pertinent to these proceedings. Respondent's latest certificate of registration was issued by Petitioner on December 14, 1988, and expired on July 18, 1989. On November 28, 1989, Respondent applied for renewal of his certificate of registration. By letter dated January 5, 1990, Petitioner requested Respondent to contact Petitioner'srepresentative within 14 days regarding Respondent's nonpayment of unemployment compensation taxes totalling in excess of $10,000. Petitioner's correspondence further stated that applicable Florida law prevented the renewal of a certificate of registration absent Petitioner's satisfaction that the applicant for renewal is compliant with Petitioner's administrative rules regulating farm labor contractors. Petitioner's rules require compliance by farm labor contractors with applicable rules and statutes, both state and federal, relating to the payment of unemployment compensation taxes. Respondent's history of nonpayment of unemployment compensation taxes to Petitioner is lengthy, dating back to 1978 when his tax account was established with Petitioner's Bureau of Tax. Numerous checks written by Respondent for payments for previous taxes to Petitioner have been dishonored upon presentment for payment. Petitioner's attempts to resolve Respondent's tax payment deficiencies through the establishment of "time payment accounts" for the benefit of Respondent have failed or yielded only marginal results as a result of Respondent's noncompliance with those agreements. Respondent's last token payment on such an agreement in the amount of $50 was received by Petitioner on January 11, 1985. Respondent has made no contributions for unemployment compensation taxes for the previous 18 calendar year quarters of tax liability. Respondent presently owes Petitioner $10,642.22 in unpaid unemployment compensation taxes; $6,128.36 in interest; $85 in unpaid penalties; $25 in service fees for bad checks; and $28 in filing fees. The total amount currently owed by Respondent to Petitioner is $16,928.58.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered denying Respondent's application for renewal of his certificate of registration as a farm labor contractor. DONE AND ENTERED this 30th day of April, 1990, in Tallahassee, Leon County, Florida. DON W.DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Fl 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 1990. COPIES FURNISHED: Ernest J. Grant 204 Sally Blvd P.O. Box 1222 Bowling Green, FL 33834 Moses E. Williams, Esq. Suite 117 Montgomery Building 2562 Executive Center Circle Tallahassee, FL 32399-2152 Hugo Menendez, Secretary 206 Berkeley Building 2590 Executive Center Circle, East Tallahassee, FL 32399-2152 Stephen Barron, Esq. 131 Montgomery Building 2563 Executive Center Circle, East Tallahassee, FL 32399-2152
The Issue Whether Respondent, Neighborhood Grill, Inc., d/b/a Neighborhood Sports Grill (Respondent), failed to remit monies owed to Petitioner, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (the Department) pursuant to the surcharge provisions found in Section 561.501, Florida Statutes (2006). If so, whether the Department should impose discipline against Respondent for that failure.
Findings Of Fact At all times material to the allegations of this case, the Department has been the state agency charged with the responsibility of regulating persons holding alcoholic beverage licenses. At all times material to the allegations of this matter Respondent has held license number 60-13254, series 4-COP., which was duly issued Respondent by the Department. At all times material to the allegations of this matter, Respondent was obligated to pay monthly surcharge taxes to the Department pursuant to the provisions of Section 561.501, Florida Statutes (2006). Respondent elected to have these surcharge taxes based on the "purchase method," i.e., based on the volume of alcohol Respondent purchased from its suppliers during the month.2 The Department routinely audits licensees to compare the surcharge taxes remitted by the licensee with the records maintained by the licensee’s suppliers and/or by the licensee. The purpose of the audit is to verify that surcharge tax paid by a licensee was based on a correct calculation of its surcharge tax obligation. In this case, the Department audited Respondent for the subject audit period of October 1, 2006, through June 30, 2007. Mr. Marrero began the subject audit by issuing an engagement letter to Respondent that included a questionnaire. In addition to other information, the questionnaire requested Respondent to identify its beverage suppliers. Respondent did not respond to the engagement letter or to the questionnaire. Based on records available to him, including information as to Respondent’s beverage suppliers gathered during prior audits, Mr. Marrero was able to identify Respondent’s major beverage suppliers. Consistent with the Department’s policies, Mr. Marrero contacted Respondent’s beverage suppliers to obtain records of all sales of alcoholic beverages those suppliers had made to Respondent during the subject audit period. Those beverage suppliers then provided their records to establish the beverages sold to Respondent during the subject audit period. Based upon those records Mr. Marrero determined the volume of alcoholic beverages purchased by Respondent during the subject audit period and calculated the surcharge tax due and owing to the Department for the subject audit period. Mr. Marrero compared the amount of the surcharge tax he calculated with the surcharge tax paid by Respondent to the Department for the subject audit period. Based upon that comparison, Mr. Marrero determined that Respondent had failed to remit the correct surcharge taxes payment based on underpayment, non-payment, and late payment. More specifically, Mr. Marrero calculated that the Respondent owed the Department additional surcharge tax in the principal amount of $6,265.06; surcharge interest in the amount of $589.93; and surcharge penalties in the amount of $3,467.05. Mr. Marrero determined that Respondent owed the Department the total amount of $10,322.04. Mr. Torres reviewed the audit prepared by Mr. Marrero and verified its accuracy. Mr. Marrero and Mr. Torres have the requisite education, training, and experience to conduct the subject audit (in the case of Mr. Marrero) and to review the subject audit to verify its accuracy (in the case of Mr. Torres). The subject audit accurately reflects the amounts Respondent owes the Department. On May 5, 2008, the Department provided Respondent a copy of its audit summary and demanded payment of the amounts due. Respondent has not paid any portion of the total sum ($10,322.04) identified as being due by the audit summary.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, enter a Final Order providing that the Respondent owes it surcharge taxes in the principal amount of $6,265.06, surcharge interest in the amount of $589.93, and surcharge penalties in the amount of $3,467.05, for a total amount of $10,322.04. The Final Order should give the Respondent a period of 30 days to remit the full amount $10,322.04 or make acceptable arrangements for the payment. The Final Order should revoke Respondent’s license if Respondent fails to timely remit the full amount due or make acceptable arrangements for such payment. DONE AND ENTERED this 5th day of June, 2009, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 5th day of June, 2009.
