The Issue Whether Respondent committed the violations alleged in the Administrative Action? If so, what penalty should be imposed?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Licensed Premises La Catracha Fish Market and Restaurant (hereinafter referred to as the "Restaurant") is an eatery located at 1255 West 46th Street, Hialeah, Florida, that sells beer and wine pursuant to alcoholic beverage license number 23-15943, series 2-COP. The Restaurant offers both counter and table service. The counter where patrons are served (hereinafter referred to as the "Counter") is situated toward the front of the Restaurant, to the right of the entrance. Ownership and Operation of the Restaurant Respondent is now, and has been at all times material to the instant case, the owner of the Restaurant and the holder of the license that authorizes the sale of alcoholic beverages on the premises. Respondent and his wife, Juanita, are now, and have been at all times material to the instant case, actively involved in the operation of the Restaurant. They maintain a regular presence on the premises. Among other things, Juanita mans the cash register behind the Counter. From February of 1994, until the end of July of that year, when the Moyas were on an extended vacation, Respondent had "other people" run the business. When they returned from their vacation, the Moyas discovered that the Restaurant had a "new clientele." The Undercover Operation Elio Oliva and Antonio Llaneras are detectives with the Hialeah Police Department. In August and September of 1994, they participated in an undercover investigation at the Restaurant. The investigation was initiated after the Hialeah Police Department had received complaints that illegal drug and gambling activities were taking place on the premises. The August 31, 1994, Visit The undercover operation began on August 31, 1994. On that date, Oliva and Llaneras, dressed in civilian attire, went to the Restaurant to see if they would be able to make a controlled buy of narcotics. Upon entering the Restaurant, they walked over to the Counter and sat down. From their vantage point at the Counter, Oliva and Llaneras observed a number of patrons walk up to another patron, Antonio Rosales, 1/ hand him money and receive in return a clear plastic bag containing a white powdery substance. After approximately 20 minutes, Oliva approached Rosales and asked him if he had any cocaine to sell. Rosales responded in the negative, but directed Oliva to another patron in the Restaurant, from whom Oliva purchased a clear plastic bag containing, what the patron represented was, a half of a gram of powdered cocaine. The transaction occurred at the Counter in plain view. There was no effort to conceal what was taking place. Oliva subsequently conducted a field test of the substance he had purchased at the Restaurant that day. The field test was positive for the presence of cocaine. 2/ The September 1, 1994, Visit Oliva and Llaneras returned to the Restaurant at around 8:00 p.m. on September 1, 1994. When they arrived, Rosales was at the Counter. There was a telephone on the Counter near where Rosales was seated. Rosales received incoming calls on the telephone that evening. (Employees at the Restaurant answered the telephone and handed it to Rosales, who then engaged in conversation with the caller.) Upon entering the Restaurant, Oliva noticed Rosales at the Counter and walked up to him. He told Rosales that he was interested in purchasing cocaine and then handed Rosales $20.00. Rosales thereupon pulled out from one of his pockets a clear plastic bag containing, what Rosales represented was, a half of a gram of powdered cocaine. He then gave the bag to Oliva. The transaction occurred in plain view. There was no effort to conceal what was taking place. Respondent's wife was on the premises at the time of the transaction. Oliva subsequently conducted a field test of the substance he had purchased from Rosales at the Restaurant that day. The field test was positive for the presence of cocaine. 3/ The September 2, 1994, Visit Llaneras went back to the Restaurant the following day. When he arrived, Rosales was again at the Counter. From his position near the entrance of the Restaurant, Llaneras, in a normal tone of voice, told Rosales that he wanted to buy a half of a gram of cocaine. Rosales thereupon signaled for Llaneras to sit down next to him. Llaneras complied with Rosales' request. Rosales then pulled out from one of his pockets a clear plastic bag containing a white powdery substance. Upon handing the bag to Llaneras, Rosales bragged, rather loudly, that it was "good stuff." The transaction occurred in plain view. There was no effort to conceal what was taking place. Respondent and his wife were behind the Counter at the time of the transaction. Llaneras subsequently conducted a field test of the substance he had purchased from Rosales at the restaurant that day. The field test was positive for the presence of cocaine. The substance was later analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of .3 grams of cocaine. The September 6, 1994, Visit On September 6, 1994, Llaneras returned to the Restaurant, accompanied by Oliva. On separate occasions, they each approached Rosales, who was seated at the Counter. Llaneras' September 6, 1994, Purchase When Llaneras approached Rosales, Rosales asked him if he "needed some more." Llaneras' response was to hand Rosales $20.00. Rosales then took out a folded napkin from one of his pockets and placed the napkin on top of the Counter. He proceeded to unfold the napkin. Inside the napkin were approximately 12 clear plastic bags. Each contained a white powdery substance. Rosales handed one of the bags to Llaneras. He told Llaneras that it was "good stuff." The transaction occurred in plain view. There was no effort to conceal what was taking place. Respondent's wife was behind the Counter, approximately three to four feet from Llaneras and Rosales, at the time of the transaction. Llaneras subsequently conducted a field test of the substance he had purchased from Rosales at the Restaurant that day. The field test was positive for the presence of cocaine. The substance was later analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of .3 grams of cocaine. Oliva's September 6, 1994, Purchase When Oliva approached Rosales, he handed Rosales $20.00. Rosales thereupon took out a folded napkin from one of his pockets and unfolded it on top of the Counter. Inside the napkin were approximately ten clear plastic bags, each of which contained a white powdery substance. Rosales handed one of the bags to Oliva. The transaction occurred in plain view. There was no effort to conceal what was taking place. Respondent's wife was behind the Counter, approximately six feet from Llaneras and Rosales, and was facing in their direction at the time of the transaction. The substance Oliva had purchased from Rosales at the Restaurant that day was subsequently analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of cocaine. The September 14, 1994, Visit Oliva and Llaneras next visited the Restaurant on September 14, 1994. When they arrived at the Restaurant, Rosales was seated at the Counter talking on the telephone. Oliva sat down at the Counter next to Rosales and handed him $20.00. As he had done during his previous encounter with Oliva on September 6, 1994, Rosales took out a folded napkin from one of his pockets and unfolded it on top of the Counter. Inside the napkin was a clear plastic bag containing a white powdery substance. Rosales handed the bag to Oliva. The transaction occurred in plain view. There was no effort to conceal what was taking place. Respondent's wife and the barmaids on duty were behind the Counter at the time of the transaction. The substance Oliva had purchased from Rosales at the Restaurant that day was subsequently analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of .3 grams of cocaine. The September 15, 1994, Visit Oliva and Llaneras returned to the Restaurant on the following day, September 15, 1994. Gaming Activities During their visit, they heard a loud commotion in the kitchen and went to investigate. Upon entering the kitchen, 4/ they observed several persons, including Respondent and Rosales, gathered around a table participating in a game similar to roulette. The table was round and approximately three feet in diameter. It was filled with indentations painted either black or white. A funnel was held above the center of the table through which a marble was dropped. Participants in the game bet on whether the marble would come to rest on a black or white colored indentation. If the marble landed on a white indentation, the person dropping the marble would win the money that was in the pot. If it landed on a black indentation, the other player(s) would win. The game did not require any skill to play. Its outcome was based entirely on chance. After entering the kitchen, both Oliva and Llaneras played the game. Oliva's September 15, 1994, Purchase While Oliva was in the kitchen, Rosales asked him if he "needed anything." Oliva indicated that he did and handed Rosales $20.00. In return, Rosales gave Oliva a clear plastic bag containing a white powdery substance. Oliva and Rosales each spoke in a normal tone of voice during the exchange. Respondent was among those who were in the kitchen at the time of the transaction. The substance Oliva had purchased from Rosales at the Restaurant that day was subsequently analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of .3 grams of cocaine. Llaneras' September 15, 1994, Purchase Llaneras also made a buy from Rosales in the kitchen. Rosales initiated the transaction. He asked Llaneras if he needed any cocaine. Llaneras responded in the affirmative and gave Rosales $20.00, in return for which Llaneras received from Rosales a clear plastic bag containing a white powdery substance. Llaneras and Rosales each spoke in a louder than normal tone of voice during the exchange. Respondent was in the kitchen a few feet away from Llaneras and Rosales when the transaction took place. Llaneras subsequently conducted a field test of the substance he had purchased from Rosales at the Restaurant that day. The field test was positive for the presence of cocaine. The substance was later analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of .2 grams of cocaine. The September 16, 1994, Visit The next day, September 16, 1994, Oliva and Llaneras came back to the Restaurant. During their visit on this date, they each made buys from Rosales. Oliva's September 16, 1994, Purchase Rosales was at the Counter talking with Respondent's wife when Oliva approached him. After greetings were exchanged, Rosales asked Oliva if he "needed anything," in response to which Oliva handed Rosales $20.00. Rosales then gave Oliva a clear plastic bag containing a white powdery substance. Oliva and Rosales each spoke in a normal tone of voice during the exchange. The substance Oliva had purchased from Rosales at the Restaurant that day was subsequently analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of .2 grams of cocaine. Llaneras' September 16, 1994, Purchase Rosales was in the kitchen when Llaneras approached him and inquired about purchasing a half of a gram of powdered cocaine. After Llaneras tendered the money needed to make the purchase, Rosales gave him a clear plastic bag containing a white powdery substance. Llaneras and Rosales each spoke in a louder than normal tone of voice during the exchange. Respondent was in the kitchen, approximately three to four feet away from Llaneras and Rosales, when the transaction took place. Respondent's wife was also nearby. Llaneras subsequently conducted a field test of the substance he had purchased from Rosales at the Restaurant that day. The field test was positive for the presence of cocaine. The substance was later analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of .2 grams of cocaine. The September 22, 1994, Visit Oliva and Llaneras paid separate visits to the Restaurant on September 22, 1994. During their visits, they each made buys from Rosales. Oliva's September 22, 1994, Purchase Rosales was at the Counter talking with Respondent's wife when Oliva walked up to him. Rosales interrupted his conversation with Respondent's wife to ask Oliva if he "needed anything." In response to Rosales' inquiry, Oliva handed Rosales $20.00. Rosales then handed Oliva a clear plastic bag containing a white powdery substance. Oliva and Rosales each spoke in a normal tone of voice during the exchange. Respondent's wife was behind the Counter, approximately four to five feet from Oliva and Rosales, when the transaction took place. The substance Oliva had purchased from Rosales at the restaurant that day was subsequently analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of .3 grams of cocaine. Llaneras' September 22, 1994, Purchase Llaneras encountered Rosales as Rosales was leaving the Restaurant. Rosales asked Llaneras if he "needed anything." Llaneras responded in the affirmative. Rosales, in turn, told Llaneras to wait at the Counter. Rosales then left the Restaurant. He returned shortly thereafter with a clear plastic bag containing a white powdery substance, which he handed to Llaneras. The transaction took place in plain view of Respondent's wife, who was approximately three feet away behind the Counter. Respondent was on the premises at the time of the transaction. Llaneras subsequently conducted a field test of the substance he had purchased from Rosales at the Restaurant that day. The field test was positive for the presence of cocaine. The substance was later analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of .3 grams of cocaine. Llaneras' September 28, 1994, Visit Llaneras next visited the Restaurant on September 28, 1994. Rosales was seated at the Counter when Llaneras entered the Restaurant. He saw Llaneras enter and walked up to him. Llaneras greeted Rosales by telling Rosales, in a normal tone of voice, that he wanted to purchase cocaine. He then handed Rosales $20.00. In return, Rosales gave Llaneras a clear plastic bag containing a white powdery substance. Respondent's wife was behind the Counter when the transaction took place. Respondent was on the premises. Llaneras subsequently conducted a field test of the substance he had purchased from Rosales at the Restaurant that day. The field test was positive for the presence of cocaine. The substance was later analyzed at the Metro-Dade Police Department's Crime Laboratory. The analysis revealed the presence of .2 grams of cocaine. Oliva's September 29, 1994, Visit Oliva returned to the Restaurant on September 29, 1994. He met Rosales at the Restaurant. As was his usual custom when he conversed with Oliva, Rosales asked if Oliva "needed anything." As was his customary response to such an inquiry, Oliva handed Rosales $20.00. Rosales then stepped outside the Restaurant and retrieved from his car, which was parked in front of the Restaurant, a clear plastic bag containing a white powdery substance. When he returned to the Restaurant, he handed the bag to Oliva. The transaction occurred in plain view at the Counter. There was no effort to conceal what was taking place. Oliva and Rosales each spoke in a normal tone of voice during the exchange. Respondent's wife was behind the Counter at the time of the transaction. Respondent was on the premises. Respondent's Responsibility for Drug Transactions on Licensed Premises Although Respondent may not have been directly involved in any of the above-described sales of cocaine that took place at the Restaurant during the Hialeah Police Department's undercover operation and he may not have even been on the licensed premises at the time of some of these sales, given the persistent and repeated nature of the transactions and the open manner in which they were made, the inference is made that Respondent either fostered, condoned, or negligently overlooked them.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order finding Respondent guilty of the violations alleged in Counts 1 and 3 through 12 of the Administrative Action and penalizing Respondent therefor by revoking his alcoholic beverage license number 23-15943, series 2-COP. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 11th day of August, 1995. 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 11th day of August, 1995.
Findings Of Fact Petitioner, Green Cay Corporation, acts as a sales agent in selling vegetables primarily for producers in Dade and Broward Counties. Its principal offices are at 700 Northwest Twelfth Terrace, Pompano Beach, Florida. Respondent Sanco Distributors, Inc., acts as a broker for supermarket chains and consequently purchases produce from agents such as Green Cay for further resale to wholesalers and distributors. On the morning of February 7, 1983, Sandy Geraci, president of respondent, telephone petitioner's general manager, Harold Rabin, to inquire about the availability of peppers and other produce. After agreeing on the price and amount, Geraci sent a truck to petitioner's warehouse that same evening which picked up the following produce: 300 boxes of peppers at $28.25 per box, 14 boxes of cucumbers at $13.25 per box, 20 boxes of "Fcy Zucs" at $8.25 per box, 40 boxes of "Med Zucs" at $5.25 per box, and 300 boxes of extra- large peppers at $28.25 per box. The total charge on the invoice was $14,685.50. Before accepting the shipment, Gareci made a cursory inspection of the produce and found it to be acceptable. The shipment was picked up F.O.B. Pompano Beach, which meant Sanco took title to the produce once it was loaded on the truck. Two hundred boxes of peppers were initially delivered to Califf Company in Columbus, Ohio, on February 9 or 10. At around 4:00 a.m. on February 10, Sanco's truck arrived at the loading dock of Walter Gailey and Sons in Cleveland, Ohio, to deliver the remaining 300 boxes of peppers. After the truck was unloaded, it departed the city to make further deliveries. There was no inspection of the peppers by Gailey before they were unloaded or when they were first placed in his warehouse. Sometime later that morning, a United States Department of Agriculture inspector examined a load of peppers on Gailey's dock and noted that "[d]amage by bruising occurring throughout pack ranges from 12 percent to 16 percent, average 14 percent. No decay." However, it was not conclusively shown that the peppers inspected were those delivered by Sanco. The report also noted that "[g]rade defects average 4 percent, consisting of mechanical damage and pulled calix." A pulled calix means the pepper has no stem. The report concluded in part that the boxes met "quality requirements but fail[ed] to grade U.S. No. 1. account of condition." Gailey contacted Geraci by telephone on the morning of February 10 to complain about the peppers. Geraci then telephone Rabin. After being read the results of the inspection report, Rabin asked Geraci to try to make a settlement with Gailey and to offer a $3.00 per box allowance on the peppers. When Gailey was told of this offer by Geraci, he apparently refused. Geraci then offered to move the peppers to Chicago, but Rabin declined this offer since they had already been unloaded and placed in refrigeration. He feared that if they were reloaded and the refrigeration changed again, the perishable items might spoil by the time they reached Chicago. Geraci interpreted Rabin's refusal to move the produce to another destination to mean that he should sell the peppers at the best price available. He thereafter sent Rabin a telegram on February 11, 1983, stating in pertinent part as follows: USDA Inspection ordered at 7 AM February 10, 1983 shows "damage by bruising ranges from 12-16 percent average 14 percent failed to grade US#1" and regards to invoice #009950 dated February 7, 1983 500 large peppers your offer of $3.00 is not acceptable. You have the option to take pepper elsewhere but refused. Peppers will be sold for your account and will forward government inspection account sales plus 25 cents brokerage account will be charged. After receiving the above telegram, Rabin sent a reply telegram to Geraci the same date stating as follows: Reference your Western Union wire of February 11, terms not acceptable. We are turning this matter over to USDA for their consideration. We also intend turning this matter over to the Florida Department of Agriculture reference your bond. On February 11, 1983, the Califf Company in Columbus, Ohio, contacted Geraci concerning the 20 boxes of peppers he had delivered the previous day. Califf claimed its shipment was also bruised and wanted the $3.00 allowance offered to Gailey. Sanco agreed to this discount. After taking the 300 boxes of peppers on a consignment basis, Walter Gailey and Sons eventually sold the peppers for $10.50 per box on the average. Gailey then rebated $3,150 to Sanco, who in turn remitted that amount to Green Cay. The "account sale" given by Gailey to Sanco to evidence the above sale was not in accordance with normal trade procedures. The invoice reflected only the gross amount received for all 300 boxes ($3,150) at an average cost of $10.50 per box. It did not identify the sales price for each individual box, the freight charges, commission, or handling charges, if any. Such itemization is normally shown on the document. Some 2,000 boxes of peppers were sold by petitioner on February 7 and shipped to various buyers. There were no other complaints of bruised peppers received by Green Cay other than those that were delivered to Gailey and Califf.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent repay $4,425 to petitioner for goods sold by petitioner to respondent on February 7, 1983. DONE AND ENTERED this 28th day of October 1983 in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of October 1983. COPIES FURNISHED: Mr. Harold Rabin, General Manager Green Cay Corporation 700 Northwest 12th Terrace Pompano Beach, Florida 33060 Michael J. Cohen, Esquire 2715 East Oakland Park Boulevard Suite 101 Fort Lauderdale, Florida 33306 Glenn A. Bissett, Chief Bureau of License and Bond Division of Marketing Department of Agriculture and Consumer Services Room 418, Mayo Building Tallahassee, Florida 32301 Doyle Conner, Commissioner Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301
Findings Of Fact The Parties. Chrysler is a manufacturer of trucks and automobiles, including Jeep trucks and Eagle automobiles. Milton Dodge is a proposed dealer/operator of a proposed new Jeep-Eagle dealership. Milton Dodge currently sells Chrysler, Plymouth, Dodge and Dodge trucks. Don Dawson is an existing franchised Jeep-Eagle dealership located on U. S. 29, Pensacola, Escambia County, Florida. Don Dawson is located approximately 17.5 miles from the proposed Milton Dodge dealership location. Santa Rosa County, where the new dealership is to be located, has a population of less than 300,000 persons. All of the parties have standing to participate in this proceeding. The Application for A New Dealership. Chrysler has sought a permit to establish an additional Jeep-Eagle dealership for the sale of Jeep trucks and Eagle automobiles in Milton, Santa Rosa County, Florida. Don Dawson filed a timely protest to Chrysler's application pursuant to Section 320.642, Florida Statutes. The Community or Territory. The Milton Dodge proposed new dealership is to be located on U. S. 90, West of Milton, Santa Rosa County, Florida. Chrysler assigns its franchised dealerships a primary area of responsibility called a "sales locality." The sales locality of each dealer is specified in the dealer agreement between the dealer and Chrysler. Each sales locality consists of post office towns. A post office town is an area within which mail is delivered from a particular post office. Post office towns are not limited to political boundaries. The sales locality for Milton Dodge, the Milton sales locality, consists of the towns of Milton, Bagdad, and Harold, all of which are located in Santa Rosa County, Florida. To the west and southwest of the Milton sales locality is the Pensacola sales locality. The Pensacola sales locality consists of the towns of Molino, Cantonment, Gonzalez, Gulf Breeze, Lillian and Pensacola. All of the towns, except Lillian, Alabama, are located in Escambia County, Florida. Pursuant to its dealer agreement with Chrysler, Don Dawson is located in the Pensacola sales locality. To the east and southeast of the Milton sales locality is the Fort Walton Beach sales locality. This sales locality consists of the towns of Niceville, Shalimar, Destin, Mary Esther, Valparaiso and Fort Walton Beach, and Eglin Air Force Base, all of which are located in Okaloosa County, Florida. There is a Jeep-Eagle dealership, Lee Jeep Eagle, located in Fort Walton Beach. The sales locality assigned to a dealer is representative of the area in which the dealer is expected to have a competitive advantage over the same line-make dealers simply because of location. The Milton sales locality and the Pensacola sales locality are separate and distinct markets. The evidence proved, and the Petitioners and Don Dawson both agreed in their proposed recommended orders, that the relevant community or territory in this proceeding is the Milton sales locality. Adequacy of Representation. General. Once the community or territory has been identified, Section 320.642, Florida Statutes, requires a determination as to whether existing dealers have been providing "adequate representation" of the line-make of the new dealership. In order to determine whether there has been adequate representation in the Milton sales locality of Jeep trucks and Eagle automobiles, eleven factors set out in Section 320.642(2)(b), Florida Statutes, are to be considered. In order to determine whether existing dealers have been providing adequate representation, a reasonable standard of performance may be determined as a measure of proper performance. The standard(s) for comparison in this matter is described, infra, in section II.D. of this Recommended Order. Section 320.642(2)(b)1, Florida Statutes; Impact on Existing Dealers. Only the possible impact on Don Dawson, the protesting dealer in this proceeding, may be considered in applying this factor. New vehicle transactions, including sales, servicing, parts' sales and financing and insurance, represent approximately 70% of Don Dawson's income. In 1990, Don Dawson sold new motor vehicles to persons whose addresses were within the Milton sales locality. In 1989, Don Dawson sold nine automobiles and trucks (5% of its total 178 sales) to customers whose addresses were within the Milton sales locality. In 1989, approximately 59% of Don Dawson's total sales were to persons whose addresses were within the Pensacola sales locality. During 1990, approximately 55% of Don Dawson's new motor vehicle sales were to persons whose addresses were within 20 miles of the proposed new dealership location. In 1989, Don Dawson had a gross profit per new vehicle of $1,322.00. Don Dawson lost $101,004.00 on the sale of 179 new vehicles. Don Dawson was profitable in 1990 ($13,102.00; gross profit per new vehicle of $1,503.00 on 195 new vehicles) and the first eight months of 1991. During 1990, Don Dawson paid a total of $75,000.00 to $80,000.00 to its equity owners. Although the evidence supports a conclusion that it is possible that Don Dawson may suffer some loss in sales of Jeep trucks and/or Eagle automobiles, the weight of the evidence failed to prove what the total or general financial impact of the proposed new dealership might be on Don Dawson. Based upon the findings of fact, infra, concerning inadequate market penetration in the Milton sales locality, it is likely that the addition of the proposed new dealership will not negatively impact on Don Dawson's sales opportunities. Section 320.642(2)(b)2, Florida Statutes; Investment and Obligations of Existing Dealers. Don Dawson has a considerable investment in tools, parts and improvements to the property it leases from Chrysler. The evidence failed to prove that Don Dawson's investment is inadequate. Section 320.642(2)(b)3, Florida Statutes; Reasonably Expected Market Penetration for the Community or Territory. In analyzing the proper performance in a market, it is appropriate to compare the market share or market penetration of vehicle registrations within a target market with the share of vehicle registrations in an appropriate comparison market. It is appropriate to use a "segmented" approach in comparing markets. For example, in order to determine Jeep truck (or Eagle automobiles) market share, the total truck industry (or similar automobiles to those manufactured by Eagle) are compared. Jeep and Eagle market penetration in the nation as a whole and in Florida sales localities is represented by national averages and Florida sales locality averages. National markets and markets in the Florida sales localities include adequately and inadequately represented Jeep and Eagle represented markets. Therefore, these averages are very conservative. In light of the fact that the averages are the conservative it is reasonable to use the higher of the national or the Florida sales localities averages as a starting point. For Jeep, the higher standard is the national average penetration. For Eagle, the higher standard is the Florida sales localities average penetration. Florida penetration is based upon all of Florida except four small towns which are included in Alabama sales localities. It also includes one town in Alabama included in the Pensacola sales locality. After determining the national and Florida averages, it is appropriate to compare how other areas lived up to these standards. Of 68 sales localities in Florida, 32 performed above national averages for Jeep. Thirty of those that performed above national average and all that are above the Florida average (12 sales localities) have Jeep representation. A similar result is reached when Eagle penetration is reviewed. A consideration of demographics and lifestyle characteristics, based upon a comparison of the relative popularity of various vehicle types in the Milton sales locality, independent of brand type, compared to the relative popularity of the same vehicle types in Florida and nationally, confirms the reasonableness of the use of Florida and national average penetration rates as a standard. A reasonable market share expectation for Jeep for the Milton sales locality is 4.74%. A reasonable market share expectation for Eagle for the Milton sales locality is 0.95%. As is discussed, infra, Jeep-Eagle penetration in the Milton sales locality has been below these expected penetration rates indicating inadequate representation in the community or territory. The proposed new dealership location is part of a geographic area designated by Chrysler as the New Orleans Zone. This zone consists of part of the panhandle area of Florida (the northwest portion of Florida), Alabama, Mississippi and Louisiana. Like Florida and the nation as a whole, there are areas within the New Orleans Zone that do not have Jeep-Eagle dealers. Unlike Florida, where there are only 38 sales localities and 20 markets without a Jeep-Eagle dealer, there are 111 sales localities and 47 markets in the New Orleans Zone where there is no Jeep-Eagle dealer. Each Jeep-Eagle dealership is in effect assigned a minimum sales responsibility review. This review is based upon a comparison of a dealer's sales with average sales in the zone the dealer is assigned to. The weight of the evidence, however, failed to prove that dealers who meet their minimum sales responsibility are necessarily providing adequate representation. Although a comparison of sales performance of each dealer in the New Orleans Zone is made by Chrysler with the average performance within the zone as a whole, and the proposed new dealership location is within the New Orleans Zone, the weight of the evidence failed to prove that the penetration rate in the New Orleans Zone is the appropriate standard for measurement of adequate representation. The New Orleans Zone is an area established for administrative convenience. The New Orleans Zone was not established for marketing comparisons. The evidence did not prove that, other than geographic proximity, the zone is comparable. Section 320.642(2)(b)4, Florida Statutes; Actions of the Licensee Denying Existing Dealers Opportunity for Reasonable Growth, Market Expansion or Relocation. The weight of the evidence failed to prove that Chrysler has taken any action to deny Don Dawson or any other exiting dealer opportunity for reasonable growth, market expansion or relocation. The site that Don Dawson is located at is controlled by Chrysler. Don Dawson must negotiate a lease of its facilities from Chrysler and must get approval from Chrysler to add additional vehicle types. Don Dawson has had difficulty at times getting certain vehicle types from Chrysler. The weight of the evidence, however, failed to prove that any of these facts constituted any action by Chrysler to prevent Don Dawson from growing or expanding its market, or that these facts relate to any request of Don Dawson to relocate. Section 320.642(2)(b)5, Florida Statutes; Attempts by the Licensee to Coerce Existing Dealers into Consenting. The weight of the evidence failed to prove that this factor is relevant in this proceeding. Section 320.642(2)(b)6, Florida Statutes; Geographic Factors. It is approximately 17.5 miles from the proposed Milton Dodge dealership location and Don Dawson. It takes approximately 29 minutes to travel by automobile from Milton Dodge to Don Dawson. It takes approximately 51 minutes to drive the 40.4 miles from Milton Dodge to Lee Jeep Eagle in Fort Walton Beach. Jeep Eagle buyers in Pensacola and Fort Walton Beach must travel fairly extensive distances to comparison shop. Evidence concerning relevant geographic factors support approval of the new Milton Dodge dealership. Section 320.642(2)(c)7, Florida Statutes; Benefits to Consumers. Consumers in the Milton sales locality will benefit because they will not have to travel to Pensacola or Fort Walton Beach if they are interested in Jeep-Eagle vehicles. It will be easier for consumers in Pensacola to comparison shop. There will be some slight benefit to consumers in the Milton sales locality because Jeep trucks and Eagle automobiles will be more readily accessible to them if a new dealership is located in the proposed new location. The possible benefits to consumers supports approval of the proposed new dealership. Section 320.642(2)(b)8, Florida Statutes; Compliance with Dealer Agreements. The weight of the evidence failed to prove that any existing dealers are not in full compliance with the dealer agreements with Chrysler. Section 320.642(2)(b)9, Florida Statutes; Adequate Inter- and Intra-Brand Competition. There is a lack of intra-brand competition in the Milton sales locality. This contributes to inadequate representation for Jeep-Eagle vehicles in the Milton sales locality. The negative impact of the lack of proximity of a Jeep-Eagle dealer to the Milton sales locality on representation is evidenced, in part, by a comparison of market penetration in Milton compared with market penetration in Pensacola, where a dealer is located. Existing Jeep-Eagle dealers are not providing adequate intra-brand competition in the Milton sales locality. Because of high population growth in Santa Rosa County and high inter- brand competition in the Milton sales locality, representation of Jeep-Eagle is inadequate based upon inter- and intra-brand competition. Adding a Jeep-Eagle dealership to the Milton sales locality is a reasonable solution to the inadequate representation in the Milton sales locality when the performance of similar line-makes with dealerships located in the Milton sales locality are compared to national and Florida average penetration rates. Line-makes not represented in the Milton sales locality have low penetration rates. Section 320.642(2)(b)10, Florida Statutes; Economic and Marketing Conditions. On a nationwide basis there have been significant declines of approximately 21% in the sales of Jeep trucks and Eagle automobiles between 1989 and 1990. Looking at the trend in sales of Jeep and Eagle vehicles over a longer period of time, however, indicates the very cyclical nature of vehicle sales. Although the current condition of vehicle sales and the economy as a whole gives reason to consider the new dealership with some skepticism, the weight of the evidence failed to prove that the recent trend in the economy or vehicle sales should be determinative in this case. Pensacola, Milton and the surrounding areas have experienced a significant growth between 1980 and 1990. Santa Rosa County, where Milton is located, is projected through 1995 to experience substantial growth in total population, population 16 (the driving age) and over, and in household trends. Although much of the projected growth will occur along the Gulf of Mexico coast, as opposed to around Milton, Santa Rosa, including Milton, should continue to be an attractive area for vehicle sales. This finding is based upon the data concerning income of the population and the favorable economic conditions existing and forecasted for the area (see Petitioner's proposed finding of fact 73). Section 320.642(2)(b)11, Florida Statutes; Volume of Registrations By the Existing Dealer in the Community or Territory of the Proposed Dealer. The penetration by Jeep in the Milton sales locality during the period 1987-1990 was significantly less that the penetration which reasonably could be expected (see finding of fact 39) based upon national and Florida penetration rates. Although Eagle performed a little better in more recent years than Jeep, the penetration by Eagle during the period 1987-1990 was also significantly less that the penetration which reasonably could be expected based (see finding of fact 39) upon national and Florida penetration rates. Conclusion. Based upon a balanced consideration of the factors of Section 320.642(2)(b), Florida Statutes, the proposed new Jeep-Eagle dealership should be approved.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED the Department enter a Final Order approving the application to establish a new Jeep-Eagle dealership on 800 West Highway 90, Milton, Santa Rosa County, Florida. DONE and ENTERED this 18th day of December, 1991, in Tallahassee, Florida. LARRY J. SARTIN 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 18th day of December, 1991. APPENDIX TO RECOMMENDED ORDER The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Chrysler's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 2 and 6. 3 and 6. 3 3-5 and 7. Conclusions of law. See 19-21. Conclusions of law. Hereby accepted. 7 9-10. 8 12-13. 9 11 and 14. Cumulative. 16 and hereby accepted. 12-14 Cumulative. 15 24 and hereby accepted. 16-18 Hereby accepted. 19-22 Although these findings of fact are correct, it is unnecessary to consider the alternative community or territory of the Milton/Pensacola area identified by Chrysler. 23 See 18. Don Dawson did not have the burden of proof. 24 19. 25 See 47, 53-54 and 57. See 47. Hereby accepted. See 57. No a finding of fact. 30 32-33. 31 Don Dawson did not have the burden of proof. Don Dawson did provide some proof concerning this issue. 32 32-34. 33 35. 34 37. 35 37 and hereby accepted. 36-38 Subordinate facts. 39-41 See 38. 42 39. 43-44 Not necessary. See proposed findings of fact 19-22. 45-46 39 and hereby accepted. Not necessary. See proposed findings of fact 19-22. Subordinate fact. See 69. 50 69. 51-53 Cumulative facts. Not necessary. See proposed findings of fact 19-22. Cumulative facts. Not necessary. See proposed findings of fact 19-22. Hereby accepted. 58 See 41-44. 59 43-44. 60 41. 61 Hereby accepted. 62 See 41-44. 63-64 Hereby accepted. 65 See section K. 66 61. 67 Hereby accepted. 68 See 61, 66-67. 69 66-67. 70 67. 71-72 68 and hereby accepted. Cumulative facts. 66 and hereby accepted. 75-76 59 and hereby accepted. 77 58 and 60. 78-79 Too speculative. 80 48-49. 81 51. 82 61. See 58-62 and hereby accepted. See 59 and hereby accepted. 85 62. 86 Hereby accepted. 87 See 45-46. 88 22. 89 26. 90 See 28. 91 29. 92-93 Hereby accepted. Cumulative facts. See 35. 96 See 30-31. 97 Not relevant. Don Dawson's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 9. 2 11-12. 3 Hereby accepted. 4 17. 5* 24. 6* 48. 6* See 18. 5* 32. 6* 33 and hereby accepted. 7 40. See 42. Hereby accepted. Not supported by the weight of the evidence. See 42- 44. Not relevant. Not supported by the weight of the evidence. Based on hearsay. Not relevant. See 42-44. Not relevant. 15 63. 16 Not relevant. At issue is the penetration rate in the Milton sales locality. 17 25-26. 18 27. 19 See 46. 20 23. 21 30. 22 Not relevant. Nor did the evidence prove why the offer was withdrawn. 23 2. 24-26 Not supported by the weight of the evidence. 27 See 25-26. The last sentence is not supported by the weight of the evidence. * These duplicative numbered findings of fact all appear on page 4 of Don Dawson's proposed recommended order.e COPIES FURNISHED: Dean Bunch, Esquire Cabaniss, Burke & Wagner, P.A. 851 East Park Avenue Tallahassee, Florida 32301 Edward H. Weeby, Esquire Office of General Counsel Chrysler Corporation 12000 Chrysler Drive Detroit, Michigan 48288 John L. Fiveash, Jr., Esquire Rhodes Building, Suite 106 41 North Jefferson Street Pensacola, Florida 32501-5643 Daniel E. Myers, Esquire Walter E. Forehand, Esquire Myers & Forehand 402 North Office Plaza Drive Suite B Tallahassee, Florida 32301 Michael J. Alderman Assistant General Counsel Department of Highway Safety and Motor Vehicles Room A432 Neil Kirkman Building Tallahassee, Florida 32399-0500 Charles J. Brantley, Director Division of Motor Vehicles Neil Kirkman Building, Room B-439 Tallahassee, Florida 32399-0500
The Issue Whether or not Respondent, Dixie Growers, Inc., is indebted to Petitioner, Leah Raulerson, for agriculture produce purchased and not paid for in the amount of $3,722.49.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, and the entire record compiled herein, I make the following relevant factual findings. During times material, Petitioner, Leah Raulerson, was an agricultural producer within the meaning of Section 604.15(5), Florida Statutes and concentrated primarily in the production of peppers. During times material, Respondent, Dixie Growers, Inc., was an agricultural dealer within the meaning of Section 604.15(1), Florida Statutes, and wholesaler and purchased peppers from Petitioner during May and June, 1992. Respondent, U.S. Fidelity & Guaranty Company, issued a surety bond to Respondent Dixie during times material. During late May and June, 1992, Petitioner sold various types of pepper including hungarian wax, finger hots, long hots, bell pepper, fancy cubanelle and jalopeno to Respondent Dixie. During times material, Petitioner inquired of one of Respondent Dixie's owners, Charles Lawton, what the wholesale market was bringing for the type of peppers that she produced and desired to sell. Respondent Dixie advised that the average wholesale price was $8.00 per box. Petitioner told Respondent Dixie, that she could sell her peppers for that price but if the market deteriorated to the point where the price was $4.00 or less per box that she should be advised whereupon she would cease picking the peppers as her labor and other related costs would be below her breakeven point of $4.00 per box. Respondent Dixie, advised Petitioner that he (Charles Lawton) would let her know if the market declined. The agreement was struck and Petitioner was advised by Respondent Dixie to "bring the peppers on." Based on their agreement, Petitioner continued picking the peppers. Petitioner delivered to Respondent Dixie, a load of the various types of peppers that she produced and expected to be compensated at the rate of an average of $8.00 per box for her produce. Petitioner was not paid for the peppers at that time nor was she told that she should not bring any more peppers to Respondent's warehouse. Approximately two weeks from the date of delivery, Petitioner was paid an average of $1.03 per box by Respondent Dixie. Petitioner provided copies of the wholesale market reports for the types of peppers that she produced and sold to Respondent, Dixie, during May and June, 1992. The reports reflect an average wholesale price of $8.00 per box. Petitioner is owed by Respondent Dixie, the sum of $3,722.49 for nonpayment of produce (peppers) that she delivered to Respondent Dixie during May and June, 1992. Respondent Dixie, has countered that Petitioner's produce was bad and that the market had declined to the point whereupon they (Dixie Growers) were only able to obtain approximately $1.03 per box for the produce that Petitioner sold to Respondent Dixie. However, Respondent Dixie, failed to present any credible evidence which would establish that either Petitioner's produce was bad or that they were only able to obtain $1.03 as contended. No evidence was presented that the market declined or situation was anything different from the prices Petitioner was quoted and as reflected by the prices shown in the wholesale market reports. It is more probable than not that Respondent Dixie received the amounts reflected in the wholesale market reports for the produce that it purchased from Petitioner during May and June, 1992.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Department of Agriculture, Bureau of License and Bond, issue a Final Order requiring that Respondent, Dixie Growers, Inc., pay to Petitioner the sum of $3,722.49 as claimed for agricultural produce purchased from Petitioner. In the event that Respondent Dixie fails to pay Petitioner, within 30 days of the date of the Department's Final Order, the sum of $3,722.49, that Respondent, U.S. Fidelity & Guaranty Company, as surety, remit to the Department that sum which should then be timely remitted to Petitioner. DONE AND ENTERED this 17th day of May, 1993, in Tallahassee, Florida. JAMES E. BRADWELL 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 17th day of May, 1993. COPIES FURNISHED: Linda Terry Lawton P. O. Box 1686 Plant City, Florida 33564 U.S. Fidelity & Guaranty Company Legal Department P. O. Box 1138 Baltimore, Maryland 21203-0000 Richard Tritschler, Esquire Department of Agriculture The Capitol - PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture 508 Mayo Building Tallahassee, Florida 32399-0800 Dixie Growers, Inc. P. O. Box 1686 Plant City, Florida 33564 Honorable Bob Crawford Commissioner of Agriculture The Capitol - PL 10 Tallahassee, Florida 32399 0350
The Issue It must be determined whether the placement of storage tanks, pumps, and appurtenant fueling equipment by Lewis Oil Company, Inc. (Lewis) at convenience stores constituted a license or lease of real property upon which that equipment was placed and, therefore, whether the commissions paid to the convenience stores for pumping and selling the Petitioner's fuel should have been the subject of sales tax, or conversely, whether the placement of the pumping equipment and fuel at the stores was a bailment and a non-taxable transaction.
Findings Of Fact Lewis is a jobber or wholesale distributor of gasoline, diesel fuel, and related petroleum products. As a method of distributing its fuel products, the Petitioner contracts with convenience stores that it will install petroleum fuel storage tanks and dispensing equipment on the convenience store's real property, and will furnish product on consignment to the convenience store, who sells the fuels to its customers. Pursuant to the agreement between Lewis and the convenience stores, the equipment was owned by Lewis but Lewis relinquished exclusive possession and control of it to the convenience stores and their management. Lewis agreed to furnish the gasoline equipment installed at each location, and keep it in good working order. The convenience stores agreed to sell gasoline on its premises supplied exclusively by Lewis and agreed to collect and account for all monies as the result of sales of gasoline. The money associated with the sale of the gasoline was collected by the convenience stores. The amount collected was the entire cost of a gallon of gas to the consumer which would include the motor fuels tax. The convenience stores paid Lewis the full retail price of the sales less the agreed upon commissions and sales taxes. Lewis remitted the motor fuel tax to the State and paid the bills associated with the cost of fuel to the supplier, Chevron Oil Company. The convenience stores were required to account for the monies collected by taking meter readings which were then recorded on forms and remitted to Lewis regularly. Lewis was permitted to inspect the records, pumps and metering equipment for the purpose of verifying the accounting made by the convenience stores to determine whether or not Lewis was receiving an appropriate portion of the gross profit margin as agreed to in the commission agreement itself. The metering equipment is located on the face of the dispenser, and a meter reading can be done by looking at the meter or by pushing a button. On most of the equipment at the convenience stores, it was not necessary to take the meter readings from the actual equipment because the metering equipment was accessed on the inside of the stores on consoles. The convenience stores were responsible for inspecting the underground tanks by "sticking" the tanks with a long stick to reconcile actual tank inventory with meter readings to determine the possible loss of inventory. The convenience stores were responsible for the day to day maintenance of the pumps and islands such as sweeping and cleaning the equipment and inspecting the equipment for proper operations and damage. The convenience stores were responsible for the hiring, firing and management of employees associated with managing the gasoline tanks and pumps. If the tanks needed repairs, the convenience store operator was responsible for notifying Lewis of the necessary repairs, and Lewis would see that the repairs were made and would pay for the repairs. All repairs required the permission and cooperation of the convenience store operator who required that the repairs be coordinated so as not to interfere with store operations. The repairs required the cooperation of the convenience stores. Lewis set the price of the gasoline for the consumer, and the meters were physically changed by the employees at the convenience stores. Lewis agreed not to set the price of the gas at a price that would provide less than 1.5 cents per gallon commission except on consent of the convenience stores. The stores were responsible for advertising materials to display the price set. If for any reason Lewis was unable to supply gas for sale to the convenience store's customers, the stores’ management was free to obtain gas from other petroleum suppliers. It was only required to pay Lewis a 2-cent fee in this eventuality. Lewis did not have the right under the contract with the convenience stores to interfere with the stores’ possession by physically locking up the pumps or removing the tanks from the ground or blocking sales of the fuel. Under the terms of the contract, Lewis did not have the right to remove any of the gasoline. Upon expiration or termination of the agreement, Lewis would re-possess all equipment, inventory and merchandise from the convenience stores, and Lewis was required to return the ground to its original condition. Lewis would reuse the equipment if it still met environmental standards. Lewis carried insurance for property damage, environmental damage and the liability associated with the operation of the petroleum systems, and the convenience stores agreed to indemnify and insure against any losses or liabilities that arose out of their own negligence. The Florida Department of Environmental Protection lists Lewis as the owner of the petroleum tanks and lists the convenience store as the operator on its Petroleum Liability Insurance and Restoration Program forms.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department enter a Final Order determining that Lewis was not exercising a taxable privilege under Sections 212.103, F.S. DONE and ENTERED this 11th day of June, 1997, in Tallahassee, Leon County, 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 11th day of June, 1997. COPIES FURNISHED: Jefferson M. Braswell, Esquire Scruggs and Carmichael, P.A. Post Office Box 23109 Gainesville, FL 32602 James F. McAuley, Esquire John Upchurch, Esquire Office of Attorney General The Capitol - Tax Section Tallahassee, FL 32399-1050 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 Petitioner was unlawfully discriminated against on the basis of age by his employer, who terminated him five months prior to the vesting of his pension benefits. Whether the Respondent articulated a legitimate, non- discriminatory reason for Petitioner's termination. Whether the Petitioner proved by a preponderance of evidence that the articulated reasons were pretextual.
Findings Of Fact The Petitioner Beard is an individual who was born on November 21, 1947. The Respondent Sysco is a national food distribution company who delivers frozen foods to food service establishments such as restaurants, hospitals, and other institutions where meals are prepared and served. The Petitioner became employed by the Respondent in August 1977, at 30 years of age, in Fort Myers, Florida, as a truck driver. On June 16, 1979, the Respondent was promoted to Fleet Supervisor. At the time of the promotion, the Fort Myers warehouse where the Petitioner was employed was a full-service warehouse. The Petitioner's job duties were to supervise the truck drivers who were making deliveries from the Fort Myers warehouse. It was his responsibility to be aware of all the accounts in the area, and to set up the delivery routes and schedules. Straight trucks were used for delivery, and the route areas included Charlotte, Lee, Hendry, and Coller Counties. In 1983, the Respondent Sysco began handling and delivering more products in the Fort Myers distribution area than the Fort Myers warehouse could accommodate. Respondent decided to move the Fort Myers warehouse operation to its Miami location. As a result of the relocation of the warehouse portion of the Fort Myers operation, the Petitioner's job duties changed significantly. Under the new delivery procedures, the Miami warehouse would shuttle a 46-foot trailer to the Fort Myers location. The old loading dock was used to unload the trailer and to place the products on the straight trucks. From these trucks, the local truck drivers distributed the products to customers. Under these operational changes, the Petitioner became responsible for the supervision of the shuttle drivers who drove the 46-foot trailer and supplemental straight trucks once they left the Miami area and were in the Fort Myers operational area. He was also responsible for the Fort Myers route drivers, and it was his duty to make sure that the proper products were loaded in the most efficient way on the correct trucks from the Fort Myers loading dock. In addition, the Petitioner was responsible for the planning of the local routes and the trouble shooting necessary to correct misdeliveries, damaged goods, missing products, or special orders. In January 1986, the Respondent's Florida warehouse operations underwent further change and reorganization. At this time, all of the Fort Myers local routing responsibilities were moved to Miami, where the products would be routed by computer. The Petitioner was required to assist in this change, to consult with Miami to teach them about the service area, and to trouble shoot when the new system did not serve customer needs. In addition, new equipment and procedures were implemented in order to accomplish product distribution. The Respondent began to use short trailer trucks for local distribution routes instead of the traditional straight trucks. Under the new procedures, two short trailers are loaded in Miami. One trailer is hooked behind the other, and a tractor hauls the products to Fort Myers. Each trailer is self-contained, and has been packed in the order of the local driver's scheduled route. Once in Fort Myers, the local driver would hook his tractor to the designated trailer and proceed to his route. Under this system, there is no rehandling or reorganization of the products sent from Miami, as previously required by Respondent. At this point, the Petitioner's management responsibilities were drastically reduced, and his acquired skills were no longer important to the Respondent's operations. Pursuant to these changes, the Petitioner no longer exercised control over the truck loading for local route deliveries in the Fort Myers area. The entire routing and delivery system was handled in Miami. Although the Petitioner continued to supervise truck drivers and to handle the trouble shooting needed in delivery and routing matters, he was now required to run a partial route and make deliveries several days a week. The Respondent decided that the Petitioner's return to route work was necessary as his supervisory and paperwork responsibilities had been reduced. Between January and April of 1986, the Petitioner's supervisor became aware of that the Petitioner was having difficulty adjusting to the changes in his job duties as envisioned by the Respondent. The Petitioner was critical of the new procedures, and continued to unload and reload products at the Fort Myers loading dock once the trailers arrived from Miami. This was contrary to the Respondent's purpose as the Respondent sought to keep reloading to a minimum to prevent opportunities for product damage, thawing, or routing errors. The Respondent also sought to reduce man-hours used in products handling to reduce operational costs. In order to correct these problems, the Petitioner's supervisor spoke with him and later issued a memorandum instructing that routing would be done in Miami and that unloading/reloading of the product in Fort Myers be held to an absolute minimum. The Petitioner was asked to assist in an orderly transition to the new procedures. In the ensuing twelve months, the Petitioner continued to resist the operational changes made by the Respondent. The Petitioner continued to unload and reload the trailers once they reached Fort Myers. The routings continued to be changed by the Petitioner when he reviewed the routings and determined that certain changes were necessary. In November 1986, the Petitioner was verbally warned by his supervisor that his refusal to adopt the required operational changes was causing the Fort Myers area to have the most costly delivery operations in the marketing group. In spite of this warning, the Petitioner continued to reload and unload trailers, reroute, and to assign other drivers to his designated route. On April 29, 1987, the Petitioner was terminated from employment by his supervisor. The reasons given for termination were the Petitioner's failure to follow procedures, not making deliveries, and for having his subordinates motivated against him. The termination from employment occurred four months before the Petitioner's pension vested with the Respondent. According to the Employee Benefit statement as of June 29, 1986, the retirement plan would pay $7,983.00 per year for life, if retirement took place on December 1, 2012.
The Issue This matter concerns an allegation of unlawful discrimination which has been prosecuted in accordance with the Human Rights Act of 1977, as amended. In particular, the Petitioners contend that Respondent unlawfully discriminated against Petitioner Sterling because of his race, by actions on October 27, 1978, when Respondent allegedly demoted Sterling from the employment position, grocery manager, to the employment position, clerk, and transferred him from its Store No. 4305 to Store No. 4325, in the process reducing Sterling's salary from $375.00 to $265.00 per week. CASE HISTORY On November 7, 1978, Petitioner Sterling filed a Charge of Discrimination against Respondent before the Jacksonville Community Relations Commission, setting forth the allegations as contained in the Issues statement to this Recommended Order. Subsequent to that time, the matter was reviewed by the Equal Employment Opportunity Commission and on December 22, 1978, referred to the Florida Commission on Human Relations for further action. Following review, a Determination of Cause was made on September 29, 1981, and an Amended Notice of Determination of Cause was forwarded on October 5, 1981. On November 9, 1981, a Notice of Failure of Conciliation was filed by the Florida Commission. Petitioner Sterling filed a Petition for Relief with the Florida Commission on December 7, 1981. On December 17, 1981, the Florida Commission on Human Relations, through its Clerk, filed a Notice of Commissioners of Filing of Petition for Relief from Unlawful Employment Practice; Notice to Respondent of Filing of Petition for Relief from Unlawful Employment Practice and Notice of Transcription. On that same date, the matter was transmitted to the Division of Administrative Hearings for consideration of the dispute in the keeping with the provisions of Section 120.57, Florida Statutes, and Rules 90-9.08(5) and 90-8.16(2), Florida Administrative Code. Upon receipt of the case by the Division of Administrative Hearings, the matter was assigned to the undersigned Hearing Officer; answer was made to the Petition on January 7, 1982, and a formal hearing was conducted on March 2, 1982. All parties attended the hearing and were represented by those counsel set forth in the Appearances section to this Recommended Order. Petitioner Commission did not offer witnesses or items of evidence; however, counsel for the Commission did participate to the extent of examining witnesses. Petitioner Sterling testified and offered three items of evidence which were received. Respondent offered as witnesses Marlyn Bexley, Grocery Manager for Respondent in its Store No. 4307; William Emmons, District Manager for Respondent, and John Sheehan, President of Albertson's Southco and Senior Vice-President of Albertson's, Inc. (Respondent presented one item of evidence which was admitted and returned to the Respondent for Respondent to transmit to the Hearing Officer, post-hearing. That item has not been received by the Hearing Officer following the hearing.) Petitioner Commission, in the person of counsel, has submitted proposed findings of fact. Petitioner Sterling has submitted a post-hearing brief and proposed findings of fact and Respondent has submitted a post-hearing memorandum. In addition, Respondent has submitted a supplemental memorandum, which by its nature attempts to expand evidence presented in this cause and to do so without permission from the Hearing Officer. The Respondent's supplemental memorandum is therefore disregarded. The proposed findings of fact, Petitioner Sterling's brief and Respondent's original memorandum have been reviewed prior to the entry of this Recommended Order and to the extent that they are consistent with the Recommended Order they have been utilized. To the extent that those matters are inconsistent with this Recommended Order, they are hereby rejected.
Findings Of Fact Petitioner Sterling who is Black, was employed by the Respondent in March, 1975, in the position of stocker, at a rate of pay of $4.30 per hour. He had taken this job after being employed in the retail grocery business in the State of Texas for Buddies Super Market. He had worked for seven (7) years for the Texas grocery chain and at the end of his tenure with that organization, filled the position of store manager. Sterling's initial job with Albertson's was in Respondent's Store No. 4304 in Altamonte Springs, Florida. He continued his employment in that position until July, 1975, when he was promoted to the position of assistant grocery manager. (The position, assistant grocery manager, is the initial step in management level employment positions and these individuals and other managers share in any success of the retail enterprise by bonus awards. In a retail grocery store in the Respondent's chain, a person in Petitioner Sterling's position would be promoted from assistant grocery manager to grocery manager to unit director, also known as store manager, if that employee were to follow the normal management promotion cycle. In addition to the position of stocker, there are certain other non-management positions such as grocery clerk; and grocery, deli, bakery, produce and front-end department heads who are employed within an Albertson's grocery store. There are also an assistant drug manager and drug manager who are part of the management team in an Albertson's retail outlet who deal with merchandising other than grocery items.) After Petitioner Sterling had worked for a period of several months in the position of assistant grocery manager in the Altamonte Springs store, a decision was reached by officials within Albertson's to move Sterling to a new store that was being opened in the Orlando, Florida, area at Colonial Boulevard, Respondent's Store No. 4310. This decision was reached based upon the condition of the store in which Sterling had been serving as assistant grocery manager and specifically on the belief that his performance vis-a-vis the condition of that store was not in keeping with acceptable standards for performance on the part of management employees. Sterling was transferred to the new store in an effort to rectify his performance. After being involved in the process of opening a new store, shortly after the new store was opened the Respondent was terminated from his employment with Albertson's, based upon his job performance which was felt to be unacceptable. There was no indication in the course of the hearing that the lateral transfer from Altamonte Springs to Colonial Boulevard and the subsequent termination followed any series of written or oral reprimands. The termination occurred sometime in late October or early November, 1975. Approximately two weeks after his termination Sterling was rehired and began working as a grocery clerk in Respondent's store in Winter Park, Florida. The terms of his reemployment included an indication on the part of Albertson's that Sterling's opportunity for advancement into management position would be inhibited, based upon Sterling's past performance as assistant grocery manager with Respondent. Sterling worked several months in the Winter Park store and then moved to Jacksonville, Florida, and was employed in Albertson's Store No. 4307 at Merrill Road and Townsend Boulevard in Jacksonville, Duval County, Florida. Sterling was subsequently transferred to Respondent's Store No. 4305 in Jacksonville, Florida, where he was promoted to the position of assistant grocery manager in January, 1977. There ensued a series of raises and on March 17, 1978, Sterling was made grocery manager in that store. Sometime around the first part of October, 1978, John Sheehan, President of Albertson's Southco, was made aware through a statistical study, that Store No. 4305 was not operating at a level of performance which was acceptable to Respondent. To get a better understanding of the circumstance in that store, Sheehan dispatched David Schwartz, a company vice-president, to inspect the store, and this inspection occurred on October 4, 1978. The inspection took place shortly before a vacation taken by the Petitioner Sterling on October 9, 1978, for the purpose of attending the delivery of Sterling's second child which occurred on October 10, 1978, and which delivery required a cesarean section to be performed on Sterling's wife. Schwartz did not give testimony in the course of the hearing and it was not established by competent evidence what Schwartz' impression was on the subject of the store's condition; however, it was established in the hearing that the condition of the grocery store on October 4, 1978, and at other times in October, 19-78, related to cleanliness of the store was not one of filth as has been suggested by Petitioner's Exhibits Nos. 2 and 3, admitted into evidence; which are respectively, a memorandum of reprimand and a memorandum of demotion directed to Sterling, for events that took place in October, 1978. While Sterling was home on leave during the week October 10 through 16, 1978, he left in charge of the grocery department Marlyn Bexley, his assistant grocery manager. Bexley had started with Albertson's as a management trainee in Store No. 4305 at a time when Sterling was an assistant grocery manager in that store. Bexley has progressed in the Respondent's employ to the point now of being the grocery manager in Respondent's Store No. 4307. Bexley, during the week of Sterling's absence, was involved in preparing for a "reset" which is an adjustment of merchandise on the shelves of the store. Bexley allowed the shelves in the store to be reduced in inventory in anticipation of the "reset" and upon Sterling's return on October 16, 1978, the merchandise condition on the shelves in the subject store was not at an acceptable level in terms of availability. The events of October in Store No. 4305 also included the promotion of the store manager, David Jerry, by his lateral transfer to a larger store to fill the position of store manager in that new facility and the promotion of the drug manager in Store No. 4305 to the position of store manager. That individual was Chuck Smith. These matters related to the employees Jerry and Smith occurred subsequent to the October 4, 1978, inspection by Schwartz, within one or two days of that event. Moreover, during the period of time of Petitioner Sterling's absence from the store for purposes of attending the birth of his second child, several personnel changes were made at Store No. 4305, other than those involving Messrs. Jerry and Smith. This included changes of department level supervisors or their assistants within Store No. 4305; related to the deli, bakery, receiving and front-end sections within Store No. 4305. These individuals were transferred to the new store on Blanding Boulevard where David Jerry was to be the store manager. Sometime around October 17, 1978, the aforementioned "reset" took place and was expanded from a three aisle "reset" to an overall grocery section "reset." The expansion of the "reset" process was promoted to an extent by the fact that the grocery department at Store No. 4305 had "over bought" certain merchandise items. Sterling was aware of the problems that existed following his return to work concerning grocery inventory and related matters and had begun dealing with those difficulties, when the store was reinspected on October 19, 1978, by one William Emmons, District Supervisor for the Respondent, newly appointed at that time. Emmons had been promoted to that position in October, 1978. This inspection by Emmons took place around the time of the quarterly inventory conducted in Store No. 4305 and subsequent to the time of the "reset" which had occurred a couple of days before. As a result of the inspection, Petitioner Sterling was given a written reprimand, a copy of which is Petitioner's Exhibit No. 2, admitted into evidence. That document accurately depicts certain deficiencies in the grocery section for which Sterling had responsibility, to include inventory shortage, lack of supervision in the various departments within the grocery portion of the store and "buggies" which had been left in the back of the store following the "reset." Although there was some disarray in the store proper, it did not reach the magnitude of being filthy as contended in the reprimand. Sterling acknowledged the written reprimand and signed the reprimand document as reflected, this signature being made in October, 1978. Emmons also told Sterling that Sterling would have a week to rectify the deficiencies that had been noted. At the time of this disciplinary action, Emmons knew that the "reset" had occurred a couple of days before; however, he did not know that Bexley had deliberately allowed the inventory or stock to be depleted in contemplation of the "reset." Additionally, Emmons was aware of the company policy of Albertson's of not looking favorably on vacations around the time of taking inventory. Emmons did not know that the vacation had been taken due to the Petitioner's wife's physical condition. Emmons was unaware of the transfer of departmental personnel from Store No. 4305 to the new store at Blanding Boulevard. Finally, Sterling had indicated that he felt the reprimand was unfair and Emmons had indicated that, notwithstanding Petitioner Sterling's absence, the store should not have been allowed to reach its unsatisfactory condition. Emmons made known the disciplinary action of reprimand to Bob Miller, a managerial supervisor for Albertson's who in turn made Sheehan, the President of Albertson's Southco, aware of this reprimand. Sheehan then instructed Miller to inspect the store another time and on October 22, 1978, Miller made an inspection of Store No. 4305 with special emphasis on Sterling's performance. Afterward, Miller had conversations with Sheehan and Emmons, and Petitioner was demoted on October 22, 1978, from grocery manager to stock clerk. He took the position of stock clerk on October 26, 1978, at a store other than Store No. 4305 and continued to work as a stock clerk until his termination by the Respondent in December, 1980. The memorandum of demotion, a copy of which may be found as Petitioner's Exhibit No. 3, gave as reasons for the demotion, as tardiness, ineffective management of associated departments within the grocery portion of Store No. 4305, out-of-stock conditions and shelves and moldings being. dirty. All of these observations, with the exception of the matters pertaining to the shelves and moldings are factually accurate as borne out by the testimony in the course of this hearing. None of the management employees, with the exception of Sterling, who were employed in Respondent's Store No. 4305 during October, 1978, were disciplined by Respondent for their actions in that period. All of those management employees were Caucasian. The management responsibility in retail grocery stores of the Respondent, to include Store No. 4305, as required in October, 1978, made the unit or store manager responsible for personnel matters and the statistical performance of the individual store in terms of sales. This unit manager was akin to a personnel director. The grocery manager in the store was responsible for the "day-to-day" operations of the grocery section of the Albertson's grocery store, which has an affiliated drug section, which is not the responsibility of the grocery manager. The assistant grocery manager had subordinate responsibility for the grocery operations within the store. The Respondent did not discipline Chuck Smith, the unit manager in charge at the time of Sterling's demotion, based upon supervisor Emmons' perception that Smith had not been in his position as store manager for a sufficient period of time to be held responsible for the shortcomings within the grocery section at Store No. 4305. Bexley was not disciplined based upon Emmons' belief that he had not been properly trained by Sterling and for that reason could not be held responsible for the aforementioned problems that occurred in the grocery section at Store No. 4305 which contributed to Sterling's demotion. These decisions regarding the employees Smith and Bexley, as well as the decision to demote Sterling, were made in the face of Respondent's express policy of promoting and demoting employees on the basis of favorable results in terms of economic success in the market place. There have been other demotions which occurred related to Albertson's employees which were reported in the hearing. These demotions involved, primarily Caucasians and one oriental. The demotion of Sterling from grocery manager to stock clerk involved a sufficient number of steps to be considered outside the norm; however, there were indications of other demotions involving more than one step or grade. Testimony in this case indicated that Sterling's demotion was in the nature of a three or four step demotion. In addition, demotions of the other employees discussed in the course of the hearing came about following numerous reprimands. In the instances of the other employees and in Sterling's demotion of October, 1978, the employees were disciplined based upon the employer's perception that the worker had not performed at a satisfactory level. At the time of Sterling's demotion in October, 1978, there were five or six Blacks out of 95 to 100 total employees in management positions within Albertson's Southco grocery stores in October, 1978, none of which were in the position of store manager. During this period, Respondent had an Affirmative Action Plan. Other than the findings of fact found herein related to Sterling's salary levels while employed with Respondent, and as those levels may be reflected in Petitioner Sterling's Exhibit No. 1, admitted into evidence; no proof was offered on the subject of possible damages incurred by Sterling due to the action of the Respondent in his demotion. The damages were neither plead for in the Petition for Hearing, presented in the course of the hearing nor argued through written argument and suggested facts offered by Petitioner Sterling. Moreover, Sterling has not requested reinstatement. Therefore, no determination will be made on the subject of damages in the provision to this Recommended Order dealing with conclusions of law.
The Issue The issue in this case is whether Respondent, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (the “Department”), is operating under an unadopted rule in its application of sections 210.276 and 210.30, Florida Statutes, which impose a surcharge and an excise tax, respectively, on tobacco products other than cigarettes or cigars, commonly known as other tobacco products (“OTP”), by utilization of “best available information” in lieu of actual documents submitted by the taxpayer when performing audits to establish a tax assessment. Unless otherwise stated herein, all references to Florida Statutes shall be to the 2016 codification.
Findings Of Fact Global Hookah was formed as a Florida corporation on June 9, 2005, with its principal place of business in Melbourne, Florida. After graduation from college, Global Hookah’s owner and 100 percent shareholder, Brennan Appel, decided to move his company to North Carolina. Global Hookah was re-formed as a North Carolina corporation on June 14, 2007. Appel then moved all of his inventory and business equipment to a 10,000-square- foot warehouse in Charlotte, North Carolina. Each corporate annual report filed since 2007 reflects the Charlotte, North Carolina, address. All annual meetings and corporate tax returns indicate North Carolina as the situs for the corporation. Mr. Appel, sole shareholder of Global Hookah, has resided in North Carolina continuously since 2007. At all times pertinent hereto, Global Hookah was conducting its business from North Carolina. When the North Carolina corporation was formed, Mr. Appel mistakenly failed to convert the Florida Global Hookah corporation into a foreign for-profit corporation. That oversight was corrected on May 31, 2016, by way of a filing with the Florida Division of Corporations. Global Hookah does not currently have a physical place of business in Florida; its only connection to the State is the sale and delivery (by unaffiliated carriers) of the products it sells. When the company was still operating out of its Florida offices, Mr. Appel’s mother, Jennifer Appel, worked as an employee and was an officer of the Florida corporation. After the move to North Carolina, Mrs. Appel became a part-time employee, performing quality assurance checks in the North Carolina warehouse. She was paid for her services by way of a direct deposit into her checking account in Florida. Mrs. Appel continues to reside permanently in Florida, traveling to North Carolina when working for Global Hookah. Mrs. Appel is not an officer of the North Carolina corporation. When Global Hookah was located in Melbourne, Florida, the Department’s Orlando office conducted its semiannual tax audits. The Department’s office in Margate, Florida, conducts audits of out-of-state licensees, and the audit at issue was therefore conducted by the Margate office. Global Hookah sells about 3,500 different tobacco- related products to customers in many jurisdictions, including Florida. Its customers are primarily businesses, such as hookah lounges, night clubs, bars, restaurants, and cigar stores, but also other tobacco distributors. Some products are also sold by Global Hookah directly to consumers. The products are sent to customers via U.S. Mail, or third-party carriers. The Department is the government agency responsible for, inter alia, monitoring and collecting taxes on the sale of tobacco and OTP in Florida. As part of its duties, the Department audits on a regular basis (from every six months to every two years) each entity which distributes tobacco and OTP in Florida. In July 2013, the Department notified Global Hookah that an audit would be performed on that company for the period January 1, 2013 through June 30, 2013. The primary purpose of the audit was to determine the wholesale sales price of the OTP sold by Global Hookah in Florida during the audit period, determine the amount of products which had been sold, and assess a tax on the total. How that audit actually transpired is a matter of dispute between the parties. The parties agree that an auditor from the Department, Deborah Spady, contacted Mr. Appel and requested certain records so that she could conduct the audit. Beyond that, the parties completely disagree as to what transpired. The Department’s position, based almost entirely on unsubstantiated hearsay testimony from Mr. Torres, is as follows: Ms. Spady asked for certain company records to be sent to her via U.S. Mail, but Global Hookah refused to comply with the request. Ms. Spady then scheduled a visit to the Global Hookah offices in North Carolina to obtain the records she needed. She was provided numerous boxes of documents to review, but was not allowed to use the company’s copier to make copies. She called her supervisor, Mr. Torres, who told her to purchase a hand-held scanner and to scan all the documents so they could be printed on her return to Florida. Ms. Spady purchased a scanner and returned to Global Hookah. At that point, she was told that she could not scan the documents. Discussions between the Department and attorneys for Global Hookah ensued, resulting in Ms. Spady being allowed to scan the documents. She allegedly scanned an amazingly large number of documents in just a day and a half at the Global Hookah offices. Ms. Spady brought the scanned documents back to Florida so they could be printed and an audit could be performed for the audit period. At that point, Ms. Spady commenced the audit. According to Mr. Appel, the audit happened like this: Mr. Appel was informed by Mr. Torres that Ms. Spady would be conducting an audit for the aforementioned time period. Mr. Torres said that Ms. Spady preferred to come to North Carolina to do the audit. Upon her arrival at the Global Hookah offices in North Carolina, Mr. Appel gave Ms. Spady a CD containing all the requested documents, i.e., purchase invoices showing the cost of the tobacco and OTP, sales documents showing the products were sold in Florida, and the monthly returns filed by the taxpayer pursuant to Florida requirements. The monthly returns are a self-reporting summarization of products shipped to and sold in Florida by a distributor (minus some allowed exemptions). Compilation of those records on a CD was Mr. Appel’s normal procedure for the semiannual audits conducted by the Department. Ms. Spady reviewed the CD on her computer when she went to lunch. When she returned to Global Hookah’s office after lunch, she reported that some of the files on the CD would not open properly. Mr. Appel converted the documents on the CD into another format and verified that Ms. Spady could open the files. Ms. Spady said she was satisfied with the results and left the Global Hookah offices. Mr. Appel never saw Ms. Spady again. The parties basically agree only that an audit was initiated by the Department, it was commenced by Ms. Spady, and that someone else ultimately completed the audit. Just about everything else about the pre-audit process is disputed. It is as if the parties were talking about two completely different audits, which is what Global Hookah suggests happened. There was a subsequent audit performed by the Department where the auditor did scan some documents. There was allegedly some dispute in the latter audit concerning the auditor attempting to scan documents relating to sales in states other than Florida. A letter was supposedly sent to the auditor addressing that issue, but no such evidence was presented at final hearing. The Department says there was a subsequent audit, but Global Hookah “refused to provide records” so it was not completed. At some point in time, another auditor, Robert Lerman, took over the Global Hookah audit from Ms. Spady. None of Ms. Spady’s audit notes were preserved and so were not available for review at final hearing to substantiate Mr. Torres’ hearsay testimony concerning how the audit was initiated. Ms. Spady, who no longer works for the Department, was not called as a witness at final hearing. On November 24, 2014 (about four month after Ms. Spady commenced the audit), Mr. Lerman set up an audit file. At the commencement of his work, Mr. Lerman was advised by Mr. Torres that the records obtained from Global Hookah could not be trusted. This was due to the fact that Global Hookah had produced documents entitled “sales order” rather than traditional “invoices,” even though the Department had accepted the same kinds of documents from Global Hookah in the past. The Department believed that the sales orders could be altered, while the invoices would be more precise and final. Faced with its unease using the sales orders, the Department contacted Mr. Appel and requested that he submit invoices instead of sales orders for the audit period. Global Hookah contacted its supplier in California, Fantasia Distributors, Inc. (“Fantasia”), to obtain invoices to submit to the Department. The only difference between the sales orders and invoices–- besides the title of the documents--was that some charges had been zeroed out, presumably because the amount had been paid when the invoice was issued. Mr. Appel provided the Department with 40 pages of invoice documents marked as “invoiced in full.” The Department compared the new Fantasia invoices with the Global Hookah sales orders and determined that some of the information contained therein did not match up appropriately. There were some missing numbers, some invoices were not in logical number sequence, and there appeared to be other discrepancies. At that point, Mr. Torres got more involved in the Global Hookah audit. From the documents supplied by Global Hookah, Torres prepared a spreadsheet identifying 18 separate dates of transactions between Global Hookah and Fantasia during the audit period. He found, however, that there were really only about 15 actual purchases; some of the costs relative to a single purchase were divided and appeared on invoices with different dates. Some of the invoices had five-digit identification numbers that did not seem to match up with the sales orders previously provided. Based upon his review and findings, Mr. Torres deemed the invoices from Fantasia (which had been provided by Global Hookah) to be less than credible. Mr. Torres in fact concluded, unilaterally, that Global Hookah was attempting to hide purchases and to “deceive” the Department. It is noted that the Department made no attempt to contact Fantasia, with whom it was very familiar, to ascertain why the documents did not match up. Once Mr. Torres reached that conclusion, he decided to ascertain the actual purchase amounts by way of “best available information.” According to his audit notes, Mr. Lerman was directed by Mr. Torres to determine the “best available information” as follows: He was to make a schedule of all products purchased by Global Hookah from Fantasia. Inasmuch as the Department was familiar with Fantasia and knew that company supplied many distributors in Florida, Mr. Lerman was told to compare the cost of each product Global Hookah had bought from Fantasia with the cost other providers had paid for the same products. An average unit price for the products was thus calculated by the Department. The Department determined that Global Hookah was paying far less for some products than Fantasia was charging some of its other distributor customers. No competent evidence was produced as to why this disparity existed. The Department simply surmised that Global Hookah was apparently misstating the amounts it had paid Fantasia for the products. The Department, based on its comparison of Fantasia’s other non-related invoices, determined that Global Hookah was understating those product costs amounts by 454 percent. The Department thereupon applied a factor of 4.54 to all of Global Hookah’s purchases and Florida sales for the entire audit period. Although less than 20 percent of Global Hookah’s purchases for that audit period were with Fantasia, the factor was applied to all Florida sales in order to make the tax assessment.1/ The tax assessment on Global Hookah using the revised cost figures was determined to be $305,374.76, plus $152,687.37 of penalties, and $58,419.43 in interest, for a total tax assessment of $516,481.53. The Department had taken the purchases reported by Global Hookah on the monthly returns filed during the audit period, multiplied that figure by 4.54 to arrive at an adjusted figure, took the difference between the reported amount and the adjusted figure, and made a tax assessment on that amount. Later, the Department decided to revise its assessment by removing some of the non-Fantasia purchases, resulting in a tax assessment of $170,292.42 in tax, plus 1 percent interest per month, plus a penalty in the amount of 50 percent of the assessment, for a total tax assessment of $241,818.77. The basis for this reduction in tax assessment was that the Department determined that the 454 percent mark-up based on the Fantasia invoices should not necessarily be applied to the other 80 percent of Global Hookah’s purchases from other suppliers. Contrary to the Department’s position regarding the Fantasia purchases, Mr. Appel’s unrefuted testimony was that the prices shown on the sales orders were the actual amounts paid by Global Hookah to Fantasia. An affidavit dated April 2, 2016, from Fantasia’s president, Randy Jacob, corroborated Mr. Appel’s testimony.2/ That evidence is contrary to Mr. Torres’ contention that Global Hookah was falsifying its purchase price as to products purchased from Fantasia. The Department presented no competent evidence as to the basis for the prices Fantasia charged Global Hookah for products. The Department’s position, though based on logical reasoning in the abstract, was still entirely speculative and unpersuasive.3/ The Department’s decision to rely upon “best available information” is a new, unique way of conducting its review of records for an audit. Mr. Torres stated that in 30 years, he had not had to resort to such a process. The Department relied upon the “best available information” policy only in the instant case. There is no evidence that the policy was to be used in any other case or as a regular or appropriate method of dealing with less than acceptable records. It was used in the case at issue because Mr. Torres felt no other means would suffice. Global Hookah also contends that the Department’s inclusion of federal excise tax, shipping costs and other items in the taxable base for distributors constitutes an unpromulgated rule. That issue, however, has already been decided in Florida Bee Distributors, Inc. v. Department of Business and Professional Regulation, Case No. 15-6108 (DOAH Mar. 3, 2016)(“Florida Bee”), and will not be addressed in this Recommended Order. The Final Order in Florida Bee has been stayed and is currently under appeal at the First District Court of Appeal, Case No. 1D16-1064, meaning that the Department is free to rely on the policy pending a decision by the appellate court.
Findings Of Fact Based upon the stipulation of the parties, the exhibits received into evidence, and the testimony of the witnesses at hearing, I make the following findings of fact: The Respondent, Teresa Louise Kieffer t/a Knowles General Store, is, and was at all times pertinent hereto, licensed by the Division of Alcoholic Beverages and Tobacco under License Number 52-583, Series 1-APS. The licensed premises, Knowles General Store, is located at 12186 Northwest Highway 27, Ocala, Marion County, Florida. On July 22, 1982, the Respondent, Teresa Louise Kieffer, executed an application for transfer of License Number 52-00583, Series 1-APS. (Petitioner's Exhibit Number 1) On August 9, 1982, the Respondent executed a Personal Questionnaire as part of the application for transfer of License No. 52-00588. (Petitioner's Exhibit Number 2) The application was filed with the Division of Alcoholic Beverages and Tobacco on August 25, 1982. In the application the Respondent revealed that she was leasing the licensed Premises from Lynwood Knowles and Wanda Aytes and, further, that financing in the amount of $13,000.00 was obtained for the purchase of Inventory from Lynwood Knowles. No other persons were indicated as being connected, directly or indirectly, with the business for which the license was sought. The only financing obtained by the Respondent was the $13,000.00 from Mr. Knowles, and the $4,000.00 bank loan described below. On August 17, 1982, the Respondent leased the licensed premises from Lynwood E. Knowles and Wanda F. Aytes for a period of three (3) years. The Respondent agreed to pay Knowles and Aytes, as Lessors, the sum of $842.40 for rent and additionally agreed to pay all charges for utilities used at the leased premises. During the period in question, the only monies paid by the Respondent to Knowles were pursuant to the note and lease agreement, both of which were disclosed to agents of the Petitioner. On July 13, 1982, Terry Joseph Kieffer, the Respondent's husband, was adjudged guilty of possession of marijuana in excess of twenty (20) grams, a third degree felony. (Petitioner's Exhibit Number 5) On December 28, 1982, the Respondent and her husband, Terry Joseph Kieffer, applied for and obtained a loan in the amount of $4,000.00 from The First Marion Bank of Ocala, Florida. (Petitioner's Exhibit Number 6). The proceeds of this loan were deposited in the Knowles General Store Account and the Respondent testified that the loan was subsequently repaid from income from Knowles General Store, the licensed premises. This loan was unsecured. (Petitioner's Exhibit Number 6) It is clear that Terry Joseph Kieffer, a person not qualified to be licensed, did not have an interest in the licensed premises, based upon the following: The loan obtained by the Respondent and Terry Joseph Kieffer was unsecured and repaid from income from the operation of Knowles General Store. The Respondent, Teresa Louise Kieffer, exercised direct control over the operations of Knowles General Store. Although Terry Joseph Kieffer did sign for purchases on behalf of Knowles General Store at Seminole Stores, Inc., he picked up the inventory as a favor to Respondent and otherwise assisted her in the delivery of feed from Seminole Stores, Inc. In all cases, payment for the inventory was made by check drawn on the Knowles General Store Account and signed either by the Respondent or the Respondent's step-daughter, Teresa J. Kieffer, who was an authorized signer on the business account. (Petitioner's Exhibit Number 78 through 7L). Additionally, the account with Seminole Stores, Inc. was C.O.D. and personally guaranteed by the Respondent, Teresa L. Kieffer. (Petitioner's Exhibit Number 7A) Terry Joseph Kieffer did sign a few checks on the Respondent's business account. (Petitioner's Exhibit Numbers 8A through 8C, and 9A through 9D). However, Terry Joseph Kieffer was not an authorized signer on the Respondent's business checking account, had no operational control over the account, and signed those checks without the Respondent's authorization. (Petitioner's Exhibit Number 31) Although Terry Joseph Kieffer charged items at the Respondent's business, all charges to the business by the Respondent's husband or for her husband's farm use, were repaid. (Respondent's Exhibits Number 1 through 14) It is also clear that Teresa Jo Kieffer, the Respondent's step- daughter, did not have a direct or indirect interest in the Respondent's business or the license based upon the following: Although Teresa Jo Kieffer, while assisting her step-mother in the operation of the business, did make payment of numerous bills on Respondent's business checking account, did direct the delivery persons in the receipt of inventory on a recurring basis, however, she did so subject to the direct supervision of the Respondent and at the Respondent's direction. Teresa Jo Kieffer's arrangement with her step-mother was in contemplation of employment, but at the time in question, the store was not earning enough money to pay her a salary. The business did provide gasoline on occasion to her as well as repairs to her motor vehicle on two (2) occasions. (Petitioner's Exhibit Number 25, 26EE-26HH, 28A through 28D and 32) These payments were gifts from the Respondent to her step-daughter. It is also clear that Lynwood E. Knowles did not have a direct or indirect interest in the Respondent's a business or the subject license based upon the following: Although the City of Ocala Utilities records show that as of the date of the Hearing, and at all times pertinent prior thereto, Lynwood E. Knowles was the responsible party for payment of the electric service to the licensed premises, the Lease Agreement and other evidence indicated that the Respondent agreed to pay all utility service. Further, the fact that Mr. Knowles was still held responsible by the City of Ocala Utilities was unknown to either the Respondent or to Lynwood E. Knowles. Additionally, at the direction of the Respondent, her step-daughter went to the City of Ocala Utilities office and requested that service be changed to the Respondent's name. (Petitioner's Exhibit Number 3, 33C, 33D) Although during the period in question Lynwood E. Knowles was responsible to Clardy Oil Company for payment of hills for gasoline received by and sold at the licensed premises, at all times during the period in question, payment for the fuel received by Knowles General Store was made from the Knowles General Store Account. Further, during the period in question, there was in effect a special purpose lease and marketing agreement (Petitioner's Exhibit Numbers 34D and 34E) with Lynwood E. Knowles for the purpose of marketing gasoline at Knowles General Store. From and after October 1982, the date that the license was transferred to the Respondent, the commission payments on gasoline sales were paid to Knowles General Store and deposited in the Knowles General Store account. Mr. Clardy was notified by Mr. Knowles that the marketing agreement and lease should be assigned to the Respondent, but he did not get around to making the assignment until February 17, 1984. Although Lynwood E. Knowles was an authorized signer on the Respondent's business checking account, Mr. Knowles never signed any checks. Mr. Knowles' name was placed on the account merely as a matter of convenience for the Respondent during the period of transition of ownership and operation of the store. Discussion of Proposed Findings of Fact and Reasons for Rejection of Same The foregoing findings of fact include the substance of virtually all of the findings of fact proposed by the Respondent. The foregoing findings of fact also include the substance of the majority of the "basic" facts proposed by the Petitioner. They do not include many of the "conclusional" facts proposed by the Petitioner which are based on inferences or assumptions the Petitioner urges should be drawn from the "basic" facts, because I am convinced that many of the inferences and assumptions urged by the Petitioner are unwarranted when all of the "basic" facts are considered together. Also, many of the Petitioner's proposed findings consist of unnecessary surplus details (See, specifically, most of the language in paragraphs 2, 3, 5, and 6 of Petitioner's proposed findings.) It should also be specifically noted that the preponderance of the competent substantial evidence in this case supports the finding that neither Terry Joseph Kieffer, Teresa Jo Kieffar, nor Lynwood E. Knowles had an interest in the Respondent's business.
Recommendation Based upon all of the foregoing, it is recommended that the Division of Alcoholic Beverages and Tobacco enter a Final Order dismissing all charges against the Respondent. DONE and ORDERED this 15th day of May, 1985, at Tallahassee, Florida. MICHAEL M. PARRISH 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 15th day of May, 1985. COPIES FURNISHED: Michael W. Johnson, Esquire 307 Northwest Third Street Ocala, Florida 32670 Thomas A. Klein, Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301
The Issue Did Petitioner sustain an on-the-job injury on May 19, 1995, which resulted in Petitioner being disabled and, if so, did Respondent fail to provide Petitioner with reasonable accommodation for that disability?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Publix Super Markets, Inc. (Publix) is a Florida corporation operating a chain of retail grocery stores throughout the State of Florida. Publix hired Petitioner on June 9, 1973. On March 17, 1994, Petitioner voluntarily transferred to Publix's Orlando Grocery Warehouse in Orlando, Florida. On May 13, 1995, Publix promoted Petitioner to Grocery Supervisor. On March 15, 1995, Petitioner was arrested in connection with a domestic dispute that was highly publicized in the area, and because of this incident, Publix removed Petitioner from his supervisory position on March 24, 1995. Petitioner became a selector in the warehouse, selecting goods to be shipped to the stores. However, because of Petitioner's length of service with Publix, he could have chosen to operate the fork-lift rather than physically select goods. The essential functions of the selector position include pulling product weighing up to 100 pounds at a rate of 250 cases per hour. A selector must be able to bend, stoop, lift, push and pull product cases, and operate a fork-lift. The essential functions of the fork-lift operator position include operating the fork-lift--a hazardous piece of moving equipment. Petitioner did not have any condition which substantially limited any major life activity at anytime prior or at the time he became a selector. Petitioner sustained an on-the-job injury on May 19, 1995, while working as a selector for Publix. However, Petitioner did not report this injury to Publix until May 30, 1995. The back condition caused by this injury is the only impairment which Petitioner contends to be a disability in this case. Petitioner did not request any accommodation from Publix due to his injury on May 19, 1995. On May 19, 1995, Petitioner requested disbursement of his retirement benefits from Publix and notified Publix that his last day of employment would be June 2, 1995. Petitioner called in sick on May 20, 22, 23, and 26-29, 1995, claiming he was unable to work. Petitioner's regular days off were May 24-25 and June 1-2, 1995, and Petitioner did not work at Publix on those days. After his injury on May 19, 1995, Petitioner only worked on May 21 and 30, 1995. Publix accommodated all of Petitioner's requests for time off due to his back condition. Prior to May 30, 1995, Petitioner declined Publix's offer to report the incident as a work-related injury and Publix's offer of treatment under workers' compensation. By letter dated May 24, 1995, Peter Petrone, M.D., North Lakeland Pain and Trauma, advised Mike Lester, Publix's Grocery Department Manager, that Petitioner's injuries prevented Petitioner from performing his job duties. Additionally, Dr. Petrone advised Mr. Lester that Petitioner could return to work on May 30, 1995. The record is unclear as to when or if Mr. Lester received this letter. On May 30, 1995, Petitioner reported that he now believed that the May 19, 1995, injury was work related. In accordance with Publix's established practice, a Notice of Injury Form was filed immediately and an investigation was conducted. Petitioner acknowledged that the injury, although occurring on May 19, 1995, was not reported to Publix until May 30, 1995. Publix offered Petitioner medical treatment, which Petitioner accepted. Petitioner was treated by the physicians at Centra Care on the day the injury was reported, May 30, 1995. Petitioner was placed on restrictions by the physicians at Centra Care which consisted of: no lifting, pushing, or pulling over five pounds; no bending or stooping, and avoid hazardous moving equipment. Petitioner was scheduled for a re- evaluation on June 2, 1995. The restrictions issued by the physicians at Centra Care were given to Mr. Lester on May 30, 1995. Due to these restrictions, Petitioner was unable to perform the essential functions of his selector position on May 30, 1995 through June 2, 1995. Petitioner contends that he may have been able to perform receiver, inventory control, dispatch, clerical, or security positions within the warehouse. However, there was no evidence presented of any receiver, inventory control, dispatch, or clerical positions being available within the warehouse. Since all security positions are contracted to an outside agency by Publix, there are no available security positions within the warehouse. Petitioner did not request a dispatch, receiver, inventory control, clerical, or security position. There were no available positions which met Petitioner's work restrictions within the Orlando warehouse and, since Petitioner was to be re-evaluated by the Centra Care physicians on June 2, 1995, Mr. Lester advised Petitioner that he need not come into work on Wednesday, May 31, 1995. Petitioner's regular days off that week were Thursday and Friday, June 1-2, 1995. There were no positions within the Orlando warehouse which Petitioner could perform the essential functions, with or without reasonable accommodation, on May 30, 1995. On June 2, 1995, Petitioner notified Mr. Lester that he was resigning effective June 2, 1995. Petitioner had not advised Mr. Lester of the outcome of his visit with the physicians at Centra Care on June 2, 1995. Between May 19, 1995 and June 2, 1995, Petitioner could see, read, write, walk, drive, bathe, feed himself, dress himself, grocery shop, and perform odd jobs around the house, including light cleaning and the dishes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order dismissing the Charge of Discrimination which was filed against Respondent Publix by Petitioner Joe Armbrester, III. DONE AND ENTERED this 29th day of December, 1999, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 1999. COPIES FURNISHED: Robert M. Paine, Esquire Post Office Box 3642 Lakeland, Florida 33802 Jennifer M. Monrose, Esquire Ford and Harrison, LLP 101 East Kennedy Boulevard Suite 900 Tampa, Florida 33602 Sharon Moultry, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32399-0500 Dana Baird, General Counsel Florida Commission on Human Relation Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32399-0500
