Findings Of Fact Having considered all testimony, evidence, and argument of counsel, the Hearing Officer finds the following: Petitioner is a corporation organized and existing under the laws of Florida with its sole place of business located at 6186 S.W. 8th Street, Miami, Florida. Petitioner operates a delicatessen and restaurant in the same building at the above location. Petitioner's restaurant prepares food to be served to paying customers who consume that food at tables provided in the restaurant for that purpose. This food is served by waiters and waitresses who prepare guest checks which separately indicate the amount of sales tax charged thereon. Petitioner's delicatessen sells unprepared food to customers who do not consume that food on the premises and for whom no eating facilities are provided. A common cash register serves the two facilities, which cash register has a separate key or the sale of delicatessen items, and a separate key for the sale of restaurant items. The restaurant and delicatessen occupy the same general space and are not separated by a wall or other physical barrier. Petitioner collects sales tax for those items sold in the restaurant portion of the business and does not collect sales tax on those items sold in the delicatessen portion of the building. Petitioner regularly maintains separate and distinct records sufficient for an allocation between restaurant sales and delicatessen sales. On March 12, 1979, Respondent issued a proposed sales and use tax delinquency assessment against Petitioner in the amount of $40,018.14. This assessment was based upon the total sales revenue generated by both of Petitioner's enterprises and did not allocate sales revenue between the delicatessen portion of the business and the restaurant portion of the business. On May 10, 1979, the Respondent issued a revised proposed sales tax delinquency assessment against Petitioner in the amount of $33,259.20. This revised assessment was based upon the total sales revenue generated by both of Petitioner's separate enterprises and did not allocate sales revenue between the delicatessen portion of the business and the restaurant portion of the business. This assessment by Respondent against Petitioner was based, at least in part, upon Rule 12A-1.11(1), Florida Administrative Code. Petitioner holds a restaurant license from the State of Florida, Division of Hotels and Restaurants. Petitioner also holds a retail sales license from Dade County for its delicatessen operation. Rule 12A-1.11, Florida Administrative Code, was adopted, pursuant to a public hearing.
Findings Of Fact International Contractors Inc. (ICI), Petitioner, was incorporated in 1983 with Barry Carlson shown on the Articles of Incorporation as sole incorporator with Walter Cenal and Virginia Ann Carlson as additional members of the Board of Directors (Exhibit 1). At this time, Carlson owned 49 of the 100 shares issued, and Cenal owned 51 shares for which each paid $5 per share. In 1985, Carlson was having marital difficulties, and ICI had not commenced operations. Carlson then sold his 49 shares of stock to Cenal making the latter the owner of 100% of the stock of ICI. At this time, Carlson was the controlling party in two corporations called Interstate Markings Inc. and Airport Specialists Inc. Interstate Markings Inc. had been owned by Carlson's father who died in 1988 leaving stock in the company to his son. Interstate Markings Inc. was reorganized under Chapter 11 of the Bankruptcy Laws in 1984. Part of its assets consist of real property which is leased to ICI for $1600 per month (Exhibit 39). The corporate addresses of Interstate Markings Inc. and Airport Specialists Inc. is the same as ICI. However, Airport Specialists Inc. has had no employees and has performed no work in the past few years. No evidence was submitted that Interstate Markings Inc. is actively engaged in business. After acquiring 100% ownership of ICI, Cenal invested approximately $25,000 in ICI, and ICI commenced operations. Most of this capital ($20,000) was raised with a loan secured by a mortgage on Cenal's home (Exhibit 24). Walter Cenal was born in Cuba, and started his first company in the United States when he was 21 years old doing air conditioning installation and maintenance. He had operated this company for almost ten years when he and Carl son started ICI in 1983. In 1985, Cenal sold his air conditioning company and thereafter devoted full time to ICI. Part of the income received from the air conditioning company was invested in ICI. ICI is primarily engaged as a subcontractor to prime contractors doing work on airports and highways. A large portion of ICI's work consists of striping runways and cutting grooves in concrete runways and on highway bridges. Both Cenal and Carlson prepare bids for subcontracting work with the final decision on the offer to submit made by Cenal. Bonding for ICI was secured by Cenal. Financial arrangements are made by Cenal, who arranged the company's first line of credit for $20,000 in December 1985 (Exhibit 26) and personally, with his wife, guaranteed repayment of this loan (Exhibit 27). When this line of credit was increased to $75,000 in January 1988, the bank (NCNB), required all Directors to guarantee repayment. These included Cenal, his wife and Carlson (Exhibit 4). In November 1988, ICI borrowed $40,000 from NCNB to purchase equipment, and Cenal made all financial arrangements for this loan. Carlson is capable of preparing bids for jobs sought by ICI and is the number two man at ICI. He supervises some jobs, but not as frequently as Cenal. As a result, Carlson spends more time at the office than does Cenal. Largely because Cenal was not present when the South Carolina DBE investigator came to the office of ICI to check for compliance by ICI as a certified MBE in South Carolina, South Carolina refused to recertify ICI as a DBE (Exhibit 10). Shortly thereafter, Respondent refused to recertify ICI as a DBE (Exhibit 7). However, the North Carolina Department of Transportation (Exhibit 19), Hillsborough County Aviation Authority (Exhibits 20 and 21), and Memphis-Shelby Airport Authority (Exhibit 22) have all certified ICI as a MBE or DBE. Cenal has delegated authority to his wife and to Carlson to sign some checks on the ICI checking account. Mrs. Cenal and Walter Cenal are the ones authorized to sign payroll checks. Carlson signs checks to pay routine bills; however, if ICI funds limit payment to all creditors, Cenal designates which of the creditors is to be paid. Cenal frequently rents accommodations for his workers at job sites. These include hotel/motel rooms, trailers and apartments. All of these leases are executed by Cenal. Cenal makes final decisions regarding employing workers and renting equipment. He frequently delegates to his superintendents at job sites the authority to hire temporary employees and to rent equipment in an emergency. He issues them credit cards on which these superintendents can charge out-of- town living expenses and renting of equipment. Although Cenal spends 20-40% of his time overseeing the work at the job site, he is in daily contact by telephone with his office. He is thereby able to consult and to make day-to-day decisions affecting ICI. Respondent acknowledges that Cenal is fully qualified to supervise field operations, but contends, because Carlson is left in charge at the office, that Cenal does not control ICI. The Department also predicated the denial of recertification upon the fact that Carlson was paid an annual salary of $40,000, "the same as Cenal." Corporate income tax returns for 1986, 1987 and 1988 (Exhibit 37) show that in 1986 Cenal was paid $32,000 and Carlson, $26,500; in 1987 Cenal was paid $48,950 and Carlson, $38,750; and in 1988 Cenal was paid $41,950 and Carlson $40,790. The success of a contractor depends on how effectively he performs the work for which he has contracted. If a job is delayed for almost any reason, profits are squeezed. If work has to be redone, profits frequently evaporate or become losses. Accordingly, one of the most important factors in a successful operation is the supervision of the work being performed. It is on the construction site that money is made or lost in the contracting business. The contractor who closely supervises the work he undertakes is the contractor most likely to succeed. Supervising field work does not require one to give up control of the company's overall operations. To the contrary, it probably makes control more effective. A plethora of evidence was submitted to clearly show that Cenal is the 100% owner of ICI; that he hires and fires personnel; that he makes all financial decisions involving ICI; that he has the final say on what contracts to bid and at what price; that he makes decisions on buying equipment, of compensation to his superintendents, to Carlson and to himself; and that, in all respects, he has de facto in addition to de lure control over ICI. Respondent's denial of Petitioner's application for recertification as a DBE was based on decisions rendered by the U. S. Department of Transportation in other cases, copies of which were provided Respondent by U. S. DOT. Two of these decisions were admitted into evidence as Exhibits 51 and 52. Both of these cases involved companies where females held the majority ownership in companies run by their husbands who shared facilities with the husband's company. Those situations are hardly comparable with the facts here involved. Here there is no blood or marriage relationship between Cenal and Carlson, and shared facilities with similar businesses do not exist as none of Carlson's companies are operational or in the same business as ICI. Walter Cenal is an Hispanic American eligible for certification is a DBE, and he has both de lure and de facto control over the operations of ICI.
Recommendation It is recommended that International Contractors Inc. be certified as a Disadvantaged Business Enterprise by the Florida Department of Transportation. ENTERED this 1st day of February, 1990, in Tallahassee, Florida. Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 1990. APPENDIX All of Respondent's proposed findings are accepted except, 6. Accepted only insofar as it relates to the time ICI commenced operations. 9. Rejected. See H.O. Finding No. 20. 11. Rejected. See H.O. Finding No. 13. 13. Rejected. See H.O. Finding No. 18. 14. Rejected. DOT's principal witness testified she was influenced by Carlson's original ownership and through the transfer of his shares to Cenal to be a subterfuge. 23. Rejected. Petitioner's proposed findings are generally accepted. Those not included were deemed unnecessary to the conclusions reached. COPIES FURNISHED: Joe M. Gonzales, Esquire 1519 North Dale Mabry Suite 100 Lutz, FL 33549 Charles G. Gardner, Esquire Department of Transportation 605 Suwannee Street, MS 58 Tallahassee, FL 32399-0458 Ben G. Watts Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0450 Thomas H. Bateman, III General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0450
The Issue The issue is whether Respondent, as a licensed distributor of alcoholic beverages, is guilty of violating the Tied House Evil Act by distributing alcoholic beverages without charge to a licensed dealer, in violation of Section 561.42(1) and (2), Florida Statutes, and, if so, what penalty should be imposed.
Findings Of Fact Respondent is a licensed distributor of alcoholic beverages. A bar known as "Wills," located at 5748 Swift Road in Sarasota is a licensed vendor of alcoholic beverages, pursuant to a series 2COP license. Respondent distributes Anheuser-Busch products. One of its main competitors is the distributor of Miller Beer products. For an unidentified period of time prior to June 2, 1999, Wills tapped only Anheuser-Busch products for retail sale as draft beer. However, the Miller distributor persuaded Wills to switch one of its two taps from Amber Bock, an Anheuser-Busch product, to Ice House, a Miller Beer product, when the Amber Bock keg ran dry. Pursuant to their agreement, Miller Beer delivered one keg of Ice House for tapping. Wills was to be the site of a promotion of June 5, 1999. In anticipation of the promotion, a representative of Anheuser- Busch visited Wills after June 2, but before June 5, to see if Wills required any additional Anheuser-Busch product. The Anheuser-Busch representative saw the untapped Ice House keg and learned that Wills intended to switch one of its taps to the Miller Beer product. The Anheuser-Busch representative convinced Wills not to make the switch. The question then arose what should be done with the Ice House keg. Fearing that the Miller Beer distributor would be slow to credit Wills for a refund, Respondent chose instead to take the Ice House keg in payment for the new Bud Light keg that the Anheuser-Busch representative delivered to Wills without delay. Although Respondent failed to invoice the transaction, there is no dispute that the wholesale prices of the Ice House and Bud Light products, together with the kegs, are substantially identical.
Recommendation It is RECOMMENDED that the Division of Alcoholic Beverages and Tobacco enter a final order dismissing the Administrative Action. DONE AND ENTERED this 15th day of June, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 2000. COPIES FURNISHED: Joseph Martelli, Director Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Ralf Michels, Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 John Saputo, President Qualified Representative Gold Coast Eagle Distributing, Ltd. 2150 47th Street Sarasota, Florida 34234 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue Whether or not on November 1, 1975, the Respondent, in its licensed premises, failed to have food covered in a refrigerator in violation of Rule 7C- 4.01(2)(a)(b)(c), Florida Administrative Code. Whether or not on November 1, 1975, Respondent, in its licensed premises failed to provide soap and towels in the employees' restroom, in violation of Rule 7C-4.01(5)(e)(f), Florida Administrative Code. Whether or not on November 1, 1975, the Respondent, in its licensed premises failed to clean the hood over a stove, in violation of Rule 7C- 4.01(4)(a)(7), Florida Administrative Code. Whether or not on November 1, 1975, the Respondent, in its licensed premises failed to clean can openers, in violation of Rule 7C-4.01(4)(f)(1), Florida Administrative Code. Whether or not on November 1, 1975, the Respondent, in its licensed premises failed to repair holes in a wall and where needed, in violation of Rule 7C-4.01(6)(h), Florida Administrative Code. Whether or not on November 1, 1975, the Respondent, in its licensed premises failed to clean its floors in hard to get places in violation of Rule 7C-4.01(6)(a)(b), Florida Administrative Code. Whether or not on November 1, 1975, the Respondent, in its licensed premises failed to clean an ice machine that makes ice cubes, in violation of Rule 7C-4.01(4)(f)(1), Florida Administrative Code.
Findings Of Fact The Respondent, A & A Select Restaurants, Inc., t/a Spanish Pavilion Restaurant, is licensed with the State of Florida, Department of Business Regulation, Division of Hotels and Restaurants, under license no. 23-13152R, and was so licensed on November 1, 1975. On the morning of November 1, 1975, an inspector with the Division of Hotels and Restaurants, arrived at the Spanish Pavilion Restaurant, owned by A & A Select Restaurants, Inc., for the purpose of inspecting the restaurant. This restaurant is located at 8880 S.W. 24th Street, Miami, Florida. The time of the inspection was between the hours of 9:00 A.M. and 11:00 A.M. of November 1, 1975. The inspection was conducted by Robert J. Barrett. The food in the walk- in refrigerator was uncovered and was positioned in such a way that food in the containers might fall into other containers, thereby contaminating the adjacent food. The employees' bathroom which contained a sink and toilet, did not have soap or a towel in the bathroom or in the immediate vicinity of the bathroom. The filter and hood over one of the stoves had an accumulation of grease and dirt, which had been collecting over a period of time. One of the can openers had an accumulation of dirt and grease on the opener-wheel. There was a hole of approximately 4" in diameter through the east wall adjacent to one of the ice machines. This ice machine was in operation. The neighborhood in which the restaurant is located is one with a high rodent population. The floors in the corners adjacent to the work tables and stoves were not clean. One of the ice machines had slime in the area where the formed cubes were ejected.
Recommendation It was indicated in the course of the hearing that the Respondent had been inspected by the Division of Hotels and Restaurants on February 17, 1975, and the floors were found to be unclean, the food uncovered in a similar manner, the sink by the broiler unclean and the sink by one of the work tables unclean. It was further indicated in the course of the hearing that the follow-up inspection of November 3, 1975, revealed that those matters found in the November 1, 1975, inspection had been corrected. Based upon these aggravating and mitigating factors it is recommended that Respondent be fined in the amount of $250. DONE and ENTERED this 8th day of October, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Manuel Miranda, Owner Charles F. Tunnicliff, Esquire 8880 Southwest 24th Street Division of Beverage Miami, Florida 33155 The Johns Building Tallahassee, Florida 32304
The Issue Whether or not the Petitioner should be entitled to an extension of the shelf life on its milk and milk products from a ten day period to a twelve day period.
Findings Of Fact Testimony offered by Jay Boosinger, Director of Dairy Industry, for the Department of Agriculture and Gene Smith, Supervisor of Dairy Products Inspection Enforcement, indicated that the Respondent had investigated the request for extension of shelf life from ten days to twelve days on the milk and milk products of the Petitioner. Based on the laboratory analysis of the test samples, they felt that the request should be accepted. This position was stated notwithstanding the fact that the samples taken in the Miami plant were limited in numbers, due to the fact that the petition for extension of shelf life was filed later than a similar petition filed by the Petitioner. Jay Boasinger has as his duty the direction of the program which is designed to regulate the quality of dairy products within the State of Florida. Gene Smith, as his title indicates, is charged with the function of inspection and enforcement of the laws and regulations associated with the diary industry in the State of Florida. Testimony was offered in this hearing which indicated that certain samples of the Petitioner's milk and milk products had been collected at the Petitioner's Miami, Florida plant, the Petitioner's trucks and selected stores which were serviced by the Petitioner. These samples were collected by a dairy plant specialist of the Respondent and in turn were taken to a laboratory of the Respondent for analysis. The laboratory analysis was designed to ultimately determine the number of days that the samples would be acceptable beyond the code expiration date found on the container, which expiration date would have been at the ten day point. There is an exhibit, which is Respondent's Exhibit #1 that identifies the product, collection point, the established expiration date, the laboratory evaluation date and the days that the product was found to be acceptable beyond the ten day, established expiration date. In addition this exhibit contains the laboratory analysis of the products together with attendant correspondence on the issue of the extension of the shelf life. The test samples in Respondent's Exhibit #1 show in the date acceptable pass column, how many days past the ten days the product would have held up without losing flavor and becoming unacceptable in terms of shelf life. The laboratory analyses and summary of those analyses showed available shelf life above the ten day life expressed in the regulation found in Chapter 5D-104(7)(d), Florida Administrative Code.
Recommendation It is recommended that the Respondent grant a shelf life of twelve days on the milk and milk products identified in the course of the hearing held on the question of the petition. DONE and ENTERED this 15th day of June, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: R. D. Saunders, Zone Manager Sealtest Foods 109 Governors Street Tampa, Florida 33602 Jack Shoemaker, Esquire Resident Counsel 515 Mayo Building Tallahassee, Florida 32304
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A.
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b) (1) (C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. FINAL ORDER NO. DCA 10-GM-223 CERTIFICATE OF FILING AND SERVICE a a VEE NG AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished in the manner indicated to each of the persons listed ch below on this 23 © aay of November, 2010. Py 2 i AN Paula Ford Agency Clerk By E-File: The Honorable Donald R. Alexander Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 By Electronic Mail: Brian W. Haas . City Attorney, City of Frostproof P.O. Box 1260 Lake Wales, FL 33859 BrianHaas@aol.com Tom Schotman, Registered Agent/President Defenders of Crooked Lake, Inc. 1430 North Crooked Lake Drive Babson Park, Florida 33827 tbschotman@aol .com Lynette Norr Assistant General Counsel Department of Community Affairs Lynette .Norré@dca.state.fl.us STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS DEPARTMENT OF COMMUNITY AFFAIRS, Petitioner, and DEFENDERS OF CROOKED LAKE, INC., Intervenor, vs. Case No. 09-2405GM CITY OF FROSTPROOF, Respondent.
Findings Of Fact On February 20, 1985, Demaris Hughes, a registered dietician for the office of licensure and certification of the Petitioner, conducted the annual license survey of the Respondent, A. D. Virice and Associates, Inc., d/b/a Hilcrest Retirement Residence. During this inspection, Ms. Hughes observed that milk used for serving for drinking purposes was not from original individual containers in which it was packaged at the milk plant or from an approved bulk milk dispenser of sanitary design, construction, and operation. This was admitted by Maurice Duff and Virginia Duff, who manage and operate the Hilcrest Retirement Residence. On February 20, 1985, Ms. Hughes told Ms. Duff that the containers then being used were in violation of state regulations, and that a period of 30 days was allowed for the Respondent to correct this violation by either serving milk in one-half pint cartons or in an approved bulk dispenser. The Respondent's Retirement Residence has a license for 13 or more residents. The survey conducted on February 20, 1985, noted other deficiencies, all of which were corrected by the time of the resurvey on April 3, 1985. On April 3, 1985, Ms. Hughes again visited Hilcrest Retirement Residence and milk used for serving was still not served from original individual containers in which it was packaged at the milk plant or from an approved bulk milk dispenser. The Respondent had some difficulty arranging for the purchase of milk in one-half pint individual serving containers, and asserted at the hearing that sometime in early April 1985 it finally had an arrangement with a dairy to obtain milk in individual containers. Agents of the Respondent, nonetheless, knew that they had thirty days from February 20, 1985, to correct this violation, and there is no evidence that they sought any extension of time from Ms. Hughes or from the Petitioner. Additionally, although there was testimony as to the fact that the violation was corrected by early April 1985, there was no independent corroborative evidence, such as a written contract with a milk supplier, cancelled checks, or written invoices for purchase of milk in one-half pint containers.
