The Issue In relation to DOAH Case No. 05-0515, does the case involve the sale of securities as described in Chapter 517, Florida Statutes (2002), that would confer jurisdiction upon OFR to proceed to a hearing on the merits of the Administrative Complaint that forms the basis for DOAH Case No. 05-0515, and to what extent, if any, the named Respondents have been involved with the sale of securities sufficient to declare jurisdiction over their activities? Preliminary to that determination is the related issue concerning the possible pre-emption of OFR's regulatory authority by virtue of the regulatory action previously taken by the State of Florida, Department of Business and Professional Regulation, Division of Land Sales, Condominiums and Mobile Homes (DBPR) under authority set forth in Chapter 721, Florida Statutes (2002)? Argument has also been set forth concerning the significance of court cases as they might influence OFR's ability to declare their regulatory authority in this instance.
Findings Of Fact * * * 2. RESPONDENT is the 'creating developer' of the Universal Luxury Lease Plan, a personal property 'timeshare plan' as those terms are defined in sections 721.05(9)(a) and 721.05(37), Florida Statutes, located in the city of Sanford, Florida. * * * On or about July 10, 2003, DIVISION was made aware of a newspaper advertisement for Universal Luxury Lease Plan. This advertisement, promoted the purchase of a timeshare interest in the Universal Luxury Lease Plan as an investment that offered purchasers a 10 percent per year return on their investment. On July 25, 2003, DIVISION'S investigators were given an application package containing the Universal Luxury Lease Plan Enrollment Forms, CD-ROM, Public Offering Statement, Contracts and Motor Coach Brochures. The application package stated that it was advertising material being used for the purposes of soliciting timeshare interests. It described a component of the timeshare plan called the 'Affinity Rental Program' and stated that the program will typically produce a monthly income of 10 percent of the lease-hold ownership interest.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That an order be entered by OFR finding jurisdiction to proceed with the Administrative Complaint in DOAH Case No. 05- 0515 on its merits. DONE AND ENTERED this 6th day of January, 2006, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 6th day of January, 2006.
Findings Of Fact Sundial is a limited partnership authorized to do business in the State of Florida and is a developer and builder of a condominium complex known as Sundial of Sanabel. In order to provide the purchasers of the condominium units with a means of renting their units when the units were not occupied by the owners, a second limited partnership was formed, Sundial Rental Partners Ltd., in which Sundial is the general partner and each of the condominium owners are limited partners. On August 1, 1973, a management agreement was entered into between Sundial Rental Partners Ltd. (hereafter Rental Partners) and Sundial whereby Sundial agreed to provide management services in connection with the operation of the condominium units as rental accommodations. The terms of this agreement provided that Sundial would be compensated for its management services in the amount of five percent (5 percent) of the gross revenue of the rental partners. On April 7, 1973, an Additional Facilities Lease Agreement was entered into between Sundial and Rental Partners. By this agreement, Sundial leased to Rental Partners additional facilities to be constructed by Sundial and used by the condominium unit owners, the persons who rent the condominium units from the Rental Partners and their guests. Compensation to Sundial is set forth in paragraph 3 of the agreement: Sundial Associates shall be paid an annual rental fee for the additional facilities equal to fifteen percent of the gross revenues of the Rental Partnership. Sun- dial Associates shall operate the additional facilities for its own account. All incom- ing profits shall inure to its benefit and the rental partnership shall have no interest in such incoming profits. The limited partnership agreement between Sundial and Rental Partners was amended on August 6, 1974. Paragraph 5.1 of the Amended Agreement provides that a total of five percent (5 percent) of the gross revenues of the partnership shall be paid to Sundial for its management services and that fifteen percent (15 percent) of the gross revenues of the partnership shall be paid to Sundial as rental payments for those additional facilities to be constructed by Sundial Paragraph 6.1 provides for a management deed to be paid to Sundial in the amount of four percent (4 percent) of the gross revenues of the partnership and paragraph 6.4 provides that the partnership shall lease from Sundial the additional facilities at the rate of fifteen percent (15 percent) of the gross revenues of the partnership. Paragraph 6.4 of the limited partnership agreement calls for the construction of additional facilities, the cost of which is to be some two million one hundred fifty thousand dollars ($2,150,000.00). During the tax period in question, the only facilities actually constructed were a lobby and registration area, the value of which is significantly less than the total value of the expected construction. Nonetheless, during the tax period in question, the Rental Partners have paid Sundial the full five percent (5 percent) management fee and the full fifteen percent (15 percent) rental payment. Sundial recorded receipt of these amounts in separate accounts in their financial records. Sundial received as income during the tax period in question, certain tennis court admission fees which DOR did not intend to include in its computation of the sales tax due from rental proceeds. Yet, the record reflects that the total of fifteen percent (15 percent) of gross sales was three hundred seventeen thousand three hundred ninety-three dollars and ninety-four cents ($317,393.94) while the total from tennis court admission fees was eighteen thousand four hundred ninety-seven dollars and sixty-seven cents ($18,497.67). The sum of these two figures is three hundred thirty-five thousand eight hundred ninety-one dollars and sixty-one cents ($335,891.61) which, when multiplied by four percent (4 percent) equals thirteen thousand four hundred thirty-five dollars and sixty-six cents ($13,435.66). This is the exact amount of the tax assessed by DOR exclusive of interest and penalties. The assessment is in error to the extent that tennis court admission fees were included in the figure purporting to reflect gross receipts of rental fees.
The Issue The issues in this case are whether Respondents unlawfully discriminated against Petitioners on the basis of race, or retaliated against them for exercising a protected right, or both, in violation of the Florida Fair Housing Act.
Findings Of Fact Because no evidence was admitted into the record at the final hearing, the undersigned cannot make any findings of fact. § 120.57(1)(j), Fla. Stat. (“Findings of fact shall be based … exclusively on the evidence of record and on matters officially recognized.”).
Recommendation Based on the foregoing Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding Respondents not liable for housing discrimination and awarding Petitioners no relief. DONE AND ENTERED this 27th day of October, 2020, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 2020. COPIES FURNISHED: Antonio Carraway Whang Carraway 1406 Southwest Osprey Cove Port St. Lucie, Florida 34986 (eServed) Jillian Sidisky, Esquire Stefanie S. Copelow, Esquire Cole, Scott & Kissane, P.A. 222 Lakeview Avenue, Suite 120 West Palm Beach, Florida 33401 (eServed) Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue Whether Petitioners' request to negotiate or competitively bid for a concession for amusement devices at service areas on the Florida Turnpike should be granted, pursuant to Section 340.091, Florida Statutes. This proceeding arose as a result of Respondent Department of Transportation's denial of the request of Petitioners Florida Sunshine Parkway Citrus, Inc. and Joe A. Chambliss to negotiate or competitively bid for a concession to install and operate video amusement machines at the various service plazas of the Florida Turnpike. Sunshine Parkway Restaurants, Inc. petitioned for leave to intervene in the proceedings and was granted status as an intervenor. Posthearing submissions by the parties in the form of proposed recommended orders have been fully considered, and those portions thereof not adopted herein are considered to be either unnecessary, irrelevant, or unsupported in law or fact.
Findings Of Fact On June 1, 1982, Petitioner Florida Sunshine Parkway Citrus, Inc. entered into two agreements with Respondent Department of Transportation under which Petitioner was granted a five-year license to manage and operate the citrus products shops located at the Pompano and Fort Pierce service plazas on the Florida Turnpike, pursuant to Section 340.091, Florida Statutes. The agreements provided that the shops would be used for the sale of products "relating to Florida citrus and/or goods promoting the State of Florida, including but not limited to all Florida products and tropical juices." Petitioner was awarded the contracts as a result of a competitive bidding process. Petitioner Joe A. Chambliss is the president of Florida Sunshine Parkway Citrus, Inc. Chambliss also is a sub-lessee of two Texaco Service Stations at the Fort Pierce and Snapper Creek service plazas. (Testimony of Chambliss; Respondent's Exhibits 10-19, Joint Exhibit 1 (Stipulation)) On November 29, 1978, Respondent entered into an agreement with Intervenor Gladieux Food Services, Inc. and Canteen Corporation (Gladieux) whereby Respondent leased certain portions of buildings at eight service plazas on the Sunshine State Parkway (Florida Turnpike) for a period of ten years to operate and manage food and related facilities at the leased premises. Sunshine Parkway Restaurants, Inc. is a joint venture of Gladieux/Canteen. The lease provided that Gladieux would have the exclusive use of the areas designated as restaurants for the purposes of serving food, nonalcoholic beverages and "related merchandise." The agreement provided that Gladieux would have non- exclusive use, but maintenance responsibilities for parking areas, restrooms, and the lobby and vending areas. The agreement further provided that Respondent would have the exclusive right to approve the items to be sold, and required Gladieux to furnish all vending machines required for operating a vending center in designated vending areas. Gladieux was awarded the contract as a result of a competitive bidding process. (Testimony of Owen, Petitioner's Exhibit 9, Respondent's Exhibit 1, Joint Exhibit 1 (Stipulation)) In addition to the agreements with petitioner to operate citrus products shops, other contracts for such shops at the other service plazas are operated by licensees as a result of a competitive bid process. Similarly, all contracts for the sale of motor fuel at the various service plazas were awarded as the result of competitive bids. Respondent also has an existing license agreement with Florida Folder Distributing Company to operate an information leaflet rack at six of the seven service plazas where informational material promoting facilities and points of interest in the state are made available to the public. This agreement also was entered into after competitive bidding. The information racks are located in the lobby or corridor areas of the service plazas. (Testimony of Owen, Petitioner's Exhibits 5-8, Joint Exhibit 1(Stipulation)) Vending machines are operated by Gladieux at the various service plazas of the Turnpike. They include food and drink machines, machines that produce wax figures, and photograph machines. Most of the vending machines are located in the restaurant areas, but those at the Pompano and West Palm Beach plazas are placed in the "common areas" of the plazas. (Testimony of Chambliss, Owen, Petitioner's Exhibits 5-6, Respondent's Exhibits 2 g and h) In 1981, Section 340.091(1), Florida Statutes, was amended to permit the granting of concessions on the Turnpike for amusement machines which operate by the application of skill. Gladieux submitted a proposal to Respondent to install video game machines in appropriate areas under its lease. Respondent's General Counsel advised Mr. C. H. Owen, Deputy Director of Maintenance, in June, 1981, that Chapter 340, Florida Statutes, did not require competitive bidding for such a concession. Respondent's Turnpike engineer advised Owen, in November, 1981, that Gladieux's proposal to install and operate some 35 machines for a 12-month trial period at an acceptable rental fee should be accepted, and that the program should be evaluated at the expiration of the trial period. He further told Owen that if a satisfactory rental fee could not be negotiated at a satisfactory fee at the end of the one-year trial period, the operation should be offered for public bidding. Respondent and Gladieux thereafter on December 20, 1981, entered into an agreement whereby Respondent was granted the right to install and operate 35 amusement devices at individual locations to be designated by Respondent. The agreement was for one year and provided that Gladieux would pay Respondent 22.51 percent of the gross revenue from the operation of the devices, plus 4 percent tax. The agreement stated that the operation of the amusement devices was on an experimental basis and contained the statement that "Operator is currently lessee of the only space suitable for the installation of such devices and is prepared to cooperate with the department." Respondent's reason for negotiating with Gladieux was due to the fact that it "controlled" the vending machine and foyer areas under the lease, and that the video game machines were "vending" machines within the vending machine provisions of the lease. However, it was recognized that the lease provisions were originally intended only to apply to food and drink vending machines. Further, Respondent's General Counsel had opined prior to the 1981 amendment to Section 340.091(1) that a contract to install pinball machines or other electronic games on the Turnpike was specifically prohibited by that provision. Expert opinion testimony was received at the hearing that a video game machine is a "vending" machine because it is a coin-operated device that dispenses either goods or services. Although Respondent's officials were of the view that the provision of video machines was within the purview of the vending machine provisions of the lease, it entered into a separate agreement because it wanted a one-year trial period to determine the public's acceptance of the machines, and also to determine if they would be detrimental from the standpoint of congestion and noise level. Respondent preferred that the machines be located in the restaurant areas, where possible. This was a major reason for contracting with Gladieux because it controlled the restaurant areas under its lease. Another reason was that Gladieux operated the restaurants 24 hours each day and thus its personnel were always available to handle maintenance problems. (Testimony of Owen, Mizerski, Petitioner's Exhibits 11-12, Respondent's Exhibits 3-4, 8) Gladieux proceeded to place video machines pursuant to the agreement and with the approval of Respondent in the various service plazas along the Turnpike. Most were placed in the restaurant areas, but in several service plazas the machines were placed in the vending areas outside of the restaurants. (Testimony of Owen, Petitioner's Exhibits 5-6, Respondent's Exhibits 2 g and h, 9) Chambliss was aware in early 1981 that video games had been placed in several of the Turnpike service plazas, and later became aware that Respondent had a one-year experimental agreement with Gladieux. By letter of September 13, 1982, Chambliss requested that Respondent provide him the opportunity to contract for installing electronic game machines on the Turnpike. Respondent's Turnpike engineer informed him that a decision would be made in November, 1982, as to whether to eliminate or extend the current contract, but that he would be kept apprised as to the matter. Also, by letter of October 18, 1982, Gladieux requested that its agreement with Respondent be extended to the termination date of its existing restaurant lease in 1988, and pointed out that it had made a substantial investment of about $135,000 in providing the video machines and game rooms. Respondent thereafter determined that the experimental operation of video games had been successful, and advised Gladieux on November 19, 1982, that it would entertain a formal proposal to continue operation of the machines by an addendum agreement to its existing restaurant lease. (Testimony of Owen, Chambliss, Petitioner's Exhibits 1-2, 10, 13-15) Chambliss submitted a proposal to Respondent on November 29, 1982, to either compete with Gladieux for a contract to operate amusement devices at all service plazas, or to allow him to operate machines at the Pompano and Fort Pierce plazas where he held citrus shop licenses. On December 17, 1982, Respondent denied the request as being improper because of the provisions in the one-year agreement with Gladieux to extend the period for operation of machines if the one-year trial period proved successful, and also because the restaurant contract with Gladieux included all the areas in the service plazas except for citrus product shops and service stations. The letter informed Chambliss of his right to file a notice of protest within 72 hours. Chambliss proceeded to do so on December 22 and thereafter filed its petition for hearing. On December 29, 1982, Respondent and Gladieux entered into an extension to its one-year agreement to January 20, 1983, pending resolution of Chambliss' protest. However, negotiations with Gladieux are still in progress concerning the percentage of revenues to be paid by Gladieux under any subsequent amendment to its lease with regard to the video game operations. (Testimony of Owen, Chambliss, Petitioner's Exhibits 3-4, 16-20)
Recommendation It is recommended that Respondent deny the amended petition of Petitioners Florida Sunshine Parkway Citrus, Inc. and Joe A. Chambliss. DONE and ENTERED this 9th day of June, 1983, in Tallahassee, Florida. THOMAS C. OLDHAM 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 9th day of June, 1983. COPIES FURNISHED: Honorable Paul A. Pappas Secretary, Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Ronald C. LaFace, Esquire Jeffrey H. Abrams, Esquire 101 East College Avenue Post Office Drawer 1838 Tallahassee, Florida 32302 Mark Linsky, Esquire Legal Department Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Philip S. Blank, Esquire Suite 320 - Lewis State Bank Building Tallahassee, Florida 32301
Findings Of Fact The Respondent. The Respondent, Charles Polk, served as the President of Daytona Beach Community College from 1974 to 1990. [Stipulated Fact.] Mr. Polk resigned as President of Daytona Beach Community College in 1990. Mr. Polk's Purchase of Real Estate from Anargyros N. Xepapas. In November, 1985, Mr. Polk and his wife purchased a life estate and one-half interest in a condominium unit from Anargyros N. Xepapas. Mr. Xepapas owned the other one-half interest in the condominium unit. [Stipulated Fact.] The purchase price of the life estate and one-half interest in the condominium unit was $150,000.00. [Stipulated Fact.] The weight of the evidence failed to prove that this price was not the fair market value or that the transaction was not an arms-length transaction. Under the terms of the agreement, Mr. Polk and his wife were required to pay $30,000.00 immediately. They subsequently executed and delivered to Mr. Xepapas a note and mortgage for the remaining $120,000.00. [Stipulated Fact.] Mr. Polk was a mortgagor and Mr. Xepapas was a mortgagee. Under the terms of the agreement, Mr. Polk was required to pay maintenance fees of approximately $5,000.00 per year, taxes, insurance and all other expenses of the unit, which totaled approximately $14,000.00 per year. [Stipulated Fact.] Mr. Xepapas agreed to maintain the payments on the first mortgage. [Stipulated Fact.] Following the closing, Mr. Polk paid Mr. Xepapas an additional $60,000.00 on the mortgage, reducing the principal balance to $60,000.00. [Stipulated Fact.] A warranty deed was provided to Mr. Polk for the purchase of the property. [Stipulated Fact.] Neither the deed nor the mortgage were recorded. [Stipulated Fact.] Mr. Polk and his wife used the condominium as their residence. [Stipulated Fact.] Mr. Xepapas action in selling the condominium to Mr. Polk and his wife was a business transaction. Mr. Xepapas. Mr. Xepapas is an architect and developer who designs, builds, and sells property in the Daytona Beach area. [Stipulated Fact.] At the time Mr. Polk purchased the one-half interest in the condominium unit from Mr. Xepapas, Mr. Xepapas was the owner of the condominium building in which the unit was located. [Stipulated Fact.] In addition to being the owner of the condominium building at issue, Mr. Xepapas was the architect, developer and contractor for the condominium and for other condominium buildings in the areas. Mr. Xepapas was trying to sell the condominium units as part of his business because of cash-flow problems. [Stipulated Fact.] The condominium sales market was "soft" and Mr. Xepapas was trying to eliminate the carrying costs for unsold units. Mr. Xepapas sold a total of four condominium units pursuant to an arrangement similar to the arrangement by which he sold the condominium unit to Mr. Polk. Mr. Xepapas had made offers to sell one-half interests in condominium units to various other persons besides Mr. Polk. [Stipulated Fact.] Mr. Xepapas was a sole proprietor. He entered into his relationship with Mr. Polk in his capacity as a sole proprietor. Mr. Xepapas has known Mr. Polk for ten to fifteen years and considers himself a friend of Mr. Polk. [Stipulated Fact.] Mr. Xepapas' Business with Daytona Beach Community College. In 1987, the Board of Trustees of the Daytona Beach Community College decided to expand the College's educational facilities by obtaining a new center in the Deltona area. [Stipulated Fact.] In September, 1987, the Board of Trustees instructed staff to develop a request for proposal for the design and construction of the facility which would be leased to the College. [Stipulated Fact.] Mr. Polk was involved to some extent in the decision as to whether the new center should be purchased or constructed, and whether it should be acquired through a long-term lease/purchase agreement. In response to the advertisement of the request for proposal in September, 1988, Mr. Xepapas submitted a proposal. [Stipulated Fact.] There were a total of nine persons or businesses that responded to the request for proposal for the Deltona facility. Mr. Polk knew that Mr. Xepapas had picked up a bid proposal package and, therefore, believed that Mr. Xepapas would submit a proposal. Mr. Polk appointed the committee which reviewed the proposals. This committee ultimately narrowed the acceptable proposals to two, including Mr. Xepapas, and directed that those two proposers submit final proposals. In January, 1989, Mr. Xepapas, in his capacity as a sole proprietor, was the successful bidder on the contract; however, there is no evidence to indicate that Mr. Polk abused his position in order to ensure this result. [Stipulated Fact.] Mr. Xepapas and Mr. and Mrs. Polk were co-owners of the condominium prior to and at the time that Mr. Xepapas was awarded the Daytona Beach Community College contract. Ultimately, Mr. Xepapas was not able to fulfill his obligations under the contract with Daytona Beach Community College. Although the evidence failed to prove that Mr. Polk asserted any influence over the decision to award the contract to Mr. Xepapas, Mr. Polk was involved to some small degree in the award of the contract to Mr. Xepapas. The evidence failed to prove that Mr. Polk disclosed his co-ownership of the condominium with Mr. Xepapas to the Board of Trustees of the Daytona Beach Community College, that he refused to participate in any way in the bidding process or that he attempted to take the more drastic step of severing his relationship with Mr. Xepapas while the bidding process was going on. In May, 1989, Mr. and Mrs. Polk ultimately quit claim deeded the property to Mr. Xepapas. The evidence failed to prove why. They, therefore, lost their investment in the property. Mr. Polk also resigned as President of Daytona Beach Community College as a result of the allegations concerning his relationship with Mr. Xepapas.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics enter a Final Order and Public Report finding that the Respondent, Charles Polk, violated Section 112.313(7), Florida Statutes, as alleged in Complaint No. 89-80. It is further RECOMMENDED that Mr. Polk be subjected to public censure and reprimand. DONE and ENTERED this 13th 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 13th 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. The Advocate's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 3-11. 3 13. 4 14-16. 5 16 and 18. 6 4, 12 and 19-20. 7 Hereby accepted. 8 3, 21, 27-28 and 30. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-2. 2 13. 3 3, 11 and 14. 4 20. 5 16. 6 4 and 17-18. 7 5 and 8-9. 8 6-7. 9 21. 10 22. 11 24. 12 26 and hereby accepted. See 23, 27 and 30. 13 27 and 30. COPIES FURNISHED: Virlindia Doss Assistant Attorney General Department of Legal Affairs The Capitol, Suite 101 Tallahassee, Florida 32399-1050 David A. Monaco, Esquire Post Office Box 15200 Daytona Beach, Florida 32015 Bonnie J. Williams Executive Director Commission on Ethics The Capitol, Room 2105 Post Office Box 6 Tallahassee, Florida 32302-0006
Findings Of Fact Peter P. Sedler, at all times material to the complaint, has been licensed as a real estate broker, holding license 0079017. He was last licensed as a broker c/o Marshall & Sedler, Inc., 7771 St. Andrews, Lake Worth, Florida 33467. Marshall & Sedler, Inc., at all times relevant to the complaint, had been registered as a Florida real estate broker, holding license 0250511, its last licensed address was 7771 St. Andrews, Lake Worth, Florida 33467. Peter P. Sedler was the qualifying broker and officer for Marshall & Sedler, Inc. On about July 3, 1987, Tom Teixeira was employed as a salesman by Cartier Realty, of 11852 42nd Road North, Royal Palm Beach, Florida. Cartier Realty had solicited, through a direct mailing, listings for property in the Royal Palm Beach area. Ms. Mary Myers, an older woman of about 70 years of age, responded to the advertisement, and gave Mr. Teixeira an open listing for real property which she owned. While Mr. Teixeira placed a Cartier Realty "For Sale" sign on the property, the sign was somehow removed shortly thereafter, and no party dealing with Ms. Myers during the months of July, August and September of 1987 would have been placed on notice that Cartier Realty had any listing on the property. Mr. Sedler had nothing to do with the disappearance of the sign. Ms. Myers had originally acquired the property from her daughter. Long before Ms. Myers gave a listing to Cartier Realty, William Kemp and his wife Gina DiPace Kemp had told Ms. Myers that they were interested in purchasing the property, which is adjacent to the home of Mr. and Mrs. Kemp. When Mr. and Mrs. Kemp first contacted Ms. Myers, she had wanted to keep the property, in the belief that she might eventually convey it back to her daughter. Mr. Teixeira brought to Ms. Myers an offer from David R. and Maureen C. Rose to purchase the land for $11,900. Ms. Myers did not accept that offer, but the Roses accepted Ms. Myers' counteroffer on July 24, 1987, to sell it for $12,300. The sale was contingent upon the buyers obtaining financing; they applied for a loan, and ordered both an appraisal and a survey. The closing was to be held by September 1, 1987. (Contract, paragraph VI.) The closing date passed, without the buyers obtaining the necessary financing, so the contract was no longer effective. On about September 8, 1987, Mr. Teixeira attempted to contact Ms. Myers. He had obtained no written extension of the contract but hoped the sale might yet close. Ms. Myers told Teixeira that she was still willing to sell the property to Mr. and Mrs. Rose. In the meantime, Mr. and Mrs. Kemp became aware that Ms. Myers wanted to sell the property, because they noticed Mr. and Mrs. Rose coming to look at the land, and had engaged them in conversation. Ms. Kemp then contacted Ms. Myers to remind her that they were still willing to purchase the property, and also to say that they would offer more than the current offer on the property. On about September 11, 1987, Ms. Kemp contacted Cartier Realty to say that she also wished to make an offer on the Myers' lot. For a reason which was never adequately explained at the hearing, Teixeira, who should have been working on behalf of the seller, refused to take the offer, even though it was for a higher price. After this rebuff by Teixeira, Ms. Kemp contacted Marshall & Sedler, Inc., in order to try to find a broker who would convey their offer to Ms. Myers and spoke with Patricia Marshall, Ms. Marshall referred her to her partner, Peter Sedler. The Kemps told Sedler that Ms. Myers had told them that she had received a $9,000 offer on the lot. Why Ms. Myers told the Kemps that the Rose offer was $9,000 is not clear, for the actual offer had been $12,300, but Sedler did not know this. There was no listing of the lot in the local board of realtors multiple listing service book, and Mr. Sedler found the address of Ms. Myers through the public records. Mr. Sedler knew from his conversations with Ms. Kemp that Cartier Realty had some involvement with an offer on the property. He called Cartier Realty and tried to speak with the broker handling the matter. He spoke with a man named Tom, who he thought was a brother of the owner of Cartier Realty, Pete Cartier. Mr. Sedler actually talked with Tom Teixeira. Sedler believed he was dealt with rudely by Teixeira, who had hung up on him. Sedler then called Pete Cartier directly to find out whether there was an outstanding contract on the property, and Cartier told Sedler that he would call Sedler back. When Cartier called Sedler, Cartier warned Sedler that he should stay out of the deal. Mr. Sedler became suspicious about Cartier Realty's failure to bring a higher offer to the attention of the seller, and on September 16, 1987, filed a complaint against Tom Cartier with the Lake Worth Board of Realtors. Mr. Sedler then traveled to Pompano Beach to meet with Ms. Myers at her home, and brought with him a contract for sale and purchase of the property, already signed by the Kemps and dated September 14, 1987. While at the door, Ms. Myers asked Peter Sedler if he was "Tom." Ms. Myers knew that she had been dealing with a "Tom" at Cartier Realty, but all her dealings were on the phone, and she did not know what Tom Teixeira looked like. Sedler replied "Yes, but you can call me Pete." Sedler merely intended the comment as humor. At that time Sedler gave Ms. Myers his pink business card and specifically identified himself as Pete Sedler of Marshall & Sedler, Inc. Mr. Sedler asked Ms. Myers if she had any paperwork, such as the prior contract for the sale of the lot which had expired on September 1, 1987, but she did not. While Sedler was with Ms. Myers, she agreed to sell the property to the Kemps for $12,500 and signed the Kemp contract. The Kemps had put the purchase price of $12,500 into the Marshall & Sedler escrow account. Three days later, on September 18, 1987, Mr. Sedler, in the company of his wife Bonnie, presented a post-dated check to Ms. Myers in the amount of $11,020, the net amount due to Ms. Myers for the lot, based on the purchase price of $12,500. When they met this second time he introduced himself again as Pete Sedler and offered Ms. Myers his card for a second time. The post-dated check was conditioned by an endorsement making it good upon a determination that the title to the lot was good. A quit claim deed to Mr. and Mrs. Kemp was executed by Ms. Myers and witnessed by Bonnie Sedler. The post-dated check was given to Ms. Myers because she was about to leave on vacation. The check was given as a sort of security for good title, in return for the quit claim deed which closed the transaction. Mr. Sedler had structured the transaction in this way because he was concerned that someone at Cartier Realty might also attempt to purchase the property from Ms. Myers on behalf of one of their clients. At that time, Mr. Sedler held the reasonable belief that no other party had a subsisting contract to purchase the property from Ms. Myers. Sedler had no reason to believe the Roses would or could pay more for the property than the Kemps offered. Ms. Myers knew that Tom Teixeira from the Cartier realty firm represented a distinct business entity from Marshall & Sedler or Pete Sedler. After a title search showed that Ms. Myers had clear title to the property, the check which Mr. Sedler had given to Ms. Myers on September 18, 1987, with the restrictive endorsement was replaced. Later Mr. and Mrs. Rose tried to close their purchase, but found they could not. Ms. Myers had failed to inform them of the sale she made to the Kemps through Mr. Sedler. Mr. Teixeira, in retribution, filed an ethics complaint about Mr. Sedler with the West Palm Beach Board of Realtors.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Administrative Complaint against Peter P. Sedler and Marshall & Sedler, Inc., be dismissed. RECOMMENDED this 14th day of March, 1991, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 14th day of March, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-6183 Rulings on findings proposed by the Department: 1. Rejected as unnecessary. 2 and 3. Adopted in Finding 1. 4 - 6. Adopted in Finding 2. Adopted in Finding 3. Adopted in Finding 3. Implicit in Finding 5. Adopted in Finding 5. Adopted in Finding 5. Adopted in Finding 5. Adopted in Finding 5. Adopted in Finding 6. Implicit in Finding 6. This does not mean that the contract subsisted, however. Rejected. Ms. Myers was willing to sell the property to Mr. and Mrs. Rose after the contract expired, but she was not under any obligation to do so. Adopted in Finding 7. Rejected, because there was no pending contract. Teixeira never obtained a written extension of the closing date and Ms. Myers was free to sell elsewhere. Rejected. No one could have truthfully told Sedler there was a pending contract. None existed. Rejected, because Mr. Sedler had no reason to believe that there was a subsisting contract for the sale of the property; there was none. Admission number 20 is not to the contrary. Adopted in Findings 10 and 11. Rejected. See, Findings 9 and 10. Rejected as unpersuasive. Rejected as cumulative to Finding 9. Adopted in Finding 14. Adopted in Finding 11. Rejected as unnecessary. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Frank W. Weathers, Esquire Frank W. Weathers, P.A. Post Office Box 3967 Lantana, Florida 33465-3967 Darlene F. Keller, Division Director Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32801 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is whether Petitioner has proved that Respondent employed the requisite number of employees to establish jurisdiction in the Florida Commission of Human Relations over an alleged claim of employment discrimination against Respondent.
Findings Of Fact South Florida Business Ventures, Inc. (SFBV) was incorporated about ten years ago. For the past five years, SFBV has provided telemarketing services for "Ramada Plaza Resorts." These services provide substantially all of the revenue of SFBV. For this case, "Ramada Plaza Resorts" is SFBV. A corporation known as "Ramada Plaza Resorts Orlando/Ft. Lauderdale Vacations, Inc." (RPR, Inc.) is in the business of selling timeshare units. The tradename "Ramada Plaza Resorts" enjoys wider use and not merely by RPR, Inc. or the legal owner of the tradename, if different from RPR, Inc. However, for this case, "Ramada Plaza Resorts" does not refer to RPR, Inc., or the owner of the tradename. Petitioner earlier filed a charge of discrimination directly against SFBV, which the Commission has dismissed. Petitioner did not continue to prosecute that case after its dismissal, but has instead prosecuted this case against "Ramada Plaza Resorts." Regardless of the wisdom of abandoning the case against the proper legal entity and proceeding against a fictitious name, Petitioner's present claim, as a matter of fact, is against SFBV, doing business as "Ramada Plaza Resorts" or as sales agent of RPR, Inc. To avoid confusion, this Partial Recommended Order shall refer to Respondent simply as SFBV, and not as SFBV doing business as Ramada Plaza Resorts or as agent of RPR, Inc. During 2003 and 2004, RPR, Inc., entered into contracts with several telemarketers, not only SFBV. The role of SFBV was to sell to the public three- or five-night "vacations" to Orlando, Ft. Lauderdale, or Las Vegas--essentially providing potential timeshare purchasers to RPR, Inc., which would promote its timeshare units to the "vacationers" during their "vacations." At the end of each telemarketing call that resulted in a sale by SFBV, the telemarketers transferred the call to a call center operated in Ft. Lauderdale by RPR, Inc., where a person employed by RPR, Inc., confirmed the sale and the accuracy of the material representations made by the telemarketer. In June 2004, Petitioner saw a newspaper advertisement seeking a receptionist. The advertisement states in part: "Ramada Plaza Resorts Industry leader hiring . . .." Petitioner telephoned the number listed, which belonged to SFBV, and was given an interview at an office in Boynton Beach, which was the headquarters of SFBV. Nothing in the advertisement mentioned SFBV. The office building to which Petitioner was directed bore a sign, "Ramada Plaza Resorts." Entering the office, which bore no sign indicating that it was the office of SFBV, Petitioner asked for Kelly Mincey, as she had been instructed to do by the person with whom she had spoken on the telephone. SFBV employed Ms. Mincey as its administrator. Among her duties for SFBV was human relations, including the hiring of secretaries. Ms. Mincey has worked for SFBV for four years. During the interview, Ms. Mincey explained to Petitioner that the receptionist was required to answer telephone calls, perform data entry, and fax memos to the Ft. Lauderdale office. Specifically, Ms. Mincey directed Petitioner to answer the telephone, "Ramada Plaza Resorts. How may I direct your call?" In entering data, Petitioner inputted the identification number for each buyer. In faxing memos to Ft. Lauderdale, Petitioner's testimony did not establish whether these documents went to SFBV's Ft. Lauderdale office or RPR, Inc., whose main office was in Ft. Lauderdale. Ms. Mincey gave Petitioner an employment application. It was a form that did not bear the name of the employer. After examining the completed application and performing the job interview, Ms. Mincey offered the job to Petitioner, who accepted it and, shortly after the interview, began working at the Boynton Beach office of SFBV. SFBV employed Petitioner. SFBV issued her payroll checks, which bore the name of SFBV. Petitioner's W-2 form bore the name of SFBV as her employer. Any claim of Petitioner that she was employed by some other entity alone or in conjunction with SFBV is unsupported by the evidence. The evidence supports the subordinate finding of a sales agency relationship between SFBV and RPR, Inc., so as to support the ultimate finding that "Ramada Plaza Resorts," as used in this case to identify Respondent, means SFBV. However, the evidence is not sufficient to find an employment agency relationship for the purpose of finding that Respondent was employed by RPR, Inc., or the owner of the tradename, or co-employed by RPR, Inc., or the owner of the tradename. In any event, such evidence would be irrelevant anyway because of the absence of evidence as to the number of employees, during 2003 or 2004, of RPR, Inc., or the owner of the tradename. At various times, SFBV operated offices in Boynton Beach, Delray Beach, West Palm Beach, and Ft. Lauderdale. The Ft. Lauderdale office, which was actually in Oakland Park, was open from September through December 2004. SFBV concedes that it employed Warren Izard as president, Kirk Izard as vice-president, Gabriel Izard as an operations employee, Ms. Mincey, and eight receptionists at the four offices operated during 2004. SFBV thus employed these 12 employees in 2004. The jurisdictional dispute centers around the proper classification of two other categories of workers: the persons making the telephone calls and their sales managers. SFBV contends that these persons were independent contractors of SFBV, and Petitioner contends that they were employees of SFBV. A third classification of worker--general manager was restricted to one person, Enrico Merada, so, even if he had been an employee, the total number of employees would still have been less than the jurisdictionally required 15--thus, his status is irrelevant. During 2003 and 2004, 25-100 telemarketers worked at SFBV offices at any given time. However, it is unnecessary to determine whether the telemarketers were employees of SFBV. SFBV employed more than two sales managers during 2004 so that, if they were determined to have been employees, the jurisdictional prerequisite of 15 employees over 20 calendar weeks would have been satisfied. The evidentiary basis for characterizing the sales managers as employees is largely undisputed while the evidentiary basis for characterizing the telemarketers as employees would require discrediting the testimony of SFBV's witnesses, who claimed that the telemarketers were not required to work specific shifts. Two sales managers worked at each of the four offices during 2004. At times during 2004, a total of eight sales managers worked at SFBV's offices. There was little turnover among sales managers. Mr. Merada supervised these sales managers, who, in turn, supervised the telemarketers. Interestingly, Ms. Mincey twice characterized the sales managers as employees of SBFV, distinguishing them from the telemarketers, whom she described as independent contractors. SFBV employed the sales managers and receptionists in pairs because it needed one person in each position at each office for each of the two shifts that it ran daily: a day shift and a night shift. SFBV strictly controlled the work of the sales managers, evidently in an effort to avoid misrepresentations by the telemarketers to purchasers. As required by SFBV, sales managers provided scripts to telemarketers, who were required to stick to the scripts and prohibited from certain acts, such as uttering profanities. As required by SFBV, sales managers provided telemarketers with rebuttals for certain responses from potential buyers and guidelines for what could be said. As required by SFBV, sales managers informed telemarketers that they could make no personal calls and could not sell for other companies while telemarketing for SFBV. To ensure that telemarketers complied with these rules, as required by SFBV, sales managers randomly listened in on calls made by telemarketers. As required by SFBV, sales managers helped telemarketers with the paperwork following sales and sometimes telemarketed directly to potential buyers. SFBV paid the sales managers weekly with SFBV checks and required that they perform their job duties, which included hiring and firing telemarketers, at the SFBV office to which they were assigned and during the shift to which they were assigned. SFBV paid the sales managers based on total sales, so that each sales manager made the same amount during the same pay period, provided they were scheduled for, and actually worked, the same number of shifts. Even if SFBV had operated only three offices, thus with six receptionists and six sales managers, SFBV would have employed 16 employees, if the sales managers were employees. Although at times SFBV may have had only one sales manager at an office, the evidence is clear that, during substantial parts of 2004, including at least 20 weeks, SFBV employed at least six sales managers and six receptionists, and, for the last 17 weeks of 2004, it employed eight sales managers and eight receptionists. In its proposed recommended order, SFBV states: "SFBV sometimes will monitor a Direct Seller's selling pitch " This statement implies an employer-employee relationship between SFBV and the person monitoring the calls of telemarketers, and these employee-monitors were the sales managers. A few lines later, SFBV baldly asserts that sales managers were also "Direct Sellers, not employees." But the contrasts that SFBV draws between sales managers and telemarketers suggest otherwise. Accepting strictly for the sake of discussion SFBV's characterization of its telemarketers, they were not required to work specific shifts, but sales managers had specific shifts for which they had to be in the office to monitor the calls of, and help, the telemarketers. Telemarketers were paid strictly on the basis of what they sold, but sales managers were paid on the basis of the sales during the shifts that they worked. This means that the compensation of sales managers was tied directly to the time that they were in the office working, as opposed to the compensation of the telemarketers, whose pay was not so time- dependent. The effect of this difference is obvious upon consideration that the sales managers were paid equally, if they worked an equal number of shifts, but the telemarketers were paid based on sales, not at all on the amount of time they spend working. Also, there was much churning of telemarketers, unlike the situation with sales managers. And the sales managers had a stricter dress code than did the telemarketers. For both sales managers and telemarketers, SFBV supplied the telephone and office equipment, including computers to automatically dial prospective purchasers. All of this equipment was necessary for the work to be performed. For both sales managers and telemarketers, SFBV provided the names and telephone numbers of potential buyers to be called--also crucially important to the success of the telemarketing effort. The only thing that some telemarketers routinely provided were telephone headsets, which were not necessary to perform their duties. In general, SFBV did not provide fringe benefits to sales managers. But the telemarketing work that they supervised and occasionally performed provided substantially all of the revenue of SFBV. Also, SFBV tightly governed the means by which the sales managers performed their duties. SFBV structured its contract and withholding and reporting practices so as to maximize its prospects for regulatory characterizations of its relationships with telemarketers and sales managers as those of employer and independent contractor, not employer and employee. However, at least as to the sales managers in the context of the jurisdictional requirements of the Act, these practices did not reflect the economic realities of the employer-employee relationship that actually existed between SFBV and its sales managers.
Conclusions For Petitioner: John de Leon Law Offices of Chavez & de Leon, P.A. 5975 Sunset Drive, No. 605 South Miami, Florida 33143 For Respondent: Richard W. Epstein Myrna L. Maysonet Greenspoon Marder, P.A. 201 East Pine Street, Suite 500 Orlando, Florida 32801
Recommendation RECOMMENDED that the Florida Commission on Human Relations enter a Partial Final Order determining that it has jurisdiction over the claims of Petitioner against South Florida Business Ventures, Inc., doing business as Ramada Plaza Resorts or as sales agent of Ramada Plaza Resorts Orlando/Ft. Lauderdale Vacations, Inc., and take such additional action on the claims as is required by law. DONE AND ENTERED this 11th day of August, 2006, in Tallahassee, Leon County, Florida. S 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 11th day of August, 2006. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 John de Leon Law Offices of Chavez & de Leon, P.A. 5975 Sunset Drive, No.605 South Miami, Florida 33143 Richard W. Epstein Myrna L. Maysonet Greenspoon Marder, P.A. 201 East Pine Street, Suite 500 Orlando, Florida 32801
