Findings Of Fact Respondents hold license 23-3237 COP and at all times here relevant were so licensed. On 7 November, 1977, Respondent, Juan Rodriguez, sold less than five grams of marijuana to Rocco Delio, an undercover policeman, on the licensed premises. Delio paid Rodriguez $11 for the marijuana and two beers. When arrested in December 1977 on a warrant charging him with the sale of marijuana, Rodriguez had an old lottery ticket in his possession as well as a list of numbers which the arresting officers thought to be lottery numbers. Rodriguez testified that the lottery ticket was an old one he bad obtained in Puerto Rico and that he had forgotten the ticket was in his wallet. He further identified the list of numbers as measurements he had taken for a building. Rodriguez denied ever selling any lottery tickets. At his trial on the charge of possession and sale of marijuana and possession of lottery paraphernalia Rodriguez pleaded guilty, upon the advice of counsel, to unlawful sale of marijuana, and adjudication of guilt was withheld. (Exhibit 1). Rodriguez testified that he paid a $300 fine and was told by his attorney that the plea and subsequent withholding adjudication of guilt would not affect his business. At this hearing Rodriguez denied selling marijuana to the policeman who had testified to the contrary. The Petitioner's witness is deemed a much more credible witness and it was this testimony, plus the guilty plea entered in Circuit Court that resulted in the finding that Respondent possessed and sold marijuana on the licensed premises. No evidence was submitted with respect to Counts 3, 4 and 7 of the Notice to Show Cause. The admissions of Respondent with respect to the facts alleged in Counts 5 and 6 were rebutted by Respondent's testimony, which was not contradicted by Petitioner's witness, that the lottery ticket was old and that the list of numbers found on Rodriguez' person was not a list of lottery numbers.
The Issue The issues are whether Respondent issued a voucher ticket without obtaining cash or cash equivalent in exchange, in violation of Florida Administrative Code Rule 61D-7.020(5)(b); had adjudication withheld on felony charges involving larceny, in violation of section 849.086(6)(g), Florida Statutes (2014); or was ejected from Gulfstream Park, in violation of section 550.0251(6), Florida Statutes, as alleged in the Second Amended Administrative Complaint; and if so, what is the appropriate sanction.1/
Findings Of Fact The Division is the state agency charged with regulating pari-mutuel wagering and cardrooms in the state of Florida, pursuant to chapter 550 and section 849.086. On April 27, 2014, Mr. Havey was licensed by the Division and was working at Silks mutuels window number 607 at Gulfstream Park, a facility authorized to conduct pari-mutuel wagering and cardroom operations. At the end of the day on April 27, 2014, Mr. Havey's cash drawer did not balance. After a review of surveillance tapes and other information, Mr. Jorge Aparicio, a security director with Gulfstream Park, decided to investigate further. On May 2, 2014, when Mr. Havey returned to work, he was interviewed by Mr. Aparicio about the missing money. Mr. Havey initially stated that he accidently printed out a voucher for $5,000.00 for his friend Darren, when he had intended to punch the voucher for only $500.00. He said that Darren was supposed to give him the money at the end of the day. Later, Mr. Havey stated he really printed out the voucher for $5,000.00, placed it in his right shirt pocket, and gave the voucher to his friend Eddy inside the men's restroom for his friend to cash. Later that day, Mr. Havey prepared a written statement regarding the money missing from his cash drawer. He wrote: My friend Eddy needed 500. loan because I told he was being thriten. I offer to help Eddy by giving him 500 vocher. Eddy told me he would pay me back in a week. Eddy didn't want to come to my window #607. Eddy asked me to meet in the bathroom. I punched a $500 vocher I thought but it ended being a $5000. vocher. I gave him the vocher & never saw Eddy again. I planded on browing the five hundred from my friend to put $500. back in my money so I would balance, but[.] Mr. Aparicio testified that Mr. Havey could not give a last name or address for his friend and noted that the name of the friend given by Mr. Havey changed during the course of the interview. After the interview, Mr. Aparicio called the president of Gulfstream Park and described what had taken place. He was directed to call the police and to exclude Mr. Havey from the property indefinitely. As reflected in the Security Report, Mr. Havey was "excluded indefinitely" from Gulfstream Park on May 2, 2014. This action did not necessarily bar Mr. Havey from the park permanently, for the president could allow him to return, but he was excluded unless and until the president took further action. This "indefinite" exclusion constituted an ejection from Gulfstream Park. When Mr. Havey left the investigation room, the Hallandale Beach Police were there. Mr. Havey testified that they did not ask him a single question, but immediately placed him under arrest and handcuffed him. On August 21, 2014, Mr. Havey entered a plea of nolo contendere to a charge of grand theft in the third degree in the Seventeenth Judicial Circuit Court, in and for Broward County, Florida. Adjudication was withheld. He was placed on 24 months' probation, with the condition that he pay Gulfstream Park $4,500.00 in restitution within 18 months. At hearing, Mr. Havey admitted he issued a voucher ticket without receiving cash or cash equivalent in return. He also testified that he pled no contest with the understanding that if he paid $4,500.00 restitution to Gulfstream Park, the charges would be "disposed of," and his record would be clear. Clear and convincing evidence shows that on April 27, 2014, Mr. Havey issued a voucher ticket without receiving cash or cash equivalent in return; that he was ejected from Gulfstream Park on May 2, 2014; and that he pled nolo contendere to grand theft in the third degree on August 21, 2014, with adjudication withheld. Mr. Havey testified that he has been involved in pari- mutuel wagering in various parks, in dog racing, and Jai Alai for 40 years. He stated that the incident was "out of his character," that it was drug and alcohol related, and that he was not thinking clearly. He testified that he could barely remember what had happened on that "dark day" in his life. He said that he sought treatment and is now on the way to full recovery. Mr. Havey expressed remorse for his actions. Mr. Havey testified that he is now working part time at Mardi Gras Casino in Hallandale. He has performed well and has not been in any trouble there. He noted, however, that he is only making $10.00 per hour, rather than the $25.00 per hour he was making at Gulfstream Park. He lamented that it is extremely difficult to "keep a roof over your head" on only $250.00 a week and that he needed to work for a few more years. He stated that his wife should shortly be receiving money for a disability claim and that when she did so, he would pay Gulfstream Park full restitution. He testified that he hoped that the president of Gulfstream would then let him return. No evidence of prior discipline was introduced.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, enter a final order: (1) finding that Mr. Patrick M. Havey was in violation of Florida Administrative Code Rule 61D-7.020(5)(b), was ejected from a pari-mutuel facility, and had adjudication withheld on a felony involving larceny; and (2) revoking his pari-mutuel occupational license. DONE AND ENTERED this 17th day of May, 2016, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 17th day of May, 2016.
Findings Of Fact The WCHS maintains one checking account. The bookkeeping for the checking account is segregated into a General Account and multiple Internal Accounts. The Internal Accounts represent various interest centers at the school, e.g., athletics, welding class, auto repair, small engine repair and senior class. Each Internal Account and the General Account have separate ledger cards. The General Account is used to receive miscellaneous income such as coke machine receipts or employee reimbursements for long distance calls and to pay non-specific expenses. The Internal Accounts are used to purchase supplies for particular activities and to receive ticket proceeds, monies raised and reimbursements for parts and materials used in repair of the equipment. The bookkeeping is done by the sole bookkeeper, Mrs. Madelyn Crowson, who has been so employed for more than 15 years. Original documentation for receipt of funds includes a receipt, a deposit and a receipts journal. Original documentation for issuance of funds includes a purchase order, a check requisition with supporting documentation attached and checks. Cash on hand is kept in a safe which is normally opened between 8:15 and 5:30 a.m. by Crowson, left "latched" but not locked until late in the day. The Principal is required to prepare a Monthly Report of Internal Accounts from the Internal Account ledger cards and to certify such to the Superintendent. The WCHS is audited annually by external auditors for the WCSB. The WCHS has a Vocational Department which includes an Auto Repair Class, a Small Engine Repair Class and a Welding Class, among others. The Chairman of the department for the 1981-82 school year was Mrs. Helen Whaley, wife of Superintendent Whaley. The Auto Repair, Small Engine Repair and Welding classes all teach by having community members and students bring items which require the attention of the class (cars or small engines needing repair, or items to be welded, etc.), and the items are repaired. Vocational classes such as those noted all charge a shop fee to recover the cost of expendable items. Whether WCHS through an Internal Account acquired the parts necessary for the repair and was later reimbursed by the customer, or whether the customer brought the parts to the shop is subject to the wishes of the individual teacher and the customer. However, both methods were utilized. The financial management of the Athletic Department was the responsibility of the Athletic Director through the Athletic Fund Internal Account. For several years the Assistant Principal served as the Athletic Director. Don Mathews, a guidance counselor, was the Athletic Director for the 1981-82 school year. Income to the athletic account was derived primarily from the sale of tickets to athletic events. Tickets were acquired and controlled by the Athletic Director in rolls of 2,000, with unused tickets being maintained in an unlocked cabinet in a room also used to store the cheerleaders' equipment. Reports of tickets sold were made on a Department of Education (DOE) approved form and the funds received were noted on the DOE form, signed by Mathews and receipted by Crowson to the Athletic Fund Internal Account. Each of the Reports of Tickets Sold or Admissions contained signatures certifying that the information was true and accurate and that the persons depositing the funds were depositing all funds received. At the beginning of the 1981-82 school year, Pelham appointed Mathews to be Athletic Director and advised him that he would be in charge of the funds from athletic ticket sales. He also informed Mathews how ticket sales and funds had been handled in previous years. The normal procedure for football ticket sales was as follows: (1) Mathews would acquire $600.00 for change, divide the change into 3 metal cash boxes and put an adult and student roll of tickets with each box; (2) Mathews would give each of three ticket sellers a box of 2 rolls of tickets at the beginning of the game, collect each box and rolls of tickets at intervals throughout the game, put away the equipment for each gate and deliver the metal boxes to Pelham, who would lock them in the driver's education car trunk until the game was over; (3) Pelham, who was the only person attending the game with both a key to the school office and the combination to the safe, would transfer the contents of the three boxes to one box and lock it in the safe; and (4) on the following Monday morning, Crowson and Mathews would count the money, compare the money to the number of tickets removed from each roll, complete the Report of Tickets Sold or Admissions, and make the deposit. The regular season home games for WCHS were: Blountstown - September 18, 1981 Jefferson County - October 2, 1981 F.A.M.U. - October 9, 1981 Rickards - October 23, 1981 Port St. Joe - November 13, 1981 There were two play-off games played at WCHS following the regular season against Jefferson County and Bolles High School. Because the play-off games are sponsored by the Florida High School Athletics Association, the home team principal is required to be in charge of those ticket sales. Mathews was in charge of ticket sales for the regular season. During the Blountstown, Jefferson County and F.A.M.U. games, the ticket sale proceeds were not counted before Monday morning. In each game the number of tickets missing from the rolls when multiplied by the ticket price did not equal the funds reported on Monday morning. In each game Mathews and Crowson "doctored" the Report of Tickets Sold and Admissions to reflect no discrepancies. Pelham had previously instructed Mathews and Crowson to adjust these reports for the purpose of eliminating minor discrepancies. Neither Mathews nor Crowson advised Pelham of these discrepancies which they adjusted. During the Rickards game, a cash count was performed by the ticket sellers but checks were cashed and funds were intermingled sufficiently to question the accuracy of the count on either Friday night or Monday morning. During the Port St. Joe game, a cash count was conducted, but following the cash count and before the funds were recounted, several persons had access to the funds and all of the ticket sellers had made errors in their counts. Major errors in arithmetic were committed on several occasions by persons counting the money after the games. Therefore, it could not be determined with any degree of certainty that the final counts reflected missing dollars or merely corrections of earlier errors. There were a substantial number of tickets for which there was no accounting. Because of the deficiencies in ticket accounting, it cannot be determined whether there was, in fact, any money missing. None of the Reports of Tickets Sold or Admissions certified by Mathews to be accurate reflect money or tickets missing except for the report on the Port St. Joe game. However, if there was money missing from this game, the evidence is insufficient to determine if it was stolen, and if so, by whom. Pelham brought his lawn/garden tractor to the Small Engine Repair Class during the Spring of 1980 for repair by the class. This tractor is a Sears product and has an Onan engine. In the fall of 1981 the shop teacher provided Pelham with a list of the parts necessary for repair. The parts were provided and installed on the tractor by late January of 1982. However, no battery was available to start and test the equipment. The tractor was removed from WCHS in March or April of 1982 without completion of the repairs. A check requisition and check for $65.71 drawn on WCHS to Sears Roebuck & Co., a copy of a check requisition and a check in the amount of $16.62 drawn on WCHS to Whitehill Equipment Co., and a check requisition for $293.00 to Whitehill Equipment Co. were introduced. However, no positive connection was made between these documents and the associated invoices and parts to be received by Pelham or used for his benefit. In October, 1981, a check requisition and check for $27.85 drawn on WCHS were issued to Whitehill Equipment Co. by Pelham for Onan parts (Petitioner's Exhibit 10, A, B, & C). These parts were picked up at Whitehill and signed for by J. D. Jones, WCHS football coach, at Pelham's request and were delivered to him. Here, Petitioner's documentary evidence and Jones' testimony, which were unrebutted, established that Pelham utilized school funds, which he did not replace, to obtain supplies for his personal use or benefit. In December, 1980, a check requisition and check for $113.31 drawn on WCHS were issued to U.S. Games, Inc. by Pelham for a tennis net (Petitioner's Exhibits 9, A). This tennis net was procured for Pelham's personal use with school funds. Respondent did not make reimbursement of these funds, but offered to do so when presented with the Statement of Charges in February, 1982.
Recommendation From the foregoing, it is RECOMMENDED that Respondent be found guilty of charges set forth in paragraphs 9(1) and 9(4) of the Statement of Charges, and that he be dismissed from his position as teacher under continuing contract with the Wakulla County District School Board. It is further, RECOMMENDED that Respondent be suspended with pay, including back pay from the date of suspension without pay, pending issuance of a Final Order by the Wakulla County School Board. DONE and ENTERED this 13th day of August, 1982, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 1982.
Findings Of Fact Upon consideration of the evidence adduced at the hearing, the following relevant findings of fact are made: Petitioner, Division of Pari-Mutuel Wagering is the state agency charged with the administration and enforcement of the pari-mutuel wagering laws of the state of Florida. Respondent, Ronald F. Kilbride, is an individual who frequents pari- mutuel facilities in the state of Florida for the purpose of wagering. On September 26, 1992, the Respondent was present at the Sarasota Kennel Club and placed several bets on races to be run at the Calder Race Track. On that same day, Respondent placed several bets on races to be run at the Sarasota Kennel Club. On September 26, 1992, at approximately 2:45 p.m., a pari-mutuel wagering ticket, number 42 BOB C22A82A4 (the Ticket), was purchased at Sarasota Kennel Club for a wager on a horse race (race number 5) being run at Calder Race Track. The Ticket was a winning ticket for that race. At approximately 2:55 p.m. on September 26, 1992, Respondent presented what he claimed to be the Ticket, to James Ollie, Mutuel Clerk, Sarasota Kennel Club, at window number 6414 for payment. Ollie accepted the ticket presented by Respondent for payment but did not pay or explain to Respondent why he was not paying for the ticket. After a period of time had elapsed without receiving payment, the Respondent became agitated and asked for, and received, the ticket back from Ollie. There is no evidence that the ticket handed to Ollie by the Respondent at that time was in two pieces or taped together or altered in any fashion. Subsequent to his attempt to cash what Respondent claimed to be the Ticket, Respondent wrote a letter, dated September 27, 1992, to Patrick Mahony, Vice President Mutuels, for Calder Race Course, Inc., enclosing what Respondent claimed to be the Ticket and explaining the circumstances surrounding the attempt to cash that ticket. Before enclosing the ticket referred to in Finding of Fact 7 in the letter mailed to Mahony, Respondent made a copy of the letter and imposed a copy of the ticket mailed to Mahony on the bottom left hand corner of the copy of the letter (Respondent's exhibit 1). The copy of Respondent's exhibit 1 was furnished to John Foley, Investigator, Bureau of Investigation, Division of Pari-Mutuel Wagering, at the time the original letter was mailed to Mahony. The copy of the ticket shown on Respondent's exhibit 1 is a copy of the ticket mailed to Mahony by Respondent by letter dated September 27, 1992. The envelope containing the letter and the two ticket parts indicated that Mahony received the envelope in a damaged condition. Mahony's letter of October 6, 1992 advised Respondent that the ticket was received in two sections which were taped together by an employee of Calder Race Course, Inc. who handled mailed out tickets. After taping the two pieces of the ticket together and attempting to process the taped together ticket, it was discovered by an employee of the mutuel department at Calder Race Course, Inc. that the records indicated the ticket had previously been cashed at Sarasota Kennel Club. The taped together ticket was returned to Respondent. The Respondent made a complaint to the Division concerning his treatment at the Sarasota Kennel Club. As a result of that complaint, the Division commenced an investigation. As a result of that investigation, the ticket that Respondent had received back from Mahony (Petitioner's exhibit 3) was taken as evidence in the investigation. The Florida Department of Law Enforcement (FDLE) was requested by the Division to assist in the investigation by reviewing the ticket to determine if it had been altered, other than it being cut and taped back together. In comparing Petitioner's exhibit 3 with other Autotote tickets, FDLE found that the horizontal bars on the back side of Petitioner's exhibit 3 that had been cut were shorter than the horizontal bars in the same position on other Autotote tickets that had not been cut. It was the testimony of the FDLE expert that cutting a similar Autotote ticket across the horizontal bars in the same place and taping the two pieces back together would not affect the length of horizontal bars that had been cut. It is clear from the unrebutted testimony of the FDLE expert that Petitioner's exhibit 3 had been altered by cutting two Autotote tickets in a similar fashion and taping the opposite pieces of the two cut Autotote tickets together. The copy of the ticket shown on Respondent's exhibit 1 is a copy of a whole Autotote ticket that has not been cut in that there is no line indicating that the ticket has been cut and taped back together before copying or copied as two pieces not taped together. A line indicating where the ticket parts are taped to together is evident on Petitioner's exhibit 3 and the blowup of that same ticket by FDLE (Petitioner's exhibit 8). There are a series of vertical bars under the words AUTOTOTE at the top of each ticket and at the bottom of each ticket which are printed on the ticket at the time of purchase. In comparing the copy of the ticket shown in Respondent's exhibit 1 with the ticket identified as Petitioner's exhibit 3 and the blown up copy of that ticket identified as Petitioner's exhibit 8, the vertical bars at the bottom of each of the above-referenced exhibits appear to be identical. The vertical bars at the top of each of the above-referenced exhibits under the words Autotote appear to be identical starting at the top right hand side and moving left to the vertical bar under the letter "E" in the word Autotote on top left hand side. However, there are two vertical bars on the top left hand side under the letters "O" and "T" in the word AUTOTOTE on the top left hand side of the copy of the ticket shown on Respondent's exhibit 1 that do not appear on either the ticket mailed back to Respondent by Mahony (Petitioner exhibit 3) or the blowup of that ticket (Petitioner's exhibit 8). Other than the two vertical bars referred to in Finding of Fact 16, the information printed on the ticket shown on Respondent's exhibit 1 is the same as printed on the front side of the ticket returned to Respondent by Mahony and identified as Petitioner's exhibit 3 and the blow up of the front side of Petitioner's exhibit 3 identified as Petitioner's exhibit 8. Comparing the copy of the ticket shown on Respondent's exhibit 1 with the ticket identified as Petitioner's exhibit 3, it is clear that if the Respondent had somehow come into possession of the Ticket and cut off the left hand portion of the Ticket as shown in Petitioner's exhibit 3 and replaced it with a similar cut off portion from another ticket that had not been cashed, then the two vertical bars would still appear on the ticket identified as Petitioner's exhibit 3. A one page computer printout allegedly generated by the Autotote Hub entitled "Content of: Daily Ticket Cashed File" for September 26, 1992 list the Ticket as being sold at Window 6410 by Teller 5774 at a cost of $150.00 with a dividend value of $3425.00. This document does not list the window number at which the Ticket was cashed or the teller cashing the Ticket or the time the Ticket was cashed. There was no witness from Autotote to testify as to the significance of this computer printout. However, Mr. Snyder testified that the Ticket was cashed by James Ollie, Mutuel Clerk, at Window 6414, on September 26, 1992, but there was no evidence as to the time of day the Ticket was cashed. Mr. Ollie testified that the Ticket was presented to Ollie for cashing by a Mr. Dean who was referred to as "Santa Claus", for the obvious reasons of giving gifts to individuals, including employees of the track. Mr. Ollie also testified that he misplaced the Ticket after it was cashed and that he was suspended for a period of time by the Sarasota Kennel Club for carelessness. When a winning ticket is cashed by a teller or mutuel clerk the number of the window where the ticket is cashed and the amount won by the ticket holder is stamped on the blank space on the far left hand side of the ticket (the blank area to the left of information printed on the ticket at the time of purchase). This is referred to as a brand which signifies that the ticket has been cashed. After a ticket is cashed it is required that the track keep the ticket on file for, among other things, accounting purposes to the state of Florida and Internal Revenue Service. There is competent substantial evidence in the record to establish facts to show that the ticket Respondent received back form Mahony had been altered. Likewise, there is competent substantial evidence in the record to establish facts to show that the ticket Respondent mailed to Mahony was not altered at the time Respondent mailed the ticket to Mahony. The Respondent did not communicate with Thomas Hughes on September 27, 1992 by telephone or any other mode of communication at any time relevant to this proceeding for the purpose of discussing how to alter a ticket that had already been cashed and branded so that the ticket could be cashed again and did not verbally, or in any other manner, threaten Hughes with bodily harm for disclosing the alleged conversation, notwithstanding the testimony of Hughes and Shirley Griffon to the contrary. Such testimony lacks credibility. The Respondent did not verbally, or in any other manner, threaten James Ollie with bodily harm at any time relevant to this proceeding, notwithstanding the testimony of Shirley Griffon, Dwight Holloman and James Ollie and the Report of Private Ejection to the contrary. Such evidence lacks credibility. The Respondent may have been loud at times and his manner considered offensive by some of the employees at Sarasota Kennel Club. However, the Division has failed to present competent substantial evidence to establish facts to show that Respondent verbally, or in any other manner, threatened any employee of the Sarasota Kennel Club with bodily harm at any time relevant to this proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner enter a final order dismissing or rescinding Petitioner's Order of Patron Exclusion and Notice of Right to Hearing filed against the Respondent. RECOMMENDED this 15th day of October, 1993, at Tallahassee, Florida. WILLIAM R. CAVE 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 15th day of October, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1403 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the Petitioner in this case. Petitioner's Proposed Findings of Fact. The following proposed finding of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Findings of Fact which so adopts the proposed finding(s) of fact: 1(1); 2(4, except date is September 26, 1992 not 1993); 3(22-24); 4(7-9,15); 5-11(10,11,11,11,12,12,and 25, respectively) Proposed finding of fact 12-15 are not supported by competent substantial evidence in the record, but see Findings of Fact 29 - 31. Proposed finding of fact 16 and 17 are more argument than Findings of Fact. Proposed finding of fact 18 - 20 are rules and statutes and are more appropriately placed in the conclusions of law. Respondent's Proposed Findings of Fact. Respondent elected not to submit any proposed findings of fact. COPIES FURNISHED: Joseph M. Helton, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ronald F. Kilbride, pro se 5681 Westwind Lane Sarasota, Florida 34231 Jack McRay, Esquire Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William E. Tabor, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Petitioner, Carolyn A. Winston, alleges that Respondent, Department of the Lottery, has discriminated against her on account of her race in violation of Section 760.10, F.S. The issue for resolution is whether the violation occurred, and if so, what relief is appropriate.
Findings Of Fact Carolyn A. Winston, a black female, commenced her employment with the Florida Department of Lottery, a newly-created agency, on November 2, 1987. An active participant in Republican and minority organizations, Mrs. Winston was recruited by the agency after she submitted her resume for employment with the Martinez administration to Jeannie Austin, Chairperson of the Florida Republican Party. At the time that she was recruited, Ms. Winston was employed by AT&T and had approximately 9 1/2 years experience with AT&T as a manager/systems analyst. She had a BA degree in business administration/marketing from Rollins College in Winter Park, Florida. After an interview in Tallahassee, Carolyn Winston was hired by Michele Hayes, Director of Sales and Marketing, to be the Regional Manager for the Orlando Regional Office of the Lottery. Her salary, $41,300.00, was the maximum for the class. During the summer and fall of 1987, the Lottery was in the process of hiring approximately 700 employees. January 12, 1988 was targeted as the first date of sale of tickets and all sales staff were to be hired by November 16, 1987. Ms. Winston and the five other regional managers from offices in Orlando, Tallahassee, Jacksonville, St. Petersburg, Ft. Lauderdale, and Miami, reported directly to regional coordinators in the agency's Tallahassee headquarters. The general duties of the regional managers were to plan, organize and direct the sales activity of regional sales staff and district managers; to implement and interpret agency policies and procedures; and to protect the integrity of the Lottery. Two district managers reported to Carolyn Winston: Deborah Burkett (Orlando District) and Mike Steiber (Melbourne District). They had been hired prior to Ms. Winston and were engaged in hiring their sales staff in early November. In other regions, where district managers were not in place, the regional manager hired sales staff until the district managers could take over. There was no formal training established for regional or district managers when Ms. Winston was hired. She reported to work on her first day, November 2, 1987, in Tallahassee, where she met Dick Lepanen, the Regional Manager for Tallahassee, and Pam Allen, Regional Coordinator. She was given a limited briefing on her duties and a handbook describing the Lottery history and organization. Formal training for all regional and district managers, including Ms. Winston, was conducted in a three-day session in Tallahassee in November 10, 11 and 12, and again on November 30, 1987. The managers were given notebooks containing operational information and guidelines for performance of their duties. Ms. Winston was concerned about hiring qualified minorities for new positions with the Lottery and was able to assist her district directors, through the organizations with which she was connected, to locate applicants. In at least one instance Mike Steiber hired such an applicant after contacting Ms. Winston with his difficulty in recruiting through the local job services office. At the hearing Ms. Winston expressed pride at having the most qualified Lottery employees and more minorities than any other region. Despite the urgent need to train new employees and to meet the start up deadline, Ms. Winston's management concerns were related to form, rather than substance. She told the district managers that she wanted to conduct regional training and spent several hours of that training in Orlando explaining her background and management style and introducing staff and having them explain their backgrounds and styles. She then insisted that they all go to lunch together, with the result that substantive training was delayed until mid- afternoon. The sales representatives from the Melbourne office expressed concern to their manager, Dick Steiber, and requested additional training that evening back in their Melbourne office. On another occasion, in December 1987, Ms. Winston sent a memo to the district managers, without prior discussion, placing her own clerical assistant in charge of all clerical operations for the region and districts and stating that the regional manager would be conducting "skip level" meetings with subordinate district staff. On the afternoon before the first delivery of lottery tickets was due in the Melbourne district, Ms. Winston directed Mike Steiber to send his lead storekeeper to Orlando the next morning to observe how the Orlando tickets were laid out. He agreed this would be a good idea, but suggested that she come later as she needed to handle the ticket delivery. Ms. Winston insisted that she come as directed. Shortly thereafter, Mike Steiber requested a personal meeting with Ms. Winston to discuss his concerns. She gave him an 8:00 a.m. appointment in Orlando. Mr. Steiber travelled from Melbourne but Ms. Winston did not appear; she called her office about 30 minutes later to say that she would be unable to meet. The meeting was rescheduled for the next day and the same thing happened. After the third day and third unsuccessful trip to Orlando, the meeting was delayed indefinitely. In response to concerns expressed by Pam Allen, Regional Coordinator and Mrs. Winston's immediate supervisor, and by Deborah Burkett and Mike Steiber, Michelle Hayes asked Ms. Winston to come to Tallahassee to meet for a performance review. Feeling uncomfortable, Ms. Winston called Lt. Governor Bobby Brantley and told him she was being harassed. He replied that she should go to the meeting and consider it an opportunity to tell her story. Nonetheless, she sought legal counsel and brought an attorney with her to the meeting. Discussion of Ms. Winston's performance included failing to meet with the district managers to resolve problems at the regional level, presenting conflicting instructions, holding correspondence, lack of interest in learning agency operations, abbreviated work hours, and failing to leave forwarding phone numbers with support staff when absent during the workday. Ms. Winston considered the issues raised at the meeting to be lies generated by Deborah Burkett, and she responded to the meeting with a 6-page memorandum to Michele Hayes dated January 27, 1988. She also addressed a letter to the Lt. Governor the same day, enclosing her memorandum and stating, in part: * * * The lies can never be forgiven, but can be corrected. I suggest you remove the liar from my organization, District Manager Deborah Burkett, via termination not just for me; [sic] but for the good of the Orlando Region and encourage my Director to support the chain of command. * * * (Petitioner's Ex. #6) Copies were sent to Gov. Martinez, Jeannie Austin and Luther Smith, Esquire. Carolyn Winston viewed the meeting with her supervisor as an effort to get rid of her. She felt that both of her district managers were going over her head to get direction from Tallahassee or to report on her activity. Friction between Ms. Winston and Ms. Burkett severely affected morale in the office, and the employees felt uncomfortable at being required to take sides. Ms. Burkett had an aggressive management style, but was considered by her supervisors in Tallahassee to be very competent and knowledgeable about her job. Because she preceded Ms. Winston and had commenced hiring the staff on her own, some employees in the Orlando office perceived split loyalties. This was defined, in part, by race, as the black employees tended to "side" with Ms. Winston. Sometime in March 1988, Ms. Winston wrote to Secretary Paul requesting that Deborah Burkett be terminated for insubordination, stating that Ms. Burkett did not "respect the chain of command" and was unwilling to cooperate. (Respondent's Ex. #2) The request was denied, and Ms. Winston was offered a lateral transfer to a position in Tallahassee at no loss of pay. She declined. At Secretary Paul's request, Dick Lepanen, who was promoted to Lottery Sales and Distribution Manager, and the Lottery Personnel Director, Sandra Koon, visited the Orlando office on April 7, 1988 to counsel the two managers. Both Ms. Winston and Ms. Burkett appeared at the meeting with notebooks full of documents to support charges or rebuttals of each other's management problems. The meeting became a contest on each issue. Ms. Koon and Mr. Lepanen told the women that they needed to work together and that a unified management team concept had to be presented to the subordinate staff. The meeting ended on a positive note of resolution to make the Orlando region the best in the state. Ms. Koon's assessment of the problem was that both women were good managers and wanted to take control of the office. Still, friction continued, and a decision was made to transfer Deborah Burkett to a district manager position in Ft. Myers. Dick Lepanen telephoned Carolyn Winston to inform her of the decision on May 6, 1988, with a follow-up confidential memorandum. He asked her to not discuss the matter with anyone, to allow Ms. Burkett a chance to talk with her staff, and he said he had already informed Jody Spicola, the regional manager who would be Ms. Burkett's new supervisor. Jody Spicola called Ms. Winston on another matter the same day. Ms. Winston took the opportunity to discuss Ms. Burkett's work habits in unflattering and inflammatory terms, causing Mr. Spicola to call Mr. Lepanen to say that he was reconsidering his position on accepting Ms. Burkett in his region. Dick Lepanen called Ms. Winston and asked if she discussed Deborah Burkett with Jody Spicola. She denied it, and continued to do so until Sandra Koon, Dick Lepanen and Jody Spicola arrived in the Orlando office several days later to confront her directly. On May 16, 1988, Dick Lepanen issued Ms. Winston a written reprimand for insubordination, an infraction described in the Lottery personnel policies and procedures manual. Basis for the reprimand was her violation of the confidential information direction and her false denial. Ms. Winston refused to sign the reprimand, countering with a two-page memorandum dated June 2, 1988, stating that she was being discriminated against, that Deborah Burkett's character was no secret and that Ms. Burkett had lied for months. In the February 11-17, 1988, edition of the Daytona Times, a weekly newspaper addressing black readers, an article appeared with the headline, "Lottery Snubs Blacks". The article included a quote from Carolyn Winston, identified as regional director of the Lottery office, stating that "...minority participation in Lottery sales is 'not as good as it should be'", and urging that potential vendors write to the retailer application department at the Lottery office in Tallahassee. (Petitioner's Ex. #10) Secretary Paul addressed the regional managers and regional coordinators in a meeting on February 24, 1988, and made it clear that no one was to speak to the press about such matters except her and that further occurrences could result in termination. Ms. Winston apologized to Secretary Paul, through Michele Hayes, and gave a copy of Michele Hayes' brief written reminder on unauthorized press comments to her district managers with this handwritten notation: Please refer all press calls to Ed George. Any unauthorized comments to the press may well result in termination. Yes, she was serious. Will speak more on this at Wed's March 9th regional meeting. Carolyn (Respondent's Ex. #4) Ms. Winston took maternity leave from June through August 1988, but stayed in touch with the office. Mike Steiber was placed temporarily in her position, and later Jody Spicola was temporarily assigned to the Orlando region. Ms. Burkett's position was not filled, so the regional manager handled the Orlando district directly. On December 14, 1988, Carolyn Winston received her annual performance evaluation from Dick Lepanen. Based on his personal observation of her responses to him and how she handled issues that he referred to her, he evaluated her as "exceeds at least one standard", on a scale that includes "below standards", "achieves standards", "exceeds at least one standard", "exceeds most standards", and "sustained superior performance". He evaluated all of the managers in the same manner, that is, based on individual characteristics rather than on ability to meet sales quotas or on management style. Ms. Winston responded with a memorandum on her future goals and performance improvement plan which she asked to have appended to her evaluation. These goals included beginning her MBA, enrolling in workshops and seminars for advanced writers, and joining Toastmasters, as well as other general statements as to achieving "overall business objectives". (Respondent's Ex. #43) In December 1988, in a meeting in Tallahassee, Carolyn Winston reported to Sandra Koon and Dick Lepanen that there was discrimination in the Orlando regional office in the form of sexual harassment and anti-semitic remarks made about employees. The person allegedly primarily responsible for the discrimination was Ron Broadway, the warehouse manager. Ms. Winston was told that the behavior would not be tolerated by the department. She was given a video on sexual harassment to show at her normal weekly staff meeting and she was advised to have a frank discussion with the employees to let them know that sexual harassment was a serious concern. She was also counselled to meet individually with Mr. Broadway to assure that he understood that his comments and behavior would not be tolerated. Ms. Winston showed the video and followed up on the counselling, but the sequence of events is confused by a series of memoranda authored by Ms. Winston and referring to actions she took to investigate the complaints and to meet with the offending employee. Throughout those memoranda she refers to "anti-semitic and sexual harassment remarks", yet attached to her memorandum dated December 20, 1988, to Dick Lepanen is a 3-page outline of statements made by employees, identified by initials as "A" through "F", who alleged hearing Ron Broadway make explicit and highly offensive racial remarks at work, at softball practice and while setting up a lottery display at a civic event. These remarks included the term, "nigger", and derogatory comments about a black employee's baby. (Respondent's Ex. #44) Two memoranda from Carolyn Winston to Ron Broadway dated December 20, 1988, refer to an oral counselling session on December 12, 1988, regarding "anti- semitic and sexual harassment remarks". (Respondent's Ex. #5 and #6) Curiously, a memo dated January 31, 1989, from Carolyn Winston to Dick Lepanen, states: On January 30, 1989, I discussed and issued a copy of the December 20, 1988 memorandum entitled "Anti-Semitic and Sexual Harassment Remarks" to the employee Ron Broadway. Hopefully the matter has been resolved. Thank you for your assistance. (Respondent's Ex. #7) A copy was sent to Sandra Koon. At some point Ms. Koon and Mr. Lepanen determined that the charges involved racial comments, not anti-semitic comments or sexual harassment. They interviewed employees in the Orlando office and Ron Broadway. Something regarding the issue was placed in Mr. Broadway's personnel file, although not the memoranda Ms. Winston had prepared, and he was transferred to the Gainesville office in May 1989. Ms. Winston filed her first complaint of discrimination in May 1989, alleging that she was discriminated against in retaliation for reporting a white manager's "ethnic and sexual" remarks. Also in May 1989, Sandra Koon was involved in investigatory allegations made by three employees who had filed EEOC suits against the Department when their work stations were moved to the back of the office. The Tallahassee office had received complaints in writing, and by telephone, of rude treatment of Lottery participants by the Orlando regional office, by employees sitting near the public counter and answering the telephone. Dick Lepanen directed these employees be moved from public contact after Ms. Winston was given an opportunity to resolve the problem with no success. Her assistant had investigated the complaints, but they continued. These EEOC complaints were settled in July 1989, with a fact-finding conference at which the Department agreed that nothing would be placed in the employee's files, they would be considered for promotional opportunities and they would receive training in dealing with customers and other members of the public. After the initial start-up of the Lottery in early 1988, employees began to learn their jobs and to perform more efficiently. By spring 1989, after the Department's administrative operating expenses were reduced by the Legislature, Secretary Paul decided to streamline the agency, particularly as it related to sales. Part of the decision involved reducing the number of regions from six to three, creating a northern, central and southern region. The decision as to which of the six regional managers would be retained was based first on length of service in the class, and second on overall performance appraisals. Two regional managers were hired in 1988 and they were clearly eliminated. One regional manager, Jody Spicola, was hired October 21, 1987, and he was clearly retained. The remaining three managers, Carolyn Winston, Carlos Ribero and Edith Manning, were all hired effective November 2, 1987. Both Edith Manning and Carlos Ribero had annual performance appraisals in December 1988 of "exceeds most standards", one step above that of Ms. Winston. In the reorganization, therefore, Ms. Winston was demoted to district manager of the Orlando office, reporting to Jody Spicola in the Tampa regional office. Because her salary exceeded the maximum for the new class, she received a reduction in pay of approximately $3,000.00. Even with the reduction, her salary exceeded that of the two other regional managers who were demoted, as they had been hired at a lower level. Edith Manning, a regional manager who was retained, had been hired at $28,000.00. In the July 13-19, 1989 issue of the Daytona Times, Ms. Winston's photograph appeared on the front page with an article and headline, "Black Lottery Manager Claims Racial Bias". The article outlined Ms. Winston's allegations against the department with regard to herself, personally, but also included this statement: * * * One major issue raised by Winston, supported by other Blacks and minorities who play the lottery, had to do with the disproportionate ratio of Blacks winning the lottery when compared to the high rate of participation by Blacks, Hispanics and other minorities. * * * (Respondent's Ex. #9) On July 18, 19 and 20, 1989, a three-part interview with Ms. Winston aired on Channel 6 Television in Orlando, on the evening news. The interview contained several statements that a person's color was the most important consideration of the Lottery and that the agency was racially biased. On July 24, 1989, Ms. Winston was placed on administrative leave with pay in order to remove her from the office while the department assessed the impact of the publicity. She filed a second complaint with the Human Relations Commission. Additional newspaper articles appeared in the Daytona Times and in the Orlando Sentinel with the racial bias allegations and the fact that Ms. Winston was placed on leave. In a letter dated September 1, 1989, Michele Hayes notified Carolyn Winston that she was terminated effective 5:00 p.m. the same date, for the following reasons: Disruptive behavior displayed during the course of your employment which resulted in low employee morale and had an adverse impact on the operations of the Orlando office; Unsatisfactory work performance as a leader and manager of the Florida Lottery; and Disloyalty in general to the Florida Lottery and executive level management. (Respondent's Ex. #31) Ms. Winston filed her third complaint with the Human Relations Commission after her termination. Art Mobley, a black male was hired to replace Ms. Winston on December 1, 1989. He had originally been hired by Deborah Burkett, in November 1987, as a sales representative in the Orlando office. After several months he was promoted to an on-line coordinator in the on-line games unit in Tallahassee. When Ms. Winston's position was advertised he successfully applied and moved back to Orlando.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That Carolyn Winston's petitions in these three consolidated cases be dismissed. DONE AND RECOMMENDED this 23rd day of May, 1991, in Tallahassee, Leon County, Florida. MARY CLARK 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 23rd day of May, 1991. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings on the findings of fact proposed by the parties. Neither party complied with the requirement of Section 22I-6.031(3), F.A.C., that proposed findings of fact be supported by citations to the record. This has made the task of accepting or rejecting proposed findings virtually impossible. Petitioner's Proposed Findings Adopted in paragraphs 1 and 3. Adopted in part in paragraph 5, otherwise rejected as unsupported by competent evidence. 3 - 5. Adopted in paragraph 5. Adopted in paragraph 6. Rejected as irrelevant or contrary to the weight of evidence, except for reference to the racial epithet, which is adopted in summary in paragraph 22. 8 - 10. Rejected as irrelevant or contrary to the weight of evidence. Adopted in part in paragraph 11; the "insubordination" conclusion is unsupported by the record. Rejected as statements of Ms. Winston's position rather than findings of fact. That she felt discrimination does not prove the fact of discrimination. 13 - 15. Rejected as summary of testimony rather than findings of fact. 16 - 17. Adopted in paragraph 17. 18 - 19. Adopted in paragraph 20, except for the conclusion that the process deviated from "formal evaluation standards." 20. Rejected as contrary to the weight of evidence. 21 - 22. Adopted in substance in paragraphs 21 and 22. 23 - 28. Rejected as summary of testimony rather than findings of fact. 29 - 36. Rejected as contrary to the evidence. 37. Rejected as irrelevant. 38 - 40. Rejected as contrary to the evidence. Respondent's Proposed Findings Adopted in paragraphs 1 and 5. Adopted in paragraphs 5 and 26. Adopted in paragraph 5. Adopted in paragraph 6. Adopted in paragraph 4. Adopted in paragraph 5. Adopted in paragraphs 8 - 10. Adopted in paragraphs 11 and 12. Adopted in paragraph 18. 10 - 11. Adopted in paragraphs 13 and 15. Adopted in paragraphs 16-17. Rejected as unnecessary. Adopted in substance in paragraph 20. Adopted in paragraph 21. Adopted in paragraphs 22 and 23, except that the memorandum was removed from Mr. Broadway's file and was replaced by another. Adopted in part in paragraph 23; otherwise rejected as immaterial. Adopted in substance in paragraph 24. 19 - 20. Adopted in part in paragraph 23; otherwise rejected as unnecessary. Adopted in summary in paragraph 24. [no numbered paragraph 22.] 23. Adopted in paragraphs 25 and 26. 24. Rejected as unnecessary. 25 - 26. Adopted in part in paragraph 27. 27. Adopted in paragraph 28. 28. Adopted in part in paragraph 29. 29. Rejected as unnecessary. 30. Adopted in paragraph 31. 31 - 32. Adopted in paragraphs 28 and 29. 33 - 40. Rejected as argument, or unnecessary. COPIES FURNISHED: Anthony Gomes, Esquire Authorized Representative c/o Carolyn A. Winston 515 Polaris Loop #101 Casselberry, FL 32707 Louisa H. Warren, Esquire Senior Attorney Florida Lottery Capitol Complex Tallahassee, FL 32399-4011 Dr. Marcia Mann, Secretary Department of Lottery 250 Marriot Drive Tallahassee, FL 32301 General Counsel Department of Lottery 250 Marriot Drive Tallahassee, FL 32301 Dana Baird, General Counsel Fla. Commission on Human Relations 325 John Knox Road Bldg. F, Suite 240 Tallahassee, FL 32399-1570
The Issue The two issues to be determined are whether: (1) a violation of section 556.107(1)(a), Florida Statutes, relating to a "high-priority subsurface installation" proximately caused an "incident" under section 556.116(1)(c); and (2) if so, what fine should be imposed against the violator in an amount not to exceed $50,000.
Findings Of Fact Based on the stipulated facts and the evidence adduced at the final hearing, the following findings of fact are made. Stipulated Facts (Paragraphs 1 through 24) Sunshine 811 and the Incident Sunshine 811 is the free-access notification system established by the Underground Facility Damage Prevention and Safety Act (Act). See §§ 556.101-556.116, Fla. Stat. Section 556.105(1)(a) requires an excavator, before beginning any excavation or demolition, to provide Sunshine 811 with certain information that will allow a utility company to mark on the surface of the earth the horizontal route of underground facilities in the area of the proposed excavation. An excavator must notify Sunshine 811 of an upcoming excavation not less than two full business days before beginning an excavation. Such notification and resulting locate ticket remain valid for only 30 days after the notice to Sunshine 811. See § 556.105(1)(a), (c), Fla. Stat. Cougar is a site-work contractor. Cougar had a subcontract with general contractor Waltbillig & Hood, who was building a storage facility on property at or around 16641 South Tamiami Trail in Fort Myers. Among other site work, Cougar agreed to install underground storm structures. On Saturday, May 18, 2019, around 10:20 a.m., an employee and agent of Cougar, Ramiro Garcia, was operating a backhoe excavator on or near the property located at or around 16641 South Tamiami Trail in Fort Myers. While digging to install a storm structure, the excavator ruptured an eight- inch steel underground gas distribution main owned and operated by Peoples Gas. More than three months before the incident, on February 12, 2019, Cougar, through Jessica Armstrong, notified Sunshine 811 about an excavation to occur at 16721 South Tamiami Trail. Cougar requested utility locating for the "perimeter of new storage facility." In response, Sunshine 811 generated locate ticket number 043902987. Two days later, on February 14, 2019, Cougar, through Ms. Armstrong contacted Sunshine 811 to replace the previous locate ticket number 043902987. This time Cougar requested locating at a different address, 16641 South Tamiami Trail, but again requested utility locating for the "perimeter of new storage facility." In response, Sunshine 811 generated a new locate ticket number 045903523, which expressly "replace[d] Ticket #043902987," as Cougar requested. On February 14, 2019, Peoples Gas locator, Todd Gerloski, responded at 3:10:06 p.m. to the second locate ticket number 045903523, by entering "High Priority Pipeline - Marked," which confirmed that Peoples Gas had located and marked a high priority pipeline within the excavation area. The parties agree the three locate tickets with dates of February 12, 2019, locate ticket number 043902987; February 14, 2019, locate ticket number 045903523; and May 18, 2019, locate ticket number 138900287, speak for themselves. Whenever, like here, an excavation site conflicts with a high-priority gas main, Peoples Gas issues and sends to the excavator an e-mail notice with the subject line "ATTENTION: High Priority Natural Gas Pipeline in Your Work Area-PLEASE READ." The notice provides the number of the locate ticket and warns among other things: "In reference to your locate request(s), there is a high profile gas line in the area. Excavation around this line requires increased caution to prevent significant bodily injury and/or property loss." The notice also provides the locater's contact information and states: "This line has been marked; please call the [contact] below one (1) working day in advance of excavation so Peoples Gas can make arrangements to be on site if necessary. Note: the law requires the excavator to spot dig the facilities." Finally, the notice advises that "information provided by an excavator is valid for 30 calendar days." Peoples Gas's Timothy A. Easter sent this notice to Cougar's Ms. Armstrong via e-mail on February 15, 2019, at 11:02 a.m. Thus, through Mr. Gerloski and Mr. Easter, Peoples Gas identified the gas main as high priority and notified Cougar about the presence of the high-priority main. According to section 556.105(1)(c), locate ticket number 045903523, which replaced the original locate ticket number 043902987, expired on March 17, 2019. Accordingly, when the incident occurred on May 18, 2019, Cougar was digging without a valid locate ticket, in violation of the Act. Cougar's and Peoples Gas's Response to the Incident and the Incident's Impact on the Community Immediately after rupturing the gas main, Cougar's Ramiro Garcia turned off the excavator and ordered everyone to move away from the area of damage. Mr. Garcia then called 911 and his supervisor. Traffic along this section of U.S. 41 (Tamiami Trail) was shut down in both directions shortly after the 911 call, but no later than 11:15 a.m. Around the same time, the area and businesses around the damage were evacuated. After receiving a report of the incident from the fire department, Peoples Gas's first responder arrived on scene at 11:06 a.m. and confirmed that the damage was to the eight-inch high-priority steel gas main, a one-way feed that serves 15,176 customers to the south and along Fort Myers Beach. To avoid losing gas service to 15,176 customers, restoration of which would require at least one visit by a Peoples Gas representative to each customer, Peoples Gas endeavored to safely keep the gas main in service while conducting the repair. In order to do so, Peoples Gas relied on the assistance of several contractors, employees, and public first responders, and delivered trucks of compressed natural gas to maintain the necessary operating pressure of the gas main downstream, while Peoples Gas conducted the repair on the section of damaged pipe. Around 2:15 p.m., the southbound lane of U.S. 41 was reopened. The southbound lane was closed for approximately three and one-half hours. The northbound lane remained closed. Around 6:00 p.m., Peoples Gas incident commander, Greg Crawford, received a phone call from Cougar's Shane Meaker. Mr. Meaker called to offer help by offering a large track hoe to help dig around the main and assist the repair. Peoples Gas accepted the offer, and a Peoples Gas contractor operated the Cougar track hoe to assist the repair. Peoples Gas successfully and safely kept the gas main in service while conducting the repair. However, gas service was lost to 17 customers, which required Peoples Gas to restore service to those customers after completing the repair. The repair effort extended overnight; Peoples Gas completed the repair, and the site was "made safe" at approximately 4:00 a.m. the next day, May 19, 2019. In total, the effort to repair the damage lasted approximately 17 hours. At 4:06 a.m., on Sunday, May 19, 2019, Peoples Gas notified the sheriff's department that the scene was safe, and shortly thereafter, northbound U.S. 41 was again open to traffic. The northbound lane was closed for approximately 17 hours. The Cost of Repair Peoples Gas awaits an invoice from one of its contractors, but the preliminary cost to repair the main and restore service to the 17 customers was $156,745.83.1/ This number comprises 53,930 therms of lost gas ($53,658), material cost ($938), equipment cost ($9,924), overtime labor ($3,200), double-time labor ($15,258), lodging and meal expenses ($453), contractor charges ($65,018), and administrative charges ($8,298). Cougar's Recent History of Violations On January 7, 2019, Cougar ruptured a four-inch underground gas main near Tiburon Way and Tidewater Key Boulevard in Estero. Although Cougar had called Sunshine 811 for a locate request on October 16, 2018, for the nearby area, the locate ticket number 289810669 had expired when the incident occurred. Peoples Gas suffered $2,571.84 in damages, and Cougar paid the claim in full. Causation If Sunshine 811 had been notified, Peoples Gas would have identified the location of the underground main with locate marks and would have sent Cougar the standard high-priority e-mail notice referenced above. Mr. Meaker confirmed that Cougar's equipment operators are well trained and recognize locate marks. Had Cougar called Sunshine 811 before commencing excavation on Saturday, May 18, 2019, the operator would have seen the locate marks and may not have struck the gas main. The record evidence contains a May 18, 2019, locate ticket number 138900287, which reflects that it was requested at 11:54 a.m. on Saturday, May 18, 2019, almost two hours after the incident occurred. Thus, Cougar was excavating without a valid locate ticket at the time of the incident described above. Cougar's failure to notify Sunshine 811 prior to commencing work on Saturday, May 18, 2019, is the proximate cause of the incident described above.
The Issue The central issue in this case is whether Respondents are guilty of the violations alleged in the Amended Notice to Show Cause; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: At all times material to the allegations in the Amended Notice to Show Cause, Respondents, Julio and Lida Diaz, d/b/a Flor-Lidita Restaurant, held alcoholic beverage license number 23-4636. This license was a 2-COP license which authorized the sale of beer and wine for the premises known as Flor-Lidita Restaurant which is located at 4762 N. W. 183rd Street, Miami, Florida. In July, 1986, the FDLE began an investigation concerning an illegal gambling lottery commonly known as "bolita" which was believed to be operating in connection with the Flor-Lidita Restaurant. The investigation undertaken involved a surveillance of the restaurant together with undercover agents who were used to frequent the restaurant for the purposes of observing activities and placing bets with the restaurant personnel. An individual identified as Rafael Rosquete was determined to be a courier who would enter the restaurant, collect the gambling paraphernalia and returns, and deliver the items to a home located in Broward County. On July 9, 1986, a police officer, Hector Zeno, working undercover in connection with the FDLE, entered the Flor-Lidita Restaurant and observed customers writing numbers on bolita slips. Officer Zeno also observed individuals placing bets with the owner, Julio Diaz. In turn, Zeno filled out a bolita slip and placed a $5.00 bet with the owner Julio Diaz. On July 16, 1986, Joyce Dawley and Jacqueline Sirven entered the Flor- Lidita Restaurant and observed customers placing bolita bets with the Respondents, Lida and Julio Diaz. These agents also observed another employee known to them as "Rolando" (later identified as Rolando Nunez) taking bets. Agents Dawley and Sirven placed $5.00 bets with Julio Diaz on this date and received carbon copies of their bolita slips. On July 22, 1986, Zeno returned to the restaurant for the purpose of observing the customers and again placed a $5.00 bet by completing a bolita slip and tendering money to Julio Diaz. During this visit Zeno observed Nunez and Lida Diaz taking money and bolita slips from other customers within the restaurant. On July 23, 1986, Dawley and Sirven returned to the restaurant and again placed two $5.00 bets with Julio Diaz. During this visit the agents observed other individuals inside the licensed premises place bets with Rolando Nunez and Lida Diaz. On July 24, 1986, Dawley and Sirven returned to the Flor-Lidita Restaurant for the purpose of picking up $70.00 in winnings which Agent Dawley was entitled to as a result of the bet she had placed the previous evening. On July 30, 1986, Dawley and Sirven went to the Flor- Lidita Restaurant and again placed two $5.00 bets. This time Lida Diaz took their money and the original bolita slips and gave them carbon copies of their bets. On July 31, 1986, Sirven entered the Flor-Lidita Restaurant for the purpose of receiving $70.00 in winnings based on the prior day's bolita bet. On August 6, 1986, Dawley entered the Flor-Lidita Restaurant, received a bolita pad from Rolando Nunez and placed a $5.00 bet with Nunez in the present of Julio Diaz. On this visit Nunez showed Dawley a ledger which contained a list of dates together with numbers which indicated the winning numbers for the dates in question. On August 11, 1986, Dawley went to the Flor-Lidita Restaurant and observed Lida and Julio Diaz receiving bolita bets from persons within the restaurant. Dawley also observed Rolando Nunez taking bets. Dawley placed a $5.00 bet with Nunez on this date. After receiving a search warrant for the Flor-Lidita Restaurant, special agents of the FDLE entered the licensed premises on August 12, 1986 and searched the restaurant. During the search, agents took possession of various items of gambling paraphernalia which included bolita betting slips, Puerto Rican lottery tickets, blank bolita pads, currency and ledger books. Over $40,000 worth of U.S. currency and gambling paraphernalia was confiscated in connection with the police raid on the restaurant and the house in Broward County. In connection with the search of the licensed premises, Joseph Ogonowski seized an open bottle of scotch whiskey which was behind the counter at the restaurant. The scotch was not listed on the menu as a designated ingredient for any of the food items available for purchase at the restaurant. During the period of surveillance of the Flor-Lidita Restaurant, Rosquete was repeatedly observed by FDLE agents. Rosquete would routinely visit the restaurant, obtain items of gambling paraphernalia including betting slips and U.S. currency, and deliver the proceeds from the restaurant to a residence located in Broward County. The gambling activities conducted on the licensed premises were open, frequent, and included the active participation of the Respondents, Julio and Lida Diaz.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco enter a Final Order revoking license number 23-4636, series 2-COP, held by Respondents, Julio and Lida Diaz, d/b/a Flor-Lidita Restaurant. DONE and RECOMMENDED this 15th day of July, 1988, in Tallahassee, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4620 Rulings on Petitioner's proposed findings of fact: Paragraphs 1 and 2 are accepted. With the exception of the last sentence paragraph 3 is accepted. The last sentence is rejected as speculation. Paragraph 4 is accepted. Paragraph 5 is accepted. Paragraphs 6-20 are accepted. With the exception of the last sentence in paragraph 21, which is rejected as speculation, paragraph 21 is accepted. Paragraphs 22-23 are accepted. The last two sentences of paragraph 24 are accepted. The first sentence is rejected as argument or a conclusion of law. Rulings on Respondent's proposed findings of fact: Paragraphs 1-3 are accepted. Paragraphs 4 is rejected as contrary to the weight of the evidence. Mr. Ogonowski was qualified to and did identify the substance seized as scotch whiskey. Paragraph 5 is accepted but is unnecessary to the determinations reached by this Recommended Order. Paragraph 6 is rejected as irrelevant, immaterial and unsupported by the record in this cause having previously ruled the adjudications inadmissible. Paragraph 7 is rejected as unsupported by the record in this cause. COPIES FURNISHED: Katherine A. Emrich, Esquire Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Rene Valdes 1830 N. W. 7th Street Miami, Florida 33125 Daniel Bosanko, Director Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
The Issue Has Respondent Try Fresh Produce, Inc. (Try Fresh) made proper accounting to Petitioner Green Grassing Company, Inc. (Green Grassing) in accordance with Section 604.22(1), Florida Statutes, for agriculture products delivered to Try Fresh from November 13, 1994, through December 9, 1994, by Green Grassing to be handled by Try Fresh as agent for Green Grassing on a net return basis as defined in Section 604.15(4), Florida Statutes?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, Green Grassing was in the business of growing and selling "agricultural products" as that term is defined in Section 604.15(3), Florida Statute, and was a "producer" as that term is defined in Section 604.15(5), Florida Statutes. At all times pertinent to this proceeding, Try Fresh was licensed as a "dealer in agricultural products" as that term is defined in Section 604.15(1), Florida Statutes, as evidenced by license number 8839 issued by the Department, supported by bond number BD 0694273 in the amount of $75,000, written by Florida Farm Bureau General Insurance Company with an inception date of September 23, 1994, and an expiration date of September 22, 1995. Green Grassing delivered certain quantities of agricultural products (squash) to Try Fresh during the fall and winter growing season of 1994-95. However, it is the accounting of the squash that was delivered between November 13, 1994, and December 9, 1994, inclusive, that is in dispute. It was verbally agreed between Try Fresh and Green Grassing that Try Fresh would act as Green Grassing's agent in the sale of the squash delivered to Try Fresh for the account of Green Grassing on a net return basis. There is no dispute as the quantity of squash or size of squash delivered by Green Grassing to Try Fresh during the above period of time. Furthermore, there is no dispute as to the charges made by Try Fresh for handling the squash, including but not limited to the commission charged by Try Fresh. There is some disagreement concerning the quality of the squash delivered by Green Grassing. However, none of the witnesses had personal knowledge as to the quality of the squash delivered by Green Grassing. Upon delivering the squash to Try Fresh, Green Grassing was given a numbered delivery receipt listing Green Grassing as owner of the squash showing the number of cartons delivered, the date delivered, the initials of the employee receiving the squash and the kind and size of squash delivered. On most of these receipts there were four blank squares located just above the line for the date on the receipt. Starting from the left side of the receipt, the squares represent average, below average, poor and very poor quality, respectively. It was the responsibility of the employee receiving the squash for Try Fresh to place a check mark in one of the squares to indicate the quality of the squash upon delivery. Only the accounting for the squash from delivery receipt ticket numbers 086 dated November 13, 1994; 005 dated November 15, 1994; 017 dated November 16, 1994; 047 dated November 17, 1994; 451 dated November 18, 1994; 463 dated November 19, 1994; 500 dated November 23, 1994; 501 dated November 25, 1994; 397 dated December 5, 1994, and 329 dated December 9, 1994, is being contested in this proceeding. The delivery receipts being contested are included in Petitioner's composite exhibit 1 and Respondent's composite exhibit 1. A compilation of those delivery receipts is attached to the Complaint in Petitioner's composite exhibit 2. Once Try Fresh found a market for the squash, a pre-numbered billing invoice was prepared by Try Fresh showing its customer's name and the quantity, description and price of the squash sold. In any given sale, the quantity of the squash sold may include squash furnished by Green Grassing and other producers. Therefore, under description on the billing invoice Try Fresh would show the size and type of squash being sold, the initials of the producer, the quantity of squash being sold for that producer and the producer's receipt number for example, med. s/n GGI 68/086. In its accounting to Green Grassing, Try Fresh prepared a statement which included the delivery receipt number, the quantity of squash sold, description of the product, i.e. med, s/n squash, the price per carton of squash and the total amount for the quantity sold. The statements also noted when a certain quantity of a squash had been transferred to another ticket number or if a trouble memo number (T number) was involved in a particular sale. Payment for the squash was made by Try Fresh to Green Grassing from these statements. Sometimes payment was for only one delivery receipt while at other times for several delivery receipts for different dates. The statements are included as part of Petitioner's composite exhibit 5. Petitioner's composite exhibit 4 is the Florida Vegetable Report, Volume XIV, Nos. 21 - 25 and 27 - 39, dated November 10, 14, 15, 16, 17, 21, 22, 23, 28, 29, 30, 1994 and December 1, 2, 5 - 9, 1994, which establishes prices paid during this period of time for small and medium straight neck squash. The report does not list prices paid for large straight neck squash. There is no evidence that the quality of the squash delivered to Try Fresh by Green Grassing during this period of time was the same quality of squash from which the prices in the report were derived. On November 13, 1994, Green Grassing delivered 32 cartons of small, straight neck squash (sm s/n squash), 145 cartons of medium, straight neck squash (med s/n squash), and 42 cartons of large, straight neck squash (lg s/n squash) to Try Fresh as reflected in delivery receipt number 086 dated November 13, 1994, showing Green Grassing as owner of the squash. None of the squares are checked and there is nothing in the remarks section of delivery receipt number 086 to indicate the quality of the squash at the time of delivery to Try Fresh on November 13, 1994. There is no dispute as to accounting of the 145 cartons of medium, straight neck squash reflected on delivery receipt 086. Try Fresh's statement of accounting to Green Grassing dated November 25, 1994 (page 5 of Petitioner's composite exhibit 5) indicates that the 32 cartons of small , s/n squash listed on receipt number 086 were transferred to receipt number 258 with the price left open and no payment made to Green Grassing. The next entry concerning these 32 cartons of squash appears on a statement dated December 2, 1994 (page 13 of Petitioner's composite exhibit 5) with the price left open and no payment made to Green Grassing. The next entry concerning these 32 cartons of squash appears on an undated statement (page 21 of Petitioner's composite exhibit 5) with reference made to trouble memo (T number 0040) with the price is left open and no payment made to Green Grassing. There is no further reference to these 32 cartons of squash (delivery receipt 086, ticket 258 or T number 0040) in the statement of accounting. There is no evidence that Green Grassing was paid for the 32 cartons of sm s/n squash as reflected by delivery receipt number 086. There is no indication on billing invoice number 065562 that the 32 cartons of sm, s/n squash from delivery receipt number 086 were included in the 240 cartons of sm, s/n squash shipped to Georgia Vegetable Co. as was the normal practice by Try Fresh as set out in Finding of Fact 7. Furthermore, there is insufficient evidence to show that the 32 cartons of squash were found to be below quality by a federal inspection (Certificate No. M-460187-8) on November 17, 1994, which resulted in Try Fresh receiving a reduced price of $1.71 per carton as shown on T number 0017 (trouble memo). This amount was paid to Green Grassing as shown by statement of accounting dated December 23, 1994, (see page 28 Petitioner's composite exhibit 5). However, those 32 cartons of squash were identified as transfer ticket number 259 which relates to delivery receipt number 005 dated November 15, 1994, not delivery receipt number 086 (see pages 9 and 13 of Petitioner's composite exhibit 5). Try Fresh has failed to account to Green Grassing for the 32 cartons of sm, s/n squash delivered on November 13, 1994, as reflected by delivery receipt number 086. Based on the prices Try Fresh billed and was paid for sm, s/n squash by its customer (including sm s/n squash belonging to Green Grassing) during this period, a price of $8.00 per carton would be reasonable price. Try Fresh owes Green Grassing for 32 cartons of sm s/n squash at $8.00 per carton for a total of $256.00. Try Fresh's statement of accounting dated November 25, 1994, (page 5 Petitioner's composite exhibit 5) shows 10 cartons of lg, s/n squash from delivery receipt number 086 as being transferred to ticket number 258 with a note of trouble memo (T number 0036) with the price left open and no payment to Green Grassing. The same page of the statement shows 21 cartons of lg, s/n squash from delivery receipt number 086 being dumped due to poor quality without payment to Green Grassing. The same page shows 11 cartons of lg, s/n squash being transferred to ticket number 258 without any explanation or payment to Green Grassing. These 11 cartons are accounted for at $2.00 per carton for a total of $22.00 on page 21 of Petitioner's composite exhibit 5. There is no evidence (testimony, trouble memo or federal inspection) to show why the 11 cartons of squash brought only $2.00 per carton when lg s/n squash from delivery ticket number 086 were billed out at $8.00 per carton on November 19, 1994 (see billing invoice number 065593). Likewise, there was no evidence as to who purchased these squash. Try Fresh's billing invoice number 065593 shows 50 cartons of lg, s/n squash being billed to G & B at 8.00 per carton which included 10 cartons of lg, s/n squash belonging to Green Grassing from delivery receipt number 086. Trouble Memo (T number 0036) shows a problem with the 50 cartons of lg, s/n squash shipped to G & B Produce on November 19, 1994, and reported on November 23, 1994, which resulted in the price being reduced to $2.50 per carton. Although sketchy, Respondent's accounting for the 10 cartons of squash on T number 0036 and the 21 cartons of squash dumped is sufficient. However, there is insufficient accounting for the 11 cartons of squash. Try Fresh owes Green Grassing $6.00 per carton, the difference between the billed price of $8.00 per carton and the $2.00 per carton paid, for 11 eleven cartons of squash for a total of $66.00. On November 15, 1994, Green Grassing delivered 198 cartons of med, s/n squash and 118 cartons of sm, s/n squash to Try Fresh as evidence by delivery receipt number 005 dated November 15, 1994. None of the squares are checked and there is nothing in the remarks section of delivery receipt number 005 to indicate the quality of the squash at the time of delivery to Try Fresh on November 15, 1994. There is no dispute as to 98 cartons of med, s/n squash and 9 cartons of sm, s/n squash. Try Fresh paid $1.00 per carton for the balance of 100 cartons of med, s/n squash listed on delivery receipt number 005 that is in dispute on February 3, 1995, by check number 2217 (see pages 35 and 36 of Petitioner's composite exhibit 5). However, there is no evidence to show that at the time these med, s/n squash were received by Try Fresh's customer, who allegedly reduced the price to Try Fresh, that the squash was of inferior quality and would demand a price of only $1.00 per carton when those same squash brought an average of $11.00 per carton from other Try Fresh customers. Try Fresh has failed to make a proper accounting for the 100 cartons of med, s/n squash. Try Fresh owes Green Grassing the difference of $10.00 per carton for 100 cartons of squash for a total amount of $1,000.00. The 99 cartons of sm, s/n squash reflected on delivery receipt number 005 that are in dispute were paid for by Try Fresh at the rate of $10.40 per carton for 77 cartons and $1.71 per carton for 32 cartons. Although 77 cartons were billed out at $12.00 per carton (see billing invoice number 065592), there is sufficient evidence (T number 0022) to support the reduction in price to $10.40 per carton. However, there is insufficient evidence to show the reduction in price to $1.71 per carton for the 32 cartons. Try Fresh has failed to make proper accounting for the 32 cartons. Try Fresh owes Green Grassing $8.69 per carton, the difference between $10.40 per carton that was paid for the 77 cartons and the $1.71 paid for the 32 carton for a total amount of $278.08. On November 16, 1994, Green Grassing delivered 64 cartons of med, s/n squash and 25 cartons of sm, s/n squash to Try Fresh as reflected by delivery receipt number 017. None of the squares are checked and there is nothing in the remarks section of delivery receipt number 017 to indicate the quality of the squash at the time of delivery to Try Fresh on November 16, 1994. On November 25, 1994, Try Fresh paid Green Grassing $12.00 per carton for 21 cartons of med, s/n squash and $12.00 per carton for 25 cartons of sm, s/n squash by check number 1447 as shown on pages 4 through of Petitioner's composite exhibit 5. However, page 28 of Petitioner's composite exhibit shows a zero amount for 25 cartons of sm, s/n squash reference to delivery receipt number 017. This is apparently an error, as is T number 0033 (Trouble Memo). Try Fresh also paid $12.00 per carton for the 43 cartons of med, s/n squash by check number 2009 dated January 6, 1995 (see pages 31 and 32 of Petitioner's composite exhibit number 5). There has been proper accounting by Try Fresh of the squash reflected by delivery receipt number 017. On November 17, 1994, Green Grassing delivered 93 cartons of sm, s/n squash and 161 cartons of med, s/n squash to Try Fresh as reflected by delivery receipt number 047. None of the squares are checked and there is nothing in the remarks section of delivery receipt 047 to indicate the quality of the squash at the time of delivery to Try Fresh on November 17, 1994. Only the accounting of the 93 cartons of the sm, s/n squash is disputed. On November 18, 1994, Try Fresh billed out 13 cartons of sm, s/n squash from delivery receipt number 047 to Georgia Vegetable on billing invoice number 065592 at $12.00 per carton. Try Fresh was advised by Georgia Vegetable of a problem. Trouble memo (T number 0022) was prepared by Try Fresh which indicated that after working with Georgia Vegetable a price of $10.40 per carton was agreed upon. Green Grassing was paid $10.40 per carton (see page 30 of Petitioner's composite exhibit number 5). Try Fresh has made proper accounting of these squash. On November 19, 1994, Try Fresh billed out 80 cartons of sm, s/n squash from delivery receipt number 047 to Phil Lucks on billing invoice number 65596 at an undetermined price (the price had been redacted on the billing invoice). Although trouble memo (T number 0032) indicates a problem (brown & decay) with 100 cartons of sm, s/n squash shipped on November 22, 1994, there was no evidence that these were the same squash billed on billing invoice number 065596. Try Fresh has failed to present sufficient evidence to show why these squash did not bring the same price the other sm, s/n squash on delivery receipt number 047 brought. Try Fresh has failed to properly account for these 80 cartons of squash. Therefore, Try Fresh owes Green Grassing $10.40 per carton for 80 cartons of squash for a total of $832.00. On November 18, 1994, Green Grassing delivered 33 cartons of lg, s/n squash, 41 cartons of med, s/n squash and 20 cartons of sm, s/n squash to Try Fresh as evidenced by delivery receipt number 451 dated November 18, 1994. The delivery receipt indicates that the squash was of very poor quality when delivered. The 20 cartons of sm, s/n squash was billed to T & M at $6.00 per carton. Although there is a trouble memo (T number 0025), it appears that Green Grassing was paid $6.00 per carton for these 20 cartons of squash. There is no evidence that these squash were of the same quality as those referenced in the Florida Vegetable Report for this period of time which could demand a price of $12.00 per carton as argued by Green Grassing. Furthermore, Green Grassing has produced no evidence that Try Fresh received $12.00 per carton for these squash. Try Fresh has made proper accounting of the 20 cartons of sm, s/n squash reflected in delivery receipt number 451. The 33 cartons of lg, s/n squash from delivery ticket number 451 required re-grading by Try Fresh. After re-grading, 16 cartons were not fit for sale. The 17 cartons of lg, s/n squash remaining after re-grading were sold by Try Fresh for $6.00 per carton. This amount was paid to Green Grassing by check number 1812 dated December 23, 1994, (see pages 27 and 28 of Petitioner's composite exhibit 5). Try Fresh has made proper accounting for the 33 cartons of squash reflected in delivery receipt number 451. The 41 cartons of med, s/n squash from delivery ticket number 451 was invoiced at an undetermined price (priced appeared to be redacted from the invoice) on billing invoice number 065582. Trouble memo (T number 0033) indicates that the 41 cartons of med, s/n squash from billing invoice number 065582 were brown and decayed and were rejected by Lucks. Try Fresh has made proper accounting of these 41 cartons of squash reflected in delivery receipt number 451. On November 19, 1994, Green Grassing delivered 32 cartons of sm, s/n squash, 54 cartons of med, s/n squash and 3 lg, s/n squash to Try Fresh as reflected by delivery receipt number 463. The delivery receipt indicates that the squash were of poor quality when delivered to Try Fresh on November 19, 1994. There is no dispute as to the accounting of the 54 cartons of med, s/n squash. On December 2, 1994, by check number 1568, Try Fresh paid Green Grassing $16.00 per carton for 25 cartons of sm, s/n squash from delivery receipt number 463 for a total of $400.00 (see pages 12 and 15 Petitioner's composite exhibit 5). On January 5, 1995, by check number 2009, Try Fresh paid Green Grassing $4.00 per carton for 25 cartons of sm, s/n squash from delivery receipt number 463 for a total of $100.00 (see pages 31 and 32 of Petitioner's composite exhibit 5). On December 2, 1994, by check number 1568, Try Fresh paid Green Grassing $1.00 per carton for 7 cartons of sm, s/n squash for a total of $7.00 from delivery ticket number 463. Try Fresh has paid Green Grassing a total of $507.00 for the sm, s/n squash from delivery receipt number 463. However, thirty two cartons of sm, s/n squash at $16.00 per carton would total $512.00. Since there is no evidence to support a price less than the $16.00 per carton paid by Try Fresh on December 2, 1994, Try Fresh owes a Green Grassing a balance of $5.00. There is sufficient evidence to show that the 3 cartons of lg, s/n squash from delivery receipt number 463 were re-graded and none were salvaged. Other than the $5.00 above, Try Fresh has made proper accounting of the squash reflected in delivery receipt number 463. On November 23, 1994, Green Grassing delivered 16 cartons of sm, s/n squash, 44 cartons of med, s/n squash and 5 cartons of lg, s/n squash to Try Fresh as reflected in delivery receipt number 500 dated November 23, 1994. None of the squares are checked and there is nothing in the remarks section of the delivery receipt to indicate the quality of the squash delivered to Try Fresh on November 23, 1994. There is no dispute as to the 16 cartons of sm. s/n squash or the 44 cartons of med, s/n squash. The 5 cartons of lg, s/n squash from delivery receipt 500 were sold to American Growers by Try Fresh for $4.00 per carton as reflected in billing invoice number 065628 dated November 25, 1994. Green Grassing was paid this amount by Try Fresh (see pages 19 and 23 Petitioner's composite exhibit 5). Try Fresh has made proper accounting of the squash reflected in delivery receipt number 500, notwithstanding the prices listed in the Florida Vegetable Report for this period of time. On November 25, 1994, Green Grassing delivered 18 cartons of sm, s/n squash, 68 cartons of med, s/n squash and 5 cartons of lg, s/n squash to Try Fresh as reflected in delivery receipt number 501 dated November 25, 1994. None of the squares are checked and there is nothing in the remarks section of the delivery receipt to indicate the quality of the squash delivered to Try Fresh on November 25, 1994. There is no dispute as to the accounting for the 18 cartons of sm, s/n squash or the 68 cartons of med, s/n squash. The 5 cartons of lg, s/n squash were sold to American Growers for $4.00 per carton by Try Fresh as reflected in billing invoice number 065628 dated November 25, 1994. Green Grassing was paid this amount by Try Fresh (see pages 19 and 23 of Petitioner's composite exhibit 5). Try Fresh has made proper accounting of the squash reflected in delivery receipt number 501, notwithstanding the price listed in the Florida Vegetable Report for this period of time. On December 5, 1994, Green Grassing delivered 2 cartons of sm, s/n squash, 68 cartons of med, s/n squash and 16 cartons of lg, s/n squash to Try Fresh as reflected in the delivery receipt number 397 dated December 5, 1994. None of the squares are checked and there is nothing in the remarks section of the delivery receipt to indicate the quality of the squash delivered to Try Fresh on December 5, 1994. The 2 cartons of sm, s/n squash were sold on December 6, 1994, at $8.00 per carton as reflected in billing invoice number 065749 dated December 6, 1994. Sixteen cartons of the med, s/n squash were sold on December 6, 1994, to K & M South for $8.00 per carton as reflected in billing invoice number 065003 dated December 6, 1994. Twenty seven cartons of the med, s/n squash were sold to Tom Lange Co. for $10.00 per carton as reflected in an unnumbered billing invoice dated December 9, 1994 with customer order no. 23- 4020. Twenty five cartons of the med, s/n squash were sold to G & B for $10.00 per carton as reflected in an unnumbered billing invoice dated December 10, 1994, with customer order number 8130. Sixteen cartons of lg, s/n squash were sold to Erenbaum for $5.00 per carton as reflected in an unnumbered billing invoice dated December 6, 1994 with customer number 9472. Although these prices are below prices quoted in the Florida Vegetable Report for December 6 - 9, 1994, for small and medium s/n squash (no prices quoted for large, s/n squash), the prices are consistent with prices Try Fresh was receiving during this same period for small, medium and large s/n squash that it handled for other producers. Try Fresh has made proper accounting for the squash reflected in delivery receipt number 397, notwithstanding the prices listed in the Florida Vegetable Report for this period of time. On December 9, 1994, Green Grassing delivered 2 cartons of sm, s/n squash, 31 cartons of med, s/n squash and 17 lg, s/n squash to Try Fresh as reflected in delivery receipt number 329 dated December 9, 1994. None of the squares are checked and there is nothing in the remarks section of the delivery receipt to indicate the quality of the squash delivered to Try Fresh on December 9, 1994. There is no dispute as to the accounting of the 2 cartons of small and 31 cartons of medium squash. The 17 cartons of large, s/n squash were billed to Erenbaum in billing invoice number 065035 dated December 9, 1994. It appears that the price originally billed to Erenbaum's was redacted and zero per carton written on billing invoice. A federal inspection was called for and the squash were found to be below quality. This resulted in a zero return on the squash. Try Fresh has made proper accounting for the squash reflected in delivery receipt number 329. From a review of Try Fresh's records placed into evidence that its accounting to Green Grassing was not always in accordance with Section 604.22(1), Florida Statutes. Particularly, there was no record of the quality of the squash, no explanation of the adjustments to the original price, or if an explanation was given, it was not clear and no record of when payment was received by Try Fresh from the purchaser making it difficult to determine the timeliness of the accounting of the sales and payment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent Try Fresh Produce Co., be ordered to pay Petitioner Green Grassing Co., Inc. the sum of $2,437.08. DONE AND ENTERED this 28th day of July, 1995, in Tallahassee, Florida. WILLIAM R. CAVE, 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 28th day of July, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-1532A The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted jointly by the Respondents Aetna and Naples in this case. Both Petitioner Green Grassing Co., Inc. and Respondent Try Fresh Produce, Co. elected not to file proposed findings of fact and conclusions of law as allowed under Section 120.57(1)(b)(4), Florida Statutes. COPIES FURNISHED: J. Ragon Barnett, III 6 East Broadway Street Ft. Meade, Florida 33841 Hank Cord Post Office Box 995 Zolfo Springs, Florida 33890 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing & Bond Department of Agriculture and Consumer Services Mayo Building, Room 508 Tallahassee, Florida 32399-0800
Findings Of Fact At all times pertinent to the allegations herein, Respondent, Leslie G. Hessings, held Florida Alcoholic Beverage License Series Number 2-COP, License Number 60-351, for the Twilight Inn located at 121 Southwest Fifth Street, Belle Glade, Florida. The Palm Beach County Sheriff's Department, based on information received from street sources indicating the presence of narcotics on the Respondent's premises, on January 25, 1983, undertook an investigation of Respondent's operation through the use of a confidential informant subsequently identified as Samuel Colman. During the early part of the day on January 25, 1983, Sergeant Richard Browning of the Belle Glade office of the Palm Beach County Sheriff's Department, conducted a formal briefing of the confidential informant, Mr. Colman, as to his duties in the impending investigation. Mr. Colman was a professional informant who had worked for the Sheriff's Department before. Consequently their briefing was primarily to tell him where to go as he was already familiar with the procedures. His person and his vehicle were thoroughly searched for drugs and found to be completely clean. He then was furnished a hidden transmitter that would permit everything he said and did to be heard by Sheriff's Department agents who would be posted nearby with a receiver. Robinson and Hallar gave Colman $20.00 in money belonging to the police department and sent him to attempt to make a purchase of a controlled narcotic in the Respondent's establishment. At all times from the instant Mr. Colman was searched and wired until such time as he entered the establishment approximately 400 or 500 feet down the street from where Robinson and Hallar were parked in their car, Colman was in their sight. They saw Colman enter the bar; heard him carry on small talk with some other individuals; and order a beer. After ordering the beer he engaged in conversation with some individual about buying reefers. It appeared to Hallar and Robinson that this individual with whom Colman spoke regarding buying marijuana was the same individual from whom he purchased the beer, the bartender but neither knew who the voice belonged to. In fact he did make a purchase in the bar and after finishing his beer, left. From the time Colman left the bar until he arrived at the car where Browning and Hallar were sitting, he again was constantly in sight. When he got to the car, he pulled from his pocket two (2) bags of what was subsequently identified by the Palm Beach County Sheriff's Department Crime Lab as marijuana, and gave them to Sergeant Browning. Browning and Hallar, accompanied by Mr. Colman went back to the bar area later in the afternoon just about dusk and sent Colman back to the bar to try and buy from the owner/manager whom they knew to be Shirley Hessings. Before going in the second time, the informant was again thoroughly searched, as was his vehicle, and he was provided with police money. From the time he left the two officers until he entered the bar he was constantly in their sight. Colman was again wearing the radio transmitter and when he entered the bar the officers heard the juke box and heard Colman speak to several unidentified individuals. They also heard him speak to someone identified to them as Shirley and heard him say after leaving the bar that he bought a $8.00 bag from a black female who was identified to him as Shirley. The officers were unable to hear any of the conversation between Colman and the individual identified as Shirley because of the background noise on the tape caused by the juke box. However, when he arrived at the car where the officers were located, after being in constant sight after he left the bar until arriving at the car, he turned over to them an $8.00 bag of what was subsequently identified by the Palm Beach County Sheriff's Department Crime Lab as marijuana. Samuel Colman is dead and therefore did not testify at the hearing. The testimony of both Sergeant Browning and Detective Hallar concerning what Colman told them as to the identity of the individuals from whom he purchased the marijuana is hearsay and, as such cannot, without corroboration, serve as the basis for a finding of fact. It must be concluded therefore that while there is no doubt that Colman purchased marijuana while he was in the Twilight bar on January 25, it cannot be established who he purchased it from. Based on the two (2) buys, however, the police obtained a search warrant for the premises that was used as the basis for a search conducted on January 26 or 27, 1983. When they entered the Twilight bar pursuant to the warrant, the only individual present at the time was a black female identified as Beverly Hessings. Beverly Hessings is Respondent's sister. Detective Hallar was involved in the search of the Twilight Inn on January 26. When he entered the bar he found nineteen (19) $8.00 bags of a substance, subsequently identified as marijuana, packaged for sale in the store room. The little bags were hidden from plain view and were located in a candy box lid. They were identical with those previously given him by Samuel Colman after his two (2) controlled buys. Officer Hallar left the little baggies where they were and called the evidence custodian, Sergeant Braido, who took custody of them. Officer Dowdell of the Belle Glade Police Department was also a participant in the search on January 26 or 27. During the search he found a brown paper bag containing twenty-one (21) small manila envelopes which was under a hole in the cushion on a bench which was located on the north side of the dance floor. Dowdell took the paper bag to Detective Simons who in turn immediately released it to Detective Braido. These twenty-one (21) bags, each contained a substance which was subsequently identified as marijuana. When Dowdell entered the bar he observed between ten (10) and twenty (20) patrons. The officers had the patrons stand up against the wall while the search was going on. The bar is dark even during the day time, but it is lighted on the inside, though dimly, and it is possible to see. While the search was going on a policeman was stationed at each exit and it is unlikely any of the patrons or staff were able to exit the bar from the time the search was commenced. Another participant in the search was DABT Investigator Clark Raby, who was present because of a request from the Palm Beach County Sheriff's Department due to the fact the premises were licensed by Petitioner. Raby's area to search was the kitchen and laid out on a table in the kitchen he found what appeared to be several lottery tickets which he confiscated and maintained until he was able to relinquish them to the evidence custodian. These tickets, which appeared to be yellow sales slips bearing no proprietory identification - the kind of check one might get in a hardware store - had numbers printed on the bottom, but also had a series of numbers written on the check along with amounts of money written thereon. These tickets were in plain view on the table in the kitchen and Raby identifies them as bolita lottery tickets by virtue of his experience with such kinds of tickets in the past. At the close of Petitioner's case, respondent moved to dismiss the Notice To Show Cause on the basis that Petitioner had failed to establish that Respondent had a license on the dates alleged on the Notice To Show Cause. He contended that the actual license or a copy thereof was not admitted into evidence, which is true, and that the testimony of Lieutenant Smith indicated only that Respondent had a license in January, 1983. This testimony was adequate, absent a showing that Respondent held a license for less than an entire month, to establish jurisdiction and the motion was denied. Respondent also moved to dismiss on the basis that the testimony of the investigating officers as well as the sheets upon which the chemist's analysis of the substances was recorded reflected dates other than those alleged in the Notice To Show Cause as being the dates on which the offenses took place. It was obvious from an examination of the analysis sheets that they reflected, as to the individual buys, the correct date. As to the substance discovered during the search, the analysis sheet reflected January 27, which is one day later than the date listed in the Notice To Show Cause. The Notice to Show Cause reflected that the substance was on the license premises on or about January 26, which is sufficiently related in time to the evidence to support a denial of the motion to dismiss.
