Findings Of Fact Florida Export Tobacco Co., Inc., Petitioner, operates, as a concessionaire, duty-free stores at Miami International Airport. The premises are owned by the Dade County Aviation Department and the stores are leased to Petitioner pursuant to the terms of a lease and concession agreement dated 19 July 1977, effective 1 August 1977 and continuing until 30 September 1987. (Exhibit 1 to Deposition) Pursuant to this agreement Petitioner occupies six stores and additional warehouse space at the Terminal Building and the International Satellite Facility. Article II in Exhibit 1 entitled Rental Charges and Payments provides for rental payments for each store and space occupied based upon a fixed fee of $X per square foot per year with the dollar per square foot cost varying with the space occupied. In addition to this minimal rental fee, Section 2.03 of this agreement provides: County Profit Participation: As additional consideration for the rights and privileges granted Concessionaire herein, Concessionaire shall pay the County a portion of its profits. As a convenience and in order to eliminate requirements for detailed auditing of expenditures, assets and liabilities and in order to provide an even flow of annual revenues for budgeting and bond financing purposes, said portion of the profits of the Concessionaire shall be calculated as the amount by which sixteen percent of the monthly gross revenues, as defined in Arti- cle 2.07, exceeds the sum of monthly rental payments required by Articles 2.01 and 2.04. Concessionaire shall pay such portion of its profits to County by the twentieth (20th) day of the month following the month in which the gross revenues were received or accrued. For the period October 1, 1982 through September 30, 1987, the percent of monthly gross revenues to be paid by Concessionaire as a portion of its profits shall be eighteen percent, payable and calculated in the same manner as above. The lessor provides air conditioning, garbage and sewage disposal facilities, security, and many other services to the lessee in addition to the space leased. From October 1976 through September 1977 Petitioner paid $40,499.66 in additional sales tax over the guaranteed minimum amount; for the year ending September 1978 this additional sales tax was $66,284.85; for the year year ending September 1979 this additional sales tax was $93,837.15; and for the year ending September 1980 this additional sales tax was $137,521.87. (Exhibit 2 to the Deposition) As the owner of the facility Dade County has the option of operating the various facilities and services available to the public or having these operated by a concessionaire. Dade County has opted for the manner it believed more profitable to the county and in the case of the duty free stores this has resulted in leasing the space to a concessionaire. The hotel at the airport is operated by the Aviation Department under a management contract. It is Petitioner's and Dade County's position that a sales tax should not be paid on the county profit participation charges because, if the Aviation Department operated the stores there would be no sales tax on any rental income and the County operates the facilities at the airport so as to maximize profits to the county. Therefore by requiring the concessionaire to pay sales tax, this reduces the profit available to share with the County.
The Issue The issue to be determined is whether Respondent committed an unlawful employment practice by discriminating against Petitioner because of her sex and/or age, and/or by retaliating against her for engaging in a protected activity.
Findings Of Fact Petitioner, a female, is a former employee of Respondent. At the time her employment with Respondent was terminated on December 31, 2015, she was 60 years old. Petitioner was a salesperson for Respondent, a company that sells specialty medical devices to medical providers and facilities. Petitioner’s background gave her technical knowledge regarding the cardiac-related product line, as she had obtained a certification as a perfusionist in 1978. A perfusionist operates the heart-lung bypass machine during open-heart surgery. By 1985, Petitioner moved into sales and has focused on cardiac products because of her background. Petitioner began her employment with Arrow, Teleflex’s predecessor, as a salesperson for the cardiac unit in August 2003. At some point, Arrow was acquired by Teleflex; the record is unclear as to exactly when this occurred, but it may have been sometime in late 2007. Petitioner testified that the product line has changed over the years, as there used to be artificial heart-related products, which were her “great loves” (R. Exh. 28 at 44), and why she started working there, but the company got rid of those programs. Under Teleflex, the main big-ticket piece of capital equipment sold by salespersons in the cardiac unit is the intra-aortic balloon pump. In addition, salespersons sell disposable products, such as catheters and cannulas used with the pump, in cardiac surgeries, and catheterization lab procedures. The organization and composition of the cardiac unit’s sales territories and the salespersons assigned to them were subject to change and did change throughout Petitioner’s time with Arrow and then Teleflex. Likewise, the organization and composition of sales divisions/regions and the managers assigned to be in charge of them were subject to change and did change throughout Petitioner’s employment. Sales divisions and sales territories within divisions were created, combined, split up, and reconfigured, and both salespersons and managers were added, eliminated, and reassigned. Petitioner attempted to recount the history of changes in sales territories that affected her during her years at Arrow and then Teleflex.1/ When Petitioner started in 2003, her sales territory was most of the state of Florida up to Tallahassee, and all of the cardiac unit’s sales representatives were under the supervision of a single manager. At some point, separate sales divisions were created, and a new manager was assigned to supervise Petitioner and others in her division. At another point, when a sales associate was let go, Petitioner’s sales territory was expanded to add the Florida panhandle and part of Alabama (to Mobile). At another point, separate sales territories were combined, and the sales associate who covered sales in Georgia and Alabama was let go. At the request of her new manager, Petitioner helped train a new sales associate to cover Georgia and Alabama. Petitioner was successful in sales for Arrow, and received several honors and awards for her achievements. At the end of her first year of employment in 2004, she was honored as “rookie of the year.” She received the chairman’s club award twice, in 2005 and 2007, for ranking in the top 10 percent of sales company-wide. Finally, she received the circle of excellence award in 2007, for having achieved her sales quota numbers three years in a row. Petitioner was promoted to executive sales representative, although she cannot remember exactly when that was. Her sales role was not changed, but she got a pay increase and some increased duties in the area of training new sales associates. When Teleflex acquired Arrow, the sales associate trained by Petitioner for the Georgia-Alabama sales territory was let go. Both Georgia and Alabama were added to Petitioner’s territory. From her home base in Florida (she lived in Spring Hill), she covered the three-state sales territory of Florida, Georgia, and Alabama. Another change affecting Petitioner occurred when the state of Georgia was reassigned to a salesman in North Carolina and Petitioner’s territory was reduced to Alabama and Florida. Later, that salesman was promoted to manager for the eastern division, and Georgia was added back to Petitioner’s sales territory. It is unknown when these changes occurred, but from that point until early 2014, Petitioner’s sales territory remained the three-state area of Florida, Georgia, and Alabama. Somewhere along the line, Petitioner experienced another changeover in management, with Christine Mazurk assuming the position of eastern regional manager. Ms. Mazurk supervised Petitioner from approximately 2010 to 2013. Petitioner was evaluated annually using a standardized format called the performance management process (PMP). The most heavily weighted area in the PMP is the annual formulation of business objectives and target goals, expressed in terms of sales revenue dollars by product line. In addition to business objectives, other categories evaluated include competencies and development. The objectives and target goals are established annually in the first quarter of the calendar year. The process begins with the employee who creates and submits the objectives and goals to his or her manager, who must accept them. At the end of the year, the employee performs a self-evaluation, rating each category as 1 (does not meet), 2 (partially meets), 3 (fully meets), or 4 (exceeds), while the manager similarly rates the employee in each category. The manager’s ratings are used to calculate an overall “final rating.” The final rating scale is as follows: between 1 and 1.4 means “does not meet”; between 1.5 and 2.4 means “partially meets”; between 2.5 and 3.4 means “fully meets”; and between 3.5 and 4 means “exceeds.” In 2011, Petitioner rated herself at 2 for business objectives, which she believed were partially met. She rated her overall performance at 3.0. In contrast, from her manager’s perspective, Petitioner did not meet her business (sales revenue) objectives, achieving only 73 percent of her revenue target for 2011. The manager gave Petitioner the lowest rating of 1 in business objectives, and an overall final rating of 2.4, partially meeting performance expectations. Petitioner added the comment in her PMP that the economy really hurt sales in 2011. Petitioner’s performance was worse in 2012, according to the PMP that she and her manager, Ms. Mazurk, completed. Once again, Petitioner’s self-evaluation was higher than her manager’s. Petitioner’s overall rating for herself was 2.9, but her manager’s overall rating and the final rating on her PMP was 2.0, a little lower than in the prior year in the range of only partially meeting her performance expectations. In this PMP, Petitioner offered the following comment: “Really feel the baseline numbers were off.” At some point in 2012, a business profile of Petitioner was prepared. Although the source of this profile was not entirely clear, Petitioner said that she thought it had been prepared by her manager (who, at the time, was Ms. Mazurk) in connection with a promotion that Petitioner was seeking. The profile reported that Petitioner had been employed at the company for nine years, and gave her sales performance in relation to her target goals for 2008 through 2011. The profile also identified Petitioner’s “developmental needs” in the following three areas: Communication skills (email and verbal with support team) Emotions run high Sales Training Petitioner did not receive the promotion, and continued as an executive sales representative in the sales territory of Florida, Alabama, and Georgia, under Ms. Mazurk’s management. In 2013, Petitioner’s PMP was not completed, apparently because Petitioner was out for two weeks with an injury, and then later in the year was out for two months for a surgical procedure and recovery. In the nine and one-half months that she worked (almost 80 percent of the year), she reportedly achieved sales revenues of 54 percent of her target revenue goal for that year. A reorganization at the end of 2013 resulted in a new manager for Petitioner, James Phillips. Mr. Phillips was the manager for the western North America sales region, but served temporarily as Petitioner’s manager, from January to May 2014, while the company was looking to bring in someone new to manage the eastern region. Mr. Phillips met with Petitioner in the beginning of 2014 to inform her of another realignment of sales territories, which would go into effect in March 2014. Insofar as the changes affected Petitioner, a new sales territory was being created, called the “south Florida” territory, and the company’s plan was to hire a new salesperson for the new territory. More accurately, the newly created sales territory covered more than just south Florida; it included all of the east coast from Jacksonville south, the west coast up to Tampa-Saint Petersburg, and part of central Florida, including Orlando. At the same time, the state of South Carolina would be added to Petitioner’s reconfigured sales territory. The impetus for creating the new south Florida territory was evidence showing that this highly populated market had been underpenetrated. In other words, Petitioner, who had been the area’s sole sales representative for more than 10 years, was not accomplishing the level of sales expected for this market. Accordingly, the business judgment was that splitting up the state and assigning the underpenetrated south Florida market to a new salesperson would promote increased market penetration by making that market the sole focus of the new salesperson.2/ Petitioner disagreed with splitting the state into two territories, but said that she could understand why the company wanted to create a new south Florida sales territory; as she stated, that market is very different from north Florida. However, solely from the perspective of the lost sales opportunities for herself, she voiced her disagreement with the line-drawing for the new territory. In a letter she sent to her new manager, as well as to three members of upper management, she requested that management reconsider how to split the territory within the state of Florida, and asked that she be allowed to retain the Orlando market. Petitioner’s letter also reported that she was “very excited” about the addition of South Carolina to her sales territory. Petitioner’s letter did not result in a reconsideration of the March 2014 territory realignment. Therefore, beginning in March 2014, Petitioner’s sales territory included the Florida west coast, central Florida north of Tampa/St. Petersburg from Ocala north to the state line, and the Florida panhandle, plus all of the states of Alabama, Georgia, and South Carolina. When the decision was made to create a new south Florida territory, a specific salesperson had not been identified for that new territory. Petitioner claims that she asked to be assigned to the new territory, but was refused. No evidence was presented to substantiate her claim; instead, the letter she wrote to her superiors about the realignment only asked that the territories be redrawn so that she could retain the Orlando market, while expressing her enthusiasm about acquiring the state of South Carolina. In May 2014, John Bowman was brought on board for the position of eastern regional manager, covering eastern United States and Canada. He was hired by the president of the company because the eastern region was underperforming. Mr. Bowman was charged with improving the business performance of the sales team so that sales would reach and sustain expected goals, which Mr. Bowman said is his forte. Mr. Bowman is very direct with the sales representatives under his charge. He is results-oriented and does not mince words when it comes to identifying deficient performance and making corrective “suggestions” that may sound more like demands. Thereafter, if he observes a continuation of the performance deficiency he has tried to correct, he is quick to point that out. That is his management style, and why he believes he has been effective in achieving results: “In sales you’re constantly measured by your results. You’re paid on your results. You’re measured on your results. You’re ranked on your results. I am as well and so is my president. And I make that very clear with sale individuals and always have.” (Tr. 138). As part of the management transition, Mr. Phillips provided Mr. Bowman with his assessment of Petitioner as a salesperson. Mr. Phillips had not served as Petitioner’s manager long enough to conduct a formal year-end PMP evaluation, and so the assessment was characterized as a “personal assessment” and was not placed in Petitioner’s personnel file.3/ While both positive and negative qualities were described in the assessment, there was more bad than good; however, Mr. Bowman set the assessment aside so that he could form his own opinions. He considered the points raised by Mr. Phillips as simply identifying some issues that he should look out for. Mr. Bowman was not based in the same city or even the same state as Petitioner. He did not meet with her until after he had been employed as her manager for just over one month. As Petitioner acknowledged, he had much ground to cover, as his region included all of North America east of the Mississippi from Florida up into Canada, and as she put it, “he tried to be fair with everyone.” (Tr. 100). Before Mr. Bowman ever met Petitioner, he fielded complaints from two different customers who called the Teleflex toll-free number to track down Petitioner’s manager. Both complaints were perceived by Mr. Bowman to be communication problems, i.e., the issues would not have arisen if Petitioner had communicated better with the customers. One of the customers complained to Mr. Bowman that Petitioner was “useless in giving us the information we needed.” (R. Exh. 10). Petitioner’s attempted explanation of the two incidents tended to lend credence to Mr. Bowman’s assessment and the customer’s comment. Ultimately, she sought to minimize their significance by characterizing them as only two isolated incidents during her long tenure. However, from Mr. Bowman’s perspective, these were two customer complaints that he had to field in his first month as Petitioner’s manager, unlike what he faced with any other sales representative there. When Mr. Bowman met with Petitioner on July 1, 2014, he talked with her generally about her background and abilities, which he complimented, and he addressed the concerns he had from the two customer complaints. He also identified two other areas where he thought her performance required improvement. In an email sent the following week, he summarized their discussion (including the compliments) and the three areas where he wanted to see her improve. These were: her interaction and communication with customers, evidenced by the two recent incidents requiring him to intercede; her communications with internal Teleflex personnel, where her failure to provide clear, complete, and precise information resulted in “elongated email strings” and confusion; and her too-frequent requests to him for low pricing approval. Petitioner was taken aback by these criticisms, which she took as demeaning and condescending, because she viewed herself as a proven performer who was highly respected. She did not react well to the email summary of these points, which she viewed as a paper trail intended to bring her down.4/ Nonetheless, Mr. Bowman’s points were shown to be valid, and, indeed, consistent with similar comments made by prior managers, including the manager who noted in Petitioner’s profile in 2012 that Petitioner needed to work on her verbal and e-mail communication skills. Mr. Bowman was clear in his meeting with Petitioner, in the e-mail summary of that meeting, in subsequent discussions, and in his testimony at hearing that he fully expected Petitioner to learn from his constructive criticisms and improve her performance. Moreover, he did not view her performance deficiencies as extreme enough to warrant formal action, such as placing her on a performance improvement plan. Instead, he quickly and consistently pointed out to Petitioner each time he saw a continuation of the behavior he had criticized, and he repeated the criticism while noting that he was repeating prior criticism, as was his way. Mr. Bowman testified credibly that he treated all of the sales representatives under his charge the same way, and was consistent in the way he communicated both positive capabilities and performance issues requiring improvement. Petitioner offered no evidence to prove that Mr. Bowman treated her any differently from the way he treated other sales representatives. One of Mr. Bowman’s first tasks as the new eastern region manager was to participate in interviews for a new salesperson to be assigned to the new south Florida territory. After interviews by Mr. Bowman, the president of the company, the director of finance, the director of marketing, and another manager, and after a third-party psychological exam, Eric Patton was hired in August 2014 as a sales representative for the new south Florida territory. At the time he was hired, he was approximately 34 years old. Although the territory changes went into effect in March 2014, Petitioner continued to cover sales in the new south Florida territory, for which she was compensated, until September 2014 when Mr. Patton assumed coverage of the territory. Petitioner was asked to provide Mr. Patton with information on her contacts in the new territory, and she did so. Petitioner also spent several hours with Mr. Patton at her home to demonstrate how she made her sales pitches, and she also gave him a script. Thereafter, she took a couple of day trips with him to introduce him to some customer contact persons in his new territory. These were meet-and-greet sessions only, not extended visits involving actual sales presentations. Petitioner’s view is that it was not fair that she lost the pipeline of sales opportunities in the south Florida territory to Mr. Patton. When it came to losing this, or any, sales territory, Petitioner complained that she was losing out on the “pipeline” of sales opportunities that she had cultivated but not yet closed. However, when Petitioner gained sales territory, she complained about the disadvantage of starting out from scratch in a new area. Neither viewpoint appears to comport with the reality that every time sales territories are changed, the new salesperson has some head start by virtue of the work of the predecessor salesperson. But there was no basis shown for Petitioner’s sense of “entitlement” to the benefits of a sales territory after the territory is assigned to someone else. That is particularly true here, where Petitioner did not refute the legitimate business purpose of an underpenetrated market that led to the territory reconfiguration. The company compensation system for sales representatives was based on revenue recognized from sales, not on unrealized “pipelines” for future business. Petitioner claimed that in one instance, she believes that Mr. Patton was treated more favorably than her while they were both working in sales in their respective territories. Petitioner and several other salespersons (both male and female) had closed some pump sales with contingency clauses written in the contracts whereby the customer would be allowed to return the pump and upgrade to a new model at no additional cost if a new model became available within 18 months after the sale. The company determined that under federal law, the revenue from those sales could not be recognized, but rather, had to be held in escrow until the contingency period had passed. Since sales commissions were paid on the basis of sales revenue recognized by the company, sales commissions were deferred as well. Mr. Bowman explained credibly that these deferred compensation sales had been allowed under a policy in place before he was employed, but that Petitioner’s deferred sale was the last of several allowed before the policy was discontinued. Petitioner testified that Mr. Patton told her that one year after her deferred compensation sale, he made a sale in which he was allowed to offer verbal, but not written, assurance that an upgrade to a new model would be allowed, and his commission was paid on the sale. However, Petitioner offered no non-hearsay evidence to substantiate her description of what she was told, and her description was refuted by Mr. Bowman’s credible testimony. In any event, Petitioner’s unsupported description did not establish two sales that would be considered the same so as to require the same treatment regarding payment of commissions. No finding can be made that Mr. Patton was treated more favorably than Petitioner in this regard, as claimed. Petitioner and Mr. Bowman completed Petitioner’s PMP evaluation for calendar year 2014. The evaluation was similar to those for Petitioner in 2011 and 2012. Petitioner rated her performance either the same or more favorably than her manager did, with the result that her overall final rating was 2.2, compared with her self-evaluation of 2.4. In mid-2015, the company lost a large contract with HPG, which is a large group purchasing organization (GPO)-- probably the largest in the country, according to Petitioner. Instead of contracting again with Teleflex, HPG entered into a sole source contract with Teleflex’s competitor. As Petitioner acknowledged, the recent advent of GPOs had dramatically changed the sales business, because the GPOs control access to potential purchasers. Purchasers using the GPOs are no longer free game for salespersons to explore new sales opportunities. For Teleflex, this meant that as of mid-2015, its salespersons could not solicit new sales from potential purchasers using HPG, because HPG would direct those purchasers to Teleflex’s competitor pursuant to the new sole source contract. As Petitioner acknowledged, the loss of the HPG contract was a substantial loss for Respondent, with the significant impact coming in the loss of growth opportunity to develop new business. In June 2015, the president of the company raised the possibility of a reorganization to consolidate the north Florida and south Florida territories, in light of the loss of the HPG contract. Mr. Bowman began discussions with senior management about possible changes to the sales territories. In late September 2015, Mr. Bowman provided senior management with a Power Point presentation that set forth a proposed reorganization of the southeast. His proposal was to reconfigure the two existing territories, to create a single Florida territory and a separate “Tidewater” territory covering Alabama, Georgia, and South Carolina. As he proposed the reorganization, the two sales representatives--Petitioner and Eric Patton--would cover the two reorganized territories. Meanwhile, Mr. Bowman continued to critique Petitioner’s performance in some fairly strident emails and conversations. In an incident on September 30, 2015, Petitioner submitted a quote request for a new pump for one Baycare hospital, while another Baycare hospital was also considering a new pump. According to Petitioner, the issue was not the price to quote for the new pumps, as she stated that the price had been set and was “already on a contract.” (R. Exh. 28 at 154). Instead, Petitioner said that the issue was whether the hospitals would get a credit for the cost of unusual repairs being made to their existing pumps. In contrast, according to Mr. Bowman, the company had already agreed that the repair costs would be applied to the purchase price, but the issue was what price should be quoted for the new pump, which he said had not been set by any contract. Mr. Bowman found the price requested by Petitioner to be too low, and instead of approving her price request, he sent her an email at 5:35 p.m. on September 30, 2015, questioning her price approval request, while noting the same price would have to be given to both Baycare hospitals. He ended the email as follows: “Call me tomorrow to discuss.” (R. Exh. 14 at 1). Instead of acknowledging Mr. Bowman’s email and waiting to talk to him first, Petitioner sent an email to the customer, with a copy to Mr. Bowman, the next morning. The email apologized for “not getting you the outright purchase quote yesterday,” explaining that the delay was because “[t]he outright quote required management approval[.]” (R. Exh. 14 at 2). After reading his copy of the email, Mr. Bowman called Petitioner and reacted harshly, telling Petitioner that she threw him under the bus by sending the email to the customer without discussing it with him first, and that she had committed a fire- able offense. While harsh, Mr. Bowman’s reaction was not off- base. Petitioner’s email tends to undermine her testimony that the issue was not the purchase price which she claimed was fixed by contract. And while Petitioner testified that she tried to call Mr. Bowman that afternoon or evening before she sent the email the next morning, Petitioner did not mention the email from Mr. Bowman. Surely, when waiting to hear from her manager, she would have read his incoming email before sending the email to the customer. Petitioner failed to explain why she did not follow her manager’s instruction to discuss the matter with him.5/ Following their telephone conversation, Petitioner called the human resources department and spoke with the manager, Jennifer Robichaud, to complain about Mr. Bowman. The essence of her complaint was that at 60 years old and close to retirement, she felt that Mr. Bowman was gunning for her and trying to push her out.6/ She complained about the March 2014 territory realignment, which she though was unfair because a large part of her territory was given to the new sales representative, “a young guy.” She told Ms. Robichaud that she has always been a top performer, and although she recently had not been closing sales on pumps, that was because she was starting from scratch in a new territory. She said that until Mr. Bowman came on board, she never had any issues with her past managers. Although she acknowledged that she and Mr. Bowman have very different styles, she felt that Mr. Bowman did not accept her for who she is. Ms. Robichaud assured Petitioner she would investigate. They spoke on a Thursday; Ms. Robichaud was able to discuss the matter with Mr. Bowman the following Tuesday, October 6, 2015. She relayed Petitioner’s complaints that she felt that Mr. Bowman was trying to push her out, and her feeling that it was unfair to give her pipeline to Mr. Patton. Mr. Bowman denied that he was trying to push Petitioner out of the company, and said, instead, he wants her to succeed. With regard to her perception about pipeline fairness, Mr. Bowman responded that all sales representatives are expected to have a pipeline of business opportunities, but that it is closing the business that matters. In the days thereafter, he sent Ms. Robichaud information pertinent to the investigation, including email communications with Petitioner, the assessment from Petitioner’s prior manager, and information about the customer complaints. Ms. Robichaud also investigated Petitioner’s annual PMP ratings and her performance through September 2015. She also sought and later received the data supporting the decision to realign the Florida territory in 2014. As before, Mr. Bowman continued his practice of addressing Petitioner’s performance on issues that had previously surfaced, which he had previously addressed with Petitioner. Thus, on October 9, 2015, Mr. Bowman criticized Petitioner for her email communications with customer service in which she asked for free replacements of medical supplies to be sent to her home for a customer, without giving sufficient information. The response from the customer service representative stated he was “a bit confused” by the request, and asked for more information: “Donna, your input is appreciated here.” The representative had to ask questions to get the information necessary to handle the request appropriately, such as whether the supplies were being provided for free to respond to a complaint. Mr. Bowman’s criticism was that Petitioner’s email request to customer service was “an example of a lack of professionalism and clarity in your communications. I have addressed this issue with you multiple times over the past year and unfortunately, you have not demonstrated improvement.” (R. Exh. 15). On Monday, October 12, 2015, Petitioner forwarded Mr. Bowman’s email criticism to Ms. Robichaud and asked her to call. They spoke Tuesday morning. Ms. Robichaud told Petitioner that she had been looking into Petitioner’s concerns and had spoken with Mr. Bowman. Ms. Robichaud told Petitioner that Mr. Bowman was not trying to push Petitioner out of the company, but was looking for performance results, and Ms. Robichaud did not find any reason to believe Petitioner was being treated unfairly. Ms. Robichaud said that Petitioner and Mr. Bowman needed to talk, because in Ms. Robichaud’s opinion, the problem appeared to be a clash of styles, which is not uncommon with a change in managers, and that they needed to learn to adapt. Ms. Robichaud talked to Mr. Bowman afterwards. She encouraged him to reach out to Petitioner, hear her concerns, and try to understand her perspective. She reminded him that he has acknowledged that he is very direct, and “perhaps a few small changes in how he communicates with her can have a positive impact.” (R. Exh. 18 at 2). Mr. Bowman contacted Petitioner, and they agreed to meet in person. The meeting took place on October 16, 2015, in Tampa. Before the meeting, Petitioner requested a copy of her personnel file from Ms. Robichaud. Petitioner testified that at the meeting, Mr. Bowman was very civil and respectful to her. He said that he thrives on diversity and enjoys the challenge of working with different kinds of people. He assured her that any decisions that are made are always going to be about performance. Petitioner reacted curiously to this: she testified that she realized that nothing was going to change, while admitting that Mr. Bowman was acting completely differently than he had before. Petitioner said that he was “extremely scripted,” and probably had been coached on what to say by the human resources manager. Yet she also complained, inconsistently, that the human resources department did nothing to help her or to facilitate a meeting with Mr. Bowman. According to Mr. Bowman, Petitioner said that she did not think she would be able to meet the objectives set for her. According to Petitioner, she said that he should just stop (being civil to her), that she knew what he was doing, and knew that he wanted her to go away. Regardless of which lead-in is accurate, Petitioner went on to offer that she would resign her employment at the end of the year if the company paid her the deferred commissions, and her salary and benefits for six months. Mr. Bowman was genuinely surprised by Petitioner’s offer. Shortly after Mr. Bowman’s meeting with Petitioner, Mr. Bowman was informed by his superiors that his proposal to retain but reconfigure two sales territories with two sales representatives in the southeast had been reviewed, but was rejected because it would not be a viable solution to address the loss of the HPG contract. Instead, the decision was made to consolidate the southeastern states--Florida, Georgia, Alabama, and South Carolina--into a single sales territory, covered by one salesperson. Mr. Bowman was told to extract metrics for the time period that Petitioner and Mr. Patton were both working sales in their respective territories, including their recognized sales revenues compared to their quotas, pump sales, and 2014 PMP rating. He was also told to add non-metric qualitative considerations regarding any business practice and customer interaction issues. Mr. Bowman pulled the data, and on October 23, 2015, he provided his superiors with his performance comparison of Mr. Patton and Petitioner. For the period of September through December 2014, Mr. Patton’s first quarter with the company, the quantitative metrics were mixed. Mr. Patton’s overall PMP performance rating of 2.7 was better, falling within the “fully meets expectations” range, whereas Petitioner’s overall rating of 2.2 only partially met her performance expectations. Mr. Patton sold one balloon pump during his first few months with the company. Petitioner was credited with zero sales of balloon pumps during this time, although she noted that she had at least one deferred sale that was not counted during this time. Petitioner achieved 104 percent of her overall sales quota from September to December 2014, although the revenue recognized was from disposables and not pump sales. Mr. Patton achieved 73 percent of his sales quota in his first few months with the company, but that included recognized revenue from a pump sale. For the first three quarters of 2015 (Mr. Bowman was able to extract data through the end of September 2015), the quantitative metrics were decidedly in Mr. Patton’s favor. During this period, Petitioner had zero pump sales, while Mr. Patton had seven pump sales, and Petitioner achieved 83 percent of her sales quota through sales of disposables, whereas Mr. Patton achieved 112 percent of his sales quota, largely from pump sales. On the qualitative considerations, Mr. Bowman summarized the issues he had been addressing with Petitioner in an attempt to bring about improvements, including communication issues with customers and internal personnel, as well as his concerns about her frequent requests for low pricing approval. He also noted a recent situation where Petitioner lost a pump sale to a hospital in Alabama. When he had asked Petitioner why she thought she did not get the sale, she explained to Mr. Bowman that the chief of perfusion “may have felt I was too aggressive,” that Petitioner “felt there was tension between he and I,” and “obviously something happened here.” (R. Exh. 22, last page). Petitioner acknowledged in her deposition that what Mr. Bowman said was true, but that the tension was due to extenuating circumstances. In contrast, for Mr. Patton, Mr. Bowman reported no issues of concern in just over one year of managing him. As Mr. Bowman testified at hearing, Mr. Patton was an excellent sales representative and Mr. Bowman found no performance deficiency issues to address with him. Petitioner offered no evidence to the contrary, stating that she had no knowledge of Mr. Patton’s performance or the quality of his salesmanship. Based on the performance comparison, Mr. Bowman recommended that Mr. Patton should be retained as the salesperson to cover the consolidated southeastern sales territory. Mr. Bowman’s recommendation was reasonable. Mr. Bowman’s recommendation was accepted and the decision made by senior management was to retain Mr. Patton as the salesperson for the consolidated sales territory and to terminate Petitioner’s employment due to elimination of her sales position. Petitioner presented no evidence to refute the reasonableness of Respondent’s business judgment to consolidate sales territories and reduce one sales position after the loss of the HPG contract. Instead, Petitioner only pointed to the suspicious timing of the decision in relation to her complaint to the human resources department about Mr. Bowman.7/ Petitioner does not contend that anyone other than Mr. Bowman himself discriminated against her or retaliated against her. The evidence does not support Petitioner’s claim that Mr. Bowman discriminated against Petitioner on the basis of her age or her sex, nor does the evidence support Petitioner’s claim that Mr. Bowman retaliated against Petitioner because she complained about him to the human resources department. Instead, the evidence established that when Respondent’s diminished business growth prospects caused it to make the reasonable business decision to reduce its sales positions in the southeast states, Petitioner lost out in a fair comparison on the merits of her performance compared to the other salesperson’s performance. Petitioner’s flagging job performance evident from 2011 forward, while not bad enough to warrant immediate action to terminate her, was not good enough to withstand comparative assessment with Mr. Patton. Petitioner’s view that the choice to retain Mr. Patton must have been a pretext for discrimination or retaliation is in keeping with Petitioner’s inflated view of her own performance. At the same time, Petitioner’s view is also an unfair discredit to Mr. Patton, when the unrebutted evidence was that he was an excellent sales representative. Petitioner admitted that she knows nothing about the quality of his sales work or the quantitative achievements he garnered in just over one year with the company. Although findings on the subject of damages are unnecessary in light of the above findings, even if Respondent had been found guilty of unlawful employment practices, the undersigned would have to find that Petitioner failed to prove her actual economic damages that would have been caused by those employment practices. Petitioner did not present proof of her earnings, and offered only limited evidence of her attempts to mitigate damages with other income and efforts to look for a comparable job. Indeed, in Petitioner’s PRO, this shortcoming appears to be admitted because Petitioner requested an opportunity to submit support for damages. Petitioner’s opportunity to present evidence to support her case was at the final hearing before the evidentiary record closed. There was no request for a bifurcated hearing to address liability, followed by a separate evidentiary hearing on damages if needed. Thus, Petitioner had her opportunity, and failed to prove damages.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief by Petitioner, Donna Earley, against Respondent, Teleflex, Inc. DONE AND ENTERED this 2nd day of March, 2017, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 2nd day of March, 2017.
The Issue The issue to be determined is whether Respondent, Sport Clips, Inc., is Petitioner’s “employer” under the Florida Civil Rights Act of 1992, chapter 760, Florida Statutes (“FCRA”).
Findings Of Fact Based upon the credibility of the witnesses and evidence presented at the final hearing and on the entire record of this proceeding, the following Findings of Fact are made: SCI is a Texas corporation, whose sole office is located at 110 Sport Clips Way, Georgetown, Texas, 78628. SCI’s Chief Executive Officer at the time of the alleged discriminatory events was Gordon B. Logan. SCI is the owner of the “Sport Clips” trademarks and business system. It licenses the Sport Clips trademarks and business system to independent business people. Each Sport Clips franchisee signs a franchise agreement under which SCI licenses its trademarks and the franchisee agrees to abide by certain operating rules that protect the Sport Clips trademarks and brand. In addition, each franchisee pays to SCI a royalty and advertising fee, as well as other fees. Sport Clips is a sports-themed hair-cutting salon which provides customers with haircuts, shampoo, and beard trims. There are approximately 1,800 Sport Clips franchise stores and an additional 75 Sport Clips stores owned and operated by SCI. SCI provides operating rules to its franchisees in a confidential operating manual.2 The operating manual does not cover employment policies, employee compensation, or employee benefits. These employment matters are determined by the individual franchisee. Instead, the operating manual focuses on business operations. According to Gordon Logan, CEO of SCI, the company trademark “[is] the essence of the business. You have to have a trademark and protect that trademark in order to have a viable system, one that franchisees can present in a consistent manner and the public knows what to expect when they come into a franchise business using that trademark.” The purpose of the procedures and specifications in the operating manual is to protect the Sport Clips trademark and brand. If SCI failed to enforce its trademark and brand standards, it could lose the right to use the trademark. Further, it ensures that the public’s expectations are met 2 Neither party introduced a copy of the confidential operating manual into evidence at the hearing and therefore it is not part of the record of this case. no matter which store they visit in the country, and protects the franchisees’ investments in the franchise. The procedures and specifications set forth in SCI’s franchise agreement and operating manual, including requiring franchisees to participate in specific training, use Sport Clips uniforms, and use a particular point of sales system, are typical of the franchise industry. JV-SC is a Florida Limited Liability Company managed by Drew C. Hopper. JV-SC’s sole corporate office is located at 708 Main Street, Houston, Texas. No SCI officer, employee, or representative holds any position with JV-SC, nor does any JV-SC officer, employee, or representative hold any position with SCI. Likewise, SCI has no ownership interest in any of Mr. Hopper’s Sport Clips stores or business entities, and Mr. Hopper and his business entities have no ownership interest in SCI. Over the last 21 years, Mr. Hopper has been involved in approximately 30 Sport Clips stores as a franchisee. Through JV-SC, Mr. Hopper operates eight Sport Clips franchise stores for profit in North Central Florida, including two locations in Gainesville. Mr. Hopper hired Ms. Kelley to manage the day-to-day operations of the Gainesville stores, and Ms. Kelley hired Ms. Turner, with Mr. Hopper’s approval, to manage and cut hair at one of JV-SC’s Gainesville stores. JV-SC has a franchise agreement with SCI with regard to the Gainesville location managed by Ms. Turner (“Franchise Agreement”). Under the Franchise Agreement, SCI granted JV-SC “a non-exclusive and personal license to operate one unit of the Franchised Business in strict conformity with the Franchisor’s standards and specifications” at 2231 Northwest 13th Street, Suite 20, Gainesville, Florida 32608 (“13th Street Location”). Ms. Kelley and Ms. Turner were responsible for recruiting and hiring hair stylists at the 13th Street Location. Ms. Turner was responsible for supervising the stylists at the 13th Street Location. Employees in JV-SC’s corporate office in Houston also handled human resources functions for JV-SC. Mr. Hopper ultimately decided what to pay stylists on behalf of JV-SC. JV-SC set employee expectations and Ms. Kelley and Ms. Turner were responsible for handling employee misconduct and firing decisions at the 13th Street Location. Ms. Kelley and Ms. Turner were also responsible for ensuring that the 13th Street Location was properly equipped with necessary tools and inventory. Mr. Boyd was a hair stylist at the 13th Street Location. He was hired by Ms. Turner on August 30, 2017, and his rate of pay was set by JV-SC at $10 per hour. When he was hired, he completed a new hire form which states in bold print at the top: “JV-SC Investments LLC DBA Sport Clips FL901.” Mr. Boyd’s employment was terminated less than three months after he was hired by Ms. Turner for a violation of JV-SC policy related to a customer complaint. SCI had no involvement in Mr. Boyd’s hiring or termination of employment. During his employment, Mr. Boyd’s work schedule was established by Ms. Turner and his benefits, including holidays, vacation pay, and health insurance, were determined by JV-SC. If Mr. Boyd was going to be late or absent from work, he needed to contact Ms. Turner. Ms. Turner supervised Mr. Boyd’s appearance and conduct while on duty at the 13th Street Location and she conducted his performance reviews. SCI has never exercised control over Mr. Boyd, including his working hours, pay, and vacation benefits. Mr. Boyd’s personnel records were created and maintained by JV-SC and the records repeatedly identify JV-SC as Mr. Boyd’s employer. Mr. Boyd’s paychecks and W-2 were issued by JV-SC and make no reference to SCI. Likewise, Ms. Turner and Ms. Kelley were hired and paid by JV-SC and JV-SC created and maintained their personnel records. SCI has no employment records indicating that Mr. Boyd, Ms. Turner, or Ms. Kelley were ever employed by SCI. JV-SC had an employee handbook based on a template it received from SCI. The handbook was modified by JV-SC and could be modified by JV-SC at any time. Indeed, SCI expressly advised JV-SC to modify the form handbook to ensure it complied with local laws and to reflect the business practices of JV-SC. The employee handbook identifies JV-SC in bold red print on the front cover and provides “Sport Clips stores are independently owned and operated franchises. Team Members working in franchised stores are employed by the franchisee (Team Leader) and are not employed by Sport Clips, Inc.” JV-SC’s employee handbook was provided to its employees, including Mr. Boyd. JV-SC’s employee handbook required Mr. Boyd to report complaints of discrimination to his manager, Ms. Turner, or if he had a complaint concerning her, to Mr. Hopper at JV-SC. Under section XVI of the Franchise Agreement, JV-SC “acknowledges and agrees that [JV-SC] is an independent business person and independent contractor.” Further, this section provides in relevant part: Nothing in the Agreement is intended to make either party an agent, legal representative, subsidiary, joint venturer, partner, employee or servant of the other for any purpose whatsoever. During the term of this Agreement, [JV-SC] shall hold itself out to the public as an independent contractor operating the Franchised Business pursuant to a license from [SCI] and as an authorized user of the System and the Proprietary marks which are owned by [SCI]. [JV-SC] agrees to take such affirmative action as may be necessary to do so, including exhibiting to customers a sign provided by [SCI] in a conspicuous place on the premises of the Franchised Business. In compliance with this section of the Franchise Agreement, JV-SC posted at its 13th Street Location a sign in the front of the store which states: “This Sport Clips store is owned and operated by JV-SC Investments, LLC an independent Sport Clips franchisee.” With regard to JV-SC’s employees, the Franchise Agreement provides that “[SCI] shall not have the power to hire, manage, compensate or fire [JV-SC’s] employees and it is expressly agreed that [SCI] has no employment relationship with [JV-SC’s] employees.” The Franchise Agreement further provides: Franchisees are responsible for hiring, managing and compensating their employees within the laws of any jurisdiction in which they operate and are encouraged to consult their own legal counsel to ensure their compliance with all applicable laws. Franchisee and Franchisor recognize that Franchisor neither dictates nor controls labor and employment matters for the Franchisee or the Franchisee’s employees. Over the last 21 years, SCI has never told Mr. Hopper “who to hire, how to hire, how much [he] should hire them for, how much [he] should pay [employees]. It’s always been up to [him].” With regard to JV-SC’s funds and store premises, the Franchise Agreement provides “[e]xcept as herein expressly provided, [SCI] may not control or have access to [JV-SC’s] funds or the premises of the Franchised Business, or in any other way exercise dominion or control over the Franchised Business.” SCI has no control or ownership interest over JV-SC’s bank accounts, set up by Mr. Hopper; SCI is only authorized to withdraw from the accounts the specific royalties and fees set forth in the Franchise Agreement. Proceeds from the sales at the 13th Street Location are deposited into JV-SC’s bank account. SCI does not lease or own the property at the 13th Street Location or any of the 23 locations Mr. Hopper franchises from SCI. JV-SC leases the property from a third party. SCI does not own any real estate in common with or lease any property to Mr. Hopper or his related business entities.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Florida Commission on Human Relations issue a final order finding that Petitioner failed to prove that Sport Clips, Inc. is an “employer” pursuant to section 760.02(7), Florida Statute, and dismissing the Petitions for Relief filed in these consolidated cases. DONE AND ENTERED this 12th day of August, 2020, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 12th day of August, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Robert W. Bauer, Esquire Bauer Law Group, P.A. Suite B 3721 Northwest 40th Terrace Gainesville, Florida 32606 (eServed) Deborah L. Taylor, Esquire SportsClips, Inc. Suite 1200 3730 Kirby Drive Houston, Texas 77098 Stephanie M. Marchman, Esquire GrayRobinson, P.A. Suite 106 720 Southwest 2nd Avenue Gainesville, Florida 32601-6250 (eServed) Maria Perez Youngblood, Esquire Law Office of Robert W. Bauer, P.A. Suite B 3721 Northwest 40th Terrace Gainesville, Florida 32606 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
The Issue The central issues in these cases are the Petitioners' challenges to proposed rules of the Department of Insurance (Department).
Findings Of Fact The Department is the state agency charged with the responsibility to promulgate and enforce rules pursuant to Chapters 624 through 651, Florida Statutes. The Petitioner, FAUA, is an association of automobile insurers whose interests would be substantially affected by the proposed rules, if adopted, as the subject matter of the proposed rules is within the FAUA's general scope of interest and activities. The other Petitioners are premium finance companies licensed pursuant to Chapter 627, Florida Statutes whose interests will also be substantially affected by the proposed rules, if adopted. Mary Russo is a financial examiner/analyst coordinator employed by the Department whose duties involve the regulation of premium finance companies. She has been so employed for approximately six years. Ms. Russo prepared or aided in the preparation of the economic impact statement and the detailed written statement of facts and circumstances drafted in connection with the proposed rules at issue in this proceeding. In pertinent part, the economic impact statement provided: An estimate of the cost or the economic benefit to all persons directly affected by the proposed action. It is anticipated that there will be a minimal increase in cost to a few of the entities regu- lated as some of them will probably need to seek accounting advice and/or computer programming advice to insure that its operations are in compliance with the rule. However, since most entities regulated already comply with this rule, only a few should be affected. RE: Proposed Rule 4-196.002 "Notice of Intent to Cancel to Be Mailed": Estimated cost to the agency-None. Estimated cost or economic benefit to all persons directly affected-cost will depend upon method of providing the required proof of mailing; however, as a matter of sound business practice as well as providing evidence of compliance with the requirements of Section 627.848, F.S., this should (sic) practice should already be in place. This will benefit the insured in assuring compliance with Florida Statutes in the cancellation of financed policies and will benefit the premium finance company in providing a defense in the event an insured brings action for wrongful cancellation of the financed policy alleging that the proper notice was not sent. Estimated impact of proposed action on competition and the open market for employment-none. Analysis of impact on small business-none. * * * Detailed statement of the data and methodology used in making the estimates required by this paragraph-Recent final decision reached by the Supreme Court of Florida in the case of "Insurance Company of North America, Petitioner, vs. Bobby Cooke, etc." wherein the Insurance Company was held liable for wrongfully cancelling an insured's policy. The Court held that "where an insured denies receipt of the notice of intent to cancel required by Section 627.848(1), an insurer who raises the defense of cancellation under Section 627.848 must prove that the premium finance company complied with the provisions of the statute in order to avoid liability under a contract of insurance." * * * The following rules have no cost or benefit to anyone directly affected by the rule, no negative impact on competition, employment, or small business, and no cost or benefit of adopting these rules other than as indicated above: Proposed Rule 4-196.001 "Standard Cancellation Notice" Proposed Rule 4-196.003 "Requirement of Net Worth of Premium Finance Companies" Proposed Rule 4-196.006 "Filing Other Acceptable Collateral in Lieu of Net Worth" * * * 7. Proposed Rule 4-196.010 "Refunds" * * * Proposed Rule 4-196.028 "Right to Cancel for Non-payment of Premium" Proposed Rule 4-196.030 "Definitions" Proposed Rule 4-196.038 "Limit on Additional $20 Service Charge" Proposed Rule 4-196.040 "Assignment of Premium Finance Contracts Permitted for Existing Business or Collateral for Extension of Credit Only" It is the Department's contention that the proposed rules have no economic impact (which the Department defines to mean no additional or new expenses to anyone) because the rules merely clarify and formally implement the Department's policy as it has existed for several years, at least since 1988. Therefore, the Department reasons, if someone has been complying in the past, there should be no changes in operations or new expenses for that entity. Proposed Rule 4-196.001, Florida Administrative Code, seeks to specify that all copies of the standard cancellation notice be printed on pink paper. The insurer only recognizes a cancellation notice if printed on pink paper, therefore, having all copies of the notice in pink will assure that the insurer receives the correct copy. Currently, the insured and the insurer receive pink copies of the notice but the rule has not specified that the premium finance company copy must also be on pink paper. Pink cancellation notices are the industry practice and standard. Proposed Rule 4-196.002, Florida Administrative Code, requires that the proof of mailing for the notice of intent to cancel must be retained in the files so that the Department may verify compliance with Section 627.848, Florida Statutes. This rule makes the retention of the proof specific whereas in the past the Department has merely suggested that the documentation be retained. Proposed Rule 4-196.003, Florida Administrative Code, requires premium finance companies to meet net worth criteria such that even if the standard is met by a means other than a net worth of $35,000, that the company must also be in sound financial condition with a "positive statutory net worth." The Department seeks to assure that premium finance companies are financially sound and maintains that the criteria are necessary and reasonable to meet that goal. Proposed Rule 4-196.006, Florida Administrative Code, identifies the types of collateral the Department will accept for purposes of establishing net worth. Proposed Rule 4-196.009, Florida Administrative Code, seeks to establish guidelines and methods through which the Department will determine whether an entity is eligible for licensure and whether a premium finance company is in an unsound financial condition. Proposed Rule 4-196.010, Florida Administrative Code, seeks to clarify the requirement that refunds must be made within the statutory time limit and that premium finance companies may not charge interest on the balance due under the contract beyond the statutory limit. Proposed Rule 4-196.028, Florida Administrative Code, specifies that an insured's policy may be cancelled for the nonpayment of premium but may not be cancelled for the nonpayment of miscellaneous fees or charges owed to the premium finance company. Proposed Rule 4-196.030, Florida Administrative Code, seeks to clarify the definitions of the following words: "affiliate," "gross amount available," "inducement," "rebates," and "statutory net worth." Proposed Rule 4-196.038, Florida Administrative Code, limits the service charge amount which may be charged for a twelve month period to one $20.00 assessment. Most premium finance contracts are for a period less than twelve months. Premium finance contracts charge a "set up" fee of $20.00 for each finance contract. For purposes of this rule, the "set up" fee would be limited to one $20.00 assessment per customer per twelve month period. Under the proposed rule, "customer" means per individual not per contract. Proposed Rule 4-196.040, Florida Administrative Code, seeks to clarify provisions allowing the assignment of premium finance contracts so that such procedure is not used to circumvent the statute prohibiting rebates to agents. A public hearing on the proposed rules was conducted by the Department on October 11, 1994. The record of the public hearing is set forth in the Department's composite exhibit 1. All changes in the proposed rules have been published by the Department. Section 288.703, Florida Statutes, defines "small business" to be: "Small business" means an independently owned and operated business concern that employs 50 or fewer permanent full-time employees and that has a net worth of not more than $1 million. As applicable to sole proprietorships, the $1 million net worth requirement shall include both personal and business investments. Based upon the record, none of the Petitioners in this cause is a "small business." Based upon the record of this case, together with the record of the public hearing conducted on October 11, 1994, the Department adhered to the procedure for preparation of the economic statement and considered information submitted to the agency regarding specific concerns about the economic impact of the proposed rules. Rule 4-196.001, Florida Administrative Code, as it now exists requires that the premium finance company furnish cancellation notices to the insured and insurer in a designated format, and printed "on a color paper of a shade of pink." The Petitioners have not challenged the existing language of the rule. The Department uses generally accepted accounting principles to determine whether a premium finance company has a net worth of $35,000. The unearned premium serves as the collateral in the premium finance contract. Premium is earned on a pro rated basis. The amount of the premium is divided by the length of time of the term to reach the daily pro rated amount. Unearned interest is refunded based upon the rule of 78s. For an eight month contract, a premium finance company earns 8/36 of the interest the first month, 7/36 of the interest the second month, and so on until all interest is paid. The failure to refund monies due an insured in accordance with the statute constitutes a business practice that would be hazardous to the insurance-buying public.
The Issue The issue for determination is whether Petitioner should be assessed sales and use tax by Respondent, and if so, how much and what penalty, if any, should be assessed.
Findings Of Fact Aircraft Trading Center, Inc. (Petitioner), is a corporation organized and existing under the laws of the State of Florida, having its principal office at 17885 S.E. Federal Highway, Tequesta, Florida. Petitioner is engaged in the business of purchasing aircraft for resale. During all times material hereto, Petitioner was registered as an aircraft dealer with the United States Department of Transportation, Federal Aviation Administration (FAA) and registered as a retail dealer with the State of Florida, Department of Revenue (Respondent). The selling price of Petitioner's aircraft range from one million to twenty-five million dollars and helicopters from two hundred thousand to three million dollars. Normally, Petitioner purchases an aircraft, without having a confirmed buyer. Petitioner purchases an aircraft based upon in-house research which shows a likelihood that the aircraft can be resold at a profit. Petitioner's aircraft is demonstrated to potential buyers/customers. The customers require a demonstration to determine if the aircraft meets the particular needs of the customer. The demonstration could take one day or as long as two weeks. During the demonstration, the customer pays the expenses associated with flying the aircraft. Petitioner uses two methods to determine the costs of demonstration. In one method, the cost is determined from a reference source utilized in the industry to show the cost of operating a particular type of aircraft. In the other method, the customer pays Petitioner's actual out-of- pocket cost. No matter which method is used, the charges to the customers are listed as income on Petitioner's bookkeeping books and records, per the advice of Petitioner's certified public accounting (CPA) firm. Petitioner remains the owner of the aircraft during the demonstration and until the sale. Also, during demonstration, Petitioner maintains insurance coverage on the aircraft and is the loss payee. In an attempt to make sure "legitimate" customers are engaged in the demonstrations, Petitioner screens potential buyers to make sure that they have the resources to purchase one of Petitioner's aircraft. For sales to buyers/customers residing out-of-state, Petitioner utilizes a specific, but standard procedure. Such customers are provided a copy of the Florida Statute dealing with exempting the sale from Florida's sales tax if the aircraft is removed from the State of Florida within ten (10) days from the date of purchase. Florida sales tax is not collected from the buyer if the buyer executes an affidavit which states that the buyer has read the Florida Statute and that the buyer will remove the plane from Florida within ten (10) days after the sale or the completion of repairs and if the bill of sale shows an out-of-state address for the buyer. When an aircraft is sold, Petitioner's standard procedure is to prepare a purchase agreement and after receiving payment, Petitioner prepares a bill of sale. Petitioner sends the bill of sale to a title company in Oklahoma which handles all of Petitioner's title transfers. The title company records the bill of sale, registers the change of title with the FAA and sends Petitioner a copy of the title. For all sale transactions, Petitioner maintains a file which includes the affidavit, the bill of sale, and a copy of the title. Respondent conducted an audit of Petitioner for the period 2/1/87- 1/31/92 to determine if sales and use tax should be assessed against Petitioner. All records were provided by Petitioner. The audit resulted in an assessment of sales and use tax, penalty, and interest against Petitioner. Respondent assessed tax on the sale of a helicopter and on certain charges made by Petitioner to its customers as a result of demonstrations. Regarding the helicopter, Respondent assessed tax in the amount of $18,000.00 for the helicopter transaction. By invoice dated 7/10/89, Petitioner sold the helicopter to Outerscope, Inc., for $300,000.00. Outerscope was an out-of-state company. Petitioner used its standard procedure for the sale of aircraft and sales to nonresidents. Petitioner did not obtain proof that the helicopter was removed from the State of Florida, and Petitioner has no knowledge as to whether it was removed. As to the charges by Petitioner for demonstrations, Respondent assessed tax in the amount of $72,488.55. Respondent determined the tax by taking an amount equal to 1 percent of the listed value of the aircraft demonstrated and multiplying that number by 6 percent, the use tax rate. Respondent relied upon the records and representations provided by Petitioner's bookkeeper as to determining which aircraft were demonstrated, the value of the aircraft and the months in which the aircraft were demonstrated. Several transactions originally designated as demonstrations have been now determined by Petitioner's bookkeeper not to be demonstrations: The February 4, 1987 transaction with Ray Floyd. The July 10, 1988 transaction involving Trans Aircraft. The May 2 and 12, 1989 items for Stalupi/Bandit. The July 12, 1989 item involving Bond Corp. The July 18, 1989 item involving Seardel. The November 28, 1990 item involving J. P. Foods Service. Petitioner's CPA firm advises it regarding Florida's sales and use tax laws. At no time did the CPA firm advise Petitioner that its (Petitioner's) demonstrations were subject to sales and use tax and that it (Petitioner) was required to obtain proof that an aircraft had been removed from the State of Florida.
Recommendation Based upon the foregoing, Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a final order assessing sales and use tax for the period 2/1/87 - 1/31/92 against Aircraft Trading Center, Inc., consistent herewith. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 10th day of July 1995. ERROL H. POWELL 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 10th day of July 1995. APPENDIX The following rulings are made on the parties' proposed findings of fact: Petitioner Partially accepted in findings of fact 1 and 2. Partially accepted in findings of fact 2 and 3. Partially accepted in finding of fact 3. Partially accepted in finding of fact 4. Partially accepted in finding of fact 5. Rejected as subordinate. Partially accepted in finding of fact 14. Partially accepted in finding of fact 15. Partially accepted in findings of fact 5 and 14. Rejected as subordinate. Partially accepted in findings of fact 8 and 9. 12 and 13. Partially accepted in finding of fact 13. 14. Partially accepted in findings of fact 5 and 16. Respondent Partially accepted in findings of fact 11 and 12. Partially accepted in finding of fact 12. Partially accepted in finding of fact 13. Partially accepted in finding of fact 13. Also, see Conclusion of Law 20. Partially accepted in finding of fact 4. Partially accepted in finding of fact 5. 7 and 8. Partially accepted in finding of fact 6. 9. Partially accepted in finding of fact 7. 10 and 11. Partially accepted in finding of fact 14. 12. Partially accepted in finding of fact 5. 13-15. Partially accepted in finding of fact 9. NOTE: Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary, subordinate, not supported by the more credible evidence, argument, or conclusion of law. COPIES FURNISHED: Robert O. Rogers, Esquire Rogers, Bowers, Dempsey & Paladeno 505 South Flagler Drive, Suite 1330 West Palm Beach, Florida 33401 Lealand L. McCharen Assistant Attorney General Office of the Attorney General The Capitol-Tax Section Tallahassee, Florida 32399-1050 Larry Fuchs Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100 Linda Lettera General Counsel Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner, a corporation headquartered in Charlotte, North Carolina, is in the business of operating movie theatres both within and without the State of Florida. At these theatres Petitioner Operates concession stands which sell both candy items and drinks in various sizes at different prices to persons who frequent the theatres. For the period of time from September, 1985 through May, 1985, Petitioner remitted to the Department of Revenue sales tax on the total taxable value of all taxable items sold at its concession stands in all of its Florida theatres, in accordance with the presumptive effective rate of tax of 5.63 percent contained in Rule 12A-1.11(37), Florida Administrative Code. As a result of an audit for a previous period dated October 1, 1982, Petitioner remitted to the Department of Revenue the amount of $10,637.00 for sales tax on taxable items sold at its concession stands during this audit period in accordance with the presumptive effective tax rate of 4.5 percent as contained in Rule 12A-1.11(37), Florida Administrative Code during the audit period. On August 15, 1985, Petitioner filed with the Department of Revenue, as agent for Respondent, two (2) applications for sales tax refund in the amount of $16,876.52 and $10,637.00. The applications were dated August 13, 1985, and were timely filed. During the refund periods at issue in this matter, the Petitioner: (a) posted and charged flat prices for the various items offered for sale, which prices included sales tax (b) kept records of daily and weekly sales of taxable items at each of its Florida theatres (c) kept records of daily attendance at each movie shown by each Florida theatre and (d) kept records of weekly calculations, through inventory analysis, of sales of drinks and candy items, including the number, size and price of each item sold at each of its Florida theatre. During the refund periods at issue in this matter, the Petitioner did not maintain cash registers at its concession stands in its Florida theatres and did not maintain records made contemporaneously with the sale of taxable items from the concession stands which separately itemized the amounts of sales tax collected on each sale transaction occurring at the theatres' concession stands. Rather, Petitioner chose, for its own convenience, to operate a "cash box" operation at each of its concession stands in its Florida theatres and willingly remitted sales tax to the Department of Revenue pursuant to the presumptive effective tax rate contained in Rule 12-1.11(37), Florida Administrative Code for the relevant periods. In April, 1985, Petitioner placed computerized cash registers in each of its Florida theatre concession stands. These cash registers provided tapes of each individual transaction each day, specifically recording each taxable and nontaxable sale and the amount of sales tax due on each taxable sale with a daily summation on each tape at each theatre. Rule 12A-1.11(37), Florida Administrative Code, requires concessionaires such as Petitioner to remit sales tax at a rate of 5.63 percent of taxable sales under the present 5 percent statutory sales tax schedule and at 4.5 percent of taxable sales under the previous statutory sales tax schedule unless a concessionaire, through its records, shows another effective rate by "proof to the contrary". Petitioner produced an effective tax rate of 5.13 percent for the month of April 1985, for all its Florida theatres by dividing the total sales tax collected during April, 1985 by the total taxable sales during April, 1985, as evidenced by the cash register tapes from all of Petitioner's concession stands in Florida. Petitioner then used that tax rate as a base to retroactively reconstruct an effective tax rate for the refund periods by assuming that the product sales mix (product mix of products sold) and the transactional sales mix (the number of items purchased together in a single transaction by a customer) experienced during the refund periods were the same as that experienced during the month of April, 1985. There was no competent evidence that the product sales mix or the transactional sales mix experienced during the refund periods were the same as that experienced during the nonth of April, 1985. There is insufficient evidence in the record to support Petitioner's reconstructed effective tax rates that were used to calculate the refunds. Therefore, Petitioner has failed to show "proof to the contrary" that its reconstructed effective tax rates are correct or that the presumptive effective tax rate contained in Rule 12A-1.11(37), Florida Administrative Code were incorrect for the refund periods at issue in this matter.
Recommendation Based on the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Comptroller enter his final order DENYING Petitioner's refund applications. Respectfully submitted and entered this 25th day of September, 1986, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 25th day of September, 1986.
The Issue Did the Respondents offer to sell a business opportunity without filing a disclosure statement with the Department and without providing prospective purchasers a disclosure statement at least three working days prior to the receipt of any consideration for the signing of a business opportunity contract contrary to Section 559.80, Florida Statutes?
Findings Of Fact On March 5, 1994, Star Vision was in attendance at a trade show in Jacksonville, Florida. (Petitioner's Exhibits 3,5) Upon investigating Star Vision's activities at the show, the Department's representatives, Bob James and Bill Bassett, found Star Vision to be offering for sale a business opportunity as defined by Chapter 559, Part VIII, Florida Statutes. (Petitioner's Exhibits 3,5) Star Vision offered to sell a business opportunity representing that one could become a "licensee" upon paying $600. (Petitioner's Exhibits 5) Star Vision had not file a copy of the required disclosure statement with the Department prior to making the offering above. (Petitioner's Exhibits 2,3) Granhan and Bray were given a letter notifying them of the filing requirements together with a business opportunity registration package. (Petitioner's Exhibits 2,3) On March 12,1994, Star Vision attended another trade show in Fort Lauderdale, Florida. (Petitioner's Exhibits 4) Upon investigating Star Vision's activities at the show, the Department's representative, James R. Kelly, found Star Vision to be offering for sale a business opportunity. (Petitioner's Exhibits 4) Star Vision represented the following while offering to sell a business opportunity: The regular price of the opportunity was $1,495 but they were running a special of $495 for anyone signing up at the show; and Purchasers would receive training tapes and other training that teaches how to market and sell the product. (Petitioner's Exhibits 4) The Department received a consumer complaint against STAR VISION from Mr. Alan Drake. Upon purchasing a business opportunity from Star Vision, Mr. Drake was provided with audio and video tapes which instruct purchasers how to sell and market the product. (Petitioner's Exhibits 1) Upon selling him a business opportunity, Star Vision did not provide Mr. Drake with a disclosure statement, and has never registered with the Department.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered by the Department of Agriculture and Consumer Services ordering that: Respondents to cease and desist selling business opportunities in the State of Florida, Imposing an administrative fine of $5,000 for each violation, in accordance with Section 559.813(2), Florida Statutes, against Terry Granhan and Mike Bray d/b/a Star Vision Direct Cable in the amount of $15,000. DONE and ENTERED this 30th day of November, 1994, in Tallahassee, Florida. STEPHEN F. DEAN 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 30th day of November, 1994. COPIES FURNISHED: Jay S. Levenstein, Senior Attorney Department of Agriculture and Consumer Services 515 Mayo Building Tallahassee, FL 32399-0800 Terry Granhan and Mike Bray Star Vision Direct Cable, Inc. 9050 Highway 64, Suite 115 Memphis, TN 38002 Bob Crawford, Commissioner Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, FL 32399-0810
Findings Of Fact Certain hospital equipment ("Equipment") was sold in 1973 and 1974 by Hospital Contract Consultants ("Vendor") to F & E Community Developers and Jackson Realty Builders (hereinafter referred to as "Purchasers") who simultaneously leased the Equipment to Petitioner. These companies are located in Indiana. At the time of purchase, Florida sales tax ("Tax") was paid by the Purchasers and on or about March 18, 1974, the tax was remitted to the State of Florida by the Vendor. However, the Tax was paid in the name of Medical Facilities Equipment Company, a subsidiary of Vendor. In 1976, the Department of Revenue audited Petitioner and on or about April 26, 1976 assessed a tax on purchases and rental of the Equipment. On or about April 26, 1976, petitioner agreed to pay the amount of the assessment on the purchases and rentals which included the Equipment, in monthly installments of approximately Ten Thousand and no/100 Dollars ($10,000.00) each and subsequently paid such amount of assessment with the last monthly installment paid on or about November 26, 1976. On or about December, 1976, the Department of Revenue, State of Florida, checked its records and could not find the Vendor registered to file and pay sales tax with the State of Florida. Petitioner then looked to the State of Indiana for a tax refund. On or about January 4, 1977, Petitioner filed for a refund of sales tax from the State of Florida in the amount of Thirty Five Thousand One Hundred Four and 02/100 Dollars ($35,104.02). This amount was the sales tax paid to and remitted by various vendors for certain other equipment purchased in 1973 and 1974 and simultaneously leased. The amount of this refund request was granted and paid. Relying upon the facts expressed in paragraph 4 heretofore, Petitioner on or about June 2, 1977 filed with the Department of Revenue of the State of Indiana for the refund of the Tax. On or about June 7, 1979, the Department of Revenue of Indiana determined that the Vendor was registered in the State of Florida as Medical Facilities Equipment Company and therefore Petitioner should obtain the refund of the Tax form the State of Florida. So advised, Petitioner then filed the request for amended refund, which is the subject of this lawsuit, on July 16, 1979 in the amount of Seventeen Thousand Two Hundred Sixteen and 28/100 Dollars ($17,216.28). This request for refund was denied by Respondent, Office of the Comptroller, on the basis of the three year statute of non-claim set forth in section 215.26, Florida Statutes. Purchasers have assigned all rights, title and interest in sales and use tax refunds to Petitioner. During the audit of Petitioner in 1976 the lease arrangement on the equipment apparently came to light and Petitioner was advised sales tax was due on the rentals paid for the equipment. This resulted in an assessment against Petitioner of some $80,000 which was paid at the rate of $10,000 per month, with the last installment in November, 1976. The auditor advised Petitioner that a refund of sales tax on the purchase of this equipment was payable and he checked the Department's records for those companies registered as dealers in Florida. These records disclosed that sales taxes on the sale of some of this rental equipment had been remitted by the sellers of the equipment but Hospital Contract Consultants was not registered. Petitioner was advised to claim a refund of this sales tax from Indiana, the State of domicile of Hospital Contract Consultants. By letter on March 18, 1974, Amedco Inc., the parent company of wholly owned Hospital Contract Consultants, Inc. had advised the Florida Department of Revenue that Medical Facilities Equipment Company, another subsidiary, would report under ID No. 78-23-20785-79 which had previously been assigned to Hospital Contract Consultants Inc. which had erroneously applied for this registration. (Exhibit 2) Not stated in that letter but contained in Indiana Department of Revenue letter of April 18, 1979 was the information that the name of Hospital Contract Consultants had been changed to Medical Facilities Equipment Company. The request for the refund of some $17,000 submitted to Indiana in 1976 was finally denied in 1979 after research by the Indiana Department of Revenue showed the sales tax had been paid to Florida and not to Indiana.
Findings Of Fact In Exhibit 3 Petitioner disputes the overpayment of sales tax, penalties and interest in the amount of $62,035.63. At the hearing it was stipulated that the disputed sum is $62,000.00. Petitioner is owner and publisher of a weekly paper, The Tampa/Metro Neighbor (Neighbor), published in Tampa and distributed in the Tampa metropolitan area of Hillsborough County. The Neighbor is distributed to readers free of charge. Petitioner started rack sales September 27, 1980, and has sold approximately 125 per week since that time. Its total circulation is approximately 164,000. The Neighbor has not been entered or qualified to be admitted and entered as second class mail matter at a post office in the county where it is published. The Neighbor is delivered by approximately one thousand carriers to residences and apartments in Hillsborough County each Thursday. The papers are placed in plastic bags to protect them from the weather. Petitioner claims sales tax exemption for the purchase of newsprint, ink, and plastic bags used to print and distribute the Neighbor. Newspapers such as The Tampa Tribune are exempt from sales tax on these items. The Neighbor is organized into seven departments. These are: editorial, retail advertising, classified advertising, accounting, circulation, production, and printing. The editorial staff provides all items in the paper other than advertising. The editorial/advertising mix of the Neighbor is approximately 25 percent-75 percent. No 12-month breakdown of these percentages was presented. The Neighbor defines editorial content as everything except paid advertising. Only newspapers and other periodical publications are eligible for mailing at second class rates of postage. Publications primarily designed for free circulation and/or circulation at nominal rates may not qualify for the general publications category (Exhibit 24). General publication primarily designed for advertising purposes may not qualify for second class privileges. Those not qualifying include those publications which contain more than 75 percent advertising in more than half of the issues published during any 12- month period (Exhibit 24). Second class mail privilege is a very valuable asset for newspapers and other qualifying publications. The editorial content of the Neighbor, as defined in Finding of Fact 7 above, is comprised of local news, sporting news, local investigative reporting, an opinions section, and an entertainment section. The advertising is split into classifieds and other. The Neighbor contains no national or international news, no wire service reports, no comics, no stock market reports, no sports statistics, no weather reports, no nationally syndicated columnists, no state capital news, no obituaries, no book review section, and no special section such as home designs, gardening, etc. Neighbor considers its primary competition to be The Tampa Tribune. However, this competition is limited to advertising, as the Neighbor has none of the traditional newspaper functions above noted which are normally carried in daily newspapers. Petitioner presented two expert witnesses who opined that the Neighbor met the requirements to be classified as a newspaper because it was published in newspaper format; that it had an editorial section which provided some news as contrasted to that provided in a shopping guide; that the 75 percent-25 percent advertising-editorial content did not make the Neighbor primarily an advertising paper; that the requirements of the U.S. Post Office for a periodical to obtain second class mail privileges is not relevant to a determination that the Neighbor is not a newspaper; that the requirements of the Department of Revenue Rule 12A-1.08(3)(d) and 12A-1.08(4), Florida Administrative Code, are not relevant in determining whether the Neighbor is a newspaper; and that in a journalistic concept the Neighbor is a newspaper. The Neighbor was purchased in 1979 by North American Publications, Inc., a wholly owned subsidiary of Morris Communications Corporation. Morris Communications Corporation owns several newspapers scattered from Florida to Alaska, both daily and weekly publications. Most of these publications are sold to paid subscribers. Petitioner's testimony that sales tax was not collected from Petitioner's predecessor owner was flatly contradicted by the testimony of Respondent's witness. Since the latter witness is in a much better position to know the facts respecting sales taxes levied on the former owner of the Neighbor, this testimony is the more credible. In any event, Petitioner did not claim estoppel.
Findings Of Fact Petitioner's business activities include the sale of tangible personal property such as caskets and burial vaults. The written sales contract utilized by Petitioner sets forth the amount of sales tax and includes that sum in the total amount which the customer agrees to pay. The contracts are in the form of a note, containing a promise to pay, and were sold at discount by the Petitioner at certain times during the audit period. The contracts require a down payment and installment payments thereafter. The contracts further contain a clause allowing the customer three days in which to cancel the contract, under which circumstances the customer is reimbursed all moneys paid by him to Petitioner. Under Petitioner's retained- title, conditional-sale contract, if the customer cancels the contract or stops making payments at any time subsequent to the initial three-day period, Petitioner retains all sums which have been paid to it by the customer. Petitioner's business practice is to pay its salesmen commission from the down payment on a contract. Petitioner operates on the accrual method of accounting, and its sales tax liability is entered on its books at the time of the sale. Petitioner pays the total sales tax due at the time that it enters into the contract. When a contract is cancelled (after the initial three-day cancellation period), Petitioner claims a credit against its current liability for the full amount of sales tax charged on the transaction when it files its sales tax report for the month, even though at least the down payment, and frequently additional payments, has been collected from the customer. On audit, Respondent allowed full credit for the amount of sales tax when a contract had been cancelled within the three-day cancellation period, but disallowed that portion of the credits claimed which related to the down payments and installments which the Petitioner retained when a contract was cancelled after the three-day period. Respondent did allow, however, a credit for taxes attributable to the unpaid balance under each cancelled contract.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED THAT: The Department of Revenue enter its final order disallowing to Petitioner a credit for taxes attributable to amounts retained by it upon the cancellation of its installment sales contracts. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 29th day of May, 1980. LINDA M .RIGOT Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1980. COPIES FURNISHED: Ms. Cynthia Savage Comptroller Restlawn, Inc. 2600 Ribualt Scenic Dr Post Office Box 9306 Jacksonville, FL 32208 E. Wilson Crump, II, Esq. Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, FL 32301 John D. Moriarty, Esq. Deputy General Counsel Department of Revenue Room 104, Carlton Building Tallahassee, FL 32301 Mr. Randy Miller Executive Director Department of Revenue Room 102, Carlton Building Tallahassee, FL 32301
