The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact At all times material hereto, Respondent Elbert Cecil Wright, III, has been licensed in the state of Florida as a state certified residential appraiser. He has been appraising residential property in Central Florida since 1983. On May 31, 2005, Respondent issued an appraisal report for vacant land known as Lot 212, Bella Collina West, Montverde, Florida. SunTrust Mortgage was Respondent's client and the intended user of the report. SunTrust made no complaints to Petitioner or to Respondent regarding the appraisal Respondent prepared. Bella Collina, Bella Collina East, and Bella Collina West are subdivisions which were being developed by the same developer. They are separated from each other by roads. In preparing his appraisal report, Respondent consulted MicroBase and MLS, the multiple listing service. He researched the public records and found there were no prior closed sales in Bella Collina West, where the subject property was located. Moreover, Respondent spoke to the sales staff at Bella Collina and was advised that there were no prior closed sales in Bella Collina West. Similarly, in researching the public records, Respondent found that the plat for Bella Collina West had not yet been uploaded so that it was accessible to the public. He did obtain the first page of the 19-page plat from the sales staff at Bella Collina. Respondent obtained the dimensions of Lot 212 from the sales staff. He was told the lot was 50' by 140' as were most of the lots in Bella Collina West. Respondent used these dimensions in determining the value of the lot and in his appraisal report. Unfortunately, Lot 212 was one of the few lots in the subdivision that was only 40' by 140'. The evidence is undisputed that the difference in the size of the lot between its represented size and its actual size had no impact on its value. Since the public records reflected no prior closed sales in Bella Collina West and since the sales staff told him there had been no closings, Respondent prepared his report using four comparable properties. Comparable 4 was in Bella Collina West as was the subject property but the sale on comparable 4 was still pending. Comparables 1, 2, and 3 were located in Bella Collina, not Bella Collina West. He used those comparables because of the proximity of the two subdivisions and because they were both considered upscale and unusual for subdivisions in that county. Even though Bella Collina West did not yet have paved roads, he drove by the subject property, taking photographs, and he viewed the comparables he located. The lot sizes for comparables 1, 2, and 3 were each approximately 50,000 square feet. Lot 212, the subject property, was thought by Respondent to be only 7,000 square feet but in actuality was only 5,600 square feet. Accordingly, it was necessary for Respondent to adjust or "offset" the value of the subject property because it was a much smaller lot. On the other hand, Lot 212 was located on the golf course which, along with the clubhouse and a number of other amenities, was part of Bella Collina West and not part of Bella Collina. Lot 212's location on the golf course substantially increased its value even though it was a small lot. Respondent determined based on the closed sales on comparables 1, 2, and 3 that $40,000 was the appropriate adjustment in value to make to offset the smaller size of Lot 212. He also considered the pending sale price for comparable 4 as an indicator although it lacked the reliability of a closed sale price. In determining the value of Lot 212, Respondent, therefore, considered size, location, and view. He also used the best information available to him as provided by the sales staff at a time when that information could not be verified by public records. Because the larger lots were similar in price with the smaller golf course view lot, Respondent computed an offset between a larger lot and a lot with a golf course view. In his appraisal report, he explained the basis for his offset theory and the amount he chose for the offset. No evidence was offered that the intended user of the report did not understand Respondent's explanation or disagreed with it. Although the comparables Respondent used had much bigger lots than the subject property, the comparables sold for only a slight difference in price. Lot 212's sales price was $665,900, and Respondent's comparable 1 sold for $685,000, a $20,000 difference despite the larger lot. Respondent's comparable 2 sold for $625,000 in March 2005, $40,900 less than the subject property despite its larger lot size. Comparable 3 sold for $695,000, a $30,000 difference despite its larger lot size. The pending sale on comparable 4 was for $665,000. As to comparable 2, with its closed sales price in March 2005 of $625,000, there appeared to be a subsequent sale two months later for $850,000. However, Respondent could not determine if it had actually closed because of conflicts in dates as to when it closed, which appeared to be subsequent to recordation. If it had not closed when he prepared his report, he was not required to include it in his report. Respondent decided not to include the $850,000 sale because in his professional opinion, it was not a legitimate sale. As a vacant lot in a subdivision being developed, the subject property had no street address. In the address section of his appraisal report, Respondent made an error and failed to indicate that the property was located in Bella Collina West, stating instead that the property was in Bella Collina. However, Respondent did accurately provide the legal description which clearly indicated the subject property was located in Bella Collina West. No evidence was offered that the intended user of the appraisal report did not know the subject property was located in Bella Collina West or was confused by Respondent's error. Although Petitioner's expert would have used different comparables, no evidence was offered to show that the appraised value placed on Lot 212 was inaccurate, negligent, or misleading in any way.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent not guilty and dismissing the Administrative Complaint filed against him in this cause. DONE AND ENTERED this 1st day of April, 2009, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 1st day of April, 2009. COPIES FURNISHED: Thomas W. O'Bryant, Jr., Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street, Suite N802 Orlando, Florida 32801-1757 Ned Luczynski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Donna Christine Lindamood, Esquire Department of Business and Professional Regulation 400 West Robinson Street, Suite N801 Orlando, Florida 32801-1757 Daniel Villazon, Esquire Daniel Villazon, P.A. 1420 Celebration Boulevard, Suite 200 Celebration, Florida 34747
The Issue The issue presented is whether Respondents Great American Financial Network, Inc., and Edward Bates are guilty of the allegations in the Administrative Complaint filed against them, and, if so, what disciplinary action should be taken, if any.
Findings Of Fact From November 1, 1983, through December 31, 1998, Respondent Great American Financial Network, Inc. (hereinafter "Great American"), was registered with the Department as a licensed securities broker/dealer. Between May 24, 1994, and June 18, 1999, Respondent Edward Bates was registered with the Department as an associated person of Great American. Between May 1994 and December 31, 1998, Bates was a control person, president, treasurer, and secretary of Great American. Between May 1997 and December 31, 1998, Bates was the owner of at least 75 percent of Great American. At all times material hereto, Bates was also president and control person of Great American Resorts of Florida (hereinafter "Resorts"). Resorts and Great American were owned by Great American Resorts and Hotels (hereinafter "Resorts and Hotels"). Bates was also president and chief executive officer of Resorts and Hotels. Great American, Resorts, and Resorts and Hotels were affiliated at the time the promissory notes in question were offered and sold to investors. Resorts issued unsecured promissory notes that were sold to investors by Great American and by Bates personally. The unsecured notes were not registered with the Department and were not exempt from registration. The Department received consumer complaints from investors that there had been a default in payment of interest and principal on the unsecured promissory notes sold by Great American and Bates. The Department initiated an investigation and obtained a search warrant in April 1998. The records gathered revealed that there were at least 58 non-accredited investors who had invested in the unsecured promissory notes sold by Great American and Bates. The Department interviewed 25 of them. The age of the investors ranged from 50 to 80, with the majority of them in their 60s and 70s. The investors were induced to participate in the unsecured note program by representations that the notes were a sound investment. Great American and Bates specifically told the investors that the notes were as safe as annuities or certificates of deposit. Great American and Bates specifically told the investors that the notes were guaranteed. The investors believed they were investing in notes backed by a company that owned properties, specifically hotels. However, the company had no assets and no revenue except from the sale of the unsecured promissory notes. Further, the money invested by new investors was used to make some payments to complaining investors and to pay the company's bills. A private placement memorandum is the equivalent of a prospectus. The investors were not provided with any disclosure documents. Specifically, they were not provided with a private placement memorandum, even though one was available. Bates instructed other employees of Great American not to provide any investor with the private placement memorandum because it contained disclosures which reflected that the investment was "highly speculative" and that investors should not purchase the notes unless they could "afford to lose all the money invested." Bates personally prepared a packet that was given to investors. It only contained the first page of the private placement memorandum and the signature page. The investors were not told of any risks from investing in the notes. Had they been told, they would not have invested because safety of principal was their primary concern. The investors were not suitable for Great American's note program because the risk of loss was too great. The majority of the investors were retirees, and they had used their retirement savings to purchase the notes from Great American and Bates. The unsecured notes sold by Great American and Bates were a very risky investment and were not, therefore, suitable for retirees wanting to preserve their capital. Bates pressured the other brokers at Great American to place their investors into the notes. He told them they would not receive a paycheck unless they did. As a result, investors were switched from other extremely safe, secure investments with guaranteed returns into the risky unsecured notes. Great American and Bates conducted seminars that were advertised in the newspaper to find new investors and induce them to purchase the unsecured notes. The advertisements misrepresented that the investment carried a high interest rate and was guaranteed and insured. Bates personally made the presentation and personally sold the unsecured notes to attendees from the seminars.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered: Finding Respondents Great American and Bates guilty of the allegations contained in the Administrative Complaint filed against them; Revoking all registrations held by Respondents Great American and Bates; Ordering Respondents Great American and Bates to cease and desist from their violations of Chapter 517, Florida Statutes, and the rules promulgated pursuant to that chapter; Ordering Respondents Great American and Bates jointly and severally to pay to the Department an administrative fine in the amount of $290,000; and Ordering Respondents Great American and Bates jointly and severally to pay to the Department the additional amount of $500 as attorney's fees attendant to the Department's motions for sanction. DONE AND ENTERED this 10th day of December, 1999, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 1999. COPIES FURNISHED: Honorable Robert F. Milligan Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350 Harry Hooper, General Counsel Department of Banking and Finance Fletcher Building, Suite 526 101 East Gaines Street Tallahassee, Florida 32399-0350 Diane E. Leeds, Esquire Office of the Comptroller 111 South Sapodilla Avenue, Suite 211 West Palm Beach, Florida 33401 Great American Financial Network, Inc. c/o Great American Casino, Inc. 5805 State Bridge Road, Suite G-286 Duluth, Georgia 30097 Edward Bates c/o Great American Casino, Inc. 5805 State Bridge Road, Suite G-286 Duluth, Georgia 30097
The Issue Whether Respondent's employment as a bartender/waitress at the Tarpon Springs Golf Course was terminated by the City of Tarpon Springs in accordance with the City's Personnel Rules and Regulations?
Findings Of Fact An Employer-Employee Relationship From December 20, 1995 until her termination on November 14, 1996, Deborah Monley was employed by the City of Tarpon Springs as a part-time bartender/waitress at the City's municipal golf course. Her duties at the course's "inside" bar consisted of serving beer and wine and food such as hot dogs and packaged snacks. Prior to the initial date of her employment with the City, the golf course was privately owned with Ms. Monley as the employee in charge of the course's inside bar. The City kept Ms. Monley as an employee when it acquired the golf course on December 20, 1995, making that day her first as a City employee. Management and Staffing During the time covering the events pertinent to this case, the golf course was supervised by Mike Hoffman, the Golf Course Manager. He was assisted by Michael Houlis. As an assistant manager, Mr. Houlis was primarily responsible for the food and beverage operations of the golf course. Since Ms. Monley was a food and beverage employee, her supervision fell in the first instance to Mr. Houlis, although Mr. Hoffman had ultimate supervisory authority over her position. The bar operated seven days a week. In the fall of 1996, it was staffed in the main by three employees who were assigned regular shifts. Ms. Monley, normally on duty four days a week, worked the most hours of the three. A second employee, Tom Bowman, worked two to three days per week. Peggy Johnson, the last of the three regular employees, worked one day a week. From time-to-time, the City would call on Pearl Standahl to fill in for the three regular employees on an as-needed basis. But whether Ms. Standahl would provide assistance or not in any given instance was nothing upon which the City could rely with certitude. The City's arrangement with her allowed her to decline for whatever reason whenever requested to work. As obstacles arose on different occasions to the ability or convenience of any one of the three regular employees to be at work, another would cover for the absent employee. If, for example, an emergency came up for one, another employee would fill in or if one employee needed to switch a day, another would usually be willing to accommodate the switch. Management did not object to these informal arrangements among the employees so long as the snack bar was covered by any of the three regular employees or Ms. Standahl. Autumn of 1996 The events critical to the facts of this case occurred in the fall of 1996. The Tournament In late October, one of the major annual events for the golf course was under way: a tournament involving a group of golfers from North Carolina. A reciprocal event was held each year in North Carolina at another time of the year for members of the Tarpon Springs Golf Course. These reciprocal golf tournaments had been annual events for some 25 years. During the tournament in 1996, Ms. Monley met and became friendly with one of the seventy or so North Carolina golfers. He was identified at hearing only as "Terry." Ms. Monley attended some of the tournament's events in Terry's company over the several days the tournament lasted. A Request for Time Off On Monday, October 28, 1996, Ms. Monley asked Mr. Houlis if she could take off Friday, November 14, 1996 and Monday, November 17, 1996 as vacation days so that she would be able to enjoy a long weekend in North Carolina. Aside from her developing relationship with Terry, Ms. Monley felt that she deserved the time off. The only real time away from work she had had in the recent past was sick leave following surgery. Although she had wanted to use accrued vacation leave, she had been required to work the entire summer sometimes five or six days a week from 7 a.m. until 6 or 7 p.m., because, in her view, the bar was not then adequately staffed. In response to the request, Mr. Houlis advised Ms. Monley that there was "no problem" as long as there was someone to cover for her on the two days she would have otherwise worked. Mr. Houlis planned on asking Tom Bowman if he could cover for Ms. Monley. Domestic Violence On the evening of October 29, 1996, Ms. Monley and her two children were subjected to or present at home during acts of domestic violence committed by Ms. Monley's former boyfriend. Ms. Monley called the police. After responding, one of the officers advised Ms. Monley that she should obtain a "domestic violence" injunction against her ex-boyfriend as soon as possible the next day, October 30. October 30 The following day, October 30, 1996, was a Wednesday. Wednesday is a busy day of the week at the golf course. Typically, the course is crowded in the early morning. The snack bar is busy as golfers arrive and enjoy coffee or a breakfast snack while they wait for their tee time. At home early that morning, Ms. Monley faced a difficult decision. Her eight-year-old son was not feeling well and did not go to school. Ms. Monley feared that her ex- boyfriend might come to the house. He had been on prescription medication, drinking, and irate the night before when the domestic violence had occurred. She worried that he could pose a danger to her son. She also knew that she was expected at work on what promised to be a busy day. Furthermore, she had to obtain the "domestic violence" injunction as soon as possible. She decided she would go to work, ask to be allowed to leave after the morning rush (around 8 to 8:30 a.m.), obtain the injunction and return home well before noon, all the while hoping her ex-boyfriend would not have come by. She hoped, too, that arrangements to cover her position at the course could be made by Mr. Houlis during the time she handled the morning rush. To assist her son in case her former boyfriend showed up while she was at work or seeking the injunction, Ms. Monley instructed her twelve-year-old daughter, whom she regarded as unusually mature for her age, to remain at home with the eight-year-old. Ms. Monley reported to work as scheduled. She met with Mr. Houlis and advised him of the domestic violence the evening before. She also told him that her son was ill at home and that she needed to leave work to attend to him as well as obtain the injunction. Mr. Houlis told Ms. Monley that he would attempt to have another employee cover for her as soon as possible so that she could leave. Ms. Monley left to attend to her job, but she did not think Mr. Houlis appreciated the gravity of the situation or its exigent nature. Nonetheless, Mr. Houlis called Tom Bowman right away. He did not reach him but left a message on his answering machine. Mr. Bowman was good about returning calls so Mr. Houlis felt that he would hear from him in a reasonable amount of time. Mr. Houlis was fully aware that Ms. Monley needed time off during the day, but he was not aware of the direness of her predicament. He felt that Ms. Monley had informed him of the circumstances in a "casual" way rather than in a way that indicated that she needed to leave as soon as possible, if not immediately. While Mr. Houlis attempted to reach Mr. Bowman, Pearl Standahl arrived at the course, not for work, but to play golf. Ms. Monley asked her to fill in for her. Ms. Standahl refused. At approximately 10:30 a.m., Styllianous Splinis (known as "Stan") entered the bar area. Stan Splinis is a City employee who works at the golf course handling all the money that constitutes golf course revenue and manning the pro shop where most of the money is received. Mr. Splinis, however, is not under the supervision of golf course management. Instead, he is supervised by the City Clerk. Although he had occasionally filled in at the bar, bartending is not part of his regular duties. He has been informed by the Clerk's office that the City Clerk disapproves of his doing so. By the time of Mr. Splinis' entry into the bar area the morning of October 30, 1996, Ms. Monley had become agitated. Mr. Houlis did not appear to her to be making much of an effort to get a replacement. Ms. Standahl had preferred to play golf rather than help her out in a moment of real need. But most of all, she was worried about the safety of her children and the need to obtain the injunction. Ms. Monley believed, moreover, that Mr. Houlis was not making much of an effort because of a previous private encounter in which she had rebuffed what she interpreted as Mr. Houlis' romantic interest in her. What she saw as indifference stemming from resentment was exacerbated during the recent tournament for the North Carolina golfers. Mr. Houlis, at the time having trouble with his girlfriend, inquired about Ms. Monley's relationship with her boyfriend, who would soon be charged with domestic violence. Ms. Monley believed that Mr. Houlis stopped talking to her when he learned that she had met Terry during the tournament. (Mr. Houlis disputes Ms. Monley's interpretation and assumptions; he believes that their relationship outside of work had never been anything more than casual friends.) As soon as Mr. Splinis appeared, Ms. Monley's state of agitation turned to action. She locked up her cash drawer, handed Mr. Splinis the key, and left work without clearing her departure with Mr. Houlis. In Ms. Monley's absence, Mr. Splinis took over at the bar. He informed Mr. Houlis of Ms. Monley's departure and worked the rest of her shift. When Ms. Monley reached her home, her ex-boyfriend was present. As she feared, he was threatening her son. She called 911. By the time the police arrived, the ex-boyfriend was gone. One of the police officers who responded, John Ulrich, spoke to Ms. Monley after an unsuccessful search of the neighborhood. Officer Ulrich advised Ms. Monley to remain at home. Later in the afternoon, Mr. Houlis called Ms. Monley to check on her. He, too, told her to stay home and assured her that her position was covered for the afternoon. Ms. Monley did not attempt to obtain an injunction. She remained home for the rest of the day with her children. October 31 The following day, Ms. Monley, acting on the advice of the police, went to the State Attorney's office to swear out a warrant for her ex-boyfriend's arrest. The warrant was issued. Ms. Monley decided to abandon any attempt to obtain the injunction, thinking that the warrant was at least as effective at curbing her former boyfriend's threatening behavior as the injunction would be. October 31 was also a day Ms. Monley was scheduled to work. When she arrived at the golf course, Mr. Hoffman and Mr. Houlis asked her to meet with them. Still not appreciating the seriousness of Ms. Monley's situation the day before, they told her that while sympathetic to her situation, they believed she should not have left work without permission and without following proper procedure for closing out the cash drawer. They also advised her that she was subject to discipline. No discipline, however, was decided upon or meted out. Ms. Monley left the meeting upset. As she emerged from the room, she bumped into Officer Ulrich. Officer Ulrich had come to the golf course to check on Ms. Monley in follow-up of her case and to tell her that the State Attorney would be considering the filing of charges. She was informed of the time of the deliberations since her presence would be needed. Ms. Monley, in tears, said to Officer Ulrich something to the effect of, "See, I told you I would get in trouble for leaving work." Officer Ulrich entered Mr. Hoffman's office and undertook to explain to management the real danger in which he perceived Ms. Monley to be. He entered the room where the meeting had just taken place and said to both Mr. Hoffman and Mr. Houlis something like, "I wouldn't want to be the one who had prevented Ms. Monley from obtaining an injunction." Mr. Houlis paid the officer no real attention because, in his view, the officer did not understand the other side of the story, that being management's concerns about a departure with neither notice nor observance of proper procedure. Early November On November 1, 1996, or thereabouts, Tom Bowman gave management the required ten days notice of his resignation effective a few days before the commencement of Ms. Monley's planned vacation in North Carolina. This development, unforeseen when Ms. Monley had first requested time off, meant to Mr. Houlis that it would be difficult to schedule replacements for Ms. Monley on the two days she asked to be on leave. In the meantime, Ms. Monley, believing that there should be no difficulty in covering her vacation days, purchased discount non-refundable airline tickets for the planned trip. When Ms. Monley heard that Tom Bowman was quitting, she was not concerned that it would be a problem because she thought Peggy Johnson, Pearl Standahl or Stan Splinis could cover for her. On November 3, 1997, a few days after Mr. Bowman's announcement, Mr. Houlis told Ms. Monley that her request for vacation was denied. (The parties are in agreement about this fact. See Respondent's Proposed Order of Findings of Fact and Conclusions, pgs. 8 and 11.) Mr. Houlis needed Ms. Johnson to cover some of the time Mr. Bowman would have worked had he stayed. He thought it would be difficult for Ms. Johnson to cover both Mr. Bowman's normal working days and the two days Ms. Monley would be gone because it would be too much work for Ms. Johnson at her age. Ms. Standahl was never a sure replacement and Mr. Splinis stepping up as a replacement was frowned on by the City Clerk's office. November 7 On November 7, Peggy Johnson returned to work after leave she had taken. Ms. Monley asked her if she could cover for her on November 14 and 17. Ms. Johnson replied that she could as long as management approved. Since the vacation time request had been disapproved by Mr. Houlis, Ms. Monley went directly to Mr. Hoffman to ask him about the request for time off. Ms. Monley told Mr. Hoffman that Ms. Johnson could cover her shifts but she neglected to tell Mr. Hoffman that her request had already been denied by Mr. Houlis. Mr. Hoffman replied, "As long as the shifts are covered, no problem." Ms. Monley felt reassured. She now had Mr. Hoffman's conditional consent. She remained, moreover, convinced despite Mr. Houlis' misgivings that the two days could be covered among Peggy Johnson, Pearl Standahl and Stan Splinis. In the worst case, Ms. Monley felt that Mr. Houlis, himself, could cover the bar, if necessary. By now, Ms. Monley had formed the intent to go to North Carolina no matter what. Among other reasons for her determination were that she felt she had given appropriate notice, had made informal arrangements to have the shifts covered which management usually sanctioned, had purchased non-refundable airline tickets in reliance on the timely request, thought she had been denied a vacation in the past when she clearly deserved one, and had obtained the general manager's conditional consent. Finally, she could see no real reason when she examined all the circumstances why her position could not be covered on the two days she wanted to be off. Ms. Monley's determination did not take into account several factors. She had not been given unequivocal permission by the Golf Course Manager to take the time off. The agreement with Peggy Johnson was explicitly subject to management's approval, approval Mr. Houlis was not likely to give. And Mr. Houlis, Ms. Monley's immediate supervisor, had told her that the request was denied. When Mr. Houlis saw Peggy Johnson on November 7, after Ms. Monley had spoken to her, he approached her to ask her to cover for Bowman after November 11. Ms. Johnson told him about the arrangement she had just made with Ms. Monley. In the wake of this information, Mr. Houlis conferred with Mr. Hoffman about the dilemma. The two agreed that Ms. Monley would not be able to take the days off. The Eve of the Trip and Plans Carried Out Mr. Hoffman and Mr. Houlis heard from several golf course employees that Ms. Monley intended to take off the two days that she had requested for vacation, November 14 and 17, no matter what Mr. Houlis' position might be. On Thursday, November 13, 1997, the day before the trip was to commence, Mr. Hoffman called Ms. Monley into his office to make sure that she understood management's position. In the presence of Mr. Houlis, Golf Course Manager Mike Hoffman, the head of management at the course and Ms. Monley's ultimate on-site supervisor, informed her that she did not have permission to take the vacation days requested. He told her clearly that she was expected to be at work on both the fourteenth and the seventeenth of November. Ms. Monley went to North Carolina as planned. Return to Work On November 19, 1996, Ms. Monley reported to work. She was told her conduct on October 30 and November 14 and 17 was under review. On November 20, 1996, Ms. Monley was given notice of her termination in a letter signed by Golf Course Manager Mike Hoffman. The cited basis for termination was Rule 18, Section 5 of the City's Personnel Rules and Regulations. The notice stated: On October 30, 1996, you abandoned your station around 10:00 a.m. and did not return until your next scheduled work day. You left without notifying your supervisor of your departure, even though he was readily available and accessible. In addition, on October 30, 1996, you left your cash draw without properly accounting for it and closing it out. On November 14, 1996, and November 17, 1996, you failed to report for duty as scheduled. Your absences on these dates were with the full knowledge as communicated by your supervisor on November 13, 1996, that your presence was required on these scheduled dates. Petitioner's No. 1. After her termination, Ms. Monley looked for jobs in the food industry, mainly in positions dealing directly with the public. For example, she applied at Chili's for a job as a waitress. In March of 1997, however, Ms. Monley, then more than four months pregnant, abandoned her search for work serving food since it had become futile in her condition.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That the Civil Service Board for the City of Tarpon Springs dismiss the October 30, 1996, incident as a ground for discipline and, with regard to the November absences, discipline Ms. Monley short of dismissal: suspension without pay from November 20, 1996, until the Board's consideration of this recommended order, with reinstatement as a City employee in a position outside the City Golf Course. DONE AND ENTERED this 22nd day of October, 1997, in Tallahassee, Leon County, Florida. DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 1997. COPIES FURNISHED: Thomas M. Gonzalez, Esquire Kelly L. Soud, Esquire Thompson Sizemore & Gonzalez, P.A. Post Office Box 639 Tampa, Florida 33601-0639 William Newt Hudson, Esquire 23 West Tarpon Avenue Tarpon Springs, Florida 34689
The Issue Whether a consumptive-use permit for quantities of water as applied for should be granted.
Findings Of Fact Application No. 7500022 requested water from three (3) wells for the purpose of drinking and for the purpose of irrigation. The center of withdrawals will be located at latitude 270 degrees 56' 32" North, longitude 82 degrees 48' 19" West, plus an average of 120,000 gallons per day from a private lake located at latitude 27 degrees 56' 50" North, longitude 82 degrees 48' 11" West in Pinellas County, Florida. In well "No. 1", used for irrigation, 105,000 gallons per day, average, well "No. 2", 165,000 gallons per day average, used for irrigation; and well "No. 3", 40,000 gallons per day, used for drinking; and the lake 120,000 gallons per day for irrigation. Notice was published in a newspaper of general circulation, to-wit: The St. Petersburg Times and Evening Independent on April 28 and May 15, 1975, pursuant to Section 373.146, Florida Statutes. Notices of said public hearing were duly sent by certified mail as required by law. The application and map of the premises, the legal description, the receipt of certified mail, and the copy of the notice were received without objection and entered into evidence as "Exhibit 1". The affidavit of publication was received without objection and entered into evidence as "Exhibit 2". One letter of objection was received from Mrs. Helen Woolsey and entered into evidence as "Exhibit 3". Witnesses were duly sworn and agreement was reached on each point enumerated as required by Rule 16J2.11, Rules of the Southwest Florida Water Management District and Chapter 373, Florida Statutes. The letter of objection was examined by the parties and by the Hearing Officer and was found to be without merit inasmuch as the author was mistaken as to the subject of the hearing.
The Issue The issue for determination in this proceeding is whether Respondents purchased and applied a restricted-use pesticide without a license and whether Respondents applied the pesticide in an improper manner.
Findings Of Fact Respondent, Port Malabar Country Club, is an unincorporated 18-hole golf course located in Palm Bay, Florida, owned and operated by Raysteff Corporation ("Raysteff"). Raysteff is a Florida Corporation, wholly owned by Mr. Robert Dolci. Respondent, Robert L. McDaniel, is the superintendent of golf course maintenance at Port Malabar Country Club and has held that position since 1985. On February 26, 1992, Respondent, McDaniel, purchased a 42 pound container of Kerb 50-W herbicide ("Kerb") from Harrell's Inc., located in Lakeland, Florida. Kerb contains chemicals that are classified as restricted- use pesticides by Petitioner. The labelling on the product's package contains the following warning: RESTRICTED USE PESTICIDE Because pronamide has produced tumors in laboratory animals, this product is for retail sale to and use only by Certified Applicators or persons under their direct supervision, and only for those uses covered by the Certified Applicator's certification. On February 26, 1992, neither Respondent, McDaniel, nor any other employee, officer, or agent of Raysteff held a valid applicator's license as required by Section 487.031(7), Florida Statutes. On March 4, 1992, Mr. Jason McDaniel was an employee of Raysteff and applied all Kerb to approximately three acres of the golf course. Respondent, McDaniel, supervised the application of the Kerb. Neither Respondent, McDaniel, nor any other employee, officer, or agent of Raysteff held a valid applicator's license at the time of the application. Respondent, McDaniel, had been licensed by Petitioner in 1975 and 1976 as a certified applicator. Mr. McDaniel's license expired on October 31, 1983. Mr. McDaniel took the examination required to obtain a new license after December 5, 1991. At the time he purchased and applied the Kerb, Mr. McDaniel had not been notified that he had passed the examination. Mr. McDaniel subsequently received his current license which expires sometime in 1996. The Kerb was applied properly around tees and greens on a sunny day with little wind. The treated area was not used by golfers until after the treated area was dry. The method of application did not expose either golfers or workers directly or by drift. The method of application complied with labeling precautions on the product. Neither package labeling, Petitioner's rules, nor Petitioner's policy establishes the amount of time needed for Kerb to dry. Petitioner failed to present any evidence to explicate its assertion that Respondents failed to determine that the Kerb was dry before allowing persons into the treated area. Evidence presented by Respondents was credible and persuasive. Respondents have no history of formal administrative disciplinary action for prior offenses. Respondent, McDaniel, properly applied the Kerb after taking the examination to obtain his license as a certified applicator and subsequently received that license. No harm was caused to any individual as a result of the application of the Kerb. There was no damage which would otherwise require expense to the state to rectify. Respondents did not benefit pecuniarily as a result of applying the Kerb prior to the time Mr. McDaniel received his license. However, Mr. McDaniel knew or should have known that he did not have his license when he purchased and applied the Kerb.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued denying Petitioner's claim of unlawful discrimination. DONE AND ENTERED this 19th day of October, 1993, at Tallahassee, Florida. DANIEL MANRY 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 19th day of October, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2230 Petitioner did not submit proposed findings of fact. 1.-10. Accepted in substance 11.-12. Rejected as unsupported by the weight of evidence Accepted in substance Rejected as irrelevant and immaterial Respondent's Proposed Findings of Fact 1.-2. Accepted in substance Rejected as irrelevant and immaterial Accepted in substance 5.-11. Rejected as irrelevant and immaterial 12. Accepted in substance COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 John S. Koda, Esquire Florida Department of Agriculture and Consumer Services Room 515, Mayo Building Tallahassee, Florida 32399-0800 Elting L. Storms, Esquire Post Office Box 1376 Melbourne, Florida 32902-1376 Richard Tritschler, Esquire General Counsel Florida Department of Agriculture and Consumer Services Room 515, Mayo Building Tallahassee, Florida 32399-0800
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Petitioner, John's Island Club, Inc. (petitioner or the club), is a not-for-profit corporation which owns and operates a private country club facility in the John's Island residential development in Indian River County, Florida. It provides a variety of recreational facilities to its members. Among the amenities are three golf courses, nineteen tennis courts, a tennis building, a beach club, a club house, a swimming pool, and dining facilities. Respondent, Department of Revenue (DOR), is a statutorily created agency charged with the administration of the state revenue laws, including Chapter 212, Florida Statutes, and rules promulgated thereunder. As a result of an amendment made in 1991 to Subsection 212.02(1), Florida Statutes, DOR is authorized by law to impose an admissions tax on "dues and fees" paid to private membership clubs providing recreational facilities. As a private membership club, petitioner is subject to this tax. Beginning on July 1, 1994, petitioner made an assessment on each member to raise capital for the purpose of repairing and replacing many of its physical facilities. During the six month period ending December 31, 1994, $10,441,897 was collected from the members and made available to the club. Rule 12A- 1.005(d)1.b., Florida Administrative Code, which was adopted by DOR in December 1991 to implement the admissions tax on dues and fees, imposes a tax on "(a)ny periodic assessment (additional paid-in capital) required to be paid by members of an equity or non-equity club for capital improvements." Under the authority of that rule, DOR required that petitioner pay the applicable sales tax on the assessment collected through December 31, 1994, or $730,932.79, and that it continue to pay the tax as other similar assessments are made in the future. Claiming that the rule exceeds DOR's grant of rulemaking authority, and it modifies, enlarges, and contravenes the law implemented, petitioner filed a petition for administrative determination of invalidity of existing rule. DOR denies all allegations and asks that the validity of its rule be upheld. The Club and the Assessment The composition of the club The club began operation in 1969 but was purchased by its members in 1986. It is an equity private membership club but issues no stock. The club has two types of memberships: golf and sports social. Currently, the cost of a golf equity membership is $85,000 while the cost of a sports social membership is $30,000. After payment of these fees, the member receives a membership certificate, which represents his or her equity ownership interest in the club. At the present time, there are 1125 golf memberships and 257 sports social memberships. Of the 1125 golf memberships, the original developer still owns 67. In addition to having to purchase a membership, members must also pay annual dues. A golf member pays $4,875 in annual dues while a sports social member pays $2,760 in annual dues. A sales tax is also collected on these dues. The dues are used to cover operating expenses such as insurance, administrative costs, staff salaries, and maintenance costs. In addition, members pay fees for additional services such as golf cart use, golf bag storage, locker room use, and golf and tennis lessons. When a member decides to resign or retire from the club, he or she may resell the membership to the club (but not a third party) and receive the greater of (a) the initial amount paid by the retiring member, or (b) 80 percent of the current membership cost (with the remaining 20 percent retained by the club in a separate capital improvement account). The assessment In 1992, the club began studying the feasibility of repairing and replacing many of its physical facilities. The total cost of the proposed work was set at $16,372,000. By majority vote taken in the spring of 1994, the members decided to raise capital for the work by imposing a capital assessment on each current member. It was agreed that the capital contribution would be $12,000 from each golf member and $11,150 from each sports social member. However, the payment of the capital contribution was not intended to, and did not result in any, decrease in the dues which members were required to pay for the use of the club's facilities. A failure to pay the assessment would result in suspension from the club. Three different options were made available to the members for the manner of payment of the capital contribution. The options included (a) a single payment, (b) payment over a three-year period, or (c) payment of interest only until such time as the member either sold the membership or left the club. After making payment in full, the member would be issued a certificate of capital contribution. It is noted that the developer was required to pay the capital contribution for his 67 golf memberships. Further, any person joining the club after the imposition of the assessment would likewise be required to pay the assessment. Beginning in July 1994, the club began collecting the capital contribution from its members. From July through December 1994, some $10,441,897 was collected. A total sales tax of $730,932.79 has been paid on those collections. Shortly thereafter, petitioner opted to file this rule challenge. The Rule and its Origin Rule 12A-1.005(5)(d)1.b. provides as follows: (d)1. Effective July 1, 1991, the following fees paid to private clubs or membership clubs as a condition precedent to, in conjunction with, or for the use of the club's recreational or physical fitness facilities are subject to tax. * * * b. Any periodic assessments (additional paid in capital) required to be paid by members of an equity or non equity club for capital improvements or other operating costs, unless the periodic assessment meets the criteria of a refundable deposit as provided in sub-subparagraph 2.e. below. * * * Under the terms of the rule, the capital contri- bution assessed by the club does not qualify as a refundable deposit. This is because any difference between the amount collected by the club upon the sale of a membership to a new member, and the amount which was paid to the retiring member, is retained by the club. Because Rule 12A-1.005, Florida Administrative Code, covers a wide array of items subject to taxation, the DOR cites Sections 212.17(6), 212.18(2), and 213.06(1), Florida Statutes, as the specific authority for adopting the rule, and Sections 212.02(1), 212.031, 212.04, 212.08(6) and (7), 240.533(4)(c), and 616.260, Florida Statutes, as the law implemented. There is no dispute between the parties, however, that in adopting sub-subparagraph 1.b., which contains the challenged language, the agency was relying principally on Subsection 212.02(1), Florida Statutes, as the law being implemented. That subsection defines the term "admissions" for sales tax purposes. Although the parties did not specifically say so, DOR relies on Section 212.17(6), Florida Statutes, as its source of authority for adopting the rule. That subsection authorizes DOR to "make, prescribe and publish reasonable rules and regulations not inconsistent with this chapter . . . for the enforcement of the provisions of this chapter and the collection of revenue hereunder." For the purpose of assisting DOR in administering the Florida Revenue Act of 1949, which imposes a sales and use tax on various transactions, Section 212.02, Florida Statutes, provides definitions of various terms used in the chapter, including the term "admissions." Prior to the 1991 legislative session, subsection 212.02(1) read in pertinent part as follows: The term "admissions" means and includes . . . all dues . . . paid to private clubs and membership clubs providing recreational or physical fitness facilities, including, but not limited to, golf, tennis, swimming, yachting, boating, athletic, exercise, and fitness facilities. During the 1991 legislative session, the definition of the term "admissions" was expanded by the addition of the following underscored language: The term "admissions" means and includes . . . all dues and fees . . . paid to private clubs and membership clubs providing recreational or physical fitness facilities, including, but not limited to, golf, tennis, swimming, yachting, boating, athletic, excercise, and fitness facilities. Thus, the legislature added the term "fees" to the term "dues" for those amounts "paid to any private clubs and membership clubs" which would be subject to the admissions tax. Prior to the above change in substantive law, rule 12A-1.005(5), as it then existed, provided that dues paid to athletic clubs which provided recreational facilities were taxable. However, subparagraph (5)(c) of the rule also provided that (c) Capital contributions or assessments to an organization by its members are not taxable as charges for admissions when they are in the nature of payments made by the member of his or her share of capital costs, not charges for admission to use the organization's recreational or physical fitness facilities or equipment, and when they are clearly shown as capital contributions on the organization's records. Contributions and assessments will be considered taxable when their payment results in a decrease in periodic dues or user fees required of the payor to use the organization's recreational or physical fitness facilities or equipment. Therefore, capital contributions were not taxable unless they resulted in decreased dues. That is to say, if a club levied an assessment on members and concurrently lowered its monthly dues, the assessment would be deemed to be taxable and in contravention of the rule. Thus, the effect of the rule was to prevent a club from renaming "dues" as "capital contributions" or "assessments" in order to avoid paying a tax on the dues. After the change in substantive law, the DOR staff began preparing numerous drafts of an amendment to its rule to comply with the new statutory language. At one stage of the drafting process, a DOR staffer recommended that, because the legislature had not provided a definition of the term "fee," the DOR should adopt a rule which provided that capital contributions be "not taxable if assessed under an equitable membership." Relying on what it says is the legislative intent, the DOR eventually proposed, and later adopted, the rule in its present form. In doing so, the DOR relied upon the terms "capitalization fees" and "capital facility fees" which are found in certain legislative history documents pertaining to the new legislation. Legislative History of the Law Implemented Although a number of bills related to the subject of a sales tax on admissions, the bill enacted into law was identified as Committee Substitute for House Bill 2523 (CS/HB 2523). The legislative history of the various bills relating to this subject has been received in evidence and considered by the undersigned. In early 1991, the House and Senate considered bills which addressed amendments to the sales tax on admissions. The first time the issue was addressed was at a meeting on February 21, 1991, of the Subcommittee on Sales Tax of the House Committee on Finance and Taxation. The discussion at the meeting indicated that the intent of the bill was to close a loophole that allowed physical fitness facilities to change their pricing structure to charge a higher initiation fee, which was not taxable, and thereby reduce their monthly dues, which were taxable, so as to reduce the revenue below that originally anticipated by this tax on admissions. This is corroborated by the bill analysis of the proposed committee bill that was offered, PCB FT 91-3A, which summarized the problem and solution as follows: Section 212.02(1), F. S. was amended during the 1990 Legislative Session to include in the definition of admissions those "dues" of "membership clubs" providing "physical fitness" facilities. Some clubs have attempted to avoid the tax (on dues) by shifting a substantial portion of the members' payments from "dues" to "initiation fees." Section 212.02(1), F. S., is amended to include "fees" as well as "dues" in the definition of admissions. All fees, including initiation fees and capitalization fees, paid to private clubs and membership clubs providing recreational or physical fitness facilities would be subject to the sales tax on admissions. It is unclear, but likely, that PCB FT 91-3A became House Bill 2417 (HB 2417). The bill analysis and economic impact statement on HB 2417, which was prepared by the House Committee on Appropriations, contained identical language to that in the bill analysis on PCB FT 91-3A. At the same time, the Senate was considering Senate Bill 1128, which later became Committee Substitute for Senate Bill 1128 (CS/SB 1128). On March 14, 1991, a staff analysis and economic impact statement on CS/SB 1128 was prepared by the Senate Committee on Finance, Taxation and Claims. It provided that: Section 212.02(1), Florida Statutes, defines "admissions" for sales and use tax purposes. Monthly fees of clubs with major facilities such as tennis courts, a swimming pool or a golf course have always been subject to the sales tax. During the 1990 Legislative Session this statute was amended to include dues on membership clubs providing physical fitness facilities, and not having these other major facilities. According to the DOR, such clubs have attempted to avoid payment of this tax by shifting a substantial portion of the members payments from dues to initiation fees which are not taxed. Accordingly, the purpose of the proposed statutory amendment was "to include initiation fees as well as dues in the definition of admissions." HB 2417 was passed by the House on April 17, 1991, and was sent to the Senate, where it was referred to the Committee on Finance, Taxation and Claims. HB 2417 died in that Committee. CS/SB 1128 was passed by the Senate on April 4, 1991, and was sent to the House, where it died in messages. A separate bill, Committee Substitute for House Bill 2523, which addressed similar issues to those addressed in HB 2417 and CS/SB 1128, was passed by the House on April 4, 1991, and was sent to the Senate where it was passed with amendments. The Bill was then returned to the House where further amendments were adopted. The Bill was again sent to the Senate with a request for the Senate to concur with the House amendments. The Senate refused to concur and the Bill was sent to a conference committee. The conference committee on finance and taxation met on April 19, 1991. The entirety of the discussion of the committee on this issue is as follows: Senator Jenne: The - - going down to number 21, admissions, initiation fees. The House includes capitalization fees. Representative Abrams: Which is this? Mr. Weiss: The Senate bill just states initiation fees are additionally included. The House bill, I believe, says that it's just all fees, which would include whether they called them initiation fees or capital facility fees or whatever. Representative Abrams: Because we are using something other than initiation - - Mr. Weiss: It's a fee that is going to be included. Representative Abrams: Yes, they were using - - they were breaking down categories of fees to avoid the tax, I think is what the deal was there. That gets us how much? Senator Jenne: Okay, well, it doesn't matter, because you can do it. Representative Abrams: Okay, good. Although the terms "capital facility fees" and "capitalization fees" were used during the discussion, contrary to DOR's assertion, it is far from clear that the intent of the amendment was to make taxable all capital contributions and assessments paid by members of private clubs providing recreational facilities. When placed in context with the prior debate before the committees and their staff analyses, it is much more likely that the intent was to close a loophole then used by physical fitness clubs who were renaming dues as fees in order to avoid taxes. The report of the conference committee was received by both houses on April 30, and CS/HB 2523 was passed by both houses the same day. The conference committee report for the bill contains only the following language describing the sales tax on admissions/initiation fees: Includes all recreational or physical fitness facility fees in the definition as admissions. The official conference committee report contains no reference to the terms "capitalization fees" or "capital facility fees." Neither does it make reference to the terms "assessment" or "paid in capital," which are the terms used by DOR in its rule. In the final bill analysis and economic impact statement prepared by the House Committee on Finance and Taxation for CS/HB 2523 on June 12, 1991, or 43 days after the bill was passed, the analysis states that subsection 212.02(1) was amended to include: "fees" as well as "dues" in the definition of admissions. All fees, including initiation fees and capitalization fees, paid to private clubs and membership clubs providing recreational or physical fitness facilities would be subject to the sales tax on admissions . . . This amendment should also limit further attempts to avoid taxation by renaming the fees collected from members. The staff analysis was obviously not available to members of the House or Senate when they voted on the bill on April 30, 1991. Although the final bill analysis used the term "capitalization fees," no where in any of the legislative history is there evidence of any legislative consideration of what was actually meant by that term. This is also true of the term "capital facility fees" which surfaced on one occasion prior to the passage of the bill. Capitalization Fees and Their Significance The sole basis for the DOR including the tax on assessments for capital improvements was the appearance in the legislative history of the terms "capitalization fees" and "capital facility fees." Neither term has any meaning to tax accountants. However, the accounting witnesses for both parties agreed that, from an accounting perspective, the phrase "capital facilities" would be understood to be assets having a life longer than one year. A capital contribution is typically a one time payment for the purchase of assets. It does not entitle the member to use the club. It is an equity transaction, not an income transaction, and it represents an intent to make an investment to improve the value of the membership assets separate and apart from the payment of annual expenses for the receipt of some service. "Dues" are a member's contribution to the operating costs of a club. They are assessed over an annual period and they are recurring. They also represent the payment that a member pays for admission to the organization. A capital contribution paid by a member of an equity membership club is not "dues." "Fees" as applied to a club are user charges. They are voluntary so that a member can decide whether or not to incur the charge based on whether the member uses the particular service to which it relates. A capital contribution is not a "fee."
The Issue The issues in this proceeding concern whether the Petitioners named above should be placed on the Convicted Vendors List described in Section 287.133(3)(d), Florida Statutes.
Findings Of Fact Petitioner, Anthony Liuzzo, is owner of the above-named Petitioner hotel. On March 10, 1992, he was convicted of a public entity crime as defined in Section 287.133(1)(g), Florida Statutes. That adjudication was rendered in Chautauqua County, New York. The University Centre Hotel, Inc., is a Florida corporation. It owns and operates the University Centre Hotel, which is located at 1535 Southwest Archer Road, in Gainesville, Florida. The hotel is located in close proximity to the University of Florida, directly across from Shands Hospital. The hotel has one hundred eighty (180) rooms with accompanying restaurant facilities, meeting rooms, banquet halls, a car rental agency and other hotel-related services. The hotel regularly provides conference halls, meeting rooms, and lodging accommodations for persons and events involving or associated with the Shands Hospital and the University of Florida. Mr. Anthony Liuzzo is owner of the hotel and it is an affiliated entity within the meaning of Section 287.133(1)(a)2, Florida Statutes. Although Mr. Liuzzo is the sole owner of the hotel, the hotel employs a general manager to handle day to day management. The hotel has, at various times, conducted business with public entities in the State of Florida. On August 31, 1989, Mr. Liuzzo was indicted by the State of New York in an eleven (11) count indictment against him, five (5) other persons and two (2) corporations. He was indicted on three (3) counts of grand larceny in the second degree, one count of grand larceny in the third degree, five counts of offering a false instrument for filing in the first degree, and one count of conspiracy in the fourth degree (Counts I through IX and XI of the indictment). The court subsequently dismissed two (2) of the five (5) counts, involving offering a false instrument for filing (Counts V and VI). All of the counts of the indictments were the result of allegedly inappropriate documentation of the operating costs for the Greenhurst Health Care Center, which was owned by Mr. Liuzzo and is located in Jamestown, Chautauqua County, New York. The copy of the indictment is attached to the Joint Stipulation and incorporated therein and in these Findings of Fact as Exhibit "C." In March 1992 Mr. Liuzzo withdrew his previously entered plea of not guilty and entered an "Alford plea of guilty" to the remaining counts of the indictment (Counts 1 through IV, XII through IX, and XI), pursuant to the case of North Carolina v. Alford, 400 U.S. 25(1969), which permits the defendant to maintain his innocence and otherwise enter a valid plea of guilty. The presiding Judge in that criminal proceeding accepted the Alford plea of guilty with a commitment that Mr. Liuzzo would receive a non-custodial sentence of probation. A transcript of the hearing where the plea was entered, a Certificate of Conviction, and the Order and Condition of Probation are attached to the Joint Stipulation and adopted therein and herein, by reference, as Exhibit "D." Anthony Liuzzo and the hotel notified the Department of Management Services of the convictions and provided the details, as shown in Exhibit "E," incorporated by reference in the Joint Stipulation and in this Final Order. Mr. Liuzzo also provided Exhibit "M," incorporated in the stipulation, notifying the Department of Management Services of the nature of the public entity crime. He provided a copy of the indictment as well as other documentation. Furthermore, Mr. Liuzzo's attorneys made themselves available for any further inquiry prior to a Notice of Intent being issued. On December 2, 1997, the Department of Management Services issued its Notice of Intent pursuant to Section 287.133(3)(e)1, Florida Statutes, to Mr. Liuzzo and hotel, notifying them of its intent to place them on the Convicted Vendors List. On December 18, 1997, pursuant to Subsection 287.133(3)(e)2, Florida Statutes, Mr. Liuzzo and the hotel timely filed a Petition for formal administrative hearing pursuant to Section 120.57(1), Florida Statutes, to determine whether it is in the public interest that Mr. Liuzzo and the hotel be placed on the State of Florida Convicted Vendors List. Subsection 287.133(3)(e)3, Florida Statutes, establishes certain factors which, if applicable to a convicted vendor, will mitigate against the placement of that vendor on the Convicted Vendors List. Subsection 287.133(3)(e)3.b, Florida Statutes, establishes "the nature and details of the public entity crime," as a mitigating factor. The indictment and conviction were for alleged submission by Mr. Liuzzo of false documentation concerning the operating costs of his New York nursing home, for a period from September of 1983 through August 1989. The convictions did not involve the hotel. The convictions were for alleged acts that occurred during a reporting period over ten (10) years ago. Subsection 287.133(3)(e)3.c, Florida Statutes, established "the degree of culpability of the person or affiliate proposed to be placed on the Convicted Vendors List" as a mitigation factor. As detailed above, the hotel was not involved in any of the alleged acts at issue in this matter. Mr. Liuzzo's degree of culpability was that of an absentee owner, who lived in Florida and allowed others to manage and run the day-to-day operations of his New York nursing home. Subsection 287.133(3)(e)3.d, Florida Statutes, established "prompt or voluntary payment of any damages or penalties as a result of the conviction" as a factor mitigating against placement on the Convicted Vendors List. As part of the disposition of those charges, Mr. Liuzzo agreed to make a monetary restitution in the amount of five hundred thousand dollars ($500,000), half of which is to be paid over the five (5) year term of his probation. He made his first restitution payment in the amount of two hundred fifty thousand dollars ($250,000), on April 28, 1992, and, though the balance was due in annual payments of fifty thousand dollars ($50,000) through 1997, he paid the full amount of the balance, two hundred fifty thousand dollars ($250,000), on April 21, 1993, four (4) years ahead of schedule. Mr. Liuzzo and the State of New York, in December of 1992, entered a Settlement Agreement regarding any and all disputed matters involving his New York nursing home. See Exhibit "H" attached and incorporated in the Joint Stipulation, which evidences full payment of the five hundred thousand dollar ($500,000) Order of Restitution. Subsection 287.133(3)(e)3.e, Florida Statutes, establishes "cooperation with state or federal investigation or prosecution of any public entity crime . . . "; as a factor mitigating against placement on the Convicted Vendors List. Anthony Liuzzo and the hotel fully cooperated with the Department of Management Services in its investigation initiated pursuant to Section 287.133, Florida Statutes. Section 287.133(3)(e)3.f, Florida Statutes, establishes "[d]isassociation from any person or affiliates convicted of the public entity crime" as a mitigating factor. Mr. Liuzzo has disassociated himself and ceased all business relationships with the individuals and entities that were indicted with him, with the exception of his father, Joseph Liuzzo and his nephew, Frederick J. Landy, both of whom were dismissed from the indictment. Subsection 287.133(3)(e)3.h, Florida Statutes, established "reinstatement or clemency in any jurisdiction in relation to the public entity crime at issue in the proceeding" as a mitigating factor. On May 14, 1992, the State of New York discharged Mr. Liuzzo from probation and with the approval and support of the assistant attorney general with the office of Medicaid Fraud Control, the court ordered the issuance to Mr. Liuzzo of a Certificate of Relief from disabilities. This acts to restore the loss of any civil rights occasioned by the conviction at issue. On July 23, 1993, the Governor of the State of Florida, in concurrence with Cabinet of the State of Florida, filed its executive Order which granted to Mr. Liuzzo the restoration of civil rights in the State of Florida. The State of Florida Department of Business and Regulation, Division of Alcoholic Beverages and Tobacco, had preliminarily revoked the hotel's alcoholic beverage license because of the convictions. Subsequently, that revocation was set aside because of the restoration of Mr. Liuzzo's civil rights and because his adjudication had nothing to do with the hotel and its operations. Subsection 287.133(3)(e)3.j, Florida Statutes, establishes "the needs of public entities for additional competition in the procurement of goods and services in their respective markets" as a mitigating factor. The hotel provides conference halls, meeting rooms, and lodging accommodations for persons and events involving or associated with the Shands Hospital, the University of Florida, and other related public entities. A listing of such public entities is attached to the Joint Stipulation and incorporated therein as Exhibit "A." The hotel's facilities and proximity to University of Florida facilities provide unique services to that public entity. Any restriction of the University of Florida's abilities to procure such services from the hotel would negatively impact the market in the Gainesville area by limiting the competition for the provision of such services, thereby increasing the cost to the University of Florida and other public entities for obtaining their services. Further, due to the fact that there are few facilities in the area equipped to provide the type, size and quality of services provided by the hotel, elimination of the hotel as a source to obtain such services results in a corresponding reduction in the quality of services that can be provided to the University of Florida and other state institutions. Subsection 287.133(3)(e)3.k, Florida Statutes, establishes "any demonstration of good citizenship" as a mitigating factor. Mr. Anthony Liuzzo, graduated from Riverside Military Academy, located in Fort Lauderdale, Florida, in 1952 and received his BSBA Degree from the University of Florida in 1956. Mr. Liuzzo excelled for four (4) years as a member of the University of Florida Track Team, which included two (2) years as Southeastern Conference Champions. After graduation, Mr. Liuzzo founded a construction and real estate development company. He eventually expanded his real estate holdings to include nursing homes, shopping malls, condominium apartments, a hotel and banking institutions. Among his Florida projects, are the Gainesville Vizcaya Apartments, located on Southwest 34th Avenue and the University Nursing Care Center. Mr. Liuzzo has been very active in the community. He was appointed by Governor Bob Graham as the member of the Gainesville Regional Airport Authority. He is active on several boards including the March of Dimes, Florida's Future, Inc., and the Hippodrome State Theater. Additionally he has served as a Florida State Chairman for Special Olympics, and has worked with the Stop Children's Cancer and the Children's Miracle Network Telethon. Mr. Liuzzo is a member of the President's Council at the University of Florida, a large contributor to the University of Florida Foundation and Athletic Association. He is also a member of the Florida Blue Key and a "Bull Gator." Most recently, Mr. Liuzzo assisted the Hervy and Sandra Daniel family, and provided them free room and board for several weeks, while their young daughter, Ashley Daniel, became the youngest double lung transplant patient treated by the Shands Hospital at the University of Florida. In addition, employees of the University Centre Hotel raised approximately one thousand dollars ($1,000) which Mr. Liuzzo matched dollar-for-dollar, giving the family a check in the amount of two thousand dollars ($2,000). A copy of a newspaper article, as well as a letter from the Daniel family, is attached to the stipulation as Exhibit "N." Mr. Liuzzo recently came to the assistance of the Miss Florida Pageant, which was in danger of being cancelled. The University Centre Hotel agreed to become a major sponsor of the event, ensuring that its most recent televised event would go on. A copy of a letter from the Miss Florida Scholarship Organization as well as a newspaper article are attached to the stipulation as Exhibit "O." A partial list of awards and recognitions is set forth below: 1984- Special Thanks from Governor Bob Graham for assistance in fund-raiser for Florida's Future, Inc. 1985- Appointed to Gainesville-Alachua County Regional Airport Authority by Governor Bob Graham. 1985- Awards of Appreciation for services from Gainesville-Alachua. 1988- County Regional Airport. 1986- Key to the City of Gainesville presented by Mayor David Flagg. 1985- Award of Appreciation for continuing dedication to and support of the University of Florida Track Department. 1987- Award of Appreciation for support of Stop Children's Cancer, Inc. 1988- Award of Appreciation for support provided to children served by Shands Hospital at the University of Florida Miracle Network Telethon. 1989- Distinguished Sponsor Award presented by the Gainesville Writer's Workshop in appreciation for his support of the Writer's Art. 1989- Award of Appreciation for Outstanding Contributions for serving as Grand Host for the Stop Children's Cancer, Inc., Mercedes Benefit. 1989- Award of Thanks for providing assistance in fund raising in fund raiser for Sid Martin's Ridge House. 1991- Award of Appreciation from Florida Special Olympics Game Committee. 1991- Bull Gator Award in recognition of highest levels of contribution and dedication to the University of Florida and Gator Athletics. 1991- Outstanding Jailee, American Cancer Society Jail and Bail program. 1991- Board Member, Alachua County Tourists Development Council; instrumental in laying the foundation of the Alachua County bed tax that allowed for the construction of the $10,000,000 Performing Arts Center. p. by 1992-93- Hospice). Junior Women's Club of Gainesville (sponsored q. 1992-93- American Cancer Society. r. 1992-93- Red Cross City of Gainesville. s. 1992-93- "Putting on the Ritz" Benefit for Children's Society. 1993- Major Contributor to the State of Florida Museum of Natural History, Gainesville, Florida. 1992-94- Major contributor to Children's Miracle Network (Multiple Sclerosis). 1992-94- Chris Collingsworth Golf Tournament-Mental Health. 1991-94- Alachua County Board of County Commissioners Tourist Development Council - Distinguished Service Award presented for year of dedication to the County. The parties stipulated that the Joint Stipulation provides a full and complete factual basis for determining whether Anthony Liuzzo and University Centre Hotel, Inc., should be placed on the Convicted Vendors List. In light of the facts and the criteria set forth in Subsection 287.133(3)(e)3.a. through k., Florida Statutes, there has been established to be no disputed issue of material fact between the Department of Management Services and Mr. Liuzzo and University Centre Hotel, Inc. The parties also entered into a Joint Stipulation and agreed-upon Settlement, filed with the Division of Administrative Hearings on December 22, 1997, incorporating the Joint Stipulation of Fact and attachments referenced above as Exhibit "A," and containing the Stipulation that there is no material issue of fact requiring a formal hearing, thus waiving formal hearing. The Joint Stipulation of Fact, according to the parties' Stipulation and agreed-upon Settlement, established that the Petitioners have satisfied mitigating elements contained in Section 287.133(3), Florida Statutes. They stipulate that the Joint Stipulation of Facts includes elements that raise a rebuttable presumption in favor of the Petitioners that it would not be in the public interest to place the Petitioners on the Florida Convicted Vendors List and that there are no stipulated facts that would overcome that rebuttable presumption. Therefore, the parties agreed to disposition of this matter by issuance of a Final Order adopting the Settlement Agreement and Joint Stipulation of the parties pursuant to Sections 287.133(3)(e)2.f and 120.57(3), Florida Statutes, with a finding that it is not in the public interest to place the Petitioners on the Florida Convicted Vendors List.
