The Issue Whether Respondent's teacher's certificate should be suspended or revoked or other appropriate action taken for alleged violations of Chapter 231, Florida Statutes, and Chapter 6B, Florida Administrative Code, as set forth in the Petition herein. At the commencement of the hearing, Petitioner moved to amend paragraphs 1 and 2 to reflect a correct date of May 5, 1977, in lieu of the date May 5, 1978, stated therein. There being no objection, the Motion was granted and the Petitioner so amended.
Findings Of Fact The Respondent, Thomasena W. Owens, holds a Florida Teaching Certificate and has been employed in the Duval County Public School System at Ribault High School, Jacksonville, Florida, since 1979, as a cosmetology teacher (testimony of Respondent). On May 5, 1977, Respondent conducted a fashion show with her students at the high school auditorium for the purpose of raising funds to defray expenses of graduating students to take examinations before the State Board of Cosmetology. Prior to this time, Respondent obtained permission from school authorities to conduct the fund raising activity. Written school policy required that tickets for such events must be prenumbered consecutively by the printer and that a report of tickets sold and funds received must be prepared by the person in charge of the activity (testimony of Davis, Respondent, Petitioner's composite exhibit No. 4). On April 12, 1977, Respondent's husband, Herbert Owens, ordered the printing of 500 tickets for the sum of $15.00 in the name of Ribault High School - Cosmetology Department, at Bill Kight's Copy Center, Jacksonville, Florida. He later received the tickets from the Copy Center without paying for the same and delivered them to his wife's office at the school. The tickets were unnumbered. Prior to ordering the tickets, Respondent had not submitted a request for purchase approval to the School principal as was required under written school policies (testimony of Thrift, Harms, Davis, H. Owens, Petitioner's exhibit No. 1-2, 4,5). The ticket price for the fashion show was one dollar. Prior to the event, there was an undetermined number of advance ticket sales. The school auditorium has an audience capacity of approximately 700 persons. Tickets were sold at the door at the night of the performance by Emily James, a School clerical employee. The door was the only available entrance to the auditorium. During the course of ticket sales immediately before the performance, some four or five individuals entered the auditorium with passes. Although the auditorium was not completely full, at least 500 persons were present during the show. A short time before the performance had concluded, Mrs. James turned over the cash receipts and unsold tickets in a box to Respondent. On June 9, 1977, Respondent executed a form titled "Report of Monies Collected," which reflected that she had turned in $103.00 in cash to the School bookkeeper on May 5, 1977. It further reflected that 300 tickets had been printed and that 176 tickets were turned in on June 9th. It further showed that the cash balance due of $21.00 had been turned in by Respondent on the same date. The form was countersigned by the school bookkeeper. (Testimony of James, Feagin, Davis, Respondent's exhibit No. 1). In August, 1977, the bookkeeper for Bill Knight's Copy Center noted that the invoice for the tickets had not been paid by the high school. She called Mr. Owens for an explanation. He stated that the reason why the bill had not been paid was that only 300 tickets had been ordered and that in order to pay for the work, he needed another invoice, dated April 12, 1977, showing 300 tickets at the price of $15.00. The revised invoice was picked up by Mr. Owens. It was not until February 14, 1978, that the High School paid the bill for the tickets. (Testimony of Harms, H. Owens, Davis, Petitioner's exhibit No. 2, 6- 8). Respondent received a satisfactory job performance evaluation from the school principal in 1977, although the principal had expressed concerns to her for previous irregular business transactions. Respondent received an unsatisfactory overall evaluation in 1978, which the principal explained was due to the fact that "I wanted to register with Ms. Owens my objections to the fund raising business . . . and I chose this method to do that." Although the principal stated that Respondent expressed positive qualities of demonstration and enthusiasm in her classes, she was concerned about her ability to impart knowledge to students. (Testimony of Davis, Petitioner's Exhibit No. 3). Both Respondent and her husband testified at the hearing. Respondent disclaimed any knowledge of the ticket purchase and attributed all events concerning the transaction to her husband. However, when she was interview by Petitioner's security investigator in August, 1978, she told him that she had ordered the tickets and that her husband had picked them up. She also stated to him that, after discovering that she had been billed for 500 tickets even though she had ordered only 300, she went to the printers the next day and obtained a corrected invoice. In a subsequent interview about a week later, Respondent told the investigator that the corrected invoice had been mailed to her and that her husband had paid for the tickets and picked them up. At the hearing, Respondent testified that her husband had ordered that tickets because she was "busy." Although she had told the investigator that there had been advance ticket sales, at the hearing Respondent testified that she could not remember if there had been such sales. Her testimony indicated that students had counted the tickets before the performance and placed them in stacks of 25 each and that there were only 300 tickets. She further testified that Mrs. James had handed her a locked bag containing the door ticket sale receipts and unsold tickets, had placed the bag in the truck of Respondent's care, and that Respondent turned the money over to the bookkeeper the next day without knowing what was in the bag. She denied keeping any of the sales receipts or any wrong doing. She admitted that she was aware of school procedures to be followed in purchasing materials, but said that the principal an bookkeeper had authorized her to purchase the tickets. Her husband testified that he had ordered 300 tickets from the printer and picked them up when they were ready, but did not pay for them at that time. He admitted having the conversation with the printer's bookkeeper and requesting a revised invoice to reflect that only 300 tickets had been printed and delivered. He testified that he told his wife that he had paid for the tickets because he did not want her to have any "foul-ups" with the principal in regard to the bill being paid. He further testified that he viewed the crowd attending the fashion show and that there were approximately 200 spectators present. In view of the inconsistencies and conflicts of the above testimony of Respondent and Mr. Owens between themselves and with the testimony of other witnesses, the demeanor of all witnesses, and the circumstances surrounding the transaction in question, the testimony of Respondent and her husband as summarized above in pertinent respects, is not deemed credible. Based on the foregoing findings, it is further found that Respondent failed to properly account either for funds received for the sale of 200 tickets, or otherwise to satisfactorily account for the disposition of 200 missing tickets.
Recommendation That Respondent's teaching certificate be revoked for a period of three (3) years, pursuant to Section 231.28, Florida Statutes. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 20th day of August, 1979. COPIES FURNISHED: David Holder, Esquire 110 North Magnolia Tallahassee, Florida Kenneth Vickers, Esquire 437 East Monroe Street Jacksonville, Florida 32202 THOMAS C. OLDHAM 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 20th day of August, 1979.
The Issue Whether the respondent is guilty of the violations alleged in the Notice of Intent to Impose Administrative Fine, and, if so, the amount of the fine which should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and the entire record of this proceeding, the following findings of fact are made: The Department is the state agency charged with the administration of sections 501.012-.019, Florida Statutes, and is responsible for registering health studios. The Division of Consumer Services carries out this function. Mr. Beattie and his brother, Tim, are owners of the Paradise Gym, a health studio located at 1236 South Dixie Highway, Coral Gables, Florida. The gym has been in business since 1976 and in its present location for over six years. The Department contacted the Paradise Gym several times in 1992 regarding the statutory requirement that it register as a health studio. The gym continued to operate without being registered, however. In the spring of 1993, the Department obtained an injunction from the circuit court in Dade County, Florida, barring the gym from operating until it registered with the Department. On July 9, 1993, the Department conducted an on-site undercover investigation at the Paradise Gym and found that it was operating as a health studio in violation of the injunction. After the Department scheduled a contempt hearing, the Paradise Gym finally submitted a completed registration application. The gym was registered with the Department on December 6, 1993, and assigned registration number 02370. The annual registration for the Paradise Gym expired on December 6, 1994. The Department sent the Paradise Gym a registration packet enclosed with a letter dated October 24, 1994. The packet contained a registration form, and the letter contained instructions to send the completed form to the Department "together with a copy of the membership contract currently in use and the annual registration fee of $300." (Emphasis in original.) The Department did not receive a response to the October 24 letter. In a letter dated December 2, 1994, the Department notified the Paradise Gym that it must send the completed registration form and other documents within fifteen days of the date of the letter. The December 2 letter contained the warning that the gym must immediately cease "all non-exempt activities" until it came into compliance with the statutes governing health studios. The Department did not receive a response to the December 2 letter. On January 24, 1995, an employee of the Department telephoned Mr. Beattie and was told that the registration packet would be sent by January 27, 1995, and that the application had not been mailed sooner because the gym's offices had flooded and suffered serious damage. The Department did not hear from Mr. Beattie until February 20, 1995, when it received the Paradise Gym's Application for Registration; Affidavit of Exemption from the requirement that a bond, Certificate of Deposit, or letter of credit be posted; and check in the amount of $300 for the annual registration fee. These documents were signed by Mr. Beattie on February 6, 1995. The gym's membership contract was not included with the registration materials, and the Department sent a letter to the Paradise Gym dated February 21, 1995, stating that the Department could not process the application for registration until it received a copy of the contract. The Department received no response to the February 21 letter. In a letter dated March 21, 1995, the Department notified Mr. Beattie that the application for registration of the Paradise Gym was denied because the Department had not received a copy of the gym's membership contract. The letter contained a Notice of Rights and was sent via certified mail. The letter was received at the Paradise Gym, and the return receipt signed, on March 27, 1995. The Department did not receive a response to the letter, either in writing or by telephone, and the denial became final agency action 21 days after it was received at the gym. On May 5, 1995, an investigator for the Department conducted an on- site undercover inspection of the Paradise Gym. The inspection revealed that the gym was operating as a health studio and was offering memberships payable annually or by down payment and monthly installments. On June 13, 1995, the Department issued the Notice of Intent to Impose Administrative Fine at issue in this case and sent it to Mr. Beattie via certified mail. The notice included an offer to settle the matter upon payment of an administrative fine of $3500. The Department did not receive a response to the notice and did not receive a return receipt indicating that the notice had been delivered. In late July, 1995, Douglas Jennings, an employee of the Department, telephoned Mr. Beattie to inquire about his failure to respond to the notice. Mr. Beattie stated that he had not received it, and Mr. Jennings sent him a copy via certified mail. The notice was received at the Paradise Gym on August 3, 1995, and the Department granted the request for hearing dated August 21, 1995. On September 19, 1995, Mr. Jennings received a telephone call from Mr. Beattie in which he asked if the Department would drop the fine; on September 22, 1995, the Department received a copy of a document bearing the logo of the Paradise Gym and entitled "Waiver and Release from Liability and Indemnity Agreement." The contents of this document were substantially different from the contents of the document of the same title submitted in 1993 with the gym's initial application for registration, although the consumer disclosures required by statute remained the same. At hearing, Mr. Beattie explained his failure to submit the Paradise Gym's membership contract until September 22, 1995. He asserted on the one hand that there was no "membership contract" for the gym, just a waiver of liability, and on the other hand that the Department had a copy of the Waiver and Release from Liability and Indemnity Agreement he provided in 1993 with the gym's original application for registration. He did not explain why the Paradise Gym continued to operate after being notified in December 1994 that the gym could not continue operating until it had registered with the Department or why the gym continued to operate after March 21, 1995, when its application for registration was denied. The Department has proven by clear and convincing evidence that the Paradise Gym operated as a health studio without being registered with the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department of Agriculture and Consumer Services enter a Final Order finding that the Paradise Gym violated section 501.015(1) by operating without being registered with the Department and imposing an administrative fine in the amount of $100. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 11th day of April 1996. PATRICIA HART MALONO 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 11th day of April 1996.
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint and, if so, what disciplinary action should be taken against him.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made to supplement and clarify the factual stipulations set forth in the parties' August 15, 2008, Joint Status Report:2 The Broward County School Board (School Board) is responsible for the operation, control and supervision of all public schools (grades K through 12) in Broward County, Florida (including, among others, Fort Lauderdale High School (FLHS)), and for otherwise providing public instruction to school-aged children in the county. Respondent is now, and has been since the late 1990s, employed as a classroom teacher by the School Board. He holds a professional services contract. Respondent is currently under suspension pending the outcome of these disciplinary proceedings. At all times material to the instant case, Respondent taught at FLHS and was the SGA (Student Government Association) advisor at the school. Among the classes he taught was an SGA leadership class. As the SGA advisor, Respondent oversaw the SGA's sale of tickets for the FLHS homecoming dance that was held every year, the proceeds of which were to go to the SGA. In 2007, the annual homecoming dance was held at the Bahia Mar Beach Resort on November 10, 2007. FLHS contracted with Randy Smith Enterprises, Inc. (RSE) to take photographs at the 2007 homecoming dance. As part of its contractual responsibilities, RSE provided to FLHS, free of charge, printed, consecutively numbered, homecoming dance tickets. The tickets arrived at FLHS on Friday, October 12, 2007. They were delivered in a sealed box to the office of Denise Nonamaker, who has been the school's bookkeeper for the past 13 years. The box contained two shrink-wrapped packages of tickets and an "invoice." The "invoice" was in the form of a letter, dated October 10, 2007, from Roland Smith, Jr., the president of RSE. The letter, which was addressed to Respondent, read as follows: Enclosed are the tickets numbered 001-550 for your 2007 homecoming dance. These tickets are supplied to you at NO CHARGE. I want you to know that I truly appreciate your patronage. Please feel free to call on me whenever I can be of assistance to you. As the school's bookkeeper, Ms. Nonamaker was responsible for ensuring that the tickets were handled in accordance with the School Board's "audit rules." This required that she first determine and document the number of tickets that had been received and were in the school's official "inventory." Respondent was in his classroom, waiting for his SGA leadership class to start, when he found out that Ms. Nonamaker had received the homecoming dance tickets. He immediately went to Ms. Nonamaker's office. When he arrived, Ms. Nonamaker was in the "walk-in safe" adjacent to her office "counting money." She had not yet opened the box containing the homecoming dance tickets and the "invoice." After letting himself into Ms. Nonamaker's office (by "reach[ing] over" and unlocking the lock on the office's "half- door"), Respondent took it upon himself to open the box while Ms. Nonamaker was still in the "walk-in safe" and could not see him. One of the students in Respondent's SGA leadership class, S. S., the SGA treasurer, had followed Respondent to Ms. Nonamaker's office. When S. S. entered the office, the "box of tickets was open," and S. S. saw Respondent "going through" the tickets. After Ms. Nonamaker had finished "counting [the] money" in the "walk-in safe" and returned to her office, she prepared two "audit rules"-required "inventory sheets" for the homecoming dance tickets. The first "inventory sheet" (Official Inventory Sheet) was intended to show, among other things, what numbered tickets Ms. Nonamaker had received from RSE (or, as she put it in her testimony at hearing, the "total amount of tickets that [she had] for sale"). Ms. Nonamaker enlisted Respondent's assistance in preparing this document. She asked Respondent to give her the last numbered ticket, which, according to the "invoice" that had come with the tickets, was ticket numbered 550. In response to Ms. Nonamaker's request, Respondent handed her ticket numbered 550. Ms. Nonamaker made a photocopy of the ticket, which, in accordance with the School Board's "audit rules," she attached to the Official Inventory Sheet. Consistent with what had been represented in the "invoice," Ms. Nonamaker wrote on the Official Inventory Sheet that she had received tickets numbered 001 through 550. In fact, although she did not realize it at the time,3 RSE had actually sent more tickets than just these 550 to the school, as Mr. Smith subsequently "confirm[ed]" in an October 16, 2007, letter he wrote to Respondent, wherein he indicated that RSE had "sent Ft. Lauderdale High 700 Homecoming tickets" in response to two separate orders, the first for 550 tickets (which order was filled by sending the school tickets numbered 001 through 550) and the second for an additional 150 tickets (which order was filled by sending the school tickets numbered 551 through 700). Ms. Nonamaker first became aware of this October 16, 2007, letter only after the dance had been held and the investigation that led to Respondent's suspension had commenced. The second "inventory sheet" Ms. Nonamaker prepared was a Perpetual Ticket Inventory Sheet used to document what numbered tickets were "issued" (that is, released by Ms. Nonamaker for sale) to whom and when. Before he left Ms. Nonamaker's office, Respondent signed the Perpetual Ticket Inventory Sheet that Ms. Nonamaker had prepared, acknowledging that Ms. Nonamaker had "issued" him tickets numbered 001 through 070. Ms. Nonamaker placed these tickets (numbered 001 through 070), along with "petty cash" and a receipt book signed out to Respondent, in a "cash box" that was to be picked up when ticket sales started on Monday, October 15, 2007.4 The "cash box" was to be used to store the money collected from ticket sales, and it was to be returned to Ms. Nonamaker's office (containing the money collected, plus the "petty cash," the receipt book, and any unsold tickets) after the completion of sales each day. After signing the Perpetual Ticket Inventory Sheet, Respondent left Ms. Nonamaker's office. Although he did not leave with the "cash box," Respondent did take 2007 homecoming dance tickets with him. Unbeknownst to Ms. Nonamaker, Respondent had taken a "stack" of tickets from one of the shrink-wrapped packages, put them in an envelope, and placed the envelope in his back pocket. This ticket-filled envelope was still in his pocket when he left Ms. Nonamaker's office. Homecoming dance tickets numbered 551 through 700 were found sometime the following week in an envelope in an unlocked drawer in Respondent's classroom desk by a student, N. R., the SGA president, who discovered them while "looking for Wite-Out." These tickets were not in the school's official "inventory," although they should have been. While Ms. Nonamaker had not seen Respondent take these tickets, S. S. had. After Respondent had left Ms. Nonamaker's office, S. S. told Ms. Nonamaker what she had seen Respondent do with these tickets and asked Ms. Nonamaker if she had seen the same thing. Ms. Nonamaker responded to S. S. that she had "not see[n] anything." Ms. Nonamaker reported to FLHS's head of security, David Martin, what S. S. had told her about Respondent's furtively pocketing a "stack" of homecoming dance tickets. Mr. Martin advised Ms. Nonamaker to telephone RSE to verify how many tickets RSE had actually sent the school. Ms. Nonamaker followed Mr. Martin's advice and telephoned RSE. During her telephone conversation, Ms. Nonamaker requested, and the RSE representative with whom she spoke promised to send her, a copy of the "invoice" for the tickets that RSE had sent FLHS. Four days later, Mr. Smith, RSE's president, wrote the October 16, 2007, letter (referred to above) indicating that 700 tickets had been sent to the school. A "few minutes" after Ms. Nonamaker had gotten off the telephone with the RSE representative, Respondent came into Ms. Nonamaker's office and demanded to know why she had called RSE.5 Ms. Nonamaker was taken aback by Respondent's "aggressive[ness] toward[s] [her]." She had "never" seen him be "that way" before. In response to his inquiry, she told him that she had merely "lost" the "invoice" for the tickets (which was not true) and therefore had asked RSE for a "duplicate copy." This seemed to satisfy Respondent. He left without pressing the matter any further. Before the start of homecoming dance ticket sales, Ms. Nonamaker, as she had done in previous years, went to Respondent's SGA leadership class and made a presentation to Respondent and the students in the class about the "whole" ticket-selling process, including the need for a receipt to be written for each ticket sold and for the proceeds of each sale to be turned in to her. In her presentation, Ms. Nonamaker emphasized that "everything ha[d] to go through [her] office." She also mentioned that this year the principal of the school was "under a special ticket audit." Homecoming dance tickets in the school's official "inventory" were sold each school day in the school auditorium during the A and B lunch periods starting on Monday, October 15, 2007, and ending on Friday, November 2, 2007. The tickets sold for $55.00 each the first week of ticket sales and for $60.00 each there afterwards. Tickets numbered 001 through 450 were released for sale by Ms. Nonamaker,6 but not all of these released tickets were sold. The tickets were sold in sequential numeric order. Ticket sales activity took place at two windows in the auditorium. Behind each window were two students from Respondent's SGA leadership class. S. S. and K. E., Respondent's chief of staff, were behind the first window (Window One).7 They had with them the "cashbox" that was picked up from Ms. Nonamaker's office each day. D. H. and A. H. were behind the second window (Window Two). Students wanting to purchase a ticket or tickets to the homecoming dance walked up to Window One and gave their money to one of the students behind the window (S. S. or K. E.), who placed the money in the "cash box." The other student behind the window wrote out a receipt in the receipt book8 (that was signed out for that purpose) and gave the white, student copy of the receipt to the purchasing student.9 The number (001, 002, etc.) of the ticket(s) the student purchased was written on the receipt. To obtain the actual ticket(s), the purchasing student had to go to Window Two and show the copy of the receipt obtained at Window One. Along with the ticket(s), at Window Two the purchasing student also received a "picture packet" (containing forms to order photographs taken at the dance), written directions to the Bahia Mar Beach Resort, and a set of homecoming dance rules (for which the student had to sign). The students behind Window Two (D. H. and A. H.) asked each purchasing student for the name of the person, if any, who would be coming to the dance as his or her "date." From the information that they obtained from the purchasing students, D. H. and A. H. compiled a list containing the names of those persons who would be attending the dance, their ticket numbers, and the names of their dates, if any. S. S. and/or K. E. relinquished control of the "cash box" each day after B Lunch, but not before counting the money in the "cash box" that had been collected that day and comparing it to receipts that had been written to make sure there was no shortage or overage. At no time (including on November 1 or 2, 2007) did either of them discover that the money and receipts did not "match." When the "cash box" was returned to her office, Ms. Nonamaker "would [also] count the money" and check it against the receipts. The money and receipts "always balance[d]." After verifying that the money and receipts "balance[d]," Ms. Nonamaker deposited the money in the SGA's bank account. Ms. Nonamaker was absent from school on the last two days of ticket sales, Thursday, November 1, 2007, and Friday, November 2, 2007, due to a death in the family. When she returned to school from leave on Tuesday, November 6, 2007, "the cash box and the receipt books were locked in the safe right where they should have been." She "counted all the money" and examined the receipt books. "[E]verything balanced perfectly." In the end, all of the money paid for the tickets sold by the students in the school auditorium from October 15, 2007, to November 2, 2007, wound up in the SGA's bank account, and all unsold tickets in the school's official "inventory" were accounted for. These ticket sales that took place in the school auditorium, however, were not the only 2007 homecoming dance ticket sales that were consummated from October 15, 2007, to November 2, 2007. Respondent also sold 2007 homecoming dance tickets during this period (and continued to do so up until the day before the dance), but the tickets he sold were not in the school's official "inventory" and he did not voluntarily turn in to Ms. Nonamaker (for deposit in the SGA's bank account) the proceeds from these sales. During the first week that tickets were on sale in the auditorium, Respondent sold (in his classroom) two tickets to G. G., a student in one of his classes. G. G. made the purchase after Respondent had announced to the class that students who purchased tickets from him would receive "ten points extra credit towards [their] grade[s]." G. G. paid Respondent $55.00 each for the two tickets, money which Respondent kept for himself. He did not give G. G. a receipt or anything else other than the two tickets she purchased from him. The tickets Respondent gave G. G. were tickets numbered 606 and 607. On or about October 22, 2007,10 at a time during the school day when tickets in the school's official "inventory" were on sale in the auditorium, G. G. walked up to Window One and asked for a receipt for her tickets. She explained that she had purchased the tickets from Respondent, who had not given her a receipt, and that she understood, from her friends, she needed a receipt to get a "picture packet." Instead of being given a receipt, G. G. was told to go see Ms. Nonamaker. G. G. immediately went to Ms. Nonamaker, who asked to see the tickets G. G. had purchased. G. G. did not have the tickets with her. G. G. brought the tickets to Ms. Nonamaker the following day. Ms. Nonamaker could see that these tickets "were not in [her] inventory." She therefore made photocopies of the tickets before returning them to G. G. G. G. was not the only student claiming to have purchased a ticket from Respondent who went to Window One during ticket sales in the auditorium to request a receipt. T. H. also did so. She walked up to the window on November 2, 2007, the last day of ticket sales, when K. E. was by herself behind the window. During her conversation with K. E., T. H. showed K. E. the ticket she had bought from Respondent, which was ticket numbered 611. Not wanting "to get in trouble," K. E. refused to give T. H. the receipt she had requested. As K. E. and T. H. were talking, Respondent came by the window, and he and T. H. began "arguing about [T. H.'s] getting a receipt." The dispute was ultimately resolved when Respondent wrote a receipt for the ticket "on a newspaper" and gave it to T. H., telling her, "If you really need a receipt, this is my receipt to you." Friday, November 9, 2007, was a "very busy day" at FLHS, particularly for the SGA. It was the day of the SGA- hosted pep rally and the day before the homecoming dance. Shortly before the pep rally was to begin, S. S. and N. R. went to Respondent's classroom to retrieve a print-out of a list, "saved on [Respondent's] computer," of those who would be attending the dance. Respondent was not there. While in the classroom, S. S. looked in an unlocked drawer in Respondent's desk, where she found a "lost" receipt book that had been signed out to Respondent during the 2005-2006 school year and subsequently reported missing, as well as a white envelope containing 2007 homecoming dance tickets. The envelope contained some, but not all, of the tickets (numbered 551 through 700) that were in the envelope that N. R. had found in Respondent's desk several weeks previous. S. S. informed Ms. Nonamaker of what she had found in Respondent's desk. Ms. Nonamaker contacted Bennie Brown, an assistant principal at the school, who, in turn, notified the school principal, Dr. Gina Eyerman, that homecoming dance tickets had been "stolen or [were] missing." After hearing from Mr. Brown, Dr. Eyerman went to Ms. Nonamaker's office and "asked her what was going on." While Dr. Eyerman was in Ms. Nonamaker's office, S. S. and N. R. telephoned Ms. Nonamaker from Respondent's classroom. Ms. Nonamaker handed the phone to Dr. Eyerman, who instructed S. S. and N. R. to bring the lost" receipt book and the tickets S. S. had found, as well as the list they had printed out, to Ms. Nonamaker's office immediately. S. S. and N. R. complied with Dr. Eyerman's request. Dr. Eyerman examined the tickets S. S. and N. R. had brought her and determined which tickets (from tickets numbered 551 through 700) were missing. (It was not until later on that she would become aware that tickets numbered 551 through 700 were not in the school's official "inventory.") Dr. Eyerman called Respondent to Ms. Nonamaker's office in the hopes that he would be able to shed some light on the matter. She also summoned Brian O'Toole, another assistant principal at the school. When asked about the tickets Dr. Eyerman had determined to be missing, Respondent told Dr. Eyerman that a student must have stolen them, a representation that Respondent knew was not true. He made no mention at this time of his selling these tickets. Dr. Eyerman next turned her attention to the "lost" receipt book that had been retrieved from Respondent's desk. Among the receipts written by Respondent that were in this receipt book were five receipts for 2007 homecoming dance tickets, each indicating that $60.00 had been paid for the ticket that had been purchased. Two were dated November 2, 2007: receipt numbers 1909974 and 1909975. The former had no student/purchaser name nor ticket number on it. The latter indicated the T. M. R. had purchased the ticket and that 610 was the number of the ticket she had been given. The remaining three receipts were dated November 9, 2007: receipt number 1909978, issued to B. P. for having purchased ticket numbered 624; receipt number 1909979, issued to J. S. P., for having purchased ticket numbered 625; and receipt number 1909980, issued to S. H. for having purchased ticket numbered 626. When asked by Dr. Eyerman about the tickets referenced in receipt numbers 1909974 and 1909975, Respondent told Dr. Eyerman that these two tickets "were complimentary" and he had not collected any money for them (which was inconsistent with the representations he had made in the receipts themselves that he had received $60.00 for each ticket). With respect to the receipts for tickets numbered 624, 625, and 626, Respondent said to Dr. Eyerman, "I just must have picked up the wrong receipt book and wrote the receipts in the wrong book." Dr. Eyerman informed Respondent that he "need[ed] to pay for those tickets now." Respondent took out from his pocket $180.00 (the amount he had received for these three tickets) and gave the money to Ms. Nonamaker for deposit in the SGA's bank account. Ms. Nonamaker had Respondent re-write the receipts for these three tickets in the correct receipt book. Although Respondent sold other tickets (numbered above 550) to the 2007 homecoming dance, the $180.00 that he gave to Ms. Nonamaker for these three tickets (only after he had been directed to so by Dr Eyerman) was the only ticket sales money that he turned in. He kept the rest. A plan was devised at this impromptu November 9, 2007, meeting Dr. Eyerman had convened in Ms. Nonamaker's office to find out who had taken the tickets that Respondent had reported (at the meeting) as stolen. Respondent and Mr. O'Toole were "directed by Dr. Eyerman to check in individuals at the dance." Anyone checking in with a ticket numbered 551 or above was to be questioned by Mr. O'Toole and asked, among other things, from whom he or she had purchased the ticket. Mr. O'Toole was to record the information provided by the ticket holder on a pre- printed form that he would prepare for that purpose. Respondent was present when this plan was formulated. He knew that, pursuant to the plan, it would be his responsibility, when checking in students at the dance, to direct those with tickets numbered 551 or above to Mr. O'Toole. After thinking about the matter overnight (and evidently realizing that the truth concerning the tickets he had sold would be discovered when the purchasers of those tickets were questioned by Mr. O'Toole), the following morning (Saturday, November 10, 2007, the day of the dance), at 8:00 a.m., Respondent telephoned Dr. Eyerman on her personal cell phone and acknowledged that he had not been truthful with her the day before when he had told her that the missing tickets had been stolen. He informed her that he had actually sold these tickets, which was the truth. He went on, however, to offer a fabricated excuse for his conduct. He falsely claimed that he had sold the tickets in order to replace the money "the students had stolen" from the "cash box" the first day of Ms. Nonamaker's absence (on November 1, 2007),11 nine days earlier.12 According to what Respondent told Dr. Eyerman, he had sold the tickets, rather than report the alleged theft of the money, because he "didn't want the get the kids in trouble."13 There was no credible evidence presented at hearing, however, that S. S., K. E.,14 or anyone else stole money from the "cash box."15 Dr. Eyerman decided that, notwithstanding that Respondent had changed his story about what had happened to the missing tickets, it would be best "to follow the [dance check in] procedures that [she] had already put into place" and have Mr. O'Toole question the students who had tickets numbered 551 or above. Mr. O'Toole and Respondent were both informed of Dr. Eyerman's decision. That evening at the dance, Mr. O'Toole and Respondent stationed themselves at a table in front of the Commodore Ballroom in the Bahia Mar Beach Resort and checked in students as they arrived. Twelve students with tickets numbered 551 or above were questioned by Mr. O'Toole in accordance with the plan that had been devised the previous day,16 and Mr. O'Toole filled out a form for each student that he questioned. T. M. R. was one of these students. She told Mr. O'Toole that she had purchased her ticket (numbered 610) for "cash" from Respondent (which was inconsistent with the representation that Respondent had made the day before to Dr. Eyerman about the ticket's being "complimentary"). The total number of tickets held by the students questioned by Mr. O'Toole was less than half the number of tickets that had been determined to be missing from the "stack" found in Respondent's desk. G. G. was among the students with a ticket numbered 551 or above who attended the dance. Respondent checked her in, but did not direct her to Mr. O'Toole, contrary to the instructions he had been given. The "first day back to school after the dance," Tuesday, November 13, 2007,17 a meeting was held at which Dr. Eyerman, Mr. O'Toole, and Ms. Nonamaker reviewed the forms containing the information Mr. O'Toole had obtained from the students he questioned at the dance. When Ms. Nonamaker looked at the forms, she noticed that G. G. was not among the students from whom Mr. O'Toole had obtained information. Ms. Nonamaker knew that G. G. had two tickets numbered above 551,18 and brought the matter to the attention of Mr. O'Toole, who "called [G. G.] down to the office" and "spoke with her." In response to Mr. O'Toole's questions, G. G. told Mr. O'Toole that Respondent had "waived [her] in" to the dance. Mr. O'Toole proceeded to get additional information from G. G. so that he could fill out a form for her like he did for the students he interviewed the evening of the dance. Among the things that G. G. related to Mr. O'Toole and that Mr. O'Toole wrote down on the form was that G. G. had purchased her tickets (numbered 606 and 607) "for $55 each" from Respondent "during class" the "1st week of sales" (which was the week of October 15, 2007). This contradicted the story Respondent had told Dr. Eyerman on the morning of November 10, 2007, that he had sold tickets only to recoup the money that had been stolen from the "cash box" on November 1, 2007 (which was a different story than the one he had told Dr. Eyerman at the November 9, 2007, meeting in Ms. Nonamaker's office). Upon learning of the information Mr. O'Toole had obtained from the students, particularly from G. G., it became "clear" to Dr. Eyerman that Respondent, once again, had not been "truthful with [her]." Consequently, Dr. Eyerman immediately requested in writing that the School Board's Special Investigations Unit (SIU) investigate the matter. Robert Spence was the SIU investigator assigned the case. On February 21, 2008, after completing his investigation, Mr. Spence issued his Investigative Report. The Professional Standards Committee (made up of 14 members appointed by the Superintendent) reviewed Mr. Spence's report and determined that there was probable cause to take disciplinary action against Respondent. The committee recommended that Respondent be terminated. The Superintendent concurred that Respondent's employment should be terminated, and he subsequently issued the Administrative Complaint that is the subject of this disciplinary proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order terminating Respondent's employment as a professional service contract teacher with the School Board for the reasons set forth above. DONE AND ENTERED this 5th day of May, 2009, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 5th day of May, 2009.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: The outdoor advertising sign which is the subject of this proceeding is located on the west side of Northwest 27th Avenue (SR #9), approximately 116 feet south of Northwest 26th Street in Miami, Florida. The sign is visible to traffic on SR #9. State Road 9 is a highway on the state highway system. The outdoor advertising sign which is the subject of this proceeding is owned by Casa Hidalgo Pawn Shop, Inc., which is located at 2424 Northwest 27th Avenue in Miami, Florida. Mr. Anthony Hidalgo owns and operates Casa Hidalgo Pawn Shop. Mr. William Kenney, District 6 outdoor advertising administrator for the Department of Transportation, routinely patrols the highways and roads of Miami to make sure that unauthorized signs are not located within the highway right-of- way. Approximately one week prior to March 3, 1986, Mr. Kenney was on a routine patrol and discovered a sign on the west side of Northwest 27th Avenue (SR #9) approximately 116 feet south of Northwest 26th Street. In that location on 27th Avenue, the State's right-of-way extends from the back side of the sidewalk on one side of the street to the back side of the sidewalk on the opposite side of the street. The sign was located on the highway right-of-way reserved to the state. The sign read as follows: "2424 NORTHWEST 27TH AVENUE - PAWN SHOP INSTANT CASH - CASA DE EMPENO." The sign was displayed on the road right-of-way directly in front of Casa Hidalgo Pawn Shop. Mr. Kenney went into the Casa Hidalgo Pawn Shop and spoke with Anthony Hidalgo. Mr. Kenney told Mr. Hidalgo that the sign was on the highway right-of-way and had to be removed. Kenney left one of his cards with Hidalgo and told Hidalgo to call him if he had any questions. On March 3, 1986, Kenney returned to Northwest 27th Avenue and found that the sign was in the same location, but displayed on the rear bed of a pick-up truck which was parked in the right-of-way. At that point, Mr. Kenney placed a Notice of Violation sticker on the sign.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that a Final Order be issued by the Department of Transportation requiring that the sign in the instant case be permanently removed from the right-of-way and assessing a fine of $75 against Casa Hidalgo Pawn Shop, Inc. DONE and ORDERED this 6th day of October, 1986 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32304 904/488-9675 FILED with the Clerk of the Division of Administrative Hearings this 6th day of October, 1986. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Bldg. Tallahassee, Florida 32301-8064 Anthony Hidalgo Casa Hidalgo, Inc. 2424 N.W. 27th Avenue Miami, Florida 33142 A. J. Spalla, Esquire General Counsel Department of Transportation Haydon Burns Bldg. Tallahassee, Florida 32301 Mr. Thomas E. Drawdy Secretary Department of Transportation Haydon Burns Bldg. Tallahassee, Florida 32301
The Issue Whether Petitioner, the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, is authorized to charge and collect interest from Respondent, Florida Gaming Centers, Inc., on the unpaid value of the outsbook for the 1995-1996 meet from August 29, 1997, the date payment of the value of the outsbook was due, to September 8, 1998, the date payment was received by Petitioner.
Findings Of Fact At all times relevant hereto, the Respondent held a permit to conduct jai alai pari-mutuel wagering, under License No. 2909-D Amended, issued by the Department. Between July 1, 1995, and June 30, 1996, inclusive, Respondent held jai alai games for the purpose of conducting pari-mutuel wagering on those games. Respondent's meet for the relevant time period ended on June 30, 1996. One year and sixty days after the end of the State of Florida's (State) fiscal year of June 30, 1996, any "out" tickets that remained uncashed escheated to the State pursuant to Section 550.1645(2), Florida Statutes. Once these tickets or the value thereof escheated to the State, Respondent was required to pay the value of such tickets, as reflected on its outsbook, to the Department no later than August 29, 1997. Pursuant to the outsbook prepared by Respondent, the value of the outs for the 1995-1996 meet was $108,221.20. Nonetheless, Respondent failed to submit to the Department the value of the balance of the outsbook within the prescribed time frame and instead held these funds. On June 2, 1998, the Department served an Administrative Complaint on Respondent, alleging that Respondent had failed to timely submit the value of the outsbook to Petitioner. By letter dated September 4, 1998, Respondent submitted to the Department a check for $109,128.60 as payment for the unpaid value of Respondent's outsbook for the 1995-1996 meet. The Department received Respondent's payment on September 8, 1998. Of the total amount Respondent paid over to the Department, $108,221.20 was credited against the unpaid value of the outsbook for the 1995-1996 meet, resulting in full payment of the outstanding outsbook value. The remaining $907.40 paid by Respondent to Petitioner was an overpayment. Petitioner alleges that Respondent is responsible for interest accrued on the unpaid value of the outsbook for the period of time that amount remained unpaid. According to the Department, the interest owed by Respondent as a result of its failure to timely remit the value of the outsbook, "shall be determined at a rate per annum . . . equal to the State's average investment rate for the preceding month to the month for which interest is being calculated." The average interest rate earned on the investment of State funds as determined by the State Treasurer and/or Comptroller" for the time period of August 1997 through August 1998, was 6.73 percent. The Department determined that the interest "shall accrue on the unpaid aggregate principal amount due the State for the month(s) from the respective due date." Based on its calculations and after deducting Respondent's overpayment of $907.40, the Department asserts that Respondent owes the Department approximately $6,573.85 in accrued interest. Respondent disputes that the Department has authority to collect interest on the unpaid amount of the outsbook and alleges the powers of the Department under Section 550.0251, Florida Statutes, do not include such authority.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that (1) an administrative fine of $1,000.00 be imposed against the Respondent for the violation Section 550.1645, Florida Statutes; and, (2) Respondent shall receive a credit of $907.40 toward payment of the administrative fine. RECOMMENDED this 28th day of January, 1999, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 28th day of January, 1999. COPIES FURNISHED: Deborah R. Miller, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William P. Cagney, III, Esquire 3400 Financial Center 200 South Biscayne Boulevard Miami, Florida 33131 Eric H. Miller, Esquire Chief Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William Woodyard Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this case concerns the application of Section 24.115(4), Florida Statutes, to a claim for payment of a $5,000.00 lottery prize where the winning lottery ticket was purchased by two individuals, one of whom has a substantial court-ordered child support arrearage, one of whom does not, and the prize claim form is submitted by the individual who owes child support. The Petitioners contend that only half of the prize should be subject to the outstanding child support debt. The Respondents contend that the entire prize should be subject to the outstanding child support debt. Shortly after the filing of the request for hearing in this case, the Office of the Comptroller filed a Motion To Join Indispensable Parties, by means of which it sought to join the Department of the Lottery and the Department of Health and Rehabilitative Services as parties to this case. Both of the last mentioned agencies agreed to being joined as parties and neither Petitioner objected to the joinder. Accordingly, the Department of the Lottery and the Department of Health and Rehabilitative Services were joined as parties respondent. At the hearing both Petitioners testified and also offered exhibits. The Respondents presented the testimony of several witnesses and also offered several exhibits. At the conclusion of the hearing, the parties were allowed ten days within which to submit proposed recommended orders. All parties filed post-hearing submissions containing proposed findings of fact. All proposed findings of fact are specifically addressed in the appendix to this recommended order.
Findings Of Fact Based on the testimony of the witnesses and the exhibits received in evidence at the hearing, I make the following findings of fact. Shortly after the Florida Department of the Lottery began selling lottery tickets, the two Petitioners, Lawrence R. Lindbom and Donald Johnston, began the regular practice of buying lottery tickets together. They agreed that they would make equal contributions to the cost of the lottery tickets and that they would share equally in the proceeds of any lottery prizes resulting from their co-purchased lottery tickets. On January 26, 1988, consistent with the foregoing agreement, Petitioner Lindbom purchased four instant game lottery tickets. Petitioner Johnston had contributed funds to pay half of the cost of the four tickets. Lindbom retained two of the tickets and gave the other two tickets to Johnston. At Johnston's place of employment, Lindbom scratched the two lottery tickets he had retained. One of the two was a $5,000.00 winning ticket. At the suggestion of some third party, Lindbom wrote his name on the winning ticket. He then showed the ticket to Johnston, and the other people present congratulated the two of them on their good fortune. The two Petitioners agreed that Lindbom would submit the ticket for payment in both of their names. On January 27, 1988, Lindbom traveled to the Jacksonville District Office of the Department of the Lottery, where he inquired about filling out a claim form in two names. He also inquired as to whether any money would be deducted from the prize. Upon being advised that only one name could be placed on the claim form and that no money would be deducted from the prize, Petitioner Lindbom called Petitioner Johnston to advise him of what he had been told at the Jacksonville District Office. Johnston told Lindbom to go ahead and file the claim in Lindbom's name and they would split the prize when it was received. Thereupon, Petitioner Lindbom filled out a Florida Lottery Winner Claim Form. The information he placed on the claim form included information about the lottery ticket and Lindbom's name, address, telephone number, and social security number. At the bottom of the claim form, Lindbom signed a printed statement reading as follows, in pertinent part. "Under penalty of law, I swear that to the best of my knowledge and belief, the name, address, and social security number correctly identify me as the recipient of this payment." The claim form and winning ticket were submitted to the Tallahassee office of the Department of the Lottery for validation and payment in accordance with that Department's procedures. The Department of the Lottery provided the Department of Health and Rehabilitative Services a list of $5,000.00 winners which contained the name of Lawrence Lindbom. DHRS determined from its records that there was an arrearage in child support payments by Lawrence Lindbom in the amount of $12,014.65. On February 1, 1988, DHRS certified the child support arrearage to the Department of the Lottery in accordance with Section 24.115(4), Florida Statutes (1987). On February 5, 1988, the Department of the Lottery forwarded the entire $5,000.00 claimed by Lindbom to the Office of the Comptroller of the State of Florida. On February 8, 1988, the Office of the Comptroller notified Lindbom by certified mail of its intention to apply the entire $5,000.00 prize toward Lindbom's unpaid court-ordered child support, with the result that no payment would be made to Lindbom. Following receipt of the letter from the Office of the Comptroller, Lindbom and Johnston jointly wrote a letter to the Comptroller protesting the proposed disposition of the prize and requesting a hearing. At all times material to this case, the Department of the Lottery had in effect Rule No. 53ER87-43, F.A.C., titled "Procedure for awarding prizes." That rule reads as follows, in pertinent part: (6) Until such time as a name is imprinted or placed upon the back portion of the lottery ticket in the designated area a lottery ticket shall be owned by the physical possessor of such ticket. When a name is placed on the rear of the ticket in the designated place, the person whose name appears in that area shall be the owner of the ticket and shall be entitled to any prize attributable thereto.
Recommendation For all of the foregoing reasons, it is recommended that the Office of the Comptroller issue a final order in this case providing for payment to the Department of Health and Rehabilitative Services of the entire $5,000.00 prize originally claimed by Petitioner Lindbom. DONE AND ENTERED this 9th day of June, 1988, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of June, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1176 The following are my specific rulings on all proposed findings of fact submitted by all parties. Findings proposed by the Petitioners The Petitioners' proposal consisted of a letter in which they assert three specific reasons that entitle them to the relief sought. The factual aspects of those three reasons are addressed below. The legal aspects have been addressed in the conclusions of law. Reason 1. Accepted as finding of fact. Reason 2. Rejected as subordinate and unnecessary details. Reason 3. Rejected as constituting argument rather than facts. Findings proposed by the Respondents The Respondents filed a joint proposed recommended order. The paragraph references which follow are to the paragraphs of the Findings of Fact section of the Respondents' proposed recommended order. Paragraphs 1 and 2) Accepted in substance, with the exception of the implication that the Petitioners were not co- purchasers of the lottery tickets. Paragraph 3: First sentence accepted. Second sentence rejected as inconsistent with the evidence. Paragraphs 4, 5, 6, and 7: Accepted. Paragraph 8: Omitted as unnecessary procedural details covered by introduction. Paragraph 9: Accepted. Paragraph 10: Accepted in substance. First unnumbered paragraph following Paragraph 10: Rejected as constituting subordinate and unnecessary details. Second unnumbered paragraph following Paragraph 10: Accepted. Third unnumbered paragraph following Paragraph 10: Rejected as irrelevant. Fourth unnumbered paragraph following Paragraph 10: Rejected as irrelevant or subordinate and unnecessary details. Fifth unnumbered paragraph following Paragraph 10: First sentence accepted. The reminder is rejected as argument rather than proposed findings of fact. COPIES FURNISHED: Mr. Lawrence R. Lindbom 3542 Tiara Way, West Jacksonville, Florida 32217 Mr. Donald Johnston 12888 Beaubien Road Jacksonville, Florida 32225 Jo Ann Levin, Esquire Senior Attorney Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32399 Chriss Walker, Esquire Department of Health and Rehabilitative Services 1317 Winewood Blvd. Tallahassee, Florida 32399-0700 Thomas A. Bell, Esquire Department of Lottery 250 Marriott Drive Tallahassee, Florida 32301 The Honorable Gerald Lewis Comptroller The Capitol Tallahassee, Florida 32399-0350
The Issue The issue for determination is whether Respondent discriminated against Petitioner on the basis of her disabilities, in violation of Sections 509.092 and 760.08, Florida Statutes (2004), by refusing to grant Petitioner access to the front of a designated parade viewing area.
Findings Of Fact Petitioner is a minor female and is an individual with disabilities. Petitioner has recognized impairments that substantially limit one or more major life activities. Petitioner is diagnosed with cerebral palsy and is legally blind. Petitioner has a visual acuity of 20/200 in the right eye, 20/160 in the left eye, and 20/160 in both eyes. Petitioner visited Disney's Magic Kingdom (Kingdom) in Orlando, Florida, with her family on February 21, 2005. The visit occurred at a time identified in the record as President's Day Weekend. That weekend is one of the most heavily attended times of the year at the Kingdom. Petitioner and her family attended the SpectroMagical Parade (parade) at 9:00 p.m. The parade travels a route through the streets of the Kingdom. The parade route is approximately one mile in length, thereby providing two miles of front viewing area on both sides of the streets that form the parade route. The entire parade route is accessible and has comparable lines of sight over the entire route. From sometime in the 1970s, Respondent has voluntarily maintained three designated parade viewing areas along the parade route for use by guests with disabilities. The viewing areas are intended to enhance the ability of disabled individuals to view and enjoy the parade. Respondent has also maintained a full-time department known as the Services for Customers with Disabilities (services department). The services department is devoted exclusively to assisting guests with disabilities and training designated employees in how to properly assist guests with disabilities. The services department has voluntarily implemented a number of other services to ensure that guests with disabilities will enjoy their experience at the Kingdom. Among other things, the services department has produced a Guidebook for Guests with Disabilities (Guidebook), developed accessible rides and handheld captioning devices, implemented a Guest Assistance Card program, and printed Guidemaps for its theme parks. Respondent makes Guidebooks available in all of its theme parks and provides Guidebooks to guests free of charge. The Guidebook summarizes service offerings to provide assistance to guests with disabilities. The Guidebook also sets forth policies and procedures pertaining to a number of accessibility related issues. For example, the Guidebook covers policies and procedures for service animals, describes various types of access for disabled individuals, identifies rides that have wheelchair space, provides directions to accessible entrances, describes services for the hearing impaired, and describes the policy and procedure concerning access and use of designated parade viewing areas. The Guidebook expressly provides that parade viewing areas designated for guests with disabilities are filled on a "first come, first served" basis. This policy is consistent with policies and procedures concerning viewing areas for all guests, irrespective of whether they are disabled. The Guidebook expressly provides that employees permit disabled guests to occupy designated parade viewing areas with non-disabled companions and family members and will not separate disabled guests from their companions or family members. Up to five people may accompany guests with disabilities into the viewing areas. The policy does not limit access to parade viewing areas to disabled individuals who use wheelchairs. Employees will not displace any non-disabled family member or companion in order to add a disabled guest to the viewing area (non-displacement policy). Respondent uniformly implements the non-displacement policy for rides, theaters, attractions, and shows. Due to limited space in the designated parade viewing areas, the Respondent advises guests to arrive well in advance of the parade time. Respondent also posts policies and procedures relating to designated parade viewing areas on Respondent's internet web site. The information is also available from designated employees. Respondent trains these employees in the proper etiquette for assisting guests with disabilities in accordance with Respondent's policies and procedures. Respondent also disseminates Guidemaps of its theme parks to assist guests with disabilities. Guidemaps, among other things, identify the location of the designated parade viewing areas for guests with disabilities and show the parade route. Respondent has also developed and implemented a Guest Assistance Card program. Guest Assistance Cards contain certain types of assistance requested by guests with disabilities. The type of assistance requested is placed on the face of the Guest Assistance Card thereby avoiding the need for guests to explain the same request at every attraction, show, or ride. The assistance requested varies from guest to guest depending on their disability. The services department provides a Guest Assistance Card to any guest with a disability who requests a card. Respondent does not independently verify the disability of any guest who requests a Guest Assistance Card. Respondent does not limit the amount of Guest Assistance Cards issued and may issue hundreds or thousands of cards in a day. One form of assistance is available seating in the "front row of ride vehicles or theaters, where applicable." This assistance permits a guest with a hearing or visual disability to sit in the front of a theater or ride to enhance his or her experience. When requested, this form of assistance is placed on the Guest Assistance Card. A Guest Assistance Card does not guarantee that space will be available in a guest viewing area, that the guest will have immediate access to the area, or that front row seating will be available at every event. The Guest Assistance Card permits front row seating when available and only at those activities or facilities listed on the card. This policy is clearly printed on each Guest Assistance Card, along with the non-displacement policy. Assistance in the form of front row seating is limited to ride vehicles and theaters. Ride vehicles are moving conveyances that are boarded and ridden in, such as roller coasters. Theaters are facilities with fixed seating where a show is presented. Fixed seating is a designated area where seats or chairs are affixed to the ground and are therefore stationary and immobile. Parade viewing areas for individuals with disabilities are neither ride vehicles nor theaters. Parade viewing areas do not provide fixed seating but are designated areas on sidewalks along the parade route. Assistance in the form of front row seating does not apply to parade viewing areas along streets or sidewalks. Even if the viewing areas were theaters or rides, the non-displacement policy applies to rides and theaters. Respondent issued a Guest Assistance Card to Petitioner in an area identified in the record as EPCOT. Petitioner requested assistance in the form of front row seating, and the card authorized front row assistance. Petitioner arrived at a designated viewing area in an area of the Kingdom identified as Liberty Square approximately 20 minutes prior to the start of the parade. Petitioner requested access to the front of the viewing area. However, the front of the viewing space was already filled by guests in wheelchairs. The appropriate employee directed Petitioner and her family to a second designated parade viewing area located at an area of the Kingdom identified in the record as the hub. By the time Petitioner arrived at the second parade viewing area, the front of the viewing area was full with guests in wheelchairs and their companions and family members. Respondent did not displace other guests with disabilities and did not displace their family members or their companions so that Petitioner and her family would have access to the front of the viewing area. Although there was room in the second viewing area for Petitioner and her sister, there was not room for Petitioner's other family members. There was no room for Petitioner and her sister in the front of the parade viewing area.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding that Respondent did not discriminate against Petitioner on the basis of a disability or handicap. DONE AND ENTERED this 2nd day of May, 2006, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 2nd day of May, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Carol Pacula Walt Disney World Company 1375 Buena Vista Drive Orlando, Florida 32830 Kimberly M. Chicvak c/o Michael Chicvak 23 Twin Oaks Drive Kings Park, New York 11754 Brian C. Blair, Esquire Greenberg Traurig, P.A. 450 South Orange Avenue, Suite 650 Orlando, Florida 32801 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all relevant times, respondent, Passport Internationale, Inc. (Passport or respondent), was a seller of travel registered with the Department of Agriculture and Consumer Services (Department). As such, it was required to post a performance bond with the Department conditioned on the performance of contracted services. In this case, petitioner, Cassandra Cook, has filed a claim against the bond for $349.50 alleging that Passport failed to perform on certain contracted services. On April 20, 1989, petitioner received a solicitation telephone call from Global Travel inviting her to purchase a travel certificate entitling her and a companion to a five-day, four-night cruise to the Bahamas. Global Travel was a Tennessee telemarketeer selling travel certificates on behalf of Passport. Petitioner agreed to purchase the certificate and authorized a $349.50 charge on her credit card payable to Global Travel. Thereafter, petitioner received her travel certificate, brochure and video, all carrying the name, address and logo of Passport. In order to use the travel certificate, it was necessary for petitioner to fill out the reservation form with requested dates and return the form, certificate, and a deposit to Passport. Before doing so, petitioner repeatedly attempted to telephone Passport's offices in Daytona Beach to obtain additional information and to inquire about the availability of certain travel dates but was never able to speak to anyone because of busy lines. She then requested a refund of her money and simultaneously filed a complaint with the Department in January 1990. In responding to the complaint in February 1990, Passport denied liability on the ground petitioner was obligated to "deal directly with the company that has charged her credit card as that is who has her money." By then, however, Global Travel was out of business. To date, petitioner has never received a refund of her money.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner against the bond of respondent be granted, and she be paid $349.50 from the bond. DONE AND ENTERED this 12th day of December, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER 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 12th day of December, 1994. COPIES FURNISHED: Cassandra Cook 3818 Firdrona Drive, N. W. Gig Harbor, Washington 98332 Julie Johnson McCollum 2441 Bellevue Avenue Daytona Beach, Florida 32114 Robert G. Worley, Esquire 515 Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, Esquire The Capitol, PL-10 Tallahassee, Florida 32399-0810
Findings Of Fact Based upon the oral and documentary evidence presented at the final hearing and the entire record in this proceeding, the following findings of fact are made: Petitioner Conklin Shows, Inc., is a Florida corporation with its principal place of business in West Palm Beach, Florida. Conklin is engaged in the business of providing midway attractions for large fairs. The company services between five and eight fairs per year and provides rides as well as food and game concessions. In most instances, Conklin provides a turn-key operation whereby it provides all rides and concessions, sells tickets, collects all fees and charges, and pays the particular fair authority the amount set forth in the underlying agreement between the parties. Conklin owns and operates some of the rides that it provides and also owns a few food concessions. It also contracts with independent ride owners as well as food and game concession owners to provide the services necessary for a particular fair. Southeast Florida and Dade County Youth Fair Association, Inc. (the "Association") is a corporation which conducts an annual youth fair, in Dade County, Florida (the "Fair") in accordance with Chapter 616, Florida Statutes. Conklin has provided midway attractions, including rides, games and food concessions, for the Fair since the late 1970s. Initially, Conklin provided a complete turn-key operation for the Fair. In 1980 or 1981, the Fair advised Conklin that it wanted to modify the arrangement so that the Fair collected and dispersed all monies and retained the right to book attractions independently. Consequently, the parties modified their agreement so that the Association sold all the tickets used by the Fair-goers for admission and for rides. In other words, cash was not accepted from the public for admission and/or rides. The evidence indicates that cash was accepted at game and food booths. The Association employed all ticket sellers, sold admissions and tickets and paid the appropriate taxes on the sales. As discussed below, at the end of each day, the Association distributed the proceeds of the ticket sales and settled up with the food and game concessionaires. Conklin was paid an agreed upon percentage of the proceeds of the ticket sales after taxes. As part of the settlement, Conklin reimbursed the Association for certain expenses. In approximately March of 1990, DOR began an audit of Conklin at its offices in West Palm Beach. The audit was conducted primarily by Ms. Van T. Ho, a tax auditor with DOR. The audit covered the period between June 1, 1985 through February 28, 1990. Ms. Ho concluded that certain contractual arrangements between Conklin and its subcontractors who provided rides, games and food concessions for the Fair should be construed as the sublease or sublicense of the rental of real property. Since Conklin had not remitted sales tax to the State of Florida for these subleases or sublicenses, she concluded that sales tax should be assessed against Conklin. In addition, Ms. Ho reviewed Conklin's records regarding purchases of parts and materials and concluded that appropriate sales tax had not been paid on certain purchases. The audit results with the additional assessed taxes, penalties and interest were incorporated in a Notice of Intent to Make Sales and Use Tax Audit Changes dated October 24, 1990 (the "Notice of Intent.") In the Notice of Intent, DOR advised Conklin that it had been found liable on various transactions subject to tax under Chapter 212, Florida Statutes, during the period June 1, 1985 through February 28, 1990. The Notice of Intent sought a total of $655,982.04 for taxes, penalties and interest through October 24, 1990 with additional interest at the rate of $142.69 per day. A Notice of Proposed Assessment was issued by DOR on April 25, 1991. Conklin protested the proposed assessment in a letter dated June 19, 1991. Ultimately, DOR issued a Notice of Decision dated May 27, 1992 upholding the audit findings. Conklin timely initiated this administrative challenge to DOR's Notice of Decision. At the commencement of the hearing in this matter, DOR announced that it was no longer contending that Conklin was subletting real property. Instead, DOR asserted that Conklin's contractual arrangements for ride subcontracts and for food and game concessions should be construed as licenses to use real property. Since the sales tax on a license to use real property did not become effective until July 1, 1986, DOR conceded that the assessment against Conklin should be reduced to delete any sales taxes related to the fairs conducted in February of 1985 and 1986. As set forth in the Preliminary Statement, DOR set forth its recalculated assessment in a late-filed exhibit which was submitted on March 26, 1993. The parties stipulated that the recalculation submitted on March 26, 1993, should be accepted as an amendment to Petitioner's Exhibit 1. According to that amendment, Petitioner is seeking a total of $468,520.80 for taxes, penalties and interest allegedly due through January 17, 1991 with a per diem interest rate of $105.58. For purposes of this proceeding, the proposed assessment can be broken down into four categories: (1) sales tax allegedly due from Petitioner on rental or license income from subcontractors who provided rides at the Fair; (2) sales tax allegedly due as the result of the sublease or sublicense of real property by Conklin to food concessionaires; (3) sales tax allegedly due as the result of the sublease or sublicense of real property by Conklin to game concessionaires; and (4) purchase tax allegedly due on parts and materials bought by Conklin which it claims were utilized in manufacturing or repairing rides for export. Rides During the years 1987 through 1990, Conklin contracted to provide rides to the Association for the Fair. Conklin was required to provide a specific number of rides in certain categories together with all personnel required to operate the rides. Conklin was also responsible for all expenses attributable to the operation and maintenance of the equipment. During all of the years in question, the Association sold the tickets for all rides, collected the proceeds and paid the applicable sales tax and remitted the agreed percentage of the after-tax receipts to Conklin. Conklin was paid a sliding scale percentage of the net revenues from the rides. Conklin typically contracted to provide more rides than it owned. In order to satisfy its contractual obligation, Conklin entered into agreements with independent ride owners. These subcontractors would provide all transportation, assembly and disassembly necessary for the ride, together with all personnel required for operation. Conklin did not take possession or exercise any direction or control over the physical operations of the ride. The subcontractor was responsible for all expenses related to the operation and maintenance of the ride and was required to reimburse Conklin for a proportionate part of the common expenses. Conklin agreed to pay the ride owner a percentage of the receipts attributable to that ride after sales tax. Each ride owner collected tickets from the Fair attendees. The subcontractors would turn their tickets over to Conklin. Conklin turned in the tickets for all rides provided by it and its subcontractors to the Association. After Conklin was paid its percentage by the Association, Conklin would pay the subcontractors a percentage attributable to their particular ride in accordance with the agreement between Conklin and that subcontractor. Conklin retained a portion of the amount received from the Association for all of the subcontracted rides. The subcontractors did not make any payments to Conklin nor did Conklin make any payments to the Association. The Association set the times of operation and other general policies for the Fair, but exercised no direction or control over the physical operation of any of the rides. In each case, the owner of the equipment furnished the operator and all operating supplies and made the particular ride available at the time dictated by the Association. DOR contends that the difference between the amount received by Conklin from the Association for rides provided by subcontractors and the amount paid by Conklin to the subcontractors was taxable because it arose from a sublicense of real property. 2/ Conklin, on the other hand, argues that its contractual arrangement with the subcontractors should be viewed as a nontaxable service transaction since it paid the subcontractors who in turn provided the rides together with operating personnel and expenses. As discussed in the Conclusions of Law below, Conklin's interpretation is consistent with the language of the subcontracts and more accurately reflects the relationship created by the parties. The mere fact that a ride was operated on real estate owned by another party should not be conclusive of whether the arrangement should be viewed as a license of real property as opposed to a rental of equipment. Food Concessions Conklin executed separate agreements with the Association to provide certain food and game concessions for the Fair during the years 1987 through 1990. The contracts between the Association and Conklin for food and game concessions were entitled "License Agreement for Exhibitors and Concessionaires." Those agreements specifically provided: It is understood and agreed the below described space is not leased to the Licensee [Conklin], rather he is a Licensee and not a lessee thereof. Under the food concession agreements, Conklin was obligated to provide specific food concessions, including all labor and operating expenses. The contract between the Association and Conklin designated specific areas at the Fair where the concessions were to be set up. The Association was entitled to a percentage of the gross receipts of the sales by the concessions. Conklin did not own any of the equipment utilized in connection with the food concessions. It entered into agreements with concessionaires to provide the personnel, equipment, goods and materials utilized. The concessionaire was responsible for all of the expenses involved with the concession. The concessionaire collected all of the money and settled daily with the Association by paying the Association the percentage due under its agreement with Conklin (which was normally twenty-five percent) together with the tax on that amount and the sales tax on all sales. The Association remitted the taxes on the rental (license) amount and the sales. Conklin was not privy to the settlement between the food concessionaires and the Fair. It was given a copy of the settlement sheet. The concessionaire paid Conklin a percentage of the gross based upon its agreement with Conklin. That percentage was normally between seven and ten percent. In the Notice of Assessment, DOR lumped food and game concessions together and assessed tax based upon its determination of the amount received by Conklin. The evidence presented at the hearing in this case established that the Notice of Assessment mistakenly included gross revenues rather than the net received by Conklin from game concessions. Petitioner's Exhibit 13 sets forth the correct amounts received by Conklin from food and game concessions during the years in question. During the years 1987, 1989 and 1990, the amounts received by Conklin from food concessions at the Fair were $11,919.73, $11,521.21 and $13,034.49 respectively. The Notice of Assessment indicates that there was no taxable income from food and game concessions in 1988. No explanation was given for this anomaly. Although there was no assessment for food and game concessions for 1988 in DOR's Notice of Assessment, Petitioner's Exhibit 13 indicates that Conklin received $16,975.22 from food and game concessions that year of which $11,938.44 was apparently attributable to food concessions. DOR contends the amounts received by Conklin from the food concessionaires were taxable because the arrangement constituted a sublicense of real property. Conklin contends that the money received from food concessions is exempt from taxation for the years since 1988 pursuant to Section 212.031(1)(a)(10), Florida Statutes. In its Proposed Recommended Order, Conklin conceded that this exemption did not come into effect until 1988. Consequently, Conklin admitted that it owed tax on the proceeds it received from the food concessions in 1987 ($11,919.73.) The evidence presented in this case was insufficient to conclude that Conklin was entitled to the exemption for the years subsequent to 1987. The exemption relied upon by Conklin is limited to a publicly owned arena, sports stadium, convention hall, exhibition hall, auditorium or recreational facility. While the parties agree that the Fairs in question were conducted pursuant to Chapter 616, Florida Statutes, no evidence was presented to establish that the Fair was conducted in one of the specified exempt facilities. Game Concessions With respect to the game concessions, Conklin agreed to provide a certain number of game booths and to pay a set fee to the Association for each game along with a five percent rental realty tax on that fixed amount. 3/ Conklin did not own or operate any game concessions itself. It contracted with the owner/operators of the various games. The owner/operator would provide all of the equipment and personnel. The game owner was responsible for collecting the money, paying all expenses of operation, paying the applicable sales tax to the Association and also paying the Association the contractual percentage and rental taxes set forth in the agreement between Conklin and the Association. The net profits from the game were to be split equally between Conklin and the owner of the game. In the event of a loss, Conklin was responsible for contributing one-half of the net amount. As discussed in the Conclusions of Law below, the amounts received by Conklin from the game concessions should be treated as the proceeds on joint venture partnerships between Conklin and the various concessionaires and, therefore, should not be taxable. If this conclusion is rejected and the amounts received by Conklin are viewed as taxable license or rental payments, the tax should be assessed on the share Conklin actually received. As set forth in Findings of Fact 17 above, the evidence established that DOR's calculation in the Notice of Assessment of the tax allegedly owed by Conklin for food and game concessions was incorrectly based upon the gross receipts for the game concessions rather than the net profits that Conklin actually received. During the years 1987, 1989 and 1990, Conklin's share of the profits from the games operated under its name amounted to $5,792.65, $1,554.64 and $1,179 respectively. The Notice of Assessment indicated there were no taxable receipts from food and game concessions in 1988. Petitioner's Exhibit 13 indicates that Conklin received $16,975.22 from food and game concessions that year, of which $5,036.78 was apparently attributable to game concessions. Exports Conklin is also engaged in the business of repairing and manufacturing games and rides. In the course of the manufacture or repair of these games and rides, Conklin purchases parts and supplies. Conklin's accountant testified that it paid the appropriate tax on all of its purchases except those items which were segregated out as being integral parts of products that were exported to Canada. DOR's auditor claims that she requested and was not provided with any documentation to support the exemption claim. While Petitioner's accountant claims that the company has documentation that the items in question were used in the manufacture and repair of items that were exported and this documentation was made available to DOR's auditor, no such documents were presented at the hearing in this matter to confirm that the final products were in fact exported. Consequently, the evidence was insufficient to establish that Conklin had complied with the applicable rule requirements and was entitled to the exemption it claimed. Penalties In 1984 and 1985, Conklin provided rides and concessions to the Martin County Fair under its usual turn-key system where it sold all the tickets. During those years, DOR sent an enforcement officer to the fair to ensure that all taxes were paid. The DOR enforcement officer reviewed all of Conklin's books and collected the sales tax from all the concessionaires. Although Conklin inquired as to whether it was paying all appropriate taxes, the DOR enforcement officer never indicated to Conklin that it was obligated to pay rental realty taxes on its subcontractual arrangements with ride owners and/or food and game concessionaires. Thus, there was some justification for Conklin's belief that it was not obligated to pay taxes on the ride subcontracts and the food and game concessions. Conklin's understanding of the law should have been reexamined with the adoption of the statutory clarification for the imposition of sales tax on a license to use real property. See section 66 of Chapter 86- 152 of the Laws of Florida effective July 1986. However, none of the statutory or rule provisions relied upon by DOR clearly address contractual arrangements such as those Conklin had with its ride subcontractors where the purported sublicensee made no payments to the alleged sublicensor. In view of these factors, it would be inappropriate to impose penalties on Conklin for "taxable income" it allegedly received from the ride subcontracts. Similarly, even if Conklin's contention that its arrangements with game concessionaires should be viewed as a joint venture is rejected, penalties should not be imposed since the statutory and rule provisions do not clearly address this situation. With respect to the food concessions, Conklin has conceded that it owes tax on the amount received from food concessionaires in 1987. Conklin has offered no justification for the failure to pay the tax on this amount other than to claim that it did not believe any tax was due because of comments (or lack thereof) by DOR representatives during the 1984-85 Martin County Fair. However, the basis for imposing a tax on a sublicense of real estate was significantly clarified in 1986. Thus, Conklin's purported reliance on the comments made in 1984 and 1985 should not be given much weight. Penalties on the assessment on food concession receipts from 1987 are appropriate. For the years subsequent to 1988, Conklin relies on the exemption set forth in Section 212.031(1)(a)(10), Florida Statutes. While it is possible that the exemption applies, the evidence presented at the hearing in this matter was insufficient to establish that this exemption was applicable. Consequently, penalties on the food concession receipts subsequent to 1988 are not appropriate. Following the issuance of the Notice of Proposed Assessment, Conklin admitted that it owed taxes on certain purchases that were made from out of state companies and shipped into the state. Conklin paid the tax on those items prior to the hearing in this matter. It is not clear what, if any, penalty was assessed with the late payment of the tax on these items. With respect to the remaining items, Conklin has steadfastly maintained its position that the items were utilized in connection with products that were exported. However, Conklin failed to convince DOR's auditor of the merits of its position and failed to provide sufficient evidence at the hearing in this matter to justify its claim. In view of all the circumstances, there is no basis for a waiver of penalties on this portion of the Notice of Assessment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a Final Order amending the Notice of Assessment to: (a) delete all taxes, penalties and interest assessed against Conklin for the ride subcontracts and game concessions; (b) affirming the assessment of tax against Conklin for the amount it received from food concessionaires during the years 1987 through 1990 (the amount of the assessment should be amended to reflect the net proceeds Conklin received rather than the gross revenues reflected in the original Notice of Assessment) and imposing penalties and interest on the amount of tax due; and (c) affirming the assessment of taxes, penalties and interest for the purchase of items that were allegedly used in the repair or manufacture of goods for export. DONE and ENTERED this 13th day of January 1994, at Tallahassee, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 1993.
Findings Of Fact At all times pertinent to the issues considered at this hearing, Respondent, Dale's Package Store and Lounge, Inc., was issued 6-COP alcoholic beverage license No. 20-0012, which permits the on-premises consumption or sealed package sales of beer, wine, and liquor and the carry out sales of open malt or vinegar spirits, but not mixed drinks. On May 13, 1983, Investigator Robert W. Cunningham visited the licensed premises based on an anonymous phone call he had received at home to the effect that a lottery was being conducted there. When he entered the lounge, he saw a poster sitting on the first table inside the door. This poster contained a list of items of merchandise or services to be given as prizes and a notation of the prices for tickets. While he was looking at this display, he was approached by a patron, Edward Hanson, who asked if Cunningham wanted a ticket. When Cunningham said he did, Hanson went to the bar, where he spoke with Cindy, the bartender, and came back with a large roll of tickets, telling Cunningham to take as many as he wished. Cunningham took three and paid the $2 which the poster indicated was the price for the tickets. Half of each ticket was put in the box for the drawing. After the ticket transaction, Cunningham went up to Cindy and asked her who was in charge. When told it was Mickey (Naomi Hunt), he went into the back room, where he found her and told her it was an illegal lottery that had to stop. He also talked at that time with Susan Roberts, a representative of the local Multiple Sclerosis Foundation chapter for whom the lottery was being conducted. Ms. Roberts advised Cunningham she had discussed the matter with one of the local assistant state attorneys, who said it was all right, but she could not recall his name. Cunningham had advised Naomi Hunt to call Mr. Eggers initially, and Eggers said he would come down. Cunningham also called his district supervisor, Capt. Caplano, because, due to the size of the crowd in the bar at the time, between 200 and 250 people, he felt he needed a backup. Caplano agreed to come down to the lounge, as well. Caplano also advised Cunningham that the procedure was an unlawful lottery and the tickets and money should be seized. When Eggers got there, he told Cunningham that the entire activity was for the benefit of the Multiple Sclerosis Foundation and that his employees had been out soliciting the donation of the prizes for months. Respondent admits the conduct of the operation as the Roadhouse Inn's participation in the fund-raising campaign of the North Florida Chapter of the Multiple Sclerosis Foundation. Respondent has been approached by that agency with a kit of fund-raising activities and ideas. Before participating in the lottery, Mr. Eggers asked and was advised by both Ms. Hunt, his employee, and Ms. Roberts of the Foundation that they had inquired into and were advised of the project's legality. If the law was violated, it was done without criminal intent and without malice. A well-intentioned effort to do some good was in error. It should be noted, however, that in January 1977, this licensee was cited by Petitioner's Agent R. A. Boyd for operating a bowling machine on the premises. If the customer bowled a high score on the machine, he or she would win something, such as a drink or a snack. This was considered gambling by Petitioner, however; and upon issuance of the citation, Respondent immediately stopped the activity. No charge was laid against the licensee for that activity. Several days after Cunningham closed down the lottery, on May 19, 1983, Beverage Officer Reeves went to the licensed establishment based on a complaint received that alcoholic beverages were being served by the drink at the curb. He went to the drive-in window of the Inn and ordered a scotch and water from Naomi. She brought him a drink in a plastic cup. From his experience, he recognized the substance as scotch and water. After getting the drink, he parked the car and went inside, where he talked with Naomi and Eggers. They indicated they did not know it was illegal to sell a drink this way. Eggers indicated at the hearing that he thought that since he could sell open beer drinks out the drive-in window, he could do the same with mixed drinks. He does not have any copy of the beverage laws, thought he was operating legally, and has been doing it without objection since 1977. Since Reeves' visit, the sale of distilled spirits by the drink through the window has ceased.
