Findings Of Fact Petitioner was born in 1936. While on active duty in the United States Navy in 1955, he suffered an injury which subsequently led to the amputation of his left foot. When discharged from the Navy, his disability was rated by the Veterans Administration (VA) at 40 percent. Subsequent problems with the stump of the left leg, arthritis, and a spinal fusion led to VA disability increases, which disability rating at time of hearing was 100 percent. Petitioner applied for work with Delta Air Lines, Respondent, in 1966 and was employed as a reservations agent in Chicago. At this time his VA disability rating was 70 percent. In 1967 Petitioner, at his own request, was transferred by Respondent to Tampa, Florida. At this time Petitioner was able to move around the bay in which he worked with and without his crutches. In September 1979 Petitioner was hospitalized for stump revision and remained in an off-duty status until June 1980 when he returned to his position with Delta. At this time Petitioner carried out his duties as a reservation agent in a wheelchair. Following his return to work in 1981 Petitioner's performance of duty was marginal. Petitioner takes prescribed medication for pain. On one occasion the medication adversely affected his ability to perform his duties satisfactorily and he was told by his supervisor not to take medication at work. The doctor changed this prescription from 1-100 mg. daily to 4-25 mg. daily and Petitioner continued his medication as prescribed without further problems. On October 28, 1981, Petitioner was examined by Dr. Frazier, one of the physicians used by Delta for its employees. The purpose of this examination was to evaluate Petitioner's physical condition for continued employment. Report of this examination is contained in Exhibit 5 wherein Dr. Frazier concluded that Petitioner "has several progressive disabilitating diseases, that combined with his psychological state make him unemployable for Delta Air Lines. I would recommend because of his depression, amputation, hypertension, osteo-arthritis and spinal fusion problems that he be retired on disability." Respondent does not have a retirement for physical disability status. In lieu thereof it has short-term disability benefits and long-term disability benefits. Long-term disability benefits are calculated as a percentage of the employee's basic monthly salary less social security benefits the employee receives. Petitioner was in a long-term benefit status while recovering from stump revision in 1979-1980. Following Delta's receipt of the report of Dr. Frazier, Petitioner was sent home in a short-term disability status while the report was evaluated. Respondent subsequently advised Petitioner that he was qualified for sedentary work and directed him to return to his position with Delta Air Lines. Petitioner returned to work around June 1982 as a reservations agent. Fifteen or twenty reservation agents work in a "bay" where each has access to a telephone and computer terminal. These agents handle all reservation requests via telephone with no visual contact with the customers. They work an eight-hour shift with two 10 minute breaks and one-half hour off for lunch. While operating from his wheelchair, Petitioner usually took a station near the entrance to the bay which provided easier access for the wheelchair than a station farther down into the bay. He made no complaints about access to his station to Delta supervisory personnel. Reservation agents' telephone communications are monitored by supervisors on an intermittent basis to ensure the agent is carrying out his duties in a satisfactory manner and is providing proper information to the customers. In June 1972 Petitioner was placed on three months' probation. In September 1972 this probationary period was extended an additional three months. In July 1974 Petitioner was again placed on probation and given a "final chance" letter. In October 1977 he was given a letter for poor performance. Petitioner acknowledged that several times before 1982 he had been disciplined by Respondent but not fired. In December 1982 Charles Cortright, a retired architect, called the Tampa office of Delta Air Lines to get information on a flight to and from the West Coast interrupted with cruises while on the West Coast. Specifically, Cortright wanted to fly to Seattle, take a ferry trip to Alaska, perhaps two more sea cruises from West Coast ports, take a train from Seattle to San Francisco, and fly back to Tampa from San Francisco. He was referred to Petitioner, who quoted him a price of $278.00 on the air portion of this trip, but, since Petitioner did not think the cruises could be arranged by Delta, referred Cortright to a travel agency. Petitioner testified that he referred Cortright to three travel agencies located in the vicinity of Cortright's residence and did not specify the agency at which Petitioner's wife worked. Although Cortright testified that he was not referred to any one by name and did not know that Petitioner's wife worked at Tri-Cities Travel Agency, he went to Tri-Cities and his reservations were made by Malinda, who, in fact, was Petitioner's wife. It is likely that Cortright did not know that Malinda was Petitioner's wife, but it is believed that Cortright was told by Petitioner to ask for Malinda and he did so. When the airline tickets arrived at the travel agency, Cortright was advised by the agency the price of the air fare was $302.00. Cortright then, on December 14, 1982, called Delta and asked to speak to Petitioner to inquire about the difference in the fares quoted by Petitioner and the cost of the tickets at the travel agency, and to get the fare guaranteed that was quoted by Petitioner. At the time this call was received by another agent, Jennings King, King was being monitored by his supervisor, Carolyn Corvette. In this phone conversation Cortright said he had spoken to Petitioner two times before, that he went to the agency to which he had been directed by Petitioner, that he spoke to Malinda as directed by Petitioner, and that he was charged a higher fare than was quoted by Petitioner. Corvette had the call transferred to the customer service desk and authorized guarantee of the lower fare quoted. She promptly prepared a memo of the incident to Arthur Arden, Chief Reservation Supervisor (Exhibit 7). Arden called Cortright, who confirmed that Petitioner had directed him to Tri-Cities Travel Agency. Arden extracted from Delta's computer the reservation made for Cortright which disclosed the reservation was made by Malinda at Tri-Cities (Exhibit 8). Knowing that Malinda was Petitioner's wife, Arden, on December 15, told Petitioner that he was suspended from work and would be recommended for dismissal. On December 15, 1982, Arden signed a memo to Harry Dean, Delta's Regional Manager at Tampa, recommending that Petitioner be terminated (Exhibit 6). Dean concurred, sent the memo to Delta's Atlanta office, and Petitioner was fired. All reservation agent trainees are told that they should make every effort to arrange all of the transportation needs of the customers through Delta Air Lines, including tours requiring other modes of transport than air; and that they should never refer a customer to a specific travel agency. If a travel agency's services are needed by the customer, the customer should be referred to the yellow pages of the phone book to select a travel agency. This same information is contained in the Standard Practices Manual, which is available to all reservation agents. The reason for this rule is to eliminate, insofar as possible, conflicts of interest and to refrain from alienating some travel agents by appearing to favor other travel agents. This could create a serious problem for the air lines and is taken very seriously by air line company management. Petitioner's testimony that he did not refer Cortright to Tri-Cities Travel Agency and that he never referred a customer to a specific travel agency was rebutted by Betty Maseda, a fellow reservations agent who frequently sat alongside Petitioner at work and on several occasions overheard Petitioner giving specific instructions to customers on exactly how to get to Tri-Cities Travel Agency and to ask for Malinda. Ms. Maseda considers herself a good friend of Petitioner and did not volunteer this information to Respondent until after Petitioner had been fired.
The Issue The issue for consideration in this hearing is whether Petitioner was discriminated against by Respondent in employment through sexual harassment; because of her age, sex, marital status, and handicap; and in retaliation for complaints made by her against management.
Findings Of Fact 1. At the time in issue, the facility in question in this hearing was owned by HP Tampa, LC (HP Tampa) and was operated by Mr. James Rogers under a contract with his management company. After Mr. Rogers' contract was terminated, the facility was operated by Cornerstone Hospitality Group Cornerstone. Management 's duties included employee relations. As manager, Mr. Rogers had almost free rein to hire and fire and was responsible for employee policies. HP Tampa did not oversee these details. 2. Petitioner had been employed at the Respondent's property in Tampa for approximately 18 years when she was terminated on November 27, 1995. During the period of her employment, Petitioner was recognized at least once as employee of the year and was asked to take over management of the facility's bar, which she initially refused because she had several children to raise. Finally, after six years, she took the position and served as manager of the hotel bar, the Silver Dollar Saloon, for the last 12 of the 18 years she worked there. Petitioner contends she worked without any problems until Mr. Lloyd was hired in April 1995, and asserts she has never filed a discrimination complaint against any employer until this one. 3, Mr. Lloyd was hired as comptroller at the facility in April 1995. It was announced that his job was to get control of the audits of the operation, and he was to work with the Petitioner to implement controls to reduce costs in the lounge. Petitioner understood, however, that she was to continue to report directly to the Manager, Mr. Rogers, and that she was on a parallel level of authority to Mr. Lloyd. 4. Petitioner alleges that during June and July 1995, Mr. Lloyd began making sexually oriented comments to her. He mentioned her breasts -- jokingly, she believed because she was so slim at the time and had small breasts. Petitioner was not amused by Mr. Lloyd's attempts at humor and complained to him directly. 5. Petitioner also claims that Mr. Lloyd began to drink More and more while on the job. On one occasion, she contends, he came into the liquor room while she was there and grabbed her from the back. She resisted and, afterwards, complained to Mr. Rogers and his assistant both orally and in writing. She received no feedback. 6. According to Petitioner, sometime during either July or August 1995, Mr. Lloyd called her into his office to go over the bar's operating figures. After a period of business conversation, Mr. Lloyd reportedly stated it was a shame she was married. Petitioner demurred to that comment, and when she got up to leave, she claims Mr. Lloyd grabbed her and kissed her. When she slapped him in response, he replied that he always got what he wanted. After this incident, Petitioner wrote another memo to Mr. Rogers and asked to see him. He finally did see her quite a while later, she claims, but treated the incident lightly. She wanted him to speak to Mr. Lloyd with her because she was uneasy working with him, but this did not happen. 7. On another occasion, when she was supposed to go to Las Vegas with her husband, she gave up her trip to work, letting her husband go by himself. While her husband was gone, she contends, Mr. Lloyd asked her to meet him at an off-premises location, a request which she refused. At this point, she also told him what she thought of him. She also claims he had touched her on two. occasions, which resulted in a heated argument between them. 8. On November 3, 1995, an employee of the bar came to Ms. Cremeens and advised her that Mr. Lloyd had said that she, the reporter, and another employee would be terminated. Ms. Cremeens confronted Mr. Lloyd and asked him by what right he had told employees under her supervision they would be terminated. Mr. Lloyd became loud and threatening, which scared Ms. Cremeens. She immediately tried to call Mr. Rogers, but he was out of town. As a result, she left messages for Mr. Rogers and his assistant that she wanted to see them as soon as possible. 9. Ms. Cremeens finally got to talk with Mr. Rogers with his assistant present and told him how frightened of Mr. Lloyd she was. She told Mr. Rogers she would try to get a restraining order against Mr. Lloyd and at that point, Mr. Rogers told her he would talk to Mr. Lloyd and get back to her. Mr. Rogers did not do so, however, until he found out that Mr: Cremeens' husband had tried to call mr. Morris, Mr. Rogers' boss. Ms. Cremeens also told Mr. Rogers she would talk to Mr. Morris about what was going on even if it cost her her job. 10. Some time thereafter, Ms. Cremeens was called in and terminated. She was told at the time her termination was necessitated because of a drop in business and because, due to the effect on the working atmosphere caused by the dissention between her and Mr. Lloyd, one of them had to go. At that time, Mr. Rogers told Ms. Cremeens that she would receive four weeks vacation pay, but she never got it. Her termination threw her into a state of shock as a result of which she became extremely depressed and cut herself off from family and friends. She claims she has never been right since. The irony of this situation, she contends, is the fact that in January 1995, she was offered a job at the High Point Resort. At that time, Mr. Rogers came to her and begged her not to leave because she was doing such an excellent job. If this is the case, she queries, why was she let go for cause less than a year later? 11. Ms. Cremeens has sought other employment since her termination and worked part time as a waitress and bartender. However, she was let go after a short while because of mutual dissatisfaction. She claims she has never been able to bring herself back to the status she occupied while manager of the bar at the Days Inn. She has been to counseling in an effort to help herself, but she finally realized that the only way to get this trauma out of her system was to file her complaint. As it is, it has taken four years for the state to reach a determination of cause. Much of this time, she believes, was due to the failure of the Respondent to provide the information required by the Commission. 12. The Respondent sought to make much of the fact that Ms. Cremeens has been married four times and filed bankruptcy with her third husband in 1993. Her fourth husband filed bankruptcy in 1999, but she was not a party to that action. Neither her multiple marriages nor her bankruptcy have been shown to have any bearing on the instant issue, however, and are disregarded. 13. Petitioner admits, however, to having failed to report all tips she received when she manned the service bar from time to time. The facility had a requirement that all bar employees report tips for consolidation and sharing and contends Petitioner's failure to do this is identified as a basis for her termination. 14. Mr. Rogers was manager of the facility in question during the entire time in question. He contends that the basis for Petitioner's termination was a continuing decline in the profitability of the bar operation under her Management from a significant profit in 1991 to a loss of $1,048 in 1995. Ms. Cremeens was already working as bar Manager at the hotel when Mr. Rogers began overall management. The Silver Dollar was a local bar primarily for local people which was also used by hotel patrons. The bands, which Played in the evening, were mostly country and western. 15. As general manager, Mr. Rogers had as Support staff an assistant Manager, a comptroller, a beverage/lounge Manager (Ms. Cremeens), a restaurant manager, an executive housekeeper, a chief engineer, and a director of sales and marketing. Each of those department heads had a staff. The department heads were Salaried, but the Majority of the employees were hourly employees. 16. Petitioner was the only salaried lounge employee. Her staff included bartenders, Servers, and bar backs, who were hourly employees and also received tips. Tips were to be reported to the comptroller for tax purposes, and, though Petitioner was a salaried employee, she also received tips which should have been reported. As was noted previously, Petitioner admitted she did not always do this. The band was contracted for and band members were not hotel employees. 17. Because of a downturn in revenues and profits over the years starting in 1990, cutbacks in all departments (not just the lounge) were Mandated by a memorandum dated December 20, 1993, Mr. Lloyd was hired as comptroller by mr. Rogers sometime in 1995 because profits at the hotel, including the lounge, were declining so rapidly a real potential for closure of the hotel existed. Mr. Lloyd had a degree in auditing and was a Certified Public Accountant who had experience in hotel and restaurant Management. 18. Revenues in all departments of the hotel were declining, but not as badly as in the lounge upon which revenues management relied for a large portion of the cash flow. The lounge had previously been a "cash cow" for many years, and when the revenues declined, the hotel's owners started putting pressure on Mr. Rogers. His job was at stake, and since he was paid a portion of profits, so was his income. 19. Historically, the lounge manager had the authority to hire and fire employees, to schedule employee work hours, to supervise employees and bartending, to hire all bands and entertainment, to purchase all liquor and bar supplies, to prepare for all inspections, to provide for bar security, and to insure harmonious guest relations. 20. Petitioner, as lounge manager, had total responsibility for the lounge operation, including financial responsibility for that profit center, and to insure the facility operated within budget constraints for entertainment, advertising, and drinks. She was to report to Mr. Lloyd as comptroller on accounting matters, and Mr. Rogers asked Mr. Lloyd to work with Petitioner to bring lounge expenses under control and to increase sales. According to Mr. Rogers such a relationship is common in the industry. 21. At the time Mr. Rogers hired Mr. Lloyd, he claims he had some personal concerns about the hotel operation. Because of declining sales and profits, particularly in the lounge, and as the result of the negative reports of comparison shoppers, he wanted the lounge operation looked at with regard to service levels (were servers attentive and courteous?), portion control, and accounting for sales to tell him how the customers were being served. He also claims he had heard complaints of rudeness and lack of courtesy by employees, and most of these reports had been passed on to Petitioner. Though they had had an open communication for nine years, he found that usually on negative reports Petitioner denied the problem or became defensive. 22. Nonetheless, Mr. Rogers instructed Mr. Lloyd to work with Petitioner and come up with proposed controls in the bar to decrease expenses. Mr. Lloyd came up with the controls and he and Mr. Rogers met with Petitioner about them. Some of Mr. Lloyd's proposals were not acceptable to Petitioner. One of these was the proposal to close the service bar, which was where Petitioner often worked and from which she derived tips. Mr. Lloyd wanted to close it because of the inability to control what went on there. The proposals were put into effect, but even so, there was little improvement in the operation. Mr. Lloyd wrote a memorandum to Mr. Rogers to this effect on November 1, 1995, and sometime after receiving it, Mr. Rogers made, he 10 claims, a business decision to terminate Petitioner for her failure to perform adequately and to implement proposed internal controls and increase profits. 23. According to Mr. Rogers, Petitioner assumed a proprietary interest in the lounge operation. She had built up profits during the late 1980's and the early 1990's, but from 1993 on, business dropped. He claims he gave her five years to turn the operation around and make it profitable again, but she failed to do so, and he considered letting her go even before Mr. Lloyd was hired. In addition, her salary as bar manager was based on her prior performance, and she was not performing up to that level. Therefore, he believed he could save money by terminating her and having a bartender do the work. After Petitioner was terminated, another bar manager was not hired. Instead, one of the bartenders was promoted to head bartender, with a slight hourly wage increase, and was assigned some of Petitioner's former duties. 24. Concerning the complaints allegedly made by Ms. Cremeens regarding sexual harassment by Mr. Lloyd, Mr. Rogers contends he never received any complaints from her about it or reports from Petitioner or anyone else that Mr. Lloyd was harassing her or had asked her out. He admits that she complained to him that she was afraid of Mr. Lloyd because of an incident which occurred in the kitchen. On the whole, there is insufficient evidence to support finding that Ms. Cremeens 11 complained to Mr. Rogers about Mr. Lloyd sexually harassing her, and it is so found. on the other hand, there is sample evidence that she complained to Mr. Rogers about Mr. Lloyd's rudeness, threats, and verbal abuse, but these do not constitute actionable misconduct in this forum. 25. With regard to the kitchen incident, both Petitioner and Mr. Lloyd came to mr. Rogers upset with each other. As he’ recalls, Petitioner came to see him first contending that she and Mr. Lloyd had had an argument and she was afraid of him due to his size and his temper. At the time, Mr. Rogers asked her if Mr. Lloyd had touched her and she said no. She indicated that Mr. Lloyd had started the altercation, but she admitted she took part. Mr. Rogers claims he took care of the incident, but apparently not to Petitioner's satisfaction. 26. It appeared to Mr. Rogers that Petitioner felt she owned the bar and could ignore instructions she didn't like. He recalls she complained about Mr. Lloyd constantly for various things, but he cannot recall it ever being for harassment or assault. In each case he claims he looked into her complaints and could not find any misdeeds by Mr. Lloyd. It was evident to Mr. Rogers that Petitioner wanted Mr. Lloyd out of the bar which she apparently felt was her territory. However, he also received complaints about Mr. Lloyd from the director of sales and Marketing and from his own son, who has a learning disability. Both indicated that mr. Lloyd yelled at them and was abrupt, but 12 neither complaint was of a sexual nature. Mr. Rogers received a total of four complaints about Mr. Lloyd, for each of which Mr. Lloyd was reprimanded. 27. Kristi Carroll, formerly administrative assistant to Mr. Rogers when he was manager of the Days Inn, worked there at the same time Mr. Lloyd did. At no time did she ever see Mr. Lloyd engage in any sexual misconduct on duty, nor did she ever hear any complaints of such even from Petitioner. She knows of no sexual advances by Mr. Lloyd to any hotel employee. There is evidence to the contrary, however. 28. When Mr. Rogers left the management of the hotel in early 1997, he claims he was not aware of Petitioner's complaint and was not made aware of it until January 2001. Petitioner worked under his supervision for approximately nine years and was equal to Mr. Lloyd in the chain of command. He considers the two memoranda which Mr. Lloyd wrote concerning her performance to be warnings to her but neither was placed in her personnel record after she signed acknowledgement of it. , . 29. Mr. Rogers admits that during the time in issue, 1991 through 1995, room income and beverage income both dropped radically. He includes in the reasons therefor in the bar area as being increased competition; the cessation of band entertainment, a decision of his; a lack of air conditioning; and crime in the immediate area. All these factors contributed to a reduction in patronage, but he considers Petitioner's performance 13 to be the Major cause. In 1994, due to a decline in restaurant business, mr. Rogers considered Closing the restaurant and making the whole area a lounge however, he did not do so. 30. Ms. Carroll, while assistant general manager during 1995, looked into the causes of the lower hotel and lounge revenues, which had declined from good levels in 1993 and 1994, Her investigation showed that increased competition from new Ybor City clubs substantially impacted revenue in the Silver Dollar. Ms. Carroll immediately noticed tension between Mr. Lloyd and the Petitioner due to Mr. Lloyd's new Procedures and his interference with Petitioner's authority. He was given input into areas wherein Petitioner had previously had free reign, and this was obviously difficult for Petitioner to accept. 31. Mr. Rogers ultimately concluded that Petitioner might have to be terminated, When it finally occurred, Petitioner's removal was based on a financial decision that a lounge Manager was not needed. After a thorough review of lounge advertising, entertainment, the need for a back bar, and the size of the staff, it was deemed beneficial to replace the salaried Manager position with a current bartender paid hourly. ms. Carroll admits that management knew the decline in income in the bar was not due solely to Petitioner's Management. There was a definite increase in competition, and Petitioner's being laid off was a cost cutting decision. 32. At the time of Petitioner's removal, neither 14 Ms. Carroll nor mr. Rogers knew of Petitioner's complaint nor diq Petitioner's age play any part in the decision. Ms. Carroll 33. Ms. Carroll was present when Petitioner was terminated Mr. Rogers about vacation time. She cannot recall the Particulars of the discussion, however, but it is found that Petitioner was promised four weeks vacation time for which she was not compensated. 34. Ms. Carroll also substantiates Petitioner's claim that Mr. Lloyd was argumentative and abusive in his work relations with subordinate employees. She knew there was tension between Petitioner and mr. Lloyd and that Petitioner complained to Mr. Rogers, but she cannot recall the specific complaints. She is of the Opinion that mr. Lloyd had a temper and is aware that Mr. Lloyd had altercations with several staff members. Notwithstanding all the bad language between Petitioner and Mr. Lloyd, Ms. Carroll cannot recall ever hearing Petitioner use foul language or curse customers. 35. Several employees of the lounge were aware of the conduct of both Petitioner and mr. Lloyd. Several claimed Mr. Lloyd was loud and abusive in language to employees. Several i5 recalled he made a Sexually oriented comment regarding at least one female employee. Further it is clear that Mr. Lloyd dated at least two female employees of the lounge, one of whom was made head bartender when Petitioner was terminated. 36. On the other hand, while at least one employee described Petitioner as seductive and flirtatious, the majority claimed otherwise, and while her detractors described her as loud and abusive, the Majority of her employees did not. At no time did any of the lounge employees, save those aligned with Mr. Lloyd, describe Petitioner as having lost interest in the lounge operation before she was terminated. 37. According to Sadie Strickland, a long-time co-worker of Petitioner in the lounge, Mr. Lloyd would talk to lounge employees about Petitioner and her performance and he espoused opinions and suggestions which he wanted implemented in the bar without seeking or obtaining Petitioner's participation. Nevertheless, Petitioner remained supportive. When on one occasion Ms. Strickland threatened to quit because of problems with Anna-Marie Genco, another lounge employee, Petitioner talked Anna-Marie out of it. Petitioner was, in her opinion, a good employer/manager who gave her best without any support from upper Management. Rather than help, Mr. Rogers took away the bar's advertising budget and refused to act on Petitioner's suggestions. 38. To be sure, there was tension between Petitioner and 16 Mr. Lloyd and between Petitioner and some other lounge employees. For example, on November 8, 1995, Petitioner is alleged to have called in Ms. Carla Genco and her sister, Anna-Marie, and yelled at them because of their refusal to talk to Ms. Strickland. on that occasion, Petitioner is alleged to have said she'd like to stomp Anna-Marie's "f---ing butt." As a result, Ms. Genco prepared a letter to Mr. Rogers recounting the incident. Ms. Genco does not know what, if any, action was taken, but she enjoyed working at the hotel because both Mr. Lloyd and Mr. Rogers were good to her. 39. Mr. Lloyd's account of the situation differs substantially from that of the Petitioner. When he first started working at the hotel as comptroller, he was instructed to initiate internal controls in several areas, one of which was the bar. Before doing anything, he analyzed the situation for about two and a half months and came up with proposals which he coordinated with Mr. Rogers. 40. Mr. Lloyd found a lack in internal controls. Bar stock was not being maintained appropriately, inventory was too high, requisitions were not being done on a regular basis, bar tabs were not being rung up timely, and guest checks were not being accounted for. He also felt there was not enough business to justify keeping the service bar open. Labor costs were too high relating to sales, and costs were higher than industry standards due to the pouring of too many free drinks. 17 41. Mr. Lloyd gave a copy of his analysis to both Mr. Rogers and the Petitioner, and discussed his analysis with Ms. Cremeens. Her reaction to the memo was that she would try to comply with the suggestions. Somewhat later, in November 1995, Mr. Lloyd prepared a follow-up memorandum, which he gave to Mr. Rogers and which pointed out those suggestions which were not being followed by Petitioner and identified additional deficiencies for review. The memo identified a continuing problem with free drinks; a failure to ring up sales at the time of sale; a failure to monitor promotion drinks; a failure to properly punch time cards; and a failure to properly declare tips. 42. Mr. Lloyd's analysis of Petitioner's performance indicated to him that she had lost interest in her job. This conclusion was based on his determination that she had failed to provide relevant cost information as required; failed to be on site for an appropriate time on busy nights; and demonstrated a temper and used foul language at inappropriate times. He observed some instances wherein Petitioner would get mad at people working behind the bar and would start yelling and swearing at them. Other similar instances were reported to him. This is not supported by the majority of lounge employees, however. 43. When Petitioner was terminated in November, 1995, she 18 was not replaced with a salaried bar manager. Instead a position was developed as head bartender for operations, and Mr. Lloyd assumed responsibility for inventory and cash payments. Anna Genko was promoted to head bartender on an hourly wage basis as a joint decision of Mr. Rogers, the assistant Manager, and Mr. Lloyd. According to Mr. Lloyd, there was no immediate change in profitability as a result of these changes, but over the succeeding year, there was a considerable increase which he claims was due to the implementation of innovations designed to attract customers. 44. Mr. Lloyd contends that Petitioner's age had nothing to do with her termination. He repeatedly asserted that the decision to terminate Petitioner was based on her performance. He claims to have discussed the problem areas with her and explained her weaknesses. However, he contends, she failed to modify her performance to comply with the directives of management. 45. Mr. Lloyd also denies having sexually harassed the Petitioner. He denies having suggested she meet him at another place while her husband was out of town. He denies having ever touched her or kissed her. He denies having told her he gets what he wants, and he denies ever having made a comment to her about her breasts. He also denies drinking on the property though the evidence indicates he did. Mr. Lloyd had a very selective memory at the hearing, however, he does admit to having 19 a temper and to having yelled at Petitioner from time to time. Taken as a whole, however, there is insufficient evidence of record to support a conclusion that Mr. Lloyd sexually harassed Ms. Cremeens. To be sure, he did not always behave like a gentleman toward her, but it cannot be said his conduct constituted sexual harassment, and it is so found. 46. Once Petitioner was terminated, she became despondent and withdrawn and pushed family and friends away. Petitioner was terminated on November 27, 1995, but did not file her claim for discrimination until September 1996, almost ten months later. She delayed filing her complaint because she was in shock and embarrassed. She lost self-esteem and self-confidence and was afraid her marriage would be jeopardized if her husband found out the particulars of the termination. 47. Dr. Glenn D. King, a clinical psychologist whose specialty is forensic psychology, reviewed the materials relevant to Petitioner's claim against HP Tampa and did his own personal evaluation of the Petitioner relating to her claim of psychological harm resulting from her termination. 48. One of Dr. King's major opinions was that Petitioner had a longstanding psychological disorder stemming from childhood resulting in demonstrated histrionics, flirtatiousness, and a misperception of the motives of others. She has had an extraordinary number of chaotic events throughout her life that makes her no different after her discharge than before. Her 20 previous psychiatric history is lengthy reflecting professional mental health care at age 28 because of physical, emotional, and sexual abuse by her husband which caused her to leave home and Move to Tampa. The significance of this is that the psychological difficulties which she claims were caused by her discharge existed years before this incident and have resulted in her being in counseling for years prior to the termination. Her medical records indicate she has been taking psychotropic medications for years. 49. Dr. King also notes that though Petitioner mentioned her termination in the first counseling session she had after that incident, the major thrust of her complaints dealt with Marriage and family problems. 50. After Petitioner was terminated at the Silver dollar, she got a job at another lounge for about two months earning $10 per hour before she was fired. She then took another job for eight months before being hired at a Golden Corral for two years. She was let go from that job in August 1997 and drew unemployment compensation at $100 per week for five months. She opened another lounge, Angel's Place, in October 1997. This position lasted only a short time, after which she went to work for Old JR's Steak House where she earned $400 per week from January 5, 1998 to March 1, 1998. She then worked for the Old Florida Pub in Naples for five months before starting at Target stores and is currently employed by Target Stores. 21 51. Petitioner is seeking back wages for the period from when she was terminated in 1995 to the present and for five years forward at the rate she was getting less what she earned in the interim. In addition to the sums she earned from the various jobs she held, she also sold off household goods and had between $30,000 and $40,000 in gambling income, a part of which went into the costs of opening Angel's Place. All of this income was reported to the IRS. 52. Petitioner also seeks payment of $50,000 which represents the equity in her home which was lost to foreclosure in 2000, almost five years after her termination by HP Tampa. Some time after her termination by HP Tampa, Petitioner was declared eligible on her husband's insurance, yet she seeks to have HP Tampa also pay for her medical insurance. 53. According to Melissa Mancini, human resources director for Cornerstone Hospitality Group, Petitioner was never an employee of Cornerstone, but her office prepared the response to the Commission on Human Relations regarding Petitioner's claim. It would appear that there was some confusion as to who was responsible for the response, but ultimately, the requested information was forthcoming. When the Petition for Relief was received, it was sent to the corporate office of Cornerstone because Cornerstone was handling the sale of the property. Cornerstone admits to no liability regarding Petitioner's claim. 22
Conclusions For Petitioner: Angel Cremeens, pro se 5351 Hemingway Lane, West Apartment 506 Naples, Florida 34116 For Respondent: David P. Thatcher, Esquire Chamberlain, Hrdlicka, White, Williams and Martin 191 Peachtree Street, Northeast Ninth Floor Atlanta, Georgia 30303-1747
Recommendation Based on the foregoing Findings of Fact and Conclusions of 27 Law, it is recommended that the Florida Commission on Human Relations enter a Final Order reflecting a determination of No Cause regarding Petitioner's claim of discrimination and Petition for Relief. DONE AND ENTERED this & day of July, 2001, in eel Jha NOLD POLLOCK 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) 921-6947 www.doah.state.fl.us Tallahassee, Leon County, Fl Filed with the Clerk of the Division Administrative Hearings this be aay of July, 2001. COPIES FURNISHED: Angel Cremeens 5351 Hemingway Lane, West Apartment 506 Naples, Florida 34116 David P. Thatcher, Esquire Chamberlain, Hrdlicka, White, Williams and Martin 191 Peachtree Street, Northeast Ninth Floor Atlanta, Georgia 30303-1747 Azizi M. Dixon, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 28 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact In January 1984, Respondent Department of Transportation (DOT) published a Request for Proposal for travel services (RFP). After receiving proposals, Respondent reconsidered its financial statement requirement and returned all proposals. DOT then published a second RFP deleting the financial statement requirement. In its second RFP, Respondent stated: The Department intends to award the contract to the responsive and responsible proposer whose proposal is determined to be the most advantageous to the Department. A responsive proposer is one who has submitted a proposal which conforms in all material respects to this Request for Proposal . . . As the best interest of the State may require, the right is reserved to reject any and all proposals or waive any minor irregularity or technicality in proposals received. Proposers are cautioned to make no assumptions unless their proposals have been evaluated as being responsive. The RFP directed that all proposals include a resume of the travel agency, explaining the abilities that make it best qualified to perform the required services and information relating to years of experience, ownership, minority ownership, volume of business, proof of membership in Air Traffic Conference (ATC) and International Air Transport Association (IATA), number of persons employed, number of persons to be assigned to DOT business, and computer/communications facilities. The required minimum services specified in the RFP included: 1) planning fares and itineraries; 2) scheduling and arranging airline and rental car reservations; 3) issuing and delivering airline tickets; 4) processing unused tickets; 5) providing sufficient direct communications to DOT; 6) providing rental car confirmation numbers; 7) ensuring social security numbers recorded on tickets; 8) providing copies of used tickets for billing reconciliation purposes; 9) providing a monthly financial statement in a prescribed format, and 10) providing monthly summary analysis of travel trends and patterns. Each travel agency was also required to list any additional services it proposed to provide that were not included in the minimal travel service requirements and to list the additional services to be incorporated in the executed contract. In order to determine the proposal which offered the most advantageous combination of services, Respondent developed a rating scale for the assignment of points to each additional service proposed according to its value (zero points for no value, one point for limited value, two points for reasonable value, and three points for significant value). Respondent intended that the agency proposing the most advantageous combination of services would receive the highest number of points and therefore award of the contract. Proposals were submitted by eight travel agencies. The proposals were evaluated by Respondent and points were assigned on the zero to three point rating scale. Intervenor's score was highest with 24 points. Petitioner's proposal was second with 14 points. Respondent initially announced its intention to award the contract to Intervenor, but thereafter advised proposers that it intended to reject all proposals and withdraw the intended award. Respondent's intent to withdraw is based on its admitted failure to announce criteria. This failure allowed bidders to obtain points for services of questionable or non-existent value. Petitioner, for example, received one point for Telex service which was not available when the proposal was submitted and still not installed at the time of final hearing. The ratings were highly subjective as indicated by the disagreement of witnesses over the value of various services. Intervenor, for example, received several points for such questionable services as a newsletter, proposed workshops and staff visits. However, Respondent's principal rater supported his reasons for assignment of points on a rational basis. He conceded only a one point change in Petitioner's score and no change in Intervenor's score. Both Intervenor and Petitioner claim advantages for the reliability and range of services provided by their computer systems. Respondent lacked the expertise necessary to resolve these competing claims with the precision demanded by Petitioner. However, the evidence offered at hearing by Petitioner in support of its claims of system superiority was largely self serving and unsubstantiated by any studies or performance data.
Recommendation From the foregoing, it is RECOMMENDED that Respondent enter a Final Order denying the petition of Universal Travel and Tours, Inc. DONE and ENTERED this 9th day of August, 1984, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 1984. COPIES FURNISHED: Thomas M. Beason, MOYLE, JONES & FLANIGAN 118 North Gadsden Street, Suite 100 Tallahassee, Florida 32301 Mark A. Linsky, Esquire Department of Transportation 605 Suwannee Street Haydon Burns Building Tallahassee, Florida 32301 William L. Grossenbacher, Esquire BORNE, RHODES, & JAFFRY Post Office Box 1140 Tallahassee, Florida 32302 Paul N. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
Findings Of Fact Petitioner, Department of Insurance, is the state agency charged with the responsibility of licensing and monitoring the business activities of insurance agents to assure statutory compliance with the Florida Insurance Code. The Respondent, Larry Densmore, is currently eligible for licensure and is licensed in this state as a life insurance agent, life and health insurance agent, health insurance agent, and variable annuity contracts salesman, and was so licensed at all times relevant to these proceedings. The Respondent at all times relevant to these proceedings was licensed in this state to solicit insurance on behalf of Travelers Insurance Company (Travelers). On or about November 15, 1992, the Respondent visited the offices of American Business Interiors of Melbourne, Florida (ABI) for the purpose of soliciting a Travelers Insurance group health care insurance plan. ABI elected to purchase the group health insurance plan being solicited by Respondent. The Respondent left applications at the company for each employee to complete. ABI distributed the application forms to its employees and collected them after they had been completed so that Respondent could submit the entire application package to Travelers. Each employee, including Sara Perrers, Jo Anne Wallace, and Santiago Jusino, filled out the application completely and truthfully, fully disclosing any and all preexisting health conditions they may have had. Sara Perrers disclosed on her application that she had suffered in the past from a carcinoma of the cervix and had undergone treatment for depression. Pre-existing medical conditions of an applicant would affect whether or not an insurance policy would be issued as well as the amount of premium charged. The Respondent knew or should have known this fact. After being notified that the employee applications had been finished, the Respondent returned, collected the applications and took them to his office to complete the application package. ABI made and retained a copy of each original application for its own records. At no time did the Respondent ever actually meet any of the prospective insureds. Respondent was working on five (5) proposals simultaneously with the ABI proposal. He completed a total of three (3) Travelers' group health insurance submissions which included ABI's proposal and forwarded them to the Travelers' processing centers in Minneapolis, Minnesota and Naperville, Illinois in mid-November, 1992. Upon review of ABI's employees applications, Respondent recognized that four of them disclosed pre-existing medical conditions. Respondent completed an application form for four (4) ABI employees, affixed their names and signatures to the applications and submitted them to Travelers for processing. The applications submitted by the Respondent failed to disclose to Travelers the pre-existing medical conditions of four ABI employees. Other information contained in the applications of Jo Anne Wallace and Sara Perrers was also inaccurate. The Respondent submitted these substitute applications without the knowledge or consent of the four employees and with their signatures fraudulently affixed thereto. The substituted applications submitted by the Respondent contained false information and were a material misrepresentation of fact, which resulted in the issuance of insurance coverage which may or may not have otherwise been issued. Based solely upon the information contained in the applications submitted to Travelers by the Respondent, the group health insurance plan was duly issued to ABI. The Respondent received a commission. In the latter part of June, 1993, Sara Perrers received a letter from the Travelers dated June 23, 1993. It stated that she had failed to disclose certain health conditions, including her treatment for depression, on her insurance application. Sara Perrers' insurance coverage was rescinded for non- disclosure of the health conditions. Had Travelers been aware of Sara Perrers' true health history, American Business Interior's group policy would not have been issued. Understandably perplexed and concerned, ABI contacted the Respondent. The Respondent first represented that it was only a simple mistake and that he would look into it. Several days later, however, the Respondent came to ABI and asked to meet with Jack Drudy, the company comptroller, and Ralph Perrers, the company president as well as Sara Perrers' father, in order to discuss Sara Perrers' insurance. Sara Perrers, in the meantime, had several medical claims that were unpaid because her health insurance had been cancelled. The Respondent paid these claims from his own private funds. Ralph Perrers contacted Travelers about the Respondent's conduct. Travelers, upon investigation, did not consider Sara Perrers to be responsible for what had happened and reinstated her insurance. The Respondent's assertions that the true applications were lost in the mail and that he was directed by an unknown Travelers underwriter to mail in the substituted applications with the unauthorized signatures for "identification purposes only" is unsupported by the evidence. Travelers' policy does not allow agents to sign applicant's names to applications and the company underwriting guidelines reflect this. Only the applicant can sign his or her signature. If an application is lost, a new original application with the applicant's original signature must be procured. Copies are not acceptable. Respondent has been a licensed insurance agent for over seventeen years and has not previously been disciplined by the Department.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED as follows: The Respondent, Larry Densmore, be found guilty of violations Sections 626.611(5), (7), (8), (9), 626.621(6), and 626.954(1)(e)1., Florida Statutes. Pursuant to Rules 4-231.080 and 4-231.090, Florida Administrative Code, Respondent's licenses and eligibility for licensure be SUSPENDED for a period of one year, followed by a two year period of probation upon such reasonable conditions as the Commissioner may require. DONE and ENTERED this 30th day of August, 1995, in Tallahassee, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 1995. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Proposed findings of fact submitted by Petitioner. Accepted in substance: paragraphs 1, 2, 3, 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18 (in part), 19, 20, 21. Rejected as not supported by clear and convincing evidence: paragraph 6. Rejects as subsumed or irrelevant and immaterial: paragraphs 17, and 18 (in part). Proposed findings of fact submitted by Respondent. Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 7, 8 (in part), 10, 18, 27 (in part), and 28 (in part). Rejected as not supported by credible evidence: paragraphs 8 (in part), 14, 15, and 16. Rejected as subsumed or irrelevant and immaterial, paragraphs 9, 11, 12, 24, 25, 26, 27 (in part), 30, and 31. Rejected as a comment on the evidence, conclusion of law or argument paragraphs 13, 17, 19, 20, 21, 22, 23, 24, 28 (in part) and 29. COPIES FURNISHED: James A. Bossart, Esquire Department of Insurance 612 Larson Building Tallahassee, Florida 32399-0300 Charles J. Grimsley, Esquire 1880 Brickell Avenue Miami, Florida 33129 Bill Nelson State Treasurer and Insurance Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Dan Sumner Acting General Counsel Department of Insurance The Capitol, PL-11 Tallahassee, Florida 32399-0300
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Stipulated Facts: Petitioner submitted its application for DBE certification on or about July 27, 1993. Petitioner and Travel Professionals International Licensing Co., d/b/a Travel Professionals, Inc. (TPI) entered into a franchise agreement on September 28, 1993. Department conducted an on-site review of Petitioner's business on November 4, 1993. Department notified Petitioner of its intent to deny its application for DBE certification by certified mail on December 9, 1993. Petitioner requested a hearing pursuant to Section 120.57(1), Florida Statutes, on December 15, 1993. One hundred per cent of Petitioner's stock is owned by Jeanne Santo, a "socially and economically disadvantaged individual" as defined in Rule 14- 78.002(1), Florida Administrative Code, and therefore, Petitioner is in compliance with 14-78.005(7)(b), Florida Administrative Code. All securities which constitute ownership by Jeanne Santo are held directly by Jeanne Santo, and therefore Petitioner is in compliance with Rule 14-78.005(7)(d), Florida Administrative Code. The contributions of capital or expertise invested by Jeanne Santo are real and substantial, and therefore Petitioner is in compliance with Rule 14- 78.005(7)(f), Florida Administrative Code. The provisions of Rule 14-78.005(g) and (h), Florida Administrative Code, do not apply to Petitioner. The franchise agreement (Agreement) between Petitioner and TPI contains the following terms and conditions which are not in the agreements between Petitioner and Airlines Reporting Corporation (ARC); Petitioner and International Airlines Travel Agent Network (IATAN); and Petitioner and Systems One: a requirement that Petitioner locate its travel office only in "That portion of Pinellas County, Florida lying south of Florida State Highway 694". a requirement that Petitioner pay a quarterly advertising contribution. a requirement that Petitioner attend mandatory managers' meetings. ARC is customary in the travel agency industry. IATAN is customary in the travel agency industry. A leasing agreement for an automated reservation and ticketing system is customary in the travel industry. The Agreement requires that Petitioner be an ARC agent. Facts Not Stipulated The Fral Highway Administration (FHWA) is the federal agency that inisters the DBE program on the national level. The Department is the agency charged with the responsibility of administering the DBE program for the State of Florida. In making its determination of an applicant's eligibility for DBE, the Department considers: (a) Surface Transportation Uniform Relocation Assistance Act of 1987 (Public Law 100-17); (b) 49 CFR Part 23; (c) Chapter 339, Florida Statutes, (d) Chapter 14-78, Florida Administrative Code, (e) United States Department of Transportation (USDOT) administrative decisions; and (f) guidelines and training material from the FHWA or USDOT. The USDOT through FHWA provided the Department with a copy of DBE Program Administration Manual (Publication No. FHWA-HI-90-047, April, 1990) which the Department uses as a guideline for USDOT's and FWWA's interpretation of the DBE program. Below are portions of the Agreement which are pertinent to this preceeding: Purposes of this Agreement: We have developed the Travel Professionals International System (hereinafter called "the TPI System) for the operation of retail travel agencies, and we have developed policies, procedures and techniques that are designed to enable such agencies to compete more effectively in the travel market... You have requested our assistance, the use of the TPI Systems, and a franchise from us to operate a retail travel agency using the TPI System.... Franchise: We hereby grant to you and you hereby accept from us a franchise to operate a retail travel agency utilizing the TPI System, only at the following location(s): That portion of Pinellas County, Florida lying south of Florida State Highway 694. We will not establish another franchisee or agency owned by us within the territory described above, or establish other franchises or company owned outlets providing similar products and services under a different trade name or trademark or modify your territory without your written permission, so long as you are not in default under the terms of this Agreement.... You may move the office of the travel agency to a new location in the same general vicinity with our prior written approval, which approval will not be unreasonably withheld. You may not operate any additional office or location without our prior written consent, which consent will be given upon inspection and approval of such new premises.... Advertising Contributions: In addition to the service fees set forth above, you will be required to pay an "advertising contribution" in the amount of ONE HUNDRED FIFTY ($150.00) DOLLARS per quarter. We may adjust the advertising contribution annually on October 1, provided that any increase in the advertising contribution will be made only with the affirmative vote of at least fifty percent (50 percent) of the franchisees...The advertising contributions of all franchisees shall be placed in an advertising fund to be managed by us, and shall be used exclusively for advertising. Tradenames, Service Marks, Logos, Trade Secrets, and other Proprietary Matters: d. As you know, you will be given certain information about the Travel Professionals International System, our products and methods of doing business, as well as preferred supplier agreements, training and educational programs, computer operation and computer system arrangements, correspondence, memoranda, operating, sales and marketing manuals, and other confidential information. You recognize and acknowledge that this information is a valuable, special and unique asset belonging to us and constitutes our trade secrets which you agree to keep secret and not to disclose, during the operation of this Agreement, or after its termination or expiration, to any person or entity for any reason or purpose whatsoever.... Relationship of Parties: During the term of this Agreement, and any renewal term, you will be an independent contractor, and you will have no authority, expressed or implied, to bind us or to act as our agent, legal representative, or joint venturer. At our option, you will be required to describe yourself on all business forms, invoices, orders, stationery, and the like, as an independent licensee of Travel Professionals International, and to submit all such items to us for our written approval...The operation of your business shall be determined by your own judgment and discretion, subject only to the provisions of this Agreement and our policies and procedures, as they may be adopted or revised from time to time. We will not regulate the hiring or firing of your employees, the parties from whom you may accept business, the working conditions of your employees, or the terms of your contracts with your customers, except as may be necessary to protect the Travel Professionals International System. Service To Be Provided By Us: We will provide the following services to you pursuant to this Agreement: (b) We will prescribe certain standards of operation designed to enhance your profitability, which we shall expect you to follow. * * * (e) We may make recommendations to you regarding accounting and recordkeeping systems. * * * We will provide you with a policy manual, operations manual, preferred supplier manual, marketing manual, and an employee handbook which may be updated periodically. We will provide you with marketing, sales and promotional aids to include currently available professionally produced television spots, a series of high quality radio jingles, and from time to time, printed and other promotional material for use in your local area. We will operate an ongoing training program for you and your personnel. This program will include seminars, conferences, familiarization trips, and printed materials, such as bulletins and manuals, relating to marketing, management, and accounting procedures, and the like, and developments with the travel industry... * * * (l) We will provide, at no charge, up to five (5) person days of management expertise and sales effort effective on the first date of contract signing.... Your Obligation: During the term of this Agreement, and any renewal term, you will obligated to pay promptly to us any fees that are due hereunder, to maintain and keep such records and reports as we may prescribe, and to provide us with copies of such records and reports. You will be required to allow us to make inspection of your business and premises at any reasonable time, and to allow us to examine your books, tax returns and records during normal working hours. We reserve the right to establish a uniform accounting system to keep your books and records in conformity with such system. Your business shall be conducted in conformity with the provisions of this Agreement, with such policies and procedures as we may publish from time to time, and all state, federal and local laws and regulations.... You will be required to cause your chief operating officer or manager to attend our next available training program and to cause each of the franchise employees and principals (as shown on Schedule A attached hereto) to attend the required training courses set forth in our published policies and procedures. At present, mandatory training programs we provide include "New Owners Orientation", "New Manager Orientation", and the periodic "Managers Meetings". Although we are not obligated to do so, we offer, and plan to offer in the future, periodic (at least three times per year), Managers Meetings. Attendance at Managers Meetings, when offered, is mandatory. In the event you fail to send a representative to any Managers Meetings, then you shall pay to us the registration fee for that meeting, notwithstanding your lack of attendance at such meeting. Although paragraph 8 does require Petitioner to pay a fixed sum to TPI for advertising, it does not restrict the qualifying owner's exercise of control over the day-to-day decisions concerning advertising. In fact, TPI, under paragraph 11(i) of the Agreement, agrees to furnish certain materials to assist Petitioner in advertising on the local level. It is clear throughout the Agreement that the operation of the business is to be determined by the qualifying owner's own judgment and discretion subject to the provisions of the Agreement and TPI's policies and procedures which may be adopted or revised from time to time. Paragraph 4 , Terms of the Franchise, provides for the termination of the Agreement prior to its expiration date. It is clear from the qualifying owner's testimony ("Because nobody tells me what to do."), that she would terminate the Agreement rather than to allow TPI to exercise the day-to-day control of the business. There is no question that the qualifying owner has the authority to take such action under Paragraph 4 of the Agreement, if in no other manner, than by defaulting under Paragraph 4(4). This gives the qualifying owner the final authority as to who exercises the day-to-day control of the business. It is clear from the testimony of TPI's Vice-President of Franchise Sales and Development that TPI does not consider those provisions of the Agreement that appear to place restrictions on the qualifying owner's discretion as to the day- to-day control of the business as being mandatory, notwithstanding the language of the provisions to the contrary. Likewise, it is clear that TPI will not involve itself in the hiring, supervision or firing of employees because of the liability it would place upon TPI, notwithstanding any provision in the Agreement. The parties to the Agreement are experienced business people, who have expertise in the travel agency industry and franchising. The parties to the Agreement have clear and mutual understandings and interpretation of the meanings of the terms of the Agreement . Their understandings and interpretations are that the Agreement does not restrict the qualifying owner's exercise of the day-to-day control of the business. The parties' interpretation of the Agreement is a possible and permissible interpretation. TPI has some 60 franchisees within 22 states, with 17 franchisees in the State of Florida. There are several other franchisors that franchise travel agencies throughout the United States, including the State of Florida. The purpose of franchise agreements in the travel business in general, and this Agreement in particular, is to enable the small, independent travel agency to compete more effectively in the travel market. The growing trend in the travel agency industry is to belong to a franchise. The Agreement is a typical franchise agreement and customary in the travel industry.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a Final Order granting Petitioner's application for certification as a Disabled Business Enterprise. RECOMMENDED this day 9th of January, 1995, at Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-0568 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioner's Proposed Findings of Fact. Petitioner has listed the stipulated facts separately as paragraphs 1 through 14. These stipulated facts have been adopted in Findings of Fact 1 through 14, respectively. Proposed findings of fact 1, 2, 3 and 4-5 adopted in substance as modified in Findings of Fact 23, 24, 26 and 21, consecutively. Proposed findings of fact 6 through 9 are neither material nor relevant to this proceeding. Proposed finding of fact 10 is adopted in substance as modified in Findings of Fact 20 through 22. Department's Proposed Findings of Fact. The Department has listed the stipulated facts separately as paragraphs 1 through 14. These stipulated facts have been adopted in Findings of Fact 1 through 14, respectively. Proposed findings of fact 1 and 2 are adopted in substance as modified in Finding of Fact 19. Proposed finding of fact 3 is adopted in substance as modified in Findings of Fact 20 through 22. Proposed findings of fact 4, 5 and 6 are adopted in substance as modified in Findings of Fact 15, 16 and 17, respectively. Proposed finding of 7 is rejected as being neither material nor relevant to this proceeding. Proposed findings of fact 8 and 9 are adopted in substance as modified in Findings of Fact 18. Proposed findings of fact 10, 11 and 12 are considered conclusions of law or legal argument and for that reason are rejected as Findings of Fact. Proposed findings of fact 13 and 14 are rejected as not being supported by the record. COPIES FURNISHED: Oscar Blasingame, Esquire Blasingame, Forisz, Smiljanich, P.A. Post Office Box 1259 St. Petersburg, Florida 33731 Dorothy S,. Johnson, Esquire Mary J. Dorman, Esquire Department of Transportation 605 Suwannee Street, MS-58 Tallahassee Florida 32399-0458 Ben G. Watts, Secretary ATTN: Eleanor F. Hunter Department of Transportation 605 Suwannee Street, MS-58 Tallahassee, Florida 32399-0458 Thornton J. Williams General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue The issues are whether, pursuant to section 559.929(3), Florida Statutes (2019), Petitioner has been injured by the fraud, misrepresentation, breach of contract, financial failure, or any other violation of chapter 559, part XI, by Respondent Travbuzz, Inc. (Respondent), for prearranged travel services and, if so, the extent to which Respondent is indebted to Petitioner on account of the injury.
Findings Of Fact Respondent provides prearranged travel services for individuals or groups. Having relocated from New Jersey to Miami, Florida, evidently in 2018, Respondent has been registered at all material times with the Department as a "seller of travel" within the meaning of the Act and holds registration number ST-41461. With Respondent as the principal, the Surety issued a Sellers of Travel Surety Bond bearing bond number 10076529 in the amount of $25,000, effective from June 22, 2018, until duly cancelled (Bond). On November 12, 2019, Petitioner, a resident of San Diego, California, purchased from Respondent one ticket for himself and one ticket for his daughter on the Palace on Wheels: A Week in Wonderland Tour (POWAWIWT) with a departure date of April 1, 2020. Earnestly described by Respondent's principal as a "cruise ship on wheels," the POWAWIWT provides one week's transportation, accommodations, and meals for travelers seeking to visit several of India's cultural and historical landmarks without the inconvenience of changing hotels, finding restaurants, arranging intercity transportation, or, it seems, obtaining refunds for trips that never take place. The purchase price for two POWAWIWT tickets was $8600.40. Additionally, Petitioner purchased from Respondent a guided side trip at one location for $75. At the time of the purchase of the two POWAWIWT tickets, Respondent charged Petitioner's credit card for the required downpayment of $1911.20 for both tickets. By personal check dated January 6, 2020, Petitioner timely paid the balance due for both tickets of $6689.20. By personal check dated February 19, 2020, Petitioner paid the $75 charge for the side trip. The credit card issuer duly debited Petitioner's account and credited Respondent's account for the charged amount, and Respondent obtained the funds represented by both checks. Petitioner later disputed the credit card charges, and the credit card company debited the $1911.20 amount in dispute from Respondent's account. Although Petitioner claimed that his account had not been credited for this amount, as of the evening prior to the hearing, Respondent's credit for these charges had not been restored, so the $1911.20 still seems to be in the possession of the credit card issuer. Despite availing himself of the remedy available under the Act, Petitioner has not authorized the credit card issuer to restore to Respondent's account the credit for the $1911.20. This case is a byproduct of the emerging Covid-19 pandemic, which, as discussed below, caused RTDC to cancel Petitioner's April 1 POWAWIWT. According to Respondent, RTDC has refused to refund Petitioner's payment of $8600.40 gross or about $8000 after deducting Respondent's 7% commission.1 Although Respondent's principal deflects the blame to RTDC for its no-refund policy and to Petitioner for supposedly waffling on the relief that he sought for the cancelled trip, Respondent quietly has declined to refund its commission of approximately $600, as well as the additional $75 payment, although the failure to refund the $75 may be explained by Petitioner's failure to address this negligible amount until he prepared the Prehearing Statement in this case. 1 Respondent's principal testified that Respondent discounted the price of the April 1 POWAWIWT by reducing its standard 17% commission, which would approximate $1460, to 7%, for a 10% discount, or about $860, leaving a net commission of about $600. Respondent's factual defenses to Petitioner's refund claim include the several defenses set forth above and a new defense asserted for the first time at the hearing: Petitioner cancelled his POWAWIWT before RTDC cancelled his POWAWIWT, so Petitioner was never entitled to a refund under the terms of the Contract. This defense oddly finds more support in Petitioner's allegation that he demanded a refund before RTDC cancelled the April 1 POWAWIWT than in Respondent's allegation that Petitioner did not demand a refund until the March 13 email, in which he reported that RTDC had cancelled the April 1 POWAWIWT.2 Regardless, this new defense is no more supported by the facts than Respondent's previously stated defenses. Respondent's who-cancelled-first defense is based on emails and telephone calls. Petitioner's emails portray his consistent efforts to obtain a refund for the trip, but only after RTDC had cancelled the April 1 POWAWIWT. The lone email of Respondent's principal serves to reveal Respondent's inability to respond meaningfully to Petitioner's efforts to protect his travel purchase and raises the possibility of bad faith on the part of Respondent's principal. On March 9, Petitioner emailed Respondent's principal a Times of India news article that reported that RTDC had cancelled the March POWAWIWTs, but not the April 1 POWAWIWT. This email does not seek to cancel the April 1 POWAWIWT, but expresses concern that RTDC will cancel the trip. On March 13, Petitioner emailed Respondent's principal a Times of India news article that reported that RTDC had cancelled the remaining POWAWIWTs through April. This email complains that RTDC had not 2 This oddity is unsurprising given the patter of each witness's testimony. Respondent's principal peppered his testimony with false apologies while, in a reassuring tone, he gently deferred and deflected blame and patiently, but mistakenly, insisted that the Contract did not require him to refund monies paid for a train trip that never took place. Petitioner frenetically rebutted each factual defense while somehow missing the salient points that he had paid for a POWAWIWT that never took place, Respondent refused to refund Petitioner's payment, and the Contract calls for a refund. Although a retired appellate attorney for the state of California, Petitioner seems to have grounded his early demands for a refund on natural law, because he appears not to have discovered one of the crucial contractual provisions, as discussed below, until he prepared the Prehearing Statement responded to Petitioner's requests for information, requests advice as to his available options, and asks for some assurance that Petitioner would not lose his payments of $8600 for the train tour plus an unspecified amount "for post trip activities" that are also unspecified. On March 15, Petitioner emailed Respondent's principal a news article in The Hindu that reported that another operator of train tours in India was paying refunds for cancelled trips and all tourist visas into India had been cancelled through April 15. This email implores Respondent to do the right thing and immediately refund the money paid for the cancelled trip. A few hours later, Petitioner emailed Respondent's principal an India West news article that reported that India was now in a complete lockdown and the Indian government had cancelled all nondiplomatic visas. This email asks Respondent's principal to keep Petitioner informed on what RTDC was going to do and expresses hope that RTDC issues refunds. On March 19, Respondent's principal emailed Petitioner that "we are reaching some agreement with our ground operator for the train and this is what is being finalized." The statement clearly discloses no agreement, but, at best, an expectation of an agreement. The email describes the expected agreement to allow Petitioner to take a POWAWIWT during the following season from September 2020 through April 2021, but requires Petitioner to select travel dates within six days and pay whatever fare is in effect at the time of the trip. Respondent's principal never explained why Petitioner had only six days to accept an "offer" that RTDC had not yet authorized its agent to make, might not authorize within the six-day deadline, and might not ever authorize. Respondent's demand for a near-immediate acceptance of a nonexistent offer of a trip at market price was unreasonable and suggests that Respondent's principal was merely trying to induce Petitioner to make an offer in the form of an acceptance, so the principal might have greater bargaining leverage with RTDC. On March 23, Petitioner emailed Respondent's principal, noting a series of unanswered emails and phone calls from Petitioner to the principal since the receipt of the March 19 "offer." Asking for clarification of the terms of the "offer," Petitioner's email concedes that it appears that Petitioner's money is lost and asks merely that Respondent show him the courtesy of calling him, confirming his fear, and providing a full explanation of what happened. Later that day, an employee of Respondent emailed Petitioner and informed him that the principal was suffering from a respiratory disorder and was unable to talk, so that future communications needed to be by email. Petitioner received no more emails from Respondent's principal, who, having returned to the United States after taking a POWAWIWT in early March, was later diagnosed with Covid. The telephone calls are undocumented. The credibility of Respondent's principal started to leave the tracks with the March 19 email of an illusory "offer" with an immediate deadline for acceptance. A month later, in responding to the disputed credit card charge, the credibility of Respondent's principal derailed completely, as he attempted to resecure the $1911.20 credit with material misrepresentations of what had taken place in an email dated April 21 to the credit card issuer. The email claims that Petitioner never cancelled the trip, so he was a "no-show"--a Kafkaesque claim that implies a duty to report for a trip that, undisclosed in the email, the sponsor had cancelled over two weeks prior to departure. The email states that, at the beginning of March, Petitioner called and said he did not feel comfortable taking the trip, but the trains were still running and "'Cancel for Fear'" was not an allowable reason for waiving a cancellation fee--perhaps true, but irrelevant. The email encloses a copy of the principal's March 19 email, states that Petitioner did not accept this "offer," and concludes that "[s]ince [Petitioner] did not cancel or inform us of the decision for travel before the travel date, the charge is valid as per the terms and conditions." The email cites a provision of the Contract addressing no-shows and, despite the absence of any mention of RTDC's cancellation of the trip due to the pandemic, adds a seemingly obscure reference to another provision of the Contract addressing acts of God, medical epidemics, quarantines, or other causes beyond Respondent's control for the cancellation of a trip. Notably, the email omits mention of the provisions of the Contract, described below, clearly calling for a refund. On balance, it is impossible to credit the testimony of Respondent's principal that, in telephone calls, Petitioner cancelled the trip before RTDC cancelled the trip or, more generally, that Petitioner could not settle on an acceptable remedy, and his indecisiveness prevented Respondent's principal from negotiating a settlement with RTDC--an assertion that, even if proved, would be irrelevant. Notwithstanding resolute attempts by Respondent's principal to misdirect attention from these unavoidable facts, Petitioner has paid for a train tour that never took place, RTDC cancelled the tour, and Petitioner never cancelled his tickets. The question is therefore whether, in its Contract, Respondent successfully transferred the risk of loss to Petitioner for a trip cancelled by the tour sponsor due to the pandemic. Analysis of this issue necessitates consideration of several provisions of the Contract that, despite its prolixity, is initially remarkable for two omissions: Respondent's Seller of Travel registration number3 and the name of RTDC as the sponsor of the POWAWIWT. Respondent claims that Petitioner caused his injury by declining to purchase travel insurance. The cover page of the Contract contains a section 3 Section 559.928(5) requires a seller of travel to include in each consumer contract the following: "[Name of seller of travel] is registered with the State of Florida as a Seller of Travel. Registration No. [X]." Even absent any mention of a statute, this disclosure provides a consumer with some means to learn of the somewhat obscure Act, the seller's statutory responsibilities, and the relief that may be available to a consumer for a seller's failure to discharge these responsibilities. Petitioner testified only that he somehow learned of the Act, but never said how. The record does not permit a finding that the omission of the statutory disclosure was purposeful, so as to conceal from the consumer the existence of the Act, or was a product of guileless ineptitude. called "Travel Insurance." This section provides an opportunity to purchase travel insurance from an entity "recommended by [Respondent]." The options are to check a box to purchase from Respondent's recommended entity or to check a box that states the traveler undertakes to obtain travel insurance independently, but this provision adds that, if travel insurance is not obtained, the consumer "absolve[s Respondent, t]he tour operator and the travel agent of all possible liabilities which may arise due to my failure to obtain adequate insurance coverage." Respondent offered no proof that its recommended travel insurance or other available travel insurance would pay for the cancellation of the April 1 POWAWIWT due to the pandemic, so Petitioner's choice not to purchase travel insurance is irrelevant. Additionally, the clear provisions of the Contract, discussed below, requiring a refund for a trip cancelled by the sponsor rebut Respondent's labored effort to apply the travel insurance provision to shift to the customer the risk of loss posed by a cancellation of the trip by the sponsor--a risk that might be better addressed by Respondent's purchase of commercial business interruption insurance. Respondent claims that the trip was cancelled by RTDC too close to the departure date to entitle Petitioner to any refund. The Contract contains a section called "Cancellation Fees." This section provides for increasing cancellation fees based on the proximity of the cancellation to the trip departure date. The Contract provides a 10% cancellation fee "if cancelled" more than 90 days prior to departure, 20% cancellation fee "if cancelled" between 89 and 35 days prior to departure, and 100% cancellation fee "if cancelled" within 34 days prior to departure. The Contract fails to specify if this provision applies to cancellations at the instance of the consumer or the trip sponsor, but the graduated fee reflects the greater value of a trip cancelled well in advance of the trip departure date, so that the trip can be resold. Obviously, a trip cancelled by a sponsor cannot be resold, so the cancellation fee provision applies only to a cancellation by a customer and does not shield Respondent from liability in this case. Lastly, Respondent relies on a section of the Contract called "Responsibility--Limitation of Liability." Provisions in this section warn that Respondent acts as an agent for a trip sponsor, such as the railroad, from which Respondent purchases the travel services. Although Respondent makes every effort to select the best providers of travel services, Respondent does not control their operations and thus CANNOT BE HELD LIABLE FOR ANY PERSONAL INJURY, PROPERTY DAMAGE OR OTHER CLAIM which may occur as a result of any and/or all of the following: the wrongful, negligent or arbitrary acts or omissions on the part of the independent supplier, agent, its employees or others who are not under the direct control or supervision of [Respondent]; [or] * * * (3) loss, injury or damage to person, property or otherwise, resulting directly or indirectly from any Acts of God, dangers incident to … medical epidemics, quarantines, … delays or cancellations or alterations in itinerary due to schedule changes, or from any causes beyond [Respondent's] control. … In case of overbooking, [Respondent] will only be liable for refund [sic] the charged amount to the guest. [Respondent] shall in no event be responsible or liable for any direct, indirect, consequential, incidental, special or punitive damages arising from your interaction with any retailer/vendor, and [Respondent] expressly disclaims any responsibility or liability for any resulting loss or damage. The "Responsibility--Limitation of Liability" provisions are general disclaimers of liability for various forms of damages arising out of the acts and omissions of third parties or forces outside the control of Respondent, such as the pandemic. These provisions represent a prudent attempt to avoid liability for damages, such as the lost opportunity to visit a gravely ill relative who has since died, that may amount to many multiples of the price paid for a trip. Complementing these general provisions limiting Respondent's liability, other provisions limit Respondent's liability to the payment of a refund of the purchase price of a trip cancelled by the sponsor. The section immediately following the "Responsibility--Limitation of Liability" section is the "Reservation of Rights" section, which provides: "The company [i.e., Respondent] reserves the right to cancel any tour without notice before the tour and refund the money in full and is not responsible for any direct or indirect damages to the guest due to such action." As noted above, the Contract omits any mention of Respondent's principal, so as to Respondent in the place of its undisclosed principal; thus, a provision referring to a cancellation of the tour by Respondent includes a cancellation of the tour by Respondent's principal. As cited by Petitioner in the Prehearing Statement, the other relevant provision is in the "Prices, Rates & Fares" section and states that, if a customer cancels, any refund to which the customer is entitled, under the above-cited cancellation fee provisions, will be dependent on then-current exchange rates, but "[i]n the event that a tour is canceled through no action of the Client, the Client will receive a full refund of US$."4 This provision entitles a consumer to: 1) a refund and 2) a refund in U.S. dollars, presumably unadjusted for currency fluctuations since the payment. At the hearing, Respondent's principal tried to construe the "US$" provision as a reference to the currency to which a consumer is entitled to be paid when a consumer cancels a trip under conditions in which the customer is entitled to a refund, but this construction ignores that the cited clause applies to 4 An identical "US$" provision is found at the end of the section called "A Note About Cancellation for All Tours/Reservations." cancellations occurring through no action of the consumer and imposes on Respondent the obligation to make a "full refund" in such cases.
Recommendation It is RECOMMENDED that the Department enter a final order directing Respondent to pay Petitioner the sum of $6689.20 within 30 days of the date of the order and, absent timely payment, directing the Surety to pay Petitioner the sum of $6689.20 from the Bond. 7 Perhaps the recommended and final orders in this case will persuade the credit card issuer to issue the credit for the $1911.20 to Petitioner, who is entitled to this disputed sum. But, if Respondent regains possession of this disputed sum and refuses to refund it to Petitioner, the Department may wish to consider suspending or revoking Respondent's certificate or referring the matter to the Miami-Dade County State Attorney's Office. See the preceding footnote. DONE AND ENTERED this 9th day of November, 2020, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 2020. COPIES FURNISHED: Gil Gonzalez 8444 Mono Lake Drive San Diego, California 92119 (eServed) Benjamin C. Patton, Esquire McRae & Metcalf, P.A. 2612 Centennial Place Tallahassee, Florida 32308 (eServed) H. Richard Bisbee, Esquire H. Richard Bisbee, P.A. 1882 Capital Circle Northeast, Suite 206 Tallahassee, Florida 32308 (eServed) W. Alan Parkinson, Bureau Chief Department of Agriculture and Consumer Services Rhodes Building, R-3 2005 Apalachee Parkway Tallahassee, Florida 32399-6500 Tom A. Steckler, Director Division of Consumer Services Department of Agriculture and Consumer Services Mayo Building, Room 520 407 South Calhoun Street Tallahassee, Florida 32399-0800
Findings Of Fact The Respondent. At all times relevant to this proceeding, the Respondent, George Costage, served as a member of the City Commission of the City of Safety Harbor (hereinafter referred to as the "City"). Mr. Costage was first elected to the City Commission in March of 1986. He was reelected to the City Commission in 1988 and 1990. His bid for reelection in 1992 was unsuccessful. Mr. Costage's service on the City Commission was his only experience holding public office. Mr. Costage had previously worked as a fireman in the City of Detroit until his retirement. Mr. Costage was paid a salary of approximately $400.00 a month for his service on the City Commission. The City of Safety Harbor's Travel Policy and Procedure. Members of the City Commission, including Mr. Costage, were required from time to time to travel on behalf of the City. For example, travel for the City in conjunction with the Florida League of Cities was expected of Commissioners, including Mr. Costage. Mr. Costage served on the Ethics Committee of the Florida League of Cities. Commissioners also incurred expenses dealing with the citizens of the City which they usually were not specifically reimbursed for. In lieu of reimbursing Commissioners for such expenses, all Commissioners were paid $150.00 a month by the City. The $150.00 monthly payment was intended as reimbursement for the otherwise unreimbursed expenses they incurred. Commissioners were paid $150.00 per month regardless of the amount of actual expenses they incurred. The City also paid Commissioners for expenses they incurred for travel out side of the City on City business. For example, travel by Commissioners to an annual Florida League of Cities' meeting in Crystal River, Florida, was paid for by the City. There were several methods by which the City paid for out-of-town travel expenses of Commissioners: The City made payments directly to the vendor on behalf of a Commissioner; A credit card was issued by the City for each Commissioner. Commissioners were allowed to use the credit card to charge expenses which the City then paid directly to the credit card company; Commissioners could obtain reimbursement from the City for expenses they had previously incurred and paid out of their own resources; and The City could advance funds to Commissioners to cover estimated travel expenses to be incurred. The City used a form titled a "Travel Expense Certificate" (hereinafter referred to as the "Travel Form") in conjunction with the payment of travel expenses of Commissioners. The Travel Form was to be used by Commissioners to obtain reimbursement of travel expenses a Commissioner incurred and paid for out of the Commissioner's own resources. See Advocate's exhibit 4A and 4B, a photocopy of Travel Forms used by Mr. Costage. On the back of the Travel Form were instructions concerning how to complete the form and "Travel Expenses Regulations." Among other things, the following was printed on the back of the Travel Form: Traveling expenses shall be limited to those expenses incurred in the performance of a public purpose authorized by law to be performed and must be within the limitations prescribed below. . . . . . . . Certificate: "I certify that the expenses shown herein were necessary and actually incurred during, authorized travel in performance of official duty and the claim made herewith is true and correct in every manner." The City had established policies governing reimbursement of travel incurred by Commissioners. Some of those polices were in writing, having been included on the back of the Travel Form. The evidence failed to prove that the City, however, always strictly enforced its policies. Because of alleged problems associated with travel expenses paid by the City, including the issues in this case, the City adopted more extensive written travel policies by Resolution adopted November 20, 1989. Travel Expenses of Family Members. Commissioners, at times, took family members, including spouses, with them while traveling on City business. The City also, at times, made travel arrangements for family members and made advance payments of travel expenses for family members. It was the policy of the City that travel expenses of family members of Commissioners were not "expenses necessarily incurred in the performance of a public purpose authorized by law to be performed . . . ." Therefore, the City expected reimbursement of travel expenses incurred by family members. Although the City's policy concerning the payment of travel expenses of family members set out in finding of fact 15 was not specifically stated in writing, the general policy contained on the back of the Travel Form is sufficient to put a reasonable person on notice that they should determine whether a family member's travel expenses are "necessarily incurred in the performance of a public purpose authorized by law to be performed " It was not the policy of the City that travel expenses of spouses or other family members of a Commissioner incurred while the Commissioner was traveling on City business were to be borne by the City. The City did not require reimbursement for certain travel expenses incurred by a Commissioner which also benefited a family member of the Commissioner. Those expenses were limited to expenses which would generally have been incurred by the Commissioner regardless of the presence of the family member on the trip, i.e., the cost of a rental vehicle. Travel Expenses Incurred by Mr. Costage's Spouse Paid by the City. At issue in this proceeding is the period of time between March, 1986 and November 20, 1989, when the City adopted a written policy clearing setting out more extensive travel policies of the City. During the period of time at issue in this case, and while Mr. Costage was a Commissioner, his wife of thirty-seven years accompanied him on trips he took on City business. The City paid Mrs. Costage's travel expenses directly to the vendor when making travel arrangements or it paid travel expenses attributable to Mrs. Costage charged on the credit card provided to Mr. Costage by the City for his use. On at least one occasion, the cost of a helicopter trip over the Grand Canyon incurred by Mr. and Mrs. Costage was paid for by the City. Mr. Costage took no immediate action to reimburse the City for travel expenses paid by the City for Mrs. Costage's travel. Not until well after Mr. Costage was questioned publicly about the expenses paid by the City for Mrs. Costage's travel did Mr. Costage reimburse the City for her travel expenses. Mr. Costage's Payment of Mrs. Costage's Travel Expenses to the City. During Mr. Costage's campaign for reelection to the City Commission in the Spring of 1990, the propriety of the payment of the City of travel expenses incurred by Mr. Costage's spouse was questioned. As a result of the issue being raised, Mr. Costage requested that the City Manager determine the amount of travel expenses which the City had paid for Mrs. Costage's travel. This request was made in approximately March, 1990. The City Manager then requested and received an accounting from the City finance department. Based upon the records of the City finance department, it was initially determined that a total of approximately $3,100.00 in travel expenses attributable to Mrs. Costage had been paid by the City and had not been repaid by Mr. Costage. Mr. Costage was apprised of the City finance department's determination in approximately March, 1990. Mr. Costage asserted that the correct amount was about half the $3,100.00 amount arrived at by the City finance department. No reimbursement was made in March, 1990. At about the same time that Mr. Costage was informed of the amount of travel expenses attributable to his spouse, the Pinellas County Sheriff's Office began an investigation into the City's payment of travel expenses on behalf of family members of Commissioners and others. This was a general investigation, not limited to any one Commissioner or individual. As a consequence of the investigation, Mr. Costage took no further action to reimburse the City for the expenses paid on behalf of his spouse. Subsequent to the completion of the Sheriff's Office investigation, Mr. Costage again discussed the amount of his spouse's travel expenses with the City and it was mutually agreed that the correct amount of unreimbursed travel expenses paid by the City for Mrs. Costage was $2,974.63. Mr. Costage reimbursed the City this amount in February, 1991. Mr. Costage's Knowledge of the City's Policy Concerning the Payment of Family Member Travel Expenses. Mr. Costage has suggested that he did not violate Section 112.313(6), Florida Statutes, because of his assertion that the City did not have a policy that required him to pay for his spouse's travel expenses--that the City practice was just the opposite. He also has asserted that, if the City had such a policy, he was never informed that he was required to repay his spouse's travel expenses and he was not otherwise aware of such a requirement. These assertions are not supported by the weight of the evidence. First, the assertion that no policy requiring reimbursement of family- member travel expenses existed is contrary to the weight of the evidence: The statements on the back of the Travel Form are sufficient to place a reasonable person on notice that such expenses should not be paid for by the City. The statements are, at the very least, sufficient that it would be unreasonable for Mr. Costage to simply assume that his spouse's travel was "incurred in the performance of a public purpose authorized by law"; Several other Commissioners who served during at least part of the period that Mr. Costage was a Commissioner were specifically told that travel expenses incurred by family members of Commissioners were required to be repaid to the City by the Commissioner. See the testimony of Commissioners Caldemeyer, Cincota and Baty, City Mayor Dettmer and City Mayor Levine. Mr. Costage's assertion that it was the practice, if not the policy, of the City that travel expenses of family members were to be paid by the City is also not supported by the weight of the evidence: Except for Mr. Costage and former Commissioner McLaughlin, all the City officials who served during the period of time at issue and who testified at the final hearing of this matter indicated that they were aware that they were ultimately responsible for travel expenses incurred by family members and that the City did not pay those expenses; The evidence failed to prove that travel expenses of family members other than those attributable to Mr. Costage's spouse and possibly Mr. McLaughlin's spouse were paid for by the City without reimbursement; If the City had a policy of paying for spouse travel expenses without requiring reimbursement, why then did Mr. Costage ultimately repay the City almost $3,000.00? He repaid the expenses because he knew City policy required reimbursement and because his use of public funds for his spouse's benefit had been exposed; At best, the evidence proved that the City did not strictly enforce the policy that travel expenses were only to be paid with public funds if they were incurred for a public purpose. As a consequence of the City's lack of strict enforcement, Mr. Costage was able to avoid paying for his spouse's travel expenses from March, 1986 until February, 1991. The lack of enforcement of the City's travel policies, however, does not prove that the City had an established policy of paying the travel expenses of Commissioner's spouses. It only proved that City employees failed to question members of the City's governing body about their actions. The weight of the evidence also proved that Mr. Costage, despite his assertions to the contrary, was told and/or was aware of the City's policy requiring reimbursement of travel expenses of spouses: First, it is concluded that Mr. Costage was aware of the instructions on the back of the Travel Form: Mr. Costage filed two Travel Forms for which he received reimbursement of expenses incurred in 1986 and 1987. Although Mr. Costage was not able to say absolutely that the signature on the Travel Forms (Advocate's exhibit 4A and 4B) was his signature, he was also not able to say that it was not his signature and he acknowledged that the signatures could be his. It is, therefore, concluded that the two Travel Forms were signed and submitted by Mr. Costage. This conclusion is further supported by the fact that one other Commissioner witnessed Mr. Costage filing a Travel Form; Although on infrequent occasions a copy of a Travel Form without the back of the form was used by City personnel, it was the prevailing practice, especially of individuals such as Commissioners who were located in City Hall, to file an original three part Travel Form which included the instructions. Secondly, it is inferred from the following that Mr. Costage received instructions from the City Manager shortly after he was elected concerning the City's travel policies, including the policy concerning travel expenses of spouses: It was the City Manager's common practice and procedure to discuss, or cause to be discussed, City policies and procedures, including those governing spouse travel expenses, with all new Commissioners; All of the Commissioners who served during the period of time at issue and who testified in the final hearing, except Mr. Costage, recalled meeting with the City Manager or, at the City Manager's direction, the City's finance director, and discussing travel procedures. All of these Commissioners, except Mr. McLaughlin, recall being told that family travel expenses were to be paid by the Commissioner. Even Mr. McLaughlin admitted that he had been told that travel expenses attributable to his children were to be reimbursed by him. Mr. McLaughlin's testimony that the City policy concerning the payment of spouse travel expenses was not credible, especially in light of the ongoing litigation between Mr. McLaughlin and the City over travel expenses of Mrs. McLaughlin paid for by the City. While on a break during a budget workshop in 1986 or 1987, Mrs. Costage remarked in the presence of Mr. Costage and others that she thought the City should pay for the travel expenses of spouses of Commissioners because of all that the spouses did on behalf of the City. Mr. Costage did not indicate, as he has asserted in this proceeding, that the City already had a policy of paying for spouse travel expenses. The statement is also contrary to Mr. Costage's assertion that he was unaware of the actual policy of the City requiring that Commissioners ultimately pay for their spouse's travel; In 1987, Arthur Levine ran against Alton Dettmer for the position of City Mayor. At some time before the election Mr. Costage advised Mr. Levine to look into Mr. Dettmer's travel expense reports, implying that there was something wrong with the manner in which Mr. Dettmer had been paid for travel expenses. This act by Mr. Costage supports a finding that Mr. Costage was aware that the City had at least some policies governing travel. Benefit of Spouses Travel Expenses to Mr. Costage. Based upon the conclusion that Mr. Costage was aware that the City's policy required that he pay for Mrs. Costage's travel expenses and the fact that Mr. Costage did not pay for almost $3,000.00 in expenses incurred during the period March, 1986 through November 20, 1989, until February, 1991, it is concluded that Mr. Costage was aware that his failure to pay Mrs. Costage's travel expenses would be a financial benefit to him.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics enter a Final Order and Public Report finding that the Respondent, George Costage violated Section 112.313(6), Florida Statutes, as alleged in Complaint No. 91-37. It is further RECOMMENDED that Mr. Costage be publicly censured and reprimanded. It is further RECOMMENDED that Mr. Costage be required to pay a civil penalty of $3,000.00. DONE and ENTERED this 24th day of September, 1992, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 1992. APPENDIX Case Number 92-1007EC The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Advocate's Proposed Findings of Fact A 1 2. 2 3. 3 5. 4 19. 5 12. B 1 4. 2-4 6. 5 7. 6 8. 7 14-15. 8 9. 9 Hereby accepted. 10 9. 11 33. 12 10. C 1 20-21. 2 22. 3 23. 4 24. 5 25. 6 Hereby accepted. 7 25. 8 26. 9 See 27. 10 27. 11 28. The last sentence is hearsay. 12 29. D 1-2 33(a) and hereby accepted. 3-5 33(b). 6 Hereby accepted. 7 31-32 and 33(b). 8 33(b). 9 Hereby accepted. 10 33(c). Not supported by the weight of the evidence. Hereby accepted. 13 33(d). 14 33. Mr. Costage's Proposed Findings of Fact Mr. Costage's proposed "Findings of Fact" consists primarily of a summary of the testimony of the witnesses and not the ultimate facts which the testimony may support. In large part, the summary of testimony is accurate. It has been noted below where testimony has been mischaracterized or where the testimony does not support the ultimate fact which the testimony may or may no support. Advocate's Witnesses: Constitutes a generally accurate summary of testimony. Constitutes a generally accurate summary of testimony. The second sentence is not, however, relevant. The suggestion in the next to the last sentence that "no reimbursement was sought" is not supported by the weight of the evidence. Constitutes a generally accurate summary of testimony. The last sentence is not relevant and/or is not supported by the weight of the evidence. Constitutes a generally accurate summary of testimony. Whether Mr. Caldemeyer's testimony was "repetitious" is not relevant. Constitutes a generally accurate summary of testimony. Constitutes a generally accurate summary of testimony. The last sentence is hearsay. Mr. Costage's Witnesses: Constitutes a generally accurate summary of testimony. Ms. Adkins testimony involved a period of time subsequent to the period of time at issue in this proceeding. Consequently, her testimony was not of much relevance. Nor was her testimony concerning what others did supported by the weight of the evidence. Not supported by the weight of the evidence. Constitutes a generally accurate summary of testimony. Mr. Costage's testimony was generally not supported by the weight of the evidence or was not relevant. The first three sentences are not supported by the weight of the evidence. The fourth sentence has been generally accepted in finding of fact 14. The fifth through seventh sentences are not relevant. With regard to the last sentence, see findings of fact 24- 29. Mr. Costage's proposed findings of fact end on page 7 of Mr. Costage's proposed recommended order. Beginning on page 7, Mr. Costage has provided argument and conclusions of law. COPIES FURNISHED: Virlindia Doss Assistant Attorney General Department of Legal Affairs The Capitol, Suite 101 Tallahassee, Florida 32399-1050 George A. Routh, Esquire George A. Routh, P.A. 1446 Court Street Clearwater, Florida 34616 Bonnie J. Williams, Executive Director Commission on Ethics The Capitol, Room 2105 P. O. Box 6 Tallahassee, Florida 32302-0006
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, R. Jane Frazier, has filed a claim against the bond in the amount of $813.00 alleging that Passport failed to perform on certain contracted services. On June 4, 1990, petitioner purchased a travel certificate from Jet Set Travel, a Maryland telemarketeer authorized to sell travel certificates on behalf of Passport. The certificate entitled the holder to fourteen nights' accommodations in Hawaii plus roundtrip airfare for two persons, with all travel arrangements to be made by Passport. The certificate carried the name, address and logo of Passport. During petitioner's dealings with Passport's agent, it was represented to her that for $89.00 per night, she would receive a two bedroom, oceanfront condominium. This constituted a misrepresentation on the part of the agent since the rooms were actually more expensive. Relying on that representation, petitioner authorized a $328.00 charge on her credit card payable to Jet Set Travel to be used as a credit on services purchased in Hawaii. She also paid a $50.00 refundable deposit to Passport. In August 1990, petitioner contacted Passport regarding travel dates and was told the charge on her room would be $124.00 per night, and not $89.00 per night as promised by Jet Set Travel. In charging this amount, Passport relied upon its brochure which priced the accommodations in the range of $89.00 to $124.00 per night, with the highest price for the type of room selected by petitioner. Fearing that she would lose her $328.00 fee and $50.00 deposit if she did not pay the higher amount, petitioner reluctantly agreed to send a cashier's check in the amount of $1,406.00 to Passport, which represented fourteen nights' lodging at $124.00 per night. Finally, before she departed on the trip, petitioner was required to pay another $25.00 miscellaneous fee to Passport, the basis for which was never explained. When petitioner arrived in Hawaii on October 11, 1990, she discovered that her assigned accommodations for the first week at the Kona Reef were unavailable because Passport had failed to make a reservation. Accordingly, she was forced to purchase five nights accommodations at the Kona Reef for $524.02 plus two nights at another facility for $248.00. The accommodations for the second week were satisfactory. After petitioner brought this matter to the attention of Passport, she acknowledged that she received a refund check for the first seven nights' stay, although she says she can't remember if it was for all or part of her out-of- pocket costs. Passport's contention that its books reflect an entry that she was paid for the entire amount was not contradicted although neither party had a cancelled check to verify the actual amount of the payment. Passport's testimony is accepted as being the more credible on this issue. Because petitioner relied on a misrepresentation by Passport's agent as to the type and price of accommodations being offered, she is entitled to be reimbursed her $50.00 refundable deposit (which was never returned), the $25.00 miscellaneous fee paid on September 26, 1990, for which no justification was shown, and the difference between the originally agreed on price ($89.00 per night) and the actual price ($124.00) for the last seven nights accommodations, or $245.00. Accordingly, she is entitled to be paid $320.00 from the bond.
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 he be paid $320.00 from the bond. DONE AND ENTERED this 13th 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 13th day of December, 1994. COPIES FURNISHED: R. Jane Frazier 3070 Meadow Lane Mobile, Alabama 36618-4634 Michael J. Panaggio 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
The Issue In relation to DOAH Case No. 05-0515, does the case involve the sale of securities as described in Chapter 517, Florida Statutes (2002), that would confer jurisdiction upon OFR to proceed to a hearing on the merits of the Administrative Complaint that forms the basis for DOAH Case No. 05-0515, and to what extent, if any, the named Respondents have been involved with the sale of securities sufficient to declare jurisdiction over their activities? Preliminary to that determination is the related issue concerning the possible pre-emption of OFR's regulatory authority by virtue of the regulatory action previously taken by the State of Florida, Department of Business and Professional Regulation, Division of Land Sales, Condominiums and Mobile Homes (DBPR) under authority set forth in Chapter 721, Florida Statutes (2002)? Argument has also been set forth concerning the significance of court cases as they might influence OFR's ability to declare their regulatory authority in this instance.
Findings Of Fact * * * 2. RESPONDENT is the 'creating developer' of the Universal Luxury Lease Plan, a personal property 'timeshare plan' as those terms are defined in sections 721.05(9)(a) and 721.05(37), Florida Statutes, located in the city of Sanford, Florida. * * * On or about July 10, 2003, DIVISION was made aware of a newspaper advertisement for Universal Luxury Lease Plan. This advertisement, promoted the purchase of a timeshare interest in the Universal Luxury Lease Plan as an investment that offered purchasers a 10 percent per year return on their investment. On July 25, 2003, DIVISION'S investigators were given an application package containing the Universal Luxury Lease Plan Enrollment Forms, CD-ROM, Public Offering Statement, Contracts and Motor Coach Brochures. The application package stated that it was advertising material being used for the purposes of soliciting timeshare interests. It described a component of the timeshare plan called the 'Affinity Rental Program' and stated that the program will typically produce a monthly income of 10 percent of the lease-hold ownership interest.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That an order be entered by OFR finding jurisdiction to proceed with the Administrative Complaint in DOAH Case No. 05- 0515 on its merits. DONE AND ENTERED this 6th day of January, 2006, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 2006.
The Issue Whether Petitioner is entitled to an exemption from the requirements of Section 559.927, Florida Statutes, under subsection (12)(h) of the statute.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Global Touring, Inc., is in the wholesale travel business. It sells Australia and New Zealand travel packages to travel agencies. Jennifer Pickens is Global Touring, Inc.'s sole shareholder and its President. Pickens has been in the travel business in Broward County, Florida, since 1983, when she started her own travel agency, Global Travel Service, which she operated as a sole proprietorship. At the time, the Air Traffic Conference (hereinafter referred to as the "ATC") had an airline ticket purchase and payment program for participating travel agents. In September of 1983, Pickens contracted with the ATC to participate in its program. She was given an ATC Agency Code Number (618310) and placed on the official ATC Agency List. Approximately a year later, Pickens began a wholesale travel operation, Global Touring Service, which sold tours to Australia and New Zealand. Global Touring Service and Global Travel Service operated out of the same office. Pickens used her ATC Agency Code Number to write airline tickets for both operations. Effective the close of business on December 30, 1984, the ATC terminated its airline ticket purchase and payment program for travel agents. The ATC program, however, was replaced by a similar program operated by the Airlines Reporting Corporation (hereinafter referred to as the "ARC"). Travel agents on the official ATC Agency List were given an opportunity, at their option, to be placed on the official ARC Agency List "in substantially the same status as that agent st[ood] on the ATC list on December 30[, 1984,]" by entering into an agreement with the ARC to participate in its replacement program. Pickens opted to participate in the program. She was assigned an ARC Agency Code Number and placed on the official ARC Agency List. On November 20, 1985, Pickens incorporated her business enterprises. She created one corporate entity, Jennifer R. Pickens Travel, Inc., with two operating divisions: Global Travel Service and Global Touring Service. The newly formed corporation continued to operate under the contract Pickens had entered into with the ARC. In 1986, Jennifer R. Pickens Travel, Inc., purchased another travel agency, Lighthouse Travel Services. Jennifer R. Pickens Travel, Inc., assumed Lighthouse Travel Services' contract with the ARC and Lighthouse Travel Services' ARC Agency Code Number and it cancelled the ARC agreement under which it had been conducting business prior to its purchase of Lighthouse Travel Services. Lighthouse Travel Services and Global Travel Service were combined into one retail travel operating division bearing the name of the former. In December of 1991, Jennifer R. Pickens Travel, Inc., changed its name to Global Touring, Inc., and eliminated its retail travel operating division. Since that time, it has engaged only in the wholesale travel business. On or about March 1, 1992, Global Touring, Inc., sold the assets of its former retail travel operating division, including its ARC contract and ARC Agency Code Number, to YAM, Inc. Following the sale, Global Touring, Inc., sought to enter into another contract with the ARC and obtain a new ARC Agency Code Number. Because the paperwork Global Touring, Inc., initially submitted to the ARC was lost, it was not until on or about December 9, 1992, that Global Touring, Inc., entered into such a contract and received a new ARC Agency Code Number (10-53349-3). The contract is still in effect. Since its inception, with the exception of the period from on or about March 1, 1992, to on or about December 9, 1992, Global Touring, Inc., has continuously operated under a contract with the ARC. While it has undergone a name change, it has remained under the ownership and control of the same person, Jennifer Pickens, during the entire time that it has had a contractual relationship with the ARC. Earlier this year, Global Touring, Inc. submitted to the Department an application for a statement certifying that, based upon the total number of years it has contracted with the ARC, it is exempt from the requirements of Section 559.927, Florida Statutes. Pickens, who prepared the application, failed to sign it. In the application, she asserted that Global Touring, Inc., had been "a member of ARC since: 09/14/83," holding "ARC Number 618310." The Department preliminarily determined to deny the application. In its letter to Pickens advising her of its preliminary determination (hereinafter referred to as the "Notice of Proposed Denial"), the Department gave the following reasons for its proposed action: Application for exemption unsigned, with wrong data; 2) ARC approval 10-53349-3, made 12/9/92 is less than 3 years. Such proposed action is consistent with the Department's practice of granting exemptions under subsection (12)(h) of Section 559.927, Florida Statutes, only to those sellers of travel who are able to show that they have an agreement with the ARC which has been in effect for at least the immediately preceding three years. Pickens responded to the Department's advisement with a letter of her own, the body of which read as follows: We wish to apply for a Formal Procedure Hearing. We applied for an exemption on July 22, 1994 and it seems that the reviewer completely ignored all the enclosures. We have been in the travel business since 1983. We took over Lighthouse Travel in 1985 and had the ARC number 618310 for seven years until selling Lighthouse Travel in 1992 and allowing the ARC number to remain with that part of the business. In 1992, after having our application lost, we again became members of ARC, and all of the above under the same company, Jennifer R. Pickens Travel Inc. which changed its name in 1991 to Global Tour- ing, Inc. In the interim we have become one of the 10 largest American Wholesalers to Australia and New Zealand. Our company can obviously prove an ARC relationship for 3 years (actually 11 years) and a history of selling travel for the same period. We therefore request an exemption as per our submis- sion and inasmuch as a formal hearing seems to be the procedure, we hereby request such a hearing. The letter was dated August 25, 1994, and signed by Pickens in her capacity as the President of Global Touring, Inc. After receiving Pickens' letter, the Department referred the instant matter to the Division of Administrative hearings.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order granting Petitioner's application for a letter of exemption pursuant to Section 559.927, Florida Statues. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of December, 1994. STUART M. LERNER 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 27th day of December, 1994.
